The issue is whether the good cause exception to the fugitive felon provision, as amended by P.L. 108-203, may be applied to a pending claim where the claimant's payments were suspended and an overpayment occurred prior to the effective date of the legislative change. The good cause exception became effective January 1, 2005. Under mandatory good cause, SSA pays benefits withheld or denied beginning with either the month the arrest warrant was issued, the month the individual became eligible, or January 1, 2005, whichever is later. Because the overpayment in this case is for a closed period of fugitive felon suspension that ended before January 1, 2005, the good cause exception does not apply.

QUESTION

You have asked for an opinion as to whether the “good cause” exceptions to the fleeing felon rule as amended by Public Law 108-203, may be applied to a pending claim where the claimant's payments were suspended and an overpayment occurred prior to the effective date of the legislative amendments.

FACTUAL BACKGROUND

The claimant was notified in January 2003 that her Title XVI Supplemental Security Income payments were suspended effective October 2000 because a warrant had been issued for her arrest in California. The claimant was further advised that she had been overpaid $16,000. In March 2003, the warrant was recalled and the underlying case against the claimant was dismissed. The claimant's payments were subsequently resumed. The overpayment case is currently pending.

ANALYSIS

Beginning in August 1996, the Social Security Act precludes Title XVI SSI payments to any person who is “fleeing to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which the person flees, for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the person flees.” 42 U.S.C. § 1382(e)(4)(A) (hereinafter referred to as the “fugitive felon rule”). Upon proof of an outstanding arrest warrant, SSA will suspend a SSI recipient's payments pending satisfaction of the warrant. 20 C.F.R. §§ 416.202(f)(1), 416.1339. “If a person is suspended retroactively for a period during which benefits were paid, the person would be overpaid and SSA would attempt to recover the overpayment.” Program Operations Manual System (POMS) SI 00530.001, SI 00530.025A. An overpayment assessment is an administrative action subject to the usual administrative review process. 20 C.F.R. § 416.1402(c). Here, SSA retroactively suspended SSI payments for the period October 2000 (when the arrest warrant was issued) to March 2003 (when the warrant was vacated). This resulted in an overpayment, which is pending administrative review at the hearing level.

The fugitive felon rule was amended by the Social Security Protection Act of 2004 (SSPA), effective January 1, 2005. Pub. Law. 108-203, 118 Stat. 493 §§ 103, 203 (2004); 70 Fed. Reg. 72,411 (2005) (which is the notice of proposed rule-making (NPRM) on the SSPA fugitive felon provisions); POMS GN 02613.025A., SI 00530.015A. The amendments extended the fugitive felon rule to Title II beneficiaries. 118 Stat. 493 § 103; POMS GN 02613.001. The amendments also added exceptions to the rule upon a showing of “good cause,” which apply to both Title II and Title XVI claims. 118 Stat. 493 § 203; 42 U.S.C. §§ 402(x)(1)(B), 1382(e)(4)(B). In certain situations, it is mandatory that SSA not suspend benefits or payments. These situations are as follows: when a court of competent jurisdiction has found the beneficiary/recipient not guilty of the criminal offense; dismissed the charges relating to the criminal offense; vacated the warrant for the beneficiary/recipient's arrest in the criminal offense or issued any similar exonerating order; and when the beneficiary/recipient was erroneously implicated in the underlying offense. 118 Stat. 493 § 203; 42 U.S.C. §§ 402(x)(1)(B), 1382(e)(4)(B); POMS GN 02613.025B., SI 00530.015B. If good cause is found and benefits or payments have been suspended, SSA is required to reinstate benefits/payments and to repay any previously withheld payment and/or recovered overpayment. POMS GN 02613.450A.1., SI 00530.025A.

Here, the claimant would not receive any relief as a result of a good cause determination because the good cause provisions became effective January 1, 2005. In addition to the statutory support, SSA's good cause policy is articulated in the December 5, 2005, NPRM, which provides that SSA will repay benefits or payments withheld beginning with either the month the arrest warrant was issued, the month the individual became entitled or eligible, or January 1, 2005, whichever is later. 70 Feg. Reg. 72,413, 72,415, 72,416 (Dec. 5, 2005). Under the good cause provisions, SSA will only repay benefits or payments for which the beneficiary/recipient was entitled or eligible from January 1, 2005 or later. Because the overpayment is for a closed period before January 1, 2005, i.e., from October 2000 through March 2003, the good cause provisions do not apply to this overpayment.

While relief is not available under the fugitive felon good cause provisions, you may consider whether waiver of the overpayment is proper under 20 C.F.R. § 416.550. This regulation provides that waiver of adjustment or recovery of an overpayment of SSI benefits may be granted when:

(a) The overpaid individual was without fault in connection with an overpayment, and

(b) Adjustment or recovery of such overpayment would either:

(1) Defeat the purpose of title XVI, or

(2) Be against equity and good conscience, or

(3) Impede efficient or effective administration of title XVI due to the small amount involved.

See also 20 C.F.R. §§ 416.552-416.555.