SI 02260: Waiver Provisions for SSI Overpayments
TN 19 (01-17)
A. Background of personal conferences
In Page v. Schweiker, the Federal District Court for the Middle District of Pennsylvania held that an individual who requests a waiver of a Supplemental Security Income (SSI) overpayment is entitled to an opportunity for a personal conference with a decision maker when the waiver cannot be approved based on the initial waiver request.
Consistent with the decision in Page v. Schweiker, a SSI recipient is entitled to an opportunity for a personal conference before we may deny their request for waiver of recovery.
B. Policy for personal conference and folder review
We must provide SSI recipients an opportunity for a personal conference before we deny a waiver request. This requirement does not change waiver processing when we approve a waiver.
Nor does this requirement change any waiver processing up to the point where you informally determine, based on current information (i.e., the file, the waiver request, and any documentation submitted) you cannot approve the request for waiver.
1. Who can conduct a personal conference?
Customer Service Representatives (CSRs), Claims Specialists (CSs), and higher-level positions may conduct the pre-waiver decision personal conference.
The position authorized to conduct the personal conference (the decision maker) is the same as for making the overpayment disposition decision (the signature requirement). For signature requirements, see SI 02220.005C.
Unlike Title II, any position, any grade level, authorized to recommend or approve an overpayment disposition may conduct a pre-waiver decision personal conference.
A person authorized to make a final decision on the disposition of an overpayment also has the authority to conduct a pre-waiver decision personal conference.
The decision maker conducting the personal conference is usually the decision maker who makes the waiver determination after the personal conference.
2. The decision maker must not have participated in the overpayment proceedings
The overpaid individual is entitled to a fair and full hearing before an impartial decision-maker. Therefore, a FO employee who has participated in the overpayment proceedings in a case cannot be a decision-maker for the pre-decision personal conference.
Participation in the case means having made a determination about any fact that is material to the pending waiver determination: fault, ability to repay, credibility or veracity of the overpaid person.
If the decision maker reviewed the waiver request, the case file, and any supporting evidence; then made the preliminary determination to deny the request, he or she participated in the overpayment proceedings.
If the decision maker merely developed the underlying changes to the record that caused the overpayment, then he or she did not participate in the overpayment proceedings.
While an initial overpayment notice is a determination that an overpayment exists, mere preparation of this notice does not constitute participation in the overpayment if the author made no determinations about facts at issue in the waiver determination.
EXAMPLE: As part of a scheduled redetermination, you verified the SSI recipient's earned income. The income verification revealed that the recipient earned more than we estimated. When we input the verified wages, the system computed an overpayment.
However, you did not participate in the overpayment proceedings because you did not make a preliminary determination concerning any factor at issue in a request for waiver (e.g., without fault and whether recovery would defeat the purpose; or be against equity and good conscience).
Under these circumstances, you may conduct a personal conference.
3. Actions when all employees at the appropriate grade levels have been involved with the overpayment
When all employees at the appropriate grade levels have been involved with the overpayment proceedings, arrange to transfer the case to a nearby FO. Advise the recipient or representative that the transfer is necessary.
In rare cases, you may need to arrange for an authorized employee from another office to travel to the servicing FO to conduct the conference.
“Rare cases” include, but are not limited to:
The distance between offices is too great for the recipient to travel due to physical or mental limitations;
The recipient or witness’ financial circumstances prohibit his or her travel to an office further away than the servicing office, etc.
4. Credibility of person requesting the personal conference
Part of the waiver decision process is to assess the credibility of the individual requesting the waiver. Offer the individual a face-to-face interview or choice of telephone contact or video conference in place of a face-to-face interview.
5. The personal conference folder review
Prior to the personal conference, the overpaid recipient (and his or her payee or representative) has the right to review any information in the folder that we used to calculate the overpayment, and the applicable law and regulations. (1631(b) of the Social Security Act (the Act), and Title 20 of the Code of Federal Regulations (CFR), §416.537 and §416.538). Remember that the information we used to calculate the overpayment may be stored electronically as well as in a claims folder.
The decision maker or another employee eligible to be a decision maker for the case must be prepared to answer questions.
If the person asks for a telephone or video conference, you must mail a copy of the relevant overpayment documents in the folder to him or her for review prior to the conference. Prior to mailing, remove material that refers to another person or does not relate to the overpayment or waiver request.
6. The personal conference decision
The personal conference is an independent and thorough examination of all the evidence related to the overpayment and the requested waiver. The decision requires a wholly independent attitude without any prejudice by the decision maker. The decision maker is bound by the requirements of the Social Security Act (the Act), the Regulations, and the policies and procedures in the POMS. The decision maker may not depart from nationally prescribed policies and procedures.
7. Waiver denial appeal after a personal conference
After a personal conference, the first level of appeal for a SSI waiver denial determination is reconsideration. This is different from a Title II waiver denial where the first level of appeal is a hearing. This difference is the result of different regulations. The decision maker for the reconsideration of the SSI waiver denial cannot be the decision maker who made the initial determination to deny the waiver. For SSI reconsideration information, see SI 04020.030B.2.
C. Procedures for scheduling and conducting personal conferences
1. If you are unable to obtain overpayment documentation
If you are unable to obtain documentation of the cause and/or the calculation of the overpayment, and you have nothing to support the determination that the liable person is at fault in causing the overpayment, find the individual not at fault.
Do not determine the individual's ability to repay the overpayment.
Waive the overpayment because recovery is against equity and good conscience in this case.
2. Scheduling the personal conference
a. Liable person lives in the US
If you cannot approve in full a request for waiver of recovery of an overpayment, do not send a waiver denial notice. Prepare a notification of the proposed denial of waiver on a notice of Personal Conference & Folder Review (Waiver/Recon), found in the Overpayment section of DPS.
The notice to schedule the personal conference will not include appeal rights because you have not made an initial determination on the waiver request. Send the initial notice of proposed denial of waiver.
Include dates for the folder review and the personal conference.
The date of the scheduled conference must allow for at least five workdays for the recipient to review his or her file.
The recipient may waive the five-day period for review by asking to review the information on the day of the personal conference.
If the recipient is unwilling or unable to come to the conference site (most often an SSA office), he or she may choose to have the personal conference conducted by telephone or videoconference.
For procedures to follow when the recipient declines the opportunity for a folder review and/or personal conference, or does not appear for the personal conference, see SI 02260.006.C.3. See SI 02260.006C.4. regarding the person’s options for how to conduct the personal conference and the FO’s responsibilities.
b. Liable person lives outside the United States (U.S.)
The agency will not hold a face-to-face personal conference outside the U.S. To obtain a personal conference, the individual requesting waiver must return to the U.S., or choose to have the conference by telephone or video conference.
Follow the same procedures as for a U.S. resident, but allow sufficient time for foreign mail delivery and travel to the U.S.
3. Liable person declines a folder review or a personal conference or does not appear for the personal conference
If the liable person declines the offer of folder review, he or she retains the right to a personal conference.
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If the liable person declines the folder review and the personal conference, make the waiver decision based on the evidence in the file.
Input the waiver decision using the Direct SSR Update MSSICS (UODC, UOPD, and UOWV screens), see MSOM BUSSR 004.007, MSOM BUSSR 004.008, and MSOM BUSSR 004.009., prepare the notice of waiver decision (see SI 02260.006D.2.) and document the file (see SI 02260.006C.5.).
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If the liable person does not appear for the personal conference, contact him or her by telephone to determine whether he or she wants to reschedule or decline the personal conference.
Reschedule the conference if requested. If unable to contact the recipient by telephone, send a notice of Personal Conference & Folder Review (Resched) to reschedule the conference. Explain in the notice rescheduling the personal conference that failure to appear will result in SSA making the waiver determination based on the evidence we already have.
If the liable person does not attend or declines the second scheduled conference, make the waiver decision based on the evidence in the file. Input the waiver decision using the Direct SSR Update MSSICS (UOPD, UODC, and UOWV) screens. See MSOM BUSSR 004.008 through MSOM BUSSR 004.009, and document the file (see SI 02260.006C.5.).
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Send a Personal Conference Refused or a Personal Conference Letter (No Show) DPS notice. Use the following language under the caption “Based on the facts you gave us, we have decided:”
(Fill-in a. or b.) Therefore, we are denying (fill-in c.) request for waiver.
(Insert your rationale for denying the request for waiver from the determination in the MSSICS DROC or SSA-553.)(You/She/He) advised us that (you/she/he) did not want a personal conference on the proposed denial of (your/her/his) waiver request.
(You/She/He) did not attend the personal conference for (you/her/him) on (date and time) to discuss the proposed denial of (your/her/his) waiver request, nor did (you/she/he) ask us to reschedule it or conduct it by telephone or video conference.
(your/her/his)
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When the person does not appear for the personal conference, prepare and send a notice of Personal Conference (Waiver Denied) or Partial Waiver Approval (Personal Conference Decision) if you fully or partially deny the request for waiver. Include the following language under the caption “Based on the facts you gave us, we have decided:”
(Fill-in a. or b.)
(Insert your rationale for denying the waiver or granting only partial waiver from the determination in the MSSICS DROC or SSA-553.)
(You/She/He)(were/was) notified that we had scheduled a personal conference for (you/her/him) on (date and time) to discuss the proposed denial of (your/her/his) waiver request, but (you/she/he) did not come in for the conference nor ask us to reschedule it or conduct it by telephone or video conference.
As a result of c. personal conference, we have determined that d. or e.
(your/her/his)
our initial “Notice for Proposed Denial of Waiver” to deny your/her/his request for waiver of recovery of the overpayment was correct.
(you/she/he) will not have to repay the total $______ which (you/she/he) incorrectly received for _____ but repayment of $________ is required.
4. Folder review and personal conference
a. Folder review by liable person
Prior to the review, remove material that relates to another person or does not relate to the overpayment or waiver request;
Furnish copies of any requested material from the claims folder and/or relevant sections of the Act and Regulations;
Do not charge the recipient for furnishing documents;
If, after the folder review, the person decides he or she does not want a personal conference, see SI 02260.006C.3;
If the Postal Service returns the scheduling letter as undeliverable, develop a current address. (See SI 02220.051 for suggestions on developing a new address);
If you cannot obtain a new address, make the waiver decision based on the evidence you have;
Input the waiver denial using the Direct SSR Update MSSICS (UOPD, UODC, and UOWV) screens. (See MSOM BUSSR 004.007 through MSOM BUSSR 004.009); and
Prepare the notice and document the file with the decision, see SI 02260.006C.5.).
For additional information regarding conducting the personal conference with the person, see GN 02270.009.
b. Selecting the conference site
Provide a suitable private space in the FO. If the individual cannot come to the conference site (e.g., he or she is incapacitated or in prison), the FO can conduct the personal conference by telephone or videoconference.
Consider conducting personal conferences at locations other than the FO on a case-by-case basis. Use another location only in circumstances where a claimant has exhausted all other means of obtaining a personal conference, or where conducting a personal conference by any other means would be so inadequate, owing to a claimant’s physical or mental condition, as to infringe upon the person’s right to a full and fair hearing on the waiver request.
If there is a legitimate reason that the recipient cannot come to the conference site or participate in a telephone or videoconference, and SSA cannot go to the person or, for other reasons, we cannot conduct the personal conference; make the waiver decision based on all information in the file. For overpayment decision inputs, see MSOM BUSSR 004.008, Overpayment Decisions (UOPD) and MSOM BUSSR 004.009), Waiver (UOWV). If the individual refuses, without a legitimate reason, to come to the conference site or to have a telephone or videoconference, he or she forfeits the opportunity for the conference. Make the waiver decision based on all available evidence in the file. Prepare the notice and document the file with the decision. For notice, documentation and distribution of the personal conference decision, see SI 02260.006C.5.
c. Conducting the conference
Before starting the conference explain to the liable person that the decision maker was not previously involved in the case and the decision is based on the evidence presented as well as that in the file.
The purpose of the conference is to provide the liable person an opportunity to present his or her case and to furnish evidence to support it.
Identify all participants and explain the roles. Determine whether the liable person has reviewed the file.
If he or she has not reviewed the file and now wants to do so, provide the opportunity.
Document that the liable person has not reviewed the file, but now wants to review the file.
Provide the applicable law and regulations regarding the overpayment and waiver.
Provide an oral summary of the evidence already in the file.
Invite the liable person to present his or her case.
Advise the liable person that SSA cannot compel the presence or testimony of a witness at the personal conference. Use your best efforts to compel the presence of the witness(es) or to obtain witness’ answers to written questions. When your efforts are unsuccessful and the recipient continues to demand the presence of the witness(es), escalate the case to a hearing.
Inform the liable person if we require additional evidence to make a decision.
If the liable person insists on a personal conference but, despite all efforts, we cannot hold the conference, make the waiver decision based on the information in file. Input the waiver decision using the Direct SSR Update MSSICS (UOPD, UODC, and UOWV) screens. For direct SSR input of a waiver decision, see MSOM BUSSR 004.008 through MSOM BUSSR 004.009. Prepare the notice and document the file with the decision. For documenting the file with an overpayment decision, see SI 02260.006C.5.
5. Notice, documentation, and distribution of the personal conference decision
For MSSICS cases, the decision maker must document all of the personal conference decision information on the DROC screen. For both MSSICS and non-MSSICS cases, the technician must fax all supporting documentation into NDRed.
If the case is not in MSSICS, prepare, date, and sign the special determination (form SSA-553). Document your personal conference decision in either a MSSICS DROC or form SSA-553. Include sufficient information on the determination to document the file that the interviewer provided the liable person an opportunity to review his or her folder; and whether he or she attended the personal conference. Include whether the liable person reviewed the file and whether he or she contested any of the information reviewed.
Review the updated information obtained since the preliminary waiver decision determination in file or the proposed denial waiver notice. Note in your personal conference decision if anything was confirmed or refuted as a result of the personal conference or additional evidence submitted, and whether new information affected the final determination.
The determination documents the explanation of decision you enter under the caption “Based on the facts you gave us, we have decided:” on the Notice of Waiver Denial. For instructions on completing the SSA-553, see GN 01010.365. The post personal conference determination should describe the appropriate fault and recovery decisions:
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Was the liable party at fault in causing the overpayment according to SI 02260.010 and SI 02260.015?
If yes, who was at fault and why?
If no, why was he or she not at fault?
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If the recipient or payee was not at fault, refer to the evidence in the file to explain why the recovery met or did not meet the criteria for either:
Impede effective or efficient administration of title XVI of the Act (SI 02260.030);
Against equity and good conscience (SI 02260.025);
Defeat the purpose of title XVI of the Act (SI 02260.020); or
Adverse changes in financial circumstances following a waiver denial (SI 02260.040)?
Further action by the decision maker will depend on the type of waiver decision. Waiver approval notices are usually systems generated (see NL 00803.205). For a list of exclusions, see NL 00801.010. Waiver denial notices are always manual (see NL 00803.210).
The decision maker prepares and issues the notice of waiver decision if the notice is not automated. DPS personal conference notices include:
Personal Conference (Waiver Allowed/Denied);
Personal Conference and Folder Review (Resched);
Personal Conference and Folder Review (Waiver/Recon);
Personal Conference Appointment Letter;
Personal Conference Letter (No-Show); and
Personal Conference Refused
If the liable individual is a legal guardian or representative payee, send a manual notice of the approved waiver request to the liable legal guardian or representative payee. For waiver decision notices, see NL 00803.200, Notice of Waiver Decision – General. For a complete list of circumstances that require a manual notice, see NL 00801.010B.2.
a. Waiver approval specific actions
When the decision is to waive overpayment recovery:
Post the approved waiver decision to the SSR using MSSICS Direct SSR Update and the UOWV screen. For waiver input instructions, see MSOM BUSSR 004.009; and
Refund funds recovered for the overpayment period covered by the approved waiver request. Use the A-OTP process to refund the recovered amount. For instructions on the A-OTP process, see SM 01901.005 and MSOM BUSSR 004.003 through MSOM BUSSR 004.009 and MSOM BUSSR 003.022;
If the approved waiver covers months in which payments were adjusted to recover the waived overpayment, refund the amount withheld;
Do not refund funds if there is either another collect decision (i.e., different period of overpayment) or an unresolved overpayment;
b. Partial waiver approval or denial specific actions
When we decide to deny in full the request for waiver or to approve waiver of recovery for part of the overpayment, enter the denial or partial approval using Direct SSR Update (UOWV) screen. See MSOM BUSSR 004.007 through MSOM BUSSR 004.009.
Prepare and send a notice of Personal Conference (Waiver Denied) or Partial Waiver Approval (Personal Conference Decision) following the personal conference if you fully or partially deny the request for waiver. Include the following language under the caption “Based on the facts you gave us, we have decided:”
(Fill-in a. or b.)
(Insert your rationale for denying the waiver or granting only partial waiver from the determination in the MSSICS DROC or form SSA-553.)
(You/She/He)(were/was) notified that we had scheduled a personal conference for (you/her/him) on (date and time) to discuss the proposed denial of (your/her/his) waiver request, but (you/she/he) did not come in for the conference nor ask us to reschedule it or conduct it by telephone or video conference.
As a result of c. personal conference, we have determined that d. or e.
(your/her/his)
our initial “Notice for Proposed Denial of Waiver” to deny your/her/his request for waiver of recovery of the overpayment was correct.
(you/she/he) will not have to repay the total $______ which (you/she/he) incorrectly received for _____ but repayment of $________ is required.
D. References
SI 02220.005 Documenting the Supplemental Security Income (SSI) Overpayment
SI 02220.051 SSI Overpayment - Efforts to Locate an Overpaid Individual in Non-payment Status
SI 04020.030 Developing and Processing SSI Reconsideration Requests
SM 01901.005 When to Use One-Time Payments (OTPs)
GN 02270.009 Folder Review by the Person for Personal Conference
GN 01010.365 Formal and Informal Determinations
NL 00801.010 Manually Prepared Notices
NL 00803.200 Notice of Waiver Decision – General