GLAD filed suit simply to get the SSA to stop collecting or threatening to collect overpayments caused by SSA’s wrongful delay in recognizing legal marriages of same sex couples when one or both spouses receive SSI.

Good News: Social Security Administration Emergency Order Puts Hold On Administrative Action Against Some SSI Recipients Married To A Spouse Of The Same Sex

GLAD’s lawsuit against the Social Security Administration (SSA) is producing needed results. An emergency order issued by SSA late last week puts a hold – at least temporarily – on issuing new overpayment notices to SSI recipients as a result of a change in recognition of a beneficiary’s same-sex marital status.

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Held v. Colvin GLAD Plaintiffs Kelley and Kena Richardson-Wright

GLAD, Justice in Aging, and Foley Hoag LLP in March 2015 filed a class action lawsuit, Held v. Colvin, against SSA on behalf of Supplemental Security Income (SSI) recipients married to someone of the same sex. The suit charges that SSA discriminated against these individuals for months, and in some cases more than a year, after the Defense of Marriage Act (DOMA) was struck down in June 2013. Now someone has to bear the expense of that discrimination and we think it should be SSA, not SSI recipients.

While this is great news that will provide at least temporary protection for some SSI recipients, it does not yet help those who have already received a notice of overpayment. If you or someone you know is in that situation, please contact us at GLAD Answers www.GLADAnswers.org as we continue to work on this issue.

To be eligible for SSI, an individual must be age 65 or older, blind, or disabled.  In addition, SSI recipients must have less than $2,000 in resources, and married couples where both spouses are SSI eligible must collectively have less than $3,000 in resources.

Though SSA had years of notice to prepare for the possibility that DOMA might be struck down, SSA continued for over a year after the Supreme Court decision to treat SSI recipients who were married to a person of the same sex as if they were single. The consequence is that SSA overpaid these SSI recipients. And even SSI recipients who knew they were overpaid had to spend that money or lose benefits.

Now SSA is issuing overpayment notices and demanding repayment, typically of thousands of dollars – even though the SSI recipients are not at fault for the overpayment. It also makes the SSI recipients worse off than if SSA had met its constitutional obligations – because some SSI recipients would have been eligible for other need-based aid had their benefits been calculated properly.

GLAD filed suit simply to get the SSA to stop collecting or threatening to collect overpayments caused by SSA’s wrongful delay in recognizing legal marriages of same sex couples when one or both spouses receive SSI.

Late last week SSA issued an Emergency Message (“EM”), which can be found at this link on the Social Security Administration’s official website doing what we ask as of May 6 (at least for now).

To summarize, this EM formally instructs SSA field office personnel to hold any SSI post-eligibility action that would result in a beneficiary being placed in overpayment status as a result of a change in recognition of that beneficiary’s same-sex marital status, irrespective of when the change occurred. The effective date of this hold policy is May 6, 2015 (and it is in place until October 30, 2015).

In practical terms, this means that for any current SSI recipient whose change in same-sex marital status becomes known to SSA on or subsequent to May 6, such recipient should not be placed in overpayment status, receive a notice of pending recoupment, or experience any offset against future SSI payments for as long as the hold remains effective. This hold will not affect a beneficiary’s level of current SSI benefits to be received in future months insofar as the beneficiary’s change in recognized marital status affects the level of benefits for which he or she is eligible.

While this is great news that will provide at least temporary protection for some SSI recipients, it does not yet help those who have already received a notice of overpayment. If you or someone you know is in that situation, please contact GLAD Senior Staff Attorney Vickie Henry vhenry@glad.org us at GLAD Answers www.GLADAnswers.org as we continue to work on this issue. Stay tuned.