1. 1 OVERPAYMENTS Basic Benefits Training Disability Law Center November 2012

2. 2 WHAT IS AN OVERPAYMENT? An overpayment is the total amount an individual received for any period which exceeds the total amount which should have been paid for that period. Once a determination of overpayment is made, the overpaid amount is a debt owed to the United States Government. GN 02201.001; 20 CFR §§ 404.501(a); 416.537, 416.538.GN 02201.001404.501(a); 416.537416.538

3. 3 WHAT IS NOT AN OVERPAYMENT ? Presumptive disability or blindness payments which would have been correct if the disability or blindness determination would have been favorable. However, an overpayment results if nondisability factors (excess income, SGA, resources, L/A) cause the incorrect presumptive payments. Forged checks. Collection of improperly negotiated checks is under the jurisdiction of the United States Treasury Department. Payments due the recipient but misused by a representative payee. SI 02201.010SI 02201.010

4. 4 HOW DO OVERPAYMENTS HAPPEN? Earned income not reported or not entered into SSA system Fluctuations in countable earned income SSI excess resources SSI living arrangement changes SSDI work related cessations (SGA) SSDI medical cessations

5. 5 LIABILITY FOR OVERPAYMENTS Current/former SSI/SSDI recipients Auxiliaries (spouse, child eligible on the same earnings record) 20 CFR § 404.502404.502 Representative Payees Alien’s Sponsors Estate of a Deceased Recipient or Spouse The determination of liability for repayment is an “initial determination” subject to appeal. SI 02201.005SI 02201.005

6. 6 LIABILITY FOR OVERPAYMENT- REPRESENTATIVE PAYEE SSA will attempt recovery from: The individual if the overpaid funds were used for her support and maintenance and the rep payee was not aware of the facts causing the overpayment. The representative payee if the overpaid funds were not used for the overpaid individual's S and M. The rep payee is personally liable for repayment of any misused funds. Both the individual and the payee if the overpaid funds were used for the overpaid individual's S and M and the rep payee was aware of the facts causing the overpayment.

7. 7 LIABILITY OF A SPOUSE FOR SSI OVERPAYMENTS If incorrect payments were received for the same period by an individual and eligible spouse, each is individually responsible for repayment of his/her own overpayment as well as for the other member's overpayment. SI 02201.022 Even if the members of a couple are no longer eligible as a couple, each remains responsible. SSA will recover against an eligible spouse for the eligible individual's overpayment only if:SI 02201.022 The eligible spouse was a member of the eligible couple when the overpayment occurred; The eligible spouse and eligible individual were living together when the overpayment occurred; and Recovery from the eligible individual is not possible. SI 02201.005SI 02201.005

8. 8 OVERPAYMENT NOTICE Clear language. Mailed (with SSA-3105) at least 30 days before recoupment starts.SSA-3105 Why and When the op happened Repayment Options Appeal Rights 20 CFR §§ 404.502a, 416.558;GN 02201.009, SI 02220.010404.502a416.55802201.009SI 02220.010 An overpayment does not exist until the initial notice of overpayment is released. SI 02201.025SI 02201.025

9. 9 PRE-RECOUPMENT REVIEW Opportunity to contest the overpayment determination. There should be no recovery until 60 days after SSA notifies the overpaid person. Recovery must stop if a reconsideration or waiver is filed. GN 02201.011GN 02201.011

10. 10 AVAILABLE PROCEDURES Appeal (Reconsideration Request)-Form SSA-561-U2 SSA-561-U2 Waiver-Form SSA-632-BK SSA-632-BK BOTH

11. 11 RECONSIDERATION  Challenges the fact/amount of the overpayment. Same appeal steps as with application denials. Must be in writing & filed within 60 days of receipt of the notice (+ 5 days for mailing). Good cause for late filing provisions apply. 20 CFR §§ 404.909; 416.1409; GN 03101.020404.909 416.1409GN 03101.020

12. 12 “GOOD CAUSE” FOR FILING RECONSIDERATION LATE Circumstances that explain late filing: SSA or CMS actions were confusing or misleading; the claimant did not understand the legal requirements; and the claimant’s physical, mental, educational, or linguistic limitations prevented timely filing. “unusual or unavoidable circumstances.” 20 CFR 404.911; 416.1411; GN 03101.020404.911416.1411GN 03101.020

13. 13 NO RECOUPMENT DURING RECONSIDERATION SSA can not start recoupment if a Recon Request is filed within 30 days. Recoupment must stop once a Recon Request has been filed and must not start again until the initial decision. SSA should refund improperly recouped benefits. 20 CFR §§ 404.502a (h); 416.575(b); GN 02201.025, SI 02220.017404.502a (h416.575(bGN 02201.025SI 02220.017

14. 14 Termination, Suspension or Reduction of Benefits + Overpayment 2 separate cases 2 separate appeals required Right to Statutory Benefits Continuation (CBC) of medical cessation or reopening/revision. GN 12027.001

15. 15 WAIVER REQUEST An overpaid individual agrees with the fact/amount of the overpayment but asks to waive repayment. No deadline for filing. If filed within 30 days of receipt of notice, recoupment can’t begin until initial waiver decision. 20 CFR §§ 404.506; 416.575(d)404.506 416.575(d) If SSA started recoupment when a waiver is filed, the waiver will NOT cover benefits already repaid unless the waiver specifically covers the entire overpayment (the person must show that s/he went into debt to repay part of the overpayment).

16. 16 NO RECOUPMENT WHILE WAIVER IS PENDING Recoupment must stop once a waiver request is filed and cannot resume until the initial waiver decision. SSA should refund improperly recouped benefits. Prerecoupment review. Right to a personal conference face-to-face, by telephone, of video conference. 20 CFR §§ 404.506; 416.557(a); GN 02201.011, SI 02260.001, SI 02260.006.404.506416.557(a); GN 02201.011SI 02260.001SI 02260.006

17. 17 PERSONAL CONFERENCE File review at any time in the waiver process (no later than 5 days before the conference). GN 02250.002 “Prior to the conference, the person has the right to review anything having to do with the overpayment that is in the claims folder or is stored electronically as well as applicable law and regulations with the decision maker or an SSA representative who is prepared to answer questions.” GN 02270.009GN 02250.002GN 02270.009 Personal appearance with or without a representative to testify, cross-examine and submit documents; De novo review. 20 CFR §§ 404.506; 416.557; GN 02270.005404.506416.557GN 02270.005

18. 18 PROCESSING A WAIVER REQUEST SSDI cases: An ALJ hearing is the next level of appeal after a personal conference. If there was no personal conference, a Reconsideration (of waiver denial) is the next level of appeal. 20 CFR §§ 404.506 (h), 404.907, 404.930(a)(6). GN 02250.380 404.506 (h), 404.907404.930(a)(6GN 02250.380 SSI cases: Appeal is a Reconsideration whether or not there is personal conference. 20 CFR 416.557 (f), 416.1413; SI 02260.006B.7416.557416.1413SI 02260.006B.7

19. 19 WAIVER-WHEN APPLICABLE  Recipient is without fault in causing OP, AND  Adjustment or recovery would either:  “Defeat the purpose” of the Social Security Act, OR  Be “against equity and good conscience,” or  “Impede effective administration of Social Security Act” because of the amount involved. 20 CFR §§ 404.506 (a), 416.550. GN 02250.001; SI 02260.001.404.506 (a), 416.550GN 02250.001 SI 02260.001

20. 20 WHEN SSA WILL FIND FAULT An overpaid SSI/SSDI recipient: Failed to furnish information which s/he knew or should have known was material; or Made incorrect statements which s/he knew or should have known were incorrect, or Did not return a payment which s/he knew or could have been expected to know was incorrect. 20 CFR §§ 404.507, 416.552404.507416.552

21. 21 WHAT SSA MUST CONSIDER WHEN DETERMINING “WITHOUT FAULT” Any physical, mental, educational or linguistic limitations, understanding of the reporting requirements and efforts to report, understanding of the obligation to return payments not due, ability to recognize inconsistencies and evaluate the reasonableness of SSA's actions, experience in dealing with government agencies. understanding of the language used by SSA, misleading information from SSA. 20 CFR §§ 404.507, 416.552 404.507416.552

22. 22 “WITHOUT FAULT” DETERMINATION  SSA’s fault in causing the overpayment, alone, does NOT relieve an overpaid beneficiary of fault. If the evidence clearly shows the individual did not understand and comply with reporting responsibilities, that individual can usually be found without fault. Resolve any doubt in favor of the individual. GN 02250.005 20 CFR §§ 404.507; 416.552; SI 02260.010, SI 02260.015GN 02250.005404.507416.552SI 02260.010SI 02260.015

23. 23 WHEN SSA WILL FIND “FAULT” An overpaid beneficiary is at fault in causing the overpayment if the evidence shows a lack of good faith or failure to exercise a high degree of care in determining whether to report an event that might cause deductions or termination of entitlement. The degree of care varies with the complexity of the circumstances giving rise to the overpayment and the capacity of the beneficiary to realize that s/he is being overpaid. 20 CFR § 404.510404.510

24. 24 PRESUMED “NO FAULT” An overpaid beneficiary reasonably believed that only take-home (net) pay is included to determine SGA; GN 02250.060 GN 02250.060 Relied upon erroneous information from SSA. GN 02250.061 Unaware that earnings were above SGA due to retroactive pay increase, work at a higher rate than realized; GN 02250.065GN 02250.065 Good faith belief that checks were proper after SSA was informed of the SGA earnings. GN 02250.066GN 02250.066 20 CFR 404.510404.510

25. 25 ERRONEOUS INFOMRATION FROM SSA An overpaid beneficiary may be assumed to be without fault if the person relied upon erroneous information from an official source within SSA with respect to the interpretation of a pertinent provision of the Act or regulations. 20 CFR 404.510a404.510a

26. 26 OVERPAYMENT AS A RESULT OF INCORRECT BENEFIT RATE OR LACK OF INSURED STATUS A person cannot be charged with knowledge of how benefit rates are computed. When the error results in a payments clearly out of line with what could have reasonably been expected, without fault can be established only be clear and convincing evidence. GN 02250.020GN 02250.020 A person is without fault if an overpayment is due to an error in computing insured status. If an earnings record is fraudulent, a finding of without fault cannot be made unless it is clear that the person was not involved in the fraud. GN 02250.022GN 02250.022

27. 27 HOW TO PROVE “NO FAULT”? Education and work history Mental/physical capacity, ability to understand/ comply with SSA rules Ability to understand/respond to SSA notices Prior experience with similar issues What does the individual recall being told about reporting responsibilities during the application, redeterminations and prior requests for reconsideration or waiver of an overpayment?

28. 28 HOW TO PROVE “NO FAULT”? Did the individual receive any written reporting instructions at the time of initial application? How many redeterminations has the person had and/or has the person been eligible for SSI more than once? Is the change that caused the overpayment the one that normally would have been covered during a discussion of reporting requirements or is it a unique occurrence? Could a reasonable person conclude that the change was so insignificant as not to affect payment amount or eligibility?

29. 29 WHEN COLLECTING OVERPAYMENT WILL “DEFEAT THE PURPOSE OF THE ACT” ? The issue is ability to repay. If SSI or other public assistance benefits involved, SSA presumes that recovery of the overpayment will “defeat the purposes of the Act”. 20 CFR §§ 416.553 Food stamps, State medical assistance, unemployment benefits and workers' compensation are not public assistance. GN 02250.110 416.553GN 02250.110 For others, SSA must consider a monthly budget picture, all household finances. 20 CFR §§ 404.508404.508

30. 30 INABILITY TO REPAY THE OVERPAYMENT Beneficiary uses substantially all of monthly income to meet “ordinary and necessary living expenses” (food, clothing, rent, utilities, medical bills, expenses for support of others) GN 02250.100GN 02250.100 Assets cannot exceed $3,000 for an individual or $5,000 for an individual and one dependent (+$600 for each additional dependent) GN 02250.115GN 02250.115 If any of the overpaid funds are retained recovery will not defeat the purposes of the act. 20 CFR §§ 404.508; 416.553; SI 02260.020. 404.508416.553SI 02260.020.

31. 31 OVERPAYMENT COLLECTION WILL “DEFEAT THE PURPOSE OF THE SS ACT”-CURRENT SSI ELIGIBILITY Current total income does not exceed: The Federal Benefit Rate (FBR); plus The $20 general income exclusion; plus The $65 earned income exclusion; plus The federally administered State supplementary level. In SSI overpayment cases SSA uses only that portion of the income of the spouse, parent or essential person which is deemed for computation purposes to determine the individual’s income. SI 02260.020SI 02260.020

32. 32 ACCEPTABLE EXPENSES TO EVALUATE ABILITY TO REPAY No rigid restrictions on acceptable expenses. Exclude nonessential expenses (entertainment). Allow such expenses as are consistent with the person's standard of living, but “do not allow expenses that help a person maintain a luxurious standard of living that developed as the result of the incorrect payments.” Consider any unusual individual circumstances. GN 02250.120GN 02250.120

33. 33 “AGAINST EQUITY AND GOOD CONSCIENCE” An overpaid beneficiary relinquished a valuable right or changed position for the worse in reliance on SSDI/SSI payments or an overpaid beneficiary lived in a separate household from the overpaid person at the time of the overpayment and did not receive the overpayment. GN 02250.150GN 02250.150 Against equity is presumed if there was: Misunderstanding about gross vs. take-home pay. GN 02250.060 GN 02250.060 Reliance on misinformation from an official source. GN 02250.061 GN 02250.061 Earnings prior to the first month of entitlement. GN 02250.064GN 02250.064

34. 34 “AGAINST EQUITY AND GOOD CONSCIENCE” Groseclose v. Bowen, 809 F.2d 502 (8th cir. 1987) expanded the notion of against equity and good conscience. Adopted in 20 CFR § 404.509404.509 Financial circumstances are not material. 20 CFR §§ 416.554; SI 02260.025, GN 02250.150, GN 02250.160.416.554SI 02260.025GN 02250.150GN 02250.160.

35. 35 ADMINISTRATIVE TOLERANCE An overpaid individual who requested a waiver is without fault and has an overpayment $1,000.01 or less – recoupment waived. Can be applied to subsequent overpayments (each overpayment counted separately). 20 CFR § 416.555; SI 02260.030416.555SI 02260.030 If an overpayment results from excess resources of $50 or less, and no indications of fault, waiver granted, even if not requested. 20 CFR § 416.555; SI 02260.035416.555SI 02260.035

36. 36 OVERPAYMENT RECOVERY Refund-overpayment is paid in one or several monthly installments. 20 CFR 416.560 416.560 Adjustment- SSA deducts money from the monthly benefit check until the overpayment is repaid. 20 CFR §§ 404.515; 416.570 404.515416.570

37. 37 10 YEAR BAR TO ADJUSTMENT OF RECOVERY Recovery by adjustment is barred more than 10 years after a debt accrues when the means to collect by benefit withholding was available but no recovery efforts were initiated. The bar applies to the debt not the debtor. Barring recovery of one debt under the 10-year rule does not relieve the debtor of other debts. The 10-year bar does not apply when: Cross-program recovery is involved or an unresolved protest or appeal is the cause of SSA's inaction. GN 02210.003; HHS Regulation, 45 C.F.R., Section 30.12(a)(4)GN 02210.003HHS Regulation, 45 C.F.R., Section 30.12(a)(4)

38. 38 OVERPAYMENT RECOVERY FROM SSI RECIPIENTS Recoupment is limited to the lesser of total monthly SSI or 10 % of the total monthly income (SSI with state supplement and countable income) 20 CFR § 416.571416.571 Where the overpaid beneficiary cannot meet “current ordinary and necessary living expenses” recoupment may be reduced to less than 10 % up to $1/month. 20 C.F.R. § 416.571§ 416.571

39. 39 OVERPAYMENT RECOVERY FROM SSDI RECIEPIENTS SSA can recover 100% of the monthly benefit. Any part of SSDI benefit needed to repay Medicare Part B (SMI) premiums will be applied to the premium obligation (including any arrearage) before any withholding to recover an overpayment. This partial adjustment should be automatic. GN 02210.070GN 02210.070 When there is no waiver request, SSA will consider a different rate of withholding only at the debtor's request. The installment amount should bear reasonable relationship to the amount owed but should not be less than $10.00 per month. GN 02210.214GN 02210.214

40. 40 OVERPAYMENT RECOVERY FROM SSDI RECIPIENTS A rate of withholding which would permit full recovery within 12 months or 36 months SSA will grant, without financial development, any request that is at least $10 and would permit recovery within 12 months. If the debtor is receiving another type of cash public assistance (VA service benefits,TANF) SSA should withhold at the rate requested but no less than $10. If a negotiated/requested rate would not permit recovery within 36 months but the debtor has a 100% Medicare Part D subsidy, SSA must grant, without financial development, any request that is at least $10. GN 02210.030GN 02210.030

41. 41 RATE OF WITHHOLDING Amount of withholding is not subject to appeal. If waiver denied because recovery would not cause hardship, SSA will limit withholding to the difference between income and expenses. EXAMPLE: A person is without fault in causing a $7500 overpayment but waiver is denied because the debtor can afford to repay $65 a month without financial hardship. Withholding is limited to $65 monthly. To request lower payments, use the budget portion of the Request for Waiver form to show hardship. GN 02210.030GN 02210.030

42. 42 OVERPAYMENT RECOVERY FROM SSDI+SSI RECEPIENTS When a person receives SSDI and SSI, only 10 % of the SSDI monthly benefit will be withheld to recover the title II overpayment. The 10% withholding rate will apply in concurrent claims unless the overpaid person specifically requests a greater (or lesser) rate of withholding. GN 02210.045 GN 02210.045

43. 43 WHEN SSA HAS ATUHORITY TO SETTLE AN OVERPAYMENT Unable (unwilling) to repay within a reasonable time; or Unwilling to repay the full debt and enforced collection is unavailable or is likely to exceed the amount recovered; or Real doubt concerning the Government’s ability to prove its case in court either because of the legal issues involved or a dispute as to the facts. GN 02215.100GN 02215.100

44. 44 COMPROMISE SETTLEMENT SSA does not have authority to compromise if the overpayment is > $100,000 ( goes to DOJ) or if the fraud was involved. An offer of 80% of the debt will be accepted if SSA has the authority to compromise. GN 02215.105 Finances not considered in compromise settlements. 20 CFR § 404.515; SI 02220.030; GN 02215.100GN 02215.105 404.515SI 02220.030 GN 02215.100

45. 45 OTHER RECOVERY OPTIONS Offset of Federal Tax Refunds. 20 CFR 404.526; 416.580 -.586; GN 02201.030 -.031, SI 02220.012.404.526 416.580GN 02201.030 SI 02220.012 Administrative Wage Garnishment. 20 C.F.R. 404.527; 416.590, 422.401 -.445. 404.527416.590422.401 Administrative Offset through the Treasury Offset Program (TOP) 20 CFR 422.310422.310 Private collection agencies Credit Reporting 20 CFR 422.305422.305

46. 46 CRITERIA FOR TREASURY REFUND OFFSET (TRO) The debtor is alive; Not entitled to benefits; Was 18 years or older when the debt was established on SSA's records; The debtor's BOAN (TIN) is on the MBR; The debt is $25 or more; The debtor is not making regular installment payments, or efforts to recover the debt have terminated; The debt is past-due, and legally enforceable. GN 02201.030GN 02201.030; SI 02220.012SI 02220.012

47. 47 INFORMATION IN THE TRO-PRE- OFFSET NOTICE Amount of the delinquent debt; SSA plans to refer the debt to Treasury for TRO and/or send information about the debt to credit bureaus after 60 days have expired from the date on the notice; No action before the end of that 60-days or if the debtor pays in full, makes regular installment payments, requests waiver, furnishes evidence showing that s/he does not owe all or part of the debt; a Right to review and copy SSA's records about the debt. GN 02201.030GN 02201.030

48. 48 TRO-LEGALLY ENFORCEABLE DEBT It has not been paid in full and recovery has not been waived; A bankruptcy petition is not currently pending in court and the debt was not previously discharged in bankruptcy; The debtor is alive; The debtor is primarily liable. GN 02201.030GN 02201.030

49. 49 SELECTION OF DEBT FOR CREDIT REPORTING The debt must have been paid to a person who was age 18 or older; “Unrecoverable”; Owed by a person who is no longer entitled to receive SSDI or SSI; The debtor must be alive; The debtor's BOAN (TIN) must be on the MBR, $25.00 or more and delinquent for no more than 6 years and 6 months SI 02220.014SI 02220.014

50. 50 ADMINISTRATIVE WAGE GARNISHMENT The debtor is alive and not entitled to benefits/Medicare based on disability/not using the Ticket to Work: The debt of $200 or more was established after age 18, and is past-due, and legally enforceable ( GN 02201.030C);GN 02201.030C The debtor has regular wages; The debtor was not involuntarily separated from employment or, if he was, has been re-employed continuously for at least 12 months; No installment payment arrangements or the debtor failed to make a payment for two consecutive months; No waiver or appeal is pending, and cross Program Recovery is not available. GN 02201.040GN 02201.040

51. 51 ADMINISTRATIVE WAGE GARNISHMENT The SSA decision to use AWG to collect an overpayment debt is not subject to appeal. Individuals may still request reconsideration of the overpayment determination. Since cases selected for AWG are by definition beyond the 60-day period for requesting reconsideration of the debt, the person must prove good cause for late filing. SI 02220.013SI 02220.013

52. 52 AWG DUE PROCESS RIGHTS-60 DAYS NOTICE Review of the Debt. No evidence in the record to show that the debtor does not owe the debt or does not owe it in the amount claimed by SSA or SSA is precluded from collecting it. IMPORTANT: The AWG request for review is not the same as a request for reconsideration of the fact/amount of the overpayment determination. No additional appeal rights exist. Request a Lower AWG Amount Due to Financial Hardship due to materially changed circumstances (disability, divorce, catastrophic illness). No AWG reduction if the overpayment resulted from fraud, an intentional false statement or willful concealment of, or failure to furnish, material information. Inspect and Copy SSA Records About the Debt

53. 53 FRAUD ISSUES An overpaid beneficiary will be found at fault A representative payee will have to repay the overpaid benefits SSA can refer overpayment cases to the Inspector General

54. 54 LIMITATIONS ON FILING A CIVIL SUIT TO COLLECT OVERPAYMENTS No question as to the fact or amount of a debt. The debtor's age, mental condition or physical condition Civil suit is not barred by SOL, the complaint must be filed within: 6 years after the right of action accrues (i.e., within 6 years after the time an overpayment determination has been made); or 1 year after a final decision has been rendered in an administrative proceeding, whichever is later. The time limitation will be extended if facts material to the right of action are not and could not reasonably have been known by SSA. GN 02215.150GN 02215.150

55. 55 BANKRUPTCY Automatic stay of collection activity with respect to the debtor, any minor child or legally incompetent adult child with the debtor as the representative payee and any contingently liable person. Binding on SSA, with any repayment limited to the terms of the bankruptcy order. SSA is subject to contempt citations if collection efforts occur after bankruptcy notification. GN 02215.190; SI 02220.040GN 02215.190; SI 02220.040

56. 56 BANKRUPTCY UNDER CHAPTER 7 All existing debts whether or not specifically included in the petition. A debt exists if the payments comprising that debt were made prior to the bankruptcy filing date (a pre-petition debt). It is not necessary for the debt to be identified in the petition or for the debt to have been identified by SSA. If the bankruptcy court issues a discharge order, it will discharge all debts that arose prior to date of filing. If the debtor did not list SSA as a creditor in the bankruptcy petition, in a “no assets” case, such unlisted debts are discharged. In cases where the debtor had assets, unlisted debts are only discharged if the creditor received actual notice of the bankruptcy in time to file a proof of claim. GN 02215.230GN 02215.230

57. 57 BANKRUPTCY UNDER CHAPTER 13 Applies to only those debts specifically included in the petition. However, at the time of filing the petition, the automatic stay applies to all debts that arose before the filing of the petition not just those listed in the petition. GN 02215.185. GN 02215.185

58. 58 SECOND WAIVER REQUEST FOR THE SAME OVERPAYMENT Possible if the claimant was denied a waiver based on ability to repay. Inability to repay is “current” ability to repay and SSA can consider changed circumstances. A final determination that the claimant was at fault is res judicata, in the absence of grounds to reopen. GN 02250.385GN 02250.385

59. 59 SUBSEQUENT OVERPAYMENTS Once an individual is advised of the correct interpretation of a provision, s/he will be found at fault for any subsequent overpayments involving the same provision. GN 02250.026GN 02250.026

60. 60 HOW TO AVOID OVERPAYMENTS Timely report anything that may affect eligibility/benefit amount Keep copies of SSA notices/documents submitted to SSA Know your rights and obligations Contact Benefits Planners if planning to work