VCUBenefits Assistance Resource Center

Overview of SSA Work-Related

Overpayments

John Coburn, Consultant

Virginia Commonwealth University

Overpayment Basics: What You Need to Know as the

BPAO Project

OverpaymentsHappen

– For many reasons, individuals receive overpayments from Social Security Administration when they become employed.

– The best defense is a good offense----beneficiaries must report work income on a regular basis.

OverpaymentsHappen

– There is a difference between MORAL fault and LEGAL fault. While some may feel it is unfair to collect an overpayment from them, the law may still allow SSA to do so.

What is theBPAO Role?

• Advise consumer that currentdecisions about employment will not impact overpayment decisions.

• Provide support to consumer.

• Advise consumer of options and deadlines.

What is theBPAO Role?

• Refer consumer for representation to PABSS, if applicable, or other legal services organization.

• Provide evidence to build consumer’s case.

Consumer’s LegalOptions in…

Dealing with an Overpayment

• File a Request for Reconsideration

• File a Waiver

• Negotiate a Payment Plan

Request for Reconsideration

• SSA-561-U2 Form: “Request for Reconsideration” or Letter

• “The overpayment amount is incorrect and/or I was not overpaid.”

• Must be filed within 60 days unless good cause (5 day mailing rule applies).

Request for Reconsideration

• SSA will not recoup amount of overpayment until AFTER decision is made on Request for Reconsideration.

• When possible, a Request for Reconsideration should be filed.

Request for Reconsideration • Consumer and/or their advocates

must be proactive in filing a Requestfor Reconsideration.

• BPAO staff can be particularly helpful in providing evidence for a Request for Reconsideration.

Analysis of aReconsideration Case:

What Might the BPAO Know that Will “Make the Case.”

• Are the SSI calculations correct?

• Did SSA properly determine the Trial Work Period, Extended Period of Eligibility etc.?

Analysis of aReconsideration Case:

What Might the BPAO Know that Will “Make the Case.”

• Did SSA know about and consider IRWEs, the Student Earned Income Exclusion, Subsidies, etc?

• Could the individual have reapplied for benefits during the overpayment period?

Request for Reconsideration:

Appeals Process

• Administrative Law Judge

• SSA Appeals Council

• Federal Court

Request for Waiverof Overpayment

• Form SSA-632-BK: “Request for Waiver of Overpayment Recovery or Change in Repayment Rate”

• May be filed at ANY TIME.

Request for Waiverof Overpayment

• SSA will cease recoupment when filed. Therefore, recoupment will not begin if filed within 30 days of notice.

• Administrative Waiver: $500 or less.

Request for Waiverof Overpayment

• Current SSI beneficiaries do not have to complete entire waiver form.

Requirements to ReceiveFavorable Waiver Decision

PART 1

Was the Beneficiary without FAULT in Causing the Overpayment?

Waiver Fault Test

• SSA will consider individual’s age and intelligence as well as any physical, mental, educational, or linguistic limitations.

Waiver Fault Test

• SSA will find fault if the overpayment resulted from:

– An incorrect statement made by the individual which he/she knew or should have known to be incorrect;

Waiver Fault Test

– A failure to furnish information which he/she knew or should have known to be material;

– An acceptance of payment which he/she knew or could have been expected to know was incorrect.

Requirements to Receivea Favorable Waiver Decision

PART 2

Three Alternative Questions:

1. Would Recovery Defeat the Purpose of the SSI/SSDI Program?

Requirements to Receivea Favorable Waiver Decision

PART 2

Three Alternative Questions:

2. Would Recovery be Against Equity and Good Conscience?

Requirements to Receivea Favorable Waiver Decision

PART 2

Three Alternative Questions:

3. Would Recovery Impede the Effectiveand efficient Administration of the SSI Program?

Waiver Test Part 2: Undue Hardship

• SSI Beneficiaries automatically meet this test.

Waiver Test Part 2: Undue Hardship

• SSDI Beneficiaries must prove hardship:

• Resources less than $3000

Waiver Test Part 2: Undue Hardship

• SSDI Beneficiaries must prove hardship:• All income is used to meet ordinary and

necessary living expenses: food and clothing, rent, mortgage, utilities, maintenance, insurance, taxes, medical expenses, expenses to support others (legal responsibility), other expenses reasonably considered past of standard of living

Waiver Test Part 2:

Equity and Good Conscience

• Financial Circumstances Irrelevant

• Change position for worse or relinquish valuable right because of reliance

Waiver Test Part 2:

Equity and Good Conscience

• SSI Resource Recoupment ($50 rule and limited collection rule) Change position for worse or relinquish valuable right because of reliance

Waiver Test Part 2:

Efficient Administration of SSI

• Amount of overpayment is less than cost of collection.

• $500 Rule for SSI and SSDI.

Waiver AppealProcess

SSI Beneficiaries--

Request for Reconsideration

ALJ Hearing

Appeals Council

Federal Court

Waiver AppealProcess

SSDI Beneficiaries--

If personal conference held, you can go straight to ALJ stage. There is no Request for Reconsideration stage. Otherwise, sameappeal process as SSI.

Waiver &Recoupment

• For both SSDI and SSI, recoupment will stop when a waiver request is made.

Waiver &Recoupment

• For SSDI beneficiaries, recoupment cannot begin until AFTER the individual has been given an opportunity for a personal conference and declined, or the waiver is denied after personal conference is held.

Waiver & Recoupment

• For SSI beneficiaries, recoupment cannot begin until AFTER the determination of the waiver is made, unless a Request for Reconsideration of that waiver denial is filed within 30 days.

Adjustmentof Benefits

• SSI: 10% or less rule.

• SSDI: All can and will be taken. Hardship exception.

• ALWAYS WORK OUT A PAYMENT PLAN!

NEGOTIATION

• Always an option at any stage in the process.

• Highly encouraged as SSA is very reasonable in coming up with a payment plan.

• Informed decision about waiving of rights.

Other Methodsof Recoupment

• Tax Refund

• New Wage Garnishment Rules