I-5-4-64.Ellender v. Schweiker

Table of Contents
I	Purpose
II	Background
III	Definition of the Class
IV	Processing Instructions
V	Inquiries

Issued: January 19, 2001

Expires: No expiration date

I. Purpose

This Temporary Instruction advises OHA adjudicators of the Stipulation and Order entered by the United States District Court for the Southern District of New York on November 22, 2000, approving the parties' modifications to the 1983 court order in the Ellender v. Schweiker class action. The Ellender class action involved the reduction of payments to Old Age Survivors and Disability Insurance (OASDI) beneficiaries under Title II of the Social Security Act, 42 U.S.C. § 401 et. seq., in order to recover overpayments under the Supplemental Security Income (SSI) program established by Title XVI of the Social Security Act, 42 U.S.C. § 1381 et. seq.

The order does not require OHA to process cases any differently. We are providing these instructions for informational purposes. Program Operation Manual System instructions will be printed and distributed to advise field office adjudicators of their responsibilities under the revised Ellender order.

II. Background

On October 26, 1982, the court granted plaintiff's motion to certify a class of “all persons in New York who currently receive OASDI benefits pursuant to 42 U.S.C [sect ] 401 et. seq., who are former recipients of SSI payments pursuant to 42 U.S.C. [sect ] 1381 et. seq., and who have been or will be informed (either orally or in writing) that they must refund alleged overpayment of SSI benefits, either by direct repayment or by agreeing to recovery of the overpayment from their monthly OASDI benefits.”

On November 17, 1983, the court held that SSA had no authority to reduce payments of OASDI benefits under title II in order to recover SSI overpayments. The court also directed that SSA must send to all class members notices which must explain:

(1) The time periods during which overpayment of the SSI benefits arose;

(2) The amount of overpayment in each time period and in total;

(3) The amount of any prior repayments;

(4) The reason for overpayment;

(5) That the recipient has a right to appeal and/or reconsideration;

(6) That under the specified conditions, the recipient may have the right to waive repayment;

(7) That the law prohibits money received through OASDI to be withheld by the Secretary [now the Commissioner] in order to repay SSI overpayments and that no legal process may attach to those benefits (i.e., that transfer or assignment of OASDI benefits, whether voluntary or involuntary; and legal processes taking those benefits, violate section 207(a), 42 U.S.C. § 407(a)); and

(8) That the time period in which the Government should have collected the overpayments may have passed, but that if the recipient pays back any installment or writes a letter acknowledging the overpayment, the Government's right to collect may be revived (i.e., the statute of limitations may have run, but partial repayment or a written acknowledgment may revive the claim).

On October 28, 1998, Congress enacted the Noncitizen Benefit Clarification and Other Technical Amendments Act of 1998 (“1998 Technical Amendments Act”), Public Law 105-306, section 8, codified at 42 U.S.C. § 1320b-17. The 1998 Technical Amendments Act requires certain modifications to the court's order of November 17, 1983. Accordingly, pursuant to the stipulated agreement of the parties, the court's order of November 17, 1983 was modified by deleting the prohibition on the recovery of overpayments made under title XVI of the Social Security Act by decreasing amounts payable under Title II of the Act, up to 10 percent of the amount payable in any month under Title II, except that the 10 percent limitation shall not apply to an overpayment made if the person or spouse of the person was involved in willful misrepresentation or concealment of material information in connection with the overpayment, or if the person so requests.

The portion of the court's order addressing the adequacy of notice to the class was also modified to provide that SSA must send to all class members notices which advise them:

(1) The time period during which overpayment of SSI benefits arose;

(2) The amount of overpayment in each time period and in total;

(3) The amount of any prior repayments;

(4) The reason for overpayment;

(5) That the recipient has a right to appeal and/or reconsideration;

(6) That under specified conditions, the recipient may have the right to waive repayment; and

(7) That the time period in which the Government should have collected the overpayments may have passed, but that if the recipient pays back any installment or writes a letter acknowledging the overpayment, the Government's right to collect may be revived (i.e., the statute of limitations may have run, but partial repayment or a written acknowledgment may revive the claim).

III. Definition of the Class

Ellender class members eligible to request relief include those who:

(a) lived in the State of New York on October 26, 1982; and

(b) were receiving title II benefits on October 26, 1982; and

(d) received an SSI overpayment on or before October 26, 1982.

IV. Processing Instructions

At the OHA level, the Ellender settlement agreement does not require any difference in the processing of class member claims. OHA should follow the normal processing and adjudication procedures. In addition, unlike other class action processing instructions, OHA does not have any screening responsibilities pursuant to the settlement agreement and the consolidation of Ellender cases with subsequent claims should not arise.

V. Inquiries