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SSA Issues New Emergency Message for Fault Determination in Overpayment Waivers

Thanks to the outstanding work of our friends at New York Legal Assistance Group (NYLAG) and Justice in Aging (JIA), and their partners at Arnold and Porter, SSA has taken the next step in providing relief to those charged with overpayments during the Covid-19 pandemic. This action comes as a direct result of the settlement agreement in Campos et. al. v. Kijakazi.

Effective February 23, 2024, SSA must use the guidance set out in Emergency Message (EM-24005) “when making a fault determination on a waiver request for an overpayment incurred in any month since March 2020.” This EM applies to both Title II and Title XVI overpayment waiver requests.

As a reminder, POMS GN 02250.001 establishes that “recovery of an overpayment can be waived if both of the following conditions are met:

  • The person is without fault, and
  • Recovery would either defeat the purpose of the act or be against equity and good conscience.”

With this new EM, when determining whether the person is without fault, SSA “must consider any circumstances related to the COVID-19 pandemic that an overpaid individual alleges prevented the individual from reporting changes” that led to the overpayment.

This EM applies at all levels, from the initial waiver determination through Appeals Council review. We encourage our members to check your cases and utilize this EM to help provide relief to any vulnerable claimants who may benefit.

For more information about the Campos settlement, please check out this helpful Fact Sheet.

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