Urging the Social Security Administration to Amend its Regulations and Congress to Add an Exception to the Privacy Act of 1974 for the Purpose of Protecting Assets of Social Security Recipients
Resolution 1 Urging the Social Security Administration to Amend its Regulations and Congress to Add an Exception to the Privacy Act of 1974 for the Purpose of Protecting Assets of Social Security Recipients
The National Center for State Courts estimates there are 1.3 million active adult guardianship or conservatorship cases in the United States, with at least $50 billion in assets under court supervision. Most individuals in conservatorships are also Social Security recipients who have representative payees managing their benefits. In 2013–2014, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) adopted a resolution encouraging collaboration between state courts and representative payee programs.
Concerns about the lack of cooperation between the Social Security Administration (SSA), the Department of Veterans Affairs, and state courts have been detailed in numerous hearings and Government Accountability Office reports. These include the Senate Special Committee on Aging's "Trust Betrayed" report (2016) and hearings by the House Ways and Means Committee in 2017. One key issue is SSA regulations — specifically 20 CFR § 401.180(b) and § 401.180(c)(4)(d) — which define "court" as a federal institution and exclude state court orders from disclosure considerations. Additionally, the Privacy Act of 1974 [5 U.S.C. § 552a(b)] restricts information sharing without an individual's prior written consent, except under narrow exceptions.
This policy prevents the SSA from honoring state court orders or sharing information with state courts overseeing guardianships or conservatorships. As a result, there can be discrepancies between court-appointed conservators and SSA-appointed representative payees. This lack of coordination jeopardizes the financial protection of vulnerable adults.
The Conferences reaffirm the need for information sharing between state courts and SSA regarding the appointment, resignation, or removal of court-appointed guardians and representative payees, as well as any misuse of funds. They support SSA's participation in state Working Interdisciplinary Networks of Guardianship Stakeholders and efforts to improve interagency collaboration.
NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices and the Conference of State Court Administrators:
- Invite the SSA and other stakeholders to collaborate on protocols that enable communication between state courts and SSA staff responsible for representative payees;
- Request that the SSA amend its regulations to recognize and honor state court orders related to guardianship and conservatorship appointments, resignations, and removals, and allow information sharing about fund misuse;
- Urge Congress to amend the Privacy Act of 1974 to permit disclosure of information to state courts about representative payee activity for individuals under guardianship or conservatorship.
Adopted as proposed by the CCJ/COSCA Joint Committee on Elders and the Courts at the 2017 Annual Meeting on August 9, 2017.