By Andrew L. Bardetti
Supervising Attorney, Elder Law Unit,
South Coastal Counties Legal Services, Inc.
Notices from the Social Security Administration about overpayments can cause confusion and concern. Often the notice contains strict language about having to pay back money, and people may receive multiple notices at the same time.
An overpayment occurs when SSA pays you more in benefits than SSA believes you should have received during a range of time. This can happen with any SSA benefits types, though most often with Supplemental Security Income or Social Security Disability Insurance.
When you receive such a notice, remember you generally have three options.
First, you can appeal the overpayment notice. This is called requesting reconsideration. Reference: POMS GN 02201.025, SI 02220.017(A)(4). In doing so, you are challenging whether SSA is correct about the overpayment itself. SSA will then have to double check its calculations and provide you with a written explanation.
A Request for Reconsideration must be filed within 65 days after the date on the notice, though there is an option for late filing if you can show good cause. Reference: 20 CFR § 404.911, § 416.1411. In filing the appeal, SSA should stop any collection of the overpayment. The request must be in writing, and you should use SSA form SSA-561 to appeal. It is also best practice to document how you submitted, in case SSA says they never received it such as by using certified mail or keeping a record of having hand delivered it.
Last, you may receive another notice around the same time you receive an overpayment notice that may stop your benefits. It is important to appeal any other issues separately. For example, if you also got a notice saying you are no longer eligible for SSI, that is a separate legal issue and you may want to appeal that notice as well.
Second, you can ask SSA to waive its right to collect the overpayment. A waiver is not an appeal—you are not challenging whether SSA was correct about the overpayment. Instead, you are arguing that you should not have to give the money back, and SSA should waive or forgive the overpayment amount.
Specifically, you must show: 1) The individual must be without fault in causing the overpayment; and 2) Recovery would either “defeat the purpose of [the Social Security Act]” or “Be against equity and good conscience.” Reference: 20 CFR § 404.506.
Without fault generally means the person needs to show they were blameless in the creation of the overpayment. Defeat the purpose of the act means whether it would be a financial hardship for the person to pay the money back. Against equity and good conscience means whether it is generally unfair for the person to have to pay the money back.
Developing your explanation and supporting your statements with any other evidence are crucial in submitting your waiver request.
The SSA form SSA-632 is the document to use when requesting a waiver, and the same submission guidance applies from the reconsideration. Note that a waiver request can be made at any time. If it is denied, you may also appeal through the reconsideration form.
Finally, if neither of the first two options are available or succeed, you may negotiate a lower repayment amount. At some point, SSA will send a notice about when they will begin reducing your check to recover the overpayment. You may use SSA Form SSA-634 to request a change in the repayment rate. The form requires you to explain your finances and demonstrate why you cannot afford to pay a higher amount.
This information is provided by South Coastal Counties Legal Services (SCCLS) which provides free legal services to eligible clients. If you are an older adult look for legal help with this issue, or another civil legal matter, you are welcome to contact our New Bedford office at 774-488-5979 or submit an inquiry online at sccls.org.
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