II. Background
On October 26, 1982, the court granted plaintiff's motion to certify a
class of “all persons in New York who currently receive OASDI
benefits pursuant to 42 U.S.C [sect ] 401 et. seq., who are former
recipients of SSI payments pursuant to 42 U.S.C. [sect ] 1381 et. seq.,
and who have been or will be informed (either orally or in writing) that
they must refund alleged overpayment of SSI benefits, either by direct
repayment or by agreeing to recovery of the overpayment from their monthly
OASDI benefits.”
On November 17, 1983, the court held that SSA had no authority to reduce
payments of OASDI benefits under title II in order to recover SSI
overpayments. The court also directed that SSA must send to all class
members notices which must explain:
(1) The time periods during which overpayment of the SSI benefits
arose;
(2) The amount of overpayment in each time period and in total;
(3) The amount of any prior repayments;
(4) The reason for overpayment;
(5) That the recipient has a right to appeal and/or reconsideration;
(6) That under the specified conditions, the recipient may have the right
to waive repayment;
(7) That the law prohibits money received through OASDI to be withheld by
the Secretary [now the Commissioner] in order to repay SSI overpayments
and that no legal process may attach to those benefits (i.e., that
transfer or assignment of OASDI benefits, whether voluntary or
involuntary; and legal processes taking those benefits, violate section
207(a), 42 U.S.C. § 407(a)); and
(8) That the time period in which the Government should have collected the
overpayments may have passed, but that if the recipient pays back any
installment or writes a letter acknowledging the overpayment, the
Government's right to collect may be revived (i.e., the statute of
limitations may have run, but partial repayment or a written
acknowledgment may revive the claim).
On October 28, 1998, Congress enacted the Noncitizen Benefit Clarification
and Other Technical Amendments Act of 1998 (“1998 Technical
Amendments Act”), Public Law 105-306, section 8, codified at 42
U.S.C. § 1320b-17. The 1998 Technical Amendments Act requires certain
modifications to the court's order of November 17, 1983. Accordingly,
pursuant to the stipulated agreement of the parties, the court's order of
November 17, 1983 was modified by deleting the prohibition on the recovery
of overpayments made under title XVI of the Social Security Act by
decreasing amounts payable under Title II of the Act, up to 10 percent of
the amount payable in any month under Title II, except that the 10 percent
limitation shall not apply to an overpayment made if the person or spouse
of the person was involved in willful misrepresentation or concealment of
material information in connection with the overpayment, or if the person
so requests.
The portion of the court's order addressing the adequacy of notice to the
class was also modified to provide that SSA must send to all class members
notices which advise them:
(1) The time period during which overpayment of SSI benefits arose;
(2) The amount of overpayment in each time period and in total;
(3) The amount of any prior repayments;
(4) The reason for overpayment;
(5) That the recipient has a right to appeal and/or reconsideration;
(6) That under specified conditions, the recipient may have the right to
waive repayment; and
(7) That the time period in which the Government should have collected the
overpayments may have passed, but that if the recipient pays back any
installment or writes a letter acknowledging the overpayment, the
Government's right to collect may be revived (i.e., the statute of
limitations may have run, but partial repayment or a written
acknowledgment may revive the claim).
III. Definition of the Class
Ellender class members eligible to request relief
include those who:
(a) lived in the State of New York on October 26, 1982; and
(b) were receiving title II benefits on October 26, 1982; and
(c) were former SSI recipients on October 26, 1982; and
(d) received an SSI overpayment on or before October 26, 1982.