20 C.F.R. §§ 408.910–408.941

§408.910. When will we waive recovery of an SVB overpayment?

20 C.F.R. § 408.910

We will waive recovery of an overpayment when:

(a)

You are without fault in connection with the overpayment, and

(b)

Recovery of such overpayment would either—

(1)

Defeat the purpose of the title VIII program, or

(2)

Be against equity and good conscience.

(c)

We will apply the procedures in this paragraph (c) when an individual requests waiver of all or part of a qualifying overpayment.

(1)

For purposes of this paragraph (c), a qualifying overpayment is one that accrued during the pandemic period (see § 408.902(b)) because of the actions that we took in response to the COVID-19 national public health emergency, including the suspension of certain of our manual workloads that would have processed actions identifying and stopping certain overpayments.

(2)

Notwithstanding any other provision of this subpart, we will presume that an individual who requests waiver of a qualifying overpayment is without fault in causing the overpayment (see § 408.912) unless we determine that the qualifying overpayment made to a beneficiary or a representative payee was the result of fraud or similar fault or involved misuse of benefits by a representative payee (see § 408.641).

(3)

If we determine under paragraph (c)(2) of this section that an individual or a representative payee is without fault in causing a qualifying overpayment, we will also determine that recovery of the qualifying overpayment would be against equity and good conscience. For purposes of this paragraph (c)(3) only, “against equity and good conscience” is not limited to the meaning used in § 408.914 but means a broad concept of fairness that takes into account all of the facts and circumstances of the case.

(4)

The provisions of this paragraph (c) will apply to a qualifying overpayment identified by December 31, 2020.

Notes, amendments, and revision history

Amendments

[69 FR 25955, May 10, 2004, as amended at 85 FR 52914, Aug. 27, 2020]

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

Amendments

[69 FR 25955, May 10, 2004, as amended at 85 FR 52914, Aug. 27, 2020]

§408.911. What happens when we waive recovery of an SVB overpayment?

20 C.F.R. § 408.911

Waiver of recovery of an overpayment from you (or, after your death, from your estate) frees you and your estate from the obligation to repay the amount of the overpayment covered by the waiver. Example: You filed for waiver of recovery of a $600 overpayment. We found that you are eligible for waiver of recovery of $260 of that amount. Only $340 of the overpayment would be recoverable from you or your estate.

Notes, amendments, and revision history

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

§408.912. When are you without fault regarding an overpayment?

20 C.F.R. § 408.912

(a)

General—when fault is relevant. If you request waiver of recovery of an overpayment, we must determine whether you were without fault. You are not relieved of liability and are not without fault solely because we may have been at fault in making the overpayment.

(b)

The factors we consider to determine whether you were without fault. When we determine whether you were without fault, we consider all the pertinent circumstances relating to the overpayment. We consider your understanding of your obligation to give us information affecting your payments, your agreement to report events, your knowledge of the occurrence of events that should have been reported, the efforts you made to comply with the reporting requirements, the opportunities you had to comply with the reporting requirements, your ability to comply with the reporting requirements (e.g., your age, comprehension, memory, physical and mental condition), and your understanding of the obligation to return payments that were not due. In determining whether you are without fault based on these factors, we will take into account any physical, mental, educational, or language limitations (including any lack of facility with the English language) you may have. We will determine that you were at fault if, after considering all of the circumstances, we find that the overpayment resulted from one of the following:

(1)

Your failure to furnish information which you knew or should have known was material;

(2)

An incorrect statement you made which you knew or should have known was incorrect (this includes furnishing your opinion or conclusion when you were asked for facts), or

(3)

You did not return a payment, which you knew, or could have been expected to know, was incorrect.

(c)

Special rule for qualifying overpayments. Notwithstanding any other provision of this subpart, we will not determine any overpaid individual to be at fault in causing a qualifying overpayment (see § 408.910(c)(1)) unless we determine that the qualifying overpayment made to an individual or a representative payee during the pandemic period (see § 408.902(b)) was the result of fraud or similar fault or involved misuse of benefits by a representative payee (see § 408.641).

Notes, amendments, and revision history

Amendments

[69 FR 25955, May 10, 2004, as amended at 85 FR 52914, Aug. 27, 2020]

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

Amendments

[69 FR 25955, May 10, 2004, as amended at 85 FR 52914, Aug. 27, 2020]

§408.913. When would overpayment recovery defeat the purpose of the title VIII program?

20 C.F.R. § 408.913

We will waive recovery of an overpayment when you are without fault (as defined in § 408.912) and recovery of the overpayment would defeat the purpose of the title VIII program. Recovery of an overpayment would defeat the purpose of the title VIII program to the extent that our recovery action would deprive you of income and resources you need to meet your ordinary and necessary living expenses as described in § 404.508(a) of this chapter.

Notes, amendments, and revision history

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

§408.914. When would overpayment recovery be against equity and good conscience?

20 C.F.R. § 408.914

We will waive recovery of an overpayment when you are without fault (as defined in § 408.912) and recovery would be against equity and good conscience. Recovery would be against equity and good conscience if you changed your position for the worse or gave up a valuable right in reliance on our notice that payment would be made or because of the incorrect payment itself. Example: Upon our notice that you are eligible for SVB payments, you signed a lease on an apartment renting for $15 a month more than the one you previously occupied. You were subsequently found ineligible for SVB and no benefits are payable. In this case, recovery of the overpayment would be considered “against equity and good conscience.”

Notes, amendments, and revision history

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

§408.918. What notices will you receive if you are overpaid or underpaid?

20 C.F.R. § 408.918

(a)

Notice of overpayment or underpayment determination. Whenever we determine that you were overpaid or underpaid for a given period, as defined in § 408.903, we will send you a written notice of the correct and incorrect amounts you received for each month in the period, even if part or all of the underpayment must be withheld in accordance with § 408.905. The notice of overpayment will advise you about recovery of the overpayment, as explained in §§ 408.920-408.923, and your rights to appeal the determination and to request waiver of recovery of the overpayment under the provisions of § 408.910.

(b)

Notice of waiver determination. Written notice of an initial determination regarding waiver of recovery will be mailed to you in accordance with § 408.1005 unless you were not given notice of the overpayment in accordance with paragraph (a) of this section.

Notes, amendments, and revision history

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

§408.920. When will we seek refund of an SVB overpayment?

20 C.F.R. § 408.920

We will seek refund of an SVB overpayment in every case in which we have not waived recovery. An overpayment may be refunded by you or by anyone on your behalf. If you are receiving SVB currently and you have not refunded the overpayment, adjustment as set forth in § 408.922 will be proposed. If you die before we recover the full overpayment, we will seek refund of the balance from your estate.

Notes, amendments, and revision history

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

§408.922. When will we adjust your SVB payments to recover an overpayment?

20 C.F.R. § 408.922

If you do not refund your overpayment to us, and waiver of recovery is not applicable, we will adjust any SVB payments due you to recover the overpayment. Adjustment will generally be accomplished by withholding each month the amount set forth in § 408.923 from the benefit payable to you.

Notes, amendments, and revision history

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

§408.923. Is there a limit on the amount we will withhold from your SVB payments to recover an overpayment?

20 C.F.R. § 408.923

(a)

Amount of the withholding limit. Except as provided in paragraphs (b) and (c) of this section, the amount we will withhold from your monthly SVB payment to recover an overpayment is limited to the lesser of (1) the amount of your Federal SVB payment or (2) an amount equal to 10 percent of the maximum SVB monthly payment amount as defined in § 408.505(a).

(b)

Your right to request a different rate of withholding. When we notify you of the rate we propose to withhold from your monthly SVB payment, we will give you the opportunity to request a higher or lower rate of withholding than that proposed. If you request a rate of withholding that is lower than the one established under paragraph (a) of this section, we will set a rate that is appropriate to your financial condition after we evaluate all the pertinent facts. An appropriate rate is one that will not deprive you of income required for ordinary and necessary living expenses. We will evaluate your income, resources, and expenses as described in § 404.508 of this chapter.

(c)

Fraud, misrepresentation or concealment of material information. If we determine that there was fraud, willful misrepresentation, or concealment of material information by you in connection with the overpayment, the limits in paragraph (a)(2) of this section do not apply and we will not lower the rate of withholding under paragraph (b) of this section. Concealment of material information means an intentional, knowing, and purposeful delay in making or in failing to make a report that will affect your SVB payment amount and/or eligibility. It does not include a mere omission on your part; it is an affirmative act to conceal.

Notes, amendments, and revision history

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

§408.930. Are title II and title XVI benefits subject to adjustment to recover title VIII overpayments?

20 C.F.R. § 408.930

(a)

Definitions—

(1)

Cross-program recovery. Cross-program recovery is the process that we will use to collect title VIII overpayments from benefits payable to you under title II or title XVI of the Social Security Act.

(2)

Benefits payable. For purposes of this section, benefits payable means the amount of title II or title XVI benefits you actually would receive. For title II benefits, it includes your monthly benefit and your past-due benefits after any reductions or deductions listed in § 404.401(a) and (b) of this chapter. For title XVI benefits, it includes your monthly benefit and your past-due benefits as described in § 416.420 of this chapter.

(b)

When may we collect title VIII overpayments using cross-program recovery? We may use cross-program recovery to collect a title VIII overpayment you owe when benefits are payable to you under title II, title XVI, or both.

Notes, amendments, and revision history

Amendments

[70 FR 15, Jan. 3, 2004]

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

Amendments

[70 FR 15, Jan. 3, 2004]

§408.931. How much will we withhold from your title II and title XVI benefits to recover a title VIII overpayment?

20 C.F.R. § 408.931

(a)

If past-due benefits are payable to you, we will withhold the lesser of the entire overpayment balance or the entire amount of past-due benefits.

(b)

(1)

We will collect the overpayment from current monthly benefits due in a month under title II and title XVI by withholding the lesser of the amount of the entire overpayment balance or:

(i)

10 percent of the monthly title II benefits payable for that month and

(ii)

in the case of title XVI benefits, an amount no greater than the lesser of the benefit payable for that month or an amount equal to 10 percent of your income for that month (including such monthly benefit but excluding payments under title II when recovery is also made from title II benefits and excluding income excluded pursuant to §§ 416.1112 and 416.1124 of this chapter).

(2)

Paragraph (b)(1) of this section does not apply if—

(i)

You request and we approve a different rate of withholding, or

(ii)

You or your spouse willfully misrepresented or concealed material information in connection with the overpayment.

(c)

In determining whether to grant your request that we withhold less than the amount described in paragraph (b)(1) of this section, we will use the criteria applied under § 408.923 to similar requests about withholding from title VIII benefits.

(d)

If you or your spouse willfully misrepresented or concealed material information in connection with the overpayment, we will collect the overpayment by withholding the lesser of the overpayment balance or the entire amount of title II benefits and title XVI benefits payable to you. We will not collect at a lesser rate. (See § 408.923 for what we mean by concealment of material information.)

Notes, amendments, and revision history

Amendments

[70 FR 16, Jan. 3, 2005]

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

Amendments

[70 FR 16, Jan. 3, 2005]

§408.932. Will you receive notice of our intention to apply cross-program recovery?

20 C.F.R. § 408.932

Before we collect an overpayment from you using cross-program recovery, we will send you a written notice that tells you the following information:

(a)

We have determined that you owe a specific overpayment balance that can be collected by cross-program recovery;

(b)

We will withhold a specific amount from the title II or title XVI benefits (see § 408.931(b));

(c)

You may ask us to review this determination that you still owe this overpayment balance;

(d)

You may request that we withhold a different amount from your current monthly benefits (the notice will not include this information if § 408.931(d) applies); and

(e)

You may ask us to waive collection of this overpayment balance.

Notes, amendments, and revision history

Amendments

[70 FR 16, Jan. 3, 2005]

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

Amendments

[70 FR 16, Jan. 3, 2005]

§408.933. When will we begin cross-program recovery from your current monthly benefits?

20 C.F.R. § 408.933

(a)

We will begin collecting the overpayment balance by cross-program recovery from your title II and title XVI current monthly benefits no sooner than 30 calendar days after the date of the notice described in § 408.932. If within that 30-day period you pay us the full overpayment balance stated in the notice, we will not begin cross-program recovery from your current monthly benefits.

(b)

If within that 30-day period you ask us to review our determination that you still owe us this overpayment balance, we will not begin cross-program recovery from your current monthly benefits before we review the matter and notify you of our decision in writing.

(c)

If within that 30-day period you ask us to withhold a different amount than the amount stated in the notice, we will not begin cross-program recovery from your current monthly benefits until we determine the amount we will withhold. This paragraph does not apply when § 408.931(d) applies.

(d)

If within that 30-day period you ask us to waive recovery of the overpayment balance, we will not begin cross-program recovery from your current monthly benefits before we review the matter and notify you of our decision in writing. See §§ 408.910 through 408.914.

Notes, amendments, and revision history

Amendments

[70 FR 16, Jan. 3, 2005]

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

Amendments

[70 FR 16, Jan. 3, 2005]

§408.940. When will we refer an SVB overpayment to the Department of the Treasury for tax refund offset?

20 C.F.R. § 408.940

(a)

General. The standards we will apply and the procedures we will follow before requesting the Department of the Treasury to offset income tax refunds due you to recover outstanding overpayments are set forth in §§ 408.940 through 408.946 of this subpart. These standards and procedures are authorized by 31 U.S.C. 3720A, as implemented through Department of the Treasury regulations at 31 CFR 285.2.

(b)

We will use the Department of the Treasury tax refund offset procedure to collect overpayments that are certain in amount, past due and legally enforceable and eligible for tax refund offset under regulations issued by the Secretary of the Treasury. We will use these procedures to collect overpayments from you only when you are not currently entitled to monthly SVB under title VIII of the Act, and we are not recovering your SVB overpayment from your monthly benefits payable under title II of the Act. We refer overpayments to the Department of the Treasury for offset against Federal tax refunds regardless of the amount of time the debts have been outstanding.

Notes, amendments, and revision history

Amendments

[69 FR 25955, May 10, 2004, as amended at 76 FR 65108, Oct. 20, 2011]

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

Amendments

[69 FR 25955, May 10, 2004, as amended at 76 FR 65108, Oct. 20, 2011]

§408.941. Will we notify you before we refer an SVB overpayment for tax refund offset?

20 C.F.R. § 408.941

Before we request that an overpayment be collected by reduction of Federal and State income tax refunds, we will send a written notice of our action to the overpaid person. In our notice of intent to collect an overpayment through tax refund offset, we will state:

(a)

The amount of the overpayment; and

(b)

That we will collect the overpayment by requesting that the Department of the Treasury reduce any amounts payable to the overpaid person as refunds of Federal and State income taxes by an amount equal to the amount of the overpayment unless, within 60 calendar days from the date of our notice, the overpaid person:

(1)

Repays the overpayment in full; or

(2)

Provides evidence to us at the address given in our notice that the overpayment is not past due or legally enforceable; or

(3)

Asks us to waive collection of the overpayment under section 204(b) of the Act.

(c)

The conditions under which we will waive recovery of an overpayment under section 808(c) of the Act;

(d)

That we will review any evidence presented that the overpayment is not past due or not legally enforceable;

(e)

That you have the right to inspect and copy our records related to the overpayment as determined by us and you will be informed as to where and when the inspection and copying can be done after we receive notice from you requesting inspection and copying.

Notes, amendments, and revision history

Amendments

[69 FR 25955, May 10, 2004, as amended at 76 FR 65108, Oct. 20, 2011]

Authority

Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31 U.S.C. 3720A.

Source

Source: 69 FR 25955, May 10, 2004, unless otherwise noted.

Source

Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted.

Amendments

[69 FR 25955, May 10, 2004, as amended at 76 FR 65108, Oct. 20, 2011]