Identification Number:
EM-16013 REV 2
Intended Audience:All RCs/ARCs/ADs/FOs/TSCs/PSCs/OCO/ OCO-CSTs/ODAR
Originating Office:ORDP OISP
Title:Processing SSI Overpayments Resulting from Same-Sex Marriage – One-Time-Only Instructions
Type:EM - Emergency Messages
Program:Title XVI (SSI)
Link To Reference:See References at the end of this EM.
 
Retention Date: September 25, 2017

Revision 2: 06/08/2016 We further revised this Emergency Message as follows:
    · Amended instructions in Section F.1 for processing cases in which a waiver of overpayment has already been denied. For cases in which a waiver has already been denied, field office (FO) technicians should presume that the recipient makes a new request for waiver of the overpayment and follow the instructions for making the waiver determination in sections F.2 and F.3 of this EM.
    · Made corresponding changes to Section F of this EM:
        o Removed word “Current” from title of Section F.
        o Changed “the manual Same Sex Marriage – Important Information Previous Denial” to “the manual Same Sex Marriage – Important Information or the manual Same-Sex Information Previous Denial” in Section F.3.a, and clarified when each type of manual notice should be sent.
        o Updated the embedded step-action Charts.



A. Background

EM-15016 instructed you to hold SSI Post-Eligibility (PE) actions that would result in overpayments due to a same-sex marriage. We are archiving EM-15016 effective with the publication date of this EM. This EM provides instructions for:
    · Processing all SSI PE actions that will result in an overpayment due to deeming of income or resources as a result of our recognition of a same-sex marriage or applying the couple’s payment rate or couple’s resource limit to a member of a same-sex married couple;
    · Identifying overpayments subject to a presumed waiver request; and
    · Processing requests for waiver of overpayments that SSA recouped prior to the hold directed by EM-15016.

B. Purpose

Beginning March 16, 2016 through March 16, 2018, field office (FO) technicians will process all SSI PE actions for same-sex married couples, including SSI PE actions that will result in an overpayment, in accordance with the instructions in this EM. The following instructions explain how to:
    · Process SSI PE actions previously held per EM-15016 that will result in an overpayment;
    · Identify overpayments subject to a presumed waiver request;
    · Process and document waiver requests and our decision on these requests already made for overpayments due to recognition of same-sex marriage;
    · Identify and process current cases where the overpayment is due to same-sex marriage; and
    · Process future SSI PE actions where recognition of a same-sex marriage results in an overpayment.

C. Process previously held SSI PE actions in cases involving same-sex marriage

Process SSI PE actions that we previously held because such actions would have resulted in an overpayment due to deeming following recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple. You can locate these cases on:
    · The Modernized Development Worksheet (MDW) where a unit code was set up as described in GN 00210.005; and
    · The Supplemental Security Record (SSR), which includes the remarks “HOLD 626 WINDSOR PE ACTION" or “M02 REQD-SAME-SEX ACTION MM/DD/YYYY.”
For instructions on processing other SSI PE actions in cases involving a same-sex marriage, refer to GN 00210.800F and GN 00210.850D (as applicable, for parent-child deeming).

D. Identify overpayments subject to a presumed waiver request

If you determine that the overpayment occurred due to deeming based on recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple, presume the recipient requests waiver of the overpayment. Do not obtain a written request for waiver in these cases.

NOTE: If the recipient has an overpayment that is not due to deeming based on recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple, follow the usual waiver policy in SI 02260.001 and SI 02220.017.

E. Process and document presumed waiver requests for overpayments resulting from recognition of a same-sex marriage

1. Processing presumed waiver requests
After identifying an overpayment that is subject to a presumed waiver request, immediately add the waiver request to the recipient’s record to stop overpayment recovery.

NOTE: If the recipient has another overpayment that is not due to deeming based on recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple, follow the usual waiver policy in SI 02260.001 and SI 02220.017.

Make the waiver determination for these cases based on the following:
    a) The law regarding same-sex marriage changed rapidly and caused a delay in issuing case processing instructions. As a result, presume that the SSI recipient is without fault in causing any overpayment that results from deeming based on recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple, unless you find in the record 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
Document the Report of Contact (DROC) screen in the Modernized Supplemental Security Income Claims System (MSSICS). For non-MSSICS cases, document an SSA-5002, Report of Contact form. When you complete the DROC screen or SSA-5002, you must include:
    · How the overpayment occurred;
    · The overpayment amount, sequence number, and period; and
    · A statement that the recipient is without fault for causing the overpayment and that recovery would be against equity and good conscience per EM-16013.
Then, fax the SSA-5002 in the CEF or NDRed.
Send the following manual notices to the recipient as a package (i.e., in the same envelope):
    · Same-Sex Marriage - Cover Note
    · Same-Sex Marriage - Notice of Change in Payment
    · Same-Sex Marriage - Notice of Overpayment
    · Same-Sex Marriage - Important Information

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

F. Identify SSI overpayment cases involving same-sex marriage for presumed waiver processing

Identify cases in which we previously sent a notice of SSI overpayment due to deeming based on recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple. The following three criteria will identify these cases:
      1) The current payment status on the SSR is M02;
      2) The Overpayment Sequence Data (OPSQ) segment shows at least one un-waived overpayment sequence that has an Overpayment Beginning Date (OPB) and Overpayment Ending Date (OPE), with:
        · one or more months later than June 2013, where
        · the CMPH segment also shows a Payment Status (PS) of M02 for at least one of those same months; and
      3) The SSR, DW01, or MDW includes any one of the following indicators:
        · The RMKS segment includes the remarks “M02 REQD-WINDSOR CASE MM/DD/YYYY” or “M02 REQD-SAME SEX ACTION MM/DD/YYYY;
        · The RMKS segment includes “WINDSOR” or “WDSR” in the Case Characteristic Data (CG) field; or
        · The DWO1 or MDW shows 626 as the first three characters of the unit code.

1. Determining whether the overpayment is subject to a presumed waiver request
Use the table below to determine whether the overpayment is subject to a presumed waiver request or a waiver request that already exists on the record.

If:Then:
Waiver has not been requestedPresume the recipient requests waiver of the overpayment and follow the instructions for making the waiver determination in sections F.2 and F.3 of this EM.
Waiver has been requested but a final determination has not been madeFollow the instructions for making the waiver determination in sections F.2 and F.3 of this EM.
Waiver has already been approvedTake no action.
Waiver has already been deniedPresume the recipient makes a new request for waiver of the overpayment and follow the instructions for making the waiver determination in sections F.2 and F.3 of this EM.

NOTE: If the recipient has an overpayment that is not due to deeming based on recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple, follow the usual waiver policy in SI 02260.001 and SI 02220.017.

2. Processing presumed waiver requests
After identifying an overpayment that is subject to a presumed waiver request, immediately add the waiver request to the recipient’s record to stop overpayment recovery.

Make the waiver determination for these cases based on the following:
    a) The law regarding same-sex marriage changed rapidly and caused a delay in issuing case processing instructions. As a result, presume that the SSI recipient is without fault in causing any overpayment that results from deeming based on recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple, unless you find in the record 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.

3. Documenting waiver determinations

a) Approvals
Document the Report of Contact (DROC) screen in MSSICS. For non-MSSICS cases, document an SSA-5002, Report of Contact form. When you complete the DROC screen or SSA-5002, you must include:
    · How the overpayment occurred;
    · The overpayment amount, sequence number, and period; and
    · A statement that the recipient is without fault in causing the overpayment and that recovery would be against equity and good conscience per EM-16013.
Then, fax the SSA-5002 in the CEF or NDRed. If we have already collected, in full or in part, any monies attributable to an overpayment that occurred due to deeming based on recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple, refund the amount collected. Follow the instructions in SI 02260.001. Send the manual “Same-Sex Marriage - Important Information” or the manual “Same-Sex Marriage – Important Information Previous Denial” notice to the recipient; use the latter version if the recipient previously made a waiver request and the agency denied that request.

b) Non-approvals
If you cannot approve the existing or presumed waiver request according to the instructions in section F.2 of this EM, send the case to ^Windsor Policy Questions for review by Central Office.

G. Process future SSI PE actions involving same-sex marriage

Process all other SSI PE actions in cases involving a same-sex marriage as they arise. For instructions on processing SSI PE actions in cases involving a same-sex marriage, refer to GN 00210.800F and GN 00210.850D (as applicable, for parent-child deeming). If processing the SSI PE action results in an overpayment, you should determine whether the overpayment occurred due to deeming based on recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple.

If the overpayment occurred due to deeming based on recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple, the overpayment is subject to a presumed waiver request, and you should follow the instructions in sections G.1 and G.2 of this EM.

NOTE: If the recipient has an overpayment that is not due to deeming based on recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple, follow the usual waiver policy in SI 02260.001 and SI 02220.017.

1. Processing presumed waiver requests
After identifying a presumed waiver request, immediately add the waiver request to the recipient’s record to stop overpayment recovery.

Make the waiver determination for these cases based on the following:
    a) The law regarding same-sex marriage changed rapidly and caused a delay in issuing case processing instructions. As a result, presume that the SSI recipient is without fault in causing any overpayment that results from deeming based on recognition of a same-sex marriage or applying the couple’s payment rate or resource limit to a member of a same-sex couple, unless you find in the record 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
Document the Report of Contact (DROC) screen in MSSICS. For non-MSSICS cases, document an SSA-5002, Report of Contact form. When you complete the DROC screen or SSA-5002, you must include:
    · How the overpayment occurred;
    · The overpayment amount, sequence number, and period; and
    · A statement that the recipient is without fault for causing the overpayment and that recovery would be against equity and good conscience per EM-16013.
Then, fax the SSA-5002 in the CEF or NDRed.
Send the following manual notices to the recipient as a package (i.e., in the same envelope):
    · Same-Sex Marriage - Cover Note
    · Same-Sex Marriage - Notice of Change in Payment
    · Same-Sex Marriage - Notice of Overpayment
    · Same-Sex Marriage - Important Information

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

Direct all program-related and technical questions to your RO support staff or PSC OA staff. RO support staff or PSC OA staff may refer questions or problems to their Central Office contacts.

Step Action Chart EM-16013 REV- FINAL.pdfStep Action Chart EM-16013 REV- FINAL.pdf

References:

GN 00210.005-Same-Sex Marriage or Non-marital Legal Relationship- Holding Certain Claims, Appeals, Post-Eligibility Actions, and Post-Entitlement Actions
GN 00210.800-Supplemental Security Income (SSI) Same-Sex Marriages, SSI Same- Sex Couples, and SSI Deeming from a Same-Sex Ineligible Spouse
GN 00210.850- Same-Sex Parents, a Parent’s Same-Sex Marriage, and Supplemental Security Income (SSI) Parent-Child Deeming
SM 01301.675- NP Field-Notice Suppression
SI 02260.025- SSI Overpayment Recovery is Against Equity and Good Conscience
SI 02201.005- Supplemental Security Income-What is an Overpayment?
SI 02260.001- Basic Requirements Concerning Supplemental Security Income (SSI) Overpayment Waiver
EM-16013 REV 2 - Processing SSI Overpayments Resulting from Same-Sex Marriage – One-Time-Only Instructions - 06/08/2016