What is an overpayment?
An “overpayment” happens when DHHS uses the wrong information to figure out your Food Supplement amount and gives you too much in benefits. This can happen because you made a mistake or because they made a mistake.
There are three kinds of overpayments:
- “Agency Error”
- “Inadvertent Household Error”
- “Intentional Error”
If DHHS made a mistake, why do I have to pay them back?
The Food Supplement program is a federal program. Federal law requires DHHS to try to collect the overpayment. They have to do this even when the overpayment is their fault.
How do they collect the overpayment?
They have a few ways they can collect the overpayment.
If you are getting Food Supplement benefits now, they will reduce your monthly benefits. The amount that DHHS will take depends on the type of overpayment you have.
In most cases, DHHS will take $10 or 10% of your monthly benefit – whichever is more. For example, if you get $100 a month or less, your monthly payment is $10. If you get $200 per month, your monthly payment is $20. So, your monthly benefit would be reduced to $180 while the debt is being repaid.
The amount DHHS takes will go toward what you owe them. You will keep getting this lower amount until the overpayment is repaid.
If you are not getting Food Supplement benefits, DHHS will try to get you to agree to a repayment plan. If you do not agree, they can take your tax refund. In some situations they can also take part of the other benefits you get, like Social Security or Unemployment.
What if I don’t think I was overpaid?
If you got a notice from DHHS and don’t think you have an overpayment or you question the amount, call the number on the notice. You can speak to someone at DHHS to get more information.
You have a right to appeal an overpayment. If you do not think you were overpaid or if you disagree with the amount, you should file an appeal.
You should also file an appeal if you do not agree with the type of overpayment. If the notice is for an “intentional error” and you think it was their fault (or your mistake, but not “intentional”), you should appeal.
The type of overpayment makes a difference in your rights. You only have 90 days to appeal.
To appeal, call or visit your local DHHS office. Or call the DHHS Customer Service Center at 1-855-797-4357. Tell them you want to appeal the overpayment.
When you appeal, DHHS will send you more information about your overpayment. You will also get a notice scheduling a Fair Hearing. At the Fair Hearing, you have the right to give your side of the story to the “hearing officer.” This is a person who has not been involved with your case before. The hearing officer has a duty to be fair and to make sure that the rules are followed
What is an “Intentional Error” or an Intentional Program Violation (IPV)?
If DHHS believes you violated one of the Food Supplement program rules on purpose, and this led to an overpayment, they may decide an “Intentional Error” happened. This happens if DHHS believes you gave them false information, or withheld information from them. It can also happen if DHHS thinks you knew you were breaking a Food Supplement program rule.
If DHHS decides there was an Intentional Error they may send a notice charging you with an Intentional Program Violation (IPV). If this happens they will send you a packet of papers that explains their decision. They will also give you a date and time for a Fair Hearing. This hearing is automatically scheduled – you don't have to ask for it.
DHHS will also send you a waiver form that you can sign, admitting to the violation. Do not sign this form without talking to a lawyer.
If you admit to the IPV, or if you lose the Fair Hearing, DHHS can disqualify you from the Food Supplement program. Disqualifications are based on how many IPVs you have:
- First violation – 1 year
- Second violation – 2 years
- Third violation – you can be disqualified for life
It is important to talk with an attorney if you are facing an Intentional Program Vioaltion. Contact Pine Tree Legal to see if we can help.
I got a notice that they’re taking my tax return to pay back the overpayment. Is it too late to ask for a hearing?
DHHS can collect an overpayment through your tax return if they “legally established” the debt and show that you haven’t paid it. All they have to show is they sent notice of the overpayment to your last known address and that you haven’t repaid the full amount.
If you get notice of collection through your tax return, you can only get a hearing if you can show one of these:
- DHHS never sent you a notice of the overpayment. You can request a hearing within 30 days, but you have to send proof that you never got any notice. You can send in an affidavit (a written statement you swear is true, signed in front of a notary) that you never got it. But, if DHHS shows that they mailed the notice to your last known address, you probably won’t get a hearing. If you get a hearing, the hearing officer will decide if DHHS legally established the debt.
- The amount they’re taking from your tax return is more than you owe. You can request a hearing within 30 days, but you have to send proof that the amount is wrong. You can do this with evidence of any payments you’ve made either through deductions of your monthly Food Supplement benefit, or payments you sent to DHHS. At the hearing, a hearing officer will look at your accounting and DHHS’s accounting and determine how much is owed.
If you do get a hearing, you should request a copy of DHHS’s file on your overpayment. Contact Pine Tree Legal Assistance as soon as you can for legal advice and possibly representation.
I really can’t afford to repay. Is there anything I can do?
You can ask for a “compromise” from DHHS. A compromise reduces the amount you owe, but you’d have to make monthly payments on the overpayment.
You can only ask for a compromise if your circumstances have changed since DHHS first determined you had an overpayment. For example, if you’ve lost a job or reduced your hours, or if your household expenses have changed since you first got notice of the overpayment, you can ask for a compromise. You can only get one compromise for every overpayment.
You have to meet two rules to get a compromise.
- You can only get a compromise if you have an “agency error” or “inadvertent household error” overpayment.
- You can only get a compromise if you can’t repay the entire debt in 36 monthly payments. The monthly payment DHHS uses to calculate this depends on if you’re getting Food Supplement benefits or not:
- If you’re still getting Food Supplement benefits, the monthly payment should either be $10/month or 10% of your monthly benefit, whichever is higher.
- If you’re not getting benefits, you have to do a Food Supplement budget to find out what your “net Food Supplement income” would be if you still got them. If you wouldn’t be able to repay the amount within 36 months by paying 3% of your net Food Supplement income each month or $10, whichever is higher, you may able to get the compromise.
Here’s an example of how the compromise would work:
Your overpayment is $1000 – and it was caused by DHHS. You get Food Supplement benefits now. DHHS reduced your benefit by $10 per month. At this rate, you would repay $360 over the next 36 months. You should get the compromise. DHHS would reduce the balance of the overpayment to $360, since that’s the amount you can pay over 36 months.
As another example:
Your overpayment is $600 – and it was caused by DHHS. You get $181/month in Food Supplement benefits. DHHS is reducing your benefit by $18/month which is 10% of your monthly benefit. At this rate, you could repay $648 over the next 36 months. You cannot get the compromise because you can pay back the overpayment in the next 36 months.
The notice DHHS sent you about the overpayment should give you more information about your right to ask for a compromise.
What else do I need to know about Food Supplement overpayments?
This is only a quick summary of the most important overpayment rules. To learn more, go to the DHHS rules. (Follow the link to FS-700’s.)