SOCIAL SECURITY OVERPAYMENTS:

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1 SOCIAL SECURITY OVERPAYMENTS: RESPONDING TO A NOTICE THAT SAYS YOU HAVE BEEN OVERPAID

2 This document contains general information for educational purposes and should not be construed as legal advice. It is not intended to be a comprehensive statement of the law and may not reflect recent legal developments. The information is intended to provide basic information regarding Social Security overpayments generated by work and may not be applicable for other situations. If you have specific questions concerning any matter contained in this document or need legal advice, we encourage you to consult with an attorney. Created in 2009 by Disability Rights NC. Disability Rights North Carolina is a federally mandated protection and advocacy system with funding from the U.S. Department of Health and Human Services, the U.S. Department of Education, and the Social Security Administration. Disability Rights NC is a 501(c)(3) nonprofit charitable corporation. Disability Rights North Carolina 2626 Glenwood Avenue Suite 550 Raleigh, North Carolina TTY fax

3 Table of Contents Introduction 4 SECTION 1: What Is An Overpayment? 4 What Is An Overpayment? 4 How Does an Overpayment Happen? 4 How Will I Know About the Overpayment? 5 What if I Ignore the Notice of Overpayment? 6 How Can I Prevent an Overpayment? 7 SECTION 2: Reconsideration, Waivers, and Payment Plans 7 A. Request for Reconsideration 7 File a Request for Reconsideration if You Believe: 7 How to File a Request for Reconsideration: 7 When SSA May Begin Taking Money to Re-pay the Overpayment 8 What if I Do Not File a Request for Reconsideration -or- SSA Denies my Request? 8 What Happens Once I File a Request for Reconsideration: 9 If SSA Denies the Request: How to Appeal a Reconsideration Decision 10 If the Judge Rules Against You: How to Appeal the Judge s Decision 12 If the Council Denies the Request: How to Appeal the Appeals Council s Decision 13 B. Request for Waiver of Recovery of an Overpayment 13 The Request for Waiver of an Overpayment: A Request Not to Have to Repay 13 If the Overpayment Is $1000 or Less 13 How to File a Request for Waiver of Recovery of an Overpayment: 13 What Happens Once I File the Request for Waiver? 14 What Are Possible Outcomes for My Request for Waiver? 14 If SSA Does Not Waive the Overpayment: How to Appeal the Waiver Decision 14 C. Negotiating a Payment Plan 19 SECTION 3: Collection of an Overpayment by SSA 20 A. When SSA Can Collect 20 When Does Collection Begin? 20 B. How SSA Collects 20 Direct Collection: SSI and SSDI Overpayments 20 What Is Wage Garnishment? 21 Can SSA Garnish My Wages? 22 SECTION 4: Self-Advocacy Tools 22 A. Advocacy Helpful Hints 22 B. Information on Completing the Forms 24 C. Monthly Budget Worksheet

4 Introduction This guide will help you understand what an overpayment is, what to expect from the Social Security Administration ( SSA ) when you contact them about your overpayment, and what steps you can take to object to the overpayment. This guide has four sections. Section 1 describes generally what an overpayment is, how it may have happened, and how you can respond. Section 2 discusses in detail how you can challenge the overpayment and how you can repay SSA any money you might owe. Section 3 describes how SSA can collect the overpayment if you refuse to repay it. Section 4 provides helpful hints on how to advocate for yourself, instructions on how to fill out some of the forms related to overpayments, and a worksheet to help you draw up your budget and collect important financial information that you may need to show SSA. Please note this guide is for general informational purposes only. For advice or information specific to your situation, you should contact the Social Security Administration or an attorney. SECTION 1: What Is An Overpayment? How Did This Happen? What Can I Do Now? What Is An Overpayment? An overpayment happens when SSA sends you benefits (i.e., money) when you were not supposed to receive any or SSA sends you more than you were supposed to get. SSA will send you a letter explaining how much you were overpaid and telling you to pay back that amount. SSA may not know right away that you were overpaid. Therefore, you may get a letter a long time after the overpayment actually happened. It is important that you respond to an overpayment notice from SSA. o If you ignore the overpayment letter, the overpayment will not go away. o You must respond to the overpayment letter by the deadline given. o If you do not respond to the overpayment letter, you may lose the chance to disagree with the overpayment and stand up for your rights. How Does an Overpayment Happen? Overpayments often occur when you have a change in your life that affects how much money you are entitled to receive from SSA. o Marriage o A change in living situation or disability status o An increase in income o Inheritance o Hospitalization o A return to work If you have any of these life changes, tell SSA right away! - 4 -

5 Overpayments may happen when you tell SSA about a change in your life but SSA does not stop or adjust your payments immediately. o You still have to repay the overpayment when this happens because you were not entitled to the extra money. How Will I Know About the Overpayment? SSA must send you a formal Notice of Overpayment. This letter must explain: o The amount of the overpayment o An understandable explanation of how the overpayment happened o Options for repayment o A complete statement of your appeal rights Read the letter very carefully. Although the letter is supposed to be easy to read, it may not be. You may want someone else to also read the letter so they can help you understand what SSA is telling you. Keep the letter and all other documents you have about your SSA benefits in a safe place. You may need them later. How Can I Respond to the Notice of Overpayment? You Can Send in a Request for Reconsideration o A Request for Reconsideration asks SSA to re-calculate the overpayment. o You may file a Request for Reconsideration if: You believe the amount of the overpayment is incorrect. You admit you were overpaid, but you think you owe less than SSA says you owe; You believe you were not overpaid at all. You think you got the right amount of money all along; You do not understand how the overpayment happened; or SSA did not explain how the overpayment happened. o The Request for Reconsideration must be filed within 60 days from getting the Notice of Overpayment. SSA assumes that it may take 5 days for the letter to be mailed and so allows for 5 extra days, so the appeal really must be in within 65 days of the date of the letter, but it is always best to file as soon as possible. o If you want to stop SSA from automatically collecting money from you, the request must be filed within 30 days. o More information about a Request for Reconsideration is in Section 2: SSA Overpayment Documents, starting on page 7. Information about filling out the form can be found on page 24. You May Send in a Request for Waiver of Recovery of an Overpayment o A Request for Waiver asks SSA to forgive the overpayment. o You may send in this request if you believe the overpayment was not your fault and you cannot afford to repay it. o This request may be filed at any time after you get the Notice of Overpayment. o If you want to stop SSA from automatically collecting money from you, the request must be filed within 30 days

6 o More information about a Request for Waiver is in Section 2: SSA Overpayment Documents, starting on page 13. Information about filling out the form can be found on page 25. You may send in the Request for Reconsideration AND the Request for Waiver at the same time. If you want to continue benefits pending the appeal, appealing to SSA within 10 days and requesting continuation of benefits will best protect you from your benefits changing. o If you ask for continuation of benefits, you will be asked by SSA to sign a statement that acknowledges that should you lose the appeal, additional amounts paid will become part of the overpayment. While this is possible, SSA will often waive the repayment of benefits if the appeal was filed in good faith (e.g., understanding the rules regarding overpayments, you thought the overpayment was incorrect). You Can Negotiate a Payment Plan o You can ask to make payments in an amount per month that is different from what SSA asks for in the letter. o Typically, you negotiate a payment plan if you do not request a Waiver or Reconsideration or if your request was denied. However, you may set up a payment plan and still fight the overpayment at the same time. Why? This way, if you lose and SSA starts taking money, it will be in an amount you negotiated and can afford. o Try to set up an agreeable, affordable payment plan. Use the budget worksheet that begins on page 27 to figure out what you can afford to pay each month. If you do not respond to the overpayment, you lose the chance to disagree with the overpayment amount. o You can negotiate a payment plan anytime after getting the overpayment letter, but it may benefit you to contact SSA as soon as you get the overpayment letter. o You may always request a change in a payment plan if you have a change in your life that affects your ability to pay. Remember to revise your payment plan with SSA instead of not paying! o More information about payment plans is in Section 2B: Request for Waiver of Recovery of an Overpayment beginning on page 12. What if I Ignore the Notice of Overpayment? If you wait too long to respond to the overpayment letter, or you do not respond at all, SSA will try to get back the overpaid amount by: o Stopping your SSDI check until the overpayment has been repaid; o Taking 10% of your SSI check until the overpayment has been repaid; and/or o Garnishing your wages if you are working. If the Notice of Overpayment says you owe less than $1,000, your Request for Waiver should be granted

7 How Can I Prevent an Overpayment? You can meet with SSA about your benefits. You can ask SSA to check your file to make sure you are not being overpaid. It may be a good idea to meet with SSA if you think you are getting more SSA benefits than you should be getting. If you are working or returning to work, you may want to talk about your SSA benefits with a Community Work Incentives Coordinator (CWIC). The CWIC can help you figure out whether working or any other increase in income will affect your benefits. The CWIC can also help you understand how work expenses related to your disability (called IRWEs) may be relevant to how much you can earn. If you think SSA might be overpaying you, you may want to save the extra money from SSA in a separate bank account. This way you will be ready to pay back SSA when SSA tells you owe an overpayment. SECTION 2: Reconsideration, Waivers, and Payment Plans A. Request for Reconsideration A Request for Reconsideration allows you to disagree with SSA about the amount of the overpayment or to argue that you were actually not overpaid. File a Request for Reconsideration if You Believe: SSA made a mistake in counting your earned income. You have work expenses related to your disability or other qualifying deductions that SSA did not count. o Qualifying deductions can lower the amount of countable earned income and can lower or even cancel out an overpayment. SSA wrongly decided you were overpaid. SSA decided that you had been overpaid based on bad or wrong facts. SSA did not explain why you have an overpayment or you do not understand the explanation. How to File a Request for Reconsideration: Complete form SSA-561-U2, the Request for Reconsideration form. o You can get this form online at or from your local SSA office. o At you will find information on how to complete the form. You can also look at page 24 of this guide. Your Request for Reconsideration must tell SSA that you disagree about: o The amount of the overpayment; o How the overpayment was calculated; and/or o That you were overpaid at all. File the Request for Reconsideration within 60 days of getting the overpayment letter. o Take the completed form to your local SSA office to file it

8 o The SSA office should give you a receipt or other proof that you filed the form. Ask for a receipt if you are not given one. Turn to page 24 of this guide for instructions on how to fill out the Request for Reconsideration form. When SSA May Begin Taking Money to Re-pay the Overpayment Remember, you must file the Request for Reconsideration within 60 days of getting the overpayment letter. However, SSA is allowed to start taking money out of your check to collect the overpayment 30 days after they send you the overpayment letter. SSA assumes that you got the Notice of Overpayment within 5 days of the date on the overpayment letter unless you can show that you actually received it later. If you file the Request for Reconsideration within 30 days of getting the overpayment letter, SSA should not collect any money from you. o If SSA made a mistake and started taking money out of your check before the 30 days are over, you can get that money back. If you file the Request for Reconsideration between Day 31 and Day 60, SSA must stop collection efforts as of the day you file. Example: If the date on your overpayment letter is July 8, 2009, then SSA assumes you received the letter by July 13, You have 60 days from July 13th to file a Request for Reconsideration: September 12, However, do not forget that SSA is allowed to start taking money 30 days from when you received the overpayment letter. In this example, you get the overpayment letter on July 13th - and 30 days after July 13th is August 12th. If you do not file the Request for Reconsideration by August 12th, SSA can start taking your money the next day. Protect yourself: File the Request for Reconsideration as soon as you can! What if I Do Not File a Request for Reconsideration -or- SSA Denies my Request? If you don t file the Request for Reconsideration and take no other action to fight the overpayment, SSA will start taking money out of your benefits check or garnishing your wages to collect the overpayment. If you file a Request for Reconsideration but SSA denies the Request, you must begin repaying the overpayment according to the payment plan you worked out with SSA. If you did not negotiate a payment plan, you are to repay according to the plan that was sent with the notice of overpayment. If you do not voluntarily make payments, SSA will start taking money out of your benefits check or garnishing your wages to collect the overpayment. In very rare cases, if you missed the 60 day deadline to file the Request for Reconsideration, you may still be able to file after 60 days if you have a very good reason for missing the deadline

9 o You have to show good cause for why you were late in filing. An example of good cause would be that you were in the hospital and did not know about the overpayment letter. What Happens Once I File a Request for Reconsideration: The Request for Reconsideration is generally handled through the Case Review or Informal Conference process. Case Review: At a Case Review meeting, you are allowed to give SSA more information to add to your file, such as information that you participated in a Work Incentives program or information about your wages or salary that shows your earnings did not cause an overpayment. SSA will look at all of the new information and make a new decision about whether there was an overpayment. o This option is available for all Requests for Reconsiderations. At your Case Review, make sure your SSA file contains all relevant information about your work history and use of any work incentives. For example: o Is SSA aware of any SSA Work Incentives Subsidies and Special Conditions, or other work incentives that you used? o Does SSA have the right amount for your Impairment Related Work Expenses (IRWEs)? o Does SSA have the right amount of time (check the dates!) for your Trial Work Period, Extended Period of Eligibility, etc.? o Could you have reapplied for benefits during the overpayment period? o You may want to contact your local Work Incentives Planning and Assistance (WIPA) Project office before your Case Review, and ask to speak with a Community Work Incentives Coordinator (CWIC). the CWIC may have information about the work incentives that you used. Informal Conference: You meet with the person who will decide your case. You tell the person why you do not think there was an overpayment. You can give the decisionmaker more information to help prove why you are right, such as your Work Incentives Planning and Assistance (WIPA) Project records. You can bring other people with you to help explain why there was no overpayment. You can bring someone who will help you understand the questions that SSA asks you, or who will help keep you calm. o This option is available for most overpayment cases. There is a third option, called the Formal Conference in which you can do all the same things that you can do in an informal conference with the added benefit of SSA being able to force some people to come. However, there are more formal rules about what questions may be asked of these people and additional rules generally. This type of conference is only available when SSA is stopping or lowering your SSI, or Special Veterans Benefits have been stopped for nonmedical reasons

10 Examples of information you can provide SSA to support your Request: Suppose SSA says you earned too much and an overpayment happened. You believe your impairment related work expenses (IRWEs) lowered your income to a point where no overpayment happened. You can give SSA receipts or other proof of how much you spent on services, equipment, etc. that you needed to work. o Example: You cannot drive because of your disability, so you rode the bus to work every day. You can give SSA the receipt for your monthly bus pass. Suppose SSA says an overpayment happened because of your spouse s income. You believe you were not married when the overpayment happened. You can bring SSA your marriage certificate to prove that you were not married. Or if you were divorced when the overpayment happened, bring your divorce papers. This way SSA will not count your spouse s income against you for the time you were not married. If SSA says you made more money at work than you actually made, give SSA copies of your pay stubs, W-2 tax forms, or other documents that show how much you earned. If SSA says you have more money than you do or had more money during the time period SSA says you were overpaid, give SSA copies of your bank statements or other financial documents showing your financial situation at that time. If SSA Denies the Request: How to Appeal a Reconsideration Decision You may appeal a reconsideration decision to an Administrative Law Judge (ALJ or judge). To request such a hearing, SSA has a form, 501.pdf. For more information about SSA appeals, visit or (appeals generally). You must file the appeal within 60 days of getting the reconsideration decision. In the reconsideration decision letter, SSA must tell you about your right to appeal the reconsideration decision and include information on how to appeal. Follow the instructions in the SSA letter to appeal the reconsideration decision. o Remember, collection can begin (i.e., SSA can start taking money) as soon as you lose the Reconsideration. Even if you appeal the Reconsideration decision, SSA can keep taking money while you are appealing. You may want to negotiate a reasonable payment plan as soon as you lose the Reconsideration. If you do not negotiate a payment plan, SSA will set the amount that you have to repay each month. If you do not pay that amount, SSA may begin collection methods. The Appeal Hearing After you file the appeal with SSA, you will receive a notice telling you the date, time and place of the hearing. You may ask that the hearing be rescheduled if you cannot make the set time. Do NOT miss the hearing be sure to reschedule!

11 How Do I Get Ready for the Hearing? Be prepared! Review your SSA file at least 2 weeks before the hearing. The judge will rely on what is in your file to decide if there was an overpayment. However, the judge will also consider other information that you provide. Looking at your file before the hearing will help you figure out what information or evidence is not in your file that you need to give the judge. You want to give the judge any information that will help prove your argument that the overpayment is wrong. o You will have to go to your local SSA office to look at your file. Call and make an appointment to review your file. Write down all of the things you want to tell the judge or ask your witnesses about during the hearing. This will help you remember what you want to say and the points you want to make. You want to be organized and keep to important points and facts about why the overpayment is wrong rather than how you feel about what happened or the people involved. SSA is making decisions based on a set of rules and guidelines and you should stick to information relevant to what they can consider. You are allowed to put on evidence when you are at the hearing. This means: o You can have witnesses testify for you about why there was no overpayment; o You can ask questions of the witnesses for SSA; and o You can give the judge documents that help you show that there was no overpayment. Always bring 4 copies of anything that you plan to give the judge: one for the judge, one for SSA, one for you, and one extra. You should try to give any documents, papers, or evidence to the hearing office before your hearing. This way the judge can review them before you are in court. If you are not able to do this, you can still bring them with you to the hearing. You do not have to have an attorney or advocate at the hearing. You are allowed to have one if you want. You may want to contact an advocate, legal services organization, or other community resource to see if someone is available to help you with your appeal. The Hearing The judge is there to listen to the case. The judge is not on your side or SSA s side. The judge makes a decision about whether you were overpaid. To make this decision, the judge will consider what your witnesses and SSA s witnesses say at the hearing. The judge will consider the documents, papers, or evidence that you and SSA give to the judge. With all of this information in mind, the judge will then look at the law. The judge will make her or his decision based on what the law says the judge has to do based on the information the judge has in front of her. The hearing is more informal than most trials, but will probably still feel very courtlike to you. Try not to be nervous. Focus on telling the judge as clearly and simply as you can why there was no overpayment. You do this by using your documents that you have brought to court, and by having people come to court and testify for you about why there was no overpayment. If for some reason you did not get all of your documents/evidence together in time for the hearing, you may ask the judge for more time to submit them

12 o If you ask, judges will usually allow you a little bit more time (such as a week or two after the hearing) to give them your documents/evidence. It may take several weeks or even months before you find out the judge s decision. If the Judge Rules Against You: How to Appeal the Judge s Decision If the ALJ also decides that you were overpaid, you can appeal the judge s decision to the Social Security Appeals Council. This is called a Request for Review. You must appeal within 60 days of getting the judge s decision. o It is assumed that you got the decision 5 days after it was mailed. o Do not miss this 60 day deadline! If you miss the deadline, you may be able to file after 60 days has passed if you can show good cause. Remember, good cause is very hard to prove, and means that you missed the deadline for a very good reason, such as a severe illness that kept you in the hospital. To start your appeal of the judge s decision, complete the form called Request for Review of Hearing Decision/Order. o You can get the form (Form HA-520) from any SSA office, by calling SSA, or on the website at o You can also ask SSA for help completing the form. o You can file the form in person or by mail. Just like with all of your SSA records and letters, you should keep a copy of what you send to SSA. The Appeals Council will review your appeal of the judge s decision. o You may give the Appeals Council new information about why there was no overpayment. Send this new information with the Request for Review. o You may want to include a letter to the Appeals Council with your Request for Review saying why you think the judge s decision was wrong and/or explaining the new information you are filing with the Request for Review. o If you want to send in new information to the Appeals Council but you need more time to get it to the Council, you must put your request for more time in writing. File your request for more time with your Request for Review. o If you do not send in any new information, the Appeals Council will base its decision on the same information that has already been considered. The Appeals Council will also base its decision on the tape of the hearing before the judge. The Appeals Council takes a very long time to make a decision. You may call your local SSA office to check on your Request for Review. The local SSA office may also be able to estimate how long you may have to wait for a decision. The Appeals Council can make 3 decisions: o Reverse the judge s decision. This means that you win and there is no overpayment! This happens only in very rare cases. o Decide the judge made a big mistake when she decided your case and send you back to the judge for a new hearing on your case. This is called a remand. o Deny your request for review. This means the Appeals Council agrees with the judge that you have an overpayment that you must pay back. This is probably the most common result

13 If the Council Denies the Request: How to Appeal the Appeals Council s Decision If your Request for Review is denied, you can appeal this to federal court. You have to file your appeal within 60 days from when you got the Appeals Council decision. The federal court assumes that you got the decision 5 days after the date on the Appeals Council decision letter. You do not have to have an attorney to appeal to federal court. However, there are many legal rules and procedures in federal court that make it difficult on your own. You are encouraged to contact Legal Aid or a private attorney to see if they can help you. B. Request for Waiver of Recovery of an Overpayment The Request for Waiver of an Overpayment: A Request Not to Have to Repay You do not have to repay the overpayment if the overpayment was not your fault and you truly cannot afford to repay or repaying it would be unfair. To explain to SSA the waiver was not your fault and ask not to have to repay it, you complete a form called Request for Waiver of Recovery of an Overpayment, which we call the Request for Waiver. You can file a Request for Waiver if: (1) You did not cause the overpayment (the overpayment was not your fault) AND (2)(a) Making you repay it would be unfair OR (b) You cannot afford to repay the overpayment The Request for Waiver is different from the Request for Reconsideration: If you think you were not overpaid at all, file a Request for Reconsideration. If you file the Request for Waiver, it means you agree that you were overpaid, but you cannot pay it back or it would be unfair to make you pay it back. If the Overpayment Is $1000 or Less If the overpayment letter says that you owe $1,000 or less AND you file the Request for Waiver, you will automatically get a waiver. A waiver means that SSA will not ask you to repay the overpayment. You MUST file the Request for Waiver to get the overpayment waived. Keep reading to find out more about the Request for Waiver process. How to File a Request for Waiver of Recovery of an Overpayment: Fill out form SSA-632-BK, Request for Waiver of Recovery of an Overpayment. o You can get this form on-line at or you can get the form from your local SSA office. o At there is information on how to complete the form. o Also, on page 25 of this guide there are instructions on how to fill out the Request for Waiver of Recovery of an Overpayment Form. There is no deadline for filing a Request for Waiver, but you should file within 30 days if you want to stop collection efforts (i.e., stop SSA from taking your money)

14 o If you file the Request for Waiver as soon as you get the overpayment letter, this should prevent SSA from taking your money until they reach a final decision about your Request for Waiver. o If you file the Request for Waiver after 30 days have gone by, ask SSA not to take any more money until they make a final decision about the Request for Waiver. Remember, on a Request for Waiver, you should present any evidence you have that shows you did not cause the overpayment and you cannot afford to pay it back or repaying it would be unfair. What Happens Once I File the Request for Waiver? If the waiver is not immediately approved, a personal conference will be held. You must attend the personal conference or your Request for Waiver will probably be denied. At the personal conference you can talk to SSA and explain why you think there was no overpayment. You can also give SSA any additional documents you have. You may bring an attorney or any other person with you to the personal conference. If you decide to bring a person, it is a good idea to make sure that person is someone who can help you understand the process, keep you calm, or otherwise be helpful to you. The SSA representative at the personal conference must be someone who has never handled your overpayment before. Before the conference, you can look at your SSA file. A file review must be scheduled at least five (5) days before the date of the personal conference. o At the file review you may look over your file and ask questions of an SSA representative. o The file review is available to help you find out why you did not automatically get the waiver. Once you figure this out, you will know what information you should bring with you to the personal conference to show that there was no overpayment. What Are Possible Outcomes for My Request for Waiver? SSA can grant your request for waiver. You do not have to pay back the overpayment. SSA can deny your request for waiver. You have to pay back all of the overpayment. SSA can grant your request in part, and deny your request in part. This means that you would not have to pay back all of the overpayment. SSA will tell you the new amount that you have to pay back. This sometimes happens when you reported some money from working but not all of it. You may still need to ask for a payment plan to pay back this amount. If SSA Does Not Waive the Overpayment: How to Appeal the Waiver Decision If your Request for Waiver is denied, in whole or in part, you may appeal that decision by filing a Request for Reconsideration within 60 days of getting the denial letter. o SSA assumes you got the denial letter 5 days after the date on the letter. Although this generally means that you can file a request within 65 days of the date of the letter, it is best to file as soon as possible. o If you miss the 60 day deadline, you may still be able to appeal. You have to show good cause for why you did not file within 60 days. This is hard to show. The Request for Reconsideration is a way for you to tell SSA why they were wrong to deny your request for a waiver

15 o This Request for Reconsideration is different from the one you may have already filed asking them to change the amount of your overpayment. If your Request for Reconsideration is denied, you can appeal. The appeals process is the same as the one described on pages 10 through 12 of this fact sheet. The information below is only a short summary of the appeals process. o As described on page 10, the first step is to file an appeal within 60 days by requesting a hearing with an Administrative Law Judge (ALJ) through a SSA form, o If the ALJ also does not give you the waiver, as described on page 12, you can file an appeal with the Appeals Council within 60 days. o If the Appeals Council also denies you a waiver, as described on page 12, you can appeal their decision to a United States District Court (federal court) within 60 days. Waiver Part 1: How SSA Figures Out If the Overpayment Was Your Fault Your Fault You knew to tell SSA about changes or events in your life that might affect your benefits but you did not. You knew that your benefits amount was too high but did not tell SSA about it. You knew that you were supposed to give back any extra money to SSA but did not. Not Your Fault You clearly did not understand that you had to report changes or events in your life to SSA. You did not know how to report changes. You relied on wrong information about your benefits from someone at SSA, which caused the overpayment. You relied on wrong information from another government office that you thought knew about your SSA benefits. You were confused about the limit on wage earnings. [A lot of people think that the limit on wage earnings is based on take-home pay, when it is actually based on the total amount you earn before taxes are taken out, and includes extra and in-kind wages.] SSA will consider your physical and mental condition, age, education, and any communication limitations that you may in deciding if the overpayment was your fault. To show you relied on wrong information about your benefits, you might write down and give to SSA: What information you asked for (i.e., the question that you asked); Why you needed the information; Who at SSA or another government office gave you the information; Why you thought this person could give you the information (e.g., the person s job title) Where and on what day you got the information; and What the person told you to answer your question

16 To show you were confused about the limit on wage earnings, you might show that you did not earn more take-home pay than what you thought was the allowable amount. The limit on wage earnings is based on the total amount you earn before taxes are taken out, and includes extra and in-kind wages. SSA assumes that you know to report changes in your life or finances. This is because SSA regularly sends out information with the rules for keeping your benefits in the following: The tear-off pages of the SSA application Every award letter (see the Your Social Security Rights and Responsibilities section of your letter) Any pamphlets or fact sheets SSA sends to you Because there are so many ways SSA provides this information to you, you will be asked to show that you could not have understood your reporting responsibilities. The Overpayment Might Be Your Fault... Even Though You Called the Number for Information about Your Benefits You may have received correct information, but did understand it and used it incorrectly. Or maybe you relied on information that did not apply in your particular situation. Example: You called the SSA number to ask if you could work part-time without losing your benefits. You told the SSA representative that you would be working 10 hours a week, and told them how much you would be making. The SSA representative told you that if you worked part-time, that you would not lose your benefits. Then you started working more hours. Although you were still only working part-time, you were earning more money. In fact, you earned so much that you created an overpayment. When you get the notice of overpayment, you call SSA and tell them that you were told you could work part-time and not lose your benefits. In this example, you have incorrectly applied the information that it was okay to work part-time. SSA told you it was fine to work part-time for 10 hours a week NOT that it was ok to work part-time in general. If you called SSA for information, but still got an overpayment, you may still be able to prove that the overpayment was not your fault. Show SSA that you did not understand the information you got from them. If SSA cannot decide what happened to cause the overpayment, they are supposed to resolve it in your favor. The Overpayment Might Be Your Fault Even Though You Didn t Do Anything Wrong Your overpayment happened because of something your husband or wife did. If a member of your household does not report a change to SSA, sometimes it can cause you to receive an overpayment!

17 Example: You are married and your husband gets an inheritance (i.e., money, land, or things after a person passes away). The inheritance is considered income for everyone in your household. You and your husband both get benefits. Your husband did not tell SSA about the inheritance. SSA finds out about the inheritance, and tells you and your husband that both of you have an overpayment. It does not matter that YOU personally did not get the inheritance your husband s entire household, including you, is counted as getting the inheritance. You are both at fault for your overpayments. SSA will make both you and your husband pay back your overpayments. Make sure that you tell SSA about changes in your life and that the members of your household tell SSA about changes in their lives! An overpayment could also occur without your knowledge if a relative passed away and left you money. Then, without telling you where the money came from, your parent(s) used the money to buy something you needed. You never knew that you had inherited money and you never told SSA. However, this event should have been reported to SSA. SSA expects people to be very careful about preventing overpayments. They expect you to report changes in your life or finances as soon as you know about them. Tell SSA about any work or money you earn as soon as it happens! If you are not careful about reporting changes, it may be your fault that the overpayment happened. Waiver Part 2a: Proving it is Unfair to Make You Repay Remember, to get a waiver, you have to prove to SSA that the overpayment was not your fault (which is what the previous section was about) AND that repaying it would be unfair OR you are not able to repay. This section is about how to prove that making you repay is unfair. To SSA, unfair means against equity and good conscience. Example: You were married to an SSA beneficiary, but you were separated and living apart when the overpayment happened AND you did not benefit from the extra money. Making you repay would be unfair. You will need to show SSA bills or other proof of your address to prove that you were living apart from your spouse. Example: You thought you were getting the right amount of SSA money. You made a change in your life based on the SSA money you were getting, such as moving to a new apartment with a higher rent. Now you do not have any money left to repay. Making you repay would be unfair. Show SSA your monthly budget (the budget worksheet on page 27 may help you list your expenses) which shows that you do not have money to repay. Example: SSA gave you wrong information, you relied on this information, and it caused the overpayment. Making you repay would be unfair. o Remember, there is a big difference between getting wrong information and not understanding information! Look back to the section called How SSA Figures

18 Out Whether The Overpayment Was Your Fault on page 15 for an explanation of how to prove to SSA that you got wrong information and it was not your fault. Warning: You used all or some of the overpayment to buy something big, such as a car. SSA may still ask you to repay the overpayment this is because you can sell the car to repay the overpayment. Waiver Part 2b: Proving You Cannot Afford to Repay Remember, to get a waiver, you have to prove to SSA that the overpayment was not your fault AND that repaying it would be unfair OR you are not able to repay. Sometimes you may not get an overpayment completely waived, but will lower it. This section is about showing SSA that you cannot afford to repay. To prove you cannot afford to repay the overpayment, you must show that repaying it would be an undue hardship. Example: If you had to repay, you would not have money left over to pay your ordinary and necessary living expenses o Ordinary and necessary living expenses include: food, clothing, rent, mortgage, utilities, maintenance, insurance, taxes, medical expenses, expenses to support others (must be people for whom you have legal responsibility), and other expenses reasonably considered part of the standard of living. Example: Your only income is SSI. o If you get SSDI, you also have to prove that repayment would be a hardship and that you have less than $3,000 of assets. Example: You receive public assistance such as TANF payments o Food stamps, State medical assistance, unemployment benefits, or workers compensation are not considered public assistance for this purpose. The way to prove to SSA that you cannot repay for one of the reasons above is to give them your monthly budget. Your budget should show the money you receive or earn each month, and the money you spend each month. On pages 27 and 28 of this guide, there is a budget worksheet that you can fill out and give to SSA. In your budget, SSA is looking for: What you spend your money on. SSA will only allow for $25.00 of unbudgeted money. How much money you have left over each month after you pay for food, rent, and basic bills like heat and water. Whether your expenses are reasonable. If you are spending too much on something, SSA will look more closely at your budget. Whether you have money that you spend on magazines, movies, entertainment, travel, food extras, and social events. SSA will probably take this money to repay the overpayment. Such expenses are not considered necessary. When you give SSA your budget, also give them copies of anything that can verify your finances, such as current bank statements, utility bills, pay stubs, credit card payments, loan payments, etc

19 Even if you do not have a copy of these records right now, file the Request for Waiver anyway. You have up to 30 days after you file to give SSA these records. The financial information must be current meaning that it cannot be more than 1 year old. Be ready to give SSA updated financial information even after you file the Request for Waiver. Also tell SSA immediately if anything changes! In addition to giving SSA your monthly budget, you will have to tell them if you have any assets or debts. You need to show your entire financial situation. Assets are things like your car, your house, or anything else of value that you own. Debts would be any money that you owe, such as a loan or credit card. On the budget worksheet on page 28 of this guide there is space at the end to list your assets and debts. If repaying the overpayment would make your total assets fall below $3,000 (if you do not have dependents) or $5,000 (if you have one dependent + $500 more for each additional dependent), SSA probably will not make you repay the overpayment. If you do not understand the asset limit, ask SSA to explain it to you. If you receive SSI, you usually have less than $3,000 in assets anyway and SSA will probably say that you do not have enough money to repay the overpayment. To get a waiver even if you receive SSI you still have to file a waiver request and show SSA that it was not your fault that you got an overpayment. C. Negotiating a Payment Plan A payment plan allows you to pay back the overpayment in monthly installments. Negotiating a payment plan with SSA may make it easier for you to pay back the overpayment because you can repay in a monthly amount that you can afford. You will want to set up a payment plan in case you lose the Request for Reconsideration or the Request for Waiver. Hopefully you will not have to pay back the overpayment, but set up a payment plan just in case you do. Ask that no money be taken out of your check until a final decision is reached on your Request for Reconsideration or Waiver. You can get the payment plan form from your local SSA office or on-line at The payment plan is part of the same form that you use to file a Request for Waiver. In Part 2 of the form you can request to repay the overpayment in monthly amounts. You have to give SSA an income and expense statement (use the budget worksheet on page 27 of this guide) showing how you will make monthly payments on the overpayment. o Enter the amount you will be paying each month on the overpayment as an other expense. o Be sure to suggest/agree to a monthly payment amount that you can afford. If you subtract all your other expenses from your monthly income, this tells you how much you have left over to repay the overpayment. o Be ready to give SSA proof of your expenses

20 If you have to make payments but you have filed a Request for Reconsideration or a Request for Waiver, do not waive your appeal rights in your payment agreement! To protect your right to appeal, you can write this on your payment plan application: I DO NOT WAIVE MY RIGHT TO SEEK RECONSIDERATION OR WAIVER OR ANY APPEAL RIGHTS BY AGREEING TO THIS PAYMENT PLAN. Remember: Let SSA know right away if your circumstances change and you cannot repay the overpayment in the amount you agreed to in the payment plan. SECTION 3: Collection of an Overpayment by SSA A. When SSA Can Collect When Does Collection Begin? Generally, SSA begins collection (taking money) of an overpayment 30 days after you get the overpayment letter. o If SSA makes a mistake and takes money before 30 days you can get that money back. Remember, if you file a Request for Reconsideration or a Request for a Waiver within 30 days of getting the overpayment letter, SSA is not supposed to take money. If you file a Request for Reconsideration or a Request for a Waiver within 60 days of getting the overpayment letter, SSA should stop taking money when you file. If you lose the Request for Reconsideration or a Request for a Waiver, SSA will start taking money after you get the decision letter saying you lost your Request. B. How SSA Collects SSA has a lot of ways to recover overpayments. If you are no longer receiving benefits, SSA can still take the money from other sources of income you may have. Direct Collection: SSI and SSDI Overpayments For SSI, there is a 10% rule, which means your SSI check can be reduced each month by ten percent of your countable income to pay for the overpayment. You may negotiate a different payment plan with SSA. o Example: You get an SSI check for $800 a month. You have to pay back an overpayment. SSA will take 10% out of your check to pay back the overpayment. You will get a check of $720 for as long as it takes to pay back the overpayment. ($800 x 10% = $80. SSA will take out $80 each month, leaving you with $720). For SSDI, SSA can take your whole check to pay back the overpayment. SSA will likely take your whole check unless you work out something different with SSA by filing for a Request for Reconsideration or a Waiver, or by negotiating a payment plan

21 o If you cannot afford to repay the entire overpayment (because it would be an undue hardship ), the lowest payment amount per month you can pay, if you receive SSDI, is $10. Additional Methods of Collection: Taking Your Tax Refund: SSA has a lot of rules to follow before they can take your tax fund, such as telling you 60 days in advance. Once you get this 60 day warning, you should talk to SSA about other ways to repay the overpayment so that your tax refund will not be taken. Garnishing Your Wages: If you are working, SSA may take money out of your paycheck, according to certain rules, which are explained next. What Is Wage Garnishment? Wage garnishment means that SSA can take money directly out of your paycheck. Each pay day, SSA can take up to 15% of your disposable income or an amount equal to 30 times the minimum wage, whichever is less. What if my wages are already being garnished for another reason (such as back child support)? Your check can only be garnished for up to a total of 25% of your disposable income. o Disposable income is the money in your paycheck you have left over after deductions for health insurance, taxes (federal, state, and local), and court ordered deductions (such as child support) are taken out. o Example: Your wages are being garnished for back-taxes. This garnishment takes 20% of your disposable income. Because of the 25% rule, SSA can only garnish an additional 5% of your disposable income. Example: Your gross pay is $1200 a month, but after taxes, health insurance and child support are taken out, you usually take home $1000 a month. Right now, 20% of your wages are being garnished for back taxes or $200 a month. Because of the 25% rule, this means SSA can only garnish an additional 5% of your take home pay - $50 a month to repay your overpayment. You are now bringing home only $750 per month. SSA can take less money if a financial hardship exists. Financial hardship means that if SSA garnishes your wages at the standard level, you will not be able to pay your ordinary and necessary living expenses. These expenses include housing, food, heat, etc. If fraud is involved in the overpayment, SSA does not have to take less money. Before SSA can garnish your wages, SSA must send you a Notice of Overpayment letting you know that your wages will be garnished in 60 days unless you pay the overpayment in full, set up a payment plan, or file a Request for Reconsideration or Request for Waiver. o SSA can only garnish your wages only after they complete their billing cycle. This means that they have sent you a notice of the overpayment, a reminder notice, and a past due notice. o If you do not respond to this notice within 60 days, garnishment will begin unless you had good cause for making a late request. You can ask SSA to take less money any time after garnishment begins. If you ask SSA to take less money within 60 days of getting the letter telling you that your wages will be

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