TN 12 (04-09)

A. Policy

The burden of establishing without fault lies with the overpaid individual. The individual must request waiver and submit evidence or provide a reasonable explanation as to why he or she believes that he or she is without fault.

NOTE: A determination that the overpaid individual is liable for repayment of the overpayment is not a finding that the liable individual is at fault in causing the overpayment.

1. Evidence and/or allegations

We consider all evidence and allegations from the overpaid individual along with our own records to determine whether to grant a request for waiver from recovery of an overpayment.

2. The individual’s ability to comprehend and comply with reporting responsibilities

In the determination of whether the overpaid individual is without fault in causing the overpayment, we consider:

• The individual’s ability to understand his or her reporting responsibilities;

• Whether the individual believed that the change was significant enough to effect his or her eligibility or payment amount;

• The individual’s attempt(s) to report events that could impact eligibility or payment amount; and

• Whether the individual received misinformation from an official source.

B. Procedures for establishing without fault - SSI overpayment

1. General

1. You must be receptive to any explanation offered as to why the individual believes he or she is without fault in causing the overpayment. Give particular attention to:

   • The individual’s ability to comprehend the reporting requirements.

   • Whether the change which caused the overpayment was significant to the individual.

   • Any allegation that the individual received incorrect or misleading information from an official source.

     For instructions on how to add a without fault decision through MSSICS, see MSOM BUSSR 004.007.

2. If you cannot substantiate and document the cause of the overpayment, you must determine the individual is without fault

   If despite all available information (e.g., the supplemental security record (SSR), MSSICS, paper documents, NDRed, etc.), you cannot give the individual a full explanation of the facts surrounding the overpayment, you must determine the individual is without fault.

   This should occur only in the rare situation where there is a long period of time between the report of event(s) causing the overpayment and the development of the overpayment, and documentation of the overpayment is not available.

2. Good faith in reporting events

If there is a valid reason to believe that the information was given in good faith and that it was correct to the best of the individual’s knowledge at the time it was reported, you can determine the individual is without fault for any part of an overpayment caused by incorrect information reported by the overpaid individual.

See SI 02260.010C.5.b when the individual gave information which he or she knew or should have known was incorrect.

3. Individual’s comprehension level

1. If you determine that the overpaid individual did not understand his or her reporting responsibilities, find the individual is of without fault.

   Some factors affecting the individual’s ability to comprehend his or her reporting responsibilities are:

   • Inability to read;

   • Limited education;

   • English not his or her native language;

   • Senility;

   • Debilitating handicaps or disease.

2. Consider second and subsequent failures to timely report changes more strictly in terms of whether the individual knew or should have known to report the change.

   This stricter standard applies to a subsequent failure to report a change because the reporting requirements should have been fully explained at the time prior requests for waiver and/or reconsideration. Because the overpaid individual received multiple explanations of his or her reporting responsibilities, the individual should now have an increased awareness of his or her reporting responsibilities.

   However, you can find the individual is without fault if you have reason to believe that the individual failed to receive reporting instructions and written reporting material when he or she filed for initial eligibility, completed a redetermination, or previously requested reconsideration or waiver of an overpayment.

   You must determine each request for waiver on its own merits. While you may use presumptions to determine whether without fault exists, you cannot find fault solely because the individual had a prior overpayment. You must consider all factors.

   NOTE: Be sensitive to the possibility that the overpaid individual needs a representative payee. See GN 00502.010 through GN 00502.060.

4. Significance of the change of events to the individual

1. You may find the individual is without fault if the evidence and allegations indicate the individual, although aware of the need to report and of the effect of the change, believed that the change was so insignificant as to have no material effect on eligibility or payment amount.

2. To determine that the individual is without fault you must determine that both the change was, in fact, minor, and the individual believed it was insignificant.

   NOTE: Do not ask the individual for his or her opinion. If the individual does not volunteer the opinion, do not ask for it.

5. Questions to ask concerning the individual’s understanding of reporting responsibilities

Ask the individual the following questions then use the answers to help you determine whether the individual was without fault due to a lack of understanding of reporting responsibilities:

• What does the individual recall being told about reporting responsibilities during the application, redeterminations and prior requests for reconsideration or waiver of an overpayment?

• What did the individual do with the written reporting instructions provided at the time of initial application?

• If there have been recent check stuffers or if there are additional regionally prepared lists of reporting requirements, what did the individual do with them?

• Does the individual have his or her SSA-4122-FO “Your Supplemental Security Income Folder?”

• How many redeterminations has the person had and/or has the person been eligible for SSI more than once?

• Is the change which caused the overpayment one that normally would have been covered during a discussion of reporting requirements or is it a unique occurrence?

• Could a reasonable person conclude that the change was so insignificant as not to affect payment amount or eligibility?

• Does the individual have a language problem?

• Does the individual have difficulties caused by a limited education?

• If the individual is disabled due to intellectual disability or mental illness (i.e., due to mental disease or defect), is the individual’s thought process rational or is it impaired?

6. Misinformation from an official source

1. Find the individual is without fault in causing the overpayment if you determine an individual failed to report a change because of misinformation from an official source. Deem a finding of against equity or good conscience. For policy and procedures for developing against equity and good conscience see SI 02260.025.

2. An official source is any Social Security source (such as an employee) or any other source the individual had reason to believe was closely related to SSA to lend credence to their claim of misinformation.

   EXAMPLE: Many title XVI recipients receive aid and services from social workers or other Federal, State, or local government employees. In an individual case the overpaid individual could reasonably consider these non-SSA employees to be an official source.

Misinformation from an official source does not apply to routine notices of eligibility determinations (for example, an award notice).

7. Development and documentation - misinformation from an official source

1. Contact the source to verify the allegation. When sources outside SSA are involved, see disclosure with consent, GN 03305.001.

2. Record the results of the contact using the MSSICS DROC (Remarks) screen or in a written statement on a Report of Contact (RC), SSA-5002, from the alleged source of misinformation. Some sources may not be willing to release information without the consent of the individual involved. If so, obtain the overpaid individual’s consent.

3. If contact is not feasible, you must judge the probability of such misinformation. One factor to consider is the credibility, and reliability of the overpaid individual.

4. If misinformation is alleged from a SSA source, you must always verify the allegation.

C. Reference

SI 02201.005 SSI – Who is responsible for repayment?