Identification Number:
Intended Audience:All RCs/ARCs/ADs/FOs/TSCs/PSCs /OCO/OCO-CSTs/ODAR
Originating Office:ORDP OISP
Title:Processing Title II Overpayments Resulting from Same-Sex Relationships Recognized by SSA
Type:EM - Emergency Messages
Program:Title II (RSI)
Link To Reference:See References at the end of this EM.
Retention Date: January 25, 2019

A. Background

GN 00210.005 previously instructed you to hold certain claims, post-eligibility, and post-entitlement (PE) actions due to a same-sex marriage. This included situations in which a same-sex marriage or non-marital legal relationship results in termination of benefits because a claimant no longer met the requirements to be unmarried. Continue to process new claims and other post entitlement actions involving same-sex marriages that do not involve overpayments in accordance with GN 00210.000.

This EM provides field office (FO), program service center (PSC), teleservice center (TSC), and processing center (PC) instructions for:

    · Processing Title II PE actions that will result in an overpayment due to recognition of a same-sex marriage;
    · Identifying overpayments subject to a presumed waiver request; and
    · Processing requests for waiver of overpayment where the overpayment is due to recognition of a same-sex marriage.

B. Purpose

Beginning January 25, 2017 through January 25, 2019, technicians will process all Title II PE actions where recognition of a same-sex marriage results in an overpayment. In cases where a beneficiary or auxiliary is overpaid due to recognition of a same-sex marriage, we will presume the beneficiary or auxiliary requests waiver of the overpayment. Do not obtain a written request for waiver in these cases.

C. FO Actions for processing previously held Title II claims and PE actions involving same-sex marriage

Locate Title II same-sex marriage cases currently on-hold by looking for the unit code on the Modernized Development Worksheet (MDW) (see the following chart), claims development worksheets (DW01) (see the following chart), or checking local listings. Locate all cases pending according to the local procedure you originally followed to hold the post-entitlement action. You can also identify these cases by reviewing the WMS/WMI listing via the Workload Action Center (WAC).

Type of Same-Sex Relationship When Established
Civil Union
Domestic Partnership
Reciprocal Beneficiary

    Important Note: Field Office and TeleService technicians should NOT complete a POS action that would result in an overpayment due to a same sex marriage.

Once FOs identify cases for PE action, FOs will transfer the case(s) by email to the jurisdictional PSC or PC. For each case, FOs will include pertinent case information, such as, all involved Social Security Numbers (SSN) with beneficiary identification codes (BICs), marriage dates, marriage termination dates, and dual entitlement information. FOs will use the subject line, “Same-sex Relationship Case Overpayment,” and send to the jurisdictional PSC or PC as listed:

    · PC1: ^NEPSC 626

    · PC2: ^PH PA MATPSC Windsor Cases

    · PC3: ||SEPSC IE



    · PC6: ||KC OAS

    · PC7: ||OCO ODO OSB


D. TSC Actions for processing previously held Title II claims and PE actions involving same-sex marriage

If you receive an inquiry on a Title ll overpayment and there is an MDW showing one of the codes from the table in section C above, follow this procedure:

    1. Do not complete a Post Entitlement System (POS) action that could result in an overpayment due to a same sex marriage.
    2. Advise the claimant to contact their local field office to discuss the status of their case.
    NOTE: If the beneficiary has another overpayment that is not due to recognition of a same-sex marriage, follow the usual waiver policy in GN 02250.000.

E. PC actions for processing previously held Title II PE actions involving same-sex marriage

After identifying an overpayment that is subject to a presumed waiver request, the Program Service Center Operations Analysis Staff (PSC OAS) will:

    1. Review all records
    2. Input the marriage data on the record(s), and process any necessary actions such as:
      · benefit adjustments,
      · benefit terminations, and/or
      · benefit awards;
    3. Post the overpayment segment to the record(s);
    4. Presume the individual wants to request waiver of the overpayment and post a miscellaneous protest to the overpayment on the record;
    5. Issue the appropriate notice to the individual explaining any benefit adjustments, terminations, and/or benefit awards. Provide the appeal language in the notice, but suppress any overpayment language. However, do not send an award notice if placing the overpayment on the record was the only action taken.

    NOTE: If the same-sex marriage results in an underpayment on the new record and an overpayment on the previous record, follow normal processing procedures to withhold the amount already paid from the underpayment and pay the claimant the difference owed.

Once these actions are complete, forward the case to the FO for further processing:
    6. Use the PCACS Request for Assistance with the proper 626 unit code.
    7. In the request for assistance, add the remarks, “Immediate Action Required-Same-sex Overpayment Processing Needed.”
    8. Diary the PCACS request for assistance for 15 days.
    9. Send an e-mail to the District Office with jurisdiction over the case with the subject line of, “Immediate Action Required - Same-Sex Overpayment Processing Needed.”
    10. If no action taken within 15 days, send a follow-up request.
    11. If no action taken after 30 days and the follow-up request sent, call the jurisdictional FO to follow-up.

F. FO steps for processing and documenting presumed waiver requests for overpayments resulting from recognition of a same-sex marriage

    Once the PC has completed the steps in C above and forwarded the case to the District Office, FO technicians should follow these steps:
    1. Processing presumed waiver requests:

    Make the waiver determination for these cases based on the following:
      a) The law regarding same-sex marriage changed rapidly and there was a delay in issuing case processing instructions. As a result, presume that the beneficiary is without fault in causing any Title II overpayment that results from recognition of a same-sex marriage, unless you find evidence to the contrary; and
      b) Taking into account all of the facts and circumstances of the case and basing the determination on a broad concept of fairness, recovery of the overpayment would be against equity and good conscience.
    2. Documenting waiver determinations

      a) Approvals
      The SSA-635 and the DMS Remarks screen should include:
        · How the overpayment occurred;
        · The overpayment period; and
        · A statement that the beneficiary is without fault for causing the overpayment and that recovery would be against equity and good conscience per EM-17004.
      Then, fax the SSA-635 into the CEF via NDRed or eView.
      Send the following manual notices located in DPS to the beneficiary as a package placing them in the same envelope in the order below:

        1. Same-Sex Marriage - Important Information (T2)

        2. Same-Sex Marriage - Notice of Overpayment (T2)

      b) Non-approvals

      If you cannot approve the presumed waiver request according to the instructions in section D.1 of this EM, send the case to ^Windsor Policy Questions for review by Central Office.

      c) Previously denied waiver requests
      For any previously denied waiver request of an overpayment due to same-sex marriage, presume the recipient makes a new request for waiver of the overpayment and follow the instructions for making the waiver determination starting in section B of this EM.