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Overpayments - Statutes, Regulations and Rules

(Note: There are other relevant statutes, rules, and regs, but those compiled here are the most useful when dealing with overpayment issues. In addition, it should be noted that this page was last updated 12/7/99, and there may be changes to the law since that time.)

 

United States Code Title 42

404. Overpayments and underpayments

(a) Procedure for adjustment or recovery

(b) No recovery from persons without fault

(c) Nonliability of certifying and disbursing officers

(d) Payment to survivors or heirs when eligible person is deceased

(e) Adjustments due to supplemental security income payments

(f) Collection of delinquent amounts

(g) Recovery of overpayments

 

Code of Federal Regulations Title 20

404.501 General applicability of section 204 of the Act.

404.502 Overpayments.

404.502a Notice of right to waiver consideration.

404.504 Relation to provisions for reductions and increases.

404.506 When waiver may be applied and how to process the request.

404.507 Fault.

404.508 Defeat the purpose of Title II.

404.509 Against equity and good conscience; defined.

404.510a When an individual is "without fault" in an entitlement overpayment.

404.511 When an individual is at "fault" in a deduction overpayment.

404.512 When adjustment or recovery of an overpayment will be waived.

404.515 Collection and compromise of claims for overpayment.

404.520 Referral of overpayments to the Department of the Treasury for tax refund offset--General.

404.521 Notice to overpaid individual.

404.522 Review within SSA that an overpayment is past due and legally enforceable.

404.523 Findings by SSA.

 

Social Security Rulings

SSR 94-4p

NOTICE OF APPEAL AND WAIVER RIGHTS--RIGHT TO A PRE-RECOUPMENT ORAL HEARING BEFORE WAIVER CAN BE DENIED

 

AR 92-5(9)

Meaning of the Term "Against Equity and Good Conscience" in the Rules for Waiver of Recovery of an Overpayment--Titles II and XVI of the Social Security Act; Title IV of the Federal Mine Safety and Health Act of 1977.

 

SSR 88-6c

OVERPAYMENT-WITHOUT FAULT-WAIVER OF RECOVERY AND ADJUSTMENT

 

Hallex

HALLEX I-2-290

ISSUES AND EXAMPLES OF LANGUAGE WHICH MAY BE APPROPRIATE IN THE NOTICE OF HEARING

 

Program Operations Manual System

GN 02201.011 Prerecoupment Review

GN 02201.025 Overpayment - Reconsideration

GN 02201.050 Overpayment - Fraud Referral

GN 02210.006 Adjustment of Benefits Due the Overpaid Individual

GN 02210.007 Adjustment of Benefits Due Other Than the Overpaid Individual

GN 02210.220 Request for Waiver - $500 Tolerance - Actions

GN 02250.000 WAIVER PROVISIONS FOR TITLE II, TITLE XVIII AND BLACK LUNG OVERPAYMENTS

GN 02250.290 Development of Waiver of Recovery of Title XVIII Overpayments

GN 02250.310 Amount for Which Waiver Is Considered

GN 02250.330 Blanket Waiver for Dollar Down Rounding Overpayments

GN 02250.350 Waiver Under the $500 Tolerance

SI 02260.001 SSI Overpayment - Basic Requirements Concerning Waiver

SM 00610.721 Recovery of an Overpayment from Other than the Overpaid Person

 

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UNITED STATES CODE ANNOTATED

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 7--SOCIAL SECURITY

SUBCHAPTER II--FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE BENEFITS

 

Current through P.L. 106-38, approved 7-22-99

404. Overpayments and underpayments

 

(a) Procedure for adjustment or recovery

 

(1) Whenever the Commissioner of Social Security finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Commissioner of Social Security, as follows:

(A) With respect to payment to a person of more than the correct amount, the Commissioner of Social Security shall decrease any payment under this subchapter to which such overpaid person is entitled, or shall require such overpaid person or his estate to refund the amount in excess of the correct amount, or shall decrease any payment under this subchapter payable to his estate or to any other person on the basis of the wages and self-employment income which were the basis of the payments to such overpaid person, or shall obtain recovery by means of reduction in tax refunds based on notice to the Secretary of the Treasury as permitted under section 3720A of Title 31, or shall apply any combination of the foregoing. A payment made under this subchapter on the basis of an erroneous report of death by the Department of Defense of an individual in the line of duty while he is a member of the uniformed services (as defined in section 410(m) of this title) on active duty (as defined in section 410(l) of this title) shall not be considered an incorrect payment for any month prior to the month such Department notifies the Commissioner of Social Security that such individual is alive.

(B) With respect to payment to a person of less than the correct amount, the Commissioner of Social Security shall make payment of the balance of the amount due such underpaid person, or, if such person dies before payments are completed or before negotiating one or more checks representing correct payments, disposition of the amount due shall be made in accordance with subsection (d) of this section.

(2) Notwithstanding any other provision of this section, when any payment of more than the correct amount is made to or on behalf of an individual who has died, and such payment--

(A) is made by direct deposit to a financial institution;

(B) is credited by the financial institution to a joint account of the deceased individual and another person; and

(C) such other person was entitled to a monthly benefit on the basis of the same wages and self-employment income as the deceased individual for the month preceding the month in which the deceased individual died,

 

the amount of such payment in excess of the correct amount shall be treated as a payment of more than the correct amount to such other person.

 

(b) No recovery from persons without fault

 

In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience. In making for purposes of this subsection any determination of whether any individual is without fault, the Commissioner of Social Security shall specifically take into account any physical, mental, educational, or linguistic limitation such individual may have (including any lack of facility with the English language).

 

(c) Nonliability of certifying and disbursing officers

 

No certifying or disbursing officer shall be held liable for any amount certified or paid by him to any person where the adjustment or recovery of such amount is waived under subsection (b) of this section, or where adjustment under subsection (a) of this section is not completed prior to the death of all persons against whose benefits deductions are authorized.

 

(d) Payment to survivors or heirs when eligible person is deceased

 

If an individual dies before any payment due him under this subchapter is completed, payment of the amount due (including the amount of any unnegotiated checks) shall be made--

(1) to the person, if any, who is determined by the Commissioner of Social Security to be the surviving spouse of the deceased individual and who either (i) was living in the same household with the deceased at the time of his death or (ii) was, for the month in which the deceased individual died, entitled to a monthly benefit on the basis of the same wages and self-employment income as was the deceased individual;

(2) if there is no person who meets the requirements of paragraph (1), or if the person who meets such requirements dies before the payment due him under this subchapter is completed, to the child or children, if any, of the deceased individual who were, for the month in which the deceased individual died, entitled to monthly benefits on the basis of the same wages and self-employment income as was the deceased individual (and, in case there is more than one such child, in equal parts to each such child);

(3) if there is no person who meets the requirements of paragraph (1) or (2), or if each person who meets such requirements dies before the payment due him under this subchapter is completed, to the parent or parents, if any, of the deceased individual who were, for the month in which the deceased individual died, entitled to monthly benefits on the basis of the same wages and self-employment income as was the deceased individual (and, in case there is more than one such parent, in equal parts to each such parent);

(4) if there is no person who meets the requirements of paragraph (1), (2), or (3), or if each person who meets such requirements dies before the payment due him under this subchapter is completed, to the person, if any, determined by the Commissioner of Social Security to be the surviving spouse of the deceased individual;

(5) if there is no person who meets the requirements of paragraph (1), (2), (3), or (4), or if each person who meets such requirements dies before the payment due him under this subchapter is completed, to the person or persons, if any, determined by the Commissioner of Social Security to be the child or children of the deceased individual (and, in case there is more than one such child, in equal parts to each such child);

(6) if there is no person who meets the requirements of paragraph (1), (2), (3), (4), or (5), or if each person who meets such requirements dies before the payment due him under this subchapter is completed, to the parent or parents, if any, of the deceased individual (and, in case there is more than one such parent, in equal parts to each such parent); or

(7) if there is no person who meets the requirements of paragraph (1), (2), (3), (4), (5), or (6), or if each person who meets such requirements dies before the payment due him under this subchapter is completed, to the legal representative of the estate of the deceased individual, if any.

 

(e) Adjustments due to supplemental security income payments

 

For payments which are adjusted by reason of payment of benefits under the supplemental security income program established by subchapter XVI of this chapter, see section 1320a-6 of this title.

 

(f) Collection of delinquent amounts

 

(1) With respect to any deliquent > [FN1] amount, the Commissioner of Social Security may use the collection practices described in sections 3711(e), 3716, 3717, and 3718 of Title 31 and in section 5514 of Title 5, as in effect immediately after April 26, 1996.

(2) For purposes of paragraph (1), the term "delinquent amount" means an amount--

(A) in excess of the correct amount of payment under this title;

(B) paid to a person after such person has attained 18 years of age; and

(C) determined by the Commissioner of Social Security, under regulations, to be otherwise unrecoverable under this section after such person ceases to be a beneficiary under this title.

 

 

(g) Recovery of overpayments

 

For payments which are adjusted or withheld to recover an overpayment of supplemental security income benefits paid under subchapter XVI of this chapter [> 42 U.S.C.A. 1381 et seq.] (including State supplementary payments paid under an agreement pursuant to section 1382e(a) of this title or section 212(b) of Public Law 93-66), see section 1320b-17 of this title.

 

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CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.501 General applicability of section 204 of the Act.

 

(a) In general. Section 204 of the Act provides for adjustment as set forth in 404.502 and 404.503, in cases where an individual has received more or less than the correct payment due under title II of the Act. As used in this subpart, the term "overpayment" includes a payment in excess of the amount due under title II of the Act, a payment resulting from the failure to impose deductions or to suspend or reduce benefits under sections 203, 222(b), 224, and 228(c), and (d), and (e) of the Act (see Subpart E of this part), a payment pursuant to section 205(n) of the Act in an amount in excess of the amount to which the individual is entitled under section 202 or 223 of the Act, a payment resulting from the failure to terminate benefits, and a payment where no amount is payable under title II of the Act. The term "underpayment" as used in this subpart refers only to monthly insurance benefits and includes nonpayment where some amount of such benefits was payable. An underpayment may be in the form of an accrued unpaid benefit amount for which no check has been drawn or in the form of an unnegotiated check payable to a deceased individual. The provisions for adjustment also apply in cases where through error:

(1) A reduction required under section 202(j)(1), 202(k)(3), 203(a), or 205(n) of the Act is not made, or

(2) An increase or decrease required under section 202(d)(2), or 215 (f) or (g) of the Act is not made, or

(3) A deduction required under section 203(b)(as may be modified by the provisions of section 203(h)), 203(c), 203(d), 203(i), 222(b), or 223(a)(1)(D) of the Act or section 907 of the Social Security Amendments of 1939 is not made, or

(4) A suspension required under section 202(n) or 202(t) of the Act is not made, or

(5) A reduction under section 202(q) of the Act is not made, or

(6) A reduction, increase, deduction, or suspension is made which is either more or less than required, or

(7) A payment in excess of the amount due under title XVIII of the Act was made to or on behalf of an individual (see > 42 CFR 405.350-> 405.351) entitled to benefits under title II of the Act, or

(8) A payment of past due benefits is made to an individual and such payment had not been reduced by the amount of attorney's fees payable directly to an attorney under section 206 of the Act (see 404.977).

(9) A reduction under 404.408b is made which is either more or less than required.

(b) Payments made on the basis of an erroneous report of death. Any monthly benefit or lump sum paid under title II of the Act on the basis of an erroneous report by the Department of Defense of the death of an individual in the line of duty while such individual was a member of the uniformed services (as defined in section 210(m) of the Act) on active duty (as defined in section 210(l) of the Act) is deemed a correct payment for any month prior to the month such Department notifies the Administration that such individual is alive.

(c) Payments made by direct deposit to a financial institution. When a payment in excess of the amount due under title II of the Act is made by direct deposit to a financial institution to or on behalf of an individual who has died, and the financial institution credits the payment to a joint account of the deceased individual and another person who was entitled to a monthly benefit on the basis of the same earnings record as the deceased individual for the month before the month in which the deceased individual died, the amount of the payment in excess of the correct amount will be an overpayment to the other person.

 

[34 FR 14887, Sept. 27, 1969, as amended at 44 FR 34942, June 18, 1979; 47 FR 4988, Feb. 3, 1982; 48 FR 46149, Oct. 11, 1983; 55 FR 7313, March 1, 1990]

 

 

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CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.502 Overpayments.

 

Upon determination that an overpayment has been made, adjustments will be made against monthly benefits and lump sums as follows:

(a) Individual overpaid is living.

(1) If the individual to whom an overpayment was made is at the time of a determination of such overpayment entitled to a monthly benefit or a lump sum under title II of the Act, or at any time thereafter becomes so entitled, no benefit for any month and no lump sum is payable to such individual, except as provided in paragraphs (c) and (d) of this section, until an amount equal to the amount of the overpayment has been withheld or refunded. Such adjustments will be made against any monthly benefit or lump sum under title II of the Act to which such individual is entitled whether payable on the basis of such individual's earnings or the earnings of another individual.

(2) If any other individual is entitled to benefits for any month on the basis of the same earnings as the overpaid individual, except as adjustment is to be effected pursuant to paragraphs (c) and (d) of this section by withholding a part of the monthly benefit of either the overpaid individual or any other individual entitled to benefits on the basis of the same earnings, no benefit for any month will be paid on such earnings to such other individual until an amount equal to the amount of the overpayment has been withheld or refunded.

(b) Individual overpaid dies before adjustment. If an overpaid individual dies before adjustment is completed under the provisions of paragraph (a) of this section, no lump sum and no subsequent monthly benefit will be paid on the basis of earnings which were the basis of the overpayment to such deceased individual until full recovery of the overpayment has been effected, except as provided in paragraphs (c) and (d) of this section or under 404.515. Such recovery may be effected through:

(1) Payment by the estate of the deceased overpaid individual,

(2) Withholding of amounts due the estate of such individual under title II of the Act,

(3) Withholding a lump sum or monthly benefits due any other individual on the basis of the same earnings which were the basis of the overpayment to the deceased overpaid individual, or

(4) Any combination of the amount above.

(c) Adjustment by withholding part of a monthly benefit.

(1) Where it is determined that withholding the full amount each month would "defeat the purpose of title II," i.e., deprive the person of income required for ordinary and necessary living expenses (see 404.508), adjustment under paragraphs (a) and (b) of this section may be effected by withholding an amount of not less than $10 of the monthly benefit payable to an individual.

(2) Adjustment as provided by this paragraph will not be available if the overpayment was caused by the individual's intentional false statement or representation, or willful concealment of, or deliberate failure to furnish, material information. In such cases, recovery of the overpayment will be accomplished as provided in paragraph (a) of this section.

(d) Individual overpaid enrolled under supplementary insurance plan. Notwithstanding the provisions of paragraphs (a), (b), and (c) of this section, if the individual liable for the overpayment is an enrollee under Part B of title XVIII of the Act and the overpayment was not caused by such individual's intentional false statement or representation, or willful concealment of, or deliberate failure to furnish, material information, an amount of such individual's monthly benefit which is equal to his obligation for supplementary medical insurance premiums will be applied toward payment of such premiums, and the balance of the monthly benefit will be applied toward recovery of the overpayment. Further adjustment with respect to such balance may be made if the enrollee so requests and meets the conditions of paragraph (c) of this section.

 

[35 FR 5943, Apr. 10, 1970, as amended at 43 FR 31318, July 21, 1978; 44 FR 20653, Apr. 6, 1979]

 

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CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

404.502a Notice of right to waiver consideration.

 

Whenever an initial determination is made that more than the correct amount of payment has been made, and we seek adjustment or recovery of the overpayment, the individual from whom we are seeking adjustment or recovery is immediately notified. The notice includes:

(a) The overpayment amount and how and when it occurred;

(b) A request for full, immediate refund, unless the overpayment can be withheld from the next month's benefit;

(c) The proposed adjustment of benefits if refund is not received within 30 days after the date of the notice and adjustment of benefits is available;

(d) An explanation of the availability of a different rate of withholding when full withholding is proposed, installment payments when refund is requested and adjustment is not currently available, and/or cross-program recovery when refund is requested and the individual is receiving another type of payment from SSA (language about cross-program recovery is not included in notices sent to individuals in jurisdictions where this recovery option is not available);

(e) An explanation of the right to request waiver of adjustment or recovery and the automatic scheduling of a file review and pre-recoupment hearing (commonly referred to as a personal conference) if a request for waiver cannot be approved after initial paper review;

(f) An explanation of the right to request reconsideration of the fact and/or amount of the overpayment determination;

(g) Instructions about the availability of forms for requesting reconsideration and waiver;

(h) An explanation that if the individual does not request waiver or reconsideration within 30 days of the date of the overpayment notice, adjustment or recovery of the overpayment will begin;

(i) A statement that an SSA office will help the individual complete and submit forms for appeal or waiver requests; and

(j) A statement that the individual receiving the notice should notify SSA promptly if reconsideration, waiver, a lesser rate of withholding, repayment by installments or cross-program adjustment is wanted.

 

[37 FR 10554, May 25, 1972; 61 FR 56131, Oct. 31, 1996]

 

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CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.504 Relation to provisions for reductions and increases.

 

The amount of an overpayment or underpayment is the difference between the amount paid to the beneficiary and the amount of the payment to which the beneficiary was actually entitled. Such payment, for example, would be equal to the difference between the amount of a benefit in fact paid to the beneficiary and the amount of such benefit as reduced under section 202(j)(1), 202(k)(3), 203(a), or 224(a), or as increased under section 202(d)(2), 202(m), or 215(f) and (g). In effecting an adjustment with respect to an overpayment, no amount can be considered as having been withheld from a particular benefit which is in excess of the amount of such benefit as so decreased.

 

[34 FR 14888, Sept. 27, 1969]

 

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CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.506 When waiver may be applied and how to process the request.

 

(a) Section 204(b) of the Act provides that there shall be no adjustment or recovery in any case where an overpayment under title II has been made to an individual who is without fault if adjustment or recovery would either defeat the purpose of title II of the Act, or be against equity and good conscience.

(b) If an individual requests waiver of adjustment or recovery of a title II overpayment within 30 days after receiving a notice of overpayment that contains the information in 404.502a, no adjustment or recovery action will be taken until after the initial waiver determination is made. If the individual requests waiver more than 30 days after receiving the notice of overpayment, SSA will stop any adjustment or recovery actions until after the initial waiver determination is made.

(c) When waiver is requested, the individual gives SSA information to support his/her contention that he/she is without fault in causing the overpayment (see 404.507) and that adjustment or recovery would either defeat the purpose of title II of the Act (see 404.508) or be against equity and good conscience (see 404.509). That information, along with supporting documentation, is reviewed to determine if waiver can be approved. If waiver cannot be approved after this review, the individual is notified in writing and given the dates, times and place of the file review and personal conference; the procedure for reviewing the claims file prior to the personal conference; the procedure for seeking a change in the scheduled dates, times, and/or place; and all other information necessary to fully inform the individual about the personal conference. The file review is always scheduled at least 5 days before the personal conference.

(d) At the file review, the individual and the individual's representative have the right to review the claims file and applicable law and regulations with the decisionmaker or another SSA representative who is prepared to answer questions. We will provide copies of material related to the overpayment and/or waiver from the claims file or pertinent sections of the law or regulations that are requested by the individual or the individual's representative.

(e) At the personal conference, the individual is given the opportunity to:

(1) Appear personally, testify, cross-examine any witnesses, and make arguments;

(2) Be represented by an attorney or other representative (see 404.1700), although the individual must be present at the conference; and

(3) Submit documents for consideration by the decisionmaker.

(f) At the personal conference, the decisionmaker:

(1) Tells the individual that the decisionmaker was not previously involved in the issue under review, that the waiver decision is solely the decisionmaker's, and that the waiver decision is based only on the evidence or information presented or reviewed at the conference;

(2) Ascertains the role and identity of everyone present;

(3) Indicates whether or not the individual reviewed the claims file;

(4) Explains the provisions of law and regulations applicable to the issue;

(5) Briefly summarizes the evidence already in file which will be considered;

(6) Ascertains from the individual whether the information presented is correct and whether he/she fully understands it;

(7) Allows the individual and the individual's representative, if any, to present the individual's case;

(8) Secures updated financial information and verification, if necessary;

(9) Allows each witness to present information and allows the individual and the individual's representative to question each witness;

(10) Ascertains whether there is any further evidence to be presented;

(11) Reminds the individual of any evidence promised by the individual which has not been presented;

(12) Lets the individual and the individual's representative, if any, present any proposed summary or closing statement;

(13) Explains that a decision will be made and the individual will be notified in writing; and

(14) Explains repayment options and further appeal rights in the event the decision is adverse to the individual.

(g) SSA issues a written decision to the individual (and his/her representative, if any) specifying the findings of fact and conclusions in support of the decision to approve or deny waiver and advising of the individual's right to appeal the decision. If waiver is denied, adjustment or recovery of the overpayment begins even if the individual appeals.

(h) If it appears that the waiver cannot be approved, and the individual declines a personal conference or fails to appear for a second scheduled personal conference, a decision regarding the waiver will be made based on the written evidence of record. Reconsideration is then the next step in the appeals process (but see 404.930(a)(7)).

 

[32 FR 18026, Dec. 16, 1967; 61 FR 56131, Oct. 31, 1996]

 

 

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CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.507 Fault.

 

"Fault" as used in "without fault" (see 404.506 and > 42 CFR 405.355) applies only to the individual. Although the Administration may have been at fault in making the overpayment, that fact does not relieve the overpaid individual or any other individual from whom the Administration seeks to recover the overpayment from liability for repayment if such individual is not without fault. In determining whether an individual is at fault, the Social Security Administration will consider all pertinent circumstances, including the individual's age and intelligence, and any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) the individual has. What constitutes fault (except for "deduction overpayments"--see 404.510) on the part of the overpaid individual or on the part of any other individual from whom the Administration seeks to recover the overpayment depends upon whether the facts show that the incorrect payment to the individual or to a provider of services or other person, or an incorrect payment made under section 1814(e) of the Act, resulted from:

(a) An incorrect statement made by the individual which he knew or should have known to be incorrect; or

(b) Failure to furnish information which he knew or should have known to be material; or

(c) With respect to the overpaid individual only, acceptance of a payment which he either knew or could have been expected to know was incorrect.

 

[34 FR 14888, Sept. 27, 1969; 34 FR 15646, Oct. 9, 1969; as amended at 44 FR 34942, June 18, 1979; 59 FR 1634, Jan. 12, 1994]

 

 

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CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.508 Defeat the purpose of Title II.

 

(a) General. "Defeat the purpose of title II," for purposes of this subpart, means defeat the purpose of benefits under this title, i.e., to deprive a person of income required for ordinary and necessary living expenses. This depends upon whether the person has an income or financial resources sufficient for more than ordinary and necessary needs, or is dependent upon all of his current benefits for such needs. An individual's ordinary and necessary expenses include:

(1) Fixed living expenses, such as food and clothing, rent, mortgage payments, utilities, maintenance, insurance (e.g., life, accident, and health insurance including premiums for supplementary medical insurance benefits under title XVIII), taxes, installment payments, etc.;

(2) Medical, hospitalization, and other similar expenses;

(3) Expenses for the support of others for whom the individual is legally responsible; and

(4) Other miscellaneous expenses which may reasonably be considered as part of the individual's standard of living.

(b) When adjustment or recovery will defeat the purpose of title II. Adjustment or recovery will defeat the purposes of title II in (but is not limited to) situations where the person from whom recovery is sought needs substantially all of his current income (including social security monthly benefits) to meet current ordinary and necessary living expenses.

 

[32 FR 18026, Dec. 16, 1967, as amended at 34 FR 14888, Sept. 27, 1969]

 

 

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CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.509 Against equity and good conscience; defined.

 

(a) Recovery of an overpayment is "against equity and good conscience" (under title II and title XVIII) if an individual--

(1) Changed his or her position for the worse (Example 1) or relinquished a valuable right (Example 2) because of reliance upon a notice that a payment would be made or because of the overpayment itself; or

(2) Was living in a separate household from the overpaid person at the time of the overpayment and did not receive the overpayment (Examples 3 and 4).

(b) The individual's financial circumstances are not material to a finding of "against equity and good conscience."

 

Example 1. A widow, having been awarded benefits for herself and daughter, entered her daughter in private school because the monthly benefits made this possible. After the widow and her daughter received payments for almost a year, the deceased worker was found to be not insured and all payments to the widow and child were incorrect. The widow has no other funds with which to pay the daughter's private school expenses. Having entered the daughter in private school and thus incurred a financial obligation toward which the benefits had been applied, she was in a worse position financially than if she and her daughter had never been entitled to benefits. In this situation, the recovery of the payments would be "against equity and good conscience."

 

Example 2. After being awarded old-age insurance benefits, an individual resigned from employment on the assumption he would receive regular monthly benefit payments. It was discovered 3 years later that (due to a Social Security Administration error) his award was erroneous because he did not have the required insured status. Due to his age, the individual was unable to get his job back and could not get any other employment. In this situation, recovery of the overpayments would be "against equity and good conscience" because the individual gave up a valuable right.

 

 

Example 3. M divorced K and married L. M died a few years later. When K files for benefits as a surviving divorced wife, she learns that L had been overpaid $3,200 on M's earnings record. Because K and L are both entitled to benefits on M's record of earnings and we could not recover the overpayment from L, we sought recovery from K. K was living in a separate household from L at the time of the overpayment and did not receive the overpayment. K requests waiver of recovery of the $3,200 overpayment from benefits due her as a surviving divorced wife of M. In this situation, it would be "against equity and good conscience" to recover the overpayment from K.

 

Example 4. G filed for and was awarded benefits. His daughter, T, also filed for student benefits on G's earnings record. Since T was an independent, full-time student living in another State, she filed for benefits on her own behalf. Later, after T received 12 monthly benefits, the school reported that T had been a full-time student only 2 months and had withdrawn from school. Since T was overpaid 10 monthly benefits, she was requested to return the overpayment to SSA. T did not return the overpayment and further attempts to collect the overpayment were unsuccessful. G was asked to repay the overpayment because he was receiving benefits on the same earnings record. G requested waiver. To support his waiver request G established that he was not at fault in causing the overpayment because he did not know that T was receiving benefits. Since G is without fault and, in addition, meets the requirements of not living in the same household at the time of the overpayment and did not receive the overpayment, it would be "against equity and good conscience" to recover the overpayment from G.

 

[27 FR 1162, Feb. 8, 1962, as amended at 28 FR 14492, Dec. 31, 1963; 32 FR 18026, Dec. 16, 1967; 43 FR 31318, July 21, 1978; 44 FR 20653, Apr. 6, 1979; 53 FR 25483, July 7, 1988]

 

=======================================================

CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.510a When an individual is "without fault" in an entitlement overpayment.

 

A benefit payment under title II or title XVIII of the Act to or on behalf of an individual who fails to meet one or more requirements for entitlement to such payment or a benefit payment exceeding the amount to which he is entitled, constitutes an entitlement overpayment. Where an individual or other person on behalf of an individual accepts such overpayment because of reliance on erroneous information from an official source within the Social Security Administration (or other governmental agency which the individual had reasonable cause to believe was connected with the administration of benefits under title II or title XVIII of the Act) with respect to the interpretation of a pertinent provision of the Social Security Act or regulations pertaining thereto, or where an individual or other person on behalf of an individual is overpaid as a result of the adjustment upward (under the family maximum provision in section 203 of the Act) of the benefits of such individual at the time of the proper termination of one or more beneficiaries on the same social security record and the subsequent reduction of the benefits of such individual caused by the reentitlement of the terminated beneficiary(ies) pursuant to a change in a provision of the law, such individual, in accepting such overpayment, will be deemed to be "without fault." For purposes of this section "governmental agency" includes intermediaries and carriers under contract pursuant to sections 1816 and 1842 of the Act.

 

[39 FR 43716, Dec. 18, 1974]

 

 

======================================================

CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.511 When an individual is at "fault" in a deduction overpayment.

 

(a) Degree of care. An individual will not be "without fault" if the Administration has evidence in its possession which shows either a lack of good faith or failure to exercise a high degree of care in determining whether circumstances which may cause deductions from his benefits should be brought to the attention of the Administration by an immediate report or by return of a benefit check. The high degree of care expected of an individual may vary with the complexity of the circumstances giving rise to the overpayment and the capacity of the particular payee to realize that he is being overpaid. Accordingly, variances in the personal circumstances and situations of individual payees are to be considered in determining whether the necessary degree of care has been exercised by an individual to warrant a finding that he was without fault in accepting a "deduction overpayment."

(b) Subsequent deduction overpayments. The Social Security Administration generally will not find an individual to be without fault where, after having been exonerated for a "deduction overpayment" and after having been advised of the correct interpretation of the deduction provision, the individual incurs another "deduction overpayment" under the same circumstances as the first overpayment. However, in determining whether the individual is without fault, the Social Security Administration will consider all of the pertinent circumstances surrounding the prior and subsequent "deduction overpayments," including any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which the individual may have.

 

[16 FR 13054, Dec. 28, 1951; 59 FR 1634, Jan. 12, 1994]

 

======================================================

CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.512 When adjustment or recovery of an overpayment will be waived.

 

(a) Adjustment or recovery deemed "against equity and good conscience." In the situations described in 404.510(a), (b), and (c), and 404.510a, adjustment or recovery will be waived since it will be deemed such adjustment or recovery is "against equity and good conscience." Adjustment or recovery will also be deemed "against equity and good conscience" in the situation described in 404.510(e), but only as to a month in which the individual's earnings from wages do not exceed the total monthly benefits affected for that month.

(b) Adjustment or recovery considered to "defeat the purpose of title II" or be "against equity and good conscience" under certain circumstances. In the situation described in 404.510(e)(except in the case of an individual whose monthly earnings from wages in employment do not exceed the total monthly benefits affected for a particular month), and in the situations described in 404.510(f) through (n), adjustment or recovery shall be waived only where the evidence establishes that adjustment or recovery would work a financial hardship (see 404.508) or would otherwise be inequitable (see 404.509).

 

[27 FR 1163, Feb. 8, 1962, as amended at 35 FR 6321, Apr. 18, 1970; 36 FR 23361, Dec. 9, 1971]

 

 

==========================================================

CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.515 Collection and compromise of claims for overpayment.

 

(a) General effect of the Federal Claims Collection Act of 1966. Claims by the Administration against an individual for recovery of overpayments under title II or title XVIII (not including title XVIII overpayments for which refund is requested from providers, physicians, or other suppliers of services) of the Act, not exceeding the sum of $20,000, exclusive of interest, may be compromised, or collection suspended or terminated where such individual or his estate does not have the present or prospective ability to pay the full amount of the claim within a reasonable time (see paragraph (c) of this section) or the cost of collection is likely to exceed the amount of recovery (see paragraph (d) of this section) except as provided under paragraph (b) of this section.

(b) When there will be no compromise, suspension or termination of collection of a claim for overpayment--

(1) Overpaid individual alive. In any case where the overpaid individual is alive, a claim for overpayment will not be compromised, nor will there be suspension or termination of collection of the claim by the Administration if there is an indication of fraud, the filing of a false claim, or misrepresentation on the part of such individual or on the part of any other party having an interest in the claim.

(2) Overpaid individual deceased. In any case where the overpaid individual is deceased (i) a claim for overpayment in excess of $5,000 will not be compromised, nor will there be suspension or termination of collection of the claim by the Administration if there is an indication of fraud; the filing of a false claim, or misrepresentation on the part of such deceased individual, and (ii) a claim for overpayment regardless of the amount will not be compromised, nor will there be suspension or termination of collection of the claim by the Administration if there is an indication that any person other than the deceased overpaid individual had a part in the fraudulent action which resulted in the overpayment.

(c) Inability to pay claim for recovery of overpayment. In determining whether the overpaid individual is unable to pay a claim for recovery of an overpayment under title II or title XVIII of the Act, the Administration will consider such individual's age, health, present and potential income (including inheritance prospects), assets (e.g., real property, savings account), possible concealment or improper transfer of assets, and assets or income of such individual which may be available in enforced collection proceedings. The Administration will also consider exemptions available to such individual under the pertinent State or Federal law in such proceedings. In the event the overpaid individual is deceased, the Administration will consider the available assets of the estate, taking into account any liens or superior claims against the estate.

(d) Cost of collection or litigative probabilities. Where the probable costs of recovering an overpayment under title II or title XVIII of the Act would not justify enforced collection proceedings for the full amount of the claim or there is doubt concerning the Administration's ability to establish its claim as well as the time which it will take to effect such collection, a compromise or settlement for less than the full amount will be considered.

(e) Amount of compromise. The amount to be accepted in compromise of a claim for overpayment under title II or title XVIII of the Act shall bear a reasonable relationship to the amount which can be recovered by enforced collection proceedings giving due consideration to the exemptions available to the overpaid individual under State or Federal law and the time which such collection will take.

(f) Payment. Payment of the amount which the Administration has agreed to accept as a compromise in full settlement of a claim for recovery of an overpayment under title II or title XVIII of the Act must be made within the time and in the manner set by the Administration. A claim for such recovery of the overpayment shall not be considered compromised or settled until the full payment of the compromised amount has been made within the time and manner set by the Administration. Failure of the overpaid individual or his estate to make such payment as provided shall result in reinstatement of the full amount of the overpayment less any amounts paid prior to such default.

 

[34 FR 14889, Sept. 27, 1969; 34 FR 15413, Oct. 3, 1969]

 

=======================================================

CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.520 Referral of overpayments to the Department of the Treasury for tax refund offset--General.

 

(a) The standards we will apply and the procedures we will follow before requesting the Department of the Treasury to offset income tax refunds due taxpayers who have an outstanding overpayment are set forth in 404.520 through 404.526. These standards and procedures are authorized by > 31 U.S.C. 3720A and are implemented through Department of the Treasury regulations at > 31 CFR 285.2.

(b) We will use the Department of the Treasury tax refund offset procedure to collect overpayments that are certain in amount, past due and legally enforceable, and eligible for tax refund offset under regulations issued by the Department of the Treasury. We will use these procedures to collect overpayments only from individuals who are not currently entitled to monthly Social Security benefits under title II of the Act. We will refer an overpayment to the Department of the Treasury for offset against tax refunds no later than 10 years after our right to collect the overpayment first accrued.

 

[56 FR 52468, Oct. 21, 1991; 62 FR 38450, July 18, 1997; 62 FR 64277, Dec. 5, 1997]

=========================================================

CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.521 Notice to overpaid individual.

 

A request for reduction of a Federal income tax refund will be made only after we determine that an amount is owed and past due and send the overpaid individual written notice. Our notice of intent to collect an overpayment through tax refund offset will state:

(a) The amount of the overpayment;

(b) That unless, within 60 calendar days from the date of our notice, the overpaid individual repays the overpayment, sends evidence to us at the address given in our notice that the overpayment is not past due or not legally enforceable, or asks us to waive collection of the overpayment under section 204(b) of the Act, we intend to seek collection of the overpayment by requesting that the Department of the Treasury reduce any amounts payable to the overpaid individual as refunds of Federal income taxes by an amount equal to the amount of the overpayment;

(c) The conditions under which we will waive recovery of an overpayment under section 204(b) of the Act;

(d) That we will review any evidence presented that the overpayment is not past due or not legally enforceable;

(e) That the overpaid individual has the right to inspect and copy our records related to the overpayment as determined by us and will be informed as to where and when the inspection and copying can be done after we receive notice from the overpaid individual that inspection and copying are requested.

 

[56 FR 52468, Oct. 21, 1991; 62 FR 64278, Dec. 5, 1997]

 

 

 

========================================================

CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.522 Review within SSA that an overpayment is past due and legally enforceable.

 

(a) Notification by overpaid individual. An overpaid individual who receives a notice as described in 404.521 has the right to present evidence that all or part of the overpayment is not past due or not legally enforceable. To exercise this right, the individual must notify us and present evidence regarding the overpayment within 60 calendar days from the date of our notice.

(b) Submission of evidence. The overpaid individual may submit evidence showing that all or part of the debt is not past due or not legally enforceable as provided in paragraph (a) of this section. Failure to submit the notification and evidence within 60 calendar days will result in referral of the overpayment to the Department of the Treasury, unless the overpaid individual, within this 60-day time period, has asked us to waive collection of the overpayment under section 204(b) of the Act and we have not yet determined whether we can grant the waiver request. If the overpaid individual asks us to waive collection of the overpayment, we may ask that evidence to support the request be submitted to us.

(c) Review of the evidence. After a timely submission of evidence by the overpaid individual, we will consider all available evidence related to the overpayment. If the overpaid individual has not requested a waiver we will make findings based on a review of the written record, unless we determine that the question of indebtedness cannot be resolved by a review of the documentary evidence. If the overpaid individual has asked us to make a waiver determination and our records do not show that after an oral hearing we had previously determined that he was at "fault" in accepting the overpayment, we will not deny the waiver request without first scheduling an oral hearing.

 

[56 FR 52469, Oct. 21, 1991; 62 FR 64278, Dec. 5, 1997]

 

 

 

=========================================================

 

CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER III--SOCIAL SECURITY ADMINISTRATION

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

SUBPART F--OVERPAYMENTS, UNDERPAYMENTS, WAIVER OF ADJUSTMENT OR RECOVERY OF OVERPAYMENTS, AND LIABILITY OF A CERTIFYING OFFICER

 

Current through September 7, 1999; 64 FR 48567

 

404.523 Findings by SSA.

 

(a) Following the hearing or a review of the record, we will issue written findings which include supporting rationale for the findings. Issuance of these findings concerning whether the overpayment or part of the overpayment is past due and legally enforceable is the final Agency action with respect to the past-due status and enforceability of the overpayment. If we make a determination that a waiver request cannot be granted, we will issue a written notice of this determination in accordance with the regulations in subpart J of this part. Our referral of the overpayment to the Department of the Treasury will not be suspended under 404.525 pending any further administrative review of the waiver request that the individual may seek.

(b) Copies of the findings described in paragraph (a) of this section will be distributed to the overpaid individual and the overpaid individual's attorney or other representative, if any.

(c) If the findings referred to in paragraph (a) of this section affirm that all or part of the overpayment is past due and legally enforceable and, if waiver is requested, we determine that the request cannot be granted, we will refer the overpayment to the Department of the Treasury. No referral will be made to the Department of the Treasury if, based on our review of the overpayment, we reverse our prior finding that the overpayment is past due and legally enforceable or, upon consideration of a waiver request, we determine that waiver of our collection of the overpayment is appropriate.

 

[56 FR 52469, Oct. 21, 1991; 62 FR 64278, Dec. 5, 1997]

 

====================================================

 

 

Social Security Ruling

 

NOTICE OF APPEAL AND WAIVER RIGHTS--RIGHT TO A PRE-RECOUPMENT ORAL HEARING BEFORE WAIVER CAN BE DENIED

SSR 94-4p

1994

 

TITLE II OF THE SOCIAL SECURITY ACT AND TITLE IV OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977: WAIVER OF RECOVERY OF OVERPAYMENTS

 

POLICY INTERPRETATION RULING

 

Purpose: To state the longstanding Social Security Administration (SSA) policy of:

 

-> Giving adequate written notice of a determination of overpayment and the right to contest such determination and request waiver of recovery of the overpayment; and

 

-> Providing the person from whom we are seeking recovery of an overpayment with the opportunity for a face-to-face oral hearing before we deny a request for waiver of recovery of the overpayment.

 

The policy is based on the court decisions and orders discussed below.

 

Citations (Authority): Section 204(a) and (b) of the Social Security Act, as amended, and Title IV of the Federal Mine Safety and Health Act of 1977; > 20 CFR sections 404.502a, > 404.506, 404.904, 410.561, 410.561a, and 410.620.

 

Pertinent History: On October 22, 1974, the U.S. District Court for the Western District of Washington in Buffington et al. v. Weinberger, No. 734-73C2 (W.D.Wash. October 22, 1974) stopped SSA from recovering overpaid Social Security benefits without giving each member of the plaintiff class adequate written notice of the overpayment determination, the right to contest such determination and the right to a pre-recoupment hearing. Moreover, the court stopped SSA from taking any action to recover the overpayments before affording the class member the opportunity for a hearing.

 

The court ordered that the written notice must include:

 

-> A statement of the alleged overpayment, an explanation of the basis for the overpayment and SSA's proposed action to recover the overpayment;

 

-> A statement of the individual's right to a pre-recoupment hearing;

 

-> Instructions and forms for requesting a pre-recoupment hearing;

 

-> An explanation that if the person did not request a pre-recoupment hearing within 30 days of the date of mailing of the overpayment notice, it would be presumed that the person waived his/her right to the hearing and recovery of the alleged overpayment would begin;

 

-> A statement of any other administrative relief available (i.e., reconsideration of the fact and/or amount of overpayment and waiver of recovery of the overpayment); and

 

-> A statement that the local SSA office would help him/her to complete and submit forms for appeal.

 

The court also ordered the following:

 

1. SSA had to restore all benefits withheld from the named plaintiffs pending an opportunity for a pre-recoupment hearing. The person had to be given the opportunity to examine his/her claims file at least 5 days prior to the date of the hearing.

 

2. The pre-recoupment hearing had to be conducted by an SSA employee who had no prior knowledge of the events leading to the overpayment determination and the decision to recover the overpayment. At the hearing the person requesting waiver had to be given the opportunity to:

 

-> Personally appear, testify, and cross-examine any witnesses;

 

-> Be represented by an attorney or other representative; and

 

-> Submit documents for consideration at the hearing.

 

The court, however, did not require that a transcript be made of the hearing.

 

3. After the hearing, SSA had to issue a written decision to the individual (and his/her representative, if any) specifying the findings of fact and conclusions in support of the decision to approve or deny waiver and advising of the individual's right to appeal the decision.

 

In accordance with the court order, SSA began to issue overpayment notices containing all of the aforementioned information and to offer pre-recoupment hearings to all class members.

 

On June 20, 1979, the Supreme Court held in > Califano v. Yamasaki, 442 U.S. 682 (1979), that individuals who filed a written request for waiver were entitled to the opportunity for a pre-recoupment oral hearing, but those who requested only reconsideration were not so entitled. Thereafter, SSA applied its revised overpayment notice and pre-recoupment hearing procedures to all individuals who are determined to be overpaid under the title II or Black Lung programs.

 

On July 31, 1981, the court in Buffington, et al. v. Schweiker, No 734-73C2 (W.D.Wash.) required SSA to automatically schedule pre-recoupment hearings for persons whose request for waiver of overpayment recovery could not be approved after initial paper review. On February 10, 1983, the court in Buffington, et al. v. Schweiker, No 734-73C2 (W.D.Wash.) approved procedures developed by SSA in response to the 1981 decree whereby pre-recoupment hearings would be automatically scheduled provided that the scheduling would be in writing. The scheduling letter had to contain all the necessary information about the date, time, and place of the hearing; the procedure for reviewing the file prior to the hearing; the procedure for seeking a change in the scheduled date, time, or place; and all other information necessary to fully inform the claimant about the pre-recoupment hearing. SSA began to automatically schedule pre-recoupment hearings in writing in April 1983.

 

In its order of October 19, 1987, the court in Buffington, et al. v. Bowen, No. 734-73C2 (W.D.Wash.) approved SSA's plan to transfer waiver decisionmaking authority from the processing centers to the field offices for Retirement and Survivors Insurance overpayments. SSA implemented this change in July 1988.

 

Policy Interpretation:

 

Overpayment Notice

 

In accordance with the court decisions, when an overpayment is discovered, the person is immediately notified. The notice includes:

 

-> The overpayment amount and how and when it occurred;

 

-> A request for full, immediate refund, unless the overpayment can be withheld from the next month's benefit;

 

-> The proposed adjustment of benefits if refund is not received within 30 days after the date of the notice and adjustment of benefits is available;

 

-> An explanation of the availability of a different rate of withholding when full withholding is proposed, installment payments when refund is requested and adjustment is not currently available, and/or cross-program recovery when refund is requested and the person is receiving another type of benefit from SSA (cross-program recovery is not available to residents of New York and Pennsylvania);

 

-> An explanation of the right to request waiver of recovery and the automatic scheduling of a folder review and pre-recoupment hearing (commonly referred to as a personal conference) if a request for waiver cannot be approved after initial paper review;

 

-> Instructions about the availability of forms for requesting reconsideration and waiver;

 

-> An explanation that if the person does not request waiver or reconsideration within 30 days of the date of the overpayment notice, recovery of the overpayment will begin;

 

-> An explanation of the right to request reconsideration of the overpayment determination;

 

-> A statement that the local SSA office will help him/her to complete and submit forms for appeal; and

 

-> An explanation that the person receiving the notice should notify SSA promptly if reconsideration, waiver, a lesser rate of withholding, repayment by installments, or cross-program adjustment is wanted.

 

Form SSA-3105

 

Form SSA-3105 (Important Information About Your Appeal and Waiver Rights) is included with each overpayment notice. The SSA-3105 further explains the pre-recoupment review process and contains a tear-off form which the person may complete and return to SSA if he/she wants reconsideration and/or waiver.

 

Delaying Recovery of the Overpayment

 

To ensure meaningful opportunity to contest the correctness of an overpayment determination and/or establish entitlement to waiver, the date on which full refund is due and, if appropriate, the date on which adjustment will begin must be at least 30 days after the date of the overpayment notice. If the individual responds within 30 days after the date of the overpayment notice, SSA must take action to ensure that benefit payments are not interrupted. If the 30-day period cannot be assured, SSA must postpone any proposed recoupment for a longer period. Anytime waiver is requested, SSA stops recovery.

 

Requesting Waiver

 

When waiver is requested, the individual gives SSA information (usually on Form SSA-632-BK (Request for Waiver of Overpayment Recovery or Change in Repayment Rate)) to support his/her contention that he/she is without fault in causing the overpayment and that recovery would either cause financial hardship or be inequitable. That information, along with supporting documentation, is reviewed to determine if waiver can be approved.

 

Reviewing Waiver Request

 

In Retirement and Survivors Insurance overpayments, the waiver request is reviewed in the field office; in Disability Insurance overpayments, it is reviewed in the processing center. If waiver cannot be approved after review of the claims folder, the person is notified in writing and given necessary information about the dates, times, and place of the folder review and personal conference; the procedure for reviewing the claims folder prior to the personal conference; the procedure for seeking a change in the scheduled dates, times, or place; and all other information necessary to fully inform the person about the personal conference. The folder review is always scheduled at least 5 days before the personal conference.

 

Folder Review

 

At the folder review, the person and/or the person's representative has the right to review the claims folder and applicable law and regulations with the decisionmaker or another SSA representative who is prepared to answer questions. The individual can get copies of any requested material from the claims folder or pertinent sections of the law or regulations.

 

 

Personal Conference

 

At the personal conference, the person is given the opportunity to:

 

-> Personally appear, testify, cross-examine any witnesses, and make arguments;

 

-> Be represented by an attorney or other representative; and

 

-> Submit documents for consideration by the decisionmaker.

 

The decisionmaker:

 

-> Tells the person that the decisionmaker was not previously involved in the issue under review, that the waiver decision is solely the decisionmaker's, and that the waiver decision is based only on the evidence or information presented or reviewed at the conference;

 

-> Ascertains the role and identity of everyone present;

 

-> Indicates whether or not the person reviewed the claims file;

 

-> Explains the provisions of law and regulations applicable to the issue;

 

-> Briefly summarizes the evidence already in file which will be considered;

 

-> Ascertains from the person whether the information presented is correct and whether he/she fully understands it;

 

-> Allows the person and the person's representative, if any, to present the person's case;

 

-> Secures updated financial information, if necessary;

 

-> Allows each witness to present information and allows the person and the person's representative, if any, to question the witness;

 

-> Ascertains whether there is any further evidence to be presented;

 

-> Reminds the person of any evidence promised by the person which has not been presented;

 

-> Lets the person and the person's representative, if any, present any final summary or closing statement;

 

-> Explains that a decision will be made and the person will be notified in writing; and

 

-> Explains further appeal rights in the event the decision is adverse to the person.

 

Personal Conference Decision

 

SSA issues a written decision to the individual (and his/her representative, if any) specifying the findings of fact and conclusions in support of the decision to approve or deny waiver and advising of the individual's right to appeal the decision.

 

Effective Date: This Ruling is effective upon publication in the Federal Register.

 

Cross References: Program Operations Manual System, Part 02, Chapter 022, Subchapter 01, Sections 009, 011, 021, and 023; Subchapter 50, Sections 301, 302, 370, and 390; Subchapter 70, Sections 003-017; SSR > 79-30c, Recovery of Overpayment--Prerecoupment Oral Hearings.

 

Social Security Administration

Department of Health and Human Services

=====================================

 

Acquiescence Ruling

 

Meaning of the Term "Against Equity and Good Conscience" in the Rules for Waiver of Recovery of an Overpayment--Titles II and XVI of the Social Security Act; Title IV of the Federal Mine Safety and Health Act of 1977. > (FN1)

AR 92-5(9)

June 22, 1992

 

Quinlivan v. Sullivan, > 916 F.2d 524 (9th Cir.1990)

 

ISSUE: Whether the Secretary may find that recovery of an overpayment is "against equity and good conscience" only under the specific circumstances set forth in the regulations.

 

STATUTE/REGULATION/RULING CITATION: Sections 204(b) and 1631(b)(1)(B) of the Social Security Act (> 42 U.S.C. 404(b) and 1383(b)(1)(B)), > 20 CFR 404.506, 404.509, 410.561a, 410.561d, 416.550, and 416.554; Section 413(b) of the Federal Mine Safety and Health Act of 1977 (> 30 U.S.C. 923(b)).

 

CIRCUIT:

 

Ninth (Alaska, Arizona, California, Guam, Hawaii (including American Samoa), Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington)

 

Quinlivan v. Sullivan, > 916 F.2d 524 (9th Cir.1990)

 

APPLICABILITY OF RULING: This Ruling applies to determinations or decisions at all administrative levels (i.e., initial, reconsideration, administrative law judge hearing and Appeals Council).

 

DESCRIPTION OF CASE: The plaintiff, Mr. Quinlivan, was incarcerated from 1963 to 1985 for a felony conviction. He received disability insurance benefits while in prison.

 

In 1980, the Social Security Act was amended to prohibit payment of disability benefits to certain incarcerated felons, Mr. Quinlivan continued to be paid benefits from 1980 to 1982, resulting in erroneous payments. He was unaware of the change in the law and was without fault in receiving these payments.

 

After receiving a booklet from the Social Security Administration (SSA) in early 1982, Mr. Quinlivan wrote a letter to SSA informing it of his situation. SSA then sent him a notice stating that he had been overpaid for two years and requested repayment. He requested reconsideration and a waiver of recovery of the overpayment. Apparently this request was not processed and another notice of overpayment was sent in 1984. The plaintiff again sought waiver of recovery of the overpayment. A personal conference with an SSA representative was held in 1984, but no decision was issued at that time.

 

Mr. Quinlivan was released from prison in 1985. He spent his accumulated savings, including the overpayment. In 1987, SSA denied his request for reconsideration and Mr. Quinlivan thereafter requested a hearing. In 1988, an Administrative Law Judge denied the request for waiver of the recovery of the overpayment and this decision became the final decision of the Secretary when the Appeals Council denied review. Mr. Quinlivan then sought judicial review in the district court. The district court affirmed the Secretary's decision and Mr. Quinlivan filed an appeal with the United States Court of Appeals for the Ninth Circuit.

 

HOLDING: The Ninth Circuit Court of Appeals held that requiring Mr. Quinlivan to repay the overpayment would be against equity and good conscience.

 

The court indicated that although the Social Security Act does not define the phrase "against equity and good conscience," the Secretary has interpreted it in > 20 CFR 404.509(a) to be limited to situations where the claimant changed his or her position for the worse, relinquished a valuable right, or lived in a separate household from the overpaid person at the time of the overpayment and did not receive the overpayment. In making its decision on this case, the court stated that the question before it was "whether the agency's interpretation is based on a reasonable construction of the statute."

 

The court held that the legislative history of section 204(b) of the Social Security Act demonstrates that Congress intended to broaden the availability of waiver and that the Secretary's interpretation of the phrase "against equity and good conscience" was too narrow. Accordingly, the court concluded that:

 

[T]he meaning of the phrase, "against equity and good conscience," cannot be limited to the three narrow definitions set forth in the Secretary's regulation. Congress intended a broad concept of fairness to apply to waiver requests, one that reflects the ordinary meaning of the statutory language and takes into account the facts and circumtances of each case.

 

In applying this standard, the court noted that Mr. Quinlivan had no material goods, no means of transportation, no income and he had only worked sporadically in a few temporary jobs. Additionally, the court pointed to the presence of a psychological impairment as a factor in favor of waiver of recovery of the overpayment. Given these circumstances, the court found it would be against "equity and good conscience" to have Mr. Quinlivan repay the funds.

 

STATEMENT AS TO HOW QUINLIVAN DIFFERS FROM SOCIAL SECURITY POLICY: Under > 20 CFR 404.509(a), 410.561d, and 416.554, recovery of an overpayment is "against equity and good conscience" if the individual has changed his or her position for the worse or relinquished a valuable right because of reliance upon a notice that a payment would be made or because of the overpayment itself. In addition, recovery is considered to be "against equity and good conscience" under title II and title XVI, if the individual was living in a separate household from the overpaid person (title II) or his or her eligible spouse (title XVI) and did not receive the overpayment. These specific circumstances are the only ones which permit a waiver of recovery of an overpayment on the basis that recovery is "against equity and good conscience" under SSA policy.

 

As stated above, the Ninth Circuit has held that the phrase, "against equity and good conscience," cannot be limited to the three specific definitions set forth in the regulations, but rather a broad concept of fairness is to be applied under which all the facts and circumstances of the case must be taken into account. The court emphasized that its interpretation of the equity and good conscience standard does not mean that, whenever an individual is found to be without fault in creating the overpayment, it necessarily follows that waiver is appropriate. The court noted that the standard must be cautiously applied to the circumstances of each case.

 

EXPLANATION OF HOW SSA WILL APPLY THE DECISION WITHIN THE CIRCUIT: This Ruling applies only to cases involving claimants who reside in Alaska, Arizona, California, Guam, Hawaii (including American Samoa), Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, or Washington at the time of the determination or decision at the initial, reconsideration, Administrative Law Judge or Appeals Council levels.

 

If it is determined that a claimant is "without fault" in causing or accepting an overpayment, it may need to be determined whether adjustment or recovery of the overpayment would be "against equity and good conscience." In determining whether recovery of an overpayment would be "against equity and good conscience," the adjudicator will not limit his or her inquiry to the three specific circumstances set forth in the regulations. The decision must take into account all of the facts and circumstances of the case and be based on a broad concept of fairness. Factors such as, but not limited to, the nature of the claimant's impairment, the amount and steadiness of the claimant's income, and the claimant's assets and material resources should all be considered in the decision as to whether recovery of an overpayment should be waived on the basis that recovery would be "against equity and good conscience."

 

Social Security Administration

Department of Health and Human Services

 

      FN1 Although Quinlivan was a title II case, the phrase "against equity and good conscience" is similarly defined in regulations governing the title XVI Supplemental Security Income program and in the Secretary's regulations concerning benefits under the Federal Mine Safety and Health Act of 1977. Therefore, this Ruling extends to title II and title XVI claims under the Social Security Act and to claims for Black Lung benefits.

 

 

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Court Decision

 

OVERPAYMENT-WITHOUT FAULT-WAIVER OF RECOVERY AND ADJUSTMENT

SSR 88-6c

1988

 

SECTIONS 204(a) AND (b) OF THE SOCIAL SECURITY ACT (> 42 U.S.C. 404(a) AND (b))

 

> 20 CFR 404.506, 404.507, 404.510, and 404.511

 

Tarvin v. Bowen, [1986] 1A Unempl. Ins. Rep. (CCH) 17,556 (S.D. Ind., New Albany Div.)

 

From 1978 through 1982, the claimant was overpaid $6,872.50 in mother's insurance benefits. She requested waiver of recovery of the overpayment under section 204(b) of the Social Security Act, > 42 U.S.C. 404(b), but an administrative law judge (ALJ) denied her request. The claimant alleged at the ALJ hearing that a Social Security Administration (SSA) employee had advised her in the early 1970's that she could cash certain checks which she had attempted to return. The ALJ found that, since the claimant had failed to provide material information which she should have known was important (i.e., accurate and timely estimates of her annual earnings), the claimant had not been without fault in causing the overpayment. The Appeals Council denied the claimant's request for review. The claimant then filed a court appeal. The evidence of record showed that the claimant's overpayment problems began in 1970, the year she became entitled to benefits. The overpayments occurred because the claimant had consistently underestimated her annual earnings instead of providing accurate estimates of her earnings as she had agreed to do when she applied for benefits. The evidence further showed that the claimant had received frequent notices from SSA about the overpayments and the adjustments made to her benefits to recover them. (The claimant had previously requested that $50.00 be withheld from her benefits each month until the overpayments she had incurred in 1974 and in 1977 were recovered.) Nearly all of these notices had reminded the claimant of the requirement to report promptly any changes in her earnings which might affect her benefits. Nonetheless, the claimant continued to underestimate her earnings and failed to notify SSA on a timely basis of changes in her earnings so as to avoid overpayments. The claimant did not request waiver until November 25, 1983, when her entitlement to mother's insurance benefits had ceased and it was no longer possible to adjust her benefits to recover the overpayments. Since any alleged communication to the claimant by the SSA employee would have occurred prior to 1978 (the year the employee retired), the district court found that the claimant could not have been misinformed by the SSA employee about the overpayments that had occurred from 1978 through 1982. Considering the continuing notices from SSA to the claimant after 1978, the court could not reasonably assume that the claimant continued to rely on the SSA employee's alleged earlier statements. Moreover, the court found that, assuming that the SSA employee made the alleged statements about cashing earlier checks, there was no evidence in the record that the SSA employee ever said it was proper to continually underreport earnings. In view of the foregoing, the district court found that there was substantial evidence to support the ALJ's findings and the Secretary's decision that the claimant was not without fault in causing the overpayments. The district court held that the Secretary's decision that the claimant was not entitled to a waiver was affirmed.

 

Entry

 

Sandra J. Tarvin commenced this action by timely filing her Complaint on September 23, 1985, against Margaret M. Heckler, Secretary of the Department of Health and Human Services. The Honorable Otis R. Bowen, M. D., the current Secretary, has been substituted as party defendant herein pursuant to > Fed. R. Civ. P. 25(d)(1) and > 42 U.S.C. 405(g).

 

Plaintiff brings this action pursuant to > 42 U.S.C. 405(g) for review of an adverse decision by the Appeals Council of the Department which denied plaintiff's request for review of the Administrative Law Judge's ("A.L.J."') decision denying her request to waive an overpayment of Six Thousand Eight Hundred Seventy-Two Dollars and Fifty Cents ($6,872.50). The issues were joined by the defendant's answer, filed December 20, 1985, together with a certified copy of the transcript of the record, including the evidence upon which the findings and decision complained of are based.

 

The Court, having reviewed the pleadings, the briefs of the parties, the transcript of the record, and being duly advised, AFFIRMS the decision of the defendant Secretary for the reasons set forth below.

 

History

 

Plaintiff requested a waiver of her overpayments which was denied. A personal conference was held before an operations supervisor on March 21, 1984. On April 24, 1984, the decision to deny plaintiff's waiver was determined correct. Ms. Tarvin then requested a hearing before an A.L.J.

 

The A.L.J. conducted a statutory hearing on August 8, 1984, in Madison, Indiana. Plaintiff, who was represented by her attorney, Michael L. Rogers, appeared and testified. Subsequently, the A.L.J. found that Ms. Tarvin was not entitled to a waiver of the overpayment.

 

After considering the evidence, the A.L.J. made the following findings, dated February 27, 1985:

 

1. The claimant received an overpayment in retirement insurance benefits in the amount of $6,872.50.

 

2. The claimant was overpaid benefits.

 

3. The claimant was not without fault in causing the overpayment (> 20 CFR 404.507).

 

4. The claimant shall re-pay this overpayment at the rate of $50.00 per month.

 

5. The claimant failed to provide material information which she should have known was important.

 

6. Recovery of the overpayment is not waived (> 20 CFR 404.506).

 

The plaintiff then timely perfected her appeal. The A.L.J.'s decision became the final decision of the Secretary on September 3, 1985, when the Appeals Council denied plaintiff's request for review of the A.L.J.'s decision. This action followed.

 

Issues Before the Court

 

The sole issue before the Court is whether the record contains substantial evidence to support the decision of the Secretary, > 42 U.S.C. 405(g). The phrase "substantial evidence"' is defined as:

 

Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We must affirm [the Secretary's decision] if the record contains substantial evidence to support the A.L.J.'s findings and there has been no error of law.

 

> Strunk v. Heckler, 732 F. 2d 1357, 1359 (7th Cir. 1984) (citations omitted).

 

Review of Record

 

Plaintiff filed an application for Social Security mother's insurance benefits on October 26, 1970. The application form explained the effect of yearly earnings on social security benefits. Plaintiff agreed on the form to report her annual earnings to the Social Security Administration.

 

Ms. Tarvin was first notified of overpayment problems in 1971 with respect to her 1970 and 1971 benefits checks. On March 18, 1972, plaintiff received notice of overpayments in 1970, 1971 and 1972 totaling $509.00. The overpayments occurred because Ms. Tarvin failed to provide accurate earnings estimates and to timely report changes in her yearly earnings. After 1976, plaintiff consistently underestimated her steadily increasing income. However, she did not report changes in her estimates except for the years 1971 and 1980 when she lowered her estimates. Her earnings for those two years exceeded the lowered estimates resulting in even greater overpayments.

 

Plaintiff received frequent notices from the Social Security Administration regarding the overpayments and the adjustments to benefit amounts necessary to recover the overpayments. Meanwhile, the overpayments continued to be made based upon plaintiff's yearly underestimates of her earnings. On May 17, 1976, plaintiff requested that the 1974 overpayment be withheld at the rate of $50 per month. When notified of the 1977 overpayment, plaintiff again requested that only $50.00 be withheld each month.

 

Plaintiff was frequently notified of the importance of reporting significant changes in her income. In a statement made on May 19, 1980, Ms. Tarvin said "I understand now when I make an estimate, that any time I see I will earn more - that I am to contact social security right away."' Plaintiff was also frequently notified of her right to apply for a waiver.

 

As the yearly overpayments continued, plaintiff's benefits were constantly adjusted for overpayments in prior years. By 1982, $6,872.50 in overpayments had accumulated because overpayments from previous years were recovered at the rate of only $50 per month. On November 25, 1983, plaintiff requested waiver of the overpayment.

 

Applicable Law

 

The Social Security Act provides:

 

In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience.

 

> 42 U.S.C. 404(b)

 

The regulations state in part:

 

Sections 204(b) and 1870(c) of the Act provide that there shall be no adjustment or recovery in any case where an incorrect payment ... has been made ... with respect to an individual:

 

(a) Who is without fault, and

 

(b) Adjustment or recovery would either:

 

(1) Defeat the purpose of title II of the Act, or

 

(2) Be against equity and good conscience. > 20 C.F.R. 404.506.

 

Under > 20 C.F.R. 404.507, "fault"' is defined, in part, as:

 

"Fault"' as used in "without fault"' (see 404.506 and > 42 CFR 405.355) applies only to the individual. Although the Administration may have been at fault in making the overpayment, that fact does not relieve the overpaid individual or any other individual from whom the Administration seeks to recover the overpayment from liability for repayment if such individual is not without fault. In determining whether an individual is at fault, the Administration will consider all pertinent circumstances, including his age, intelligence, education, and physical and mental condition. What constitutes fault (except for "deduction overpayments"' - see 404.510) on the part of the overpaid individual or on the part of any other individual from whom the Administration seeks to recover the overpayment depends upon whether the facts show that the incorrect payment to the individual or to a provider of services or other person, or an incorrect payment made under section 1814(e) of the Act, resulted from:

 

(a) An incorrect statement made by the individual which he knew or should have known to be incorrect; or

 

(b) Failure to furnish information which he knew or should have known to be material; or

 

(c) With respect to the overpaid individual only, acceptance of a payment which he either knew or could have been expected to know was incorrect.

 

In a deduction-overpayment case such as this, the regulations provide an even higher degree of care for an individual to be "without fault."' > 20 C.F.R. 404.511 provides:

 

(a) Degree of care. An individual will not be "without fault"' if the Administration has evidence in its possession which shows either a lack of good faith or failure to exercise a high degree of care in determining whether circumstances which may cause deductions from his benefits should be brought to the attention of the Administration by an immediate report or by return of a benefit check. The high degree of care expected of an individual may vary with the complexity of the circumstances giving rise to the overpayment and the capacity of the particular payee to realize that he is being overpaid. Accordingly, variances in the personal circumstances and situations of individual payees are to be considered in determining whether the necessary degree of care has been exercised by an individual to warrant a finding that he was without fault in accepting a "deduction overpayment."'

 

(b) Subsequent deduction-overpayments. An individual will not be without fault where, after having been exonerated for a "deduction overpayment"' and after having been advised of the correct interpretation of the deduction provision, he incurs another "deduction overpayment"' under the same circumstances as the first overpayment.

 

Discussion

 

An examination of the record demonstrates there is substantial evidence to support the Secretary's decision and that plaintiff is not entitled to a waiver. When Ms. Tarvin completed her application for mother's insurance benefits on October 26, 1970, she agreed to make timely reports of any changes in her income to the Social Security Administration ("SSA"'). As early as April 1, 1971, plaintiff indicated in a letter that she was aware of the overpayment problem. On April 18, 1972, she again acknowledged awareness of an overpayment problem and the necessity to pay back what she had been overpaid.

 

On March 16, 1972, plaintiff received notification that an overpayment resulted because of her work and estimated earnings for 1971 and 1972. Ms. Arvin was again notified of overpayments which were the result of her yearly underestimates on May 23, 1975, October 1, 1975, January 16, 1976, April 22, 1976, April 13, 1977, June 14, 1978, September 22, 1978, March 6, 1979, July 6, 1979, April 28, 1980, May 23, 1980, June 25, 1981, November 17, 1982, and September 13, 1983. Nearly all of these notices reminded plaintiff of the requirement to promptly report any changes in income which would affect her payments. However, from 1970 to 1983, Ms. Tarvin not only underestimated her earnings in nine (9) out of thirteen (13) years, she also failed to promptly notify the SSA of her income changes in order to avoid overpayment.

 

The record also establishes that plaintiff possessed a good working knowledge of the SSA requirements in 1971 and 1980 because she promptly changed her estimated earnings for those years to a lower amount. In addition, even though plaintiff stated on May 19, 1980, "I understand now that when I make an estimate, that any time I see I will earn more - that I am to contact Social Security right away."' She did not adjust her earnings estimates upward in order to reflect her higher income.

 

In addition, the evidence establishes that although Ms. Tarvin was frequently notified of her right to apply for a waiver, she never requested a waiver until November 25, 1983, when her benefits had ceased and it was no longer possible to adjust her benefits to recover the overpayments. Thus the documentation in the record establishes that plaintiff was aware of SSA requirements and aware of the fact that she repeatedly underestimated her earnings throughout the years she received benefits.

 

During the hearing, Ms. Tarvin stated that she had attempted to return the checks with the overpayments but had been assured by Mr. James Kelly, an SSA employee, that it was all right to cash them. A person may be "without fault"' if he or she relies on erroneous information from an official source within the SSA which caused an acceptance of an overpayment. > 20 C.F.R. 404.510(b). In this case, plaintiff's contacts with Mr. Kelly related to her overpayments in the early 1970's. Plaintiff could not remember when she last talked with Mr. Kelly, but believed it might be in 1972 or 1973. When the A.L.J. inquired on Mr. Kelly regarding plaintiff's allegations, Mr. Kelly responded that he had retired in about 1978 and had no memory of plaintiff's case.

 

The record therefore establishes that any information Mr. Kelly related to Ms. Tarvin was with regard to her overpayments prior to 1978. Because the overpayments at issue in the present case occurred from 1978 through 1982, Mr. Kelly could not have erroneously informed Ms. Tarvin as to her payments during these years. Furthermore, it is not reasonable to assume that plaintiff continued to rely upon Mr. Kelly's alleged statements in the early 1970's and believe all subsequent checks were proper in light of the continuing notices to the contrary from SSA in the late 1970's and 1980's. Finally, even assuming that Mr. Kelly did say in the early or middle 1970's that it was not illegal to "cash"' the checks, there is no evidence in the record that he ever communicated that it was proper to continually underreport earnings.

 

Because there is substantial evidence to support the decision of the Secretary that plaintiff is not without fault, the Court need not reach the issue of whether recovery would defeat the purpose of the Act or would be against equity and good conscience. See > 20 C.F.R. 404.506.

 

After careful review and consideration of the record as contained in the transcript and pleadings, the Court finds that there is substantial evidence to support the findings made by the A.L.J.

 

The totality of the evidence supports the Secretary's determination that the plaintiff was not without fault in causing the overpayments and not entitled to a waiver.

 

Accordingly, the Court finds that the Secretary correctly applied the applicable regulations and finds against the plaintiff herein and AFFIRMS the decision of the Secretary with costs assessed against plaintiff.

 

The undersigned United States Magistrate recommends the adoption of the above entry by the United States District Judge.

 

Adoption of Entry and Judgment

 

Barker, District Judge:

 

The Magistrate, having submitted his Report of Review and Recommendation which reads as follows:

 

(H. I.)

 

and counsel having been afforded due opportunity pursuant to statute and the Rules of this Court to file objections thereto, the Court having considered the Magistrate's Report and being duly advised, the Magistrate's Report and Recommended Entry are hereby approved and adopted by the Court.

 

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that the plaintiff take nothing by way of her complaint and that the decision of the defendant, Secretary of the Department of Health and Human Services, be AFFIRMED. Costs versus plaintiff.

 

Social Security Administration

Department of Health and Human Services

 

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HALLEX I-2-290

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

 

Volume I

Division II: Administrative Law Judge Hearings

Subject: Issues Before the Administrative Law Judge

Chapter: I-2-200

 

June 30, 1994

 

Current through June 1997

 

I-2-290 SAMPLES

 

ISSUES AND EXAMPLES OF LANGUAGE WHICH MAY BE APPROPRIATE IN THE NOTICE OF HEARING

 

A. Title II overpayments

 

The general issues are whether you were overpaid benefits within the meaning of Section 204 of the Social Security Act and, if so, whether recovery of the overpayment may be waived.

 

The specific issues are whether you were "without fault" as defined in Social Security regulation 404.507 in causing the overpayment and, if so, whether recovery of the overpayment would (1) defeat the purpose of Title II of the Act, as defined in Social Security regulation 404.508, or (2) be against equity and good conscience as defined in Social Security regulation 404.509.

 

B. Title XVI overpayments

 

The general issues are whether you were overpaid benefits within the meaning of Section 1631 of the Social Security Act and, if so, whether recovery of the overpayment may be waived.

 

The specific issues are whether you were "without fault" as defined in Social Security regulation 416.552 in causing the overpayment and, if so, whether recovery of the overpayment would (1) defeat the purpose of Title XVI of the Act, as defined in Social Security regulation 416.553, (2) be against equity and good conscience as defined in Social Security regulation 416.554, or (3) impede efficient or effective administration of title XVI due to the small amount involved as defined in Social Security regulation 416.555.

 

C. Title II and XVI overpayments

 

The general issues are whether you were overpaid benefits within the meaning of sections 204 and 1631 of the Social Security Act and, if so, whether recovery of the overpayment may be waived.

 

The specific issues are whether you were "without fault" as defined in Social Security regulations 404.507 and 416.552 in causing the overpayment and, if so, whether recovery of the overpayment would (1) defeat the purpose of Titles II and XVI of the Act, as defined in Social Security regulations 404.508 and 416.553, (2) be against equity and good conscience as defined in Social Security regulations 404.509 and 416.554, or (3) impede efficient or effective administration of title XVI due to the small amount involved as defined in Social Security regulation 416.555.

 

. . .

 

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PROGRAM OPERATIONS MANUAL SYSTEM

 

General (GN, Part 2)

 

GN 02201.011 Prerecoupment Review

 

A. POLICY

 

1. Purpose

 

To insure that recovery does not take effect until the person from whom

recovery is sought has had meaningful opportunity to contest the

overpayment determination show that recovery should be waived. If

recovery has been initiated when the overpayment determination is appealed

waiver is requested, recovery must stop effective with the month

that reconsideration or waiver is requested.

 

2. When Applicable

 

There is no time limit for requesting waiver and a request for waiver made

at any time will make the procedures operative.

Although a penalty deduction is not an overpayment,the collection of a

penalty occurs after the overpayment has been recovered. If recovery of a

deduction overpayment is precluded by the prerecoupment review procedure,

the procedure also applies to the penalty and its adjustment.

 

3. When Not Applicable

 

a. Entitlement to a death payment is established on a record on

which there is an outstanding overpayment. The is not payable

to the extent of the outstanding overpayment whether or not the

applicant could meet the waiver criteria (GN02205.003).

b. A subsequently determined underpayment is due the person from whom

recovery of an overpayment is sought. For adjustment of outstanding

overpayments by underpayments, see GN 02210.005-GN 02210.007.

c. Overpayment recovery is not involved:

o netting of additional benefits due against excess payments made for

overpayment determination purposes (GN 02201.005).

o adjustments for current year work and estimated earnings.

 

B. PROCESS

 

1. Waiver Of Recovery Only Requested

 

Refers to the entire waiver process up to and including a personal

conference conducted and decided by an FO employee who had not previously

participated in proceedings concerning the waiver request.

Once recovery has been delayed (or interrupted) by a request for waiver,

recovery cannot be initiated (or resumed) until the person has opportunity

for an automatically scheduled personal conference if a wholly favorable

waiver decision cannot be made.

 

 

2. Overpayment Reconsideration Only Requested

 

Refers to the reconsideration determination. It does not include the right

to a personal conference since this right arises under the waiver provision

of the law.

 

3. Overpayment Reconsideration And Waiver Requested

 

Refers to the entire overpayment reconsideration and waiver process up to

and including a personal conference conducted and decided by an FO employee

who had not previously participated in proceedings concerning the

overpayment determination and waiver request.

When there is simultaneously an overpayment determination which cannot be

wholly reversed by reconsideration and a waiver request which cannot be

approved, the personal conference considers both the overpayment and waiver

issue. (If reconsideration affirms an overpayment determination but

recovery is waived, the right to personal conference does not attach.)

 

C. PROCEDURE -- DELAYING RECOVERY

 

Delay (or interrupt) recovery if the person:

o requests reconsideration or waiver;

o requests an explanation of the overpayment. (The person may need further

explanation or clarification to make a decision about whether to request

reconsideration or waiver.)

o alleges nonreceipt and the criteria for handling the case in accordance

with instructions in GN 02406ff are met.

 

D. PROCEDURE -- RESUMING RECOVERY

 

1. Explanation Requested

 

The FO must make appropriate input as soon as the person decides whether or

not to appeal or request waiver.

a. Person Does Not Protest

o Complete an (or RC).

o Input to start (or resume) recovery (MSOM 420-D)

o Forward the statement to the PC.

b. Person Doesn't Make a Decision Within 30 Days of Receiving an

Explanation

o Send a letter stating that if does not let SSA know of

decision within 10 days, recovery will begin (or resume).

o If the person decides not to protest or does not respond to the letter,

input to start (or resume) recovery (MSOM 420-D).

o Send a copy of the letter to the PC.

 

2. Waiver Only Or Requested

 

Recovery will resume if waiver is denied after opportunity for a personal

conference even if anALJ hearing is requested. It will also resume if the

 

person declines a conference.

 

3. Reconsideration Only Requested

 

If the reconsideration decision affirms the overpayment, recovery will

begin (or resume) even if an ALJ hearing is requested. (If waiver of

recovery is subsequently requested, see B.2. above.)

 

4. Nonreceipt Alleged

 

Resume recovery in accordance with GN 02406ff.

[ DDS POMS ]

GN 02201.013

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PROGRAM OPERATIONS MANUAL SYSTEM

 

General (GN, Part 2)

 

GN 02201.025 Overpayment - Reconsideration

 

A. POLICY

 

A reconsideration request must be in writing. See GN 03102.000ff. If a

person comes into the FO to request reconsideration in response to an

overpayment notice, the Social Security Act requires that have a

interview that same day.

 

B. PROCEDURE - FO

 

1.

 

In completing an :

a. Ensure that the person is appealing fact amount of overpayment

before completing .

b. Ensure that the reasons for appealing are well documented

(GN 03102.225).

c. Do not request folder unless person or representative wants it.

 

2. Stop Recovery

 

To stop recovery:

o ROAR record -- Follow GN 02201.028 to complete the DRPF screen (MSOM

415-S).

o No ROAR record -- Use .

NOTE: Do not delay either action because additional time is needed for

development.

 

3. Allegation

 

Follow GN 02406.310 to process the allegation.

 

4. Treated As Waiver Request

 

a. If the PC determines that the is really a waiver request and

returns it to the FO (see C.3. below), include in the waiver notice that

although reconsideration was requested, the reason given indicates only

waiver is wanted, and a reconsideration decision was not made. If

reconsideration is wanted, the person should contact SSA.

b. If reconsideration is requested on only the overpayment amount, and the

criteria in GN 02201.013E. are met, do not make a waiver determination

since folder review is necessary. Forward the to the PC for

decision.

 

C. PROCEDURE - PC

 

1. Direct Request From Person

 

When there is a direct request from the person:

a. Follow GN 02201.028 to stop recovery via the DRPR screen (MSOM 415-B).

b. Acknowledge receipt of request and process case.

 

2. Allegation

 

Follow GN 02406.310.

 

3. Treated As Waiver Request

 

a. Where it is clear that the person is not contesting the overpayment but

is instead requesting only relief from repayment, do not reconsider the

overpayment determination.

If the overpayment is $500 or less, process in the PC. Do not send to the

 

FO. If overpayment is over $500, send the and any attachments

to the FO for a waiver determination. Alert them that the is

being treated as a waiver request. Input a waiver request to the DRPR

screen.

b. If reconsideration is requested on only the overpayment amount and the

criteria in GN 02201.013E. are met, treat the request as a waiver and

process accordingly.

IMPORTANT: If recovery is being waived per a. or b. above from a

contingently liable beneficiary and there are other contingently liable

beneficiaries on the rolls, propose recovery from them in accordance with

GN 02210.016.

c. If reconsideration is requested on the fact of overpayment, handle in

accordance with 4. below.

 

4. Processing Request

 

Process the request as follows:

a. If reconsideration supports a reversal of the initial finding of

overpayment (i.e., there is no overpayment), send the person written

notice to that effect, and include the person's right to a hearing.

Update ROAR.

b. If reconsideration does not wholly reverse the overpayment determination

and waiver of recovery was not requested, send the individual a notice

of the reconsidered decision. Include the right to an ALJ hearing; the

fact that recovery will begin (or resume) in 30 days even if a hearing

is requested; the right to request waiver; the fact that recovery will

not begin (or resume) if waiver is requested within 30 days and, if

waiver is requested at any time, recovery will stop effective with the

date of the waiver request (see NL 00703.118 and NL 00703.119 for sample

notices). Since a waiver denial is not involved, there is no mention of

personal conference with the reconsideration determination.

Update the ROAR with the reconsideration determination and the scheduled

adjustment date.

c. If reconsideration does not wholly reverse the initial overpayment

determination and waiver was requested but can be approved, see GN

02201.023C.

When the overpayment reconsideration and waiver determinations have been

made, make certain that the ROAR record is updated with the waiver

approval.

d. If the reconsideration does not wholly reverse the overpayment

 

determination and waiver was requested but cannot be approved, see GN

02201.023C.

Send the folder to the FO for scheduling of a personal conference (GN

02270.003). Input a TC23W to control the waiver request and a TC23P for

followup control. Do not schedule any recovery action or update ROAR with

TC 55 or 56. If the FO has not returned the folder at the expiration of

the 90-day ROAR control, see GN 02270.003.

[ DDS POMS ]

GN 02201.027

=======================================================

 

 

PROGRAM OPERATIONS MANUAL SYSTEM

 

General (GN, Part 2)

 

GN 02201.050 Overpayment - Fraud Referral

 

A. POLICY

 

To the extent possible, to avoid weakening any future court case, a title

II or black lung overpayment which may have resulted from fraud will be

considered for prosecution before the beneficiary is notified of the

overpayment.

The Integrity Staff () will be given 30 days to

review the case and prepare it for submittal, if

appropriate, to the Office of Inspector General. OIG will be given 60 days

to review the case and decide whether to seek

prosecution. After OIG's time limit has expired without a

decision, the overpayment notice will be sent. OIG still has the option of

deciding to prosecute.

 

B. PROCEDURE

 

1. When Fraud is Suspected

 

When it appears that fraud (as described in GN 04105.005) may have

contributed to the creation of or the amount of an overpayment, consider

whether development should be curtailed or continued per GN 04110.010.

If payments should be stopped but fraud development should continue,

a. When third party reporting is involved, follow due process procedures in

GN 02601.005 ff. and DI 13010.185 ff. before making a determination to

terminate or suspend benefits; when first party reporting is involved,

begin at step b.

b. At the completion of the due process procedure or when due process is

not required, terminate or suspend benefits (unless the beneficiary is

entitled to a subsequent period of entitlement) and post the amount of

the overpayment to ROAR.

c. Suppress or intercept the overpayment letter to each beneficiary on the

same earnings record whose

overpayment was caused by the potentially fraudulent action.

d. Release the letter explaining the reason for the

, offering appeal rights, and informing the

beneficiary that he or she will be notified later if there is an

overpayment. Do not mention overpayment or waiver rights (see 2.,

below).

e. Post an "E" (TC 23E explanation) Protest Code in the BOUD field of the

MBR (to suppress recovery followup and generate a 90-day alert) (SM

00610.307, MSOM 415-B).

f. Post a "P" Fraud Indicator to ROAR for each beneficiary on the same

 

earnings record whose overpayment resulted from the potentially

fraudulent action (SM 00610.785, MSOM 405-B).

g. Annotate the Special Message Field of the MBR:

"SENSITIVE INFORMATION -- CURTAIL OVERPAYMENT DEVELOPMENT -- CASE

REFERRED TO [or OIG, as appropriate] -- DO NOT CONTACT BENEFICIARY

-- CONTACT [or OIG] BEFORE TAKING ANY ADMINISTRATIVE ACTION."

If payment need not be stopped (because payment has already been stopped or

because payment should continue) but fraud development should continue,

post the amount of the overpayment to ROAR, then follow "e" through "g"

above.

 

2. Refer for

 

Consideration of Fraud Issue

For consideration of the fraud issues, forward to (GN 04110.020C.2.):

o the folder (if necessary, first recall from FRC);

o Single Copy Folder Reference for each beneficiary fully explaining how

the amount of the overpayment was determined;

o for each beneficiary providing the overpayment notice language;

o the unreleased overpayment notice(s), if generated;

o any subsequently received material (e.g., outputs documenting repayments,

waiver requests).

When the case is referred directly to from an FO, will refer

the case to a technician for necessary action to obtain required

documentation.

will retain these materials with the , Referral of Potential

Violation, when, and if, the case is referred to OIG. will also

update the Special Message to show that the case is in OIG.

Within 30 days of receipt, will forward the case to OIG or refer it

for processing. Whenever the case is referred for processing, will

provide handling instructions and special notice language, as necessary.

Do not delay referral by the suspected fraud issues.

With the exception of B.3. below, take no further action once OIG has

jurisdiction of the original folder unless or OIG approves the

action. Take no manual action to reduce the overpayment when the overpaid

person becomes reentitled or the amount of the overpayment is refigured.

Notify OIG through of the corrected amount and ask what action should

be taken.

WAIVER: If a waiver request is received (because the overpayment letter

could not be stopped in time or because the overpaid person insisted upon

 

requesting waiver before

receiving the overpayment notice), send the request to . Do not input

a TC 23W until a decision is made not to prosecute for fraud or prosecution

has ended in an acquittal.

 

3. Decision Not to Prosecute

 

If the case is returned because the decision is made not to seek

prosecution:

a. Associate material with the original folder;

b. Remove the "E" Protest Code from the MBR;

c. Remove the Special Message from the MBR;

d. Change the Fraud Indicator on ROAR from "P" to "N" for each beneficiary;

e. Enter the appropriate due process recovery initiation date (DPRD) on

ROAR;

f. Prepare and release the overpayment notice(s).

NOTE: Automated recovery efforts will begin unless waiver has been

requested.

WAIVER: If a waiver request has already been received at the time the

overpayment letter is prepared, delete the waiver language from the letter

and indicate that the previously filed request will be processed. Input a

TC 23W and process the request.

 

4. Case Not Returned From OIG Timely

 

When the ROAR diary matures and the folder has not been returned from OIG,

IB /IS will

a. Authorize the release of the overpayment notice;

b. Inform OIG that recovery efforts will begin immediately;

c. Request return of the folder and diary for followup in 30 days;

d. Follow steps b. through f. above.

NOTE: Automated recovery efforts will begin unless waiver has been

requested.

Do not wait to obtain the original folder before releasing the overpayment

notice when all necessary information was retained in .

If the original folder has not been returned from OIG by the time the

30-day diary matures, request the folder again and rediary for 30 days. The

folder will be needed if waiver is requested and a personal conference is

necessary.

WAIVER: If a waiver request has already been received by the time the

overpayment notice is released, delete the language offering waiver and

indicate that the previously filed request will be processed.

Input a TC 23W and process the request (GN 02201.021). If the request has

been associated with the original folder, wait for the return of the

original folder.

If OIG so requests, return the folder to OIG after the overpayment notice

 

has been sent and any waiver request is processed. OIG may still pursue

prosecution.

 

5. OIG Accepts Case for Prosecution

 

If, prior to maturity of the ROAR diary, OIG reports that the case has been

accepted for prosecution, leave the "E" Protest Code, Special Message, and

"P" Fraud

Indicator(s) on the MBR.

For the majority of cases accepted, OIG will instruct SSA to release the

overpayment notice at the time the case is accepted. If the notice is

delayed beyond that time, follow up with OIG 6 months after OIG accepts the

case.

If the overpayment notice has been released at the time OIG reports that

the case has been accepted for prosecution, enter the "E" Protest Code,

Special Message, and "P" Fraud Indicator(s) (SM 00610.785, MSOM 400-B).

WAIVER: If a request for waiver is received after OIG has accepted the case

for prosecution, the will determine whether to retain the request and

supporting materials or

forward them to OIG. Do not input a TC 23W.

If the prosecution does not result in a fraud conviction, send the

overpayment notice (unless one has already been sent), change the fraud

indicator(s) to "N," input a TC 23W, and process the waiver request.

[ DDS POMS ]

GN 02201.055

====================================================

 

 

PROGRAM OPERATIONS MANUAL SYSTEM

 

General (GN, Part 2)

 

GN 02210.006 Adjustment of Benefits Due the Overpaid Individual

 

PROCEDURE

 

1. Adjustment of Current Monthly Benefits

 

a. Delay in Recovery

Do not reduce or interrupt a monthly benefit until the person has had an

opportunity to:

o Appeal the overpayment determination;

o Request that recovery be waived, including opportunity for a personal

conference if waiver cannot be approved (GN 02201.011).

This delay includes those combined check situations where SSA is not

aware of a death of one of the payees until State death records are

matched with the Master Benefit Record (GN 02602.060 - GN 02602.075).

Additionally, recovery is delayed when nonreceipt of a check (or

electronic funds transfer) is alleged and the criteria for handling the

case in accordance with the nonreceipt instructions in GN 02406ff. are

met.

If a decision on a reconsideration waiver request (including a

personal conference decision) is pending,delay adjustment of benefits.

b. Exception to Delay in Recovery

Begin withholding immediately when the overpayment resulted from the

superendorsement procedure (see GN 02230.018).

 

 

 

2. Adjustment Of Underpayments

a. Recovery Not Not Pending

If the issue of recovery is not open (see c. below), and it is

subsequently determined that an underpayment is due the individual,

withhold the underpayment to the extent of the overpayment to that

individual.

EXAMPLE 1: In 1/88, it was determined that Bea Smith was overpaid $2,500

because of work and earnings in 1987; her 1988 estimated earnings

precluded payment. Her request for waiver was denied in 4/88 and in 7/88

she began to refund the overpayment via $20 monthly installments. In

8 /88, based on a revised 1988 earnings estimate, Ms. Smith is due

payment beginning 6 /88 and is underpaid $980 through 8/88. Because the

issue of recovery is final, the $980 underpayment is withheld to reduce

the overpayment. The balance of the overpayment is recovered by

adjustment of her benefits beginning 9/88.

EXAMPLE 2: In 10/79, Mr. Lee is notified of a $2,300 overpayment and

begins to refund. Efforts to collect were discontinued in 1/80. In 2/89,

 

a new period of disability is established and his reentitlement to

benefits was processed in 5/89. An underpayment of $900 (benefits due

3/89 and 4/89) is withheld to reduce the overpayment. However, Mr. Lee

has not had an opportunity for a personal conference because his

overpayment notice was sent prior to 3/80 and did not explain the

personal conference rights. Therefore, the award notice proposed benefit

withholding beginning 7/89 (i.e., COM+2) to complete recovery.

b. Recovery Waived

If recovery has been waived and it is subsequently determined that an

underpayment is due:

o Use any additional benefit due for months before the overpayment

notice was sent to refigure the amount overpaid (GN 02201.025C.).

o Withhold any part of the underpayment representing additional benefits

due for months before the month waiver was requested.

NOTE: A request for waiver made within 30 days of the date of the

overpayment notice is considered to have been made in the month of that

notice (GN 02201.060).

EXAMPLE 1: On 4/12/87 Pete Rock was notified of a $1,680 overpayment

because of an incorrect computation. His 5/87 and 6/87 benefits of

$400.00 monthly were withheld, and the outstanding overpayment had been

reduced to $880 ($1,680 minus $800) prior to his 7/87 request for

waiver. Waiver was approved and there was no further recovery of his

overpayment. In 10/88, an AERO resulted in a $2 monthly benefit increase

effective 1/87. The additional 1/87 through 3/87 benefits totaling $6

cause a refiguring of his overpayment; the refigured overpayment is

$1,674 (see GN 02201.025C.).

The additional 4/87 through 6/87 benefits totaling $6, due for months

before the month that waiver was requested, are withheld to adjust the

overpayment for which recovery has been waived to $868 (i.e., $1,674

minus $800 minus $6). The additional benefits due beginning 7/87, the

month of the waiver request, are paid.

EXAMPLE 2: If, given the facts in Example 1, Mr. Rock had requested

waiver on May 9, 1987 (i.e., within 30 days of the overpayment notice),

only the additional benefits due through 3/87 will be withheld to

 

refigure the $1,680 overpayment. In this case, the overpayment for which

recovery has been waived is $1,674 (i.e., $1,680-$6). The entire

underpayment (i.e., additional benefits due from 4/87, the month of

overpayment determination and notice) is paid.

c. Waiver Pending

If the issue of recovery is not final , any part of an underpayment

subsequently determined to exist for months beginning with the month the

overpayment or its recovery was protested must be paid .

The issue of recovery is not final if:

o The 30-day advance notice period has not expired; or

o Reconsideration waiver has been requested but a decision has

not yet been made; or

o A personal conference decision is pending.

EXAMPLE 1: In 12/88, Shawn Roberts was notified that he was overpaid

$5,800 because his disability benefits were not terminated timely. In

2/89, he requested reconsideration of the overpayment determination and

waiver of recovery. In 6/89, he filed for a new period of disability.

Reconsideration affirmed the overpayment and waiver could not be

approved. Prior to the scheduled personal conference date, it is

determined that Mr. Roberts is entitled to a new period of disability

effective 6/89 and is underpaid $2,310. The entire underpayment must be

paid to Mr. Roberts since the decision on his 2/89 waiver request has

not become final (i.e., the personal conference decision is pending) and

none of the additional benefits are due for months before the month he

requested waiver.

EXAMPLE 2: If, given the facts in Example 1, the new period of

disability was established effective 1/89, the part of the underpayment

representing benefits due for 1/89 will be withheld to reduce the

overpayment. However, because the personal conference decision on the

2/89 waiver request is still pending, the part of the underpayment

representing additional benefits for 2/89 and subsequent months must be

paid.

[ DDS POMS ]

GN 02210.007

===========================================

 

 

 

PROGRAM OPERATIONS MANUAL SYSTEM

 

General (GN, Part 2)

 

GN 02210.007 Adjustment of Benefits Due Other Than the Overpaid Individual

 

A. POLICY

 

1. When Considered

 

When efforts to recover from the overpaid person(s) are unsuccessful.

 

2. From Whom

 

Other persons receiving benefits on the same earnings record as the one on

which the overpayment occurred.

EXCEPTION: Once a person is relieved of primary joint liability for

an overpayment as a representative payee, contingent liability no longer

exists.

 

3. When Precluded

 

Recovery is precluded:

o Until the other beneficiary is notified of the overpayment; or

o When recovery is waived from the overpaid person(s) or the other

beneficiary.

 

4. When Stopped

 

When the other person is no longer entitled to benefits; or

When the overpaid person eligibility.

 

B. PROCEDURE

 

1. Adjustment of Current Monthly Benefits

 

a. Notify the other person of the overpayment in accordance with GN

02201.055.

b. Provide the same rights with respect to the overpayment and its recovery

as the overpaid person (GN 02201.060).

c. If an appeal waiver is requested, delay adjustment action pending

a decision on the request.

d. If adjustment is already in effect when the appeal waiver request

is made, repay any amounts withheld beginning with the month of protest.

See GN 02210.006.2.b. for waiver requests filed within 30 days of the

overpayment notice.

EXAMPLE 1: Mary Green was overpaid wife's benefits because of her

divorce. Her daughter, Theresa, is her own payee receiving student

benefits. She lives with her mother. Mrs. Green was notified of her

overpayment in 1/88. Since she did not appeal, request waiver, or make

refund within 30 days, Theresa was notified of the overpayment and the

proposed adjustment of her benefits to recover her mother's overpayment.

She did not protest the proposed recovery and her benefits were adjusted

effective 5/88.

EXAMPLE 2: If, given the facts in Example 1, Theresa had requested

waiver when she was notified of the proposed adjustment, adjustment

 

would have been delayed until she had opportunity for a waiver

determination and, if waiver could not be approved, a personal

conference.

EXAMPLE 3: If, in Example 1, Theresa requested waiver in 7/88 but

adjustment was not stopped until 9/88, the amount withheld from her 5/88

and 6/88 benefits was proper. The amount withheld from her 7/88 and 8/88

benefits will be paid to her.

 

2. Adjustment of Underpayments

 

a. General Rule

Withhold an underpayment due a person other than the overpaid person

when:

o That person was previously notified of the overpayment and of appeal

and waiver rights; and

o That person did not protest the overpayment or its recovery: or

o A decision (including a personal conference decision) has been made to

deny waiver.

b. Recovery Not Not Pending

If the 30-day advance notice period has expired, withhold any

subsequently determined underpayment due the other person.

EXAMPLE: Following a personal conference decision denying waiver,

widow's benefits due Rose Budd were reduced (partial withholding)

effective 7 /88 to recover her deceased husband's 1986 work deduction

overpayment. In 10 /88, a recomputation results in an increased widow's

benefit effective 1/87. The underpayment due Mrs. Budd for 1/87-9/88 is

withheld to reduce (or recover) the overpayment.

c. Recovery Waived

Pay any subsequently determined underpayment.

d. Waiver Pending

Pay the entire underpayment if:

o The 30-day advance notice period has not expired; or

o A reconsideration request is pending; or

o A waiver decision, including a personal conference decision with

respect to waiver denial, has not yet been made.

EXAMPLE 1: Kay Smith was notifed that her widow's benefits would be

adjusted to recover an overpayment to her daughter. She requested waiver

in 5 /88 and, in 6/88, it is determined that she is due an underpayment

of $300. Because a waiver decision has not yet been made, the $300

underpayment must be paid.

EXAMPLE 2: In 10/88, when action was being taken to notify Lane Buy of a

proposed adjustment of his retirement benefits to recover his wife's

 

overpayment, it was discovered that he was due an AERO increasing his

monthly benefit effective 1/87 and 1/88. Since Mr. Buy had not been

notified of his wife's overpayment when the underpayment was determined,

no part of the additional benefits due him for 1/87-9/88 will be

withheld to recover her overpayment.

[ DDS POMS ]

GN 02210.008

 

==========================================================

 

 

 

PROGRAM OPERATIONS MANUAL SYSTEM

 

General (GN, Part 2)

 

GN 02210.220 Request for Waiver - $500 Tolerance - Actions

 

A. POLICY

 

When a liable person requests waiver of recovery of an overpayment and that

person's liability is $500 or less, recovery will be waived, without

development, because it would impede the efficient administration of the

Act.

The administrative waiver tolerance can only be used if there is a specific

request for waiver from the overpaid person or payee. Solicitation

of a waiver solely because the overpayment amount is $500 or less is

prohibited.

The DCR has the authority to process and approve a title II or title XVI

waiver request when:

o The original overpayment is $500 or less and

o There is a single debtor on the monthly bill.

The DS has the authority to process all other situations involving the $500

tolerance.

 

B. PROCEDURE -- DCR ACTION

 

1. How to Take Request

 

a. Pull up the IBIL screen to verify the amount of the original overpayment

before taking a waiver request using this provision.

Title II - Obtain an MBR or Inquiry Response (QRSL) to determine the

total household liability.

Refer to the DS for appropriate action when there is more than one debtor

on the monthly bill.

Title XVI - Obtain an SSR to determine total liability.

b. If the original overpayment was $500 or less, obtain and input to the

RMKS screen the following information from the debtor :

o The person's statement that is requesting waiver,

o The amount of the overpayment,

o The account number on which the overpayment was made,

o The person's name, and

o The number holder's name (if different).

 

2. How to Document Decision

 

If there is a single debtor on the monthly bill, fill out the preprinted

(available in the DMS) to document the waiver approval decision and

proceed as follows:

a. Title II Debt

o Enter the Debt Number on the Debt Resolution Menu (DRMU) screen ( MSOM

415-A).

o Input the waiver approval to the Waiver Approval under $500 (DRWP) screen

(MSOM 415-E).

o Fill in the appropriate information on the preprinted waiver approval

 

notice. Give to the typist.

b. Title XVI Debt

o Input an OPUP with a completed waiver (WA) field (SM 01311.405 -

SM 01311.406).

NOTE: Once the WA field is completed, an automated notice is released to

the address on the SSR.

o Prepare an in accordance with SI 02220.005B.1.

[ DDS POMS ]

GN 02210.221

=====================================================

 

 

 

PROGRAM OPERATIONS MANUAL SYSTEM

 

General (GN, Part 2)

 

GN 02250.000 WAIVER PROVISIONS FOR TITLE II, TITLE XVIII AND BLACK LUNG OVERPAYMENTS

 

SUBCHAPTER TABLE OF CONTENTS

 

Section Latest

Transmittal

Waiver -- Title II, XVIII, Black Lung .... GN 02250.001 TN 13 08-96

Request for Waiver -- Title II, XVIII, TN 13 08-96

Black Lung ............................... GN 02250.002

FAULT

Fault Findings -- Waiver ... GN 02250.005 TN 13 08-96

Undocumented Allegations -- Waiver -- TN 13 08-96

Title II, XVIII, Black Lung .............. GN 02250.010

Fault in Special TN 13 08-96

Circumstances ............................ GN 02250.015

Incorrect Benefit Rates -- Waiver of TN 13 08-96

Overpayment Recovery ..................... GN 02250.020

Lack of Insured Status -- Waiver of TN 13 08-96

Overpayment Recovery ..................... GN 02250.022

Duplicate Payments -- Waiver of TN 14 02-98

Overpayment Recovery ..................... GN 02250.024

Subsequent Overpayments -- Waiver of TN 14 02-98

Overpayment Recovery ..................... GN 02250.026

Benefits Not Terminated When Child TN 14 02-97

Attains Age 16, 18 or 19 --Waiver of

Overpayment Recovery ..................... GN 02250.030

Family Relationship -- Waiver Title II, TN 14 02-98

XVIII, Black Lung ........................ GN 02250.032

Payment Continuation -- Waiver Title II, TN 14 02-98

XVIII, Black Lung ........................ GN 02250.036

Return to or Increase in Work - TN 13 08-96

Disability Case -- Waiver ................ GN 02250.038

Overpayment Caused by Receipt of TN 13 08-96

Workers' Disability

Benefits -- Waiver ....................... GN 02250.040

Incorrect Disposition of Properly TN 13 08-96

Reported Event -- Waiver ................. GN 02250.042

 

Overpayment Resulting from Continued TN 13 08-96

Payments to Incarcerated Felons -- Waiver GN 02250.044

Failure to Report Receipt of Black Lung TN 13 08-96

Benefits -- Waiver ....................... GN 02250.046

Misunderstanding About Allowable Wage TN 13 08-96

Earnings -- Waiver ....................... GN 02250.060

Misinformation From an Official Source TN 13 08-96

-- Waiver ................................ GN 02250.061

Short Taxable Year Ending in Death -- TN 13 08-96

Waiver ................................... GN 02250.062

Individual Not Aware That Earnings TN 13 08-96

Before First Month of Entitlement Would

Cause Deductions -- Waiver ............... GN 02250.064

Earnings Greater Than Anticipated -- TN 13 08-96

Waiver ................................... GN 02250.065

Continued Issuance of Checks After TN 13 08-96

Event Reported --

Waiver ................................... GN 02250.066

Lack of Knowledge That Special Types of TN 13 08-96

Payments (Bonus, Vacation Pay, Traveling

Expenses, etc.) Are Included for

Deduction Purposes --Waiver .............. GN 02250.067

Confusion About Charging Provision of TN 13 08-96

Annual Earnings Test --Waiver ............ GN 02250.069

Overpaid Person Unaware That Actions of TN 13 08-96

Another Affect Amount of or Entitlement

to Benefits -- Waiver .................... GN 02250.070

Person Not Aware That Earnings After TN 13 08-96

Termination of Entitlement Would Cause

Deductions for Prior Months -- Waiver .... GN 02250.071

Overpayment Caused by Failure To TN 13 08-96

Understand Deduction or Entitlement

Provisions or by Unusual or Unavoidable

Circumstances --Waiver ................... GN 02250.072

DEFEAT THE PURPOSE

Defeat the Purpose ....................... GN 02250.100 TN 13 08-96

Defeat the Purpose When the Person Has TN 13 08-96

Possession of All or Part of the

Overpayment .............................. GN 02250.105

 

Public Assistance -- Waiver .............. GN 02250.110 TN 14 02-98

Application of Defeat the Purpose TN 14 02-98

Provisions ............................... GN 02250.115

Income and Ordinary and Necessary Living TN 14 02-98

Expenses ................................. GN 02250.120

Assets -- Waiver ......................... GN 02250.125 TN 14 02-98

Household Membership and Defeat the TN 14 02-98

Purpose .................................. GN 02250.130

EQUITY AND GOOD CONSCIENCE

Against Equity and Good Conscience ....... GN 02250.150 TN 11 08-91

When Recovery is Deemed Against Equity TN 11 08-91

and Good Conscience ...................... GN 02250.160

DEVELOPING WAIVER REQUESTS

Developing a Request for Waiver .......... GN 02250.200 TN 14 02-98

Completion of the (Request TN 14 02-98

for Waiver of Overpayment Recovery or

Change in Repayment Rate) ................ GN 02250.230

Completion of the Without Fault TN 11 08-91

Statement, Section I of the ... GN 02250.235

Completion of the Financial Statement of TN 14 02-98

the Overpaid Person, Section II of the

............................... GN 02250.240

Completion of the Recovery Interview TN 14 02-98

Supplement - ................. GN 02250.243

Waiver Development Check List ............ GN 02250.244 TN 14 02-98

Proving Allegations on the .... GN 02250.250 TN 10 06-90

Acceptable Proof ......................... GN 02250.255 TN 14 02-98

Allegations on the as Leads TN 14 02-98

for Nonwaiver Issues ..................... GN 02250.260

Development of Waiver of Recovery of TN 14 02-98

Title XVIII Overpayments ................. GN 02250.290

DOCUMENTING WAIVER ALLEGATIONS

Delegations of Authority for Waiver TN 14 02-98

Determinations ........................... GN 02250.300

Waiver Decisionmaker ..................... GN 02250.301 TN 14 02-98

When a Waiver Determination Will Not Be TN 14 02-98

 

Made ..................................... GN 02250.305

Amount for Which Waiver Is Considered .... GN 02250.310 TN 14 02-98

Documenting the Waiver Determination ..... GN 02250.315 TN 14 02-98

Automatic or Blanket Waiver .............. GN 02250.320 TN 11 08-91

Waiver of Recovery After Administrative TN 11 08-91

Change of Position ....................... GN 02250.325

Blanket Waiver for Dollar Down Rounding TN 12 12-93

Overpayments ............................. GN 02250.330

Waiver Determination for Automatic or TN 12 12-93

Blanket Waiver ........................... GN 02250.340

Waiver Under the $500 Tolerance .......... GN 02250.350 TN 12 12-93

Effect of Waiver ......................... GN 02250.360 TN 12 12-93

Waiver Notice ............................ GN 02250.370 TN 12 12-93

Appeal of Waiver Determination ........... GN 02250.380 TN 12 12-93

Reopening of Waiver Determination ........ GN 02250.385 TN 10 6-90

Completion of Waiver Actions ............. GN 02250.390 TN 10 6-90

Form , Request for Waiver of TN 11 8-91

Overpayment Recovery or Change In

Repayment Rate - Exhibit ................. GN 02250.400

Form , Recovery Interview TN 10 6-90

Supplement Exhibit ....................... GN 02250.405

, Waiver Determination - Exhibit .. GN 02250.410 TN 10 6-90

Sample for Waiver Approval - TN 10 6-90

Exhibit .................................. GN 02250.415

Sample for Waiver Denial - TN 10 6-90

Exhibit .................................. GN 02250.420

Sample for Waiver Determination TN 10 6-90

- Combined Waiver Approval and Denial -

Exhibit .................................. GN 02250.425

GN 02250.001

WAIVER PROVISIONS FOR TITLE II, TITLE XVIII AND BLACK LUNG OVERPAYMENTS

Audience:

--CR, CRTII, CRTXVI, DRT, FR, OA, OS, RR, SR, ; PSC--BA, CA,

CRTA, CS, DMS, ICDS, IES, ISRA, RECONR, RECOVR; IND--BATA, EHI,

RCOVTA, RECONR, RECOVR; SHARE--BA, PLS, PC; --BA, CTS,

FCR, PETE, RECOVR

Citation

Section 204 of the Social Security Act; Sections 404.502a through 404.512

 

of SSA Regulations No. 4; Section 413(b) of the Federal Coal Mine Health

and Safety Act of 1977, as amended; Section 410.561 of Regulations No. 10;

      30 U.S.C. 923(b)

 

==============================================

 

 

PROGRAM OPERATIONS MANUAL SYSTEM

 

General (GN, Part 2)

 

GN 02250.290 Development of Waiver of Recovery of Title XVIII Overpayments

 

PROCEDURE

 

Take requests for waiver of recovery of title XVIII overpayments, but do

not make decisions on the requests. Forward the completed to

HCFA. Notify the PC so the ROAR record can be deleted.

[ DDS POMS ]

GN 02250.300

DOCUMENTING WAIVER ALLEGATIONS

 

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PROGRAM OPERATIONS MANUAL SYSTEM

 

General (GN, Part 2)

 

GN 02250.310 Amount for Which Waiver Is Considered

 

A. POLICY

 

Waiver may be requested at any time, even if the overpayment has been

partially or completely recovered.

 

1. Outstanding Balance

 

In the usual situation, waiver is requested when there is still an

outstanding overpayment balance. In that case, waiver will be considered

only for the amount still owed SSA as of the date of the waiver request,

unless the person specifies that he is requesting waiver on the entire

overpayment amount.

 

2. Overpayment Recovered

 

If waiver is requested after the overpayment is completely recovered,

waiver must be considered for the entire overpayment amount.

 

3. Went Into Debt

 

For recovery to defeat the purpose for amounts already recovered, the

person must show that he went into debt to repay the overpayment.

 

4. Refund Without Protest

 

A refund received without protest or a plea for relief is prima facie

evidence that recovery would not defeat the purpose.

 

B. PROCEDURE

 

1. Refund With Protest or While Waiver Pending

 

If a refund is accompanied by a protest or plea for relief, deposit the

refund in the trust fund. When making a defeat the purpose finding,

consider the refund along with the other facts about the financial

circumstances of the person. If waiver is approved for the amount refunded,

return the refund to the sender.

 

2. Refund After Waiver Determination

 

If waiver was granted because recovery was against equity, return the

refund to the sender.

If waiver was granted because recovery defeated the purpose, determine if

the money was borrowed or the person was deprived of funds needed for

ordinary and necessary living expenses.

If investigation of the refund indicates that recovery does not defeat the

purpose, reopen the waiver determination; hold a personal conference;

revise the determination based on the facts; attach a statement to the

initial waiver determination showing the change and notify the person

accordingly.

If the waiver determination is not reopened, return the refund to the

sender.

 

[ DDS POMS ]

GN 02250.315

 

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PROGRAM OPERATIONS MANUAL SYSTEM

 

General (GN, Part 2)

 

GN 02250.330 Blanket Waiver for Dollar Down Rounding Overpayments

 

A. POLICY

 

Any time an overpayment is caused solely by dollar down rounding, recovery

of that overpayment is automatically waived. If an overpayment is caused by

dollar down rounding and some other event, only that part of the

overpayment attributed to dollar down rounding can be automatically waived.

 

B. PROCEDURE

 

1. Notice

 

Do not notify the person or attempt recovery of an overpayment due solely

to dollar down rounding. If an automated notice is sent, take no action

unless the person protests the overpayment (i.e, if the person chooses to

refund the overpayment, accept the refund). If a protest is received, waive

recovery and notify the person of the waiver. If manual notice is needed

for an automated action and the automated action is incorrect based on the

automatic waiver, correct the action and, if needed, send notice.

 

2. Documentation

 

If there is no output showing the dollar down rounding overpayment,

document the waiver determination on an . In item 11(a) show "person

had no control over the benefit computation;" in item 11(b) show "recovery

would be against equity and good conscience (GN 02250.150)." Otherwise,

document the output showing that automatic waiver was approved and giving

the same rationale.

Input the waiver approval.

 

3. Examples

 

Example 1

Elizabeth Adams is dually entitled to RIB and wife's benefits. In June

1989, the processing of her 1988 annual report of earnings results in a

$1,500 excess payment for 1988. Because of her 1988 deduction months, DRC's

increase Mrs. Adams' RIB effective January 1989, but recalculation of the

wife's benefit and dollar rounding of both benefits result in a $1 payment

decrease. Mrs. Adams is overpaid $1,505 (i.e., $1,500 excess payment for

1988 plus $5 excess payment for January through May 1989). However, since

the $5 excess 1989 payment due to rounding should be waived, recovery of

only the 1988 excess payment of $1,500 is requested. Based on her 1989

estimate (and the refigured benefits effective January 1989), Mrs. Adams is

 

due no payment for January through March 1989. Although she had received

1989 benefits totaling $1,530 (i.e., $510 monthly January through March

1989), benefits are deferred to adjust a $1,527 incorrect payment (i.e.,

$510 X 3 minus the $3 to which blanket waiver applied).

Example 2

Alex and Diane Fraser each receive $80 a month child's benefits. Their

brother Charles, who lives in the same household, comes on the rolls in

3/89 with entitlement retroactive to 1/89. Alex and Diane's benefits are

reduced to $53 a month effective 1/89. Since they have each received $80 a

month for these two months, they are overpaid $108 ($54 each). Charles is

due $106 ($53 for 1/89 and 2/89). After netting the amount due the family

against the amount paid, Alex and Diane are overpaid $1 each. Blanket

waiver applies to these overpayments.

[ DDS POMS ]

GN 02250.340

 

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PROGRAM OPERATIONS MANUAL SYSTEM

 

General (GN, Part 2)

 

GN 02250.350 Waiver Under the $500 Tolerance

 

A. POLICY

 

When a liable person requests waiver and the total amount of that person's

liability is $500 or less, recovery will be waived because it would impede

the efficient administration of the Act unless there is some indication

that the person may not be without fault.

 

1. When the Tolerance Applies

 

a. Application of the $500 tolerance depends on the total amount of a

person's liability. Thus a person who is liable for several overpayments

which total over $500, even though each is under $500, cannot be

considered for waiver under this tolerance.

b. Consideration of waiver under the tolerance is also dependent on

overpayments to other members of the household. In single family

situations where one request for waiver can be used for all household

members, the largest liability any person has will determine if the

tolerance applies. Thus if one household member has liability for an

overpayment of $800, waiver under the tolerance cannot be considered for

any other member of that household, even though their liabilities are

under $500.

c. If there is an indication that the person may be at fault in causing the

overpayment, the tolerance cannot be used. Full waiver development is

necessary. For example, the person requesting waiver is overpaid for the

second time because of work and earnings. Since this is the second

overpayment for the same reason, there is an indication that the person

may be at fault. Full waiver development must be done. This does not

mean that without fault cannot be found, only that full waiver

development is necessary.

 

2. When Reconsideration Is Treated as Waiver

 

If reconsideration is requested on the amount of the overpayment and the

person is liable for an overpayment of $500 or less (see 1.b. above), treat

the reconsideration as a request for waiver if there will be no effect on

current or future benefits (GN 02201.013).

 

3. Development

 

Neither full development nor an is required for waivers which

will be processed under this provision.

 

 

4. Who Processes Request

 

Either the FO or the PC can process any waiver request involving the

tolerance.

Only the PC can process reconsideration requests involving the tolerance.

 

B. PROCEDURE

 

1. How to Take Request

 

Verify the amount of the overpayment before taking a waiver request using

this provision. If the requirements are met, annotate on the written waiver

determination that the person requested waiver.

 

2. How to Document

 

The waiver determination must always be in writing. If the waiver request

is in writing, document the waiver determination in tolerance cases on the

waiver request (e.g., letter). If there is no written request (see 1.

above), document the determination on an . The determination should

read: "Waiver approval. Overpayment is $500 or less and recovery will

impede the efficient administration of the Act."

[ DDS POMS ]

GN 02250.360

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PROGRAM OPERATIONS MANUAL SYSTEM

 

Supplemental Security Income (SI, Part 5)

 

SI 02260.001 SSI Overpayment - Basic Requirements Concerning Waiver

 

See SI R02260.001 PHI

 

A. POLICY

 

The policy for basic requirements concerning waiver follows.

 

1. When to Waive

 

The recovery of an overpayment is waived when the liable individual (SI

02201.020) is without fault in causing the overpayment, and recovery or

adjustment would:

o Defeat the purpose of title XVI of the act (SI 02260.020); or

o Be against equity and good conscience (SI 02260.025); or

o Impede effective or efficient administration of title XVI of the act (SI

02260.030) because of the small amount involved.

(See GN 02250.320 for automatic waivers. See GN 02250.325 for waiver after

administrative change of position.)

 

2. Effect of Waiver

 

The effect of an approved request for a waiver is to relieve the overpaid

individual, estate and spouse of the obligation to repay

the amount of the overpayment which is waived.

 

3. Waiver Requested

 

A person can request waiver at any time. Once the request is made:

a. Development is: only for the person(s) who liable for making

repayment.

b. You do not have to make a waiver determination for a representative

payee when the representative payee is without fault and used the funds

on behalf of the recipient. The representative payee has no personal

liability for repayment in such situations. (See SI 02201.021 for

discussion of liability and waiver when there is a representative

payee.)

 

4. Effect of Waiver Request

 

A request for waiver stops recovery or adjustment effective with the month

the request is filed. Recovery or adjustment is not resumed until you have

made the waiver determination.

 

B. PROCEDURE

 

Follow the procedures below on waiver provisions for SSI Overpayments.

 

1. Action Following Waiver Requests

 

If you cannot make the determination in 10 days:

a. Stop ; and

b. Return by automated payment (AOTP) (SM 01311.130) the amount

withheld in the month the request is filed.

 

2. Action Following Approved Waiver Request

 

 

a. Refund, by AOTP, any money which has been withheld that is subject to

the waiver determination.

b. Do not refund payment withheld when:

o There is another collect decision (i.e., different period of

overpayment); or

o An unresolved overpayment exists.

c. Transmit waiver decision (SM 01311.405 - SM 01311.406).

d. When there is a legal guardian or representative, prepare manual notice

of approved waiver. (See NL 00803.200A.)

 

3. Action Following Denial of Waiver Request

 

a. Prepare manual waiver denial notice (see NL 00803.200B.).

b. adjustment only after 30 days (plus 5 days for mailing)

have passed from the date of the notice of waiver denial.

 

C. REFERENCE

 

For instructions on title XVI overpayments involving alien supplemental

security income (SSI) recipients and their sponsors, see SI 00205.001 - SI

02205.005.

SI 02260.005

 

============================

 

 

 

PROGRAM OPERATIONS MANUAL SYSTEM

 

Systems and Methods (SM, Part 8)

 

SM 00610.721 Recovery of an Overpayment from Other than the Overpaid Person

 

A. POLICY

 

When a debt cannot be recovered from the overpaid person, then recovery

action against a contingently liable beneficiary, on the record receiving

benefits, should be initiated.

 

B. PROCEDURE - ADJUSTMENT AGAINST CONTINGENTLY LIABLE BENEFICIARY

 

Send an initial overpayment notice to the contingently liable person

informing that recovery of the overpayment will be initiated

against benefits.

Post the overpayment to the contingently liable person's ROAR record and

remove it from the overpaid person's record.

o If the contingently liable person is on the MBR and in LAF C, D or E,

then input an Establish Offset (Other Liable Person) (DROL) screen to

begin offset (in 30 days).

o If the person liable for repayment is not on the MBR or is not in a LAF

of C, D or E, delete the overpayment from the overpaid person via the

SMTC screen and post the overpayment via the SMED screen, or use MADCAP,

as outlined in SM 00610.772.

If you wish to recover the overpayment of more than one beneficiary from a

single contingently liable person, do not combine the overpayments into one

event for the contingently liable person. Post each separate overpayment

from each of the overpaid beneficiaries as a separate event to the

contingently liable person's ROAR record. This allows separate liability

determinations to be input, if necessary.

 

C. PROCEDURE - BENEFICIARY PROTESTS

 

If the beneficiary protests the overpayment, the will process the

request for waiver as in any other waiver request. A Recovery

Request (DRPF) screen will be input to stop withholding against the

contingently liable person.Do Not remove the overpayment from the

contingently liable person. The overpayment remains on that record until a

waiver determination has been made.

 

D. PROCEDURE - INPUT WAIVER DECISION

 

The will take the following steps to input the initial waiver

decision on the Waiver Disposition (DRWD) screen. The overpayment, at this

point, should be shown on the other liable beneficiary's ROAR record. Use

 

that and debt number on the Debt Resolution Menu (DRMU) in order to

access DRWD. On DRWD, in XREF BIC, enter the of the

primarily liable debtor.

If the initial waiver decision is an approval, also input Review Waiver

Disposition (DRWR), if necessary. DMS then deletes the overpayment from the

contingently liable person (TC07), reposts it to the primarily liable

person (TC10) and posts the waiver approval decision on the primarily

liable person's record (TC54).

If the initial waiver decision is a partial approval, also enter a DRWR if

necessary. DMS holds the initial waiver decision for denials and partial

approvals until a Process Personal Conference (DRPC) screen is completed. A

TC23P is posted to the ROAR record of the contingently liable person if a

DRPC screen isnot completed on the same day.

If the initial decision is a denial, complete the DRPC screen. If review of

the personal conference is necessary, also complete DRPW.

 

E. PROCEDURE - WAIVER APPROVAL

 

If waiver is approved or partially approved against the contingently liable

person, then followup activity on the primarily liable debtor's record is

necessary.

If there are any other beneficiaries on the record in current pay from whom

the overpayment could be recovered, input a DROL screen to begin offset

against the other beneficiary. Send an initial overpayment notice.

NOTE: Be sure to verify that the waiver request received from the initial

recovery efforts did not include all other beneficiaries in the household

before initiating recovery.

If the overpayment had been loaded to RECOOP, and there are no other

beneficiaries to request recovery from, make a determination if collection

should be terminated or develop for civil suit.

If the overpayment has never been loaded to RECOOP, input a Record

Installment Agreement (DRIN) screen to load the case into RECOOP.

 

F. REFERENCES

 

Adjustment of Benefits Due Other than the Overpaid Individual, GN 02210.007

Recovery Request (DRPR), MSOM 415-B

Waiver Disposition (DRWD), MSOM 415-C

Review Waiver Disposition (DRWR), MSOM 415-D

Process Personal Conference (DRPC), MSOM 415-H

Review Personal Conference (RSI) (DRPW), MSOM 415-I

Record Installment Agreement (DRIN), MSOM 415-N

 

[ DDS POMS ]

SM 00610.725

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