This section provides guidance on how to process a waiver request when we are unable to locate and review the information necessary to verify an overpayment. In some instances, you may not be able to locate and review paper or electronic records to determine:

• •

  the amount of the overpayment; or

• •

  the overpayment period; or

• •

  the cause of the overpayment.

When evaluating a waiver request, if you are unable to locate and review paper or electronic records to determine the amount of the overpayment, the overpayment period, or the cause of the overpayment, you must assume the overpaid individual is not at fault and approve the waiver under the against equity and good conscience provision.

When evaluating a waiver request, attempt to locate and review documentation in paper or electronic records, which may contain information relevant to the overpayment amount, the overpayment period, and the cause of the overpayment in these locations:

• •

  Paper folder

• •

  Online Retrieval Notices (ORS),

• •

  Master Beneficiary Record (MBR),

• •

  Recovery Accounting and Reporting System (ROAR),

• •

  Payment History Update System (PHUS),

• •

  Debt Management System (DMS),

• •

  OPWiz,

• •

  Supplemental Security Income Record (SSR), and

• •

  Any records in any other electronic repository, such as Evidence Portal, Consolidated Claims Experience (CCE), eView, eWork, eComps, Paid vs. Payable charts, etc.

If you are uanble to deterine the amount of the overpayment, the overpayment period, or the cause of the overpayment, document the remarks screen of DMS for Title II cases, the Report of Contact Page in CCE for Modernized Supplemental Security Income Claims System (MSSICS) cases or an SSA-5002 (Report of Contact) for non-MSSICS cases with this information:

• •

  a detailed description of the electronic records or documents you reviewed to look for the overpayment information;

• •

  the date you reviewed the records;

• •

  your office code;

• •

  your name or unit code; and

• •

  an explanation that you approved the waiver against equity and good conscience because you do not have enough information to determine the amount of the overpayment, the overpayment period, or the cause of the overpayment.

1. 1. 

   For Title II, input the approval in DMS.

   For Title XVI, input the approval in CCE;

2. 2. 

   Document the waiver determination on Form SSA-635 (Waiver Determination);

3. 3. 

   Send the waiver approval notice, located in GN 02250.370.

Example 1:

Reaver received disability benefits from age 23 until age 26. Reaver filed for retirement benefits at age 67. When completing the application, the technician noticed an overpayment on Reaver’s record. Reaver told the technician they did not know what the overpayment was for and didn’t remember receiving a notice. The technician processed Reaver’s retirement application. After Reaver started to receive their retirement benefits, they received a letter stating they were overpaid $3,400. Reaver completed a waiver request and brought it to their local field office.

The technician looked through Reaver’s record to determine the cause of the overpayment and when the overpayment occurred. The technician reviewed Reaver’s MBR and ROAR which showed Reaver was overpaid $3,400 due to work at age 26. The technician was unable to locate a notice. The technician was unable to locate an SSA-821, paystubs, or any documentation showing how much Reaver earned during that time, if there were any IRWEs and the months of the overpayment. We must approve the waiver because Reaver is not at fault and recovery is against equity and good conscience.

Example 2:

During a redetermination, the office input an excess resource decision because Jadis failed to report a resource which caused a large overpayment. Jadis requested a waiver for the overpayment. Upon reviewing the record, we found the resource pages in CCE contained limited details regarding the type of resource that caused Jadis’s overpayment. Additionally, we found no notice in the file with an official determination giving the period, reason, and amount of the overpayment. We cannot determine if the overpayment is valid or correct since the record does not have any details to substantiate the resource that caused the overpayment. We must approve the waiver because Jadis is not at fault and recovery is against equity and good conscience.

This section provides guidance to make a fault determination for waivers when we presume an overpaid individual is not at fault for their overpayment.

We make certain presumptions of not at fault for overpaid individuals. If they do not meet any of these presumptions, consider making a not at fault finding under GN 02250.005 - GN 02250.025.

1. 1. 

   Timely Reporting

   We will presume an individual is not at fault if they reported, or attempted to report, the pertinent change(s) timely. For SSI changes, we consider they reported a change in a timely manner if they report it within 10 calendar days after the month the change occurred. For guidance on presuming not at fault for timely reported work activity, refer to GN 02250.025B.1.

2. 2. 

   Continued issuance of payments after reported change

   We will presume an overpaid individual is not at fault for any payments made after they reported a change that caused or should have caused a change in benefits, refer to GN 02250.023. If this is a subsequent overpayment, refer to GN 02250.021B.2.

3. 3. 

   Incorrect change in benefit amount after reported change

   If an individual reported a change and we reduced benefits, when we should have terminated or further reduced the benefit amount, we will presume the individual is not at fault, refer to GN 02250.023.

4. 4. 

   Incorrect benefit rate or insured status

   We will presume the individual not at fault if we made an error in computing the insured status, benefit rate, or payment amount, refer to GN 02250.023.

5. 5. 

   Overpayment due to earnings (Title II only)

   If an individual has a Title II overpayment due to earnings, determine if they meet one of the criteria where we can presume the individual to be not at fault, refer to GN 02250.025.

6. 6. 

   Minor children and legally incompetent adults

   We will presume an individual is not at fault if they were overpaid as:

   • •

     a minor child and had a representative payee (payee) when they received the overpayment,

   • •

     an auxiliary child up until age 19 while they are still in high school and had a payee when they received the overpayment, or

   • •

     a legally incompetent adult.

   For the definition of legally incompetent adult, refer to GN 00501.010B.7.

   NOTE: If a child received benefits as their own payee, make the fault determination by considering all the circumstances in GN 02250.005B.2.

    

7. 7. 

   Adult individual overpaid as a minor child with a representative payee

   For information on the presumption of not at fault and when we deem recovery against equity and good conscience for an adult individual who was overpaid as a minor child with a payee, refer to GN 02250.150D.

8. 8. 

   When we find the number holder not at fault

   For Title II, if the number holder is not at fault in causing the overpayment, we will presume that any other individual receiving benefits on the same record is not at fault if they were overpaid for the same reason.

   For Title XVI, if an individual is found not at fault in causing the overpayment, we will presume their eligible spouse is not at fault if they were overpaid for the same reason.

9. 9. 

   Overpaid individual unaware that actions of another affect entitlement or eligibility to benefits

   We will presume an individual who is overpaid because of another individual's action (e.g. number holder working) is not at fault if:

   • •

     they did not know and had no reason to know that the other individual's actions caused or would cause an overpayment; and

   • •

     they were not living with the individual who caused the overpayment at the time the overpayment occurred.

   If the overpaid individual does not meet both criteria, you must develop the fault determination under GN 02250.005. We may still find the individual not at fault, even if they lived in the same household with the number holder whose actions led to the overpayment. If we do not have evidence that they knew or should have known of the number holder’s actions that led to the overpayment, we will find them not at fault. Refer to example in GN 02250.016C.1.

10. 10. 

    Misinformation from an official source

    For information on the presumption of not at fault when the overpayment was caused by misinformation from an official source, refer to GN 02250.061.

11. 11. 

    Cash surrender value of life insurance (Title XVI only)

    If an individual was overpaid because they were not aware that their life insurance had a cash surrender value or if the cash surrender value increased over the resource limit over time, we will presume they are not at fault.

12. 12. 

    Countable resources exceed limit (Title XVI only)

    For information on the presumption of not at fault when an overpayment was caused by excess resources, refer to GN 02250.090.

13. 13. 

    Medical institutionalization (Title XVI only)

    If the overpayment was caused by the individual’s admission into a medical institution, we will presume they are not at fault.

14. 14. 

    Statutory benefit continuation of payments

    For information on the presumption of not at fault when an overpayment was caused by the receipt of Statutory Benefit Continuation (SBC) and the individual appealed in good faith, refer to GN 02250.036.

15. 15. 

    Family maximum (Title II only)

    There is a maximum amount that we pay from an individual’s record, which includes the number holder, their spouse, and children. We call this the family maximum. In cases where the family maximum is involved, we will presume they are not at fault when a beneficiary is retroactively entitled on the record. We also deem recovery against equity and good conscience, refer to GN 02250.150B. For more information about family maximum, refer to RS 00615.760, GN 02201.003 and GN 02201.033

16. 16. 

    Erroneous entitlement on more than one Social Security Number (SSN) record

    An individual may be overpaid because they received benefits based on erroneous entitlement on more than one SSN record. If the individual filed for benefits and they did not withhold information regarding filing for or receiving benefits on another record, we can assume they thought they were entitled to separate payments from each record. In these circumstances, we can presume the individual is not at fault for the overpayment.

17. 17. 

    We are unable to locate documents or documentation to support an overpayment

    For information on the presumption of not at fault and deeming recovery against equity and good conscience when we are unable to locate documents or determine the cause of the overpayment, refer to GN 02250.011.

18. 18. 

    When we reopened a final determination based on a change of position

    We will presume an overpaid individual is not at fault when the overpayment resulted from a revised determination on reopening due to a change in position, refer to GN 04001.100. We also deem recovery against equity and good conscience. Refer to GN 02250.150B.

    If the reopening was due to change in position but our revised determination that unfavorably changed entitlement, eligibility, or payment amount was based on some reason other than the change in position, we will make the fault determination by considering all circumstances in GN 02250.005B.2.

19. 19. 

    Short taxable year ending in death

    We will presume an individual is not at fault when their death caused excess earnings. Effective November 11, 1988, we eliminated the short taxable year for the year of death. Prior to that time, overpayments which occurred solely because of the computation under the short taxable year were automatically considered for waiver. We will deem recovery is against equity and good conscience, refer to GN 02250.150.

20. 20. 

    Overpayments during the COVID-19 pandemic period

    We will find an overpaid individual is not at fault and deem recovery is against equity and good conscience if their overpayment occurred because we deferred processing manual adverse actions between March 17, 2020, and August 31, 2020. This waiver applies to overpayments for the period of March 2020 through September 2020, identified on or before December 31, 2020, that resulted from the pause in manual workloads. Some exceptions to this waiver process are fraud, similar fault, double check negotiation, prisoner suspensions and representative payee misuse.

    If the overpayment period has months within and outside of the pandemic period (March 2020 through September 2020), we will make more than one waiver determination. We will evaluate the fault determination for months outside the pandemic period by considering the factors in GN 02250.005B.2. If the individual is not at fault, we will determine if we can approve the waiver under one of these waiver provisions:

    • •

      Deemed to defeat the purpose, refer to GN 02250.110; or

    • •

      Against equity and good conscience, refer to GN 02250.150; or

    • •

      Defeat the purpose of the Act, refer to GN 02250.100.

    NOTE: Windfall Elimination Provision (WEP), Government Pension Offset (GPO), Bureau of Worker’s Compensation (BWC) and public disability benefit (PDB) adverse actions were held only from March 18, 2020, through June 22, 2020, when instructions were updated to resume processing these workloads. We will presume the overpaid individual is not at fault only for the months of March 2020 through June 2020 when actions were held.

Example 1: Overpaid individual unaware that actions of another affect entitlement or eligibility to benefits

Yrene returned to work but did not report their return to work timely. We stopped their disability benefits, but due to Yrene’s late reporting, both Yrene and their spouse, Chaol, were overpaid. Chaol lived in another state and had not communicated with Yrene in years. Chaol requested a waiver of the overpayment. The technician found Chaol not at fault in causing the overpayment because Chaol did not live with Yrene at the time of the overpayment and did not know or have reason to know about Yrene’s work activity. The technician found Chaol not at fault. The technician will next determine if another waiver provision applies.

This section provides guidance on making a fault determination in common situations that technicians may encounter.

The following are some common situations we may encounter when making a fault determination:

1. 1. 

   Knowingly supplied incorrect information or concealed material facts

   If we have evidence that the overpaid individual knowingly supplied incorrect or incomplete information or knowingly concealed material facts, which directly or indirectly caused the overpayment, we will review the record to determine if there is a fraud conviction or similar fault determination. If the overpaid individual has a fraud conviction, similar fault determination, or civil monetary penalty, they are not eligible for a waiver of their overpayment and we will not make a waiver determination for these situations, refer to GN 02250.001E.

   If there is no fraud conviction or similar fault determination, we may find the individual at fault for the overpayment, only after considering all the factors in GN 02250.005B.2. Refer to example 1 in GN 02250.021D.

2. 2. 

   Subsequent overpayments for the same reason

   If an individual incurred a past overpayment for the same reason as a current overpayment, review their record to determine if we documented that we informed them of the reason for the prior overpayment and their reporting responsibilities at the time of the prior overpayment. For procedures on reviewing an individual’s record, refer to GN 02250.021C. After reviewing the individual’s record and the pertinent circumstances surrounding the prior and subsequent overpayments, determine if they had adequate understanding of the obligation to report the change. Also, consider the amount of time that has passed since the prior overpayment occurred because the individual might not remember the reason for the prior overpayment or their reporting responsibility. Before making the fault determination, you must consider all the circumstances surrounding the overpayment, refer to GN 02250.005B.2. Refer to example 2 in GN 02250.021D.

3. 3. 

   Undocumented allegations of reporting

   If an individual alleges that they made a report to us or sent us information, check all available records. For procedures for checking an individual’s record, refer to GN 02250.021C. If an individual alleges making a report which is not in our files, document their allegation. For Title II cases, record their statement on the DMS Remarks screen. For Title XVI cases, obtain a statement on the Report of Contact Page in the Consolidated Claims Experience (CCE) or in a written statement on an SSA-5002, Report of Contact, for non-CCE cases. Upload the SSA-5002 into the electronic file or the Evidence Portal (EP). Make sure the statement includes what the individual remembers about reporting and what they expected would happen because of the report (e.g., benefits would terminate, we would notify only if benefits changed, etc.).

   Before making the fault determination, you must consider the allegation as well as all the factors in GN 02250.005B.2.

4. 4. 

   Misunderstanding our policies on entitlement or eligibility

   We may find an individual not at fault for an overpayment if they misunderstood our policies on Title II entitlement or Title XVI eligibility or if they misunderstood information given to them. When determining whether an individual misunderstood our policies or information given to them, we must consider their age, comprehension, education, memory, physical and mental condition (which may include medical institutionalization during part or all of the overpayment period), and linguistic limitations. Refer to example 3 in GN 02250.021D.

   Some policies that individuals commonly misunderstand for Title XVI overpayments include but are not limited to:

   • •

     Gross pay (before taxes or deductions) versus net pay (take-home pay);

   • •

     Reporting regular wages versus reporting all income;

   • •

     How earned income for one individual may affect the SSI payment for others;

   • •

     Excess resources; and

   • •

     Change in living arrangements.

   For more information on making fault determinations for Title II overpayments involving wages, refer to GN 02250.025.

5. 5. 

   Workers' compensation or public disability benefits (Title II only)

   Receipt of workers’ compensation (WC) or public disability benefits (PDB) can cause an offset to disability insurance benefits. When an individual alleges they did not know they needed to report receipt of these benefits, we must consider all circumstances surrounding the overpayment. To make the fault determination, review the records to determine if the individual signed an SSA-795, Statement of Claimant, agreeing to tell us about the WC or PDB and to repay any overpayment. To find the individual at fault, we must find evidence that:

   1. a. 

      We clearly informed the individual of the duty to report the receipt of WC or PDB.

   2. b. 

      The individual understood and should have remembered the reporting responsibilities; and

   3. c. 

      The individual was able to report but did not attempt to report WC or PDB.

   Given all the pertinent circumstances surrounding the overpayment, determine if the individual:

   • •

     Had adequate knowledge of the effect of the change or event,

   • •

     Understood their obligation to report the change, and

   • •

     Attempted to report the change.

   Refer to examples 4 and 5 in GN 02250.021D.

   Before making the fault determination, you must consider the factors in GN 02250.005B.2. Refer to example 2 in GN 02250.021D.

6. 6. 

   Duplicate checks

   Occasionally, the system will pay a duplicate check which bears the same date and the same amount (e.g., critical payment system (CPS) payments, substitute checks, courtesy disbursement, one-time payments.) To determine fault, consider if we gave the individual a notice explaining that they must return a check that they are not due and if the check stated, “Replaces CL dated (MM/DD/YY)”.

   Consider if there are circumstances that may have prevented the individual from remembering they received a prior check. We must also consider if the overpaid individual:

   • •

     understood they were not owed both checks,

   • •

     understood the need to return the check, or

   • •

     if they were able to reach and understand the information on the check.

   Before making the fault determination, you must consider the factors in GN 02250.005B.2

7. 7. 

   Erroneous payment of Title II benefits when an individual is only due Railroad Retirement Board survivor benefits (Title II only)

   If an employee who worked for the railroad is alive, they can receive payments from both SSA and the Railroad Retirement Board (RRB). When the employee dies, only one agency (RRB makes the determination) will have jurisdiction over the survivor benefits, refer to RS 01601.300.

   There are situations where an individual may receive survivor benefits from both Title II and RRB when they should only receive RRB benefits. We will find an individual not at fault if they were unaware that they should have received only one benefit. If we did not notify the individual that they were due only one benefit, we will find them not at fault. We will also find the individual not at fault if they did not understand that the benefits were not payable from both agencies.

   Refer to examples 6 and 7 in GN 02250.021D.

8. 8. 

   Conditional payments (Title XVI only)

   Fault usually exists when an overpayment resulted from conditional payments based on excess nonliquid resources. We make such payments pursuant to a written agreement indicating full understanding of the consequences of disposition or failure to dispose the non-liquid resource.

   However, before making the fault determination, you must consider the factors in GN 02250.005B.2. Ordinarily, this agreement is documented on a Form SSA-8060-U3 and faxed into the Evidence Portal (EP). If it is not in the EP, check the locations listed in GN.02250.021C. If you cannot locate the written agreement, and your review of the factors in GN 02250.005B.2 indicates the individual did not understand the agreement or the consequences of their failure to dispose of the resource, we will find the individual not at fault.

   For information about conditional payments, refer to SI 01150.200 through SI 01150.206.

9. 9. 

   Goldberg Kelly payments (Title XVI only)

   If an individual is overpaid because they received Goldberg Kelly payments, we may find them not at fault if they did not understand the Goldberg Kelly requirements, process, or that the payments may be incorrect. Before making the fault determination, you must consider the factors in GN 02250.005B.2

   For information about Goldberg Kelly, refer to SI 02301.300.

10. 10. 

    Incarceration cases

    If an individual is overpaid because they are incarcerated, we will base the fault determination on whether the individual knew or should have known their reporting responsibilities and if they had the ability to report. We must consider the factors in GN 02250.005B.2.

11. 11. 

    Overpaid individual with a representative payee

    If an overpaid individual was overpaid because their representative payee failed to report a change to us, and the overpaid individual requests a waiver, we will consider only whether the overpaid individual was at fault. We cannot find the overpaid person at fault merely because the representative payee may have been at fault. We will find the overpaid individual not at fault, unless we find that the representative payee did not know of the change, and we find the overpaid individual:

    • •

      was aware of the change;

    • •

      understood the change could affect their benefits;

    • •

      understood the responsibility of the representative payee to report the change to us;

    • •

      knew the representative payee was unaware of the change; and

    • •

      did not notify or attempt to notify the representative payee of the change.

    In deciding whether the overpaid person is at fault, we must consider all the circumstances in GN 02250.005B.2.

12. 12. 

    Representative payee misuse

    If an overpayment is established due to representative payee misuse, and the misuse determination is upheld, the misuser is usually at fault.

When making fault determinations, it is usually necessary to check an individual’s record or file to consider all of the relevant circumstances surrounding the overpayment.

1. 1. 

   Title II procedures

   For Title II instructions review these files:

   • •

     Master Beneficiary Record (MBR),

   • •

     Modernized Claims Systems (MCS),

   • •

     Claims File User Interface (CFUI),

   • •

     Evidence Portal,

   • •

     Certified Electronic Folder (CEF),

   • •

     Paper folder, if any, etc.

2. 2. 

   Title XVI procedures

   For Title XVI instructions review these files:

   • •

     Supplemental Security Record (SSR),

   • •

     CCE,

   • •

     Claims File User Interface (CFUI)

   • •

     Evidence Portal,

   • •

     Certified Electronic Folder (CEF),

   • •

     paper folder, if any, etc.

This section includes examples for making the fault determination. If you find an overpaid individual not at fault, you must then determine if the individual meets any of these waiver provisions:

• •

  Deemed to defeat the purpose, refer to GN 02250.110, or

• •

  Against equity and good conscience, refer to GN 0220.150, or

• •

  Defeats the purpose of the Act, refer to GN 02250.100.

If you find the overpaid individual at fault, you must send the case to an independent decision maker who will schedule a file review and personal conference.

Example 1: Willful concealment of material facts

(At fault) After a favorable disability determination for an initial claim, the Cooperative Disability Investigation (CDI) unit found that Dorian willfully concealed material information when they applied for disability benefits. We reopened the initial claim to a denial, resulting an in overpayment.  Dorian requested a waiver.  They did not have a fraud conviction or similar fault determination. The technician reviewed all the circumstances surrounding the overpayment and Dorian’s ability to provide correct information to us. The technician found Dorian at fault for causing the overpayment based on the CDI unit finding that Dorian willfully concealed material facts. 

Example 2: Subsequent overpayment for the same reason and workers’ compensation

(At Fault) We overpaid Hawke because they did not report an increase in their workers’ compensation (WC). The technician found Hawke not at fault because they were unaware of their reporting responsibilities. The technician advised Hawke of the responsibility to report any changes in WC payments in the future and they stated that they understood. The technician documented Hawke’s file. Two years later, we overpaid Hawke again because of failure to report an increase in WC payments. Hawke requested a waiver. The technician considered all the circumstances of the case, including notes and documents in the file indicating that Hawke had been informed of the responsibility to report changes in WC payments. The technician did not find any evidence that Hawke did not understand or remember the reporting requirements or any evidence that Hawke was unable to report the increase in WC payments. The technician found Hawke at fault for the second overpayment. 

Example 3: Misunderstanding our policies on entitlement or eligibility 

(Not at fault) Penellaphe timely reported receiving an inheritance of $10,000. At the time of the report, the technician informed Penellaphe about the resource and transfer rules. Penellaphe said they planned to spend the money on debt. The same month Penellaphe received the inheritance, they used $3,500 to pay off credit card debt and gave $5,500 to a sibling who had been helping them with expenses for several years. Penellaphe and their sibling did not have a bona fide loan agreement. Penellaphe was not expected to pay the sibling back for the help she received, therefore, Penellaphe was overpaid because they transferred a resource for less than fair market value, resulting in a period of ineligibility. Penellaphe requested a waiver and alleged that they thought it was okay to give money to the sibling, who they “owed” for years of help. Because Penellaphe misunderstood the transfer rules, the technician found Penellaphe not at fault.

Example 4: Workers' compensation 

(Not at fault) Kieran began receiving disability insurance benefits in January 2023. In July 2023, Kieran reported a pending workers' compensation (WC) claim. Kieran signed an SSA-546 and an SSA-795 repay statement. In February 2024, Kieran reported the WC claim was approved in February 2024 with WC payments beginning January 2023. We found Kieran overpaid from January 2023 to February 2024 based on the WC payments. Kieran requested a waiver. Because Kieran reported the receipt of WC payments timely, meaning when the claim was approved, the technician found Kieran is not at fault for the overpayment. Though Kieran previously signed a repayment statement, this does not automatically mean that the technician found Kieran at fault.  

Example 5: Workers’ compensation 

(At Fault) Malik received long term disability benefits while their workers’ compensation (WC) claim was pending. In June 2022, we approved them for disability benefits. At that time, the technician advised Malik to notify us when the WC claim is approved and documented the information in Malik’s records. Malik received a WC notice of approval in January 2023 but failed to notify us. During a January 2024 review of their record, we discovered the WC. We notified Malik of an overpayment from January 2023 through January 2024, and they requested a waiver.  Evidence in Malik’s record revealed that we informed them of their reporting responsibilities. They had no limitations affecting their ability to understand, remember, or report the changes.  Malik’s failure to report WC resulted in an at fault determination.  

Example 6: RRB survivor benefits

(Not at fault) A married couple, Aelin and Sam, were receiving both Title II benefits and RRB benefits. Sam died in January 2019, and both SSA and RRB converted the surviving spouse to survivor benefits. We discovered the error in 2020 and notified Aelin of the overpayment. Aelin requested a waiver stating they did not know they should have received only one benefit. They did not receive any notice from the RRB stating they were not entitled to Title II benefits. The technician reviewed SSA’s records and found that we did not send Aelin a notice explaining that Aelin was no longer due Title II benefits. The technician found Aelin not at fault because Aelin did not receive information from us that their benefits were only payable from RRB.   

Example 7: RRB survivor benefits

(At fault) Rowan applied for Title II surviving spouse benefits based on their spouse's years of service for the railroad. RRB subsequently notified Rowan only RRB would pay survivor benefits. However, through error, we also certified payment. At the time, Rowan called us to question why they were also receiving benefits from both agencies. The representative told Rowan payments from us were incorrect and not due, and that they must return the checks to us. We did not correct the error immediately and Rowan received two additional payments. After correcting the error, we notified them of the overpayment, and they requested a waiver. Because Rowan knew the payment was not due and they did not have any limitation preventing them from understanding the need to return the payments, the technician finds they are at fault in causing the overpayment.

This section provides guidance to make a fault determination for individuals requesting a waiver of a Title II overpayment that resulted from incorrect computation of insured status or benefit rates. This section also provides guidance to make a fault determination for individuals requesting a waiver of a Title XVI overpayment that resulted from incorrect SSI payments.

An overpaid individual cannot be charged with knowledge of how we compute benefit rates or insured status. We will presume the individual is not at fault if:

• •

  • we made an error in computing the benefit rate or insured status, unless there is evidence that the individual knew or had reason to know of the computation error or the individual’s earnings record was fraudulent, refer to GN 02250.016B.4. If the individual’s earning record was fraudulent but the individual was not involved in the fraud, we will determine whether the individual is not at fault by applying the factors in GN 02250.005.

• •

  • the individual reported a change, but we continued issuing payments, which led the individual to believe they were entitled to receive the payments, refer to GN 02250.016B.2; or

• •

  • the individual reported a change, and we took some action that the individual believed was a correct response to the report, refer to GN 02250.016B.3.

This section includes examples for making the not at fault determination. If any of these presumptions apply, find an overpaid individual not at fault, and then determine if the individual meets any of these waiver provisions:

• •

  Deemed to defeat the purpose, refer to GN 02250.110; or

• •

  Against equity and good conscience, refer to GN 02250.150; or

• •

  Defeats the purpose of the Act, refer to GN 02250.100.

Example 1: Computation error

(Not at fault): Elain, the applicant, alleged February 15, 1957, as the date of birth on their application for retirement benefits. However, due to a clerical error, the technician entered the date of birth as February 15, 1955. We subsequently notified Elain that we corrected the date of birth in our records to be February 15, 1957, causing an overpayment based on our incorrect computation of benefit based on their age. We cannot expect Elain to know how we compute benefit rates; therefore, Elain is not at fault.

Example 2: Reported change followed by incorrect action

(Not at fault): Nesta started receiving widows' benefits of $1,500 at age 60. Two years later, Nesta started to receive a non-covered pension from their work as a teacher and called to inform us immediately. Nesta informed us the pension amount would be $2,000 per month. When the technician input Nesta’s non-covered pension, they mistakenly input $200 instead of $2,000. Nesta received a notice in the mail stating their benefit was being reduced by $133 per month due to government pension offset (GPO). Six months later during a claims review, another technician discovered that the prior technician had previously input an incorrect pension amount. The technician then corrected the amount to $2,000. Nesta received a notice stating their monthly benefit amount should have been reduced by $1,333 due to GPO and they were now overpaid. Nesta requested a waiver. Nesta is not at fault for causing the overpayment because we took action after the report that led Nesta to believe we made a correct action.

Example 3: Continued benefits after change reported

(Not at fault): Cassian, a surviving divorced father, under age 60, reported their remarriage and indicated they still had a child in their care and wished to continue receiving benefits on the child's behalf. Cassian’s benefits should have been terminated but were not. When Cassian requested a waiver for the resulting overpayment, Cassian alleged that since the benefits continued after their report, Cassian thought they were still due the benefits because they had the child in their care. We will find Cassian is not at fault.

Example 4: Continued benefit payments after change reported

(Not at fault): Azriel reported current work during the Medical Continuing Disability Review (CDR) process, but we failed to initiate a Work CDR. The Disability Determination Services (DDS) approved the Medical CDR, benefits continued, and Azriel continued to work. We then conducted a Work CDR resulting in an overpayment. Azriel requested a waiver. Since Azriel reported their current work during the Medical CDR process and the continued issuance of checks after the report led Azriel to believe they were entitled to the checks subsequently received, we determine Azriel is not at fault.

If Azriel did not report current work during the Medical CDR, and we conduct a subsequent Work CDR resulting in an overpayment, we must consider all the circumstances surrounding the overpayment that may have prevented Azriel from understanding reporting requirements or the need to report.

This section provides guidance to make a fault determination for individuals requesting a waiver of a Title II overpayment resulting from earnings.

An individual is not at fault if the overpayment occurred because the individual was unaware of the deduction or entitlement provisions or because the individual did not understand the deduction or entitlement provisions.

1. 1. 

   Allegation of filing work report

   We presume the overpaid individual is not at fault if they made a timely report, refer to GN 02250.016.B.1. If an individual did not timely report, determine whether the individual is not at fault by considering the circumstances in GN 02250.005. If the individual made a report that was not timely and we continued making payments, we can presume they were not at fault for any overpayment after they made the report, refer to GN 02250.016B.2. If there is no record of the alleged report, refer to GN 02250.021B.3.

2. 2. 

   Trial work period

   When an individual who receives disability benefits reports they are returning to work, we may notify the individual that they are entitled to a 9 month trial work period (TWP) and that checks will continue for some time. If we later find the individual is overpaid for any of the TWP, we presume the individual is not at fault for accepting checks in the TWP.

3. 3. 

   Work increases to substantial gainful activity

   An individual who receives disability benefits may report that they returned to work, and we will find that the work is not substantial gainful activity (SGA). We tell the individual that the work is not SGA and will not change their benefit. If the individual continues to work at the same job and under the same conditions, we will presume the individual is not at fault in causing any overpayment that resulted from a gradual increase in salary roughly equal to the rate of inflation. For information regarding undocumented allegations, refer to GN02250.021B.3.

4. 4. 

   Special wage payments

   When an overpaid individual receives special wage payments (SWP), such as bonuses, vacation pay, or similar payments, during periods of absence from work, we presume the individual not at fault if they did not know that such payments constitute earnings for purposes of the annual earnings test (AET). We must verify the type of special payment and the amount of such payment with the employer or the individual (e.g. paystub). It is immaterial whether the overpaid individual anticipated this payment, or if it was unexpected.

   NOTE: If the overpaid individual’s regular and ordinary earnings (exclusive of the special payment) exceed the annual limit, we may still find the individual not at fault after considering their circumstances. For factors to consider when making a special wage payment fault determination, refer to GN 02250.005. For examples regarding special wages payments, refer to GN 02250.025C.

   For additional information on Special Wage Payments (SWP) RS 02505.025.

5. 5. 

   Net and gross earnings

   We presume an individual is not at fault if they believed the earnings test was based on take-home pay, rather than gross pay. We will deem recovery against equity and good conscience, refer to GN 02250.150.

6. 6. 

   Earnings prior to month of entitlement

   We will presume an individual is not at fault if they believed that earnings prior to the Month of Entitlement (MOE) or after termination of entitlement would not count as earnings for deduction purposes, unless the earnings from the months of entitlement alone exceeded the earnings limitation amount for the year. If we presume the individual is not at fault:

   • •

     • We will also deem recovery against equity and good conscience but only for months in which the individual’s earnings do not exceed the total monthly benefits affected for that month.

   • •

     • For any months that we cannot deem recovery against equity and good conscience, we will develop for defeat the purpose.

7. 7. 

   Returning to work or increasing work

   We will presume an overpaid individual not at fault if they believed earnings over the AET would only affect benefits starting the month in which earnings exceeded the AET. They must have reported to us timely when their earnings reached the AET limit for that particular year.

8. 8. 

   Overpayment from earnings or income greater than anticipated

   1. a. 

      A retroactive increase in pay or work at higher rate than realized

      We presume an individual is not at fault if there is:

      • •

        a retroactive increase in pay (including backpay awards or retroactive pay increases); or

      • •

        work at a higher rate of pay than realized

   2. b. 

      Employer failed to keep records

      We presume an individual is not at fault if there is evidence showing an employer failed to keep accurate records to restrict the amount of earnings or the number of hours worked, as agreed to by the employer and the overpaid individual.

      NOTE: An agreement can only exist when the agreement is feasible. For example, if the individual is a salesperson whose pay depends on volume of sales, they would be unable to make an agreement because they cannot predict what their sales will be.

   3. c. 

      Calendar months with more than 4 weeks

      The occurrence of five Saturdays (or similar workdays) in a month can cause some months to exceed earnings limits. An individual is not at fault when their weekly rate totals less than the annual limit but, in some calendar months of more than 4 weeks, exceeds the monthly limit.

   NOTE: Verify all earnings allegations with the employer.

This section includes examples for making the fault determination. If you find an overpaid individual not at fault, you must then determine if the individual meets any of these waiver provisions:

• •

  Deemed to defeat the purpose, refer to GN 02250.110, or

• •

  Against equity and good conscience, refer to GN 02250.150, or

• •

  Defeats the purpose of the Act, refer to GN 02250.100.

If you find the overpaid individual at fault, you must send the case to an independent decision maker who will schedule a file review and personal conference.

Example 1: Special wage payments

(Not at fault): Sera retired in June 2023. Sera received a lump sum payment of $5,000 instead of receiving vacation leave, which resulted in an overpayment of $2,500. Sera was not aware the vacation pay was included as wages for the annual earnings test. The technician determined that Sera is not at fault for the overpayment. Next, the technician must determine if the overpayment can be waived under any of the waiver provisions.

Example 2: Special wage payments

(At fault): (At fault): Ash filed for retirement benefits and informs us they will continue to work as a substitute teacher. Before the school year begins, the school board makes an agreement with substitute teachers. They will receive a $1,000 bonus as part of their regular pay for every thirty days of substitute teaching. Before the school year begins, Ash informs us of this agreement. The technician explains the bonus money will count as earnings, and they need to report the bonus money when they receive it. The technician documents the conversation on a Report of Contact (RPOC). Ash later receives a $1,000 bonus and is overpaid $3,000 because they did not report the bonus money. They requested a waiver after receiving the overpayment notice.

Because Ash knew the bonus money would count as earnings and there is a prior agreement that they would report the bonus, the technician cannot presume that Ash is not at fault for the overpayment. The technician considers all the circumstances related to the overpayment and there is no evidence indicating that Ash was limited in understanding the reporting instructions or unable to report. The technician determines Ash was at fault and must refer the case to an independent decisionmaker who will schedule a file review and personal conference.

Example 3: Net and gross earnings

(Not at fault): Rhain filed for retirement benefits. Rhain reported only their take-home pay, rather than gross pay, which resulted in an overpayment. Rhain requested a waiver. Rhain alleged that they believed that the earnings test was based on take-home pay rather than gross salary. The technician determines that Rhain is not at fault and deems recovery against equity and good conscience.

Example 4: Earnings prior to month of entitlement

(Not at fault): Sotoria, age 63, became entitled to retirement benefits in March 2021. They earned $9,000 in January and February. The annual earnings test (AET) for 2021 is $18,960 per year for an individual who will not reach full retirement age (FRA) during the year. Sotoria’s employer reported earnings of $27,960 for 2021 on their W-2, which resulted in an overpayment of benefits for 2021. When the technician developed the waiver request, Sotoria asserted that they believed that earnings prior to the month of entitlement would not count as earnings. Sotoria explained that they believed they could earn the allowable limit ($18,960) in the months after entitlement began.

To determine if the presumption of not at fault applies, the technician subtracted the amount Sotoria earned before the entitlement to retirement benefits began from the total earnings for the year:

$27,960 -$9,000 =$18,960

Sotoria earned $18,960 in the months during entitlement to retirement benefits. Because this amount does not exceed the annual earnings test and the individual alleged that they believed the earnings in the months prior to entitlement did not count, the technician presumes that Sotoria is not at fault for this overpayment. The technician will determine if deemed against equity and good conscience applies, refer to GN 02250.150.

Example 5: Returning to work or increasing work

(Not at fault): Bele filed for retirement insurance benefits (RIB) with a month of entitlement (MOE) of January 2023. Prior to filing, Bele reduced their monthly gross wages from $7,220 to $1,700 per month. On April 30, 2023, Bele’s coworker suddenly quit, and Bele’s boss asked them to come back full time for the rest of the year.

A few days before the end of June 2023, Bele called the local field office to report that as of June 30, 2023, their wages would reach the AET limit of $21,240. As the year passes, Bele does not receive any more payments from us, just as they expected. In March 2024, Bele received a notice of overpayment for $21,660 due to the 2023 gross wages of $64,560. Bele requested a waiver. Bele explained that they timely reported their earnings and that they thought their benefits would be affected only for the months after reaching the AET limit. The technician determined that Bele is not at fault for causing the overpayment because they timely reported when their earnings reached the AET and reasonably believed that their benefits would be affected only for months after reaching the AET limit.