SSA - POMS: GN 02250.303 - Subsequent Waiver Request (Res Judicata)- Title II and Title XVI

A. Introduction

This section provides guidance on when to make a new waiver determination after an individual makes a subsequent waiver request of an overpayment for which we previously made a waiver determination. This section also provides guidance on when to apply res judicata to deny a subsequent waiver request after we previously made a waiver determination on a prior waiver request.

B. Policy-When res judicata applies

Under res judicata, for the purposes of this section, we sometimes adopt the prior determination to deny a waiver request. In general, we do not need to make another determination based on the same facts, same issue(s), and same parties as defined in GN 02250.303C. In general, if the same individual files multiple waiver requests for the same overpayment, raises no new issues, and provides no new and material evidence, we will apply res judicata. A technician who was not involved in the previous waiver determination must review the new/subsequent waiver request. For more information on res judicata for post-adjudicative issues, refer to GN 03101.160C.

We base findings of fault on an individual’s circumstances prior to the original overpayment determination. Those circumstances remain constant.

We will not make a new waiver determination if the subsequent waiver request for the same overpayment satisfies all of these criteria:

1.

Same facts, refer to GN 02250.303C.1;
2.

Same issues, refer to GN 02250.303C.2;
3.

Same parties, refer to GN 02250.303C.3;
4.

The prior waiver determination is final either by administrative or judicial action, refer to GN 02250.303C.4; and
5.

The “at fault” finding in the prior waiver denial was correct, GN 02250.303C.5.

C. Criteria for determining res judicata

1. Same facts

The facts generally are considered the same, in the context of a subsequent request for waiver of the same overpayment, when there is no new and material evidence. Evidence is new if it was not part of the record at the time of the prior final waiver determination. Evidence is material if it relates to the period at issue in the prior final waiver determination and would have changed the outcome of that determination.

2. Same issue(s)

An issue generally is considered the same, for res judicata purposes, if both the time period and the applicable law or policy are the same. If only part of the period at issue in the subsequent waiver request was adjudicated in the prior final waiver determination, res judicata may not be applied to dismiss the subsequent waiver request in its entirety. If different law or policy applies, or if the applicable law or policy has changed, the issue is not the same.

3. Same parties

If a subsequent waiver request is for the same individual who was denied in a prior determination, the parties will be the same. Situations may arise involving another individual whose rights or interests are affected. For example, if we previously denied waiver of recovery from the overpaid individual but a contingently liable individual subsequently requests waiver, we will not apply res judicata. We will make a new waiver determination when the subsequent waiver request is for a liable individual who is different from the individual who we previously denied waiver. For information on who may be liable for an overpayment, refer to GN 02205.000.

4. Prior determination is final

Res judicata may apply only based on a prior determination that is final. For example, res judicata may never apply based on a determination that is on appeal. For policy on when a determination becomes final, refer to GN 03101.060A and SSR 91-5p.

NOTE: Be alert for a situation where res judicata otherwise would apply but the individual has good cause for the failure to timely appeal the prior waiver denial. For guidance on waiver appeals and good cause, refer to GN 02250.380B.

5. Prior “at fault” finding is correct

If the prior “at fault” finding is incorrect, reopening and revising may be appropriate. However, a different determination may be made on the subsequent waiver request even when reopening and revising the prior final waiver determination is not possible.

D. Policy-When res judicata does not apply

If an individual files a subsequent waiver request for the same overpayment, res judicata does not apply if any of the criteria in GN 02250.303B. is not met. Res judicata does not apply if the facts are different, if the issue is different, if the parties are different, if the prior waiver determination is not final, or if the “at fault” finding in the prior waiver denial is incorrect. Where res judicata does not apply, make a new determination on the waiver request, or reopen and revise the prior determination where appropriate. For basic waiver instructions, refer to GN 02250.001.

E. Policy-Reopening prior waiver determination

Before denying a subsequent waiver request based on res judicata, we must consider whether we may reopen the prior waiver determination (refer to GN 03101.160A). In general, a final waiver determination that is later found to have been incorrect when made may be reopened and revised under the rules of administrative finality, if the relevant conditions are satisfied. For more information regarding administrative finality, refer to GN 04001.010 through GN 04001.130 and SI 0407.010.

If reopening is not possible but the individual was previously found not at fault and meets the defeat the purpose provision based on a change in financial circumstances, we will make a new waiver determination.

F. Policy-Appeal of a res judicata determination

After we have issued a res judicata determination on a subsequent waiver request, the individual may request an appeal. The appeal is limited to whether the facts, issue(s) (including time period), and parties are the same as in the prior final waiver determination. For instructions regarding the reconsideration (appeal) request, refer to SI 02220.017 and GN 02250.380.

G. Procedure on stopping recovery

When an individual makes a new request for waiver of the same overpayment, take the following initial actions to stop collection activity in the month we receive the waiver request:

For Title II, input protest reason 3 (Initial Waiver) using the (DRPF) screen in the Debt Management System (DMS) for the field office (FO), or use the DRPR for the PC (refer to MS DMS 006.019 or MS DMS 006.003);

For Title XVI, document the subsequent waiver request using the UOWV screen in Direct SSR Update. Fax the documents into the Certified Electronic Folder (CEF), Non-Disability Repository for Evidentiary Documents (NDRed), or Paperless via the Evidence Portal (EP).

H. Procedure for adjudicating a subsequent waiver request when res judicata applies

Follow these instructions for adjudicating a subsequent waiver request.

1. Field office procedures

a. Title II instructions

If the prior determination cannot be reopened and you cannot make a new determination, take these actions:

•

Review the Recovery of Overpayments, Accounting, and Reporting (ROAR) record and the prior waiver determination (Form SSA-635).
•

Input the protest reason 5 (Waiver and Recon Fact/Amount) using the Protest/Stop Recovery Request (FO) (DRPF) screen in DMS if applicable;
•

Fax the waiver request and documentation into NDRed using the EP or into the CEF as applicable;
•

Send the waiver request and documentation to the PC of jurisdiction via Paperless using the EP for their action;
•

Transfer the jurisdiction to the PC via DMS using the Workload Management System (WMS) Debt Management Function Selection (DMFS) screen; and
•

Annotate DMS Remarks to document your actions.

b. Title XVI instructions

Take these steps to document the new waiver request and the waiver denial.

•

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

Select the 3 = DENIED — PRIOR DENIAL (NO CHANGE) decision for the overpayment sequence in UOWV.
•
Enter on the Report of Contact page in the Consolidated Claims Experience (CCE) or an SSA-5002 for non-MSSICS/CCE cases:
- –
  
  “Res Judicata Denial” and provide a rationale (e.g., no new evidence submitted, same evidence submitted, etc.);
- –
  
  The overpayment sequence number; and
- –
  
  The date of the determination.

For more information on the Report of Contact Page in CCE, refer to MS 08122.010.

•

Fax the SSA-632-BK, paper document(s) and the SSA-5002 into the CEF or NDRed using the EP. For more information on EP, refer to MS 09701.001.
•

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.

NOTE: For basic overpayment waiver input instructions, refer to MS 00304.009.

2. PC instructions

Review the information from the FO or the new waiver request (if the individual sent the request directly to the PC) along with the ROAR record and determine whether res judicata applies.

If you determine that res judicata does not apply, refer to GN 02250.303C. If a new determination is not necessary because res judicata applies, take these actions:

•

Input the waiver denial using the Fact/Amount Appeal Disposition (DRAD) screen in DMS (refer to MS DMS 006.011);
•

Input the denial via the reconsideration (appeal) screen. It is not subject to a personal conference.
•

Send the individual a dictated notice, using the OPT188 paragraph or the equivalent, stating that the denial determination on the prior waiver request still applies based on res judicata; and
•

Annotate DMS Remarks to document the waiver dismissal based on res judicata and provide a rationale (e.g., no new evidence submitted, same evidence submitted, etc.) (refer to MS DMS 009.003).

I. Procedure for adjudicating a subsequent waiver request when res judicata does not apply

1. Title II instructions

a. FO procedures

Review the ROAR record. If it shows we denied a prior waiver request (TC 55), but any of the criteria in GN 02250.303B. is not met, res judicata does not apply. Make a new determination on the waiver request.

NOTE: When you determine that you may reopen the prior final waiver determination (on the agency’s own initiative), you must take an affirmative action in writing per GN 04001.050.

b. PC procedures

Review the ROAR record. If it shows we denied a prior waiver request (TC 55), but any of the criteria in GN 02250.303B is not met, res judicata does not apply. If the overpayment amount is $2,000 or less, make a new determination on the waiver request. Refer to GN 02250.350.

If the overpayment amount is more than $2,000, take these actions:

1.

Send a Modernized Development Worksheet (MDW) request to the servicing FO, state that res judicata does not apply, and request that the FO process the new waiver request;
2.

Clear the Waiver and Recon Fact/Amount protest on ROAR by inputting a denial via the DRAD screen in DMS;
3.

Input the waiver request via the Protest/Stop Recovery Request (PC) (DRPR) screen in DMS;
4.

Fax the waiver request and documentation into the CEF or NDRed via EP;
5.

Transfer the jurisdiction to the FO for processing; and
6.

Annotate DMS Remarks with your actions.

Example of DMS remarks: Royce requested waiver of their $5,000 overpayment on 01/18/2022. We denied Royce’s prior waiver request in a final determination on 06/11/2022. Royce presented new and material evidence, so res judicata does not apply. Request sent to the FO to process the waiver request. – Leo Jones, Mod 55

2. Title XVI instructions

If the overpaid individual files a subsequent waiver request for the same overpayment, and any of the criteria in GN 02250.303B is not met, res judicata does not apply. Make a new determination on the waiver request. For basic waiver instructions, refer to GN 02250.001.

J. Examples

1. Res judicata applies

a. Subsequent waiver request without new and material evidence

In January 2022, Marist requested waiver of recovery of their $2,500 overpayment. We denied the waiver request in March 2022 because we determined that they were at fault in causing the overpayment. In October 2022, Marist files a subsequent waiver request on the same overpayment without providing new evidence. Because all the criteria GN 02250.303B. are met, the technician dismisses the subsequent waiver request based on res judicata. Marist retains the right to appeal only whether the parties, issues, and facts are the same as those in the previous final waiver determination. Marist cannot appeal the prior final waiver determination, unless we grant good cause, because they are outside of the 60-day appeal period.

b. Subsequent waiver request with new, non-material evidence

Using the example in GN 02250.303J.1.a., Marist submits new evidence when filing the subsequent waiver request. However, the evidence has no bearing on the previous at fault determination. Because the new evidence would not change the previous determination, it is not material. The technician would still dismiss the subsequent waiver request based on res judicata.

2. Res judicata does not apply

a. Subsequent waiver request with new and material evidence

Using the example in GN 02250.303J.1.a, Marist submits new evidence when filing the subsequent waiver request that would change the fault determination. Because they submitted new and material evidence, res judicata does not apply.

b. Subsequent waiver request with different issue and facts

In May 2022, Chris requested waiver of recovery of their $5,000 overpayment. We found Chris was not at fault in causing the overpayment. However, we denied the waiver because recovery was not against equity and good conscience and would not defeat the purpose of the Social Security Act. In December 2023, Chris requested waiver again because they had a change in financial circumstances. We found that Chris submitted evidence showing that their financial circumstances changed beginning in October 2023 and that they meet the defeat the purpose provision. There is both a different issue (defeat the purpose is based on the individual’s changed financial circumstances) and different facts demonstrated by new and material evidence (change in financial circumstances). Therefore, res judicata does not apply.

Social Security

Program Operations Manual System (POMS)

GN 02250.303 Subsequent Waiver Request (Res Judicata)- Title II and Title XVI