Effective Dates: 11/22/2024 - Present Previous | Next

TN 66 (11-24)

GN 02250.005 Fault Determinations for Overpayment Waiver Requests - Title II and Title XVI

CITATIONS:

Social Security Act §§ 204(b), 1631(b)(1)(B)

20 C.F.R. §§ 404.506, 404.507, 404.510, 404.510a, 404.511, 416.550, 416.552

A. Introduction

This section provides guidance to make a fault determination for individuals who request a waiver of their overpayment. The guidance describes the general policy for when an individual is not at fault.

B. Policy

1. Guidelines

There are instances where we can presume an individual is not at fault. Before evaluating fault, determine whether any of the not at fault presumptions apply. For a list of not at fault presumptions, refer to GN 02250.016. For additional information about not at fault presumptions where a Title II overpayment resulted from an incorrect computation of benefit rates or insured status, refer to GN 02250.023. For additional information about not at fault presumptions where a Title II overpayment is due to earnings and income, refer to GN 02250.025.

When evaluating fault, we must consider all of the circumstances surrounding the overpayment, refer to GN 02250.005B.2.

We can find an individual at fault only after we first find that there is evidence that the overpayment occurred because the individual:

  • •

    made an incorrect statement they knew or should have known was incorrect,

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    failed to furnish information that they knew or should have known was material, or

  • •

    accepted payments that they knew or should have known was incorrect.

Unless we have evidence that one of these has occurred, the individual is not at fault.

EXCEPTION: If an overpayment is established due to representative payee misuse, and the misuse determination is upheld, the misuser is usually at fault.

Before deciding an individual is at fault, we must always consider the factors discussed in GN 02250.005B.2.

NOTE: If the overpayment is $2,000 or less, we usually do not need to fully develop for fault. Refer to GN 02250.350. However, if there is an indication that there may be fault because there is duplicate check negotiation, we will fully develop the waiver request to determine whether the individual is not at fault. Refer to GN 02250.021B.6.

NOTE: If the overpayment is the result of fraud or similar fault on the part of the overpaid individual, refer to GN 02250.001E. and F.

2. Factors to consider

When evaluating fault, we must always consider all the circumstances surrounding the overpayment. We must always consider these factors to decide what an individual knew or should have known and to decide what ability they had to make a report to us. We must consider the individual’s:

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    understanding of the reporting requirements,

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    agreement to report events affecting payments,

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    knowledge of the occurrence of events that should have been reported,

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    efforts to comply with the reporting requirements,

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    opportunities to comply with the reporting requirements,

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    understanding of the obligation to return checks which were not due, and

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    ability to comply with the reporting requirements.

We must consider the individual’s specific circumstances, such as the individual’s capabilities as demonstrated by their age, comprehension, education, memory, physical and mental condition (which may include medical institutionalization during part or all of the overpayment period) linguistic limitations (including any lack of facility with the English language), etc.

Attempt to locate this information in the SSA-632-BK and the overpaid individual’s record. While reviewing an individual’s record, ask yourself:

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    Did the individual provide incorrect information? Did the individual know and understand that the information was incorrect at the time they provided the information?

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    Is it documented on their record that a technician discussed their reporting responsibilities with them and that they understood those instructions? Have their circumstances changed where they may no longer understand them?

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    Does their record show they received clear instructions to return checks that were not due?

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    Are they receiving benefits due to an intellectual disability or mental impairment that may have prevented their ability to make a required report or return payments not due?

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    Does the individual have any physical conditions that prevent their ability to report a change or from returning a payment (e.g., hearing impaired, visually impaired, mobility challenges, illnesses, temporary institutionalization, etc.)? Refer to example 2 in GN 02250.005D.

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    Were there any challenges that prevented the individual from making a required report or returning payments not due (e.g., emergency declarations, pandemic, etc.)? Refer to examples 1 and 2 in GN 02250.005D.

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    Did the individual not report the change because they believed it was not significant enough to affect their payment or benefit amount?

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    Does their record show they contacted us or attempted to contact us to make a required report or return payments not due? Are they alleging they attempted to contact us?

For commonly occurring overpayment situations and examples of fault and not at fault determinations, refer to GN 02250.021.

3. Fault determinations

The determination that the individual has been overpaid is not a finding that the individual is at fault in causing the overpayment.

a. Fault decided on an individual basis

We must make separate findings of fault for each individual who requests a waiver. There is an exception where we may presume other individuals on the same record not at fault if they are overpaid for the same reason, refer to GN 02250.016.

If the waiver request is for an overpaid person who has a representative payee, we must consider only the fault of the overpaid person. If the person is not at fault, we must find them not at fault even if the representative payee was at fault, refer to GN 02250.021B.12.

If a representative payee received notice that they are liable for an overpayment and the representative payee requests a waiver on their own behalf, we will evaluate only the representative payee's fault.

b. Estates

When a legal representative of an estate seeks a waiver, we must determine the fault of the deceased. If the distributee seeks a waiver after closing the estate, we must determine the fault of the distributee. For more information regarding estates, refer to GN 02205.001, GN 02215.050, GN 02215.055, and GN 02215.070.

c. Not at fault for part of the overpayment period

There may be instances where we find an individual at fault for part of the overpayment period but not at fault for another part of the overpayment.

For example, an individual may not have timely reported a change, but then later reported the change and we continued making payments even after the change. Depending on the circumstances, we may find the individual at fault for the first part of the overpayment, but we will presume they are not at fault for payments received after they made the report.

C. Procedure

  1. 1. 

    If the overpayment resulted from fraud or similar fault on the part of the individual, refer to GN 02250.001. If the overpayment is based on a finding of misuse, and the misuse determination is upheld, the misuser is usually at fault.

  2. 2. 

    If the overpayment is $2,000 or less, consider waiving the overpayment using the administrative tolerance provision, refer to GN 02250.350. If we are unable to presume the individual is not at fault because there is an indication that there may be fault, we must fully develop the waiver request. If after full waiver development, we find the individual is not at fault, we will waive the overpayment.

  3. 3. 

    If the overpayment is more than $2,000: determine whether a presumption of not at fault applies, refer to GN 02250.016B, GN 02250.023, and GN 02250.025.

    NOTE: When determining whether a not-at-fault presumption applies, consider whether the individual previously had a similar overpayment. Refer to GN 02250.021B.2.

    1. a. 

      If a not at fault presumption applies, determine whether you can waive the overpayment under:

    2. b. 

      If a not at fault presumption does not apply, determine fault by applying all the relevant factors in GN 02250.005B. Base your fault determination on the totality of the facts in each individual case (e.g., evidence, allegations, records). Document an individual’s file with all the evidence and information you receive following GN 02250.315.

      If the individual is not at fault, determine whether you can waive the overpayment under:

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        deemed to defeat the purpose, refer to GN 02250.110, or

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        against equity and good conscience, refer to GN 02250.150, or

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        defeats the purpose provision, GN 02250.100.

        If the individual is at fault, you cannot approve the waiver. Refer the waiver request to an independent decision maker to schedule a file review and personal conference, refer to GN 02270.003-GN 02270.015.

        NOTE: If we find an individual not at fault for only part of the overpayment period, we will determine if the individual meets another waiver provision for the part of the overpayment period that they are not at fault.

D. Examples

Example 1

Feyre received an overpayment notice and submitted a waiver request to the local field office. Feyre said they could not timely report changes that affected their payments due to a state emergency declaration that prevented them from calling, mailing, or visiting the field office. The technician reviewed the waiver request and Feyre’s record. The technician determined Feyre did not furnish material information, but that they were unable to comply with reporting responsibilities due to the state emergency. The technician found Feyre not at fault for causing the overpayment. Next, the technician will determine if the overpayment can be waived based on one of the other waiver provisions.

Example 2

Rhysand received an overpayment notice and requested a waiver by completing the SSA-632-BK form and signing the financial authorization. Rhysand said they could not timely report changes that affected their payments because they always came to the field office to conduct business because Rhysand has difficulty hearing on the telephone. Rhysand’s adult child had been out of town for several weeks. Rhysand did not have another relative to take them to the field office. Rhysand can no longer drive, which prevented them from reporting changes that affected their benefits. The technician determined that although Rhysand did not report material information, they are not at fault for causing the overpayment. Next, the technician will determine if the overpayment can be waived based on one of the other waiver provisions.

Example 3

Nyx received an overpayment notice due to excess earnings. Nyx requested a waiver and told us that they did not realize that their wages would cause an overpayment. Nyx understood their duty to report wages to us, and they did so regularly. Even after they reported their wages, Nyx continued to receive monthly payments. Nyx thought that they were entitled to receive the payments that they continued to receive. The technician determined that Nyx understood and complied with the requirement to report their wages, and there is no evidence that Nyx knew that certain payments they accepted were incorrect. The technician finds Nyx is not at fault. Next, the technician will determine if the overpayment can be waived based on one of the other waiver provisions.

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http://policy.ssa.gov/poms.nsf/lnx/0202250005
GN 02250.005 - Fault Determinations for Overpayment Waiver Requests - Title II and Title XVI - 11/22/2024
Batch run: 08/21/2025
Rev:11/22/2024