Transcript Health & Disability Advocates

VCU
Benefits 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
Overpayments
Happen
– 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.
Overpayments
Happen
– 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 the
BPAO Role?
• Advise consumer that current
decisions about employment will not
impact overpayment decisions.
• Provide support to consumer.
• Advise consumer of options and
deadlines.
What is the
BPAO Role?
• Refer consumer for representation to
PABSS, if applicable, or other legal
services organization.
• Provide evidence to build consumer’s
case.
Consumer’s Legal
Options 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 Request
for Reconsideration.
• BPAO staff can be particularly helpful in
providing evidence for a Request for
Reconsideration.
Analysis of a
Reconsideration 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 a
Reconsideration 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 Waiver
of Overpayment
• Form SSA-632-BK:
“Request for Waiver of Overpayment
Recovery or Change in Repayment Rate”
• May be filed at ANY TIME.
Request for Waiver
of 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 Waiver
of Overpayment
• Current SSI beneficiaries do not have to
complete entire waiver form.
Requirements to Receive
Favorable 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 Receive
a Favorable Waiver Decision
PART 2
Three Alternative Questions:
1. Would Recovery Defeat the Purpose of
the SSI/SSDI Program?
Requirements to Receive
a Favorable Waiver Decision
PART 2
Three Alternative Questions:
2. Would Recovery be Against Equity and
Good Conscience?
Requirements to Receive
a Favorable Waiver Decision
PART 2
Three Alternative Questions:
3. Would Recovery Impede the Effective
and 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 Appeal
Process
SSI Beneficiaries-Request for Reconsideration
ALJ Hearing
Appeals Council
Federal Court
Waiver Appeal
Process
SSDI Beneficiaries-If personal conference held, you can go
straight to ALJ stage. There is no Request
for Reconsideration stage. Otherwise, same
appeal 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.
Adjustment
of 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 Methods
of Recoupment
• Tax Refund
• New Wage Garnishment Rules