TN 2 (07-09)

PS 01115.035 New York

A. PS 09-137 Recovery of Overpayment from Children

DATE: July 13, 2009

1. SYLLABUS

Granting a Request for Waiver of a Supplemental Security Income (SSI) Overpayment Made to a SSI Child.

In assigning liability for repayment of a SSI overpayment, it is irrelevant whether the former child or parent/representative payee is in pay status. That distinction only becomes determinative when SSA attempts to collect the overpayment.

POMS sections POMS SI 02201.021 SSI Responsibility - Representative Payment (provides guidance on who is responsible for repayment), and POMS SI 02201.020 SSI - Who is Responsible for Repayments (provides further guidance for recovery of overpayment when a representative payment is involved) address assignment of liability, but not the procedure for determining whether and under what circumstances waiver of the overpayment would be appropriate.

Where a child is found liable, a request for waiver should be granted on the basis that the child was without fault simply because he or she was a child at the time the overpayment occurred. It is incorrect, however, to think that this result would necessarily be contrary to SSA policy. Indeed it seems to be compelled by the regulations. Regulations at 20 C.F.R. § 416.552 "Waiver of adjustment or recovery--without fault" requires the Agency to consider several relevant factors that are present in instances involving a child recipient who has been found liable for the overpayment.

The Social Security Administration considers the individual's understanding of the reporting requirements, the agreement to report events affecting payments, knowledge of the occurrence of events that should have been reported, efforts to comply with the reporting requirements, opportunities to comply with the reporting requirements, understanding of the obligation to return checks which were not due, and ability to comply with the reporting requirements (e.g., age, comprehension, memory, physical and mental condition). . . .

Virtually every factor in this regulation favors granting waiver for a child who is liable for the overpayment. We do not require children to understand reporting requirements, for example. The procedures in the POMS SI 02260.001 et seq. track these requirements.

2. OPINION

QUESTION PRESENTED

You asked our office to review the draft program message clarifying SSA's policy regarding a Supplemental Security Income (SSI) overpayment where a parent (and representative payee for a child) and the child, who is now an adult, are found jointly liable for a prior SSI overpayment.

OPINION

It is our opinion that the draft programs message is correct in its analysis.

BACKGROUND

This issue was raised with the NYRO by an attorney in Syracuse, New York who presented an overpayment case involving a child, currently an adult and in current pay status, who had been overpaid benefits when he was a child and his mother was his payee. The Field Office followed the procedure outlined in SSA Program Operations Manual (POMS) SSI 02210.020, and determined that the funds had been spent on the child and therefore the child was jointly liable with his mother to repay the overpayment. The attorney filed a waiver request, acknowledging that the child was liable, but asserted that the child was without fault since he was a child at the time of the overpayment. The waiver request was denied in this particular case, but the attorney represented to the NYRO that in other similar cases the Field Office had waived the overpayment on the basis claimed for by her client. Waiving an overpayment simply because the liable individual who is now an adult was a child at the time the overpayment occurred may appear to conflict with SSA's policy. Current SSA policy states that if the child is liable, i.e., the money was spent on him and he was still in current pay, benefits should be collected from the child's (now an adult), current benefits.

ANALYSIS

SSA first assigns liability for overpayment through a series of rebuttable presumptions. See POMS SSI 02201.021 SSI Responsibility - Representative Payment.

In assigning liability, it is irrelevant whether the former child or parent/representative payee is in pay status. That distinction only becomes determinative when SSA attempts to collect the overpayment. The draft program message addresses this issue when the parent or representative payee is determined to be liable and is receiving benefits.

The POMS section addressing liability does not address the issue of waiver, and thus, the confusion in the field on this issue. POMS SI 02201.021 SSI Responsibility - Representative Payment provides guidance on who is responsible for repayment, whether it be the recipient, representative payee or joint recipient/representative payee. The recipient is responsible for repayment to the extent that incorrect payments were expended on him/her, and is solely responsible for repayment if the representative payee is without fault. POMS SI 02201.021 A(1)(a). The representative payee is personally responsible for repayment if incorrect payments were not used for the support and maintenance of the recipient. POMS SI 02201.021A(1)(b). The recipient and representative payee are both liable when the incorrect payments have been expended on the recipient and the representative payee is at fault. POMS SI 02201.021A(1)(c).

POMS SI 02201.020 SSI - Who is Responsible for Repayments provides further guidance for recovery of overpayment when a representative payment is involved.

SI 02201.020(B)(3)(b) directs that when there is representative payment, recovery should be attempted from:

the individual only when the overpaid funds were used for his/her support and maintenance and the payee was not aware of the facts causing the overpayment;

the rep payee only when the overpaid funds were not used for the individual's support and maintenance;

both the individual and the payee when the overpaid funds were used for the individual's support and maintenance and the payee was aware of the facts causing the overpayment.

These POMS sections address assignment of liability, but not the procedure for determining whether and under what circumstances waiver of the overpayment would be appropriate.

It is unclear what facts determined the denial of the waiver request in the situation presented by the Syracuse attorney. Of concern is that in virtually every case where a child is found liable, a request for waiver was granted on the basis that the child was without fault simply because he or she was a child at the time the overpayment occurred. It is incorrect, however, to think that this result would necessarily be contrary to SSA policy. Indeed it seems to be compelled by the regulations. Here, 20 C.F.R. § 416.552 "Waiver of adjustment or recovery--without fault" requires the Agency to consider several relevant factors that are present in instances involving a child recipient who has been found liable for the overpayment. It is worth reading the relevant portion in full:

The Social Security Administration considers the individual's understanding of the reporting requirements, the agreement to report events affecting payments, knowledge of the occurrence of events that should have been reported, efforts to comply with the reporting requirements, opportunities to comply with the reporting requirements, understanding of the obligation to return checks which were not due, and ability to comply with the reporting requirements (e.g., age, comprehension, memory, physical and mental condition). . . .

Virtually every factor in this regulation tilts in favor of granting waiver for a child who is liable for the overpayment. We do not require children to understand reporting requirements, for example. The procedures in the POMS SI 02260.001 et seq. track these requirements.

CONCLUSION

Based on the foregoing, the draft programs message you propose to issue should adequately clarify any confusion that has existed with respect to granting a waiver request in situations similar to the one presented here.

Very truly yours,
Stephen P. C~
Regional Chief Counsel
By: ____________
Peter J~


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1601115035
PS 01115.035 - New York - 07/21/2009
Batch run: 07/21/2009
Rev:07/21/2009