Current through Register Vol. 48, No. 3, March 22, 2024
Pursuant to South Carolina Code Annotated Section
41-41-40(B)(2),
the Department may waive repayment of overpayments if the overpayment was not
due to fraud, misrepresentation, or willful dislcosure, was received without
fault on the part of the claimant, and recovery of the overpayment would be
contrary to equity and good conscience.
1. WAIVER
a.
When an overpayment determination is issued, a claimant may request a
waiver.
b. A request for waiver by
an individual shall be in writing and set forth the grounds for
waiver.
c. The Department's denial
of a request for waiver of the repayment of an overpayment is an appealable
decision.
d. When a waiver of an
overpayment has become final, it shall not be re-determined in the absence of
fraud, misrepresentation, or willful nondisclosure by the claimant relating to
the waiver.
2. FAULT
In determining whether fault exists, the following factors must
be considered:
a. whether a statement
or representation was made by the individual in connection with a claim for
benefits that resulted in the overpayment, and whether the individual knew or
should have known that the statement or representation was
inaccurate;
b. whether the
individual failed or caused another to fail to disclose a material fact, in
connection with a claim for benefits that resulted in the overpayment, and
whether the individual knew or should have known that the fact was material;
and
c. whether the individual knew
or could have been expected to know that the individual was not entitled to the
benefit payment.
In the event of an affirmative finding on any of the FAULT
factors outlined above, the overpayment shall not be waived and further
determination of any factors will not be necessary.
3. EQUITY AND GOOD CONSCIENCE
In determining whether recovery of an overpayment is against
equity and good conscience for the purpose of deciding whether the overpayment
of benefits shall be waived, the Department shall consider the following
non-exclusive factors:
a. The extent
to which recovery of the overpayment would create an extraordinary financial
hardship on the claimant. Extraordinary financial hardship as used herein means
the claimant would be unable to provide himself or his immediate family with
minimal necessities (e.g., food, shelter, basic utilities) as a result of the
Department recovering the overpayment;
b. The nature and cause of the overpayment,
including whether Department error contributed to causing the
overpayment;
c. Whether the
claimant had notice that if a decision to pay benefits was reversed, an
overpayment would be created;
d.
Whether the claimant detrimentally changed his/her position in reliance upon
receipt of benefits; and
e. Any
other relevant factor that relates to fairness and good conscience.
