[Title 20 CFR E]
[Code of Federal Regulations (annual edition) - April 1, 1996 Edition]
[Title 20 - EMPLOYEES' BENEFITS]
[Chapter III - SOCIAL SECURITY ADMINISTRATION]
[Part 416 - SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED]
[Subpart E - Payment of Benefits, Overpayments, and Underpayments]
[From the U.S. Government Publishing Office]
20
EMPLOYEES' BENEFITS
2
1996-04-01
1996-04-01
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Payment of Benefits, Overpayments, and Underpayments
E
Subpart E
EMPLOYEES' BENEFITS
SOCIAL SECURITY ADMINISTRATION
SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED
Subpart E--Payment of Benefits, Overpayments, and Underpayments
Sec. 416.501 Payment of benefits: General.
Payment of SSI benefits will be made for the month of initial
eligibility and each subsequent month provided all requirements for
eligibility (see Sec. 416.202) and payment (see Sec. 416.420) are met.
In the month the individual first meets all eligibility requirements and
the month in which an individual re-establishes eligibility after at
least a month of ineligibility, benefits are paid for such a month
beginning with the date in the month on which the individual meets all
eligibility requirements. In some months, while the factors of
eligibility based on the current month may be established, it is
possible to receive no payment for that month if the factors of
eligibility for payment are not met. Payment of benefits may not be made
for any period that precedes the date on which an application is filed
or, if later, the date all conditions for eligibility and payment are
met. It is possible for a couple to become eligible in the same month
but as of different dates and receive different payment amounts for that
month if they file their applications on different dates or if they meet
the necessary requirements (for example, age) on different dates.
[50 FR 48572, Nov. 26, 1985]
Sec. 416.502 Manner of payment.
For the month an individual first meets all eligibility requirements
or reestablishes eligibility after a month of ineligibility, an SSI
payment will be made on or after the day of the month on which the
individual becomes eligible or reeligible to receive benefits. In all
other months, a payment will be made on the first day of each month and
represents payment for that month. If the first day of the month falls
on a Saturday, Sunday, or legal holiday, payments will be made on the
first day preceding such day which is not a Saturday, Sunday, or legal
holiday. Unless otherwise indicated, the monthly amount for an eligible
couple will be divided equally and paid separately to each individual.
Section 416.520 explains emergency advance payments.
[55 FR 4422, Feb. 8, 1990]
Sec. 416.503 Minimum monthly benefit amount.
If you receive an SSI benefit that does not include a State
supplement the minimum monthly SSI benefit amount payable is $1. When an
SSI benefit amount of less than $1 is payable, the benefit amount will
be increased to $1. If you receive an SSI benefit that does include a
State supplement and the SSI benefit amount is less than $1 but when
added to the State supplement exceeds $1, the SSI benefit amount will
not be increased to $1. Rather, we pay the actual amount of the SSI
benefit plus the State supplement.
[50 FR 48572, Nov. 26, 1985]
Sec. 416.520 Emergency advance payments.
(a) General. Before we make a determination on an application, we
may pay a one-time emergency advance payment to an individual who is
presumptively eligible for SSI benefits and who has a financial
emergency. The amount of this payment cannot exceed the Federal benefit
rate (see Secs. 416.410 through 416.414) plus the State supplementary
payment, if any (see Sec. 416.2020), which apply for the month in which
payment is made. Emergency advance payment is defined in paragraph
[[Page 644]]
(b)(1) of this section. The actual payment amount is computed as
explained in paragraph (c) of this section. An emergency advance payment
is an advance of benefits expected to be due that is recoverable as
explained in paragraphs (d) and (e) of this section.
(b) Definition of terms. For purposes of this subpart--
(1) Emergency advance payment means a direct, expedited payment by a
Social Security Administration district or branch office to an
individual or spouse who is initially applying (see paragraph (b)(3) of
this section) and has not been determined eligible, who is presumptively
eligible (see paragraph (b)(4) of this section), and who has a financial
emergency (see paragraph (b)(2) of this section).
(2) Financial emergency is the financial status of an individual who
has insufficient income or resources to meet an immediate threat to
health or safety, such as the lack of food, clothing, shelter, or
medical care.
(3) Initially applying means the filing of an application (see
Sec. 416.310) which requires an initial determination of eligibility,
such as the first application for SSI benefits or an application filed
subsequent to a prior denial or termination of a prior period of
eligibility for payment. An individual or spouse who previously received
an emergency advance payment in a prior period of eligibility which
terminated may again receive such a payment if he or she reapplies for
SSI and meets the other conditions for an emergency advance payment
under this section.
(4) Presumptively eligible is the status of an individual or spouse
who presents strong evidence of the likelihood of meeting the income and
resources tests of eligibility (see subparts K and L of this part),
categorical eligibility (age, disability, or blindness), and technical
eligibility (United States residency and citizenship or alien status--
see subpart P).
(c) Computation of payment amount. To compute the emergency advance
payment amount, the maximum amount described in paragraph (a) of this
section is compared to both the expected benefit payable for the month
the payment is made (see paragraph (c)(1) of this section) and the
amount the applicant requested to meet the emergency. The actual payment
amount is no more than the least of these three amounts.
(1) In computing the emergency advance payment amount, we apply the
monthly income counting and proration rules apppropriate for the month
in which the advance is paid, as explained in Secs. 416.420 and 416.421.
(2) For a couple, we separately compute each member's emergency
advance payment amount.
(d) Recovery of emergency advance payment where eligibility is
established. The amount of an emergency advance payment is deducted from
payment(s) certified to the United States Treasury when the individual
or spouse is determined to be eligible. (See paragraph (e) of this
section if the individual or spouse is determined to be ineligible.)
(e) Disposition of emergency advance payments where eligibility is
not established. If a presumptively eligible individual (or spouse) or
couple is determined to be ineligible, the emergency advance payment
constitutes a recoverable overpayment. (See the exception in
Sec. 416.537(b)(1) when payment is made on the basis of presumptive
disability or presumptive blindness.)
[55 FR 4422, Feb. 8, 1990; 55 FR 7411, Mar. 1, 1990]
Sec. 416.525 Reimbursement to States for interim assistance payments.
Notwithstanding Sec. 416.542, the Social Security Administration
may, in accordance with the provisions of subpart S of this part,
withhold supplemental security income benefits due with respect to an
individual and may pay to a State (or political subdivision thereof, if
agreed to by the Social Security Administration and the State) from the
benefits withheld, an amount sufficient to reimburse the State (or
political subdivision) for interim assistance furnished on behalf of the
individual.
[41 FR 20872, May 21, 1976]
Sec. 416.532 Method of payment when the essential person resides with more than one eligible person.
(a) When an essential person lives with an eligible individual and
an eligible spouse, the State may report that the person is essential to
one or both
[[Page 645]]
members of the couple. In either event, the income and resources of the
essential person will be considered to be available to the family unit.
The payment increment attributable to the essential person will be added
to the rate of payment for the couple, the countable income subtracted,
and the resulting total benefit divided equally between the eligible
individual and the eligible spouse.
(b) Where the essential person lives with two eligible individuals
(as opposed to an eligible individual and eligible spouse), one of whom
has been designated the qualified individual, the income and resources
of the essential person will be considered to be available only to the
qualified individual (as defined in Sec. 416.221) and any increase in
payment will be made to such qualified individual.
(c) In those instances where the State has designated the essential
person as essential to two or more eligible individuals so that both are
qualified individuals, the payment increment attributable to the
essential person must be shared equally, and the income and resources of
the essential person divided and counted equally against each qualified
individual.
(d) When an essential person lives with an eligible individual and
an eligible spouse (or two or more eligible individuals) only one of
whom is the qualified individual, essential person status is not
automatically retained upon the death of the qualified individual or
upon the separation from the qualified individual. A review of the State
records established on or before December 31, 1973, will provide the
basis for a determination as to whether the remaining eligible
individual or eligible spouse meets the definition of qualified
individual. Payment in consideration of the essential person will be
dependent on whether the essential person continues to live with a
qualified individual. If the essential person does reside with a
qualified individual, status as an essential person is retained.
[39 FR 33796, Sept. 20, 1974, as amended at 50 FR 48572, Nov. 26, 1985;
51 FR 10616, Mar. 28, 1986; 60 FR 16375, Mar. 30, 1995]
Sec. 416.533 Transfer or assignment of benefits.
Except as provided in Sec. 416.525 and subpart S of this part, the
Social Security Administration will not certify payment of supplemental
security income benefits to a transferee or assignee of a person
eligible for such benefits under the Act or of a person qualified for
payment under Sec. 416.542. The Social Security Administration shall not
certify payment of supplemental security income benefits to any person
claiming such payment by virtue of an execution, levy, attachment,
garnishment, or other legal process or by virtue of any bankruptcy or
insolvency proceeding against or affecting the person eligible for
benefits under the Act.
[41 FR 20873, May 21, 1976, as amended at 58 FR 52912, Oct. 13, 1993]
Sec. 416.535 Underpayments and overpayments.
(a) General. When an individual receives SSI benefits of less than
the correct amount, adjustment is effected as described in Secs. 416.542
and 416.543. When an individual receives more than the correct amount of
SSI benefits, adjustment is effected as described in Sec. 416.570.
Refund of overpayments is discussed in Sec. 416.560 and waiver of
recovery of overpayments is discussed in Secs. 416.550 through 416.555.
(b) Additional rules for individuals whose drug addiction or
alcoholism is a contributing factor material to the determination of
disability. When an individual whose drug addiction or alcoholism is a
contributing factor material to the determination of disability, as
described in Sec. 416.935, receives less than the correct amount of SSI
benefits, adjustment is effected as described in Secs. 416.542 and
416.543 and the additional rule described in Sec. 416.544 applies.
(c) [Reserved]
(d) Additional rules for eligible aliens and for their sponsors.
When an individual who is an alien is overpaid SSI benefits during the
3-year period in which deeming from a sponsor applies (see
Sec. 416.1160(a)(3)), the sponsor and the alien may be jointly and
individually liable for repayment of the overpayment. The sponsor is
liable for the overpayment if he or she failed to report correct
information that affected
[[Page 646]]
the alien's eligibility or payment amount. This means information about
the income and resources of the sponsor and, if they live together, of
the sponsor's spouse. However, the sponsor is not liable for repayment
if the sponsor was without fault or had good cause for failing to report
correctly. A special rule that applies to adjustment of other benefits
due the alien and the sponsor to recover an overpayment is described in
Sec. 416.570(b).
(e) Sponsor without fault or good cause exists for failure to
report. Without fault or good cause will be found to exist if the
failure to report was not willful. To establish willful failure, the
evidence must show that the sponsor knowingly failed to supply pertinent
information regarding his or her income and resources.
[52 FR 8881, Mar. 20, 1987, as amended at 60 FR 8149, Feb. 10, 1995]
Sec. 416.536 Underpayments--defined.
An underpayment can occur only with respect to a period for which a
recipient filed an application, if required, for benefits and met all
conditions of eligibility for benefits. An underpayment, including any
amounts of State supplementary payments which are due and administered
by the Social Security Administration, is:
(a) Nonpayment, where payment was due but was not made; or
(b) Payment of less than the amount due. For purposes of this
section, payment has been made when certified by the Social Security
Administration to the Department of the Treasury, except that payment
has not been made where payment has not been received by the designated
payee, or where payment was returned.
[58 FR 52912, Oct. 13, 1993]
Sec. 416.537 Overpayments--defined.
(a) Overpayments. As used in this subpart, the term overpayment
means payment of more than the amount due for any period, including any
amounts of State supplementary payments which are due and administered
by the Social Security Administration. For purposes of this section,
payment has been made when certified by the Social Security
Administration to the Department of the Treasury, except that payment
has not been made where payment has not been received by the designated
payee, or where payment was returned. When a payment of more than the
amount due is made by direct deposit to a financial institution to or on
behalf of an individual who has died, and the financial institution
credits the payment to a joint account of the deceased individual and
another person who is the surviving spouse of the deceased individual
and was eligible for a payment under title XVI of the Act (including any
State supplementation payment paid by the Secretary) as an eligible
spouse (or as either member of an eligible couple) for the month in
which the deceased individual died, the amount of the payment in excess
of the correct amount will be an overpayment to the surviving spouse.
(b) Actions which are not overpayments--(1) Presumptive disability
and presumptive blindness. Any payment made for any month, including an
advance payment of benefits under Sec. 416.520, is not an overpayment to
the extent it meets the criteria for payment under Sec. 416.931.
Payments made on the basis of presumptive disability or presumptive
blindness will not be considered overpayments where ineligibility is
determined because the individual or eligible spouse is not disabled or
blind. However, where it is determined that all or a portion of the
presumptive payments made are incorrect for reasons other than
disability or blindness, these incorrect payments are considered
overpayments (as defined in paragraph (a) of this section). Overpayments
may occur, for example, when the person who received payments on the
basis of presumptive disability or presumptive blindness is determined
to be ineligible for all or any part of the payments because of excess
resources or is determined to have received excess payment for those
months based on an incorrect estimate of income.
(2) Penalty. The imposition of a penalty pursuant to Sec. 416.724 is
not an adjustment of an overpayment and is imposed only against any
amount due the penalized recipient, or, after death, any amount due the
deceased which
[[Page 647]]
otherwise would be paid to a survivor as defined in Sec. 416.542.
[40 FR 47763, Oct. 10, 1975, as amended at 43 FR 17354, Apr. 24, 1978;
50 FR 48572, Nov. 26, 1985; 55 FR 7313, Mar. 1, 1990; 58 FR 52912, Oct.
13, 1993]
Sec. 416.538 Amount of underpayment or overpayment.
(a) General. The amount of an underpayment or overpayment is the
difference between the amount paid to a recipient and the amount of
payment actually due such recipient for a given period. An underpayment
or overpayment period begins with the first month for which there is a
difference between the amount paid and the amount actually due for that
month. The period ends with the month the initial determination of
overpayment or underpayment is made. With respect to the period
established, there can be no underpayment to a recipient or his or her
eligible spouse if more than the correct amount payable under title XVI
of the Act has been paid, whether or not adjustment or recovery of any
overpayment for that period to the recipient or his or her eligible
spouse has been waived under the provisions of Secs. 416.550 through
416.556. A subsequent initial determination of overpayment will require
no change with respect to a prior determination of overpayment or to the
period relating to such determination to the extent that the basis of
the prior overpayment remains the same.
(b) Limited delay in payment of underpaid amount to recipient or
eligible surviving spouse. Where an apparent overpayment has been
detected but determination of the overpayment has not been made (see
Sec. 416.558(a)), a determination of an underpayment and payment of an
underpaid amount which is otherwise due cannot be delayed to a recipient
or eligible surviving spouse unless a determination with respect to the
apparent overpayment can be made before the close of the month following
the month in which the underpaid amount was discovered.
(c) Delay in payment of underpaid amount to ineligible individual or
survivor. A determination of an underpayment and payment of an underpaid
amount which is otherwise due an individual who is no longer eligible
for SSI or is payable to a survivor pursuant to Sec. 416.542(b) will be
delayed for the resolution of all overpayments, incorrect payments,
adjustments, and penalties.
(d) Reduction of underpaid amount. Any underpayment amount otherwise
payable to a survivor on account of a deceased recipient is reduced by
the amount of any outstanding penalty imposed against the benefits
payable to such deceased recipient or survivor under section 1631(e) of
the Act (see Sec. 416.537(b)(2)).
[58 FR 52912, Oct. 13, 1993]
Sec. 416.542 Underpayments--to whom underpaid amount is payable.
(a) Underpaid recipient alive--underpayment payable. (1) If an
underpaid recipient is alive, the amount of any underpayment due him or
her will be paid to him or her in a separate payment or by increasing
the amount of his or her monthly payment.
(2) If an underpaid recipient whose drug addiction or alcoholism is
a contributing factor material to the determination of disability (as
described in Sec. 416.935) is alive, the amount of any underpayment due
the recipient will be paid through his or her representative payee in
installment payments. No underpayment may be paid directly to the
recipient. If the recipient dies before we have paid all benefits due
through his or her representative payee, we will follow the rules which
apply to underpayments for the payment of any remaining amounts due to
any eligible survivor of a deceased recipient as described in paragraph
(b) of this section.
(b) Underpaid recipient deceased--underpaid amount payable to
survivor. (1) If a recipient dies before we have paid all benefits due
or before the recipient endorses the check for the correct payment, we
may pay the amount due to the deceased recipient's surviving eligible
spouse or to his or her surviving spouse who was living with the
underpaid recipient within the meaning of section 202(i) of the Act (see
Sec. 404.347) in the month he or she died or within 6 months immediately
preceding the month of death.
(2) If the deceased underpaid recipient was a disabled or blind
child when the
[[Page 648]]
underpayment occurred, the underpaid amount may be paid to the natural
or adoptive parent(s) of the underpaid recipient who lived with the
underpaid recipient in the month he or she died or within the 6 months
preceding death. We consider the underpaid recipient to have been living
with the natural or adoptive parent(s) in the period if the underpaid
recipient satisfies the ``living with'' criteria we use when applying
Sec. 416.1165 or would have satisfied the criteria had his or her death
not precluded the application of such criteria throughout a month.
(3) If the deceased individual was living with his or her spouse
within the meaning of section 202(i) of the Act in the month of death or
within 6 months immediately preceding the month of death, and was also
living with his or her natural or adoptive parent(s) in the month of
death or within 6 months preceding the month of death, we will pay the
parent(s) any SSI underpayment due the deceased individual for months he
or she was a blind or disabled child and we will pay the spouse any SSI
underpayment due the deceased individual for months he or she no longer
met the definition of ``child'' as set forth at Sec. 416.1856. If no
parent(s) can be paid in such cases due to death or other reason, then
we will pay the SSI underpayment due the deceased individual for months
he or she was a blind or disabled child to the spouse.
(4) No benefits may be paid to the estate of any underpaid
recipient, the estate of the surviving spouse, the estate of a parent,
or to any survivor other than those listed in paragraph (b)(1) through
(3) of this section. Payment of an underpaid amount to an ineligible
spouse or surviving parent(s) may only be made for benefits payable for
months after May 1986. Payment to surviving parent(s) may be made only
for months of eligibility during which the deceased underpaid recipient
was a child. We will not pay benefits to a survivor other than the
eligible spouse who requests payment of an underpaid amount more than 24
months after the month of the individual's death.
(c) Underpaid recipient's death caused by an intentional act. No
benefits due the deceased individual may be paid to a survivor found
guilty by a court of competent jurisdiction of intentionally causing the
underpaid recipient's death.
[40 FR 47763, Oct. 10, 1975, as amended at 58 FR 52913, Oct. 13, 1993;
60 FR 8149, Feb. 10, 1995]
Sec. 416.543 Underpayments--applied to reduce overpayments.
We apply any underpayment due an individual to reduce any
overpayment to that individual that we determine to exist (see
Sec. 416.558) for a different period, unless we have waived recovery of
the overpayment under the provisions of Secs. 416.550 through 416.556.
Similarly, when an underpaid recipient dies, we first apply any amounts
due the deceased recipient that would be payable to a survivor under
Sec. 416.542(b) against any overpayment to the survivor unless we have
waived recovery of such overpayment under the provisions of
Secs. 416.550 through 416.556.
Example: A disabled child, eligible for payments under title XVI,
and his parent, also an eligible individual receiving payments under
title XVI, were living together. The disabled child dies at a time when
he was underpaid $100. The deceased child's underpaid benefit is payable
to the surviving parent. However, since the parent must repay an SSI
overpayment of $225 on his own record, the $100 underpayment will be
applied to reduce the parent's own overpayment to $125.
[58 FR 52913, Oct. 13, 1993]
Sec. 416.544 Paying benefits in installments: Drug addiction or
alcoholism.
(a) General. For disabled recipients who receive benefit payments
through a representative payee because drug addiction or alcoholism is a
contributing factor material to the determination of disability, certain
amounts due the recipient for a past period will be paid in
installments. The amounts subject to payment in installments include:
(1) Benefits due but unpaid which accrued prior to the month payment
was effectuated;
(2) Benefits due but unpaid which accrued during a period of
suspension for which the recipient was subsequently determined to have
been eligible; and
(3) Any adjustment to benefits which results in an accrual of unpaid
benefits.
[[Page 649]]
(b) Installment formula. Except as provided in paragraph (c) of this
section, the amount of the installment payment in any month is limited
so that the sum of (1) the amount due for a past period (and payable
under paragraph (a) of this section) paid in such month and (2) the
amount of any current benefit due cannot exceed twice the Federal
Benefit Rate plus any federally-administered State supplementation
payable to an eligible individual for the preceding month.
(c) Exception to installment limitation. An exception to the
installment payment limitation in paragraph (b) of this section can be
granted for the first month in which a recipient accrues benefit amounts
subject to payment in installments if the recipient has unpaid housing
expenses which result in a high risk of homelessness for the recipient.
In that case, the benefit payment may be increased by the amount of the
unpaid housing expenses so long as that increase does not exceed the
amount of benefits which accrued during the most recent period of
nonpayment. We consider a person to be at risk of homelessness if
continued nonpayment of the outstanding housing expenses is likely to
result in the person losing his or her place to live or if past
nonpayment of housing expenses has resulted in the person having no
appropriate personal place to live. In determining whether this
exception applies, we will ask for evidence of outstanding housing
expenses that shows that the person is likely to lose or has already
lost his or her place to live. For purposes of this section,
homelessness is the state of not being under the control of any public
institution and having no appropriate personal place to live. Housing
expenses include charges for all items required to maintain shelter (for
example, mortgage payments, rent, heating fuel, and electricity).
(d) Payment through a representative payee. If the recipient does
not have a representative payee, payment of amounts subject to
installments cannot be made until a representative payee is selected.
(e) Underpaid recipient no longer eligible. In the case of a
recipient who is no longer currently eligible for monthly payments, but
to whom amounts defined in paragraph (a) of this section are still
owing, we will continue to make installment payments of such benefits
through a representative payee.
(f) Recipient currently not receiving SSI benefits because of
suspension for noncompliance with treatment. If a recipient is currently
not receiving SSI benefits because his or her benefits have been
suspended for noncompliance with treatment (as defined in Sec. 416.936),
the payment of amounts under paragraph (a) of this section will stop
until the recipient has demonstrated compliance with treatment as
described in Sec. 416.1326 and will again commence with the first month
the recipient begins to receive benefits.
(g) Underpaid recipient deceased. Upon the death of a recipient, any
remaining unpaid amounts as defined in paragraph (a) of this section
will be treated as underpayments in accordance with Sec. 416.542(b).
[60 FR 8150, Feb. 10, 1995]
Sec. 416.550 Waiver of adjustment or recovery--when applicable.
Waiver of adjustment or recovery of an overpayment of SSI benefits
may be granted when (EXCEPTION: This section does not apply to a sponsor
of an alien):
(a) The overpaid individual was without fault in connection with an
overpayment, and
(b) Adjustment or recovery of such overpayment would either:
(1) Defeat the purpose of title XVI, or
(2) Be against equity and good conscience, or
(3) Impede efficient or effective administration of title XVI due to
the small amount involved.
[52 FR 8882, Mar. 20, 1987, as amended at 53 FR 16543, May 10, 1988]
Sec. 416.551 Waiver of adjustment or recovery--effect of.
Waiver of adjustment or recovery of an overpayment from the overpaid
person himself (or, after his death, from his estate) frees him and his
eligible spouse from the obligation to repay the amount of the
overpayment covered by the waiver. Waiver of adjustment or recovery of
an overpayment from anyone
[[Page 650]]
other than the overpaid person himself or his estate (e.g., a surviving
eligible spouse) does not preclude adjustment or recovery against the
overpaid person or his estate.
Example: The recipient was overpaid $390. It was found that the
overpaid recipient was eligible for waiver of adjustment or recovery of
$260 of that amount, and such action was taken. Only $130 of the
overpayment remained to be recovered by adjustment, refund, or the like.
[40 FR 47763, Oct. 10, 1975]
Sec. 416.552 Waiver of adjustment or recovery--without fault.
Without fault relates only to the situation of the individual
seeking relief from adjustment or recovery of an overpayment. The
overpaid individual (and any other individual from whom the Social
Security Administration seeks to recover the overpayment) is not
relieved of liability and is not without fault solely because the Social
Security Administration may have been at fault in making the
overpayment. In determining whether an individual is without fault, the
fault of the overpaid person and the fault of the individual seeking
relief under the waiver provision are considered. Whether an individual
is without fault depends on all the pertinent circumstances surrounding
the overpayment in the particular case. The Social Security
Administration considers the individual's understanding of the reporting
requirements, the agreement to report events affecting payments,
knowledge of the occurrence of events that should have been reported,
efforts to comply with the reporting requirements, opportunities to
comply with the reporting requirements, understanding of the obligation
to return checks which were not due, and ability to comply with the
reporting requirements (e.g., age, comprehension, memory, physical and
mental condition). In determining whether an individual is without fault
based on a consideration of these factors, the Social Security
Administration will take into account any physical, mental, educational,
or linguistic limitations (including any lack of facility with the
English language) the individual may have. Although the finding depends
on all of the circumstances in the particular case, an individual will
be found to have been at fault in connection with an overpayment when an
incorrect payment resulted from one of the following:
(a) Failure to furnish information which the individual knew or
should have known was material;
(b) An incorrect statement made by the individual which he knew or
should have known was incorrect (this includes the individual's
furnishing his opinion or conclusion when he was asked for facts), or
(c) The individual did not return a payment which he knew or could
have been expected to know was incorrect.
[40 FR 47763, Oct. 10, 1975, as amended at 59 FR 1636, Jan. 12, 1994]
Sec. 416.553 Waiver of adjustment or recovery--defeat the purpose of the supplemental security income program.
We will waive adjustment or recovery of an overpayment when an
individual on whose behalf waiver is being considered is without fault
(as defined in Sec. 416.552) and adjustment or recovery of the
overpayment would defeat the purpose of the supplemental security income
program.
(a) General rule. We consider adjustment or recovery of an
overpayment to defeat the purpose of the supplemental security income
(SSI) program if the individual's income and resources are needed for
ordinary and necessary living expenses under the criteria set out in
Sec. 404.508(a) of this chapter
(b) Alternative criteria for individuals currently eligible for SSI
benefits. We consider an individual or couple currently eligible for SSI
benefits to have met the test in paragraph (a) of this section if the
individual's or couple's current monthly income (that is, the income
upon which the individual's or couple's eligibility for the current
month is determined) does not exceed--
(1) The applicable Federal monthly benefit rate for the month in
which the determination of waiver is made (see subpart D of this part);
plus
(2) The $20 monthly general income exclusion described in
Secs. 416.1112(c)(3) and 416.1124(c)(10); plus
(3) The monthly earned income exclusion described in
Sec. 416.1112(c)(4); plus
[[Page 651]]
(4) The applicable State supplementary payment, if any (see subpart
T of this part) for the month in which determination of waiver is made.
For those SSI recipients whose income exceeds these criteria, we follow
the general rule in paragraph (a) of this section.
[45 FR 72649, Nov. 3, 1980, as amended at 50 FR 48573, Nov. 26, 1985]
Sec. 416.554 Waiver of adjustment or recovery--against equity and good conscience.
We will waive adjustment or recovery of an overpayment when an
individual on whose behalf waiver is being considered is without fault
(as defined in Sec. 416.552) and adjustment or recovery would be against
equity and good conscience. Adjustment or recovery is considered to be
against equity and good conscience if an individual changed his or her
position for the worse or relinquished a valuable right because of
reliance upon a notice that payment would be made or because of the
incorrect payment itself. In addition, adjustment or recovery is
considered to be against equity and good conscience for an individual
who is a member of an eligible couple that is legally separated and/or
living apart for that part of an overpayment not received, but subject
to recovery under Sec. 416.570.
Example 1: Upon being notified that he was eligible for supplemental
security income payments, an individual signed a lease on an apartment
renting for $15 a month more than the room he had previously occupied.
It was subsequently found that eligibility for the payment should not
have been established. In such a case, recovery would be considered
``against equity and good conscience.''
Example 2: An individual fails to take advantage of a private or
organization charity, relying instead on the award of supplemental
security income payments to support himself. It was subsequently found
that the money was improperly paid. Recovery would be considered
``against equity and good conscience.''
Example 3: Mr. and Mrs. Smith--members of an eligible couple--
separate in July. Later in July, Mr. Smith receives earned income
resulting in an overpayment to both. Mrs. Smith is found to be without
fault in causing the overpayment. Recovery from Mrs. Smith of Mr.
Smith's part of the couple's overpayment is waived as being against
equity and good conscience. Whether recovery of Mr. Smith's portion of
the couple's overpayment can be waived will be evaluated separately.
[60 FR 16375, Mar. 30, 1995]
Sec. 416.555 Waiver of adjustment or recovery--impede administration.
Waiver of adjustment or recovery is proper when the overpaid person
on whose behalf waiver is being considered is without fault, as defined
in Sec. 416.552, and adjustment or recovery would impede efficient or
effective administration of title XVI due to the small amount involved.
The amount of overpayment determined to meet such criteria is measured
by the current average administrative cost of handling such overpayment
case through such adjustment or recovery processes. In determining
whether the criterion is met, the overpaid person's financial
circumstances are not considered.
[40 FR 47764, Oct. 10, 1975]
Sec. 416.556 Waiver of adjustment or recovery--countable resources in excess of the limits prescribed in Sec. 416.1205 by $50 or less.
(a) If any overpayment with respect to an individual (or an
individual and his or her spouse if any) is attributable solely to the
ownership or possession by the individual (and spouse if any) of
countable resources having a value which exceeds the applicable dollar
figure specified in Sec. 416.1205 by an amount of $50.00 or less,
including those resources deemed to an individual in accordance with
Sec. 416.1202, such individual (and spouse if any) shall be deemed to
have been without fault in connection with the overpayment, and waiver
of adjustment or recovery will be made, unless the failure to report the
value of the excess resources correctly and in a timely manner was
willful and knowing.
(b) Failure to report the excess resources correctly and in a timely
manner will be considered to be willful and knowing and the individual
will be found to be at fault when the evidence clearly shows the
individual (and spouse if any) was fully aware of the requirements of
the law and of the excess resources and chose to conceal these
resources. When an individual incurred a similar overpayment in the past
and received an explanation and
[[Page 652]]
instructions at the time of the previous overpayment, we will generally
find the individual to be at fault. However, in determining whether the
individual is at fault, we will consider all aspects of the current and
prior overpayment situations, and where we determine the individual is
not at fault, we will waive adjustment or recovery of the subsequent
overpayment. In making any determination or decision under this section
concerning whether an individual is at fault, including a determination
or decision of whether the failure to report the excess resources
correctly and in a timely manner was willful and knowing, we will take
into account any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language)
of the individual (and spouse if any).
[53 FR 16544, May 10, 1988, as amended at 59 FR 1636, Jan. 12, 1994]
Sec. 416.558 Notice relating to overpayments and underpayments.
(a) Notice of overpayment and underpayment determination. Whenever a
determination concerning the amount paid and payable for any period is
made and it is found that, with respect to any month in the period, more
or less than the correct amount was paid, written notice of the correct
and incorrect amounts for each such month in the period will be sent to
the individual against whom adjustment or recovery of the overpayment as
defined in Sec. 416.537(a) may be effected or to whom the underpayment
as defined in Secs. 416.536 and any amounts subject to installment
payments as defined in Sec. 416.544 would be payable, notwithstanding
the fact that part or all of the underpayment must be withheld in
accordance with Sec. 416.543. When notifying an individual of a
determination of overpayment, the Social Security Administration will,
in the notice, also advise the individual that adjustment or recovery is
required, as set forth in Sec. 416.571, except under certain specified
conditions, and of his or her right to request waiver of adjustment or
recovery of the overpayment under the provisions of Sec. 416.550.
(b) Notice of waiver determination. Written notice of an initial
determination of waiver shall be given the individual in accordance with
Sec. 416.1404 unless the individual was not given notice of the
overpayment in accordance with paragraph (a) of this section.
(c) Notice relating to installment payments to individuals whose
drug addiction or alcoholism is a contributing factor material to the
determination of disability. Whenever a determination is made concerning
the amount of any benefits due for a period that must be paid in
installments, the written notice will also explain the amount of the
installment payment and when an increased initial installment payment
may be made (as described in Sec. 416.544). This written notice will be
sent to the individual and his or her representative payee.
[40 FR 47764, Oct. 10, 1975, as amended at 55 FR 33668, Aug. 17, 1990;
60 FR 8150, Feb. 10, 1995]
Sec. 416.560 Recovery--refund.
An overpayment may be refunded by the overpaid recipient or by
anyone on his or her behalf. Refund should be made in every case where
the overpaid individual is not currently eligible for SSI benefits. If
the individual is currently eligible for SSI benefits and has not
refunded the overpayment, adjustment as set forth in Sec. 416.570 will
be proposed.
[55 FR 33669, Aug. 17, 1990]
Sec. 416.570 Adjustment--general rule.
Where a recipient has been overpaid, the overpayment has not been
refunded, and waiver of adjustment or recovery is not applicable, any
payment due the overpaid recipient or his or her eligible spouse (or
recovery from the estate of either or both when either or both die
before adjustment is completed) is adjusted for recovery of the
overpayment. Adjustment will generally be accomplished by withholding
each month the amount set forth in Sec. 416.571 from the benefit payable
to the individual except that, when the overpayment results from the
disposition of resources as provided by Secs. 416.1240(b) and 416.1244,
the overpayment will be recovered by withholding any payments due the
overpaid recipient or his or her eligible spouse before any further
payment is made. Absent a specific request from the person from
[[Page 653]]
whom recovery is sought, no overpayment made under title II or XVIII of
the Act shall be recovered by adjusting SSI benefits, and absent a
specific request, no overpayment of SSI benefits shall be adjusted
against benefits payable under title II of the Act. In no case shall an
overpayment of SSI benefits be adjusted against title XVIII benefits.
[55 FR 33669, Aug. 17, 1990; 55 FR 42148, Oct. 17, 1990]
Sec. 416.571 10-percent limitation of recoupment rate--overpayment.
Any adjustment or recovery of an overpayment for an individual in
current payment status is limited in amount in any month to the lesser
of (1) the amount of the individual's benefit payment for that month or
(2) an amount equal to 10 percent of the individual's total income
(countable income plus SSI and State supplementary payments) for that
month. The countable income used is the countable income used in
determining the SSI and State supplementary payments for that month
under Sec. 416.420. When the overpaid individual is notified of the
proposed SSI and/or federally administered State supplementary
overpayment adjustment or recovery, the individual will be given the
opportunity to request that such adjustment or recovery be made at a
higher or lower rate than that proposed. If a lower rate is requested, a
rate of withholding that is appropriate to the financial condition of
the overpaid individual will be set after an evaluation of all the
pertinent facts. An appropriate rate is one that will not deprive the
individual of income required for ordinary and necessary living
expenses. This will include an evaluation of the individual's income,
resources, and other financial obligations. The 10-percent limitation
does not apply where it is determined that the overpayment occurred
because of fraud, willful misrepresentation, or concealment of material
information committed by the individual or his or her spouse.
Concealment of material information means an intentional, knowing, and
purposeful delay in making or failure to make a report that will affect
payment amount and/or eligibility. It does not include a mere omission
on the part of the recipient; it is an affirmative act to conceal. The
10-percent limitation does not apply to the recovery of overpayments
incurred under agreements to dispose of resources pursuant to
Sec. 416.1240. In addition, the 10-percent limitation does not apply to
the reduction of any future SSI benefits as a consequence of the misuse
of funds set aside in accordance with Sec. 416.1231(b) to meet burial
expenses. Adjustment or recovery will be suspended if the recipient is
subject to a reduced benefit rate under Sec. 416.414 because of residing
in a medical facility in which Medicaid is paying a substantial portion
of the recipient's cost of care.
[55 FR 33669, Aug. 17, 1990]