24Nov

Overpayment choices: reconsideration or waiver

By Tomasz Stasiuk, November 24th, 2008 | Overpayment | 10 Comments

If Social Security alleges that you owe them money to repay an overpayment, you have two choices to fight it:

You can either file a “Waiver of Overpayment,” or
You can file a “Request for Reconsideration.“

Social Security may direct you towards filing the waiver, but there are some things you should know before making a decision.

What happens if I request a waiver?

Filing for a waiver is basically saying, “I owe the money, but I cannot pay it back.”

The waiver form asks you to describe your financial life in excruciating detail. If you pay for a cell phone, cable, internet or for anything more than the most basic necessities of life, the chances of Social Security granting that waiver may be fairly small.

Also a waiver request can be filed at any time. This is an important distinction between the waiver and the Reconsideration request. You can even pursue the Reconsideration process and, if denied, then request a waiver.

What happens if I request a reconsideration?

Unlike a waiver request, the reconsideration request says, “I do not owe you this money!” It contests the underlying overpayment.

Filing this also puts you into the administrative appeal process. The reconsideration step is the first part. Social Security will probably deny the reconsideration. However, this is a necessary step to get to the next level, a hearing before an Administrative Law Judge.

In my opinion, if anyone is likely to award you some relief from having to repay the overpayment, it is the Judge at a hearing.

Keep in mind that the reconsideration process may take between four and eight months. The hearing process may take another six to eighteen months just to get in front of a Judge and another one to three months for a decision to be issued. In extreme circumstances, this entire process may take 30 months. However, in Colorado, I would usually estimate about a year and half to two years.

This is not necessarily a bad thing.

While the case is under appeal, you can request a forbearance of the repayment since you are contesting the underlying overpayment. A forbearance is simply a request that Social Security stop trying to collect the overpayment while you are appealing the overpayment. This is simple fairness: you should not have to repay if you contest owing the overpayment.

Strictly speaking, Social Security only has to stop any attempt to collect an overpayment during the reconsideration step of the appeal. Social Security can try to collect the overpayment after you are denied on the reconsideration and waiting for a hearing in front of a Judge.

However, Social Security has to stop collection proceedings during a waiver request. So, it may be a valuable strategy to request a waiver along with filing a request for a hearing to make sure that Social Security does not resume collection proceedings while you wait for your hearing.

The critical thing you need to know is that you usually only have 65 days to file the reconsideration after the date on the overpayment notice: 5 days to receive it and 60 days to file the Request for Reconsideration. As always, check the time limits and form requirements in the overpayment notice as these things are subject to change.

So, while you can file the waiver at any time (and SSA my push you in that direction), if you want to fight the overpayment, you must do so quickly or potentially lose that right.

Updated 05/20/09.

Tomasz Stasiuk is the founding attorney of the Stasiuk Firm - a law firm devoted to exclusively handling Social Security disability cases in Colorado. Contingent fees available.

kelly

Very good info thank god i found it. My case which was originley filed in co in 2000 I got my award letter in Dec 2002 with a check for back pay of 38 k I called the local office to verify that this was correct and told yes and I would be receiving a monthly check for myself and my 2 children until such time as my condition improved and I returned to work or retirement age. I got the repayment letter Sat 11/07/09 saying I was not disabled after april 2002 my repayment 311.546.00 Yea 300 grand I called the local office to get info and find out what my options were and was instantly regarded with open hostility and ridicule of the ss worker they acted like I was a crinimal and when asked to speak with the examiner was transferred with the comment that this is the guy that owes us 300 grand. I need serious help I am not a crook and am disabled have never worked since my injury date in 2000. I have been seeing my personal physician for the entire time to obtain pain meds to deal with the failed back surgeries. I guess i need to file a reconsideration and a waiver although neither of those options were offered by the helpful worker at my local ss office. I now reside in Ks and would appreciate a referal if you could be so kind.
kelly

Very good info thank god i found it. My case which was originley filed in co in 2000 I got my award letter in Dec 2002 with a check for back pay of 38 k I called the local office to verify that this was correct and told yes and I would be receiving a monthly check for myself and my 2 children until such time as my condition improved and I returned to work or retirement age. I got the repayment letter Sat 11/07/09 saying I was not disabled after april 2002 my repayment 311.546.00 Yea 300 grand I called the local office to get info and find out what my options were and was instantly regarded with open hostility and ridicule of the ss worker they acted like I was a crinimal and when asked to speak with the examiner was transferred with the comment that this is the guy that owes us 300 grand. I need serious help I am not a crook and am disabled have never worked since my injury date in 2000. I have been seeing my personal physician for the entire time to obtain pain meds to deal with the failed back surgeries. I guess i need to file a reconsideration and a waiver although neither of those options were offered by the helpful worker at my local ss office. I now reside in Ks and would appreciate a referal if you could be so kind.
Harry

I too just found this site and the information. I have been led down this “primrose” path by SSDI after having them take information going
back to 1997.1998. and 1999. I earned paltry
amounts of $600. $1200. and $2,100 respectively for each of the years doing part time, sporadic work. They have manufactured
evidence that I worked from January through December of each year and got a monthly check in the exact same amount each month. This is not factual yet due to the Statute of Limitations limiting the time frame I and the employer are required to keep records none exist to refute their allegations. I am now End Stage Renal Disease and desperately need the monies which I have paid into the system to provide for this type of situation. I have worked with the SSA office to try to get an abeyance of this matter until I am physically able to deal with it. I was asked to and did submit 5 doctors letters setting
forth the reasons and needs for this. SSA has now gone ahead with the matter and taken all of my monthly check for the first repayment. They are then trying to make me exist on some $340 per month through the year 2016, after receiving my monthly statement of expenses in
August with the Dr.’s letters. I have found I cannot trust anything they say, for I have caught them in several “lies” already. The biggest
was that “this wasn’t going to go forward as I had tolled the Statute” a year ago. They fairly much can and do as they see fit. They pay people as being professionals to do these things to people that desperately need the monies that tthey are getting to exist each month. How they can write a letter telling someone that is disabled that they will have to live on $340 per month is ludicrous.
Harry

In reviewing the post below, there is a section which somehow got deleted in the posting process it is germain and of utmost import to know that:
There was no further attempt at work after the 1999 time period until an attempt to try to work
in 2003 which also was not able to be continued.
Yet SSA is going back to the 1997 period for their calculation of benefits to be repaid as they state I was not entitled to benefits. Key here is that they never conducted any medical exam or analysis to determine my physical status of disability. It went through one period of slight improvement to now End Stage Renal Disease.
There is no way that I can repay the amounts and in the dispute with them have been told things which now I cannot prove as it is beyond the Statute of Limitations in which I, or anyone is required to keep records. So, in hindsight, keep records of everyone you speak with and ask for things in writing. If they don’t want to then submit them to your file so they will be there should you need them at some point in the future. Thanks for the additonal space.
http://www.Planet10Tech.com TomaszStasiuk

Hi Harry, you don’t mention whether you appealed?

You may have missed this post discussing keeping an eye on the legal options while you try to get problems fixed at SSA. http://www.socialsecurityinsider.com/2008/02/when-problems-arise-watch-out-for-deadlines/
Eric

Just found this site and it has very useful information. I have filed for the waiver of my overpayment, but was denied. I had asked for the next level which would be an appeal hearing, but since finding this site determined they sent me the wrong form. I have called and am having them send me the correct one. I remember well the whole dog and pony show the process was to get my disabilty, and now it seems to be just the same. My new wife is concerned over the time it can potentially take to get the hearing. She is more for just going in and trying to work out a payment schedule. I would rather appeal at least a portion of the amount owed.
If I go in and ask for the reduction of the monthly amount, does that negate my potential appeal hearing? What is the likely hood of getting the monthly amount reduced since my waiver was decilined? Why is it so damn hard to find anyone to help or represent you for overpayments? What chance is there really of getting a judge to agree with you that SS helped create the situation of the overpayment? I am willing to agree to a point that I should have questioned more on continuing to recieve payments; but when they ask you to fill out a work history report that covers the protion of time that I was able to work, then tell you thay made a mistake and give you more money, I say they are responsible for that portion. I did what they asked and then they tell me they made a mistake, in writting, then give me more money. Then come back a year later and say I should have known and forced them to take the money back? I don’t get it. I guess I should have been working for the SS to know all the regulations and such to make sure I wasn’t doing things wrong. Maybe they should have a priority of hiring disabled workers?
http://www.Planet10Tech.com TomaszStasiuk

I can’t address your legal questions including your chances of success (for obvious reasons). The other articles dealing with overpayments may provide some general background information: http://www.socialsecurityinsider.com/tag/overpayment-repayment/

As far as finding a lawyer, the issue for the lawyer is how to get paid. An attorney cannot work on a percentage basis in an overpayment case. My own office requires a retainer, which is put into a trust account while the case is in progress. However, few people facing an overpayment can afford to pay anything. I have discussed this issue here: http://www.socialsecurityinsider.com/2008/07/overpayments-finding-an-attorney/
Julie Kreutzer

Great articles! Thanks!
http://www.Planet10Tech.com TomaszStasiuk

Thanks Julie!
Redosprey

Retired from Civil Service (CSRS) and also private industry. Now being penalized and must repay because I didn’t notify S.S. that I received COLAs from OPM. Why is it my responsibility to notify S.S. in this regard? Pat