TN 1 (08-05)

NL 00755.800 Fugitive Felon/Probation or Parole Violators Deferred Overpayment Notices

NOTE: On April 1, 2009, SSA changed its policy of not paying fleeing felons. Follow the instructions below only for felony warrants with offense codes 4901, 4902, or 4999. Follow the Martinez settlement instructions in GN 02613.860 through GN 02613.885 for all other felony warrant codes.

On March 18, 2011, upon remand from the Second Circuit, the District Court for the Southern District of New York certified a nationwide class in Clark v. Astrue that includes all individuals whose benefits or payments we suspended or denied after October 29, 2006. Given the pending litigation, including continuing litigation about the class certification, at this time we are not suspending or denying payments based solely on a report of a probation or parole violation warrant. Follow the instructions in EM-11032, dated May 9, 2011 for processing cases with probation or parole violation warrants with offense codes: 5011, 5012, 8101, 8102, or 9999 or “Blank” and an offense charge symbol of “probation or parole violation.”

We will make additional changes to this section, as necessary, in the future.

A. Procedure - FO and PSC/OCO-ODO-Title II Deferred Overpayment and Fugitive Felon Deferred Overpayment Recovery Notice Instructions

1. Factors To Allow Deferred Overpayment Recovery

SSA will defer recovery of a Title II fugitive felon/probation or parole violator overpayment for a fugitive felon or probation or parole violator suspension when the beneficiary:

  • protests his/her Title II benefit suspension during the due process protest period and,

  • has surrendered to, or has been apprehended by law enforcement (arrested) for his/her criminal charges cited on the warrant before or during the due process protest period or a judge dismisses, cancels, vacates or otherwise voids the warrant after the date the warrant was issued.. (See GN 02613.001B.4. and GN 02613.001.B.6. for definitions of when a warrant is satisfied.)

2. Deferred Overpayment Recovery Process

The fugitive felon or probation or parole violator suspension period begins with the date the warrant is issued or 1/2005 (whichever date is later) and will end the month the warrant is satisfied (i.e., the beneficiary surrenders to the law enforcement agency that issued the warrant or is arrested). When SSA discovers that a beneficiary has an unsatisfied warrant and the beneficiary cannot provide SSA with good cause for not satisfying the warrant, SSA will send an Advance Notice of Proposed Suspension to the beneficiary advising him/her that SSA will suspend the monthly Title II benefits in the near future unless the beneficiary can satisfy the outstanding warrant.

Generally, once a beneficiary protests his/her fugitive felon or probation or parole violator suspension during the appropriate Advance Notice of Proposed Suspension due process period (see GN 02613.940A. for the Advance Notice of Proposed Suspension due process period) and he/she also satisfies the outstanding warrant (i.e., the beneficiary surrenders to the law enforcement agency (or is arrested) that issued the warrant), the fugitive felon or probation or parole violator suspension period ends the month the warrant is satisfied. Because the beneficiary was not suspended for the prior fugitive felon or probation or parole violator suspension period and will not now be suspended after the protest to the suspension of benefits is resolved (i.e., the warrant has been satisfied) the overpayment becomes a closed period of fugitive felon or probation or parole violator suspension overpayment. The overpayment will not be recovered by SSA until a court or administrative governing body (e.g., parole board) determines the disposition of the charges.

A court of competent jurisdiction or administrative governing body could determine:

  • the beneficiary is not guilty of the criminal offense or probation or parole violation, or,

  • the charges relating to the criminal offense or probation or parole violation are dismissed, or,

  • that a proposed plea agreement is acceptable (e. g, individual pleads guilty to a lesser criminal charge classification such as a felony to a misdemeanor).

NOTE: In the instance of a plea bargain (agreement), the prosecutor and the defense counsel will enter into a plea agreement setting forth the scope of the plea bargain. Generally, if an individual is charged with a felony and then pleads to a misdemeanor, the felony is considered dismissed or null and void. The court order should reflect that the individual was convicted of the misdemeanor, not the felony. Generally, the court order should also reflect that the indictment has been dismissed.

When SSA learns of the disposition of the criminal charges, SSA will:

  • remove the suspension period and delete the overpayment (i.e., mandatory good cause (see GN 02613.025 for good cause instructions) has been established for the beneficiary), or

  • begin recovery of the overpayment because the individual has been found guilty of the criminal charges and will be sentenced by the court to confinement at a correctional institution, if appropriate.

3. References

See GN 02613.940A. for the advance notice of proposed suspension due process protest period requirements.

See GN 02613.450B. for instructions on processing deferred overpayment cases. See NL 00755.800B for the deferred overpayment collection paragraph to include in the closed period overpayment notice to the beneficiary and see NL 00755.800D. for an actual sample of the deferred overpayment notice.

B. Procedure - Deferred Overpayment Paragraph

1. DPS Deferred Overpayment Paragraph

UTI# for DPS

Fugitive Felon/Probation or Parole Violator Paragraphs

FUG505

Deferral of the Overpayment Collection Paragraph--Use this paragraph to explain to the beneficiary that SSA will not start recovery of the overpayment until a decision has been made on the criminal charges on the warrant or the decision of the probation or parole violation charges on the warrant. See NL 00755.900E.3. for the language contained in this paragraph.

NOTE: Use UTI# FUG506 as the correct overpayment appeal paragraph for the fugitive felon deferred overpayment notice.

2. AURORA (PSC/OCO-ODO) Deferred Overpayment Paragraph

UTI# for DPS

Fugitive Felon/Probation or Parole Violator Paragraphs

FUG505

Deferral of the Overpayment Collection Paragraph--Use this paragraph to explain to the beneficiary that SSA will not start recovery of the overpayment until a decision has been made on the criminal charges on the warrant or the decision of the probation or parole violation charges on the warrant. See NL 00755.900E.3. for the language contained in this paragraph.

NOTE: Use UTI# FUG506 as the correct overpayment appeal paragraph for the fugitive felon deferred overpayment notice.

C. Procedure - Fugitive Felon Deferred Overpayment and Suspension Notice-Notice Content

NOTE: For manually prepared notices if the individual is blind or visually impaired, see instructions at NL 01001.010 for more information on the special blind or visually impaired notice options.

1. Fugitive Felon Paragraphs Required for a Deferred Overpayment and Suspension Notice—FO Preparation of Notice Using DPS

The deferred overpayment notice is patterned after the closed period overpayment and suspension notice (see NL 00755.500A.2. for information on a closed period suspension and overpayment notice) and must contain the following paragraphs to make the notice complete:

SSAH05

FUG051

OPT027

BENC08

FUG056

INFC01

FUG057

OPTC04

FUG054

FUG055

ALSC04

ALS023

OPTC01

OPT135

FUG505

ALSC06

FUG506

ALSC29

RPN025

REFC01

REF031

Enclosures:

SSA-3105

SSA-561

SSA-632

(This notice includes the appropriate fugitive felon deferred overpayment paragraphs. These paragraphs take the place of the regular overpayment recovery paragraphs in this particular notice.)

NOTE: Do not add the regular overpayment recovery paragraphs to this notice. Recovery of the overpayment will be delayed on these types of cases until the beneficiary goes to trial for his/her criminal charges or he/she has a hearing before an administrative board or a court for his/her probation or parole revocation decision. Once a decision is made on the beneficiary’s guilt or innocence of his/her criminal charges; or, that he/she is guilty or innocent of his/her probation or parole violation, SSA will notify the beneficiary regarding collection of his/her overpayment if he/she is found guilty of the criminal charges or he/she was found guilty of the violation of probation or parole. Conversely, SSA will establish mandatory good cause on behalf of the beneficiary if he/she was found innocent of the criminal charges during his/her trial or that he/she had the probation or parole violations on his/her warrant dismissed after the court or administrative probation or parole board hearing. Use paragraph FUG506 for the overpayment appeal language for the deferred overpayment notice.

2. Fugitive Felon Paragraphs Required for a Deferred Overpayment and Suspension Notice—PSC/OCO-ODO Preparation of Notice Using AURORA

The deferred overpayment notice is patterned after the closed period overpayment and suspension notice (see NL 00755.500A.2. for information on a closed period suspension and overpayment notice) and must contain the following paragraphs to make the notice complete:

SSAH05

FUG051

OPT027

BENC08

FUG056

INFC01

FUG057

OPTC04

FUG054

FUG055

ALSC04

ALS023

OPTC01

OPT135

FUG505

ALSC06

FUG506

ALSC29

RPN025

REFC01

REF031

Enclosures:

SSA-3105

SSA-561

SSA-632

(This notice includes the appropriate fugitive felon deferred overpayment paragraphs. These paragraphs take the place of the regular overpayment recovery paragraphs in this particular notice.)

NOTE: Do not add the regular overpayment recovery paragraphs to this notice. Recovery of the overpayment will be delayed on these types of cases until the beneficiary goes to trial for his/her criminal charges or he/she has a hearing before an administrative board or a court for his/her probation or parole revocation decision. Once a decision is made on the beneficiary’s guilt or innocence of his/her criminal charges or that he/she is guilty or innocent of his/her probation or parole violation, SSA will notify the beneficiary regarding collection of his/her overpayment if he/she is found guilty of the criminal charges or found guilty of the violations of probation or parole. Conversely, SSA will establish mandatory good cause on behalf of the beneficiary if he/she was found innocent of the criminal charges during his/her trial or that he/she had the probation or parole violations on his/her warrant dismissed after the court or administrative probation or parole board hearing. Use paragraph FUG506 for the overpayment appeal language for the deferred overpayment notice.

D. Exhibit - Deferred Overpayment and Fugitive Felon Suspension Notices

Social Security Administration

Retirement, Survivors, and Disability Insurance

Important Information

Mid-Atlantic Program Service Center

                                                                          225 E. Oak Street

                                                                          Central City, ST 00000

                                                                          Date:

                                                                          Claim Number: XXX-XX-XXXXA

Debra Echkhart

4023 Perry Court

Danielsville, PA 18038

We cannot pay benefits to you for the months of 01/2005 to 03/2005 because during that period you had an outstanding arrest warrant for a felony crime.

Because we did not stop your checks timely, you were paid $1,500 too much in benefits.

Information About Your Benefits

Beginning January 2005, the law prohibits us from paying Social Security benefits to individuals who have an outstanding arrest warrant for a crime which is a felony (or, in jurisdictions that do not define crimes as felonies, a crime that is punishable by death or imprisonment for a term exceeding 1 year), or who have violated a condition of probation or parole under Federal or State law. We have information that you fall into one of these categories.

The Information We Have

Our records show that the XYZ Sheriffs Dept., 123 Cypress Lane, New York, NY 12345, PHONE: 800-923-4567, issued a warrant for your arrest for a violent or drug-related crime on 1/5/2005.

The warrant information we have is:

Warrant number: NY123456

Originating case number: 2345678

National Crime Information Center number: 3456789

Social Security cannot provide further information about the warrant. Please contact the XYZ Sheriffs Dept. directly.

How You Can Avoid Being Overpaid

You will not be overpaid for the months that you had an outstanding felony warrant for a crime or a warrant for a probation or parole violation if you contact us at any time and can show us that any of the following apply:

  • The warrant was issued incorrectly in your name because someone stole your identity. To prove this, submit a copy of the police report that you filed as a victim of identity theft or another official document from the court or the warrant issuing agency stating that the warrant was erroneously issued in your name.

  • You were found not guilty of the criminal offense. To prove this, submit a copy of the court docket indicating you were found not guilty of the criminal charges or a copy of the court decision showing that you were found not guilty of the criminal charges.

  • The underlying charges relating to the criminal offense were dismissed. To prove this, submit a copy of the court docket indicating charges were dismissed or another official court or law enforcement agency document stating that it dismissed the criminal charges.

  • The warrant for your arrest for the criminal offense was withdrawn. To prove this, submit a copy of the court docket or another official document from the issuing agency, indicating the warrant in question was withdrawn.

  • You were otherwise cleared of the criminal offense. To prove this, submit a copy of the court docket or other court document indicating you were cleared of the criminal charges.

If none of the above applies, we also may not consider you overpaid $1,500 for the months of 01/2005 to 03/2005 if you contact us within 12 months from the date of this letter and can show us that:

  • The crime for which the warrant was issued or the probation or parole violation was both nonviolent and not drug related and, if a probation or parole violation is involved, the original crime(s) for which you were paroled or put on probation was both nonviolent and not drug related.

And

  • You have neither been convicted of nor pled guilty to another felony crime since the date of the warrant.

And

  • The law enforcement agency that issued the warrant reports that it will not extradite you for the charges on the warrant or that it will not take action on the warrant for your arrest.

Or

  • The crime for which the warrant was issued is based on or the probation or parole violation was both nonviolent and not drug related and, if a probation or parole violation is involved, the original crime(s) for which you were paroled or put on probation was both nonviolent and not drug related.

And

  • You have neither been convicted of nor pled guilty to another felony crime since the date of the warrant.

And

  • · The only existing warrant was issued 10 or more years ago.

And

Your medical condition impairs your mental capability to resolve the warrant; or you are incapable of managing your benefits; or you are legally incompetent; or Social Security has appointed a representative payee to handle your benefits or you are residing in a long-term care facility, such as a nursing home or mental treatment/care facility.

If You Disagree With The Decision

If you disagree with this decision, you have the right to appeal. We will review your case and consider any new facts you have. A person who did not make the first decision will decide your case. We will correct any mistakes. We will review those parts of the decision which you believe are wrong and will look at any new facts you have. We may also review those parts which you believe are correct and may make them unfavorable or less favorable to you.

  • You have 60 days to ask for an appeal.

  • The 60 days start the day after you get this letter. We assume you got this letter 5 days after the date on it unless you show us that you did not get it within the 5-day period.

  • You must have a good reason for waiting more than 60 days to ask for an appeal.

  • You have to ask for an appeal in writing. We will ask you to sign a Form SSA-561-U2, called "Request for Reconsideration." Contact one of our offices if you want help.

Please read the enclosed pamphlet, "Your Right to Question the Decision Made on Your Social Security Claim." It contains more information about the appeal.

Overpayment Information

Since we did not stop your payments for the period 01/2005 to 03/2005, you were paid $1,500 too much in benefits.

We will wait until we learn the final outcome regarding your criminal charges before we determine whether you must repay the money you received for the period 01/2005 to 03/2005 because of your outstanding warrant.

If you are found not guilty or acquitted of the criminal charges or the criminal charges are dismissed, you will not be considered overpaid. If you are found guilty of the criminal charges, we will notify you when we will begin collection of the overpayment.

Do You Think We Are Wrong About The Overpayment?

You have certain rights with respect to this overpayment and its recovery.

  1. Right to Appeal: If you disagree in any way with this overpayment determination, you have the right, within 60 days of the date you receive this notice, to request that the determination be reconsidered. If you request this independent review of the overpayment determination, please submit any additional information you have which pertains to the overpayment.

  2. Right to Request Waiver: You also have the right to request a determination concerning the need to recover the overpayment. An overpayment must be refunded or withheld from benefits unless both of the following are true:

    1. The overpayment was not your fault in any way, and

    2. You could not meet your necessary living expenses if we recovered the overpayment, or recovery would be unfair for some other reason.

If you request waiver, we may need a statement of your assets and monthly income and expenses.

The attached form SSA-3105, Important Information About Your Appeal and Waiver Rights, explains your appeal and waiver rights in detail. The people in any Social Security office will be glad to help you complete the forms for requesting reconsideration (SSA-561-U2, Request for Reconsideration) and/or waiver (SSA-632-13K, Overpayment Recovery Questionnaire).

Even if you do not want to request reconsideration or waiver, please call, write or visit any Social Security office if you have questions or need more information. Please take this letter with you if you do visit an office.

If You Want Help With Your Appeal

You can have a friend, lawyer, or someone else help you. There are groups that can help you find a lawyer or give you free legal services if you qualify. There are also lawyers who do not charge unless you win your appeal. Your Social Security office has a list of groups that can help you with your appeal. If you get someone to help you, you should let us know. If you hire someone, we must approve the fee before he or she can collect it.

If You Have Any Questions

We invite you to visit our website at www.socialsecurity.gov on the Internet to find general information about Social Security. If you have any specific questions, you may call us toll-free at 1-800-772-1213, or call your local Social Security office at 1-610-433-3237. We can answer most questions over the phone. If you are deaf or hard of hearing, you may call our TTY number, 1-800-325-0778. You can also write or visit any Social Security office. The office that serves your area is located at:

SOCIAL SECURITY
41 N 4TH
STALLENTOWN, PA 18102

If you do call or visit an office, please have this letter with you. It will help us answer your questions. Also, if you plan to visit an office, you may call ahead to make an appointment. This will help us serve you more quickly when you arrive at the office.

Enclosures:

SSA-3105

SSA-561

SSA-632


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0900755800
NL 00755.800 - Fugitive Felon/Probation or Parole Violators Deferred Overpayment Notices - 05/29/2012
Batch run: 05/29/2012
Rev:05/29/2012