OCSE Revises Attachment Forms to Protect SSI Recipients

September 1, 2002

Author: Susan C. Antos

As part of its efforts to collect child support arrears, the Office of Child Support Enforcement (OCSE), the State’s IV-D agency, periodically runs bank matches, running the Social Security numbers of those with child support arrears against those with bank accounts.  The process, which identifies thousands of accounts on each run, results in the issuance of a restraining notice issued pursuant to CPLR 5222(b), forbidding the bank holding the account to transfer or pay out any of the funds in the account, regardless of the source of income in the account, until the child support debt is paid or until one year has passed.
 
The income of SSI recipients is exempt from income execution, or other “legal process,” even for the collection of child support.   42 U.S.C. 1383(d)(1) applies the same anti-attachment protections to SSI recipients as those provided to those in receipt of Social Security Disability under 42 U.S.C. 407 which states that “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...”  An exception to the anti-attachment provision exists “to enforce the obligation of the individual to provide child support,” but only when “the entitlement...is based upon remuneration from employment.”  42 U.S.C. 659(a).  Since SSI is not based upon remuneration from employment, it does not fall within the exception to the anti-assignment provision. See Reyes v. Gonzales, 22 S.W.3d 516, 519 (Texas Ct. of App. 2000) cert. denied Texas v. Reyes, 121 S. Ct. 2550, 69 USLW 3687 (6/25/01).
 
Thus, the bank match process proved troubling for SSI recipients, whose income is exempt.  Even if they were able to convince the bank to lift the restraining order, usually after long negotiations with local support collection unit attorneys, they were often stuck with processing fees and bank charges of up to $100, before the mess was straightened out. Even when banks were aware that the income consisted of SSI income (which they often are, because SSI is usually direct deposited), they felt they could not ignore the legal force of the restraining order.
 
The Legal Services Advisory Committee, a group of legal services attorneys who meet periodically with the Office of Temporary and Disability Assistance, brought this concern to our meeting about 10 months ago.  In response, the OCSE revised its form to allow banks to include special instructions, noting that if SSI is the sole basis for the property, the notice is not effective.  The notice contains a tear off form for the bank to return to notify the local support collection unit. (A copy of this notice is on GULP’s website — click “public benefits” and then “child support.”)
 
Many thanks to the receptive folks at the Office of Temporary and Disability Assistance, the parent agency of the OCSE, particularly, Eileen Stack and John Robitzek in the Office of Counsel, and Commissioner Brian Wing. 

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