42 U.S.C. § 1008 — Overpayments and underpayments

Page 2508 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1008 Subsec. (b)(2)(D) to (F). Pub. L. 108–203, § 103(b)(1), added subpars. (D) and (E) and redesignated former sub- par. (D) as (F). Subsec. (b)(3). Pub. L. 108–203, § 103(b)(2), added par. (3). Subsec. (d)(1)(D), (E). Pub. L. 108–203, § 103(b)(3), added subpars. (D) and (E). Subsec. (h)(3) to (5). Pub. L. 108–203, § 106(b), added par. (3) and redesignated former pars. (3) and (4) as (4) and (5), respectively. Subsec. (i). Pub. L. 108–203, § 101(b)(1), inserted second and third sentences. Subsec. (j). Pub. L. 108–203, § 101(b)(2), added subsec. (j). Subsec. (k). Pub. L. 108–203, § 102(b)(2), added subsec. (k). Subsec. (l). Pub. L. 108–203, § 105(b), added subsec. (l). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by section 202(b) of Pub. L. 115–165 appli- cable to any individual appointed to serve as a rep- resentative payee pursuant to this section on or after Jan. 1, 2019, subject to provisions relating to prior ap- pointments, see section 202(d) of Pub. L. 115–165, set out as a note under section 405 of this title. Amendment by section 203(b) of Pub. L. 115–165 appli- cable to any individual appointed to serve as a rep- resentative payee under this subchapter on or after Jan. 1, 2019, with provisions relating to prior appoint- ments, see section 203(d) of Pub. L. 115–165, set out as a note under section 405 of this title. EFFECTIVE DATE OF 2004 AMENDMENT Amendment by section 101(b) of Pub. L. 108–203 appli- cable to any case of benefit misuse by a representative payee with respect to which the Commissioner of So- cial Security makes the determination of misuse on or after Jan. 1, 1995, see section 101(d) of Pub. L. 108–203, set out as a note under section 405 of this title. Amendment by section 103(b) of Pub. L. 108–203 effec- tive on the first day of the thirteenth month beginning after Mar. 2, 2004, see section 103(d) of Pub. L. 108–203, set out as a note under section 405 of this title. Amendment by section 105(b) of Pub. L. 108–203 appli- cable to benefit misuse by a representative payee in any case with respect to which the Commissioner of So- cial Security or a court of competent jurisdiction makes the determination of misuse after 180 days after Mar. 2, 2004, see section 105(d) of Pub. L. 108–203, set out as a note under section 405 of this title. Amendment by section 106(b) of Pub. L. 108–203 effec- tive 180 days after Mar. 2, 2004, see section 106(d) of Pub. L. 108–203, set out as a note under section 405 of this title. § 1008. Overpayments and underpayments (a) In general Whenever the Commissioner of Social Secu- rity finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or re- covery shall be made, as follows: (1) With respect to payment to a person of more than the correct amount, the Commis- sioner of Social Security shall decrease any payment under this subchapter to which the overpaid person (if a qualified individual) is entitled, or shall require the overpaid person or his or her estate to refund the amount in excess of the correct amount, or, if recovery is not obtained under these two methods, shall seek or pursue recovery by means of reduction in tax refunds based on notice to the Secretary of the Treasury, as authorized under section 3720A of title 31. (2) With respect to payment of less than the correct amount to a qualified individual who, at the time the Commissioner of Social Secu- rity is prepared to take action with respect to the underpayment— (A) is living, the Commissioner of Social Security shall make payment to the quali- fied individual (or the qualified individual’s representative payee designated under sec- tion 1007 of this title) of the balance of the amount due the underpaid qualified indi- vidual; or (B) is deceased, the balance of the amount due shall revert to the general fund of the Treasury. (b) Waiver of recovery of overpayment In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is with- out fault if the Commissioner of Social Security determines that the adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience. (c) Limited immunity for disbursing officers A disbursing officer may not be held liable for any amount paid by the officer if the adjust- ment or recovery of the amount is waived under subsection (b), or adjustment under subsection (a) is not completed before the death of the qualified individual against whose benefits de- ductions are authorized. (d) Authorized collection practices (1) In general With respect to any delinquent amount, the Commissioner of Social Security may use the collection practices described in sections 3711(e), 3716, and 3718 of title 31, as in effect on October 1, 1994. (2) Definition For purposes of paragraph (1), the term ‘‘de- linquent amount’’ means an amount— (A) in excess of the correct amount of the payment under this subchapter; and (B) determined by the Commissioner of So- cial Security to be otherwise unrecoverable under this section from a person who is not a qualified individual under this subchapter. (e) Cross-program recovery of overpayments For provisions relating to the cross-program recovery of overpayments made under programs administered by the Commissioner of Social Se- curity, see section 1320b–17 of this title. (Aug. 14, 1935, ch. 531, title VIII, § 808, as added Pub. L. 106–169, title II, § 251(a), Dec. 14, 1999, 113 Stat. 1850; amended Pub. L. 108–203, title II, § 210(b)(2), Mar. 2, 2004, 118 Stat. 517.) Editorial Notes PRIOR PROVISIONS For prior provisions, see note set out under section 1001 of this title. AMENDMENTS 2004—Subsec. (a)(1). Pub. L. 108–203, § 210(b)(2)(A), sub- stituted ‘‘any payment’’ for ‘‘any payment—’’, struck Page 2509 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1010 out ‘‘(A)’’ before ‘‘under this subchapter’’, substituted ‘‘section 3720A of title 31.’’ for ‘‘section 3720A of title 31; or’’, and struck out subpar. (B) which read as follows: ‘‘under subchapter II of this chapter to recover the amount in excess of the correct amount, if the person is not currently eligible for payment under this sub- chapter.’’ Subsecs. (b) to (d). Pub. L. 108–203, § 210(b)(2)(B), redes- ignated subsecs. (c) to (e) as (b) to (d), respectively, and struck out heading and text of subsec. (b). Text read as follows: ‘‘In any case in which the Commissioner of So- cial Security takes action in accordance with sub- section (a)(1)(B) of this section to recover an amount incorrectly paid to an individual, that individual shall not, as a result of such action— ‘‘(1) become qualified for benefits under this sub- chapter; or ‘‘(2) if such individual is otherwise so qualified, be- come qualified for increased benefits under this sub- chapter.’’ Subsec. (e). Pub. L. 108–203, § 210(b)(2)(B), (C), added subsec. (e) and redesignated former subsec. (e) as (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT Amendment by Pub. L. 108–203 effective Mar. 2, 2004, and effective with respect to overpayments under sub- chapters II, VIII, and XVI of this chapter that are out- standing on or after such date, see section 210(c) of Pub. L. 108–203, set out as a note under section 404 of this title. § 1009. Hearings and review (a) Hearings (1) In general The Commissioner of Social Security shall make findings of fact and decisions as to the rights of any individual applying for payment under this subchapter. The Commissioner of Social Security shall provide reasonable no- tice and opportunity for a hearing to any indi- vidual who is or claims to be a qualified indi- vidual and is in disagreement with any deter- mination under this subchapter with respect to entitlement to, or the amount of, benefits under this subchapter, if the individual re- quests a hearing on the matter in disagree- ment within 60 days after notice of the deter- mination is received, and, if a hearing is held, shall, on the basis of evidence adduced at the hearing affirm, modify, or reverse the Com- missioner of Social Security’s findings of fact and the decision. The Commissioner of Social Security may, on the Commissioner of Social Security’s own motion, hold such hearings and conduct such investigations and other pro- ceedings as the Commissioner of Social Secu- rity deems necessary or proper for the admin- istration of this subchapter. In the course of any hearing, investigation, or other pro- ceeding, the Commissioner may administer oaths and affirmations, examine witnesses, and receive evidence. Evidence may be re- ceived at any hearing before the Commissioner of Social Security even though inadmissible under the rules of evidence applicable to court procedure. The Commissioner of Social Secu- rity shall specifically take into account any physical, mental, educational, or linguistic limitation of the individual (including any lack of facility with the English language) in determining, with respect to the entitlement of the individual for benefits under this sub- chapter, whether the individual acted in good faith or was at fault, and in determining fraud, deception, or intent. (2) Effect of failure to timely request review A failure to timely request review of an ini- tial adverse determination with respect to an application for any payment under this sub- chapter or an adverse determination on recon- sideration of such an initial determination shall not serve as a basis for denial of a subse- quent application for any payment under this subchapter if the applicant demonstrates that the applicant failed to so request such a re- view acting in good faith reliance upon incor- rect, incomplete, or misleading information, relating to the consequences of reapplying for payments in lieu of seeking review of an ad- verse determination, provided by any officer or employee of the Social Security Adminis- tration. (3) Notice requirements In any notice of an adverse determination with respect to which a review may be re- quested under paragraph (1), the Commis- sioner of Social Security shall describe in clear and specific language the effect on pos- sible entitlement to benefits under this sub- chapter of choosing to reapply in lieu of re- questing review of the determination. (b) Judicial review The final determination of the Commissioner of Social Security after a hearing under sub- section (a)(1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner of Social Se- curity’s final determinations under section 405 of this title. (Aug. 14, 1935, ch. 531, title VIII, § 809, as added Pub. L. 106–169, title II, § 251(a), Dec. 14, 1999, 113 Stat. 1851.) Editorial Notes PRIOR PROVISIONS For prior provisions, see note set out under section 1001 of this title. § 1010. Other administrative provisions (a) Regulations and administrative arrange- ments The Commissioner of Social Security may pre- scribe such regulations, and make such adminis- trative and other arrangements, as may be nec- essary or appropriate to carry out this sub- chapter. (b) Payment of benefits Benefits under this subchapter shall be paid at such time or times and in such installments as the Commissioner of Social Security determines are in the interests of economy and efficiency. (c) Entitlement redeterminations An individual’s entitlement to benefits under this subchapter, and the amount of the benefits, may be redetermined at such time or times as the Commissioner of Social Security determines to be appropriate.