Author: Attorney Desk Reference Manual
Last updated: December 2004
SSA defines an overpayment as an amount in excess of the amount actually due for any period.
The first questions are whether the recipient was in fact overpaid, and whether the calculation of the amount of the overpayment by SSA is correct.
Appeal: If there was no overpayment or the overpayment is overstated, the recipient should file an appeal contesting the allegation of the overpayment. Such as appeal must be filed within 65 days of the notice of overpayment, unless the recipient can show good cause for later filing. Important Note: Filing a reconsideration or waiver within 30 days will prevent recoupment until an initial decision is made.
Waiver: Whether or not the recipient agrees that there was an overpayment, the recipient should request a waiver of collection of the overpayment by SSA if s/he can argue s/he did not cause the overpayment and does not have enough money to pay it back. If a waiver is granted to the person overpaid, the debt is eliminated entirely.
For those disagreeing with the allegation of overpayment, or SSA's calculation of the amount of the overpayment, it is usually best to file an appeal and a request for waiver. SSA must stop recovery of any benefits when a waiver is requested, until a decision is issued after a personal conference. The personal conference is a hearing of sorts, described below. If, however, an appeal only is filed, without a request for waiver, SSA may recoup benefits after it has conducted a paper reconsideration review.
Standard for Waiver of Title II Disability Overpayment (20 CFR §404.506):
Standard for Waiver of SSI Overpayment (20 CFR §416.550):
The recipient was without fault in creating the overpayment AND recovery of the overpayment would either:
When SSA discovers an overpayment, it must send a notice of overpayment that includes the following:
Included with the notice should be SSA pamphlet SSA-3105 "Important Information About Your Appeal and Waiver Rights," which includes a tear-off form to request appeal and/or waiver.
If the individual who receives an overpayment notice appeals or requests waiver within 30 days of the date of the notice, SSA must take action to ensure that ongoing benefit payments are not interrupted. However, any time a waiver is requested, SSA must stop adjustment or recovery from benefits.
When the individual requests waiver, s/he completes a waiver questionnaire to support the claim that s/he is without fault in causing the overpayment and that recovery of the overpayment would either cause financial hardship or would be contrary to the Social Security Act. SSA (usually the local office) then reviews the questionnaire and the information it has and determines whether to approve waiver.
If SSA does not approve the waiver, it sends notice of the date, times and places for a file review and personal conference with a SSA representative. At the file review, the individual, with or without a representative, has the right to review the claims file and applicable law with the SSA claims representative. It must be at least 5 days before the personal conference. SSA will provide copies of file documents the recipient requests.
At the personal conference, the recipient is given the opportunity to:
The SSA decision-maker presiding at the personal conference must:
The notice of decision must set out the findings of fact and conclusions in support of the decision to approve or deny waiver, and contain an explanation of further appeal rights.
If SSA denies waiver after a personal conference, withholding of benefits begins even if the recipient seeks further appeal.
Under SSA's rules, if an individual fails to appear at a personal conference, a second conference is scheduled. If the individual fails to appear at a second scheduled conference, the decision is based on the evidence in SSA's records.
Although the decision after a personal conference is considered by SSA as an "initial decision" the next step in the appeal process is an ALJ hearing. The individual has 60 days (plus a five day mailing grace period) to make the request for an ALJ hearing.
If the individual had rejected the offer of a personal conference and files an appeal, the first step is a paper review under the SSA reconsideration step. The same 60 (65 with mailing) day deadline applies. If reconsideration is denied, the individual may request a hearing before an ALJ.
SSA Recovery Rate is limited to the lesser of 10% of the individual's countable income or monthly SSI benefit (unless the individual willfully withheld information, committed fraud, or agrees to a greater monthly recoupment rate).
SSA will take the entire monthly RSDI benefit unless the recipient enters into a repayment agreement which will pay off the overpayment within 3 years. SSA may extend the 3 years in cases of severe hardship.
Note: As a last resort, bankruptcy can discharge an overpayment, and prevent any additional recovery.
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