Substance Use and Assignment of Representative Payees

The fact that some recipients of Social Security Disability Insurance (SSDI) benefits spend their benefits on drugs and alcohol has sparked a heated debate about the circumstances in which direct control of benefits should be taken from the recipient and assigned to a representative payee. A large amount of money is a well-recognized trigger for substance abuse relapse (1,2), and it has been asserted that unrestricted access to public support payments may exacerbate substance use. Based on the perceived connection between substance use and mismanagement of personal funds, many treatment programs have made money management a component of treatment for psychiatric patients with comorbid substance abuse problems (3,4). However, the decision to formally, legally, and possibly involuntarily assign a representative payee to a beneficiary raises complex questions about when such assignment is indicated.

The Social Security Act provides for the payment of disability benefits to persons who cannot perform substantial gainful work and who have a medically determinable physical or mental impairment that has lasted or is expected to last for at least 12 months or to result in death. The goal of these disability payments has been characterized as "cautious benevolence,"— "benevolence" in the sense of being charitable and "cautious" in the sense of not providing a disincentive for capable people to work (5).

Recipients of disability payments from the Social Security Administration (SSA) may be unable to manage their funds. Following sanctioned legal precedent, SSA assigns a representative payee to these beneficiaries. A representative payee is someone to whom a recipient's benefits are paid directly and through whom a recipient has access to his or her public support payments. Typically, a payee will establish a checking account into which the recipient's SSA check is deposited. The checking account will list the recipient as the owner but will permit only the payee to have access to the funds in the account. The representative payee keeps a ledger of the funds received and spent and provides periodic reports summarizing the account to SSA.

Determination of the need for a representative payee is an administrative decision made by SSA. The assignment of a representative payee thus restricts a recipient's liberty to spend benefits as he or she sees fit, and this arrangement may be contested before an administrative law judge.

This paper reviews the current regulations specifying appointment of a representative payee for recipients of SSA disability payments who are mentally incapable of managing their own benefits. It proposes guidelines for identifying incapable beneficiaries when the incapability is related to substance abuse.

Assignment of arepresentative payee

The currently active federal regulation addressing assignment of a representative payee (Title 20, CFR 416.610) specifies that payments will be made to a representative payee if the recipient is, first, legally incompetent or mentally incapable of managing benefit payments; second, physically incapable of managing or directing the management of his or her benefit payments; or, third, eligible for benefits solely on the basis of disability, and drug addiction or alcoholism is a contributing factor material to the determination of disability.

However, the Contract With America Advancement Act of 1996 denied disability payments to applicants for whom alcohol or drug addiction is a contributing factor to the determination of disability. Thus the third criterion, which includes substance use, no longer applies to any beneficiaries. To take an extreme hypothetical example, under the old law, a 55-year-old beneficiary with schizophrenia who drinks heavily would have been assigned a representative payee if alcohol use had been a material factor that contributed, even slightly, to the determination of disability. Under the new law, the same person, if he still receives benefits for schizophrenia, will be assigned a representative payee only if he is mentally or physically incapable of managing his funds. It is ironic that while a major justification for ending benefits for those disabled by substance abuse was to prevent addicts from misusing public support funds for the purchase of addictive substances, an unintended consequence has been to make it more difficult for beneficiaries to be assigned a representative payee when they receive payments for a nonaddictive disorder but also suffer from a substance use disorder.

The clinical need for a representative payee for beneficiaries with addictive disorders still arises when receipt of disability payments is based on a nonaddictive disorder such as schizophrenia, but comorbid substance abuse, unrelated to the determination of disability, exists. Approximately 1.2 million beneficiaries receive Supplemental Security Income (SSI) or SSDI for a mental disorder other than primary substance abuse or mental retardation (4).

The prevalence of concomitant substance abuse in this group specifically has not been studied, but it is likely to be similar to the prevalence that has been reported previously in community surveys of persons with serious mental illness—approximately 50 percent (6). Given the potential functional impairment associated with substance abuse among dually diagnosed patients (7), it is possible that functionally impaired patients have an even higher prevalence of comorbid substance abuse than community samples.

Furthermore, some former recipients of benefits for substance-related disability are receiving benefits after reapplying for benefits on the basis of a non-substance-use diagnosis. Even conservative estimates suggest a substantial problem. In 1994 the associate director of the General Accounting Office estimated that approximately 250,000 addicts were receiving benefits and that only 70,000 were enrolled in the program that provided them with a representative payee (8). The Baltimore Sun reported in 1995, "Most of the addicts and alcoholics on the rolls—perhaps as many as three out of four—are retarded, blind, crippled, or suffer from some other disability that would still entitle them to the $458 monthly checks" (9).

Problems applying thecriterion of incapability

The difficulties of applying the criterion of mental incapability are heightened in the case of dual diagnosis patients by several issues specific to substance abuse.

Substance abuse as a mental disorder

One issue in defining a dually diagnosed patient as mentally incapable, due at least in part to substance use, is that the controversy about whether substance use is a disorder or a lifestyle decision is still unresolved. As of 1990, a total of 31 states explicitly identified chronic intoxication or use of drugs as potential reasons for assigning a conservator, along with other evidence of decision-making or functional impairment (10,11). However, substance abuse has recently been singled out by a Congressional act as not0 being a legitimate reason to receive SSA disability payments. If substance abuse is not an illness or disorder for purposes of determining disability—or at least not an illness that justifies SSI or SSDI benefits—it may also not be a disorder that justifies the assignment of a representative payee.

In practice, an attorney who represents a client applying for disability benefits now runs a risk of forfeiting the claim if the attorney highlights the client's substance abuse. The judge or examiner may conclude that the person would not be disabled but for their substance use and deny the claim. If the patient has not had sustained abstinence, the judge may conclude that the applicant would not be disabled if he or she was abstinent.

Course of substance abuse and incapability

A more central issue is the impermanence of incapability associated with substance use. All disability and incapability determinations have an element of uncertainty, because all rely on an assumption that the disability will persist. It is a safe prediction that a beneficiary with Alzheimer's disease who is found to be disabled and incapable of managing funds will still be so one month or one year later.

For many substance abusers, such predictions are far more uncertain. One could ask, for example, whether an otherwise capable patient with schizophrenia who becomes incapable only during an episode of binge drinking is still incapable when the drinking episode ends. In the absence of organic sequelae such as chronic withdrawal or cognitive impairment, the principal sequela of substance abuse is the risk of abusing substances in the future. For instance, patients who achieve abstinence when placed in residential or inpatient treatment are far less likely to misuse their funds.

For intermittent substance abusers, intermittent incapability would necessitate frequent readjudications of the need for a representative payee. Although legal precedents for temporary incapacity and temporary conservatorship exist—for example, during a hospitalization—such a procedure would be cumbersome to apply to repeated readjudications.

Substance abuse and disability payments

There is considerable evidence that awarding of unmonitored SSA benefits may serve as a trigger or cue for substance use (12,13,14). Mental incapability is usually determined based on past behavior, but a disabled substance abuser may not have had past drug access and craving associated with awarding of unmonitored disability payments. Currently, it is largely left to medical judgment to determine whether a recipient is incapable of managing future unmonitored payments.

Determining the needfor a representative payee

In view of the effects of substance abuse on substance abusers' ability to manage funds, guidelines for applying the mental incapability criterion to disability recipients with substance use disorders are needed. We propose the following clinical guidelines, consistent with current laws, for appointing a representative payee for patients with substance use disorders.

A representative payee should be assigned to recipients on the basis of incapacity to manage funds under the following circumstances:

• Within the past 12 months, there has been a maladaptive pattern of substance use leading to clinically significant impairment or distress.

• This substance use has contributed to mismanagement of funds that has caused either substantial harm to the recipient, victimization of the recipient, or unavailability of funds to meet basic needs. Examples of basic needs are medical care for physical and mental health problems, nutritious meals, clothing, safe and adequately heated and ventilated shelter, personal hygiene, and protection from physical abuse or harm (15).

• A representative payee is available, and his or her efforts will increase the likelihood that the recipient's mismanagement of funds will be curtailed.

The first guideline, which addresses maladaptive patterns of substance use, employs the language of the DSM-IV criteria for substance abuse. The similarity to the DSM-IV terminology is deliberate, permitting reference to the examples in DSM-IV of maladaptive patterns of substance use. The proposed guideline would prevent appointment of a representative payee on the basis of benign substance use or on the basis of addiction to nicotine or caffeine. DSM-IV explicitly excludes nicotine and caffeine from the abuse criteria.

The guideline also addresses the issue of time in the course of illness. A one-year period would allow for a recipient in the early phases of abstinence to have a payee. Given that the incidence of relapse for most drugs of abuse is highest during the earliest phases of abstinence, this time period makes good clinical sense.

The second guideline, which addresses mismanagement of funds, specifies that for a payee to be assigned, a connection between the recipient's maladaptive substance use and mismanagement of funds must exist. This criterion is necessary because without evidence of a specific, addiction-related functional impairment in the ability to manage funds, assignment of a payee could be applied as a punitive sanction for merely having an addictive disorder. The evidence of a general link between disability payments and substance use is too weak to conclude that everyone who meets diagnostic criteria for maladaptive substance use is incapable of managing benefits (3,16).

The term "mismanagement" is intended to connote impairment and is not meant to imply the need for assignment of a representative payee based on differing value judgments about how disability benefits should be spent. The requirement that the mismanagement of funds be linked to substance use is intended to prevent substance abusers from being assigned representative payees for practices that occur in recipients who do not have representative payees, such as the use of disability payments to pay for cable television or cigarettes.

The criterion emphasizes that the substance-induced mismanagement of funds must have significant, not just minor, functional effects. The terms "substantial harm," "victimization," and "basic needs" are meant to prevent the assignment of a representative payee to someone who although disabled with respect to employment, chooses to use substances and suffers no substantial harm. The requirement that substance-induced mismanagement of funds has significant effects is consistent with state statutes addressing the assignment of conservators and with the American Bar Association's guidelines for substitute decision making. The American Bar Association's definition of incapacity also stipulates that some harm is likely to occur due to the person's impaired decision making (11). Some state statutes require a nearly total inability to care for self or property, with the presumption that an inability to care for self or property will result in harm to the person if the state does not intervene.

Our research group is developing patient and clinician questionnaires to identify patients who meet this criterion for mismanagement of funds. These questionnaires operationalize mismanagement of funds by asking about specific examples such as running out of funds before the end of the month, being unable to afford basic necessities, and requiring hospitalization precipitated by substance abuse.

The third guideline, concerning availability of a representative payee whose efforts would increase the likelihood that the recipient's mismanagement of funds will be curtailed, is based on civil liberty concerns. Regardless of the severity of the beneficiary's substance use, curtailment of the freedom to spend one's funds as one chooses should be justified by some consequent benefit to the beneficiary (10). Such a criterion is especially important because thus far there is no empirical evidence that assignment of a representative payee, per se, is beneficial to recipients who misuse their funds as a result of an addictive disorder (17). An inept or inaccessible representative payee could restrict a recipient's access to funds with no offsetting benefit. Myriad flaws have been noted in the current system of assigning representative payees (18).

Conclusions

The decision to assign a representative payee raises many complex legal, ethical, and clinical questions. The proposed guidelines for identifying benefits recipients with comorbid substance use disorders who are incapable of managing their funds would enhance the likelihood that representative payeeship, with its profound impact on the recipient, would be available when appropriate and would be applied consistently and legally and to the appropriate recipients.

The authors are affiliated with the department of psychiatry at Yale University School of Medicine and with the Connecticut-Massachusetts Veterans Affairs Mental Illness Clinical Research and Education Center. Address correspondence to Dr. Rosen at the Department of Psychiatry (116A), Veterans Affairs Connecticut Healthcare System, 950 Campbell Avenue, West Haven, Connecticut 06516 (e-mail, [email protected]).