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to Section One | to Arts & Entertainment
posted Friday, April 15, 2016 - Volume 44 Issue 16
Social Security Administration gives in on overpayments to married Gays and Lesbians
Section One
ALL STORIES
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Social Security Administration gives in on overpayments to married Gays and Lesbians

by Mike Andrew - SGN Staff Writer

The Social Security Administration (SSA) said on April 13 that it will give up trying to collect so-called 'overpayments' from married Gay and Lesbian SSI recipients.

Supplemental Security Income (SSI) is a federal program designed to help very-low-income people with disabilities or those over the age of 65. Part of the consideration in calculating an individual's SSI benefit is whether the person is married, with married people getting a smaller benefit.

In the wake of the U.S. Supreme Court's 2013 Windsor decision striking down DOMA but leaving state laws against same-sex marriage intact, SSA decided that it would recognize same-sex marriages when the couple lived in states that also recognized them, but not when the couple lived in states that refused to recognize their relationship.

Consequently, when SSA determined SSI benefits for one person in a married same-sex couple, they paid higher benefits if the couple lived in a state where same-sex marriage was still illegal and lower benefits in a state where the couple's marriage was legally valid.

For example, if a couple married in New York and remained there, SSA would pay the smaller SSI benefit. But if the couple subsequently moved to Mississippi, where their New York marriage was not valid, SSA would pay a higher benefit.

Fast forward two years to 2015. With its Obergefell decision, the Supreme Court legalized same-sex marriages throughout the country and removed the basis for SSA's distinction between different married couples.

Although SSA was tardy complying with Obergefell, when it finally issued new guidelines reflecting the Supreme Court's ruling, it also decided that it had been 'overpaying' married Gays and Lesbians in states that formerly did not recognize same-sex marriage.

To go back to the previous example, the couple that married in New York but then moved to Mississippi had been married all along, the SSA said, so they had been 'overpaid' during the time that the agency did not recognize their marriage.

SSA wanted its money back and began sending demand letters to old or disabled Lesbian and Gay SSI recipients. In many cases the 'overpayment' amounted to thousands of dollars - money that had already been spent by poor recipients who had no way to pay it back.

Gay and Lesbian Advocates and Defenders (GLAD) then joined with the group Justice in Aging and the law firm of Foley Hoag LLP to sue the SSA on behalf of married Lesbian and Gay SSI recipients.

The lawsuit charged that the SSA's conduct violated the Social Security Act and the equal protection and due process guarantees of the U.S. Constitution.

'These individuals, some of the most vulnerable people in our country, were not to blame for the agency's failure to recognize their marriages after Windsor, and the government's actions were clearly unjust. Our lawsuit was meant to correct that,' said Marco J. Quina of Foley Hoag.

In October 2015, 39 senators and 82 members of the House of Representatives, led by Sen. Elizabeth Warren and Rep. Mark Takano, sent the SSA a letter asking the agency to waive recovery of overpayments.

'SSA should not penalize people who are poor, elderly, or disabled because SSA continued issuing benefits to these married individuals as though they were single,' the lawmakers wrote. 'According to SSA's statute and regulations, SSA shall avoid penalizing an individual for overpayment if the individual is without fault and if recovery of the overpayment would be against equity and good conscience.'

SSA has now issued a new policy that addresses the issues raised in the lawsuit and the congressional letter.

According to new SSA instructions, local SSA offices will now presume that married Lesbian and Gay SSI recipients have requested a waiver of the 'overpayment' even if they have not formally filed a petition.

The new policy also provides that the waiver will be granted on the grounds that the individual is without fault for the overpayment, and that collection would be against 'equity and good conscience.'

The authority to deny a waiver has been removed from local offices, and any denial must first be reviewed by the SSA's Central Office.

'We commend the Social Security Administration and Commissioner Colvin for taking this important step to correct an injustice,' said Gerald McIntyre, special counsel with Justice in Aging. 'We are optimistic that the few remaining issues will be satisfactorily resolved.'

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