TN 24 (01-17)

GN 02250.303 Subsequent Waiver Request Denial (Res Judicata) Title II

A. Background of res judicata

Res judicata is the rule that once an issue is decided, it does not require SSA to decide on it again. If the “at fault” determination, in the previously denied waiver request is correct, and a beneficiary, or his/her representative, files subsequent waiver requests for the same overpayment, raising no new issues, and providing no new facts or material evidence, we will apply res judicata.

B. When a new waiver determination is not necessary

When applying res judicata to a waiver request, consider the fact that we base overpayment waiver decisions on a beneficiary’s circumstances prior to a waiver determination. You must refer to those same circumstances when you decide if you are going to make a new waiver determination or apply res judicata to a subsequent waiver request. A new waiver determination is not necessary if:

  • The “at fault” determination in the previously denied waiver request agrees with your findings;

  • The requester presents no new issue(s), fact(s), or evidence to reopen and revise the prior determination; or

  • Reopening is not possible under the rules of administrative finality.

NOTE: See GN 02250.385.A for more information on administrative finality.

C. Procedures for applying res judicata to a subsequent Title II waiver request

1. Res judicata applies

If the liable beneficiary or his/her representative files a subsequent waiver request for the same overpayment without providing new and material facts or evidence, deny the request based on res judicata without making a new determination.

  • Notify the beneficiary that the denial decision on the prior waiver request still applies. Use the Document Processing System (DPS) notice, Res Judicata Overpayment Waiver Denial. The notice is located in the DPS General folder.

  • Document your decision on the Remarks (RMRK) screen in the Debt Management System (DMS).

  • After you have issued a res judicata decision on a subsequent overpayment waiver request, the beneficiary or representative may file an appeal. Appeal rights up to an Appeals Council review are limited to whether the issue is the same as that raised in the previous determination.

  • For instructions regarding the reconsideration request, see GN 02250.380.

2. Res judicata does not apply

If the liable beneficiary or his/her representative files a subsequent waiver request for the same overpayment with new and material evidence, res judicata does not apply. Make a determination on the new waiver request in the usual manner, adhering to the rules for reopening final determinations. For policy on reopening of a prior waiver determination, see GN 02250.385 and GN 04001.010 through GN 04001.090. For basic waiver instructions, see GN 02201.021 for field office (FO) staff and GN 02201.023 for payment center (PC) staff.

D. Documenting the subsequent denial to the waiver request

Denial of waiver under res judicata

  1. Input the waiver denial using the DRWD screen in DMS (see MS DMS 006.004).

  2. Annotate the DMS RMRK screen to document the waiver denial based on res judicata (See MS DMS 009.003).

E. Examples when res judicata applies and does not apply

1. When res judicata applies

In January 2015, Paula Nichols requested waiver of recovery for her $2,500.00 overpayment. We denied the waiver request because we determined that Paula was at fault in causing the overpayment. Instead of filing an appeal, Paula files a subsequent waiver request on the same overpayment decision without providing new issue(s), fact(s), or evidence. Since Paula submitted no new or material evidence, we deny the waiver based on res judicata. Paula retains the right to appeal only whether the issues and facts are the same as those in the previous waiver request.

2. When res judicata does not apply

Using the example above, if Paula submits new issue(s), fact(s), or evidence when filing a subsequent waiver request, we would not apply res judicata. Instead, we would need to decide if we should make a new waiver determination based on new material