(PPS-121)
SSR 85-23
SSR 85-23: TITLE XVI: REOPENING SUPPLEMENTAL SECURITY INCOME DETERMINATIONS AT ANY TIME FOR "SIMILAR FAULT"
PURPOSE: To emphasize the policy that a supplemental security income (SSI) determination or decision may be reopened at any time if it was obtained by fraud or similar fault and to define and explain "similar fault."
CITATIONS (AUTHORITY): Sections 1631 and 1633 of the Social Security Act; Subpart N of Regulations No. 16, sections 416.1487 to 416.1494.
PERTINENT HISTORY: An SSI determination or decision is binding unless the appropriate appeal is filed within the required time period or it is subsequently reopened and revised. Regulations section 416.1488 provides that an SSI determination or decision may be reopened within 12 months of the date of the notice of initial determination for any reason; within 2 years of the date of the notice of the initial determination if the Social Security Administration (SSA) finds good cause for reopening the case; or, at any time if it was obtained by fraud or similar fault.
Experience reveals most events requiring payment adjustments take place within the 2 year limit. However, there is a need to explain SSA policy concerning "similar fault" as the regulations are not detailed in this area.
POLICY STATEMENT:
In development of an SSI case, if a preponderance of evidence does not establish knowledge and intent to defraud, but establishes that the recipient (or other person) knowingly did something wrong (but intent cannot be established), then SSA can determine "similar fault" and can reopen and revise a determination at any time. A preponderance of evidence is evidence that produces the stronger impression and is more convincing as to its truth than the evidence in opposition. The quality and reliability of the evidence must show clearly that "similar fault" exists.
The person committing the fraud or similar fault may be the SSI recipient or any other person. It is not necessary that the other person have any relationship to the SSI recipient or be acting on behalf of the recipient. However, the action of the other person must have caused the SSI recipient to have gained payment not otherwise due.
Definition of "Similar Fault"
"Similar fault" exists when an SSI recipient or other person knowingly makes an incorrect or incomplete statement that is material to the determination for SSI payments or knowingly conceals information that is material to the determination of eligibility or amount of SSI payments. It differs from fraud in that fraudulent intent is not required. Unlike fraud, the intent to wrongfully procure (or increase) benefits need not be established. A "similar fault" determination is made only for the purpose of reopening a prior SSI determination; it is not a criminal matter for which prosecution would be considered.
"Similar" is defined as "nearly corresponding; resembling in many respects; somewhat like; having a general likeness." "Fault" is defined as "an action proceeding from an inexcusable negligence or ignorance that is considered nearly equal to fraud." SSA restricts the definition of fault to "knowledge on the part of the claimant or any other person." The policy is not to penalize a person for ignorance of the law.
"Similar Fault" Criteria
The following factors are needed to establish "similar fault" to reopen an SSI determination which is more than 2 years old:
- The changed event is material (i.e., will change the SSI payments) and will create a new overpayment or enlarge an existing overpayment;
- A wide discrepancy exists between the new data and the data reported;
- The SSI recipient (or other person knowingly completed an incorrect or incomplete report, knowingly concealed events or changes, or knowingly neglected to report events or changes that affect payments;
- The event (income, resource, etc.) can and will be verified;
- The event (income, resource, etc.) is clearly attributable to the SSI recipient (or the ineligible spouse, parent or sponsor of an alien in deeming situations); and
- The case does not involve intent to defraud.
Overpayments
If "similar fault" is detected during SSA development of an overpayment more than 2 years old, SSA can make a "similar fault" determination and reopen the prior determination for the entire period of overpayment (including the period within 2 years).
Where "similar fault" is established during development of an overpayment, the overpaid SSI recipient ordinarily will be found at fault for waiver purposes. However, a third party; e.g., deemor, may be found at fault for reopening purposes, but the recipient found without fault for waiver purposes.
An SSI recipient will be notified when a "similar fault" determination is made. The notice will describe the evidence used to arrive at the similar fault determination. The recipient will receive a notice of any revised determination as a result of the reopening that explains the appropriate appeal rights.
SSA "Similar Fault" Curtailed Development
In some situations SSA will limit development of "similar fault" because it would be counterproductive; i.e., the effort would exceed any expected results, impose unfair hardships, etc.
SSA will not initiate development of "similar fault" in the following situations:
(1) The SSI recipient is dead:
(2) The recipient is 75 or over and is in poor health;
(3) Medical evidence indicates the SSI recipient has an illness expected to result in death in the near future; or
(4) The "similar fault" consists solely of a failure to report a cost-of-living increase in a pension or annuity.
SSA will discontinue development of "similar fault" if:
(1) The SSI recipient died after "similar fault" development was initiated;
(2) Reasonable efforts to develop "similar fault" reveal insufficient evidence is available to establish a preponderance of evidence that the event involved in "similar fault" occurred and the excess payment amount is less than the current monthly Federal benefit rate;
(3) Error by SSA employees significantly contributed to the overpayment;
(4) The law or policy has changed so that the event or change would no longer cause excess payments;
(5) The potential excess payment involves a situation difficult to establish; e.g., a number of marital changes, fluctuating living arrangements, exclusive in-kind income, etc.; or
(6) The file contains a favorable determination (initial or appealed) on the issue involved in "similar fault" unless new and material evidence is obtained subsequent to the favorable determination.
EFFECTIVE DATE: Upon publication.
CROSS-REFERENCES: POMS, sections GN 04070.130 and SM 02001.600 F.8.