Children in Foster Care and Social Security Administration Benefits: Frequently Asked Questions
Congressional research reportNov 23, 2021
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Children in Foster Care and Social Security
Administration Benefits: Frequently Asked
Questions
November 23, 2021
Congressional Research Service
https://crsreports.congress.gov
R46975
SUMMARY
Children in Foster Care and Social Security
Administration Benefits: Frequently Asked
Questions
In a given year, about 27,000 children in foster care receive benefits from the Supplemental
Security Income (SSI) program (due to their own disability) or the Social Security program
(based on the retirement, disability, or death of an insured parent). Representing a little more than
5% of all children in foster care, these are children who have been removed from their homes,
typically due to abuse or neglect at the hands of their parents, and for whom a state child welfare
agency has been given responsibility for placement and around-the-clock care. In more than 80%
of these cases, the Social Security Administration appoints the state child welfare agency as the
child’s representative payee to receive and manage the SSI/Social Security benefits on the child’s
behalf.
R46975
November 23, 2021
Emilie Stoltzfus
Specialist in Social Policy
Paul S. Davies
Specialist in Income
Security
William R. Morton
Analyst in Income Security
Data reported for state fiscal year 2018 indicate that 38 states and the District of Columbia were able to use about $179
million in SSI/Social Security benefits received on behalf of children in foster care to offset the child welfare agency’s cost of
providing care for those children. Various stakeholders have argued in support of, or against, using SSI/Social Security
benefits for children in care to cover the cost of foster care.
Some child advocates contend that by using SSI/Social Security benefits to reimburse the cost of foster care, the child welfare
agency denies the child beneficiaries funding that rightly belongs to them and effectively forces the children to pay for their
own foster care. This practice may also cause the children to miss opportunities to accumulate savings that may aid in their
transition from foster care.
On the other hand, child welfare agency administrators and some other advocates argue that they are using the SSI/Social
Security benefits to meet the children’s current needs, including providing the children with food and housing, much like a
parent would do. Without the ability to use SSI/Social Security benefits to pay for a child’s foster care, child welfare agencies
may stop screening children to determine their eligibility for these programs, leading to missed benefits. Child welfare
agencies may also help children in foster care who have qualifying disabilities to maintain their SSI/Social Security benefits
into adulthood as they transition out of care.
This report addresses the financing of foster care for children who receive SSI/Social Security benefits. After providing brief
background information about the federal foster care program under Title IV-E of the Social Security Act, as well as SSI and
Social Security benefits for children, the report answers frequently asked questions about the interplay between these
programs. Questions and answers focus on
the receipt of SSI/Social Security benefits among children in foster care and the characteristics of children
in foster care who receive SSI/Social Security benefits;
the role of representative payees for children in foster care who receive SSI/Social Security benefits;
the use of SSI/Social Security benefits by child welfare agencies to cover the cost of foster care, including
potential arguments for and against such practices;
selected court decisions and constitutional issues associated with the use of SSI/Social Security benefits by
child welfare agencies to cover the cost of foster care; and
congressional and executive branch activity to address the use of SSI/Social Security benefits by child
welfare agencies to cover the cost of foster care.
state processes for screening and applying for SSI/Social Security benefits on behalf of children in foster
care;
Congressional Research Service
Children in Foster Care and SSA Benefits: Frequently Asked Questions
Contents
Introduction ..................................................................................................................................... 1
Program Background ....................................................................................................................... 2
Foster Care ................................................................................................................................ 2
Supplemental Security Income (SSI) and Social Security Programs ........................................ 4
SSI Payments for Children.................................................................................................. 5
Social Security Benefits for Children ................................................................................. 7
Frequently Asked Questions ............................................................................................................ 8
Characteristics of Children in Foster Care by Receipt of SSI/Social Security Benefits ........... 8
What is the disability status of children receiving SSI/Social Security benefits? ............... 8
What types of disabilities are diagnosed? ........................................................................... 9
What are the demographic characteristics of children by receipt of SSI/Social
Security benefits?............................................................................................................. 9
What selected circumstances were associated with a child’s removal from the
home and entry to foster care? ....................................................................................... 10
Do children in foster care receiving SSI/Social Security benefits also receive Title
IV-E foster care maintenance payments? ........................................................................ 11
What are the case plan goals of children in foster care by receipt of SSI/Social
Security benefits?............................................................................................................ 11
What are the reasons children exit foster care by receipt of SSI/Social Security
benefits? ......................................................................................................................... 12
Representative Payees ............................................................................................................. 13
When is a representative payee appointed? ...................................................................... 14
What are the duties of a representative payee? ................................................................. 14
Which factors are considered for assigning representative payees to minor child
beneficiaries in foster care? ........................................................................................... 15
How many minor children receiving SSI/Social Security benefits have child
welfare agencies as their representative payees? ........................................................... 16
Does SSA notify minor child beneficiaries of its decision to appoint
representative payees? ................................................................................................... 17
How do representative payees hold and track beneficiaries’ SSI/Social Security
benefits? ......................................................................................................................... 18
Are representative payees allowed to use beneficiaries’ SSI/Social Security
benefits to reimburse themselves for expenses incurred on the beneficiaries’
behalf?............................................................................................................................ 19
Screening and Applying for SSI/Social Security Benefits on Behalf of Children in
Foster Care ........................................................................................................................... 20
To what extent are children in foster care screened for SSI/Social Security
eligibility? ...................................................................................................................... 20
Which factors are considered when determining whether children in foster care
should apply for SSI/Social Security benefits? .............................................................. 21
Use of Social Security and SSI Benefits by Child Welfare Agencies ..................................... 24
To what extent do children in foster care receive SSI/Social Security benefits? .............. 24
To what extent do child welfare agencies use SSI/Social Security benefits to
reimburse themselves for foster care expenses? ............................................................ 25
How do child welfare agencies hold and track SSI/Social Security benefits? .................. 27
Selected Court Decisions ........................................................................................................ 27
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Children in Foster Care and SSA Benefits: Frequently Asked Questions
How has the Supreme Court ruled on the states’ use of SSI/Social Security
benefits to support children in foster care? .................................................................... 27
Have lower courts addressed how states may use children’s SSI/Social Security
benefits? ......................................................................................................................... 28
Constitutional Issues ......................................................................................................... 30
Have courts addressed the use of benefits for children in foster care and claims of
equal protection clause violations? ................................................................................ 31
Have courts addressed alleged due process rights violations with regard to notice
of use of funds for foster care? ...................................................................................... 31
Pros and Cons for the Use of SSI/Social Security Benefits by Child Welfare Agencies ........ 33
What are the arguments against the use of SSI/Social Security benefits by child
welfare agencies? ........................................................................................................... 33
What are the arguments for the use of SSI/Social Security benefits by child
welfare agencies? ........................................................................................................... 34
Congressional Activity ............................................................................................................ 35
Have any federal laws been enacted recently that address the use of Social
Security and SSI benefits by child welfare agencies? ................................................... 35
Have any federal bills been introduced recently that would address the use of
SSI/Social Security benefits by child welfare agencies? ............................................... 37
Has Congress ever examined the intersection between foster care and Social
Security/SSI? ................................................................................................................. 39
Figures
Figure 1. Age of Children in Foster Care by Receipt of SSI/Social Security Benefit and
Reported Disability ...................................................................................................................... 9
Figure 2. Race/Ethnicity of Children in Foster Care by Receipt of SSI/Social Security
Benefit and Reported Disability ................................................................................................. 10
Figure 3. Case Plan Goals for Children in Foster Care by Receipt of SSI/Social Security
Benefit and Reported Disability ................................................................................................. 12
Figure 4. Reason for Exit from Foster Care by SSI/Social Security Benefit Receipt and
Reported Disability .................................................................................................................... 13
Figure 5. Minor Child SSI/Social Security Beneficiaries in Foster Care, by Type of
Payee, November 30, 2020......................................................................................................... 17
Figure 6. Minor Child SSI/Social Security Beneficiaries in Foster Care with Child
Welfare Agency Representative Payees, by Type of Benefit, November 30, 2020 .................... 17
Figure 7. Children in Foster Care who are Not Receiving an SSI/Social Security Benefit,
by Clinical Diagnosis of Disability ............................................................................................ 25
Tables
Table A-1. Overview of Eligibility and Benefits /Assistance for Children in Foster Care
and Those Receiving Social Security or Supplemental Security Income (SSI) ......................... 42
Table B-1. Children in Foster Care by Receipt of SSI/Social Security Benefits and
Disability Status, by State .......................................................................................................... 47
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Children in Foster Care and SSA Benefits: Frequently Asked Questions
Table C-1. Representative Payee Order of Preference List for Minor Child Beneficiaries ........... 50
Table D-1. Minor Child SSI/Social Security Beneficiaries in Foster Care, by Type of
Representative Payee and Type of Benefit, November 30, 2020 ............................................... 51
Table E-1. State Child Welfare Agency Receipt of SSI/Social Security Funds and Use of
Certain Accounts, SFY2018 ....................................................................................................... 52
Appendixes
Appendix A. Foster Care Maintenance Payments, SSI, and Social Security: Comparison
of Eligibility and Benefits/Assistance ........................................................................................ 42
Appendix B. Benefit Receipt and Disability Status of Children in Foster Care, by State ............. 46
Appendix C. Preferred Representative Payee List for Minor Child Beneficiaries ........................ 50
Appendix D. Additional Data on Minor Child SSI/Social Security Beneficiaries in Foster
Care ............................................................................................................................................ 51
Appendix E. SSI/Social Security Benefits Made Available for Use by State Child Welfare
Agencies ..................................................................................................................................... 52
Appendix F. SSA OIG Reports on Representative Payees and Children in Foster Care ............... 55
Contacts
Author Information........................................................................................................................ 58
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Children in Foster Care and SSA Benefits: Frequently Asked Questions
Introduction
Children in foster care are those children who have been removed from their homes, typically due
to abuse or neglect at the hands of their parents, and for whom the state child welfare agency has
thus been given the responsibility for their placement and care. The state child welfare agency
typically places these children in relative or non-relative foster family homes or in group homes
or institutions providing around-the-clock care.
This report provides background information about the financing of foster care for children who
qualify for benefits under one of two programs administered by the Social Security
Administration (SSA):
1. Supplemental Security Income (SSI, Title XVI of the Social Security Act), or
2. Old Age, Survivors, and Disability Insurance (Title II of the Social Security Act),
referred to in this report as “Social Security.”
Children qualify for SSI based on their own disabilities and for Social Security based on the
retirement, disability, or death of an insured parent. Based on the most recent available data,
about 27,000 children in foster care (5.3% of all children in foster care) were receiving SSI/Social
Security benefits, and some research indicates a larger number may be eligible.1 Data reported for
state fiscal year 2018 indicate that 38 states and the District of Columbia had access to about
$179 million in SSI/Social Security benefits received on behalf of children in foster care to offset
child welfare agency foster care costs.2
The report begins with a discussion of foster care, including the federal foster care program (Title
IV-E of the Social Security Act), and the SSI and Social Security programs.3 It then answers
frequently asked questions about the interplay between these programs, focusing on the receipt of
SSI/Social Security benefits among children in foster care and the use of those benefits by state
and local child welfare agencies to cover the cost of foster care. This report also provides
background for Congress on the potential merits and drawbacks of using SSI/Social Security
1 This number is based on CRS analysis of FY2019 data from the Adoption and Foster Care Analysis Reporting System
(AFCARS, dataset #239, FC2019v1), available from the National Data Archive on Child Abuse and Neglect
(NDACAN) at Cornell University. Data analyzed were submitted to the U.S. Department of Health and Human
Services (HHS) by the 50 states and the District of Columbia. (Data from Puerto Rico, which were expected to be resubmitted, were excluded.) The CRS analysis looked at the number of all children who were in foster care at some
point during FY2019 and who had been in care for at least six months. The finding of between 5% and 6% of children
in foster care receiving SSI/Social Security benefits is consistent with analyses of AFCARS data from earlier years,
including some based on the population of children in care on the last day of the fiscal year. For more information on
data used for this analysis, including some state-by-state data, see Appendix B.
2 Based on unpublished survey data provided to CRS by Child Trends, a research organization focused on improving
the lives of children and youth, especially those who are most vulnerable. Specifically, the Child Trends Survey asked
about the amount of certain third-party income “remitted to the state and made available to the child welfare agency to
use as offsets to child welfare agency costs for child welfare services/activities.” Agencies in three states and Puerto
Rico reported receiving $0 in SSI/Social Security benefits; those in eight states were unable to provide information on
the amount of SSI/ Social Security benefits received in this manner and one state did not participate in the survey. The
$179 million figure generally represents access to SSI/Social Security funds only (during SFY2018). However, funding
amounts included in that total from Louisiana and Pennsylvania may include some funds from other third-party income
sources. For more information see Appendix E, table note a. For the survey question as fielded, see Appendix R,
Question 26, p. 28, in Kristina Rosinsky, Sarah Catherine Williams, Megan Fischer, and Maggie Haas, Child Welfare
Financing SFY 2018: A Survey of Federal, State, and Local Expenditures, Child Trends, March 2021.
3 Appendix A provides an overview and comparison of eligibility and benefits/assistance under these programs.
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Children in Foster Care and SSA Benefits: Frequently Asked Questions
benefits for this purpose, as well as congressional, judicial, and executive branch actions
addressing use of benefits.
Program Background
Foster Care
Children in foster care are children for whom a state or tribal child welfare agency has been given
formal responsibility for a child’s care and placement by a court or by a voluntary placement
agreement between the state and a child’s parent or legal guardian.4 Foster care is the around-theclock care of a child outside the child’s home and is most often determined necessary for the
safety of the child due to neglect or abuse of the child by his or her parents.5 Children who are
removed from their homes may be placed in foster family homes, institutions, or group homes by
state child welfare agencies. The federal government has established certain protections that are
applicable to all children in foster care. These protections are generally included as program plan
requirements under Title IV-B and Title IV-E of the Social Security Act. These requirements
include that a state has a written case plan detailing, among other things, where the child will live,
what the child’s case plan or “permanency” goal is, and what services will be provided to ensure
that a permanent home is re-established for the child. Children may leave foster care for
permanency (via family reunification, adoption, or guardianship) at any age.6 Once they reach age
18 (or in some states up to age 21), however, they are no longer considered children for purposes
of state child welfare programs. Youth who have not had permanency established by that point are
said to age out of care and typically leave care after being emancipated (from state child welfare
agency responsibility) by a court.7
State and tribal child welfare agencies use funding from a variety of federal sources to support
children in foster care, notably the federal foster care program authorized by Title IV-E of the
Social Security Act. The program is jointly funded by the federal government and states (or
participating tribes), and is administered by the Children’s Bureau, which is an agency within the
Administration for Children and Families (ACF) at the U.S. Department of Health and Human
Services (HHS).8
4 For more information, see CRS Report R43458, Child Welfare: An Overview of Federal Programs and Their Current
Funding.
5 Alone or in combination with one or more other factors, neglect was a circumstance associated with 63% of the
children removed from their homes and placed in foster care during FY2019; parent drug abuse was a factor reported in
34% of cases. For additional reported circumstances of removal see HHS, Administration for Children and Families
(ACF), Administration on Children Youth and Families (ACYF), Children’s Bureau, The AFCARS Report #27, p. 2,
https://www.acf.hhs.gov/sites/default/files/documents/cb/afcarsreport27.pdf.
6 Most children who exited foster care during FY2019 did so via reunification/live with other relative or adoption/legal
guardianship. See The AFCARS Report #27, p. 3. https://www.acf.hhs.gov/sites/default/files/documents/cb/
afcarsreport27.pdf.
7 Emancipation is by far the most common foster care exit outcome for youth reaching a state’s upper age limit for
foster care. A small number of youth may, however, be transferred to care of another agency (e.g., agency serving
developmentally disabled).
8 States and tribes must administer the Title IV-E foster care program consistent with federal policies, but
implementation and certain policies may vary by jurisdiction. As of September 2021, there were 53 states participating
in the Title IV-E program, including each of the 50 states, the District of Columbia, Puerto Rico, and the U.S. Virgin
Islands. In addition, 17 tribes are approved for participation (although a few of those have not implemented the
program). See Children’s Bureau, “Tribes with Approved Title IV-E Plans,” https://www.acf.hhs.gov/cb/grant-funding/
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Children in Foster Care and SSA Benefits: Frequently Asked Questions
Under the Title IV-E program, as the program is commonly called, states and participating tribes
are entitled to federal reimbursement for a part of the cost of making monthly foster care
maintenance payments on behalf of each child in care who meets federal Title IV-E foster care
eligibility criteria.9 Title IV-E defines foster care maintenance payment to include the cost of
securing and providing food, shelter, daily supervision, school supplies, and other items,
including certain transportation costs.10 Eligibility for Title IV-E foster care assistance is based on
the income associated with the household from which the child was removed along with other
factors.11 Around 40% of children in care meet those Title IV-E eligibility criteria.12 States pay the
costs for children in foster care who are not federally eligible with non-federal dollars, as well as
some dollars from federal funding streams not solely dedicated to child welfare purposes.13
States/tribes and the federal government also share Title IV-E costs for related case management
activities, training, data collection, and other costs of program administration.14
States may choose the level of foster care maintenance payment they will provide for children in
care.15 Payment rates vary widely across states, and within them, by various factors, such as the
age of the child, any special needs of a child, and the child’s placement setting.16 Children who
are not Title IV-E eligible are not statutorily required to receive foster care maintenance
payments.17 All the same, states and tribes may be unable to place children with non-kin families
tribes-approved-title-iv-e-plans.
9 All Title IV-E program costs are shared by the federal government and states (or participating tribes). This means all
Title IV-E funding – whether spent by a state out of non-federal sources or whether supported by the state with federal
dollars—must be spent only for Title IV-E eligible activities on behalf of eligible children.
10 Section 475(4)(A) of the Social Security Act (42 U.S.C. §675(4)(A)).
11 Among these factors: the child must have been removed from a household with very low income and the removal
must have been accomplished through a judicial finding that the home was “contrary to the welfare” of the child or
through a voluntary placement agreement entered into by the child’s parent/guardian and the state child welfare agency.
Further, the child must be living in a licensed foster family home or selected group settings and with caregivers who
meet certain background check requirements. Additionally, the child must be under the age of 18, or under the age of
19, 20, or 21 as elected by states that extend federal foster care. Youth in care at age 18 or older must meet certain
education or work participation requirements, unless they have a documented medical reason why they cannot do this.
See Sections 472(a) and 475(8) of the Social Security Act (42 U.S.C. §§672(a) and 675(8)). See also Appendix A.
12 According to the HHS, ACF FY2022 Justifications of Estimates for the Appropriations Committee, p. 313, nationally
during FY2020, about 39% of children in foster care on an average monthly basis received Title IV-E foster care
maintenance payments. The Child Trends survey of state child welfare agency spending, which used two different
methods to estimate costs covered by Title IV-E in state fiscal year 2018, reported average Title IV-E foster care
coverage rates of 43% (based on share of children) and 46% (based on share of care days). See Kristina Rosinsky et al.,
Child Welfare Financing SFY 2018: A Survey of Federal, State, and Local Expenditures, p.p. 20-22.
13 Kristina Rosinsky et al., Child Welfare Financing SFY 2018.
14 The portion of each eligible foster care maintenance payment reimbursed by the federal government is determined by
the state’s Federal Medical Assistance Percentage (FMAP), which may range from 50%, in states with the highest per
capita income, to a maximum of 83%, in the lowest per capita income states. Title IV-E administrative costs are
reimbursed at 50% of a state’s eligible spending, and training costs are reimbursed at 75% of the state’s eligible claims.
15 There are no reliable administrative data to determine an average foster care maintenance payment across all children
in care (i.e., those eligible and those not eligible for IV-E maintenance payments). A CRS analysis of FY2019 Title IVE foster care expenditures suggests an average Title IV-E foster care maintenance payment of $1,441 per month,
including about $801 in federal dollars and $640 in non-federal dollars. However, as the range of payments made is
known to vary widely, this average payment amount may under- or over-state payments for many IV-E eligible
children. Title IV-E expenditure claims data for FY2019 are available on the HHS Children’s Bureau website at
https://www.acf.hhs.gov/cb/report/title-iv-e-programs-expenditure-and-caseload-data.
16 See U.S. Congress, House Committee on Ways and Means, 2008 Green Book, Section 11, p. 58
https://web.archive.org/web/20091202071210/http://waysandmeans.house.gov/media/pdf/111/s11cw.pdf#page=58.
17 Under Section 472(a)(1) of the Social Security Act (42 U.S.C. §672(a)(1)), states and tribes participating in the Title
IV-E program must provide a “foster care maintenance payment” for each child in care who meets federal Title IV-E
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Children in Foster Care and SSA Benefits: Frequently Asked Questions
without the offer of some support. Some children placed with relative caregivers are offered
payment under the Temporary Assistance for Needy Families (TANF) block grant.18 TANF
payments are typically less than a Title IV-E foster care maintenance payment.19
Supplemental Security Income (SSI) and Social Security Programs
Children in foster care may be eligible for monthly cash benefits from the Social Security
Administration (SSA) due to their own qualifying disabilities or based on the retirement,
disability, or death of an insured parent. Based on the most recent data available, approximately
27,000 children in foster care (about 5.3% of all children in care, including those eligible or not
eligible for Title IV-E foster care maintenance payments) were receiving these benefits and some
research indicates a larger number may be eligible.20 For children with qualifying disabilities,
these SSA benefits are paid under the SSI program. Children of retired, disabled, or deceased
parents with qualifying work records may receive benefits under the Social Security program.
In administering these benefits, SSA generally appoints representative payees to receive and
manage the SSI/Social Security benefits of minor child beneficiaries. For children in foster care,
the representative payee may be a foster parent or relative. However, in the large majority of
cases, the representative payee is the state or county child welfare agency that administers the
Title IV-E foster care program. As the representative payee, the child welfare agency (typically
referred to as the “foster care agency” by SSA) is required to manage the child’s benefits and to
use the benefits for the child’s current maintenance needs, such as food, clothing, shelter, medical
care, and personal comfort items (see “Representative Payees”).
States typically use the SSI/Social Security benefits of child beneficiaries in foster care to pay for
daily living needs of those children, primarily food, clothing, and shelter. These items are
commonly provided on behalf of all children in care as part of a foster care maintenance
payment.21 Additionally, state child welfare agencies may use SSI/Social Security benefits to
meet education or medical-related costs of beneficiary children in care. (Such costs may not
generally be supported with Title IV-E dollars.) Like any representative payee, state child welfare
agencies are expected to conserve for the beneficiary in foster care any SSI/Social Security
eligibility criteria. Federal child welfare policy does not include any comparable language for children in care who do
not meet federal Title IV-E eligibility criteria.
18 Twelve states reported using federal TANF funds in FY2019 to assist relatives caring for children in foster care
(Arizona, California, Florida, Georgia, Kentucky, Maryland, Michigan, New Hampshire, New Jersey, North Dakota,
Oklahoma, and South Carolina). In addition, seven of those same states (Arizona, Georgia, Kentucky, Michigan, New
Hampshire, North Dakota, Oklahoma) plus seven additional states (Idaho, Kansas, New York, Oregon, South Dakota,
Texas, West Virginia) used federal TANF funds to provide foster care maintenance payments for non-Title IV-E
eligible children as “authorized under prior law authority.” See FY2019 Federal TANF and State MOE Financial Data,
Table C-1, p. 16. https://www.acf.hhs.gov/sites/default/files/documents/ofa/tanf_financial_data_fy_2019_91020.pdf.
19 The average TANF child-only payment (payment for a single child living with a relative caregiver not receiving their
own TANF assistance) was $261 per month in FY2019. However, that amount varied by state ranging from a high of
$624 per month in New Hampshire to a low of $81 per month in Arkansas. See Urban Institute, Welfare Rules
Database, Policy Tables, Table II.A.5, https://wrd.urban.org/wrd/tables.cfm.
20 Based on CRS analysis of FY2019 AFCARS data; (for more information see Appendix B). See also HHS, ACF,
National Survey of Child and Adolescent Well-Being, Estimates of Supplemental Security Income Eligibility for
Children in Out of Home Placements, Research Brief No. 12.
21 U.S. Government Accountability Office (GAO), Social Security Administration: New Data Exchanges for Some
States Provide Limited Information on Foster Care Beneficiaries, June 2021, p. 12, https://www.gao.gov/products/gao21-441r. This recent GAO finding is consistent with a 2011 survey carried out by the American Public Health Services
Association (APHSA), Study on Title II and Title XVI Benefits for Children in Out-of-Home Placements, 2012.
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Children in Foster Care and SSA Benefits: Frequently Asked Questions
benefits that are not needed to meet the current needs of the child in foster care.22 A 2020
Government Accountability Office (GAO) survey found that 37 of 50 responding states reported
conserving some benefits for children in foster care.23
SSI Payments for Children24
SSI is a federal means-tested program that provides monthly cash payments to seniors aged 65 or
older, blind or disabled adults, and blind or disabled children under the age of 18.25 The program
is intended to provide eligible individuals with a guaranteed minimum income to meet their basic
needs, such as food and shelter. SSI is commonly known as a program of “last resort” because
individuals must first apply for certain other benefits for which they may be eligible. Cash
assistance is provided only to those whose income and resources (i.e., assets) from all applicable
sources are within prescribed limits. The program provides a flat benefit, which is reduced by any
countable income on a dollar-for-dollar basis. In 2021, the SSI federal benefit rate is $794 per
month for individuals, including minor children.26 Some states supplement federal SSI payments
with state supplementary payments, which are made solely with state funds.27 In most states, SSI
recipients are automatically eligible for Medicaid.28
To qualify for SSI, individuals must be aged, blind, or disabled and meet the program’s income
and resource tests. Minor children are considered disabled if they have a medically determinable
physical or mental impairments that result in marked and severe functional limitations and are
expected to last for at least one year or to result in death.29 Minor children typically qualify as
disabled if they have severe impairments that limit their ability to engage in age-appropriate
childhood activities at home, in childcare, at school, or in the community. If minor children are
working, then their earnings must also be within the substantial gainful activity limit to be
considered disabled.30 The SSI program uses a different definition of disability for individuals
22 20 C.F.R. §§404.2045 and 416.645. See also SSA, POMS, “GN00502.114 Payee Responsibilities and Duties”
https://secure.ssa.gov/poms.nsf/lnx/0200502114 and “GN 00603.001 Conservation of Benefits - Basic Policy,” April
25, 2016, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200603001.
23 GAO, Social Security Administration: New Data Exchanges for Some States Provide Limited Information on Foster
Care Beneficiaries, GAO-21-441-R, p. 12.
24 CRS Report R44948, Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI):
Eligibility, Benefits, and Financing, provides a detailed discussion of SSI eligibility and benefits.
25 Means testing refers to the consideration of one or more financial circumstances in determining program eligibility or
the amount or type of benefit or service provided by the program. SSI considers both income and resource (i.e., assets)
in determining program eligibility. It also considers income in determining the payment amount.
26 Social Security Administration (SSA), Office of the Chief Actuary (OCACT), “SSI Federal Payment Amounts,”
https://www.ssa.gov/oact/cola/SSIamts.html. The federal benefit rate for a couple where both members are SSI eligible
is $1,191 per month in 2021.
27 Not all states with supplementation programs provide state supplementary payments (SSPs) to child SSI recipients.
For more information, see SSA, “Supplemental Security Income (SSI) for Children,” https://www.ssa.gov/ssi/textchild-ussi.htm.
28 See CRS Report R46111, Medicaid Eligibility: Older Adults and Individuals with Disabilities.
29 Individuals of any age (including minor children) are considered blind if they have 20/200 or less vision in the better
eye with the use of a correcting lens or tunnel vision of 20 degrees or less.
30 In 2021, the substantial gainful activity (SGA) limit is $1,310 per month. See SSA, OCACT, “Substantial Gainful
Activity,” https://www.ssa.gov/oact/cola/sga.html. Due to certain work incentives, the SGA limit under the SSI
program effectively applies only at the time of application for individuals with disabilities other than blindness.
Statutorily blind individuals are not subject to the SGA limit under the SSI program.
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aged 18 or older.31 Child SSI recipients who attain age 18 may continue to qualify for SSI if they
meet the adult definition of disability (and all other eligibility criteria).32
SSI’s countable income limit is set at the same level as the federal benefit rate, which in 2021 is
$794 per month for an individual. SSI counts most types of income, such as Social Security
benefits and Title IV-E foster care maintenance payments (including both the federal and state
shares of that payment). Certain income is excluded in determining SSI eligibility and the
payment amount, such as the first $20 per month of any income (earned or unearned), as well as
the first $65 per month of earned income plus one-half of any earned income above $65 per
month.33 The countable resource limit is $2,000 for an individual.34 Certain resources are
excluded in determining SSI eligibility, such as the individual’s primary residence, household
goods and personal effects, one vehicle, property essential to self-support, and the first $100,000
in an Achieving a Better Life Experience (ABLE) account.35
SSA typically counts both a minor child’s income and resources, and a portion of the income and
resources of any parents who live in the same household as the child, under a process known as
deeming.36 However, if the minor child does not live with any parents, then SSA counts only the
income and resources of the child. (The income and resources of non-parent household members
are not counted under the program.) If SSA appoints a representative payee to receive and
manage SSI payments on a recipient’s behalf—which is the case with nearly all child SSI
recipients under the age of 18—then the recipient’s current maintenance must be prioritized and
any leftover funds must be conserved (see “Representative Payees”).
In June 2021, SSI provided federally-administered payments to nearly 1.1 million children under
the age of 18, which was about 14% of the total SSI recipient population.37 The average federally
administered payment for child SSI recipients that month was $685. Approximately 6% of child
SSI recipients also received Social Security benefits. In December 2020, about three-fourths of
child SSI recipients were eligible for payments due to a mental impairment, such as an
intellectual or developmental disability.38
31 Under the SSI program, individuals aged 18 or older are considered disabled if they are unable to engage in any SGA
due to any medically determinable physical or mental impairment that is expected to last for at least one year or to
result in death. The SSI definition of disability for adults is the same as the one used by Social Security.
32 SSA, What You Need to Know About Your Supplemental Security Income (SSI) When You Turn 18,
https://www.ssa.gov/pubs/EN-05-11005.pdf.
33 SSI’s general and earned income exclusions are not indexed to inflation and have remained at their current levels on
an annualized basis since the program was enacted in 1972. Earned income includes wages, self-employment income,
and other compensation related to work. Unearned income refers to all other income, such as Social Security benefits,
veterans’ benefits, interest income, and cash from friends or relatives. SSI also counts in-kind support and
maintenance, which is unearned income in the form of food or shelter that an individual receives from someone else.
34
The SSI resource limit for a couple is $3,000. SSI’s resource limits are not indexed to inflation and have remained at
their current levels since 1989.
35 SSA, “Understanding Supplemental Security Income: SSI Resources,” https://www.ssa.gov/ssi/text-resourcesussi.htm.
36 SSA, “Supplemental Security Income (SSI) for Children,” https://www.ssa.gov/ssi/text-child-ussi.htm.
37 SSA, “SSI Monthly Statistics, June 2021,” https://www.ssa.gov/policy/docs/statcomps/ssi_monthly/index.html.
States may administer their supplementation programs themselves, or they may contract with SSA to administer the
supplementation programs on their behalf. The recipient and payment data reported in the agency’s monthly statistics
include individuals who receive only a federally-administered SSP.
38 SSA, SSI Annual Statistical Report, 2020, October 2021, Table 20, https://www.ssa.gov/policy/docs/statcomps/
ssi_asr/.
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Children in Foster Care and SSA Benefits: Frequently Asked Questions
Social Security Benefits for Children39
Social Security is a federal social insurance program that provides insured workers and their
families with a measure of protection against the loss of earnings due to the worker’s retirement,
disability, or death. Workers obtain insurance protection by working for a certain number of years
in jobs covered by Social Security (i.e., jobs in which the worker’s earnings were subject to the
Social Security payroll tax). Monthly cash benefits are provided to retired or disabled workers
and their eligible family members and to the eligible surviving family members of deceased
workers.40 Minor children of retired, disabled, or deceased workers are eligible for benefits if they
are unmarried and under the age of 18. Social Security also provides benefits to certain student
children aged 18-19 and to disabled adult children aged 18 or older.41 Child beneficiaries who
attain age 18 may continue to qualify for Social Security on their parent’s record if they meet the
eligibility criteria for students’ benefits (but only up to age 19) or disabled adult child’s benefits,
which has no upper age limit.42
The amount of a worker’s basic monthly benefit, known as the primary insurance amount, is
based on the worker’s career-average earnings in Social Security covered employment or selfemployment. Children of retired or disabled workers are eligible to receive up to 50% of the
worker’s basic benefit, while children of deceased workers are eligible to receive up to 75% of
the worker’s basic benefit. Benefits for children may be reduced if the total amount of benefits
payable to family members on a worker’s record exceeds an upper limit, known as the family
maximum.43 As with SSI payments, if SSA certifies Social Security benefits to a representative
payee to manage on a beneficiary’s behalf—which is the case with nearly all child beneficiaries
under the age of 18—then the beneficiary’s current maintenance must be prioritized and any
leftover funds must be conserved (see “Representative Payees”).
In June 2021, Social Security provided benefits to more than 2.7 million child beneficiaries under
the age of 18, which was 4.2% of the total Social Security beneficiary population.44 The average
benefit for minor child Social Security beneficiaries that month was $656.45 Children of deceased
workers made up 45% of minor child Social Security beneficiaries, while children of disabled
workers made up 43% and children of retired workers made up 12%.
39 CRS Report R42035, Social Security Primer provides a detailed discussion of Social Security eligibility and benefits.
40 The term retired or disabled workers refers to individuals who are entitled to Social Security retired- or disabled-
worker benefits. The term deceased workers refers to deceased individuals who received Social Security retired- or
disabled-worker benefits at the time of their deaths, as well as non-beneficiary workers who were insured for Social
Security at the time of their deaths.
41 Student children are eligible for Social Security benefits if they are unmarried, aged 18-19, and enrolled full-time in
elementary or secondary school (grade 12 or below). Disabled adult children are eligible for Social Security benefits if
they are unmarried, aged 18 or older, and have qualifying disabilities that began before age 22. Under the Social
Security program, individuals are considered disabled if they are unable to engage in any SGA due to any medically
determinable physical or mental impairment that has lasted or is expected to last for at least one year or to result in
death. The Social Security definition of disability for adults is the same as the one used by the SSI program.
42 SSA, Benefits for Children, https://www.ssa.gov/pubs/EN-05-10085.pdf.
43 For more information on the Social Security family maximum, see Kathleen Romig and Dave Shoffner,
“Understanding the Social Security Family Maximum,” Social Security Bulletin, vol. 75, no. 3 (August 2015),
https://www.ssa.gov/policy/docs/ssb/v75n3/v75n3p1.html.
44 SSA, OCACT, “Benefits Paid By Type Of Beneficiary,” https://www.ssa.gov/oact/ProgData/icp.html. In June 2021,
Social Security also provided benefits to about 98,100 student child beneficiaries and more than 1.1 million disabled
adult child beneficiaries.
45 Ibid. The average benefit in June 2021 was $858 for student child beneficiaries and $849 for disabled adult child
beneficiaries.
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Children in Foster Care and SSA Benefits: Frequently Asked Questions
Frequently Asked Questions
Characteristics of Children in Foster Care by Receipt of SSI/Social
Security Benefits
During FY2019, states reported that about 27,000 children who had been in foster care for at least
six months were receiving support from SSI, Social Security, or certain other programs.46 This
number represents about 5.3% of the roughly 505,500 children who at some point during FY2019
had been in foster care for at least six months. Throughout this report, these children are
described as receiving SSI/Social Security benefits.47 This section describes characteristics of
children in foster care who did not receive an SSI/Social Security benefit alongside two groups of
children in foster care receiving SSI/Social Security benefits, i.e., those with, and those without, a
clinically diagnosed disability.48 (For data by state for these groups, see Appendix B.)
What is the disability status of children receiving SSI/Social Security benefits?
Among children in foster care for at least six months, those receiving SSI/Social Security benefits
were more likely to have clinical diagnoses of a disability (48%) than those who were not
receiving such benefits (24%). Because children who receive SSI benefits must have qualifying
disabilities as a condition of eligibility for that benefit, the population of children in foster care
who are reported as receiving SSI/Social Security benefits and who also have clinical diagnoses
of disability (about 13,000) are assumed the most likely to be receiving SSI.49
46 Based on CRS analysis of FY2019 AFCARS data (dataset #239, FC2019v1). Data from this analysis is used
throughout this report. The analysis looked at the number of all children who were in foster care at some point during
FY2019 and who had been in care for at least six months. Among these 505,499 children, a total of 26,957 were
recorded as receiving assistance under SSI or from any other program authorized under the Social Security Act, not
otherwise specifically reported on in AFCARS. For purposes of this report, these children are assumed to primarily be
children receiving SSI and/or Social Security benefits. (For more information on these data see Appendix B.)
47 For the purpose of submitting AFCARS data (through FY2022), states are instructed to report separately on the
number of children receiving assistance under various titles or parts of the Social Security Act, including those
authorizing foster care and adoption assistance (Title IV-E), TANF assistance (Title IV-A), child support (Title IV-D),
and Medicaid (Title XIX). Finally, states are to report on children receiving assistance via SSI or from any other
program authorized under the Social Security Act, not otherwise specifically reported on in AFCARS. For this report
and analysis, children reported in this last group are presumed to be children receiving SSI (Title XVI) and/or Social
Security (Title II) benefits. However, in certain generally limited circumstances, funds provided under the Stephanie
Tubbs Jones Child Welfare Services (CWS) program (Title IV-B, Subpart 1) or via the Social Services Block Grant,
SSBG (Title XX, Subtitle A) may be used to support children in foster care. Accordingly, while this report assumes
roughly 27,000 children who were in care for at least six months received an SSI/Social Security benefit during
FY2019, it is possible that some of those children were instead receiving only CWS or SSBG benefits.
48 In the subsequent Figures 1 through 4, characteristics of children in foster care are shown in three mutually
exclusively groups. The largest group includes those children in foster care who Did not receive SSI/Social Security
benefit (n=478,380). Characteristics of children in foster care who received SSI/Social Security benefits are shown for
two groups: those who Received SSI/Social Security benefits with reported disability, (n =12,958) and those who
Received SSI Social Security without reported disability (n=13,999).
49 A child does not need to be disabled to receive Social Security benefits. However, some children who receive Social
Security benefits may also have clinically diagnosed disabilities, and some children may receive both SSI and Social
Security benefits. For example, Figure 6 shows that about 7% of minor child beneficiaries in foster care who have
child welfare agencies as their representative payees receive both SSI and Social Security benefits.
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Children in Foster Care and SSA Benefits: Frequently Asked Questions
What types of disabilities are diagnosed?
Compared to children in foster care who were not receiving SSI/Social Security benefits, those
who were receiving such benefits were more likely to have been clinically diagnosed as
“emotionally disturbed” (34.2% with SSI/Social Security benefits versus 15.8% without).50 Those
receiving SSI/Social Security benefits were also more likely to have been clinically diagnosed as
having an intellectual disability (10.1% vs. 2.7%), a hearing or visual impairment (5.2% vs.
2.7%), a physical disability (3.9% vs. 0.9%), or another medical condition requiring special care
(27.1% vs. 14.0%).51
What are the demographic characteristics of children by receipt of SSI/Social
Security benefits?
Children in foster care receiving SSI/Social Security benefits were, on average, older than those
children in care who were not receiving such benefits. Figure 1 shows that the share of children
in foster care for at least six months who were receiving SSI/Social Security benefits, with or
without reported disabilities, generally increased with age. By clear contrast, among the larger
group of children in care who were not receiving SSI/Social Security benefits, the share of
children decreased with age across most years.
Figure 1. Age of Children in Foster Care by Receipt of SSI/Social Security Benefit
and Reported Disability
Source: Figure prepared by CRS based on analysis of FY2019 AFCARS data from the 50 states and the District
of Columbia. See Appendix B for more information on data used in this analysis.
Notes: Children included in this analysis had spent at least six months in care, including at least one day during
FY2019. Infants (age 0) are under-represented because this analysis included only children in care for at least 6
months and this necessarily excludes children who are not yet six months. Not all 18-, 19- or 20-year-olds are
eligible to remain in foster care and states are not required to report data to AFCARS concerning all youth in
care at those ages; (see HHS, Children’s Bureau, Child Welfare Policy Manual, Section 1.3, Question 2.).
50 Per AFCARS reporting guidance this diagnosis must be based on the Diagnostic and Statistical Manual of Mental
Disorders (DSM) published by the American Psychiatric Association. The current version of that manual is DSM-V.
51 There were 12,958 children reported, via AFCARS, as both receiving SSI/Social Security benefits and having
clinically diagnosed disabilities. See description of data element #18, which incorporates each of the diagnoses
described in data elements #19 through #22, in AFCARS Foster Care Annual File Code Book, revised July 28, 2021,
pp. 29-34. https://www.ndacan.acf.hhs.gov/datasets/pdfs_user_guides/afcars-foster-care-file-codebook.pdf.
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As shown in Figure 2, children in foster care who were receiving SSI/Social Security benefits
were more often non-Hispanic White, and less often Hispanic (of any race). This was generally
true without regard to whether the child receiving an SSI/Social Security benefit did or did not
have a reported disability.
Figure 2. Race/Ethnicity of Children in Foster Care by Receipt of SSI/Social Security
Benefit and Reported Disability
Source: Figure prepared by CRS based on analysis of FY2019 AFCARS data from the 50 states and the District
of Columbia. See also Appendix B for more information on data used in this analysis.
Notes: Children included in this analysis had spent at least six months in care, including at least one day during
FY2019. Among Asian children included in this analysis, but not shown in the figure, the percentage with no
SSI/Social Security benefit was 0.5%, with SSI/Social Security benefit and a reported disability 0.4%, and with
SSI/Social Security benefit but no reported disability 0.3%. Among Native Hawaiian/Other Pacific Islander
children the comparable percentages were 0.2%, 0.1%, and 0.1%, respectively. Percentages in each group sum to
less than 100% because the share of children for whom race/ethnicity was not reported, or was reported as
unknown, are not shown.
What selected circumstances were associated with a child’s removal from the
home and entry to foster care?
Children receiving SSI/Social Security benefits were more likely to have “child behavior
problems”52 and “child disability” listed as circumstances of their removal from home (16.4% and
5.0%, respectively) than were those who were not receiving this benefit (7.0% and 1.8%,
respectively). Although still relatively rare, those receiving SSI/Social Security benefits were also
more likely to have a parent’s death given as a circumstance of removal (2.3%) compared to
those not receiving such a benefit (0.8%).53
52 For purposes of this reporting, a “child behavior problem” refers to behavior in the school and/or the community that
“adversely affects socialization, learning, growth, and moral development.” The category includes children who run
away from home and can include children who have, or have not, been a part of juvenile justice court proceedings. See
NDACAN, AFCARS Foster Care Annual File Codebook, revised July 28, 2021, p. 55,
https://www.ndacan.acf.hhs.gov/datasets/pdfs_user_guides/afcars-foster-care-file-codebook.pdf.
53 Ibid, pp. 47-61. States may report on 15 different conditions or circumstances associated with a child’s removal from
home and placement in foster care and each child may be associated with more than one circumstance. For this
analysis, only the removal circumstances referenced in the text were studied.
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Do children in foster care receiving SSI/Social Security benefits also receive
Title IV-E foster care maintenance payments?
Children in foster care who were receiving SSI/Social Security benefits were less likely to be
receiving Title IV-E foster care maintenance payments (20.1%), compared to those in care who
were not receiving SSI/Social Security benefits (42.1%). In some circumstances, this might be
due to interaction of the benefit receipt with the Title IV-E income test. However, for children
receiving SSI benefits and for children who did not receive Social Security benefits in the month
they entered foster care, these benefits do not affect a child’s income eligibility for Title IV-E
foster care.54 (For related information see, “Which factors are considered when determining
whether children in foster care should apply for SSI/Social Security benefits?”)
What are the case plan goals of children in foster care by receipt of SSI/Social
Security benefits?
Foster care is intended to be a temporary living arrangement and for each child in foster care, the
state must develop a written case plan, including a case plan goal for the child.55 Most case plan
goals include re-establishing “permanency” for a child through reuniting the child with parents or
other family (reunification/live with other relative) or by finding a new permanent family for the
child through adoption or legal guardianship, with a relative or non-relative. States may also
report case plan goals of long-term foster care or emancipation, in which case the child is
expected to age out of care without the state returning the child to family or placing the child in a
new family.56 Finally, they may report that no case plan goal is yet established.
Reunification is the most common case plan goal for children in foster care. This was generally
true for children in care whether they did, or did not, receive SSI/Social Security benefits.
However, among children receiving those benefits the presence of a clinically diagnosed
disability made reunification less likely as a case plan goal. This was especially the case for those
children age 13 or younger who received SSI/Social Security benefits and had clinically
diagnosed disabilities. Among this group a case plan goal of adoption was more common than
reunification.
Assignment of a case plan goal of emancipation or long-term foster care varies little by receipt of
SSI/Social Security benefits. Assignment of one of those case plan goals appears somewhat more
54 Title IV-E foster care income eligibility is determined based on application of income eligibility rules for Aid to
Families with Dependent Children (AFDC) program. AFDC was repealed in 1996 (P.L. 104-193), but that same
legislation maintained the AFDC eligibility rules, as they existed on July 16, 1996, for purposes of determining Title
IV-E foster care income eligibility. Under those rules, SSI must be disregarded when determining income, but Social
Security benefits are counted (see 45 C.F.R. §233.20.1 and HHS, ACF, Child Welfare Policy Manual, Section 8.4A,
Question 18, https://acf.hhs.gov/cwpm/public_html/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=8).
However, as of April 6, 2010, federal policy has stated that this income test is applicable only in the month the child is
removed from the home. There is no required re-determination of eligibility for as the long as the child remains in
foster care. HHS, ACF, Child Welfare Policy Manual, Section 8.4A, Question 24, https://acf.hhs.gov/cwpm/
public_html/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=8.
55 The plan must be written no later than 60 days after a child’s removal from the home (i.e., entry to foster care) (45
C.F.R. §1356.21(g)). The first review of a child’s “status” in foster care, including re-assessment of appropriateness of
plan and plan activities, is to be held within six months of that date and the first hearing to review the child’s
“permanency plan” within 12 months of that date (sections 475(1) and 475(5)(B)-(C) of the Social Security Act; 42
U.S.C. §675(1) and (5)(B)-(C)).
56 About 18% of youth in care at age 14 or older have emancipation as a goal as compared to 2% with a long-term
foster care goal. In AFCARS guidance, one key difference between emancipation and long-term foster care is that a
child with an emancipation case plan goal is expected to have some established permanent connection with an adult.
See NDACAN, AFCARS Foster Care Annual File Codebook, revised July 28, 2021, p. 66.
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common for younger children who were receiving SSI/Social Security benefits than those who
were not. However, the number and percentage of younger children with an emancipation or
long-term foster care goal was quite limited and any difference between the groups disappears
when the comparison is done among children in care at age 14 or older. Among these older
children, however, those who were receiving SSI/Social Security benefits and who did not have
reported disabilities were least likely to have a case plan goal of emancipation or long-term foster
care. Finally, children who were receiving SSI/Social Security benefits and who did not have
reported disabilities were the most likely to be reported as without established case plan goals,
regardless of the age group. Again, however, the number and percentage of children in this group
were small. See Figure 3.
Figure 3. Case Plan Goals for Children in Foster Care by Receipt of SSI/Social
Security Benefit and Reported Disability
Source: Figure prepared by CRS based on analysis of FY2019 AFCARS data from the 50 states and the District
of Columbia. See also Appendix B for more information on data used in this analysis.
Notes: Children included in this analysis had spent at least six months in care, including at least one day during
FY2019. Percentages for each group may not sum to 100% because share of children with case plan goal not yet
established are not shown.
What are the reasons children exit foster care by receipt of SSI/Social Security
benefits?
Children are said to have exited foster care when courts formally discharge them from care and
placement responsibility of the state. Most children leave foster care by reuniting with family or
by placement with a new family (via adoption or guardianship). Some children who do not
achieve permanency are discharged from care to emancipation. This may occur when youth reach
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the age where they are no longer considered children for purposes of the state foster care
program. Such youth are said to “age out” of care and this typically occurs at age 18, or in some
states at age 21.
Children in foster care who were receiving SSI/Social Security benefits and who had reported
disabilities were less likely to leave care to be reunited with family. This was true whether exiting
care at an older or younger age. Among children exiting care at age 13 or younger, they were
most likely to leave care for adoption or guardianship.
Among children leaving care at age 14 or older, those receiving SSI/Social Security benefits and
who had clinically diagnosed disabilities were the most likely to leave care for emancipation
while they were about equally as likely as other children to be leaving care for adoption or
guardianship. See Figure 4.
Figure 4. Reason for Exit from Foster Care by SSI/Social Security Benefit Receipt
and Reported Disability
Source: Figure prepared by CRS based on analysis of FY2019 AFCARS data from the 50 states and the District
of Columbia. See also Appendix B for more information on data used in this analysis.
Notes: Children included in this analysis had spent at least six months in care prior to leaving it during FY2019.
In this figure, “Other” includes children whose reason for exiting care was reported as transfer to another agency,
runaway, or death of child. Percentages for each group may not sum to 100% due to rounding.
Representative Payees
Minor children (i.e., children under the age of 18) who receive SSI/Social Security benefits are
typically assigned representative payees to receive and manage the benefits on their behalf. For
more than 8 out of every 10 minor children who are in foster care and receive SSI/Social Security
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Children in Foster Care and SSA Benefits: Frequently Asked Questions
benefits, state child welfare agencies serve as their representative payees.57 A state child welfare
agency typically uses SSI/Social Security benefits to pay for a child’s food, clothing, and shelter.
It may also conserve these funds for the child’s later use.
When is a representative payee appointed?
The Social Security Act gives the Commissioner of Social Security the authority to issue benefits
to a representative payee if the Commissioner determines that it is clearly in the best interest of
the beneficiary to do so.58 With limited exceptions, SSA requires a child under the age of 18 to
have a representative payee.59 An adult aged 18 or older may be assigned a payee if SSA
determines that the individual is incapable of managing or directing the management of benefits,
or if a court finds the individual to be legally incompetent.60 Payees can be individuals (e.g.,
parents, relatives, friends, unrelated guardians, foster parents) or organizations (e.g., state or local
governments, nonprofit agencies, social services agencies, financial organizations). State child
welfare agencies—often referred to as “foster care agencies” by SSA—are typically classified as
“social services agencies” or “social agencies” in SSA’s payee reporting system.61
What are the duties of a representative payee?
A representative payee’s job is to use SSI/Social Security benefits received on behalf of a
beneficiary for the sole use and benefit of the beneficiary.62 Decisions about how to spend such
benefits are required to be made in the beneficiary’s best interest, according to the payee’s best
judgement. A payee’s first priority is to use the benefits for the beneficiary’s current
maintenance, which refers to immediate or reasonably foreseeable needs for food, shelter,
clothing, utilities, medical care, and personal comfort items.63 Benefits not needed for current
maintenance must be conserved or invested for the beneficiary, generally in a checking or savings
account insured under federal or state law.64 A payee serving a minor child SSI recipient must
57 GAO, Social Security Administration: New Data Exchanges for Some States Provide Limited Information on Foster
Care Beneficiaries, GAO-21-441-R, Figure 4, p. 9. Under the Title IV-E foster care program rules, certain youth may
be considered children until their 21st birthday. The term minor children (or minor child) refers only to individuals who
are under the age of 18.
58 42 U.S.C. §§405(j)(1)(A) and 1383(a)(2)(A)(ii)(I).
59 In general, SSA requires children under the age of 18 to have representative payees unless they have been
emancipated under state law. However, children aged 15-17 who are not legally emancipated may be paid directly if
they demonstrate the ability to manage their benefits and meet certain other conditions. See 20 C.F.R. §§404.2010(b)
and 416.610(b), as well as SSA, Program Operations Manual System (POMS), “GN 00502.070 Determining Capability
– Children,” October 23, 2020, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502070.
60 20 C.F.R. §§404.2010(a) and 416.610(a). See also SSA, POMS, “GN 00502.001 Capability Determination and
Representative Payee Payment Overview,” January 26, 2017, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502001.
61 Ibid. See also SSA, POMS, “EM-18012 REV 7: Clarifying State Overpayment Liability for Minors in Foster Care,”
October 26, 2021, https://secure.ssa.gov/apps10/reference.nsf/links/10262021123211PM.
62 20 C.F.R. §§404.2040 and 416.640, as well as SSA, POMS, “GN 00602.001 Use of Benefits,” April 25, 2016,
https://secure.ssa.gov/apps10/poms.nsf/lnx/0200602001.
63 Ibid. See also SSA, “Frequently Asked Questions (FAQs) for Representative Payees: What Is the Proper Use of
Benefits?.” https://www.ssa.gov/payee/faqrep.htm?; SSA, “Guide for Organizational Representative Payees: Proper
Use of Benefits,” https://www.ssa.gov/payee/NewGuide/toc.htm#Proper_Use_Benefits; and SSA, “Training
Organizational Representative Payees: UNIT 6—USE OF BENEFITS,” https://www.ssa.gov/payee/LessonPlan-20052.htm#UNIT6.
64 20 C.F.R. §§404.2045 and 416.645, as well as SSA, POMS, “GN 00603.001 Conservation of Benefits - Basic
Policy,” April 25, 2016, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200603001.
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deposit certain large past-due benefits in a special dedicated account.65 Funds in dedicated
accounts may be used only for certain expenses (e.g., medical treatment, education, job skills
training, certain expenses related to the child’s impairment), and the balance of the account is
excluded from SSI’s resource test.66
A representative payee is required to notify SSA of (1) any change that could affect the
beneficiary’s eligibility or benefit amount and (2) any change in circumstances that would affect
the payee’s performance (e.g., a change in custody or legal responsibility). A payee must also
maintain detailed and accurate records of how the beneficiary’s benefits are being used or
conserved and must provide these records to SSA upon request. The Social Security Act requires
SSA to review written accounting reports from certain payees at least once a year,67 and to
conduct periodic onsite reviews of certain payees (generally every three to four years).68
Which factors are considered for assigning representative payees to minor
child beneficiaries in foster care?
SSA personnel are responsible for identifying, reviewing, and selecting representative payees.
The agency’s regulations and guidance specify lists of preferred payees in the preferred order of
selection based on the type of beneficiary. Under the order of preference list for minor child
SSI/Social Security beneficiaries, parents with custody and legal guardians are ranked first, while
social services agencies—which include state child welfare agencies—are ranked seventh (see
Table C-1 in Appendix C).69
When a child enters foster care, the state child welfare agency is granted responsibility for the
care and placement of the child, typically by a court. Legal responsibility for the child’s care and
placement allows the agency to determine, for example, where the child lives. However, initially
at least, the child’s parents may retain certain decisionmaking rights for the child (e.g.,
educational or medical decisionmaking). In circumstances where returning home is no longer
considered the permanency plan for a child in foster care, the child welfare agency may be named
by the court as the child’s legal guardian (or an equivalent term used by a state). This might be
the case when, for example, all parental rights to a child have been terminated.
If the state child welfare agency is not the child’s legal guardian, then SSA personnel must use the
order of preference list to review higher-ranked candidates before considering the child welfare
agency. On the other hand, if the child welfare agency has been named by a court as the child’s
65 42 U.S.C. §1383(a)(2)(F). See also 20 C.F.R. §416.546 and SSA, POMS, “GN 00603.025 Dedicated Accounts for
Disabled/Blind SSI Recipients Under Age 18,” April 25, 2016, https://secure.ssa.gov/apps10/poms.nsf/lnx/
0200603025; and SSA, “Spotlight on Dedicated Accounts for Children,” https://www.ssa.gov/ssi/spotlights/spotdedicated-accounts.htm.
66 SSA, POMS, “GN 00602.140 Permitted Expenditures from Dedicated Accounts,” October 22, 2020,
https://secure.ssa.gov/apps10/poms.nsf/lnx/0200602140. See also 42 U.S.C. §1382b(a)(12), 20 C.F.R. §416.1247, and
SSA, POMS, “SI 01130.601 Dedicated Accounts for Past-Due Benefits Due to Individuals Under 18 Who Have a
Representative Payee,” December 13, 2013, https://secure.ssa.gov/poms.nsf/lnx/0501130601. The interest or other
earnings on dedicated account balances are also excluded from counting as income under SSI.
67 42 U.S.C. §§405(j)(3) and 1383(a)(2)(C). See also SSA, POMS, “GN 00605.001 Overview of Annual Representative
Payee Accounting,” March 13, 2019, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200605001.
68 42 U.S.C. §§405(j)(6) and 1383(a)(2)(G)(i).
69 20 C.F.R. §§404.2021 and 416.621, as well as also SSA, POMS, “GN 00502.105 Preferred Representative Payee
Order of Selection Charts,” June 21, 2017, https://secure.ssa.gov/poms.nsf/lnx/0200502105#a. Beneficiaries who are
capable adults or emancipated minors may designate in advance one or more individuals to potentially serve as payee.
SSA personnel will consider a beneficiary’s advance designee(s) before those on the applicable order of preference list.
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legal guardian, then its order of preference is much higher. In either case, SSA is not required to
select the child welfare agency to be the child’s representative payee.70 SSA’s policy guidance on
payees and child welfare agencies notes, “In the absence of a parent, be sure to consider whether
other concerned relatives are a better payee candidate.”71 If any higher-ranked candidates are not
interested in applying to be the child’s payee, then SSA’s policy guidance instructs personnel to
document the reasons for their lack of interest.
In evaluating the state child welfare agency, SSA personnel examine and document (1) the nature
and extent of the agency’s responsibility and care and (2) whether the agency has temporary or
permanent custody. SSA personnel must also ascertain from the child welfare agency whether the
child beneficiary has a living parent or any concerned relatives. SSA’s policy guidance specifies
that when a child welfare agency is awarded custody of a child, the agency retains custody
regardless of whether the child is placed in a foster home or group living household.72 It also
notes that the child welfare agency is generally the preferred payee over the foster parent.
SSA’s policy guidance reminds personnel that it may be appropriate to appoint the parent as the
representative payee, even when the state child welfare agency has custody of the child (e.g., the
child is placed voluntarily under the care of the child welfare agency by the parent).73 The
guidance advises that a parent should not be ruled out as a payee solely because the child
beneficiary has been placed in care, and that personnel must consider the continued interest of the
parent in the child and the probability that the child will return to the parent’s custody.
How many minor children receiving SSI/Social Security benefits have child
welfare agencies as their representative payees?
Over 99% of all SSI/Social Security beneficiaries under the age of 18 are assigned representative
payees.74 Focusing on minor child beneficiaries in foster care, recent data published by GAO
indicate that 81% had state child welfare agencies as their representative payees as of November
30, 2020 (Figure 5).75
70 SSA, POMS, “GN 00502.159 Additional Considerations When Foster Care Agency is Involved,” June 4, 2020,
https://secure.ssa.gov/POMS.NSF/lnx/0200502159. SSA personnel are not required to appoint the state child welfare
agency as the child’s representative payee when the agency is the child’s legal guardian. A parent whose parental rights
have been terminated or who is barred from contact with the child cannot be considered higher in preference than the
child welfare agency.
71 SSA, POMS, “GN 00502.159 Additional Considerations When Foster Care Agency is Involved,” June 4, 2020,
https://secure.ssa.gov/POMS.NSF/lnx/0200502159.
72 Ibid.
73 Ibid.
74 SSA, Annual Statistical Supplement, 2021, Tables 5.L1 and 7.E4, https://www.ssa.gov/policy/docs/statcomps/
supplement/2021/index.html. Data are for December 2020. SSA regularly publishes data on the type of representative
payee for SSI recipients and Social Security disability beneficiaries but not for other types of Social Security
beneficiaries (e.g., minor Social Security beneficiaries). For December 2020 data on the type of representative payee
for SSI recipients, see SSA, SSI Annual Statistical Report, 2020, Table 7, https://www.ssa.gov/policy/docs/statcomps/
ssi_asr/. For December 2020 data on the type of representative payee for Social Security disability beneficiaries, see
SSA, Annual Statistical Report on the Social Security Disability Insurance Program, 2020, Table 14,
https://www.ssa.gov/policy/docs/statcomps/di_asr/. See also Social Security Advisory Board, “Representative Payee
Chart Collection,” January 11, 2018, https://www.ssab.gov/Details-Page/ArticleID/1238/Representative-Payee-ChartCollection.
75 GAO, Social Security Administration: New Data Exchanges with Some States Provide Limited Information on Foster
Care Beneficiaries, GAO-21-441R, Figure 4 and Table 14. For reference, GAO’s Table 14 is reproduced as Table D-1
in Appendix D. The estimates are derived from data provided to GAO by SSA from SSA’s electronic Representative
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Figure 5. Minor Child SSI/Social Security Beneficiaries in Foster Care,
by Type of Payee, November 30, 2020
Source: CRS, based on U.S. Government Accountability Office (GAO), Social Security Administration: New Data
Exchanges with Some States Provide Limited Information on Foster Care Beneficiaries, GAO-21-441R, June 3, 2021,
Figure 4 and Table 14, https://www.gao.gov/products/gao-21-441r. See also Table D-1 in Appendix D.
Notes: As of November 30, 2020, an estimated 25,424 minor children received SSI and/or Social Security
benefits and were in foster care. These data were reported by GAO from the SSA’s electronic Representative
Payee System (eRPS). According to SSA, and as noted by GAO, eRPS asked about foster care as of June 2019,
and may undercount minor child beneficiaries in foster care.
About 52% of minor child beneficiaries in foster care with child welfare agency representative
payees received only SSI payments, while about 41% received only Social Security benefits and
about 7% were concurrently receiving SSI and Social Security benefits (see Figure 6).76
Figure 6. Minor Child SSI/Social Security Beneficiaries in Foster Care with Child
Welfare Agency Representative Payees, by Type of Benefit, November 30, 2020
Source: CRS, based on GAO, Social Security Administration: New Data Exchanges with Some States Provide Limited
Information on Foster Care Beneficiaries, GAO-21-441R, June 3, 2021, Table 14, https://www.gao.gov/products/gao21-441r. See also Table D-1 in Appendix D.
Notes: This figure represents the 20,676 minor children in foster care who as of November 30, 2020, were
receiving SSI and/or Social Security benefits and had child welfare agency representative payees. Minor children in
foster care receiving SSI and/or Social Security benefits who had representative payees other than child welfare
agencies (n=4,748) are not shown.
Does SSA notify minor child beneficiaries of its decision to appoint
representative payees?
Once SSA selects a candidate to serve as a beneficiary’s representative payee, the agency is
required to provide the beneficiary with advance written notice of the determination and the right
Payee System. GAO noted that, according to SSA, the data reflect questions about foster care that were added to the
system in June 2019 and may undercount the total number of minor child beneficiaries in foster care.
76 Distributions by type of benefit for other representative payee types (other organizational payees, foster parents,
other individuals) can be derived from Table D-1 in Appendix D, reproduced from GAO, Social Security
Administration: New Data Exchanges with Some States Provide Limited Information on Foster Care Beneficiaries,
GAO-21-441R, Table 14.
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to appeal it before making the appointment.77 However, if the beneficiary is under the age of 15
or under the age of 18 and not legally emancipated—as is the case with most children in foster
care—then the Social Security Act requires the advance notice to be issued solely to the
beneficiary’s legal guardian or legal representative.78 SSA’s guidance clarifies that if the legal
guardian or legal representative is also the proposed payee, then the advance notice is not sent to
the legal guardian or legal representative.79
When the proposed payee of a minor child beneficiary is someone other than a parent (e.g., a state
child welfare agency), SSA personnel must notify the child’s parents of the determination unless
the parents have relinquished their parental rights or had them permanently terminated by a
court.80 If a child welfare agency is both the legal guardian and proposed payee of a minor child
beneficiary in foster care and the parents of the child had their parental rights terminated, then
presumably no advance notice is issued by SSA to any party. In such cases, the child welfare
agency would most likely receive a single notice when its appointment as the child’s
representative payee becomes effective.81
How do representative payees hold and track beneficiaries’ SSI/Social Security
benefits?
A representative payee must typically have a checking or savings account to receive SSI/Social
Security benefits on behalf of a beneficiary and to conserve any benefits not needed for the
beneficiary’s current maintenance. In general, the title of the account must show that the payee
has only a fiduciary interest in the account and that the beneficiary is the account owner. A payee
who manages benefits on behalf of multiple beneficiaries may hold such benefits in separate
individual accounts or in a single depository account, known as a collective account.82 SSA must
approve the use of a collective account, and the payee is required to maintain a separate account
ledger for each beneficiary, along with separate accounting records.
In general, a payee may not commingle a beneficiary’s SSI/Social Security benefits with other
funds in the payee’s personal or operating account. However, under certain conditions, SSA
permits state or local governments to deposit beneficiary funds into a general depository account
(e.g., a state general fund) in order to route the funds to a subordinate agency’s subaccount (e.g.,
state child welfare agency).83 In addition, state or local governments may use operating accounts
77 42 U.S.C. §§405(j)(2)(E)(ii) and 1383(a)(2)(B)(xii). See also 20 C.F.R. §§404.2030 and 416.630.
78 Ibid. Likewise, if the beneficiary is legally incompetent, then the advance notice is issued solely to the beneficiary’s
legal guardian or legal representative.
79 SSA, POMS, “GN 00503.100 Advance Notice,” September 4, 2019, https://secure.ssa.gov/apps10/poms.nsf/lnx/
0200503100.
80 Ibid. If someone other than a parent is selected as the payee, then SSA typically notifies only one of the parents.
81 SSA, POMS, “GN 00503.130 Final Notice,” April 25, 2016, https://secure.ssa.gov/poms.nsf/lnx/0200503130. While
the reporting policies discussed here apply to SSA, some child welfare advocates have separately argued that the state
child welfare agency has a duty (under the due process provision of the Constitution) to inform a child in foster care
if/when the agency is appointed representative payee for that child. Lower courts have disagreed on this issue. See
“Have courts addressed alleged due process rights violations with regard to notice of use of funds for foster care?” for
more information.
82 SSA, POMS, “GN 00603.020 Collective Checking and Savings Accounts Managed by Representative Payees,” June
2, 2021, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200603020. See also SSA, “Guide for Organizational
Representative Payees: Collective Accounts,” https://www.ssa.gov/payee/NewGuide/toc.htm; and SSA, “Training
Organizational Representative Payees: UNIT 9—COLLECTIVE ACCOUNTS AND PROPER TITLING OF
ACCOUNTS,” https://www.ssa.gov/payee/LessonPlan-2005-2.htm.
83 SSA, POMS, “GN 00603.020 Collective Checking and Savings Accounts Managed by Representative Payees,” June
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established for paying certain child welfare expenses (i.e., a state child care or foster care
account) to hold the benefits of beneficiaries in foster care, provided certain requirements are
met.84
Are representative payees allowed to use beneficiaries’ SSI/Social Security
benefits to reimburse themselves for expenses incurred on the beneficiaries’
behalf?
Representative payees may reimburse themselves from beneficiaries’ SSI/Social Security benefits
for reasonable, actual out-of-pocket expenses incurred on behalf of beneficiaries.85 Out-of-pocket
expenses are actual costs incurred in obtaining food, housing, medical items, clothing,
transportation, and personal needs items on the beneficiary’s behalf. Payees may reimburse
themselves for certain out-of-pocket expenses not mentioned above if they obtain SSA’s approval
before the reimbursements are made. Pursuant to SSA’s out-of-pocket reimbursement policy and
the Supreme Court’s decision in Washington State Dept. of Social and Health Services v.
Guardianship Estate of Keffeler, state child welfare agencies may use SSI/Social Security
benefits for the cost of providing care to child beneficiaries in foster care (see “How has the
Supreme Court ruled on the states’ use of SSI/Social Security benefits to support children in
foster care?”).86
In general, representative payees may not use beneficiaries’ SSI/Social Security benefits to
compensate themselves for time, effort, or administrative expenses in connection with their payee
duties. However, the Social Security Act permits a qualified organization (i.e., state or local
governments and certain community nonprofit agencies) to collect a monthly fee from a
beneficiary’s SSI/Social Security benefits for expenses incurred in providing payee services,
including for overhead (i.e., normal business operating expenses).87 SSA must approve the
2, 2021, https://secure.ssa.gov/apps10/poms.nsf/lnx/0200603020. A state or local government may use a general
depository account (e.g., a state general fund) under the following conditions: (1) the state or local government requires
the use of the general depository account; (2) the state or local government promptly routes the beneficiary’s SSI/Social
Security benefits from the general depository account to the payee’s collective account for beneficiaries; (3) the
subaccount protects the beneficiary’s benefits from any state or local government use; and (4) the payee adheres to
SSA’s collective account guidance.
84 Ibid. A state or local government may use a child care or foster care account under the following conditions: (1) the
state or local government uses the account to receive the SSI/Social Security benefits; (2) the state or local government
uses the account to pay for routine cost-of-care expenses; (3) the state or local government maintains subaccount
ledgers detailing cost of care and the SSI/Social Security deposits for each beneficiary; (4) the subaccount protects the
beneficiary’s benefits from any state or local government use; and (5) the payee adheres to SSA’s collective account
guidance.
85 SSA, POMS, “GN 00602.110 Reimbursement for Payee Services,” April 25, 2016, https://secure.ssa.gov/apps10/
poms.nsf/lnx/0200602110. See also SSA, “Frequently Asked Questions (FAQs) for Representative Payees: Can I Use
Beneficiary’s Funds to Pay Myself for a Beneficiary Expense I Paid?,” https://www.ssa.gov/payee/faqrep.htm?tl=12;
SSA, “Guide for Organizational Representative Payees: Out-of-Pocket Expenses,” https://www.ssa.gov/payee/
NewGuide/toc.htm#Important_Info_Benefits; and SSA, “Training Organizational Representative Payees: What “outof-pocket” expenses can an organization be reimbursed for?,” https://www.ssa.gov/payee/LessonPlan-20052.htm#REIMBURSE.
86 Responses to Questions for the Record from Marianna LaCanfora, Acting Deputy Commissioner for Retirement and
Disability Policy, Social Security Administration, May 11, 2017, in U.S. Congress, House Committee on Ways and
Means, Subcommittee on Social Security, Social Security’s Representative Payee Program, 115th Cong., 1st sess.,
March 22, 2017, Serial No. 115-OS02 (Washington, DC: GPO, 2017), p. 107, https://www.govinfo.gov/content/pkg/
CHRG-115hhrg33365/pdf/CHRG-115hhrg33365.pdf#page=111.
87 42 U.S.C. §§405(j)(4) and 1383(a)(2)(D). See also 20 C.F.R. §§404.2040a and 416.640a, as well as SSA, POMS,
“GN 00506.001 Fee for Service – Overview,” April 25, 2016, https://secure.ssa.gov/poms.NSF/lnx/0200506001.
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request to collect a fee, which is 10% of the total monthly benefit, up to a maximum of $45 per
month in 2021.88 If a payee collects a fee, then the payee may not seek separate recovery under
SSA’s out-of-pocket reimbursement policy for overhead.
Screening and Applying for SSI/Social Security Benefits on Behalf
of Children in Foster Care
To what extent are children in foster care screened for SSI/Social Security
eligibility?
The most recent information about states’ practices for screening children in foster care for
SSI/Social Security benefits comes from a 2011 survey of state child welfare agencies. All but
two of 44 states that responded to the survey had specific methods in place to screen children,
including written procedures, the SSA’s benefit eligibility screening tool (BEST),89 guidelines
developed by the state, responses provided on the initial child welfare services intake form, and
social worker discretion, among other methods.90 A smaller subset of 23 states responded to
questions about child welfare staff that help to determine whether children in care may be eligible
for SSI/Social Security benefits. Four of these states reported that they provide guidance to local
jurisdictions to identify children, three states reported that special contract agencies carry out
possible eligibility determinations, and 16 states reported having special units or designated staff
for this purpose.
Reporting by the Marshall Project in 2021 indicated that at least 12 state foster care agencies hire
consulting companies to screen children in foster care to determine whether they might be eligible
for SSI/Social Security benefits.91 According to this reporting, the companies review children’s
health care records, casework notes, school performance, and other information to determine
whether they might be eligible based on factors such as physical and emotional disabilities.92
Further, this reporting found that one of the companies has examined whether the state child
welfare agency could replace representative payees (e.g., parent, grandparent, or other guardian)
who are already overseeing benefits for children in care.
88 SSA, POMS, “GN 00506.200 Fee Amounts,” November 25, 2020, https://secure.ssa.gov/poms.nsf/lnx/0200506200.
The maximum dollar limit is $84 per month in 2021 if the beneficiary has a drug or alcohol addiction condition.
89 The SSA’s Benefit Eligibility Screening Tool (https://ssabest.benefits.gov/) offers information on the types of
benefits an individual may be eligible to receive.
90 APHSA and the National Association of Public Child Welfare Administrators, Study on Title II and Title XVI
Benefits for Children in Out-of-Home Placements, 2012.
91 See NPR and the Marshall Project, “Foster Care Agencies Take Thousands of Dollars Owed to Kids, Most Children
Have No Idea,” https://www.themarshallproject.org/2021/04/22/foster-care-agencies-take-thousands-of-dollars-owedto-kids-most-children-have-no-idea, May 17, 2021. The Marshall Project is a nonprofit, nonpartisan news organization
that focuses on the U.S. criminal justice system. According to this source, these 12 states—Alaska, California,
Delaware, Illinois, Indiana, Iowa, Kentucky, Maryland, New York, South Carolina, Washington, and Wisconsin—use
one of three companies (Maximus, Public Consulting Group [PCG], Inc., and Diversified Services Network) to screen
children in foster care for benefits.
92 NPR and the Marshall Project, “Foster Care Agencies Take Thousands of Dollars Owed to Kids, Most Children
Have No Idea.”
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Which factors are considered when determining whether children in foster
care should apply for SSI/Social Security benefits?
Determining whether taking the benefit is in the child’s best interest depends on a sometimes
complex interaction of program and child-specific factors. Children in foster care may gain from
screenings because presumably, the child welfare agency would go on to help the child apply for
benefits and appeal any decisions regarding the benefits. Children who receive SSI/Social
Security benefits would continue to receive the benefits even after leaving care (assuming they
are under the age of 18).93
When children receiving SSI reach the age of 18, SSA automatically reviews the cases to
determine if they meet the program’s disability standard for adults. Receipt of SSI can also be
beneficial because most recipients are categorically eligible for certain other federal and state
benefits, including Medicaid. Screening for benefits can also be useful for state child welfare
agencies if, in fact, states seek to use those funds for reimbursing the cost of providing foster care.
In addition to these considerations, child welfare agencies may also assess how a Title IV-E foster
care maintenance payment and SSI benefit would interact for children who are eligible for both.
The Child Welfare Policy Manual, which discusses official guidance on the Title IV-E foster care
program, specifies that federal Title IV-E support may be claimed on behalf of a Title IV-E
eligible child who is also receiving an SSI benefit.94 However, under the SSI program, a Title IVE foster care maintenance payment is considered income based on need.95 This kind of income
reduces the amount of a child’s monthly SSI benefit on a dollar-for-dollar basis and could
effectively reduce a Title IV-E eligible child’s SSI benefit to $0.96
For example, if a child’s total monthly foster care maintenance payment is $500 in 2021—and
that maintenance payment is paid under the Title IV-E program—then the child’s monthly SSI
benefit, assuming no other income, would be $294 (i.e., the maximum monthly SSI payment in
2021 of $794 minus the $500 Title IV-E payment). A child would not be eligible for SSI benefits
if the Title IV-E maintenance payment (plus any other countable income) were equal to or greater
than the SSI federal benefit rate ($794 in 2021), plus any federally administered state
supplementary payment.
Because of this dollar-for-dollar reduction in the SSI benefit, a state might elect to forgo any
federal support under Title IV-E for a child’s foster care maintenance payment. The state could
choose instead to provide the child’s foster care maintenance payment solely with the SSI benefit
93 Under the Strengthening Protections for Social Security Beneficiaries Act of 2018 (SPSSBA, P.L. 115-165), SSA is
required to enter into data exchange agreements with states to allow automated monthly updates when a child
SSI/Social Security beneficiary with a representative payee enters or exits foster care or changes foster care placement.
SSA is then required to use this information to redetermine the appropriate representative payee for the child
beneficiary when a change in placement occurs. See the section on “Have any federal laws been enacted recently that
address the use of Social Security and SSI benefits by child welfare agencies?” for more details about the SPSSBA.
94 ACF, Child Welfare Policy Manual, Section 8.4D - Question 1, https://acf.hhs.gov/cwpm/public_html/programs/cb/
laws_policies/laws/cwpm/policy_dsp.jsp?citID=76.
95 Income based on need (IBON) is assistance provided under a program that uses income as a factor of eligibility, and
is funded wholly or partially by the federal government. For children in foster care who do not qualify for Title IV-E
foster care support, states must find other sources of funding to pay for that child, and support for these children in
foster care may be provided solely with state or local dollars. Foster care payments funded wholly by a state or local
government are considered assistance based on need (ABON) and are disregarded (i.e., not counted) in determining
SSI eligibility and the benefit amount. See 42 U.S.C. §1382a(b)(6) and 20 C.F.R. §416.1124(c)(2).
96 IBON is not subject to the $20 general income exclusion. See SSA, POMS, “SI 00830.410, Title IV-E Foster Care
Payments,” August 19, 2014, https://secure.ssa.gov/poms.nsf/lnx/0500830410.
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or with a combination of the SSI benefit and some other non-federal or non-countable (for SSI
purposes) dollars. A state that chooses to forgo Title IV-E foster care maintenance payment
funding in this manner, however, could continue to claim federal Title IV-E “administrative”
funding for a Title IV-E eligible child. (Title IV-E administrative funding covers a wide range of
activities from support for development and revision of a case plan and required caseworker visits
for each child in foster care to conducting background checks or providing training for foster
parents and many more items.)97 Children receiving SSI/Social Security benefits are less likely
than other children in foster care to be receiving Title IV-E foster care maintenance payments. An
analysis of FY2019 AFCARS data found that among children in foster care who were receiving
SSI/Social Security benefits, 20.1% were also receiving Title IV-E foster care maintenance
payments. By contrast, among those in care who were not receiving SSI/Social Security benefits,
42.1% were receiving Title IV-E foster care maintenance payments.98
For children who do not qualify for Title IV-E foster care support, states must find other sources
of funding, typically with state or local dollars. If a state uses federal TANF dollars to provide
support (e.g., a child-only payment made to a kin caregiver), then this support would also be
considered income based on need under the SSI program and any such payment would reduce a
child’s SSI benefit dollar for dollar.99 However, if a state uses solely its own or local funds to
make payments on behalf of a child in foster care who is not Title IV-E eligible and the payments
use income as a factor of eligibility, then such payments are not counted as income and thus do
not reduce a child’s SSI benefit.100 Typically, in such cases, the state serving as the child’s
representative payee is believed to use the child’s SSI benefits to provide a foster care
maintenance payment to the child (or to reimburse the state for all or some of that payment). If
the child receives Social Security benefits, those benefits are not affected by the Title IV-E foster
care maintenance payment or any other non-Social Security federal support.
Some child welfare agencies contract with private consulting companies to file applications for
SSI/Social Security benefits on behalf of children in foster care, such as Maximus and Public
Consulting Group.101 A publication from one of these consulting companies notes that it has
greater success in successfully applying for benefits relative to applications overall.102
97 Title IV-E administrative claims must be submitted by a state under an HHS-approved “cost allocation plan.”
Generally, a state applies the percentage of children in its care who are eligible for Title IV-E to its applicable
administrative costs to determine the share of those administrative costs that are considered Title IV-E costs. HHS,
ACF, Child Welfare Policy Manual, Section 8.4D - Question 3, https://acf.hhs.gov/cwpm/public_html/programs/cb/
laws_policies/laws/cwpm/policy_dsp.jsp?citID=76.
98 Based on CRS analysis of FY2019 data from AFCARS (FC2019v1), available from NDACAN. This analysis looked
at all children who were in foster care at some point during FY2019 and who had been in care for at least six months
(505,499, including 26,957 who were receiving SSI or other Social Security benefits). See Appendix B for more
information about how children were counted as receiving, or not receiving, SSI/Social Security benefits.
99 By contrast, if a state uses funds under the SSBG or CWS program, that funding is considered a service (rather than
income) and does not reduce a child’s SSI benefit. See POMS, “SI 00830.410, Title IV-E Foster Care Payments,”
August 19, 2014, https://secure.ssa.gov/poms.nsf/lnx/0500830410.
100 Ibid. SSA considers wholly state or locally-funded payments that use income as a factor of eligibility to be ABON,
which is excluded from income in determining SSI eligibility and the payment amount. See footnote 95.
101 Maximus, “Disability Benefits and Services,” https://maximus.com/solutions/disability-benefits-and-services. Public
Consulting Group, “Finance Consulting,” https://www.publicconsultinggroup.com/human-services/children-and-youth/
finance-consulting/.
102 Public Consulting Group, “SSAMS Program: Social Security Advocacy Management Services for Foster Care
Population,” no date, in Social Security Advisory Board, “Policy Forum on the SSI Program: July 12, 2016,”
https://web.archive.org/web/20160731140937/http:/www.ssab.gov/FORUM2016-SSI/FORUM2016PRESENTATIONS.
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Does SSA have special procedures for youth who age out of foster care?
Youth who age out of foster care—typically at age 18, or in some states, at age 21—face a
number of challenges related to the transition, including income support. For youth in foster care
who will soon age out and are already receiving SSI/Social Security, benefits continue until they
no longer meet the applicable program requirements. Under SSI, benefits based on a qualifying
disability are available at any age, although child SSI recipients who turn 18 must meet the adult
definition of disability to remain eligible for the program.103 Under Social Security, benefits for
children generally stop at age 18 (or at age 19 if they are enrolled full-time in elementary or
secondary school [grade 12 or below]).104
For youth in foster care who will soon age out but are not currently receiving SSI benefits, SSA
has a special application procedure that allows such youth to apply for SSI before they leave
foster care. This procedure is designed to minimize the chance of disruption in income support
during the transition and was developed to assist transition-age foster youth who would be SSIeligible if not for receipt of federal Title IV-E maintenance payments. Because these payments
count as income under the SSI program, state child welfare agencies have less incentive to apply
for SSI on behalf of youth who receive federal Title IV-E benefits.105 For SSI-eligible youth who
apply for SSI immediately after they age out of foster care, it may take several months before
their applications are processed and their benefits start.106
In general, the earliest point at which SSA accepts an SSI application is the month before the
month of eligibility.107 However, under the special application procedure for transition-age foster
youth, SSA accepts an SSI application up to 180 days before the child’s 18th birthday.108 The
additional time provided by this special application procedure helps to ensure that SSI
applications (including accompanying disability determinations) are processed before SSI-eligible
youth age out of foster care. Without the opportunity to apply for SSI early, youth who are
receiving federal Title IV-E benefits when they age out of foster care—and who were previously
ineligible for SSI due to that Title IV-E income—could experience a gap in their support and
103 SSA is required to review child SSI recipients who turn age 18 under the adult disability standard. This review is
known as an age-18 redetermination. According to OCACT, more than half of age-18 redeterminations result in the
continuation of SSI benefits. See SSA, OCACT, 2021 SSI Annual Report, Table V.D4, p. 111, https://www.ssa.gov/
oact/ssir/SSI21/index.html.
104 Individuals aged 18 or older may qualify for Social Security benefits on the record of a parent if they are unmarried
and have a qualifying disability that began before age 22. See “Social Security Benefits for Children.”
105 Because Social Security is not a means-tested program, state child welfare agencies would presumably apply for
Social Security on behalf of eligible youth while they are already in foster care, as they could use the Social Security
benefits as reimbursement for the cost of foster care.
106 In FY2021, the average processing time for initial disability claims for SSI or Social Security was 165 days. SSA,
“Combined Title II Disability & Title XVI Blind & Disabled Average Processing Time (excludes technical denials),”
https://www.ssa.gov/open/data/Combined-Disability-Processing-Time.html.
107 SSA, POMS, “SI 00601.010 Filing Applications,” June 24, 2016, https://secure.ssa.gov/apps10/poms.nsf/lnx/
0500601010.
108 SSA, POMS, “DI 25201.011 Making a Determination for Youth in Foster Care When the Application Effective
Date Is On or After the Attainment of Age 18,” July 29, 2016, https://secure.ssa.gov/apps10/poms.nsf/lnx/0425201011.
See also SSA, “Spotlight on SSI Benefits for Disabled or Blind Youth in Foster Care,” https://www.ssa.gov/ssi/
spotlights/spot-disabled-youth.htm. For more information on the history of this special procedure, see Laura King and
Aneer Rukh-Kamaa, “Youth Transitioning Out of Foster Care: An Evaluation of a Supplemental Security Income
Policy Change,” Social Security Bulletin, vol. 73, no. 3 (August 2013), https://www.ssa.gov/policy/docs/ssb/v73n3/
v73n3p53.html.
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maintenance. According to SSA’s analysis, allowing an extended/early application timeframe
may have shortened the period between attaining age 18 and receiving SSI determinations.109
There is no comparable special application procedure for Social Security benefits, as these
benefits typically end when the child turns age 18 (or age 19 if enrolled full-time in elementary or
secondary school [grade 12 or below]).110
Use of Social Security and SSI Benefits by Child Welfare Agencies
To what extent do children in foster care receive SSI/Social Security benefits?
Children in foster care are not expected to be eligible for Social Security benefits at a rate greater
than the general child population. However, because they more often have impairments (and low
income) they might be expected to more often qualify for SSI. Researchers studying a nationally
representative sample of children who were placed in out-of-home care (following a child abuse
or neglect investigation) estimated that more than 20% had physical or mental health conditions
that—given the severity of the condition and the length of the condition or risk of death—would
likely make them eligible for SSI. Among children who had been in out-of-home care for at least
one year, this percentage rose slightly to 21%. The researchers based these findings on direct
assessments of children and standardized questionnaires administered to caregivers about the
children’s social skills, behavior, or health status.111
This estimated eligibility is considerably higher than the 5.3% of children in foster care during
FY2019 who had been in care for at least six months and were reported by state child welfare
agencies via the Adoption and Foster Care Analysis Reporting System as receiving SSI/Social
Security benefits.112 Notably, however, the share of children reported as receiving SSI/Social
Security benefits varies considerably by state: five states reported that between 13% and 24% of
children in their care were receiving SSI/Social Security benefits, while nine states (including the
District of Columbia) reported that less than 2% did so.113
Among children in foster care who were not receiving SSI/Social Security benefits, roughly onequarter (24.5%) were reported as having clinically diagnosed disabilities, including physical or
intellectual disabilities, or emotional disturbances (see Figure 7).114 This may indicate that some
109 Laura King and Aneer Rukh-Kamaa, “Youth Transitioning Out of Foster Care: An Evaluation of a Supplemental
Security Income Policy Change,” Social Security Bulletin, vol. 73, no. 3 (August 2013).
110 As noted previously, individuals aged 18 or older may qualify for Social Security benefits on the record of a parent
if they are unmarried and have a qualifying disability that began before age 22. See “Social Security Benefits for
Children.” As part of the SSI application process, claimants are required to apply for Social Security if they are eligible
for the program. Thus, transition-age foster youth who apply for SSI under the special application procedure would
likely be required to apply for Social Security. However, it is unclear if such youth would receive any special treatment
with respect to the processing of their Social Security applications.
111 HHS, ACF, National Survey of Child and Adolescent Well-Being, Estimates of Supplemental Security Income
Eligibility for Children in Out of Home Placements, Research Brief No. 12, https://www.acf.hhs.gov/sites/default/files/
documents/opre/est_suppl.pdf.
112 AFCARS collects data on receiving SSI and Social Security benefits in a combined category. The category may also
include a limited number of children who receive foster care maintenance payment support under CWS and SSBG. See
table note c in Table B-1 for more information.
113 Based on CRS analysis of AFCARS FC2019 data reported by 50 states and the District of Columbia. Children were
included in the analysis if they had been in care for at least six months and at least part of that time occurred during
FY2019.
114 These analyses were completed only on children who had been in care for at least six months, therefore increasing
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children in foster care are eligible for but not receiving SSI benefits.115 On the other hand, SSA
does disability determination for purposes of the SSI program according to program-specific
rules, and those rules do not necessarily match the clinical diagnosis parameters given in
AFCARS reporting.116 Additionally, children receiving SSI benefits must meet income and
resource tests as described earlier in this report.117
Figure 7. Children in Foster Care who are Not Receiving an SSI/Social Security
Benefit, by Clinical Diagnosis of Disability
Source: Figure prepared by CRS based on analysis of FY2019 AFCARS data from the 50 states and the District
of Columbia. See also Appendix B for more information on data used in this analysis.
Notes: Percentages do not sum to 100 due to rounding. Children were included in the analysis if at any time
during FY2019 they had been in care for at least six months, they did not receive SSI/Social Security benefits, and
the state reported their disability diagnosis information (n= 472,800). The SSI program has a unique definition
and determination of disability; a clinically diagnosed disability as reported via AFCARS does not necessarily
mean a child would meet those SSI disability criteria.
To what extent do child welfare agencies use SSI/Social Security benefits to
reimburse themselves for foster care expenses?
Most state child welfare agencies use SSI/Social Security benefits to cover foster care
maintenance payment expenses. A GAO study found that 42 states reported using SSI and/or
Social Security funds in lieu of state funds to cover foster care costs, including for items such as
housing and food.118 Over half of the states (29) reported using SSI/Social Security funds to cover
other expenses that the state would not have covered through a foster care maintenance payment,
such as for educational needs (e.g., technology for educational purposes), medical needs, and
personal items (e.g., a high-school senior class ring). Most of the states (37) also reported that
they conserved SSI/Social Security funds for children in care.119
the time opportunity for a qualified professional to have made such clinical diagnoses.
115 ACF, National Survey of Child and Adolescent Well-Being, Estimates of Supplemental Security Income Eligibility
for Children in Out of Home Placements.
116 Fewer than half of child SSI applicants who are medically evaluated by SSA are awarded benefits. See SSA, SSI
Annual Statistical Report, 2020, October 2021, Table 69, https://www.ssa.gov/policy/docs/statcomps/ssi_asr/.
117 As noted earlier, if a child in foster care is receiving a Title IV-E foster care maintenance payment, that payment
would reduce any SSI payment dollar for dollar. Most children in foster care (circa 60%) are not eligible for Title IV-E
foster care maintenance payment support. However, for those who are Title IV-E eligible, if a state decides to claim
Title IV-E maintenance payment support for the child, then an otherwise SSI eligible child may not be eligible for an
SSI payment.
118 GAO, Social Security Administration: New Data Exchanges for Some States Provide Limited Information on Foster
Care Beneficiaries, GAO-21-441-R, p. 12.
119 GAO did not comment on why some states did not report conserving SSI/Social Security benefits on behalf of child
beneficiaries. Individuals and organizations serving as representative payees (including state child welfare agencies) are
required to conserve or invest benefits not needed for a child’s current maintenance, generally in a financial account
insured under federal or state law. In addition, the SSI program requires that certain large past-due benefits payable to a
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GAO separately examined data from seven of the eleven states (including the District of
Columbia) that exchange child welfare data with SSA.120 Five of the seven states (the District of
Columbia, Iowa, Maine, Nebraska, and Virginia) spent at least two-thirds of the SSI/Social
Security benefits paid on behalf of the child beneficiaries to cover their food and housing
expenses. The other two states, Delaware and Kentucky, spent most of the funds on medical,
educational, or dental expenses. Five of the states (Delaware, the District of Columbia, Iowa,
Nebraska, and Virginia) conserved between 2% and 15% of funds on behalf of the child
beneficiaries, and two states (Kentucky, Maine) reported not conserving funds for future use.
Some states require conservation of benefits under state law. For example, Nebraska law requires
its state child welfare agency to conserve a cumulative amount of $1,000 in personal assets and
income for children in foster care receiving SSI/Social Security benefits. Further, Maryland law
requires its state child welfare agency to conserve 40% of a child in foster care’s SSI/Social
Security benefits (for the child’s future use) if the child is ages 14 or 15; 80% for a child ages 16
or 17; and 100% for a child 18 or older.121
The Child Trends survey of state child welfare agency spending for state fiscal year 2018 found
that the agencies in 38 states and the District of Columbia had access to some $179 million in
SSI/Social Security funds to cover child welfare agency costs for beneficiaries. The child welfare
agency in three states and Puerto Rico reported receiving no such funds, eight states were unable
to report the amount of SSI/Social Security funds they received, and one state did not participate
in the survey.122 Many states reported lump sums for all SSI and Social Security benefits,
therefore the precise amount of funding by type of benefit is not known.
At the same time, child welfare agency in 29 states reported in the Child Trends survey that they
sometimes maintained SSI/Social Security benefits (or other “third-party income,” e.g., child
support payments) “in an account specific to a child or child’s caregiver, (which the child or
caregiver could access), or otherwise saved the funds for the child.” Child welfare agencies in
sixteen states, the District of Columbia and Puerto Rico indicated they did not maintain such
accounts. (Agencies in five remaining states did not provide information on this question, or did
not participate in the survey.)123
represented minor child be deposited in a special dedicated account. The child’s representative payee is permitted to
use funds in the dedicated account only for certain expenses, such as medical treatment, education, job skills training,
or expenses related to the child’s impairment (e.g., personal assistance, therapy). Any conserved benefits remaining in a
financial account (including a dedicated account) when the duties of the representative payee end must be returned to
SSA for distribution to the next representative payee or, generally, if the child has reached age 18, to the child.
120 GAO, Social Security Administration: New Data Exchanges for Some States Provide Limited Information on Foster
Care Beneficiaries, GAO-21-441-R, p. 11.
121 See Nebraska Revised Statute 43-907. See Maryland Family Law Article §5-527.1 and Maryland Department of
Human Services, Policy Number SSA/CW #19-6, October 1, 2018, https://dhs.maryland.gov/documents/
SSA%20Policy%20Directives/Child%20Welfare/SSA%201906%20CW%20Protecting%20Resources%20of%20Children%20in%20Custody.pdf.
122 Specifically, the Child Trends Survey asked about the amount of certain third-party income “remitted to the state
and made available to the child welfare agency to use as offsets to child welfare agency costs for child welfare
services/activities.” The $179 million figure generally represents SFY2018 access to SSI/Social Security funds only.
Funding amounts included in that number from Louisiana and Pennsylvania more include some funds for other thirdparty income sources. For more information and data as reported by state, see Appendix E.
123 Whether these accounts were specific to SSI/Social Security benefits (or one type of those benefits) is not known.
For information on responses by state, see Appendix E.
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How do child welfare agencies hold and track SSI/Social Security benefits?
In the 2011 survey of state child welfare agencies, 35 states provided information about how they
hold and track SSI/Social Security funds for children in foster care.124 Thirty of those states have
individual accounts for the children, and five states reported holding funds in their general
account and tracking each child’s funds separately within the account.125 The term “general
account” is not defined in the survey report. However, as noted earlier, SSA allows state or local
governments to deposit beneficiary funds into a general depository account (e.g., a state general
fund) in order to route the funds to a subordinate agency’s subaccount, or to an operating account
established for paying certain child welfare expenses, such as a childcare or foster care account
(see “Representative Payees”).
Over the years, audits of child welfare agencies serving as representative payees by SSA’s Office
of the Inspector General (OIG) have found weaknesses in agencies’ payee practices concerning
the use and tracking of benefits for children in foster care (see Appendix F). SSA’s OIG has also
expressed concern with general depository accounts used by some states, because the subaccounts
into which SSI/Social Security benefits are deposited may not provide sufficient evidence of the
fiduciary relationship between the payees and the beneficiaries, which may affect the insured
status of the beneficiaries’ funds by the Federal Deposit Insurance Corporation (FDIC).126
Selected Court Decisions127
Few courts have addressed states’ use of SSI/Social Security benefits to support children in foster
care. Only one of these cases, Washington State Department of Social and Health Services v.
Guardianship Estate of Keffeler,128 has reached the U.S. Supreme Court.
How has the Supreme Court ruled on the states’ use of SSI/Social Security
benefits to support children in foster care?
In Keffeler,129 the Court considered whether a state may lawfully use the Social Security benefits
of a child in foster care to reimburse itself for foster care costs. Advocates for the children in
foster care argued that the State of Washington’s use of Social Security benefits for
reimbursement violated 42 U.S.C. § 407(a),130 otherwise known as the “anti-attachment clause,”
124 American Public Human Services Association and the National Association of Public Child Welfare
Administrations, Study on Title II and Title XVI Benefits for Children in Out-of-Home Placements, p. 14. The survey
questions are in Appendix C. States were asked, “When a state acts as representative payee for a child receiving SSI or
Title II benefits, how are those benefits used? (Please select all answers that apply.)” States could respond to four
options: (1) General revenue to state; (2) General revenue, but transferred directly to the child welfare agency; (3)
Individual account is created for child; benefits are used to pay the child’s foster care maintenance payment with any
excess payment saved for the child; and (4) Other (please describe).
125 Ibid.
126 See, for example, SSA, OIG, Cabinet for Families and Children, Department for Community Based Services,
Division of Protection and Permanency - An Organizational Representative Payee for the Social Security
Administration, A-08-03-13084, March 10, 2004, https://oig-files.ssa.gov/audits/full/A-08-03-13084.pdf.
127 This section was written by Alison M. Smith, Legislative Attorney in CRS’s American Law Division. It uses that
division’s editorial and citation styles.
128 537 U.S. 371 (2003).
129 Id.
130 Title 42, Section 407(a), states:
The right of any person to any future payment under this subchapter shall not be transferable or
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or the anti-alienability clause of the Social Security Act.131 This provision protects Social Security
benefits from “execution, levy, attachment, garnishment, or other legal process.”132 The Court in
Keffeler held that the state’s use of Social Security funds for reimbursement did not violate
federal law.133 In rejecting the advocates’ assertions, the Court stated that the issue was “whether
the department’s ... use of [the children’s] Social Security benefits when it acts [as a
representative payee] amounts to employing an ‘execution, levy, attachment, garnishment, or
other legal process’ within the meaning of § 407(a).”134 After determining that the other legal
apparatuses outlined in § 407(a) did not apply, the Court determined that the case “boil[ed] down
to whether the department’s manner of gaining control of the federal funds involve[d] ‘other legal
process,’ as the statute uses that term.”135 The Court reasoned that “other legal process” involves
some means of transfer similar to garnishment or attachment, and determined that the phrase, “at
a minimum, would seem to require utilization of some judicial or quasi-judicial mechanism ... by
which control over property passes from one person to another.”136 The Court concluded that the
department’s use of the Social Security benefits “in that capacity involve[d] nothing of the sort,”
as the State’s use of benefits to reimburse itself involved “funds already in the department’s
possession and control, held on terms that allow the reimbursement.”137 The Court also held that
Washington State’s use of a child’s Social Security benefits to reimburse costs of foster care for
that child followed the regulatory requirement that such funds are spent for the “use and benefit
of the beneficiary” and within the regulatory definition of current maintenance that includes
“costs incurred in obtaining food, shelter, clothing, medical care, and personal comfort items.”138
Have lower courts addressed how states may use children’s SSI/Social Security
benefits?
Since Keffeler, lower courts have addressed these issues with varying results. As the Court
decided Keffeler on a narrow statutory basis, several questions remain, including what exactly
constitutes “other legal process” or whether a state can be limited in the way it seeks
reimbursement. At least one appellate state court addressed this issue in 2007 and concluded that
a district court’s order directing a North Carolina’s county Department of Social Services (DSS),
as a representative payee, to spend Social Security funds for a minor child in a specific manner
did not violate the anti-alienability provision of the Social Security Act.139
assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this
subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to
the operation of any bankruptcy or insolvency law.
131 Courts sometimes use the term “anti-alienability” and anti-attachment clause interchangeably. See, e.g., Johnson v
Wing, 178 F.3d 611, 615 (2d Cir. 1999).
132 Keffeler, 537 U.S. at 382.
133 Id. at 375; see 42 U.S.C. §§ 407(a), 1383(d)(1).
134 Keffeler, 537 U.S. at 382.
135 Id. at 383. The Court explained that the terms “execution, levy, attachment [and] garnishment” were “legal terms of
art refer[ring] to formal procedures by which one person gains a degree of control over property otherwise subject to
the control of another, and generally involved some form of judicial authorization.” Id.
136 Id. at 385.
137 Id. at 386.
138 20 C.F.R. §§ 404.2040(a), 416.640(a). Current maintenance includes “costs incurred in obtaining food, shelter,
clothing, medical care, and personal comfort items.”
139 In re J.G., 652 S.E.2d 266 (2007).
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In re J.G. involved a minor child that received Social Security payments based on the child’s
adoptive father’s work history.140 Following the adoptive father’s death, a trial court, finding the
child had been neglected by the biological mother and other legal guardians, ultimately placed the
child in DSS’s legal and physical custody.141 DSS therefore became the representative payee for
the child’s Social Security benefits and used them to cover the child’s foster care costs.142 DSS
did not use the funds to pay the mortgage on a house the child had previously inherited from his
adoptive father, which led to foreclosure proceedings by the mortgage holder.143 The child’s
guardian ad litem (GAL) moved the court to protect the minor child’s “reasonable foreseeable
needs,”144 and the trial court held that DSS’s use of the child’s Social Security benefits to pay for
foster care instead of the mortgage payments was unreasonable and contrary to the child’s best
interests.145 According to the court, if the mortgage holder foreclosed on the child’s home, the
child would receive little money from the sale and would be homeless when he aged out of foster
care.146 The court therefore ordered DSS to use some of the Social Security benefits to pay the
mortgage payments and house repairs.147
DSS appealed the decision, claiming that the trial court’s order violated the anti-alienability
provision of the Social Security Act (42 U.S.C. § 407(a)) by directing DSS to pay the
mortgage.148 According to DSS, this action subjected the Social Security benefits to a “legal
process” in violation of the statute (i.e., it directed a certain portion of the child’s Social Security
benefits be used for a particular purpose).
The North Carolina court of appeals disagreed with DSS and affirmed the trial court’s decision.149
The court explained that Congress’s intent in enacting the anti-alienability provision of the Social
Security Act was to protect Social Security payments against “claimants to Social Security
benefits, whether or not such claimants are creditors.”150 The court reasoned that the law protects
beneficiaries’ rights and limits creditors’ rights by barring use of any legal process to gain control
of Social Security benefits.151 The court further determined that the Court in Keffeler stated that
the phrase other legal process refers to a formal process by which a person gains control over
property controlled by another though judicial involvement.152 Therefore, the court held that the
“anti-alienability provision functions as a bar against actions for Social Security benefits brought
against Social Security beneficiaries and payees.”153 As applied in this case, the court noted that
DSS, as representative payee, controlled the child’s Social Security funds and that no one else
had control over the child’s funds; and that the trial court’s order directing DSS to use some of
the Social Security funds to pay the mortgage on the child’s home was not initiated by a creditor
140 Id. at 267-69
141 Id. at 267-68.
142 Id. at 268-69.
143 Id. at 269.
144 Id.
145 Id.
146 Id. at 273.
147 Id. at 269.
148 Id. at 270.
149 Id. at 273- 76.
150 Id. at 275.
151 Id.
152 Id. at 278.
153 Id. at 275.
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but by the child’s GAL to protect the child’s future needs.154 Thus, the court held that the antialienability provision did not apply.155 As a result, a state, for example, may choose to not use all
of a child’s Social Security funds to reimburse itself in order to conserve funds for a child’s future
use in anticipation of a child “aging out” of care.156
Constitutional Issues
Constitutional issues concerning violations of due process and equal protection rights under the
Fourteenth Amendment also remain after the Keffeler decision.157 Due process rights under the
Fourteenth Amendment of the U.S. Constitution158 consists of two components: substantive and
procedural.159 Procedural due process concerns the procedures that the government must follow
before depriving an individual of life, liberty, or property.160 These procedural protections include
notice and a meaningful opportunity to be heard.161 Typically, claims of violations of the Due
Process Clause in cases involving the use of benefits for children in foster care allege that the
state failed to provide adequate notice to foster children when the state began to reimburse itself
using the child’s benefits.162 In these cases, the children or their representative contend that they
were denied their due process right to notice and a hearing before the state began to use their
benefits to offset the cost of their foster care.163
The Equal Protection Clause of the Fourteenth Amendment provides that “No State shall ... deny
to any person within its jurisdiction the equal protection of the law.” 164 Under the Constitution’s
equal protection principles, government actions that distinguish between classes of people are
subject to different degrees of scrutiny depending on the classification involved.165 For example,
certain classifications, such as race, are subject to strict scrutiny, under which government action
must further a compelling government interest and be narrowly tailored to achieve that interest. 166
Government policies employing non-suspect classifications are reviewed more leniently, typically
withstanding equal protection challenges if they are rationally related to a legitimate government
154 Id.
155 Id.
156 See Keffeler, 537 U.S. at 378-79 (stating that “[t]he department occasionally departs from this practice, ... [a]nd
there have ... been exceptional instances in which the department has foregone reimbursement for foster care to
conserve a child’s resources for expenses anticipated on impending emancipation.”).
157 See Id. at 380 n.4.
158 U.S. Const. amend. XIV § 1.
159 U.S. v. Salerno, 481 U.S. 739, 746 (1987) (describing substantive and procedural due process).
160 Mathews v. Eldridge, 424 U.S. 319 (1976).
161 Grannis v. Ordean, 234 U.S. 385 (1914).
162 See, e.g., In re Ryan, 76 A.3d 1049, 1069-70 (Md. Ct. Spec. App. 2013) (finding that due process requires
department to provide notice to a child’s legal representative of its intention to retain benefits)
163 Id.
164 U.S. Const. amend. XIV § 1.
165 The Equal Protection Clause of the Fourteenth Amendment provides that “No State shall … deny to any person
within its jurisdiction the equal protection of the laws.”
166 See, e.g., McLaughlin v. Florida, 379 U.S. 184 (1964) (holding a Florida criminal statute prohibiting an unmarried
interracial couple from habitually living in and occupying the same room invalid under the equal protection of the laws
guaranteed by the Fourteenth Amendment).
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interest, 167 while other classifications are reviewed under an intermediate standard between
rational basis and strict scrutiny.168
Have courts addressed the use of benefits for children in foster care and claims
of equal protection clause violations?
In further litigation stemming from the earlier Keffeler case, in Keffeler v. Washington (Keffeler
III),169 plaintiffs’ brought forth an equal protection challenge, arguing that the state misused funds
and refused to exercise discretion in disbursing benefits, thus impermissibly creating two
different classes of foster children (those with a private representative payee and those where the
state acts as an appointed representative payee).170 The Washington Supreme Court held that the
state did not violate equal protection as children with state representative payees were not treated
differently from children with private representative payees.171 In rejecting the plaintiffs’ equal
protection challenge, the court determined that there was only one group of foster children, not
two, as the plaintiff asserted.172 According to the court, the identity of the representative payee did
not create a differentiation because all representative payees must use the benefits according to
state and federal laws and regulations,173 as these funds may be used only for the beneficiary’s
use and benefit, and the use must be in the beneficiary’s best interest as determined by the
representative payee.174
Other lower courts have not issued decisions on this issue.175
Have courts addressed alleged due process rights violations with regard to
notice of use of funds for foster care?
Lower courts have disagreed as to whether due process requires states to provide notice to a
child’s legal representative of its intention to retain benefits for reimbursement for foster care.176
In Keffeler III, the Washington Supreme Court held that the state did not violate due process by
refusing to provide notice to children and their guardians before the state was chosen as a
167 See, e.g., Schweiker v. Wilson, 450 U.S. 221, 237-39 (1981) (employing a rational basis review and upholding a
federal law that denied certain Supplemental Security Income benefits to certain recipients); id. at 230 (“Unless a
statute employs a classification that is inherently invidious or that impinges on fundamental rights, areas in which the
judiciary then has a duty to intervene in the democratic process, this Court properly exercises only a limited review
power over Congress, the appropriate representative body through which the public makes democratic choices among
alternative solutions to social and economic problems.”).
168 See, e.g., United States v. Virginia, 518 U.S. 515, 544-45 (1996) (holding that VMI’s male-only admissions policy
was unconstitutional because it failed to show “exceedingly persuasive justification” for the gender-biased admissions
policy).
169 88 P.3d 949 (Wash. 2004) (en banc). The Washington Supreme Court granted a motion to resume jurisdiction over
the constitutional issues.
170 Id. at 940.
171 Id. at 953-55.
172 Id. at 953-54.
173 Id. at 953-55.
174 Id.
175 See, In re J.G., 652 S.E.2d 266, 272 n.3(2007) (discussing courts that have declined to address non-asserted
constitutional claims).
176 See In re Ryan, 76 A.3d 1049, 1069-70 (Md. Ct. Spec. App. 2013) (finding that due process requires department to
provide notice to a child’s legal representative of its intention to retain benefits); cf Keffeler v. Washington, 88 P.3d
949, 956 (finding that federal notice provided to beneficiaries satisfies due process requirements).
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representative payee.177 The court held that the prior federal notice sent to the children’s
guardians, as required by statute,178 sufficiently satisfied procedural due process.179 The Maryland
court of appeals disagreed with the court in Keffeler III, and held that the Fourteenth
Amendment’s procedural due process requirements dictate that the state’s child welfare agency
must, at a minimum, notify the child’s legal representative whenever it applies to be appointed as
a representative payee for the child’s Social Security benefits and whenever it receives those
funds.180
In addressing the due process concerns, the Maryland court in In re Ryan balanced the
governmental interests and the private interests affected using the factors the Supreme Court
explained in Mathews v. Eldridge.181 In Mathews, the Court explained that, in identifying the
“specific dictates of due process,” the following factors must be considered: (1)“the private
interest … affected by the official action; (2) “the risk of an erroneous deprivation of such interest
through the procedures used and the probable value, if any, of additional or substitute procedural
safeguards;” and (3)“the Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural requirement would
entail.”182
In weighing these factors, the Maryland court determined that the minor child’s private property
interests and risks of an erroneous deprivation of these interests outweighed the government’s
interests of efficient administration.183 The court held that, without direct notice, the minor child
and his or her legal representative would be unaware and unable to use any review process added
by the 2004 amendments to the Social Security Act.184 The court also explained that requiring
notice would not cause an administrative burden given that juvenile courts conduct regular
hearings to review the permanency plan of every child committed to the department.185 As noted
by the court, before these hearings, the department has to submit recommendations about the
child’s permanency plan.186 The court thus determined that adding one more notification would
not be an undue burden.187
177 Keffeler, 88 P.3d at 956.
178 42 U.S.C. §§ 405(j)(2)(E)(i)-(iii).
179 Keffeler, 88 P.3d at 955-56.
180 76 A.3d at 1052; see cf. Keffeler, 88 P.3d 949,956 (2004) (finding that the commissioner’s notice was sufficient
because there was only a minimum risk that children’s interest in their benefit payments would be erroneously
deprived, and because the state’s interests in administrative efficiency outweighed the interests of the foster children in
their benefits).
181 76 A.3d at 1068.
182 424 U.S. 319, 335 (1976).
183 76 A.3d at 1069-70.
184 Id. at 1069. The 2004 amendments to the Social Security Act expanded the remedy to a beneficiary when the
representative payee is not an individual, unless that individual serves 15 or more beneficiaries. 42 U.S.C. §405(j)(5).
185 76 A.3d at 1069.
186 Id.
187 Id.
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Pros and Cons for the Use of SSI/Social Security Benefits by Child
Welfare Agencies
What are the arguments against the use of SSI/Social Security benefits by
child welfare agencies?
Proponents of reserving SSI/Social Security benefits for children in care argue that applying the
benefits solely for the beneficiaries’ foster care costs amounts to asking children to pay for their
own stay in foster care. They point out that other children in care—including those with assets or
income other than Social Security or those who receive Social Security benefits but have
representative payees other than child welfare agencies—are not required to repay the costs.188
Some child advocates assert that a child welfare agency prioritizes using additional funds to
defray child welfare costs in the state rather than ensuring that SSI/Social Security payments
benefit the children for whom they are intended. Further, advocates point out that states lack a
deliberative process to assess the individual needs of children and notify the children of their
eligibility.189
Additionally, some advocates are concerned that SSA may automatically assign child welfare
agencies as the representative payees for children in foster care, even though (under SSA’s
regulations) the agencies should be the least preferred representative payees (see Table C-1 in
Appendix C). Related to this concern, some advocates suggest that SSA does not perform
adequate investigations to determine whether more suitable payees are available, and agencies
that have received poor reviews by SSA or fail to submit payee accounting reports to SSA
continue to serve as payees (see Appendix F).190 In addition, while SSA is required to notify the
current guardian of a child that the child welfare agency has been appointed as the representative
payee, the guardian may be the child welfare agency itself.191
Advocates have also noted that SSI/Social Security funds can help meet the future needs of
children in foster care. As noted in the GAO review of seven states’ practices related to using
these benefits for children in care, five of the states reported conserving between 2% and 15% of
the benefits for the children’s later use, while two reported no funds were conserved.192 Youth
188 NPR and the Marshall Project, “Foster Care Agencies Take Thousands of Dollars Owed to Kids, Most Children
Have No Idea;” and Daniel L. Hatcher, “Foster Care Children Paying for Foster Care,” Cardozo Law Review, vol. 27,
no. 4 (2006), p. 1835. Lawyers on behalf of Keffeler argued before the Washington State Supreme Court that
differences in use of funds between children in foster care with private representative payees and those with agency
representative payees amounted to a violation of the Constitution’s equal protection clause. In its 2004 decision, the
court disagreed, noting that the duties of the representative payees were the same in any case. See “Have courts
addressed the use of benefits for children in foster care.”
189 NPR and the Marshall Project, “Foster Care Agencies Take Thousands of Dollars Owed to Kids, Most Children
Have No Idea;” and First Star and Children’s Advocacy Institute, University of San Diego School of Law, The
Fleecing of Foster Children: How We Confiscate Their Assets and Undermine Their Financial Security, 2011, pp. 1618, http://www.caichildlaw.org/Fleecing.htm.
190 Jim Moye, “Get Your Hands Out of Their Pockets: The Case Against State Seizure of Foster Children’s Social
Security Benefits,” Georgetown Journal on Poverty Law & Policy, Winter 2003, p. 5. See also Hatcher, “Foster Care
Children Paying for Foster Care,” p. 1814.
191 NPR and the Marshall Project, “Foster Care Agencies Take Thousands of Dollars Owed to Kids, Most Children
Have No Idea.” As noted earlier, if the child’s legal guardian or legal representative is also the proposed payee, then the
advance notice is not sent to the legal guardian or legal representative.
192 GAO, Social Security Administration: New Data Exchanges for Some States Provide Limited Information on Foster
Care Beneficiaries, GAO-21-441-R. GAO also separately reported on national survey data of states using Social
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who leave foster care without permanent homes, typically at age 18, often have difficulty
securing housing and income sufficient to shelter and support themselves.193 For example, among
a sample of youth who had been in foster care at age 17, a quarter reported being homeless and
one-third reported receiving public benefits (e.g., nutritional assistance or housing assistance) by
age 19.194 SSI-eligible foster care youth who exit foster care would arguably have an even more
difficult time than youth in care more generally and thus may need additional resources that SSI
provides (albeit some youth may continue to be eligible for SSI at age 18 and beyond).195 Some
stakeholders assert that providing benefits to eligible youth upon leaving care could ease the
transition to adulthood for these youth at a time when they are expected to become financially
independent. According to advocates, the resource limit for SSI eligibility of $2,000 may
discourage youth leaving foster care from accumulating income and assets to assist in this
transition.196
What are the arguments for the use of SSI/Social Security benefits by child
welfare agencies?
State child welfare agencies assert that SSI/Social Security benefits are used to cover the daily
needs of children in care and that this is consistent with expected and required uses of those
benefits. Along with some child welfare advocates, they cite this funding as important due to
limited financial resources available to states, and they point out that child welfare agencies play
an important role in ensuring that children are screened for benefits.
Stakeholders that support using benefits by child welfare agencies note that the benefits cover
housing and other foster care costs for individual children in care.197 They point out that child
welfare agencies function like parents and use the benefits to cover the cost of housing, food, and
other maintenance costs of children in care—rather than making cash payments to children who
are not yet ready to make financial decisions on their own. Further, these stakeholders argue that
setting aside these benefits for children’s later use could cost states up to hundreds of millions of
dollars.198
Separately, some child welfare advocates express the concern that if states were not able to use
SSI/Social Security benefits to pay for children’s foster care room and board, then states would
simply stop screening children to determine their eligibility for these programs. Screenings by
child welfare staff can help to determine an individual child’s needs and to secure extra benefits
and services not normally available in foster care, such as housing modifications.199 Eliminating
these screenings would do a disservice to potentially qualified children, these advocates argue,
Security and SSI benefits for children in foster care, and while most states reported conserving funds, GAO did not
indicate how much funding states conserved and for which purposes.
193 See CRS Report RL34499, Youth Transitioning from Foster Care: Background and Federal Programs.
194 HHS, ACF, Children’s Bureau, National Youth in Transition Database Report to Congress, February 2020.
195 Patrick Garnder, “Keffeler v DSHS: Picking the Pockets of America’s Neediest Children,” Youth Law News, JulySeptember, 2002, p. 10.
196 Daniel L. Hatcher, “Foster Care Children Paying for Foster Care,” p. 1846; and First Star and Children’s Advocacy
Institute, The Fleecing of Foster Children, p. 12.
197 NPR and the Marshall Project, “Foster Care Agencies Take Thousands of Dollars Owed to Kids, Most Children
Have No Idea.”
198 Brief by the State of Florida et al. as Amici Curiae Supporting Petitioners (August 2, 2002), p. 7 in Washington
State Department of Social and Health Services v. Guardianship Estate of Danny Keffeler 537 U.S. 371 (2003) (No.
01-1420).
199 Brief by Children’s Defense Fund, et al., pp. 20-24.
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because a child’s eligibility for SSI/Social Security benefits may extend beyond his or her stay in
foster care, and the benefits could provide crucial support for the child outside the system. For
instance, the benefits could offset the cost of therapeutic care to the families of children who
leave care due to adoption or reunification.200 The Keffeler Court relied on this argument in its
decision, asserting that absent this state assistance, “many eligible children would either obtain no
Social Security benefits, or need some very good luck to get them.”201
In addition, those in support of using SSI/Social Security benefits for current maintenance have
asserted that if child SSI beneficiaries were given all of their benefits while in foster care, they
might accumulate assets in the form of savings and could soon find themselves above the
maximum SSI resource level of $2,000.202 This might also be the case if another type of
representative payee preserved some of the child’s benefits for non-maintenance expenses (not
paid for out of a dedicated account), including the future costs associated with the transition to
adulthood (e.g., rent deposit, vocational training, educational expenses).
Another consideration, raised in amici curiae briefs and cited by the Supreme Court in its Keffeler
decision, is that without the ability to use Social Security and SSI benefits to reimburse the costs
of foster care, states would be discouraged from serving as representative payees because of the
administrative costs involved.203
Congressional Activity
Have any federal laws been enacted recently that address the use of Social
Security and SSI benefits by child welfare agencies?
Legislation addressing this issue has been introduced (see discussion in the next section), and one
bill has been enacted. The Strengthening Protections for Social Security Beneficiaries Act
(SPSSBA, P.L. 115-165), containing numerous provisions intended to improve the SSA’s
representative payee program, was enacted on April 13, 2018. Introduced by Representative Sam
Johnson with Representative John Larson in December 2017, the legislation received unanimous
support in both the House and Senate.204 Two sections directly address representative payees for
children in foster care. These sections (1) called for increased data exchange between SSA and
state child welfare agencies and (2) identified the state child welfare agency as the liable entity
for any overpayment made on behalf of a child in foster care for whom the agency was serving as
the child’s representative payee.
More specifically, Section 103(a) of the SPSSBA directed SSA to enter into data exchange
agreements with states within one year after enactment to obtain automated monthly updates
when a child SSI/Social Security beneficiary with a representative payee enters or exits foster
200 Ibid., p. 22.
201 Keffeler, 537 U.S. 371 (2003), p. 19.
202 Brief by the counties of California—Los Angeles, San Bernardino, Santa Clara, Contra Costa, Alameda, Modoc,
Napa, Nevada, Riverside, San Diego, Tulare—and the California State Association of Counties, as Amici Curiae
Supporting Petitioners, pp. 16-18 in Washington State Department of Social and Health Services v. Guardianship
Estate of Danny Keffeler 537 U.S. 371 (2003) (No. 01-1420).
203 Keffeler, 537 U.S. 371 (2003), p. 18.
204 At the time of the bill’s introduction in the 115th Congress, Rep. Johnson and Rep. Larson were the chair and
ranking member, respectively, of the Social Security Subcommittee of the House Committee on Ways and Means. See
the Committee’s “Legislative History and Technical Explanation of H.R. 4547, the Strengthening Protections for Social
Security Beneficiaries Act of 2018,” for a section-by-section summary of the bill as introduced, https://www.ssa.gov/
legislation/Representative%20Payee%20Committee%20Document.pdf.
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care or changes foster care placement setting. SSA is required to use this information to
redetermine the appropriate representative payee for the child beneficiary when a change in
placement occurs.
Section 103(a) further directed GAO to report to Congress within three years of enactment with
an evaluation of the number of child SSI/Social Security beneficiaries in foster care under the
responsibility of states, their types of representative payees, and how their SSI/Social Security
benefits were used (or conserved) by the states. Representative Danny K. Davis described the
rationale for the section 103(a) data exchanges as follows:
We have very poor understanding of who serves as representative payees for foster youth
and whether they conserve the funds for these youth. This bill requires long-overdue data
coordination between the Social Security Administration and state foster care programs. ...
The data required by this bill will help Social Security better focus on payee determination
for foster youth to ensure that the payee will act in the best interest of the child.205
Representative Carlos Curbelo echoed this sentiment, noting that the enhanced information
sharing would help to “ensure that children in foster care have the appropriate representative
payee if there is a change in placement.”206 GAO released the required report in June 2021.
Among other things, it found that SSA had developed the required data exchange but that most
states were not yet participating. (For more information, see discussion of the GAO report
findings in the last section below.)
Separately, Section 104 of the SPSSBA clarifies that states are liable to repay any overpayments
of SSI/Social Security benefits made on behalf of a child beneficiary who is in foster care and for
whom the state (e.g., the state child welfare agency) was serving as the child’s representative
payee when the overpayment was made. Under the SPSSBA, the state is not allowed to use the
child’s SSI/Social Security benefits, including any conserved funds, to repay such overpayments.
These provisions were made applicable to overpayment determinations made on or after April 13,
2018 (the date of the bill’s enactment) and to other overpaid benefits that had not been recovered
as of the date of enactment.207 Representative Adrian Smith described the rationale for the section
104 overpayment protections as follows:
In cases where a Social Security beneficiary or Supplemental Security Income recipient is
overpaid while in foster care and the State foster care agency is the payee, the beneficiary
or recipient would not be liable for the overpayment. Instead, the State foster care agency
would be required to repay SSA for the overpayment it received…. Foster youth exiting
the system have enough challenges, and paying back an overpayment they never received
should not have to be one of them. 208
205 Rep. Danny K. Davis, “Strengthening Protections for Social Security Beneficiaries Act of 2018,” remarks in the
House, Congressional Record, daily edition, February 7, 2018, p. E154, https://www.congress.gov/115/crec/2018/02/
07/CREC-2018-02-07-pt1-PgE154-3.pdf.
206 Rep. Carlos Curbelo, “Strengthening Protections for Social Security Beneficiaries Act of 2018,” remarks in the
House, Congressional Record, daily edition, February 5, 2018, p. H748, https://www.congress.gov/115/crec/2018/02/
05/CREC-2018-02-05-pt1-PgH741-6.pdf#page=8.
207 SSA, POMS, “EM-18012 REV 6: Clarifying State Overpayment Liability for Minors in Foster Care,” September 9,
2021, https://secure.ssa.gov/apps10/reference.nsf/links/04092021023942PM.
208 Rep. Adrian Smith, “Strengthening Protections for Social Security Beneficiaries Act of 2018,” remarks in the
House, Congressional Record, daily edition, February 5, 2018, p. H748, https://www.congress.gov/115/crec/2018/02/
05/CREC-2018-02-05-pt1-PgH741-6.pdf#page=8.
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Senator Ron Wyden explained that the overpayment liability protection ensures that “youth aging
out of care, struggling to make it on their own, aren’t held liable for the mistakes of or
misinformation from foster care agencies.”209
Have any federal bills been introduced recently that would address the use of
SSI/Social Security benefits by child welfare agencies?
During the 115th Congress, Representative Danny K. Davis introduced the Protecting Foster
Youth Resources to Promote Self-Sufficiency Act (H.R. 7296).210 Other than the SPSSBA
(discussed in the previous section), CRS did not identify any other legislation addressing this
issue in more recent Congresses.
The Protecting Foster Youth Resources to Promote Self-Sufficiency Act would have prohibited a
state or local government serving as the representative payee of any child who is in foster care
from using the child’s SSI/Social Security benefits to reimburse itself for the cost of the child’s
stay in care.211 Further, for any child in foster care212 or a legal guardianship, it would have
required SSA to provide advance notice of the assignment of a representative payee to the
attorney or GAL appointed to represent the child’s best interests213 and, if the child had attai
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.