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OVERPAYMENTS AND UNDERPAYMENTS[82]
SEC. 204. [42 U.S.C. 404] (a)(1)
Whenever the Commissioner of Social Security finds that more or less than the
correct amount of payment has been made to any person under this title, proper
adjustment or recovery shall be made, under regulations prescribed by the Commissioner
of Social Security, as follows:
-
- (A) With respect to payment to a person of more than
the correct amount, the Commissioner of Social Security shall decrease any
payment under this title to which such overpaid person is entitled, or shall
require such overpaid person or his estate to refund the amount in excess
of the correct amount, or shall decrease any payment under this title payable
to his estate or to any other person on the basis of the wages and self-employment
income which were the basis of the payments to such overpaid person, or shall
obtain recovery by means of reduction in tax refunds based on notice to the
Secretary of the Treasury as permitted under section 3720A of title 31, United
States Code[83], or shall apply
any combination of the foregoing. A payment made under this title on the basis
of an erroneous report of death by the Department of Defense of an individual
in the line of duty while he is a member of the uniformed services (as defined
in section 210(m)) on active duty (as defined in
section 210(l)) shall not be considered an incorrect
payment for any month prior to the month such Department notifies the Commissioner
of Social Security that such individual is alive.
-
- (B) With respect to payment to a person of less than
the correct amount, the Commissioner of Social Security shall make payment
of the balance of the amount due such underpaid person, or, if such person
dies before payments are completed or before negotiating one or more checks
representing correct payments, disposition of the amount due shall be made
in accordance with subsection (d).
(2) Notwithstanding any other provision of this section,
when any payment of more than the correct amount is made to or on behalf of
an individual who has died, and such payment—
-
- (A) is made by direct deposit to a financial institution;
-
- (B) is credited by the financial institution to a joint
account of the deceased individual and another person; and
-
- (C) such other person was entitled to a monthly benefit
on the basis of the same wages and self-employment income as the deceased
individual for the month preceding the month in which the deceased individual
died,
the amount of such payment in excess of the correct amount shall be treated
as a payment of more than the correct amount to such other person. If any payment
of more than the correct amount is made to a representative payee on behalf
of an individual after the individual's death, the representative payee shall
be liable for the repayment of the overpayment, and the Commissioner of Social
Security shall establish an overpayment control record under the social security
account number of the representative payee.
(b) 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 without fault if such adjustment or recovery
would defeat the purpose of this title or would be against equity and good conscience.
In making for purposes of this subsection any determination of whether any individual
is without fault, the Commissioner of Social Security shall specifically take
into account any physical, mental, educational, or linguistic limitation such
individual may have (including any lack of facility with the English language).
(c) No certifying or disbursing officer shall be held liable
for any amount certified or paid by him to any person where the adjustment or
recovery of such amount is waived under subsection (b), or where adjustment
under subsection (a) is not completed prior to the death of all persons against
whose benefits deductions are authorized.
(d) If an individual dies before any payment due him under
this title is completed, payment of the amount due (including the amount of
any unnegotiated checks) shall be made—
-
- (1) to the person, if any, who is determined by the Commissioner
of Social Security to be the surviving spouse of the deceased individual and
who either (i) was living in the same household with the deceased at the time
of his death or (ii) was, for the month in which the deceased individual died,
entitled to a monthly benefit on the basis of the same wages and self-employment
income as was the deceased individual;
-
- (2) if there is no person who meets the requirements of
paragraph (1), or if the person who meets such requirements dies before the
payment due him under this title is completed, to the child or children, if
any, of the deceased individual who were, for the month in which the deceased
individual died, entitled to monthly benefits on the basis of the same wages
and self-employment income as was the deceased individual (and, in case there
is more than one such child, in equal parts to each such child);
-
- (3) if there is no person who meets the requirements of
paragraph (1) or (2), or if each person who meets such requirements dies before
the payment due him under this title is completed, to the parent or parents,
if any, of the deceased individual who were, for the month in which the deceased
individual died, entitled to monthly benefits on the basis of the same wages
and self-employment income as was the deceased individual (and, in case there
is more than one such parent, in equal parts to each such parent);
-
- (4) if there is no person who meets the requirements of
paragraph (1), (2), or (3), or if each person who meets such requirements
dies before the payment due him under this title is completed, to the person,
if any, determined by the Commissioner of Social Security to be the surviving
spouse of the deceased individual;
-
- (5) if there is no person who meets the requirements of
paragraph (1), (2), (3), or (4), or if each person who meets such requirements
dies before the payment due him under this title is completed, to the person
or persons, if any, determined by the Commissioner of Social Security to be
the child or children of the deceased individual (and, in case there is more
than one such child, in equal parts to each such child);
-
- (6) if there is no person who meets the requirements of
paragraph (1), (2), (3), (4), or (5), or if each person who meets such requirements
dies before the payment due him under this title is completed, to the parent
or parents, if any, of the deceased individual (and, in case there is more
than one such parent, in equal parts to each such parent); or
-
- (7) if there is no person who meets the requirements of
paragraph (1), (2), (3), (4), (5), or (6), or if each person who meets such
requirements dies before the payment due him under this title is completed,
to the legal representative of the estate of the deceased individual, if any.
(e) For payments which are adjusted by reason of payment of
benefits under the supplemental security income program established by title
XVI, see section 1127.
(f)(1) With respect to any deliquent[84]
amount, the Commissioner of Social Security may use the collection practices
described in sections 3711(f), 3716, 3717, and 3718 of title 31, United States
Code, and in section 5514 of title 5, United States Code, all as in effect immediately
after the enactment of the Debt Collection Improvement Act of 1996[85].
-
- (2) For purposes of paragraph (1), the term “delinquent
amount” means an amount—
-
- (A) in excess of the correct amount of payment under
this title;
-
- (B) paid to a person after such person has attained
18 years of age; and
-
- (C) determined by the Commissioner of Social Security,
under regulations, to be otherwise unrecoverable under this section after
such person ceases to be a beneficiary under this title.
(g)[86] For
provisions relating to the cross-program recovery of overpayments made under
programs administered by the Commissioner of Social Security, see section 1147.