As a result, in part, of a lawsuit filed by GLBTQ Legal Advocates & Defenders (GLAD), Justice in Aging, and Foley Hoag LLP on behalf of plaintiffs Hugh Held and Kelley Richardson-Wright and a proposed nationwide class, the Social Security Administration (SSA) has issued a new policy that provides a significant win for individuals receiving Supplemental Security Income (SSI) benefits who are married to someone of the same sex but whose marriages were not recognized by SSA when they should have been.
SSI is a benefits program that provides for basic necessities for very low income people over 65 and people with disabilities. SSI recipients married to someone of the same sex were being asked to pay back “overpayments” caused by SSA’s failure to recognize their marriages. Under SSA’s new policy, they should now be able to receive a waiver, or forgiveness, of those overpayments even, in most cases, without having to formally apply for relief.
These overpayments were caused by SSA’s continued application of the Defense of Marriage Act (DOMA), which unconstitutionally disrespected these marriages, for many months, and even years, after that statute was struck down by the U.S. Supreme Court in Windsor v. United States. SSA calculated eligibility and benefit amounts for these individuals as if they were single, even though they were married, which resulted in overpayments. When SSA finally recognized these marriages, the agency asked them to pay back thousands of dollars they did not have and which SSI rules did not allow them to save.
The lawsuit by was filed by the three groups in order to provide these individuals relief by challenging SSA’s prior policy and requesting that SSA be prohibited from collecting these overpayments. The lawsuit alleged that 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 Senator Elizabeth Warren and Rep. Mark Takano, sent SSA a letter asking the agency to waive recovery of overpayments and implement the Supreme Court’s decision. The Congressional letter stated, in part, “We are concerned to hear that, for some time after the Supreme Court’s Windsor decision, SSA continued to issue benefits to Supplemental Security Income recipients in same-sex marriages as though these individuals were single, and that for some SSI recipients, SSA is still doing so.”
It continued, “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. 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.”
“This was a crisis for people, many of whom had tried in vain to tell Social Security of their marriages, and who have no objection to being paid the correct amount going forward,” said Mary L. Bonauto of GLAD. “We thank Senator Warren and Rep. Takano for their leadership in engaging SSA and securing the support of so many of their Congressional colleagues, all of which helped move this to a successful resolution.”
SSA has now issued a new policy that favorably addresses concerns raised in the lawsuit and the Congressional letter. The agency has issued instructions to its local offices across the country to presume that a waiver of the overpayment has been requested. The new policy provides further instructions, which should result in a grant of a waiver on the ground that the individual is without fault for the overpayment and that collection would be against equity and good conscience, as was argued in the lawsuit and the Congressional letter. The authority to deny a waiver is removed from local offices, and any denial must first be reviewed by 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.”