Identification Number:
EM-17004 REV
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); Disability
Link To Reference:See References at the end of this EM.
 
Retention Date: 1/25/2019

REVISED 10/29/2018: We revised this Emergency Message as follows:

  • We clarified that instructions only apply to overpayments posted to records on or before January 25, 2019;
  • Added instructions for posting a special message to the MBR;
  • Added instructions for FO to copy Regional CPS/CDPS control boxes when transferring cases to the PSC or PC;
  • Added more detail to the instructions for technicians in Sections E & F; and
  • Added more detail to the instructions for technicians in the Step/Action Chart.

A. Background

We previously instructed you to hold certain claims, post-eligibility, and post-entitlement (PE) actions due to a same-sex marriage in GN 00210.005.

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 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 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 presume the beneficiary or auxiliary requests waiver of the overpayment.

Do not obtain a written request for waiver in these cases. These processing instructions only apply to overpayments posted to records on or before January 25, 2019.

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
Code
Marriage
626M
Civil Union
626C
Domestic Partnership
626D
Reciprocal Beneficiary
626R
Other
626O

    Important NOTE: FO and TSC 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, they will annotate the following special message on the MBR “Special overpayment procedure for same-sex marriage related overpayment – see EM-17004 REV for processing instructions.” FOs will then transfer the case(s) by email to the jurisdictional PSC or PC and CC the corresponding regional CPS/CDPS control box. FOs will use the subject line, “Same-sex Relationship Case Overpayment,” 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.



    PSC/PC control box:
    Regional CPS/CDPS control box:
    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. Calculate the net overpayment. DO NOT reduce the overpayment amount by any underpayments due EXCEPT an underpayment that was directly caused by the recognition of the same-sex marriage;

      4. If the result of any netting is a net overpayment, post the overpayment segment to the record(s);

      5. Presume the individual wants to request waiver of the overpayment and post a miscellaneous protest to the overpayment on the record;

      6. Upload a copy of the paid vs payable chart into Non-Disability Repository for Evidentiary Documents (NDRed) for the FO to technicians to reference when creating the overpayment notice;

      7. 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 netting calculations explained above result in an overall net underpayment, follow normal processing procedures in GN 02301.

    Once these actions are complete, forward the case to the FO for further processing:


      8. Use the Processing Center Action Control System (PCACS) Request for Assistance with the proper 626-unit code.

      9. In the request for assistance, add the remarks, “Immediate Action Required-Same-sex Overpayment Processing Needed,” and use TOELS OPMT/WAIVER

      10. Diary the PCACS request for assistance for 15 days.

      11. Annotate the following special message on the MBR: “Special overpayment procedure for same-sex marriage related overpayment – see EM-17004 REV for processing instructions.”

      12. Document your actions via the DMS Remarks screen. Include a brief summary of how and when the overpayment occurred, and the following statement, “Do not secure an SSA-632-BK. refer to EM-17004 REV for instructions on processing the presumed waiver request”.

      13. Send an email to the District Office with jurisdiction over the case with the subject line of “Immediate Action Required - Same-Sex Overpayment Processing Needed.”

      14. If no action taken within 15 days, send a follow-up request.

      15. 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 REV.
      Then, adjudicate the wavier approval via DMS and fax the SSA-635 into the certified electronic folder (CEF) via NDRed or eView.
        Using the paid vs. payable chart stored in Claims File User Interface(CFUI) by the PC, create and send the following manual notices located in Document Processing System (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 for review by Central Office to ^Windsor Policy Questions.

      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.
    G. Process future Title II claims and post-entitlement (PE) actions involving new overpayments as a result of a same-sex marriage

    If processing the Title II claim or PE action would result in an overpayment, follow instructions C through F in this EM.
    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.

    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.

    H. Step Action Chart

    EM-17004 REV Step Action Charts.pdfEM-17004 REV Step Action Charts.pdf

    References

    GN 00210.005 Processing Cases Involving Same-Sex Marriages and Non-Marital Legal Relationships that Were Previously On Hold
    GN 00210.020 Processing Instructions for Title II Same-Sex Relationship Claims, Reconsiderations, and Hearing Requests
    GN 02201.009 Notification of a Title II Overpayment
    GN 02250.001 Overpayments - General
    GN 02250.150 Against Equity and Good Conscience
    GN 02250.310 Amount to Consider for a Title II Waiver Request


    EM-17004 REV - Processing Title II Overpayments Resulting from Same-Sex Relationships Recognized by SSA - 10/30/2018