Pursuant to Program Operations Manual System (POMS) SI 02201.021(B)(4), you have asked for a legal opinion regarding whether a state government agency
that served as a representative payee can be held liable for repayment of an overpayment
when the governmental entity questions its responsibility for repaying the overpayment.
Based on the information available, we have found no basis under state or federal
law to excuse the governmental entity to question from its responsibility for the
repaying the overpayment.
The information provided indicates that Selina D~ (NH) began receiving Supplemental
Security Income (SSI) in 1995. The Stone County Department of Health Services (County)
acted as NH's representative payee apparently from the NH's initial entitlement until
2000. The County is no longer NH's representative payee. During the time the County
served as NH's representative payee, NH received an overpayment of $12,900.00. The
overpayment was due to NH's receipt of foster care payments beginning in November
1994, which the Agency discovered after a review in November 2000. NH apparently was
adopted in August 2000 and currently resides in Ohio; she apparently is not receiving
SSI but is receiving Title II benefits. The information indicates that the Agency
has determined that NH was "not at fault" in causing the overpayment.
When contacted by the Agency regarding the overpayment, the County reported that it
had not had custody of NH's benefits since November 2002 and that it probably gave
any funds held for NH to the adoptive parents. The County also raised a legal question
regarding its responsibility to repay the overpayment, stating that it could not use
county funds to repay the overpayment. The information further states that the Agency
has concluded that the County was representative payee for more than one SSI recipient,
and they should have known their responsibility for repayment of any overpayment.
POMS SI 02201.021(B)(4) advises Agency personnel to contact the regional attorney when a government
entity, acting as a representative payee for a recipient of SSI, questions its responsibility
for an overpayment. At the time of your request, POMS SI 02201.021(B)(4) stated:
When a government entity raises a legal question regarding its responsibility:
Forward the question to the regional attorney through the ARC, Programs.
Coordinate recovery efforts with the regional attorney, since the extent of the government
entity's responsibility could depend on State law.
Given our uncertainty regarding the meaning of the phrase "since the extent of the
government entity's responsibility could depend on State law," we contacted the Office
of the General Counsel (OGC) in Baltimore for guidance. Baltimore OGC, in turn, contacted
the Office of Income Security Programs (OISP) for an explanation as to why the phrase
was included in POMS SI 02201.021(B)(4). OISP, however, was unable to ascertain why the phrase was included in POMS
SI 02201.021(B)(4). As a result, OISP deleted the phrase from POMS SI 02201.021(B)(4). (The revised version, posted 3/22/07 and revised 10/08/09, is now available
on PolicyNet. See Revised
Nevertheless, the current POMS SI 02201.021(B)(4) still requires Agency personnel to contact the regional attorney when a government
entity questions its responsibility for an overpayment and to "[c]oordinate recovery
efforts with the regional attorney." We are unaware of any state or federal law that
would shield the County from liability for the overpayment simply because the County
is a government entity. As is the case with any party liable for an overpayment, the
County may be able to argue that recovery should be waived, i.e., that recovery of
the overpayment should be waived because the County was without fault and that recovery
would defeat the purpose of Title XVI or be against equity and good conscience. See Social Security Act § 1683(b)(1)(B), 42 U.S.C. § 1383(b)(1)(B); 20 C.F.R. § 416.550.
However, statutory and regulatory issues regarding the County's liability for the
overpayment do not depend on the County's status as a government entity. Based on
the information currently available, we cannot conclude that the County has any legal
basis for its claim that it should not be responsible for the overpayment due to its
status as a government entity. We contacted Denise R~, an employee of the County,
to determine if the County could provide any legal basis for its position that the
County should not be required to repay the overpayment.
Unfortunately, Ms. R~ did not return our call. Therefore, you should assess and process
the County's liability for repayment the way you would any other representative payee's
Should the County provide a legal basis for its position, we will be more than willing
to consider and provide an opinion regarding the merits of the County's claim. In
addition, pursuant to POMS SI 02201.021(B)(4), we are willing to provide assistance regarding any other aspect of recovery
efforts in this case.
Very truly yours,
Mary A. S~
Regional Chief Counsel
Brian C. H~