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Overpayment EM Issued

September 29, 2015

On September 21, 2015, the Social Security Administration (SSA) issued Emergency Message (EM) - 15030, “Making an Overpayment Waiver Determination.” The purpose of the EM is to specify the documentation needed to make and support a determination on an initial waiver request. In that regard, Section D provides “[i]f you are unable to locate and review documentation of the relevant facts to support the finding of the overpayment, assume the debtor is without fault and approve the waiver request.”

Advocates familiar with overpayments are all too aware of the difficulty of meeting this prong of the waiver standard. Typically, even if a beneficiary is unable to afford to pay back the debt, s/he must still prove s/he was not a fault in receiving the overpayment in the first place.  This is often a significant challenge, since SSA, not the claimant, possesses most of the documentation of payments, notices, etc. It can be an unsurmountable hurdle in cases involving “ancient” debts SSA has begun referring to Treasury for collection, where evidence or documentation of the original debt is often non-existent.  See related article on page 13.

This EM should prove helpful in cases involving old debts, but also in current cases. The EM provides two examples of situations where documentation involving deeming and wages has been lost or deleted from the SSA records. Keep us informed of your successes citing this EM to claims representatives in initial waiver requests.

And for advocates representing claimants in overpayment cases, recent revisions to POMS GN 02250.160 may also prove useful. The section, which has been updated to “clarify” existing policy and provide additional context with more examples, deals with “against equity and good conscience.” SSA will not recover an overpayment if recovery would be against equity and good conscience. In addition to adding examples of when recovery would and would not meet the standard, the revisions add language defining “relinquish a valuable right” and “change a position for the worse.” Again, some of the examples could be helpful, so keep them in mind when advocating in individual cases.


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