TN 124 (10-17)
SI PHI00830.314 Augmented VA Benefits
See SI 00830.314
1. August 1992 district court order
On August 6, 1992, the U.S. District Court for the Northern District of West Virginia invalidated the SSI policy of counting the dependent's portion of an augmented VA benefit paid to the veteran or veteran's surviving spouse as income to the dependent.
The court's decision ordered SSA to provide relief to individuals who were found to be class members in the class action case Kennedy v. Sullivan.
Based on this court order, SSA issued a teletype (IT-16-92, dated September 8, 1992) which furnished instructions for providing relief to individuals found to be members of the class. An advance copy of the regional POMS instructions, along with SSIRDs (for individuals centrally identified), was released to field offices in May 1993.
2. June 1993 appeals court decision
On June 1, 1993, the U.S. Court of Appeals for the Fourth Circuit overturned the decision of the district court and restored the national augmentation policy to the Northern District of West Virginia. As a result of this decision, Kennedy class members who received relief based on the district court decision have been overpaid.
3. Affected areas
The Northern District includes the following counties in north, east, and central West Virginia:
In the counties comprising the Northern District of West Virginia, the dependent's portion of an augmented VA benefit paid to the veteran or the veteran's surviving spouse is unearned income to the dependent for whom it is paid. (That is, this policy now conforms to national policy.)
1. Kennedy cases previously processed
Review the SSIRDs that were released to you in May 1993. For any cases that were processed in accordance with the instructions provided in teletype IT-16-92 (i.e., the dependent's VA income was reduced to zero), restore the dependent's portion of the augmented VA benefit as income to the dependent on the SSR effective with the month of input. Do not revise any posted income for months prior to the month of input. If you discover any other cases previously processed, take the same action as above. Send the individual a completed copy of the notice in SI PHI00830.314E.1.
2. Other VA dependent cases
Continue to process these cases under the national instructions in POMS SI 00830.314.
3. Overpayments — general
Deem the overpaid person without fault and deem recovery to be "against equity and good conscience" with respect to any overpayment caused by the Kennedy decision because the overpayment was based on reversal of a prior policy per GN 02250.325. Document the file with a completed copy of the overprinted Report of Contact in SI PHI00830.314E.2. whether or not the SSR reflects an overpayment.
4. Restoration of gross income causes N01 status
If restoration of gross income causes N01 (excess income) status in the current month, the SSR may reflect an overpayment in the month of input and the following month. Process these overpayments as follows:
Send the individual a completed copy of the notice in SI PHI00830.314E.1.
Input the VA benefit amount for the current month and allow the automated Notice of Planned Action to be released. Suppress the automated overpayment notice in the same input.
Do not contact the recipient.
Query the SSR to establish the amount of overpayment reflected on the SSR as a result of this input after the income correction input has processed.
Input the waiver determination and suppress the waiver notice.
1. Manual notice
a. Completion instructions
Fill in the following information on the form prior to mailing it:
b. Copy of the manual notice
SOCIAL SECURITY ADMINISTRATION
SUPPLEMENTAL SECURITY INCOME
FO Street Address
We are changing your Supplemental Security Income (SSI) payment because of a decision in the Kennedy court case. This case was about how we figure SSI payments for a spouse or child of an individual receiving Department of Veterans Affairs (VA) benefits. Sometimes the VA pays more money to a person who has a wife, husband, or child than to someone who has no dependent family members. The court has said that we can count as your income the part of the VA benefit another person was paid for you. While the court was making its decision, we were not counting the money someone received from the VA as your income. Since we must now begin to count that money as yours, your SSI will change.
You will receive another letter shortly telling you:
the amount of your new SSI payment and the month your SSI will change;
the amount of the VA benefit which we used to figure your SSI, and
what to do if you disagree with our decision.
If You Have Any Questions
If you have any questions, you may call, write, or visit any Social Security Office. If you call or visit our office, please have this letter with you and ask for __(1)__. The telephone number is shown at the top of this letter.
Manager's Name Title
1 - Contact person
2. Overprinted RC (Form SSA-5002)
Under the SUBJECT: KENNEDY v. SULLIVAN WAIVER include the following paragraph:
The above-cited individual was overpaid for the period ____ (Month/Year) _____ through ____ (Month/Year) _____ due to the original decision in the Kennedy v. Sullivan court case and its subsequent implementation on the Northern District of West Virginia. Recovery of this overpayment will not be pursued because the individual is deemed without fault and recovery is deemed to be against equity and good conscience per GN 02250.325.