Current through Register Vol. 35, No. 6, March 26, 2024
A. The department shall use the process set
forth herein to evaluate disputes of overpayments paid under the Trade Acts,
the Trade Adjustment Assistance (TAA), Trade Readjustment Assistance (TRA)
Federal Extended Benefits, or any enacted federal extension program under the
following circumstances:
(1) When a decision
of the department results in an overpayment, an appealable determination will
be sent to the claimant. The claimant may file an appeal no later than 15 days
from the date of the determination in accordance with 11.3.500 NMAC.
(2) At the department's discretion, a request
for review of an overpayment may be administratively initiated to determine if
a waiver of overpayment will be approved. A waiver will be approved if the
department determines that:
(a) the
application was made timely;
(b)
payment was made without the fault of the claimant; and
(c) requiring repayment would be contrary to
equity and good conscience.
(3) The department's affirmative finding of
any one of the following factors of fault precludes a waiver:
(a) that the claimant knowingly made a
material misrepresentation, which misrepresentation resulted in the
overpayment; or
(b) that the
claimant knowingly failed to disclose a material fact, which failure to
disclose resulted in the overpayment; or
(c) that the claimant knew or should have
known that he was not eligible for the payment; or
(d) that the department has previously issued
a determination of fraud in regards to the overpayment.
(4) The department shall consider the
following factors in determining whether, in equity and good conscience, the
department should require repayment:
(a)
whether the overpayment was the result of a decision on appeal;
(b) whether the claimant was given notice
that repayment would be required in the event of reversal on appeal;
(c) whether the recovery of the overpayment
would cause an extraordinary and lasting financial hardship to the claimant,
resulting in the claimant's inability to obtain minimal necessities of food,
medicine and shelter for at least 30 days and period of financial hardship
lasting at least three months, and
(d) whether, if recoupment from other
benefits is proposed, the length of time of extraordinary and lasting financial
hardship shall be the longest potential period of benefit eligibility as seen
at the time of the request for waiver of determination.
(5) In determining whether fraud has
occurred, the department shall consider the following factors:
(a) whether the claimant knowingly made, or
caused another to make, a false statement or representation of a material fact
resulting in the overpayment;
(b)
whether the claimant knowingly failed, or caused another to fail, to disclose a
material fact resulting in the overpayment.
B. If a determination of fraud is made, the
claimant shall be ineligible for any further TAA, TRA or any other enacted
federal extension program benefits and shall be ineligible for waiver of any
overpayment.
C. A finding that the
overpayment was not the result of a decision on appeal or that the recovery
would not cause extraordinary and lasting financial hardship shall preclude a
waiver.
D. If a claimant fails,
without good cause, to complete training, a job search or a relocation, any
payment to such claimant that is not properly and necessarily expended in
attempting to complete the activity shall constitute an overpayment. Such
overpayments shall be recovered or waived according to the standards of fault,
equity and good conscience contained in 11.3.300.325 NMAC.
E. In any event, no repayment shall be
required or deduction made until a notice and an opportunity for fair hearing
have been provided to the claimant in accordance with 11.3.500 NMAC, a
determination has been issued by the department, and the determination has
become final.
