The
New Republic has an article up on the problems faced by Social Security claimants who are declared overpaid. The statutes, regulations and policies are complicated. Very few lawyers understand them and lay people never do. If you're declared overpaid, untnil you do something your monthly checks stop immediately. The system is undeniably harsh. Social Security is difficult to contact. Many of the agency's employees don't understand overpayments themselves. It can be well nigh impossible to get an explanation for a declared overpayment. Claimants can't afford lawyers. Even most Social Security attorneys have only a limited understanding of all the ways that alleged overpayments can happen and what can be done about them because they are so few cases where claimants can pay a fee. There's too many of the cases for the private bar to handle them pro bono. It would be best if legal services had the resources to handle all of the cases but they don't. A second best way of handling the problem would be if the cases could be made fee generating for attorneys in private practice but I don't see that happening.
Think an attorney can't make a difference? I've had two cases in my career which started off with my client facing a large overpayment but which ended with my client receiving a large underpayment. Yes, they really do make mistakes that bad. The agency makes plenty of mistakes in declaring and computing overpayments. Even when the overpayment is real, there's always waiver for the claimant, waiver for dependents who received benefits, partial waiver, payment plans, lump sum payment offers, etc.
11 comments:
Not sure how common a claimant, as opposed to a recipient, is found to have been overpaid. Maybe in an unusual circumstance like someone was receiving disabled benefits as a child, and is now applying for disabled adult child benefits.
As to the hardship experienced by the sudden suspension of benefits, is requesting benefits continue during an appeal an option? I know it is for medical cessation. Not sure if it is available when it is a financial screw-up on SSA's part. Also lots of opportunities for payment plans, partial payments, waiver, etc. Wish the article had discussed those.
Legal over payments do not cause immediate suspension of benefits. You are afforded a 60 day appeal period before collection begins. In that period you can ask for a better explanation, a reconsideration and/or a waiver.
Yes, there are steps you can take to not pay right away, but the letter regarding the overpayment rarely makes this clear.
And getting a better explanation is often requested but rarely provided. I tell people to ask the SSA to prepare a paid and due charge, simply showing what they were paid and what they were due for each period. This is an attempt to figure our what is going on. You would think we were asking for the moon.
Requesting waiver is not the same as appealing the overpayment. Waiver won't help if the repayment would not be a hardship but if the OP amount or the fact of the overpayment is wrong, you may not be able to pursue that if you don't raise that issue right away. But the advise at SS is often just request waiver. And holding the debt in abeyance while waiver is being considered is supposed to be the rule, but it just doesn't always happen.
There is so much involved in OP cases but, mainly because claimants can't afford to pay an attorney for representation and because there is no way for SS to pay for the attorney, they go unrepresented. For some reason, attorneys choose not to work for free, especially when many OP cases involve claimants that were not clients in the past. If they were, I will help them at least understand what is going on and to the extent possible, try to resolve the matter.
@ 1:02PM, while the regulations afford a 60 day appeal period, I have never seen SSA not suspend benefits immediately when the claimant appeals or asks for more information. Its nearly impossible to even speak with anyone about the case within 60 days.
SSA FO, DDS, and ALJs and other employees don't work for free...I doubt they do ANY pro bono work.
@4:12
1:02 here, SSA always does always suspend benefits immediately , but if you request continuation of benefits during the appeal, within 10 days, I've never seen them deny it, but those were medical cession cases. 20 CFR § 404.1597a.
An overpayment situation could be different.
I have had a few overpayment cases. Earlier in my career basically you just asked for a waiver based on inability to pay. This used to work in the past w/ most ALJs. If that does not work, I guess you just have to get out the calculator to see if SSA made big mistakes. Sometimes they do.
One thing that makes overpayments difficult to explain is how they are computed. Claimant may work and earn too much which would seem like a simple overpayment. But it was not caught immediately, say two years later and in the meantime the claimant has attained FRA. He is overpaid for 3 months but because he is at FRA his benefit is recalculated to take into account for the 3 months he wasn't due a check. Throw in a recomp due to the higher wages the year he worked too much and that simple overpayment is now a bit complicated to explain. One can easily figure he was overpaid $3000 for those three months he wasn't due (and usually this figure is not a whole monthly amount due to yearly earnings test amts) but with two different recomps, COLAs, etc it is not so easily to explain how it is $2765.
Many/most overpayments are due to excess earnings or failure to report worker's compensation/state disability.
Overpayments that are against equity and good conscience can be waived quite easily if a wavier is filed although they aren't all that common. https://secure.ssa.gov/poms.nsf/lnx/0202250150
Can't vouch for all offices but the ones I have been in have reissued money withheld if the person contacted SSA and input wasn't done timely.
The biggest problem with overpayment issues is the system SSA uses to track payments, Payment History and Updates System (PHUS).
Plainly stated, PHUS is a kluge of gargantuan proportions. It jumps back and forth from the payment record, documenting changes (the MBR, master beneficiary file, shows how payments should have been paid if paid correctly, while PHUS purports to show how they actually were made). Some PSC folks will probably jump in here and state "PHUS is simple". However, there is no documentation on how it works anywhere outside the PSCs. There are a multitude of event codes that constitute a PHUS history. Some are debits, some are credits, and others may be a debit or credit depending upon the circumstances of that particular case.
The process of deriving paid versus payable totals from a PHUS history is the reason that it takes so long to get an explanation for an overpayment - every single one of them of any complexity has to be done manually as the agency has no automated tools to do it with.
The manual process of doing that is called doing a Single Copy Folder Reference (SCFR).
Fun fact about SCFRs is that there are no standard instructions on how to do it outside the PSCs. Field office personnel aren't taught how to do it, and while there are some PSC training packages that can be located they are all limited of scope and several are completely contradictory as to what to count and what to exclude.
I had a client who did not appeal an over-payment claim by SSA. My investigation disclosed that the alleged over-payment was clearly based upon inaccurate information. However, it was impossible to get the attention of anyone within "the system" to look at the facts that were clearly in her favor. This elderly single senior citizen woman was affected significantly by the deduction taken in her already modest monthly check to repay the erroneous repayment determination.
As a TE and later as a manager doing quality reviews I found most Cars didn't understand or apply o/p policy and procedures correctly. I provided training constantly. I can remember a few cases going to ALJs that were appalled by the poor documentation and found in the claimants favor. I was able to improve accuracy and quality of the service but this is one of the most error prone workloads. This along with workers comp cases
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