Effective Dates: 11/01/2022 - Present Previous | Next

TN 38 (11-22)

SI 02260.008 Subsequent Waiver Request Denial (Res Judicata) - Supplemental Security Income (SSI)

A. Background of res judicata

Res judicata is a rule that provides that once an issue is decided it does not need to be decided again. If a recipient, or his or her representative, files multiple waiver requests for the same overpayment, raises no new issues and provides no new facts or material evidence, we will apply res judicata.

Res judicata allows us to adopt a prior determination denying a waiver request when the recipient or his or her representative fails to provide new and material evidence.

B. Policy for applying res judicata to duplicate SSI overpayment waiver requests

Res judicata in a waiver is derived from the fact that findings of fault are based on a person’s circumstances prior to an overpayment determination. Those circumstances remain constant. Consequently, a new waiver determination is not necessary if:

  • •

    The “at fault’ determination in the previously denied waiver request is correct;

  • •

    The requester presents no new issue(s), fact(s), or evidence to reopen and revise the prior determination; or

  • •

    Reopening is not possible under the rules of administrative finality.

NOTE: For Title XVI administrative finality and general reopening policies, see SI 04070.010.

C. Procedure for applying res judicata to duplicate SSI overpayment waiver requests

1. When res judicata applies

If the liable recipient or his or her representative files a subsequent waiver request for the same overpayment without providing new and material facts or evidence, deny the request without making a new determination based on res judicata.

  1. a. 

    Notify the recipient that the denial decision on the prior waiver request still applies. Use the Document Processing System (DPS) notice, Res Judicata Overpayment Waiver Denial. The notice is located in the DPS General folder.

  2. b. 

    After we have issued a res judicata decision on a subsequent overpayment waiver request, the recipient or representative may file an appeal. Appeal rights up to an Appeals Council review are limited to whether the issue is the same as that previously determined.

  3. c. 

    For instructions regarding the reconsideration request, see SI 02220.017.

2. When res judicata does not apply

If the liable recipient files a subsequent waiver request for the same overpayment and new and material evidence exists, res judicata does not apply. Make a new determination on the waiver request in the usual manner, adhering to the rules for reopening final determinations. For reopening – new and material evidence, see SI 04070.010 and SI 04070.015. For basic waiver instructions, see SI 02260.001.

D. Documenting the subsequent overpayment waiver request

  1. 1. 

    Document the subsequent overpayment waiver request using the Waiver Decision (UOWV) screen in Direct Supplemental Security Record (SSR) Update.

  2. 2. 

    Select the 3 = DENIED — PRIOR DENIAL (NO CHANGE) decision for the overpayment sequence in UOWV.

  3. 3. 

    Enter on the Modernized Supplemental Security Income Claims System (MSSICS) Report of Contact (DROC) screen (or SSA-5002 for non-MSSICS cases):

    • •

      “Res Judicata Denial” and provide a rationale (e.g., no new evidence submitted/submitted same evidence, etc.);

    • •

      The overpayment sequence number; and

    • •

      The date of the decision.

  4. 4. 

    Fax the SSA-632-BK or other equivalent paper document(s) and the SSA-5002 into the Certified Electronic File (CEF) or NDRed using the Evidence Portal (EP). For more information on EP, see MS 09701.001.

NOTE: For basic overpayment waiver input instructions, see MS 00304.009

E. Examples when res judicata applies and does not apply

1. When res judicata applies

In January 2015, Paula Nichols requests waiver of recovery for her $2,500.00 overpayment. We deny the waiver request because we determined that Paula was at fault in causing the overpayment. Instead of an appeal, Paula files a subsequent waiver request on the same overpayment decision without providing new evidence, facts, or information. Since Paula submitted no new evidence, we deny the waiver based on res judicata. Paula retains the right to appeal only whether the issues and facts are the same as those in the previous waiver request.

2. When res judicata does not apply

Using the example above, Paula submits new and material evidence, facts, or issue(s) when filing a subsequent waiver request. Therefore, we would not apply res judicata. Instead, we make a new waiver determination based on new material evidence and provide Paula the right to appeal any aspect of our determination.

F. Related References

  • •

    SI 04030.010 Administrative Law Judge Hearings for Supplemental Security Income Cases

  • •

    SI 04040.010 Appeals Council Review for Supplemental Security Income Cases

  • •

    SI 02260.001 Basic Requirements Concerning Supplemental Security Income (SSI) Overpayment Waiver

    GN 02201.034 Processing a Waiver Request

  • •

    SI 04070.015 Reopening SSI Determinations

  • •

    GN 03101.160 Res Judicata

  • •

    SI 02220.017 SSI Overpayments – Request for a Different Rate of Adjustment, a Reconsideration, or Waiver

  • •

    SI 04070.010 Title XVI Administrative Finality – General Reopening Policies

  • •

    MS 00304.009 Waiver (UOWV)

To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0502260008
SI 02260.008 - Subsequent Waiver Request Denial (Res Judicata) - Supplemental Security Income (SSI) - 11/01/2022
Batch run: 11/01/2022
Rev:11/01/2022