Social Security

Summary of Changes: Added processing instructions for the Office of Appellate Operations (OAO) in section E. Updated wording to accommodate OAO instructions throughout.

A. Purpose

The purpose of this emergency message (EM) is to provide:

1. Instructions requiring field office (FO) technicians, Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) personnel to consider and document an individual’s alleged circumstances related to the COVID-19 pandemic that may have prevented the individual from reporting changes. FO technicians, OHO and OAO personnel must follow these instructions when making a fault determination on a waiver request for a Title II or Title XVI overpayment incurred in any month since March 2020. These instructions apply to all levels of review, including the initial waiver determination, upon reconsideration, at the hearing level, and on Appeals Council review.

2. A reminder for FO technicians to follow established policy and procedures when adjudicating waiver requests, including GN 02250.000, GN 02270.000 and EM-20037 SEN REV 6.

On January 20, 2024, the United States District Court for the Eastern District of New York approved a settlement agreement in Campos v. Kijakazi, No. 21-cv-05143. The case involved Title XVI overpayments incurred during the COVID-19 pandemic from March 2020 through April 2023.

Effective immediately, when making a fault determination on a waiver request for an overpayment incurred in any month since March 2020, technicians must consider any circumstances related to the COVID-19 pandemic that an overpaid individual alleges prevented the individual from reporting changes. When COVID-19 circumstances are alleged, technicians must also document the individual’s allegations of COVID-19 circumstances that prevented the individual from reporting changes in the file.

COVID-19 Circumstances – Fault Determination

Technicians should continue to follow established procedures for determining whether an individual was at fault in causing the overpayment (refer to GN 02250.005 through GN 02250.025).

As part of their determination, technicians must consider all the circumstances surrounding the overpayment in each individual case, including but not limited to an individual’s ability and efforts to comply with reporting requirements.

For waiver requests involving overpayments incurred in any month since March 2020, when considering all circumstances that may be relevant to a fault determination, technicians should consider any circumstances resulting from the COVID-19 pandemic that an overpaid individual alleges prevented the individual from complying with reporting responsibilities.

Examples of circumstances related to the COVID-19 pandemic that may have prevented an individual from complying with Title II or Title XVI reporting requirements include, but are not limited to, the following scenarios:

The overpaid individual:

· attempted to contact us but was unable to visit a FO, mail us information, reach us by phone, or get transportation because of the COVID-19 pandemic;

· was unable to contact us because of government-imposed COVID-19 travel restrictions;
· was unable to contact us because of child-care or family-care changes due to COVID-19 stay-at-home orders or school-at-home requirements;
· was unable to contact us because of the overpaid individual’s COVID-19 illness or related serious illness;
· was unable to contact us because the overpaid individual’s representative payee died or became seriously ill due to COVID-19 or serious illness related to COVID-19; or
· was unable to contact us because the overpaid individual’s immediate family member died or became seriously ill due to COVID-19 or related serious illness.

Example:

Barbara received an overpayment notice for $2,100 for the months of February 2021 to May 2021. Barbara requested a waiver by completing the SSA-632-BK, Request for Waiver of Overpayment Recovery, and provided it to the local FO. A technician determines that the overpayment does not meet the criteria for administrative tolerance or the streamlined waiver process.

The technician contacts Barbara, who alleges trying to call the 800 number but never getting through to a live representative and not being able to visit an FO due to COVID-19 office closures.

The technician determines Barbara is without fault in causing the overpayment because of COVID-19 related circumstances that prevented Barbara from complying with the reporting responsibilities and documents the allegations in the file.

Next, the technician determines if overpayment recovery from Barbara meets the criteria for against equity and good conscience (GN 02250.150) or the defeats the purpose provision (GN 02250.100) and documents the final waiver determination.

REMINDER: Technicians must continue to follow all applicable Title II and Title XVI overpayment waiver instructions to adjudicate the waiver determination including:

· Determining and documenting the fault determination (refer to GN 02250.005 through GN 02250.025); applying the streamlined waiver process in EM-20037 SEN REV 6; and considering and documenting COVID-19 related circumstances per Section C above;

· Developing and documenting the waiver determination (refer to GN 02250.315);

· Conducting a personal conference (refer to GN 02270.003 through GN 02270.015), when applicable;

· Issuing the waiver determination notice (refer to GN 02250.370 and GN 02270.015); and

· Returning recovered funds, if appropriate (refer to GN 02201.017A.2, GN 02403.001, GN 02250.002C.3a for Title II and GN 02250.002C.4.a for Title XVI).

If a waiver appeal is pending at the hearing level, OHO personnel will follow the instructions in Section C along with the normal waiver determination procedures in 20 CFR 404.506 and 416.550. When making a fault determination on a waiver request for an overpayment incurred in any month since March 2020, OHO personnel must consider any circumstances related to the COVID-19 pandemic that an overpaid individual alleges prevented the individual from reporting changes. See Section C for more information on considering COVID-19 related circumstances. OHO personnel must also document the individual’s allegations of COVID-19 circumstances that prevented the individual from reporting changes in the written decision.

E. OAO Instructions

If a waiver appeal is pending at the Appeals Council level, OAO analysts and adjudicators will follow the instructions in Section C along with the normal waiver determination procedures in 20 CFR 404.506 and 416.550. When reviewing a hearing decision on a waiver request for an overpayment incurred in any month since March 2020, the Appeals Council will review whether the hearing decision appropriately considered any circumstances related to the COVID-19 pandemic that an overpaid individual alleged prevented the individual from reporting changes. Additionally, OAO analysts and adjudicators will review the claim(s) file or hearing decision for proper documentation of the individual’s allegations of COVID-19 circumstances that prevented the individual from reporting changes. Lastly, OAO adjudicators will ensure Appeals Council level decisions document the individual’s allegations of COVID-19 circumstances that prevented the individual from reporting changes.

OHO staff should direct questions through the office’s management chain. Regional office staff may direct questions about this matter to the Office of the Chief Administrative Law Judge’s Division of Field Procedures.

OAO staff should direct any questions regarding this EM through their management chain. OAO managers may direct additional questions to the Executive Director’s Office.

All others should direct all program-related and technical questions to your Regional Office (RO) support staff using vHelp or Program Service Center (PSC) Operations Analysis (OA) staff. RO support staff or PSC OA staff may refer questions, concerns or problems to their Central Office contacts.

References
GN 02201.017 Explanation of a Title II Overpayment
GN 02250.000 Waiver Provisions for Title II and Title XVIII Overpayments
GN 02250.002 Processing a Waiver Request – Title II and Title XVI
GN 02250.005 Fault Determinations for Overpayment Waiver Requests – Title II and Title XVI
GN 02250.025 Fault Determinations When Overpayment is Due to Earnings – Title II
GN 02250.100 Defeats the Purpose (Ability to Repay) of Title II and Title XVI – Waiver Determination
GN 02250.150 Against Equity and Good Conscience
GN 02250.315 Documenting Waiver Determinations on Form SSA-635 – Title II and Title XVI
GN 02250.370 Waiver Approval Notice – Title II and Title XVI
GN 02270.000 Personal Conference Procedures When Waiver Cannot be Approved
GN 02270.003 Overview of the Personal Conference – Title II and Title XVI
GN 02270.015 Initial Waiver Determination After Personal Conference – Title II & Title XVI
GN 02403.001 Overview of Field Office Remittance Process
EM-20037 SEN REV 6 Special Overpayment and Waiver Processing