You can ask SSA to check their decision again because you
think it is wrong by filing a REQUEST FOR RECONSIDERATION. You should file this
form if you think no overpayment has occurred or if SSA has overestimated the amount of
the overpayment.
You can also ask the SSA to "waive" or "give
up" an overpayment claim against you by filing a REQUEST FOR A WAIVER.
Requesting a waiver means that you are asking SSA not to make you pay the overpayment
back.
You can file BOTH a request for a waiver and a request
for a reconsideration. You may wish to do this if you think that the SSA did not overpay
you, but even if they did, it wasn’t your fault and you should not have to pay the
money back. REMEMBER - IF YOU REQUEST ONLY A WAIVER OF OVERPAYMENT (and not a Request for
Reconsideration), YOU ARE ADMITTING THAT THE OVERPAYMENT OCCURRED AND THE AMOUNT IS
CORRECT, BUT THAT IT SHOULD NOT BE COLLECTED. Generally, both of these forms must be filed
within 60 days of the Notice of the Overpayment. REMEMBER - Deductions from your check can
begin as soon as 30 days after this notice, so it is best to file an appeal within 30
days. Deductions should stop once an appeal is filed.
CALL YOUR LOCAL LEGAL SERVICES OFFICE IF YOU HAVE QUESTIONS
ABOUT WHICH FORM IS APPROPRIATE TO YOUR SITUATION. In Erie County the phone number is
847-0650. Both forms are available at your local SSA office.
WHEN I ASK FOR A WAIVER, WHAT WILL I NEED TO
PROVE?
The law says that even if you are liable for an overpayment,
your responsibility to pay it will be "waived" if you meet certain requirements.
These are the following:
1. That you were without fault in causing the overpayment AND
2. Repayment of the money would not leave you enough money to
live on OR
repayment would not be fair to you OR
the amount of the overpayment is so small that it would not
be worth Social Security’s administrative cost to collect it from you.
Step 1 . . . WHAT DOES "WITHOUT
FAULT?"
Generally, you will be found "without fault" when
any of the following are true:
-You were NOT aware that you needed to report a change in
circumstances.
- You were NOT aware that a change in circumstance would
affect your benefits.
- You made an EFFORT to report a change in circumstances but
were unsuccessful.
-You did not have the ABILITY or OPPORTUNITY to comply with
the reporting requirements (for example, you were seriously ill and unable to report right
away.)
-You MISUNDERSTOOD information or instructions sent you by
the SSA.
-You were given INCORRECT INFORMATION by an SSA worker.
-You have TROUBLE UNDERSTANDING what is said to you, have a
poor memory, or trouble following instructions. (This is called having a low comprehension
level.)
As you can see, there are many circumstances in which you
might not have been "at fault"for causing an overpayment. Do not simply accept
the SSA’s decision that an overpayment was your fault!
Generally, you ARE considered to be "at fault" in
causing an overpayment when:
1. You failed to report a change in circumstances which
needed to be reported to the SSA, AND
2. The change was important enough to affect your benefits
AND
3.You knew the change would affect your benefits.
All three of the above factors must be present for the
SSA to consider you at fault. If you are only PARTIALLY responsible for causing the
overpayment, you may still get your waiver request approved.
WHEN THE SSA ARGUES THAT YOU ARE STILL AT FAULT . . .
When you file for a waiver, the SSA may deny it. There are a
number of arguments that the SSA may use to say you are still at fault and should repay
the overpayment. Here are some common arguments and some rebuttal suggestions:
ARGUMENT: "But we explained everything to you when
you applied!"
REBUTTAL: You may have failed to understand an explanation
you were given. You may also have received incorrect information from an interviewer. Your
interviewer may also have instructed you to cash an overpayment check you were not
entitled to. The SSA will also usually state that when you signed your initial SSI
application, you were given information about what you need to report and how to do it. If
your application was filled out by an examiner for you, you may not have read or been told
important information.
Ask for a copy of your original application and the
instructions you were given. See if the information given to you on these forms even
relates to your situation.
ARGUMENT: "You should have known you needed to report
that!"
REBUTTAL: In this case, ignorance of the law may be an
excuse. If you didn’t know about some requirement, the SSA must state a plausible
reason why you should have known.
ARGUMENT: "But you got a check-stuffer, didn’t
you?"
REBUTTAL: The SSA may argue that you received an insert with
your check in the mail, reminding you of what you needed to report and how to do so. If
you did not understand the stuffer, or never received a stuffer in the first place, you
may not be responsible. Find the check stuffer, if you did receive one. Check to see if
the instructions you were given were specific enough that you should have known they
pertained to you. If the bulk of the SSA’s argument rests upon information given to
you by an insert, insist that they produce a copy.
Step 2 . . . I THINK I CAN PROVE THAT I
WASN’T AT FAULT...WHAT ABOUT FINANCIAL HARDSHIP?
Financial hardship is the second thing that you must
prove to secure a waiver of repayment. To say that a repayment would cause you or your
family "financial hardship"means that having to repay an overpayment would leave
you without income or savings to meet ordinary and necessary living expenses.
In most cases, if you are eligible for SSI payments, you
automatically meet the "financial hardship " test. There are some exceptions
- if you have not yet cashed the overpayment checks, you may not automatically meet the
"financial hardship" test. SSD recipients will also not automatically meet the
test.
THE APPEALS PROCESS
Your request for a waiver may be denied. If so, you may
request a RECONSIDERATION of your waiver denial. (This is NOT the same thing as the
Request for Reconsideration mentioned above.) You have 10 days to do so, ( and your checks
will not be reduced while you appeal.) If your Reconsideration is denied, you have 60 days
to request a HEARING. Your checks may be reduced before the hearing.
If you lose your hearing, the next appeal is to the APPEALS
COUNCIL. You must file for this appeal within 60 days. As you can see, the appeals
process may be a lengthy one- Don’t give up!
