[Federal Register Volume 60, Number 106 (Friday, June 2, 1995)]
[Proposed Rules]
[Pages 28766-28772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13453]
=======================================================================
-----------------------------------------------------------------------
[[Page 28767]]
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 410
RIN 0960-AD99
Overpayment Appeal and Waiver Rights
AGENCY: Social Security Administration.
ACTION: Proposed rules.
-----------------------------------------------------------------------
SUMMARY: In these proposed regulations we address the rights of
individuals regarding overpayment and waiver determinations in the
Social Security and Black Lung benefits programs by stating policy
established as a result of a series of court decisions, beginning with
the 1974 court decision in Buffington, et al. v. Weinberger and
including the Supreme Court decision in Califano v. Yamasaki. The
effect of these proposed regulations is to codify these additional
rights for overpaid individuals established in these court decisions.
DATES: Comments must be submitted on or before August 1, 1995.
ADDRESSES: Submit your comments as follows: (1) Telefax to (410) 966-
2830, (2) mail them to the Social Security Administration, P.O. Box
1585, Baltimore, MD 21235, (3) send by E-mail to
regulations@ssa.gov'', or (4) deliver them to 3-B-1 Operations
Building, 6401 Security Boulevard, Baltimore, MD 21235, between 8:00
a.m. and 4:30 p.m. on regular business days. You may inspect the
comments received also during these same hours by making arrangements
with the contact person shown below.
The electronic file of this document is available on the Federal
Bulletin Board (FBB) at 9 a.m. on the date of publication in the
Federal Register. To download the file, modem dial (202) 512-1387. The
FBB instructions will explain how to download the file and the fee.
This file is in WordPerfect and will remain on the FBB during the
comment period.
FOR FURTHER INFORMATION CONTACT: Lois Berg, Legal Assistant, 3-B-1
Operations Building, 6401 Security Boulevard, Baltimore, MD 21235,
(410) 965-1713 for information about these rules.
SUPPLEMENTARY INFORMATION
Background
Section 204(b) of the Social Security Act (the Act) provides that
the Commissioner of Social Security (the Commissioner) shall not
recover an Old-Age, Survivors, and Disability Insurance (OASDI)
overpayment from any individual who is without fault in causing the
overpayment if recovery from that individual would ``defeat the
purpose'' of title II of the Act or be ``against equity and good
conscience.'' Sections 205(a) and 1102(a) of the Act authorize the
issuance of regulations regarding our overpayment recovery policies.
Sections 411(b) and 426(a) of the Black Lung Benefits Act (30
U.S.C. 921(b) and 936(a)), authorize the Commissioner to issue
regulations to administer the provisions of the Black Lung benefit
program. The provisions for recovery of an overpayment from an
individual under the Black Lung benefit program (Part B) regulations
generally parallel the regulations of the OASDI programs.
On October 22, 1974, the U.S. District Court for the Western
District of Washington in Buffington, et al. v. Weinberger, No. 734-
73C2, stopped the Social Security Administration (SSA) from recovering
overpaid Social Security benefits without first giving each member of
the plaintiff class adequate written notice of the overpayment
determination and the right to a pre-recoupment hearing.
The court ordered that the written notice must include:
A statement of the alleged overpayment, an explanation of
the basis for the overpayment and SSA's proposed action to recover the
overpayment;
A statement of the individual's right to a pre-recoupment
hearing;
Instructions and forms for requesting a pre-recoupment
hearing;
An explanation that if the individual did not request a
pre-recoupment hearing within 30 days of the date of mailing of the
overpayment notice, it would be presumed that the individual waived
his/her right to the hearing and recovery of the alleged overpayment
would begin;
A statement of any other administrative relief available
(i.e., reconsideration of the fact and/or amount of overpayment and
waiver of recovery of the overpayment); and
A statement that an SSA office would help the individual
complete and submit forms for appeal or waiver requests.
The court also ordered the following:
1. SSA had to restore all benefits withheld from the named
plaintiffs pending an opportunity for a pre-recoupment hearing.
2. Each individual had to be given the opportunity to examine his/
her claims file at least 5 days prior to the date of the pre-recoupment
hearing.
3. The pre-recoupment hearing had to be conducted by an SSA
employee who had no prior knowledge of the events leading to the
overpayment determination and the decision to recover the overpayment.
4. At the hearing, the individual had to be given the opportunity
to:
Appear personally, testify, and cross-examine any
witnesses;
Be represented by an attorney or other representative; and
Submit documents for consideration at the hearing;
The court did not require that a transcript be made of the hearing.
5. After the hearing, SSA had to issue a written decision to the
individual (and his/her representative, if any) specifying the findings
of fact and conclusions in support of the decision and advising of the
individual's right to appeal the decision.
In accordance with the court order, SSA began to issue overpayment
notices containing all of the aforementioned information and to offer
pre-recoupment hearings to all class members.
On June 20, 1979, the Supreme Court held in Califano v. Yamasaki,
442 U.S. 682 (1979), that individuals who file a written request for
waiver are entitled to the opportunity for a pre-recoupment oral
hearing, but those who request only reconsideration are not so
entitled. Thereafter, SSA applied revised overpayment notice and pre-
recoupment hearing procedures to all individuals determined to be
overpaid under the title II or Black Lung benefit programs. On July 31,
1981, the Buffington court required SSA to schedule pre-recoupment
hearings automatically for individuals whose request for waiver of
overpayment recovery could not be approved after initial paper review.
On February 10, 1983, the Buffington court approved procedures
developed by SSA in response to the 1981 decree whereby pre-recoupment
hearings would be scheduled automatically but ordered SSA to schedule
the hearings through a written notice to the claimant. The scheduling
letter had to contain the date, time and place of the hearing; the
procedure for reviewing the claims file before the hearing; the
procedure for seeking a change in the scheduled date, time, and/or
place; and all other information necessary to fully inform the claimant
about the pre-recoupment hearing. SSA began to schedule automatically
pre-recoupment hearings in writing in April 1983. The court also
retained jurisdiction over the matter and prohibited any changes in the
overpayment procedures it had approved without prior notification of
plaintiffs' counsel and prior approval from the court. [[Page 28768]]
In its order of October 19, 1987, the Buffington court approved
SSA's plan to transfer waiver decisionmaking authority for Retirement
and Survivors Insurance overpayments from the processing centers to the
field offices. SSA implemented this change in July 1988.
On April 13, 1994, the Buffington court approved a stipulation
modifying the court's injunction in this matter. Under the stipulation,
plaintiffs agree to withdraw counsel notification and court approval
requirements for future changes to SSA overpayment policies. In return,
SSA agreed to promulgate a Social Security Ruling (SSR) and then
proposed regulations embodying the overpayment requirements set forth
in Yamasaki, above. SSA published the SSR on July 11, 1994 (59 FR
35378), and is publishing these proposed regulations to fulfill its
commitments under the stipulation.
Current Regulations
Our current regulations do not address the adequate notice, face-
to-face oral hearing, or appeal step issues noted above. However, SSA
has been complying with the court orders described above through
program instructions approved by the Buffington court.
Regulations Changes
We are restating in regulations the policies enunciated in the
court decisions and established in our program instructions. The
proposed regulations provide when an overpayment is discovered, we
notify the individual immediately. The notice includes:
The overpayment amount and how and when it occurred;
A request for full, immediate refund, unless the
overpayment can be withheld from the next month's benefit;
The proposed adjustment of benefits if refund is not
received within 30 days after the date of the notice and adjustment of
benefits is available;
An explanation of the availability of a different rate of
withholding when full withholding is proposed, installment payments
when refund is requested and adjustment is not currently available,
and/or cross-program recovery when refund is requested and the
individual is receiving another type of payment from SSA (language
about cross-program recovery is not included in notices sent to
individuals in jurisdictions where this recovery option is not
available; currently, cross-program recovery is not available to
residents of New York and Pennsylvania);
An explanation of the right to request waiver of
adjustment or recovery and the automatic scheduling of a file review
and pre-recoupment hearing (commonly referred to as a personal
conference) if a request for waiver cannot be approved after initial
paper review;
An explanation of the right to request reconsideration of
the fact and/or amount of the overpayment determination;
Instructions about the availability of forms for
requesting reconsideration and waiver;
An explanation that if the individual does not request
waiver or reconsideration within 30 days of the date of the overpayment
notice, adjustment or recovery of the overpayment will begin;
A statement that an SSA office will help the individual
complete and submit forms for appeal or waiver requests; and
A statement that the individual should notify SSA promptly
if reconsideration, waiver, a lesser rate of withholding, repayment by
installments or cross-program adjustment is wanted.
Form SSA-3105 (Important Information About Your Appeal and Waiver
Rights) is included with each overpayment notice. The SSA-3105 further
explains the pre-recoupment review process and contains a tear-off form
which the individual may complete and return to SSA if he/she wants
reconsideration and/or waiver.
The proposed regulations also provide that to ensure meaningful
opportunity to contest the correctness of an overpayment determination
and/or establish entitlement to waiver, the date on which full refund
is due and, if appropriate, the date on which adjustment will begin
must be at least 30 days after the date of the overpayment notice. If
the individual responds within 30 days after the date of the
overpayment notice, SSA must take action to ensure that benefit
payments are not interrupted. Any time waiver is requested, SSA stops
adjustment or recovery.
When waiver is requested, the individual gives SSA information
(usually on Form SSA-632-BK (Request for Waiver of Overpayment Recovery
or Change in Repayment Rate)) to support his/her contention that he/she
is without fault in causing the overpayment and that recovery would
either cause financial hardship or be inequitable. That information,
along with supporting documentation, is reviewed to determine if waiver
can be approved.
If waiver cannot be approved after this review, the individual is
notified in writing and given the dates, times and place of the file
review and personal conference; the procedure for reviewing the claims
file prior to the personal conference; the procedure for seeking a
change in the scheduled dates, times, and/or place; and all other
information necessary to fully inform the individual about the personal
conference. The file review is always scheduled at least 5 days before
the personal conference.
At the file review, the individual and the individual's
representative have the right to review the claims file and applicable
law and regulations with the decisionmaker or another SSA
representative who is prepared to answer questions. We will provide
copies of material related to the overpayment and/or waiver from the
claims file or pertinent sections of the law or regulations that are
requested by the individual or the individual's representative.
Although the individual may be represented at the personal
conference, he/she must also be present. This requirement is consistent
with the Supreme Court's reasoning in Califano v. Yamasaki. In
Yamasaki, the Court concluded that written review could not satisfy
SSA's obligation to make an accurate waiver determination, because an
evaluation of fault requires an evaluation of all pertinent
circumstances, such as the recipient's intelligence, and physical and
mental condition. The court said, ``We do not see how these can be
evaluated absent personal contact between the recipient and the person
who decides his case.'' Id. at 698.
SSA will provide suitable private space for the personal
conference. However, if the individual cannot come to the conference
site for a legitimate reason (e.g., he/she is incapacitated), SSA
personnel will travel as far as necessary to conduct the conference.
At the personal conference, the individual is given the opportunity
to:
Appear personally, testify, cross-examine any witnesses,
and make arguments;
Be represented by an attorney or other representative,
although the individual must be present at the conference; and
Submit documents for consideration by the decisionmaker.
At the personal conference, the decisionmaker:
Tells the individual that the decisionmaker was not
previously involved in the issue under review, that the waiver decision
is solely the decisionmaker's, and that the waiver
[[Page 28769]] decision is based only on the evidence or information
presented or reviewed at the conference;
Ascertains the role and identity of everyone present;
Indicates whether or not the individual reviewed the
claims file;
Explains the provisions of law and regulations applicable
to the issue;
Briefly summarizes the evidence already in file which will
be considered;
Ascertains from the individual whether the information
presented is correct and whether he/she fully understands it;
Allows the individual and the individual's representative,
if any, to present the individual's case;
Secures updated financial information and verification, if
necessary;
Allows each witness to present information and allows the
individual and the individual's representative to question each
witness;
Ascertains whether there is any further evidence to be
presented;
Reminds the individual of any evidence promised by the
individual which has not been presented;
Lets the individual and the individual's representative,
if any, present any proposed summary or closing statement;
Explains that a decision will be made and the individual
will be notified in writing; and
Explains further appeal rights in the event the decision
is adverse to the individual.
SSA issues a written decision to the individual (and his/her
representative, if any) specifying the findings of fact and conclusions
in support of the decision to approve or deny waiver and advising of
the individual's right to appeal the decision. If waiver is denied,
adjustment or recovery of the overpayment begins even if the individual
appeals.
If it appears that the waiver cannot be approved, and the
individual declines a personal conference or fails to appear for a
second scheduled personal conference, a decision regarding the waiver
will be made based on the written evidence of record. Reconsideration
is then the next step in the appeals process.
The proposed regulations also state that although a personal
conference decision on the waiver issue is an initial determination,
when an individual is appealing an initial determination of waiver
denial based on a personal conference, the first appeal step is an
Administrative Law Judge (ALJ) hearing, bypassing the reconsideration
which generally follows initial determinations. We provide that the
appeal goes directly to an ALJ hearing in this situation because a
reconsideration is a review of the written evidence and would be less
comprehensive in scope than the preceding personal conference. However,
where an individual is appealing an initial determination of waiver
denial based solely on a review of the written evidence rather than a
personal conference (i.e., the individual chose to forego the personal
conference) the first appeal step is a reconsideration.
Additionally, an individual may concurrently appeal the substantive
determination that the overpayment occurred and request waiver of
recovery of the overpayment. We provide that when the substantive
determination is upheld on reconsideration and the waiver is denied,
even if it is denied solely on the basis of a review of the written
evidence, the next step in the appeal process for both determinations
is an ALJ hearing.
In addition to revising the regulations to codify the policy
established in these court decisions, we are also removing references
to title XVIII from Secs. 404.502a and 404.506. These references
address Medicare overpayment situations, which fall within the purview
of the Health Care Financing Administration (HCFA). Prior to becoming a
separate agency, SSA was responsible for both the social security cash
benefit program and the Medicare program. Consequently, HCFA has
historically relied on many of SSA's regulations that addressed similar
situations under titles II and XVIII of the Act. The recoupment of
overpayments has been one of these situations. However, as differences
in the two programs have increased, the applicability of SSA
regulations to Medicare overpayment situations has diminished. As a
result, HCFA is in the process of promulgating its own regulations with
regard to Medicare overpayments. Therefore, we are removing the
references to title XVIII from the regulations text of these proposed
regulations. However, until HCFA's regulations are published as final,
the to-be-superseded SSA procedures will continue to apply to title
XVIII (Medicare) overpayments.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these regulations do not meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, they
were not subject to OMB review.
Paperwork Reduction Act of 1980
These proposed regulations impose no new reporting or recordkeeping
requirements which are subject to review by OMB.
Regulatory Flexibility Act
We certify that these proposed regulations, if promulgated, will
not have a significant economic impact on a substantial number of small
entities because they affect only individuals. Therefore, a regulatory
flexibility analysis as provided in Public Law 96-354, the Regulatory
Flexibility Act, is not required.
(Catalog of Federal Domestic Assistance: Program Nos. 93.802, Social
Security--Disability insurance; 93.803, Social Security--Retirement
Insurance; 93.805, Social Security--Survivors Insurance; and 93.806,
Special Benefits for Disabled Coal Miners)
List of Subjects
20 CFR Part 404
Administrative practice and procedure; Death benefits; Old-Age,
Survivors, and Disability insurance; Reporting and recordkeeping
requirements.
20 CFR Part 410
Administrative practice and procedure; Black lung benefits; Death
benefits; Disability benefits; Miners; Reporting and recordkeeping
requirements.
Dated: May 23, 1995.
Approved:
Shirley Chater,
Commissioner of Social Security.
For the reasons set out in the preamble, Parts 404 and 410 of
Chapter III of Title 20 of the Code of Federal Regulations are proposed
to be amended as follows.
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart F--[Amended]
1. The authority citation for subpart F of part 404 continues to
read as follows:
Authority: Secs. 204(a)-(d), 205(a), and 1102 of the Social
Security Act; 31 U.S.C. 3720A; 42 U.S.C. 404(a)-(d), 405(a), and
1302.
2. Section 404.502a is revised to read as follows:
Sec. 404.502a Notice of right to waiver consideration.
Whenever an initial determination is made that more than the
correct amount of payment has been made, and we seek
[[Page 28770]] adjustment or recovery of the overpayment, the
individual from whom we are seeking adjustment or recovery is
immediately notified. The notice includes:
(a) The overpayment amount and how and when it occurred;
(b) A request for full, immediate refund, unless the overpayment
can be withheld from the next month's benefit;
(c) The proposed adjustment of benefits if refund is not received
within 30 days after the date of the notice and adjustment of benefits
is available;
(d) An explanation of the availability of a different rate of
withholding when full withholding is proposed, installment payments
when refund is requested and adjustment is not currently available,
and/or cross-program recovery when refund is requested and the
individual is receiving another type of payment from SSA (language
about cross-program recovery is not included in notices sent to
individuals in jurisdictions where this recovery option is not
available);
(e) An explanation of the right to request waiver of adjustment or
recovery and the automatic scheduling of a file review and pre-
recoupment hearing (commonly referred to as a personal conference) if a
request for waiver cannot be approved after initial paper review;
(f) An explanation of the right to request reconsideration of the
fact and/or amount of the overpayment determination;
(g) Instructions about the availability of forms for requesting
reconsideration and waiver;
(h) An explanation that if the individual does not request waiver
or reconsideration within 30 days of the date of the overpayment
notice, adjustment or recovery of the overpayment will begin;
(i) A statement that an SSA office will help the individual
complete and submit forms for appeal or waiver requests; and
(j) A statement that the individual receiving the notice should
notify SSA promptly if reconsideration, waiver, a lesser rate of
withholding, repayment by installments or cross-program adjustment is
wanted.
3. Section 404.506 is revised to read as follows:
Sec. 404.506 When waiver may be applied and how to process the
request.
(a) Section 204(b) of the Act provides that there shall be no
adjustment or recovery in any case where an overpayment under title II
has been made to an individual who is without fault if adjustment or
recovery would either defeat the purpose of title II of the Act, or be
against equity and good conscience.
(b) If an individual requests waiver of adjustment or recovery of a
title II overpayment within 30 days after receiving a notice of
overpayment that contains the information in Sec. 404.502a, no
adjustment or recovery action will be taken until after the initial
waiver determination is made. If the individual requests waiver more
than 30 days after receiving the notice of overpayment, SSA will stop
any adjustment or recovery actions until after the initial waiver
determination is made.
(c) When waiver is requested, the individual gives SSA information
to support his/her contention that he/she is without fault in causing
the overpayment (see Sec. 404.507) and that adjustment or recovery
would either defeat the purpose of title II of the Act (see
Sec. 404.508) or be against equity and good conscience (see
Sec. 404.509). That information, along with supporting documentation,
is reviewed to determine if waiver can be approved. If waiver cannot be
approved after this review, the individual is notified in writing and
given the dates, times and place of the file review and personal
conference; the procedure for reviewing the claims file prior to the
personal conference; the procedure for seeking a change in the
scheduled dates, times, and/or place; and all other information
necessary to fully inform the individual about the personal conference.
The file review is always scheduled at least 5 days before the personal
conference.
(d) At the file review, the individual and the individual's
representative have the right to review the claims file and applicable
law and regulations with the decisionmaker or another SSA
representative who is prepared to answer questions. We will provide
copies of material related to the overpayment and/or waiver from the
claims file or pertinent sections of the law or regulations that are
requested by the individual or the individual's representative.
(e) At the personal conference, the individual is given the
opportunity to:
(1) Appear personally, testify, cross-examine any witnesses, and
make arguments;
(2) Be represented by an attorney or other representative (see
Sec. 404.1700), although the individual must be present at the
conference; and
(3) Submit documents for consideration by the decisionmaker.
(f) At the personal conference, the decisionmaker:
(1) Tells the individual that the decisionmaker was not previously
involved in the issue under review, that the waiver decision is solely
the decisionmaker's, and that the waiver decision is based only on the
evidence or information presented or reviewed at the conference;
(2) Ascertains the role and identity of everyone present;
(3) Indicates whether or not the individual reviewed the claims
file;
(4) Explains the provisions of law and regulations applicable to
the issue;
(5) Briefly summarizes the evidence already in file which will be
considered;
(6) Ascertains from the individual whether the information
presented is correct and whether he/she fully understands it;
(7) Allows the individual and the individual's representative, if
any, to present the individual's case;
(8) Secures updated financial information and verification, if
necessary;
(9) Allows each witness to present information and allows the
individual and the individual's representative to question each
witness;
(10) Ascertains whether there is any further evidence to be
presented;
(11) Reminds the individual of any evidence promised by the
individual which has not been presented;
(12) Lets the individual and the individual's representative, if
any, present any proposed summary or closing statement;
(13) Explains that a decision will be made and the individual will
be notified in writing; and
(14) Explains repayment options and further appeal rights in the
event the decision is adverse to the individual.
(g) SSA issues a written decision to the individual (and his/her
representative, if any) specifying the findings of fact and conclusions
in support of the decision to approve or deny waiver and advising of
the individual's right to appeal the decision. If waiver is denied,
adjustment or recovery of the overpayment begins even if the individual
appeals.
(h) If it appears that the waiver cannot be approved, and the
individual declines a personal conference or fails to appear for a
second scheduled personal conference, a decision regarding the waiver
will be made based on the written evidence of record. Reconsideration
is then the next step in the appeals process (but see
Sec. 404.930(a)(7)).
Subpart J--[Amended]
4. The authority citation for subpart J of part 404 continues to
read as follows:
Authority: Secs. 201(j), 205(a), (b), and (d)-(h), 221(d), and
1102 of the Social Security [[Page 28771]] Act; 31 U.S.C. 3720A; 42
U.S.C. 401(j), 405(a), (b), and (d)-(h), 421(d), and 1302; sec. 5 of
Pub. L. 97-455, 96 Stat. 2500; sec. 6 of Pub. L. 98-460, 98 Stat.
1802.
5. Section 404.907 is revised to read as follows:
Sec. 404.907 Reconsideration-general.
If you are dissatisfied with the initial determination,
reconsideration is the first step in the administrative review process
that we provide, except that we provide the opportunity for a hearing
before an administrative law judge as the first step for those
situations described in Sec. 404.930(a)(6) and (a)(7), where you appeal
an initial determination denying your request for waiver of adjustment
or recovery of an overpayment (see Sec. 404.506). If you are
dissatisfied with our reconsidered determination, you may request a
hearing before an administrative law judge.
6. Section 404.930 is amended by removing the word ``or'' at the
end of (a)(4) and the period at the end of (a)(5), and adding a
semicolon in its place and adding (a)(6) and (a)(7) as follows:
Sec. 404.930 Availability of a hearing before an administrative law
judge.
(a) * * *
(6) An initial determination denying waiver of adjustment or
recovery of an overpayment based on a personal conference (see
Sec. 404.506); or
(7) An initial determination denying waiver of adjustment or
recovery of an overpayment based on a review of the written evidence of
record (see Sec. 404.506), and the determination was made concurrent
with, or subsequent to, our reconsideration determination regarding the
underlying overpayment but before an ALJ holds a hearing.
* * * * *
PART 410--FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, TITLE
IV--BLACK LUNG BENEFITS (1969- )
Subpart E--[Amended]
7. The authority citation for subpart E of part 410 is revised to
read as follows:
Authority: Secs. 411(a), 412(a) and (b), 413(b), 426(a), and 508
of the Federal Mine Health and Safety Act of 1969, as amended; 30
U.S.C. 921(a), 922(a) and (b), 923(b), 936(a), and 957; sec 410.565
also issued under sec. 3, 80 Stat. 309, 31 U.S.C. 952, unless
otherwise noted.
8. Section 410.561 is revised to read as follows:
Sec. 410.561 Notice of right to waiver consideration.
When we seek adjustment or recovery of an overpayment, the
individual from whom we are seeking adjustment or recovery is
immediately notified. The notice includes:
(a) The overpayment amount and how and when it occurred;
(b) A request for full, immediate refund, unless the overpayment
can be withheld from the next month's benefit;
(c) The proposed adjustment of benefits if refund is not received
within 30 days after the date of the notice and adjustment of benefits
is available;
(d) An explanation of the availability of a different rate of
withholding when full withholding is proposed, installment payments
when refund is requested and adjustment is not currently available,
and/or cross-program recovery when refund is requested and the
individual is receiving another type of payment from SSA (language
about cross-program recovery is not included in notices sent to
individuals in jurisdictions where this recovery option is not
available);
(e) An explanation of the right to request waiver of adjustment or
recovery and the automatic scheduling of a file review and pre-
recoupment hearing (commonly referred to as a personal conference) if a
request for waiver cannot be approved after initial paper review;
(f) An explanation of the right to request reconsideration of the
fact and/or amount of the overpayment determination;
(g) Instructions about the availability of forms for requesting
reconsideration and waiver;
(h) An explanation that if the individual does not request waiver
or reconsideration within 30 days of the date of the overpayment
notice, adjustment or recovery of the overpayment will begin;
(i) A statement that an SSA office will help the individual
complete and submit forms for appeal or waiver requests; and
(j) A statement that the individual receiving the notice should
notify SSA promptly if reconsideration, waiver, a lesser rate of
withholding, repayment by installments or cross-program adjustment is
wanted.
9. Section 410.561a is revised to read as follows:
Sec. 410.561a When waiver may be applied and how to process the
request.
(a) There shall be no adjustment or recovery in any case where an
overpayment under part B of title IV of the Act has been made to an
individual who is without fault if adjustment or recovery would either
defeat the purpose of title IV of the Act, or be against equity and
good conscience.
(b) If an individual requests waiver of adjustment or recovery of
an overpayment made under part B of title IV within 30 days after
receiving a notice of overpayment that contains the information in
Sec. 410.561, no adjustment or recovery action will be taken until
after the initial waiver determination is made. If the individual
requests waiver more than 30 days after receiving the notice of
overpayment, SSA will stop any adjustment or recovery actions until
after the initial waiver determination is made.
(c) When waiver is requested, the individual gives SSA information
to support his/her contention that he/she is without fault in causing
the overpayment (see Sec. 410.561b), and that adjustment or recovery
would either defeat the purposes of this subpart (see Sec. 410.561c) or
be against equity and good conscience (see Sec. 410.561d). That
information, along with supporting documentation, is reviewed to
determine if waiver can be approved. If waiver cannot be approved after
this review, the individual is notified in writing and given the dates,
times and place of the file review and personal conference; the
procedure for reviewing the claims file prior to the personal
conference; the procedure for seeking a change in the scheduled dates,
times, and/or place; and all other information necessary to fully
inform the individual about the personal conference. The file review is
always scheduled at least 5 days before the personal conference.
(d) At the file review, the individual and the individual's
representative have the right to review the claims file and applicable
law and regulations with the decisionmaker or another SSA
representative who is prepared to answer questions. We will provide
copies of material related to the overpayment and/or waiver from the
claims file or pertinent sections of the law or regulations that are
requested by the individual or the individual's representative.
(e) At the personal conference, the individual is given the
opportunity to:
(1) Appear personally, testify, cross-examine any witnesses, and
make arguments;
(2) Be represented by an attorney or other representative (see
Sec. 410.684), although the individual must be present at the
conference; and
(3) Submit documents for consideration by the decisionmaker.
(f) At the personal conference, the decisionmaker: [[Page 28772]]
(1) Tells the individual that the decisionmaker was not previously
involved in the issue under review, that the waiver decision is solely
the decisionmaker's, and that the waiver decision is based only on the
evidence or information presented or reviewed at the conference;
(2) Ascertains the role and identity of everyone present;
(3) Indicates whether or not the individual reviewed the claims
file;
(4) Explains the provisions of law and regulations applicable to
the issue;
(5) Briefly summarizes the evidence already in file which will be
considered;
(6) Ascertains from the individual whether the information
presented is correct and whether he/she fully understands it;
(7) Allows the individual and the individual's representative, if
any, to present the individual's case;
(8) Secures updated financial information and verification, if
necessary;
(9) Allows each witness to present information and allows the
individual and the individual's representative to question each
witness;
(10) Ascertains whether there is any further evidence to be
presented;
(11) Reminds the individual of any evidence promised by the
individual which has not been presented;
(12) Lets the individual and the individual's representative, if
any, present any proposed summary or closing statement;
(13) Explains that a decision will be made and the individual will
be notified in writing; and
(14) Explains repayment options and further appeal rights in the
event the decision is adverse to the individual.
(g) SSA issues a written decision to the individual (and his/her
representative, if any) specifying the findings of fact and conclusions
in support of the decision to approve or deny waiver and advising of
the individual's right to appeal the decision. If waiver is denied,
adjustment or recovery of the overpayment begins even if the individual
appeals.
(h) If it appears that the waiver cannot be approved, and the
individual declines a personal conference or fails to appear for a
second scheduled personal conference, a decision regarding the waiver
will be made based on the written evidence of record. Reconsideration
is then the next step in the appeals process (but see Sec. 410.630(c)).
Subpart F--[Amended]
10. The authority citation for subpart F of part 410 is revised to
read as follows:
Authority: Secs. 413(b), 426(a), 507, and 508 of the Federal
Mine Health and Safety Act of 1969, as amended; 30 U.S.C. 923(b),
936(a), 956, and 957.
11. Section 410.623 is revised to read as follows:
Sec. 410.623 Reconsideration; right to reconsideration.
(a) We shall reconsider an initial determination if a written
request for reconsideration is filed, as provided in Sec. 410.624, by
or for the party to the initial determination (see Sec. 410.610). We
shall also reconsider an initial determination if a written request for
reconsideration is filed, as provided in Sec. 410.624, by an individual
as a widow, child, parent, brother, sister, or representative of a
decedent's estate, who makes a showing in writing that his or her
rights with respect to benefits may be prejudiced by such
determination.
(b) Reconsideration is the first step in the administrative review
process that we provide for an individual dissatisfied with the initial
determination, except that we provide the opportunity for a hearing
before an administrative law judge as the first step for those
situations described in Sec. 410.630 (b) and (c), where an individual
appeals an initial determination denying waiver of adjustment or
recovery of an overpayment (see Sec. 410.561a).
12. Section 410.630 is revised to read as follows:
Sec. 410.630 Hearing; right to hearing.
An individual referred to in Secs. 410.632 or 410.633 who has filed
a written request for a hearing under the provisions in Sec. 410.631
has a right to a hearing if:
(a) An initial determination and reconsideration of the
determination have been made by the Social Security Administration
concerning a matter designated in Sec. 410.610;
(b) An initial determination denying waiver of adjustment of
recovery of an overpayment based on a personal conference has been made
by the Social Security Administration (see Sec. 410.561a); or
(c) An initial determination denying waiver of adjustment or
recovery of an overpayment based on a review of the written evidence of
record has been made by the Social Security Administration (see
Sec. 410.561a) and the determination was made concurrent with, or
subsequent to, our reconsideration determination regarding the
underlying overpayment but before an ALJ holds a hearing.
[FR Doc. 95-13453 Filed 6-1-95; 8:45 am]
BILLING CODE 4190-29-P
