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:

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

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     Reporting regular wages versus reporting all income;

   • •

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

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     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,

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     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.