Bill Small of Rocky Hill got a jolt this past March when the Social Security Administration (SSA) notified him in a letter that it had overpaid his wife, Bess, during two decades of disbursing her monthly benefit. And so, now that he and his wife are 85 years old and she has been diagnosed with dementia, the SSA is demanding that he repay a total of $38,192 on her behalf. ...
The retired Air Force colonel, who during a 28-year career piloted multiengine military aircraft all over the world and served in Vietnam, says the government admits it made a mistake and that he and his wife of 63 years are blameless. He asked in June that the SSA waive its demand for repayment.
But on Wednesday, an SSA representative told him during a personal conference in Hartford that his request is being denied. ...
Small said he still hasn’t received an explanation of what specific error by the SSA resulted in the overpayment, as well how it happened and when it began. (He said he doesn’t know how long the overpayments were happening, but if they spanned the entire 22 years, they would have averaged around $145 a month to reach the $38,192 total.) ...
“To approve the waiver of an overpayment we must be able to determine that the individual is without fault in causing the overpayment, and repayment would cause an undue hardship,” Kevin Reino, an SSA public affairs specialist in the agency’s regional office in Boston, said in describing the SSA’s general policy. ...Years ago I had a case that might have been a little like this. The client had been an employee of the New York City transit system. Years before he retired somebody at Social Security had made a mistake. The city had sent the agency a reel (I said it was years ago) containing data on employee wages. Somebody at Social Security had run the reel twice, double crediting wages for all those employees. The mistake was only discovered many years later. The mistake resulted in a large number of former New York City transit workers being overpaid by Social Security. I argued that the original award certificate determining the primary insurance amount was res judicata and that there was no basis for reopening it. The Administrative Law Judge bought it and the overpayment was wiped out. At least in that case, we knew why the overpayment had happened. Often, it's almost impossible to get an explanation of how the overpayment occurred. In this woman's case, I'll take a guess that Social Security didn't properly coordinate this woman's wife's benefits with her retirement benefits based on her own earnings.
By the way, I'll bet that Social Security would take a small fraction of the overpayment amount as a full settlement if the husband makes a lump sum payment offer. Given this woman's age and health, they'll never collect much of the overpayment by way of a repayment plan.
When I did overpayment hearings for other benefits, the agency rep had to appear, and the OP had to be documented/explained down to the last detail. But, despite the stakes often being much higher, SS overpayments are a (bad) joke. The OP letters contain very little information, the files do not contain clear explanation or supporting evidence, and no one from the agency is present at a hearing to explain.
ReplyDeleteIsn't age taken into consideration? The guy and his wife are 85. It was the SSA fault. The overpayment should be waived
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ReplyDeleteThe fact that the beneficiary was not at fault in connection wit the overpayment is irrelevant if she has the ability to repay the overpayment. My uncle is a retired Air Force Colonel -- they receive very nice pensions.
If the overpayment can't be explained (documentation in the paper folder - would not have been an electronic file), the overpayment should be waived.
ReplyDeleteSSA had a 'finality rule' which they have since changed. It said if 4 years goes by and the error was the agency's that it was tough luck for it not the claimant. there was a scandal where a widow slid into her husband's check, as she is supposed to and kept getting the wife's share for many years. The IG found it and brought it to SSA's attention they did nothing. 4 years later the irate IG chastised them for 4 more years of errors and they said their hands were tied, BUT that were changing the rule. that may explain why they are going after the 85 year old.
ReplyDeleteAlways surprised how many people don't really understand the word AND in the sentence "To approve the waiver of an overpayment we must be able to determine that the individual is without fault in causing the overpayment, and repayment would cause an undue hardship."
ReplyDeleteStep 1 - no fault of your own - check.
Step 2, is it an undue hardship to pay it back? Not clear. If Yes, then waiver. If no, then no waiver.
It may be cruel but it's the way waivers are set up. Easy to prove undue hardship with SSI, but regular folks can't just expect it just because.
When I did these overpayment cases several years ago, on behalf of the beneficiary I always asked for reconsideration AND waiver. My thought was that on reconsideration SSA would have to offer some kind of proof and I would have an opportunity to counter it. SSA could never explain its calculations. One case got to an ALJ and no one from SSA showed up-judgment for beneficiary.
ReplyDeleteThat sounds like it never should have occurred. Albeit fraud or the wife never telling us something (like receiving a pension not covered by Soc Sec) paying her incorrectly should have fallen under the rules of administrative finality. If we made an error 22 years ago, which we are only guessing, that is way over the time limit and should have been left alone. Some people either don't know or don't think and just charge the O/P and they are done with it, not thinking of the trouble is causes beneficiaries.
ReplyDelete@ 8:32 AM, September 21, 2019, you are forgetting about the alternative to financial hardship at the second step, "against equity and good conscience." SSA certainly forgets about it, or applies it very narrowly. In this case, I would argue that she was not at fault in causing the overpayment, AND it would be unfair to make her repay any of it. You would probably have to take the appeal to federal court for any hope of prevailing, but it is an option.
ReplyDeleteDear 8:32,
ReplyDeleteIf SSA can't show how an overpayment occurred, how do we know the claimant was overpaid at all? Why must a claimant pay back a sum that cannot be proven to be overpaid? I have handled many cases where the agency sends out overpayment notices with varying amounts allegedly overpaid. If SSA can't agree on a number or tell how and why the funds were overpaid, then there is NO overpayment. How could anyone argue with a straight face otherwise.
Robert Petruzzelli
For those wondering about financial hardship or an inability to repay...
ReplyDelete"He said they own their home with no mortgage and have years of savings, but even though he has the means, he still doesn’t believe he should have to pay the $38,192 because 'we didn’t make the error.'”
I would also be curious to see the paperwork he's received because not getting an explanation of how the overpayment was calculated and not understanding how it was calculated are not the same thing.
I have done overpayment cases. Typically, you just ask for mercy with an ALJ for undue hardship. This worked even when it was kind of clear the claimant probably should have known they were getting too much.
ReplyDeleteMy hunch is maybe this retired Air Force colonel has some dough and probably could come up with it without maybe an undue hardship. Either way, it is bogus if the SSA does not waive the overpayment. It is their mistake!
If a claimant didn't tell us complete information and they would have been $38K, would the same reasoning apply? It was the claimant's fault they didn't know the law/rules, so why should SSA pay them now even if the law allows it.
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