A New LGBTQ Victory Is a Victory for All of Us: The Social Security Administration Does the Right Thing

Despite its positive mission, SSA has been engaging in a destructive practice that represents government not working for us, but against us. SSA has been sending, to hundreds of thousands of Social Security beneficiaries and SSI recipients, bills for what it concludes are overpayments.
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Does the government work for us or against us? As the result of a decision by the Social Security Administration ("SSA"), the government is working better for all of us today. For convincing SSA to do the right thing, we should thank Senator Elizabeth Warren (D-MA), Representative Mark Takano (D-CA), and 119 of their colleagues. We are also indebted, for this victory, to two effective, dedicated nonprofits, Justice in Aging and the GLBTQ Advocates & Defenders (GLAD), as well as Foley Hoag, LLP, the law firm that assisted them.

SSA is responsible for two crucially important programs. It administers Social Security, which provides a floor of economic protection in the form of insurance to working families whose wages are lost as the result of death, disability or old age. It also administers a companion program, Supplemental Security Income ("SSI"), which provides means-tested benefits to extremely low-income seniors and people with disabilities.

These programs exemplify the good that can be done when all of us work together through our government to improve all of our lives. But, despite its positive mission, SSA has been engaging in a destructive practice that represents government not working for us, but against us. SSA has been sending, to hundreds of thousands of Social Security beneficiaries and SSI recipients, bills for what it concludes are overpayments.

These are not cases of fraud (which are vanishingly rare) but, frequently, cases where it was the government itself that made the error. The beneficiaries and recipients did nothing wrong. They reported all information correctly, but the government did not act on the information in a timely way or created the error in some other way. To add insult to injury, our government outrageously calls those receiving these notices "debtors," though they have done nothing wrong, and, indeed, may be scrupulous about paying their bills on time.

The federal government has enormous power. When it chooses to go after someone, it is generally an intimidating experience even when the person in its crosshairs is an innocent, law abiding citizen. If this powerful entity is seeking large sums of money that you don't have, it can be a disruptive and upsetting experience. Moreover, in the case of Social Security and SSI overpayments, the government is going after people who are generally our most vulnerable fellow Americans. Over the last year, this intimidating power got turned on the most vulnerable members of the LGBTQ community, as a result of the 2013 landmark Supreme Court decision, US v. Windsor.

The Windsor case struck down the offensively-named Defense of Marriage Act. As a result of the Supreme Court decision, same-sex couples who were legally married under state law finally had their marriages recognized by the federal government. For couples in which one or both partners received SSI, this important victory was followed by a distressing letter from the government. Under SSI's stringent and complicated rules, married recipients receive lower benefits than those who are unmarried. Consequently, a year after that landmark case, SSA began reviewing its SSI rolls to determine whether the benefits it was paying some of its recipients, now that same-sex marriages were recognized as marriages, were now inaccurate in amount.

When SSA found that benefits were now too high, it did not just change the benefit level going forward. It sought repayment of the difference between the two amounts for every benefit paid all the way back to July 1, 2013, the month following the Windsor decision. Here was the government coming after people for large sums of money that they didn't have.

Take, for example, the case of Mary S., a veteran living in New York. She has served our nation with distinction, in Iraq and elsewhere. Unfortunately, she has suffered mightily for her service. Among other horrors she experienced, she witnessed her best friend, standing right next to her, in Fallujah, blown up and killed instantly. She now suffers from post-traumatic stress disorder with all the limitations and hardships that brings. As a result of this wartime disability, she is receiving the Social Security disability benefit she earned. Because that benefit is so low, however -- just $448 a month -- she also found that she qualified for a small SSI benefit, as well.

Despite her many hardships, Mary was fortunate to fall in love and marry her wife in 2012. She immediately reported her marriage at the local SSA office, but was told that it didn't affect her benefits. After the Supreme Court struck down the Defense of Marriage Act in 2013, the marriage all of a sudden did affect those SSI benefits, a fact generally known only to experts who have studied the complicated statute and its regulations. Because Mary's wife receives a small monthly Social Security benefit of around $880, and because they are married so that income is considered joint income, Mary was now considered to have income that was too high.

More than two years after the Windsor decision, Mary received a notice that she would no longer receive her SSI benefit. This was difficult, low as their combined income is, but manageable. Outrageously, though, along with the news that her income would drop substantially going forward, she was hit with a bill for $6,609. That was the amount of money Mary had innocently received and spent on rent, food, and other necessities for the prior two years. The bill was from the very government she had enlisted to defend. She had zero savings. Indeed, the only money she had when the notice came in the mail was $5.00!

Imagine how distressing that would be. Like Mary, the people the government is seeking Social Security and SSI overpayments from are generally not wealthy people. They tend to be our most vulnerable fellow citizens. Nearly half of unmarried elderly Social Security beneficiaries and nearly a quarter of married couples rely on Social Security for virtually all of their income. These are not people who can just dip into their savings accounts when the government decides it has made a mistake and wants the overpayment back. These are people who are living check to check, already struggling to put groceries on the table and afford increasingly expensive prescription drugs.

And SSI recipients are even more vulnerable. To qualify for SSI, an individual must have close to no income or assets. To an even greater extent than Social Security beneficiaries, people who receive SSI are not equipped to handle a sudden "debt" they had no idea existed.

So how much money is recouped by preying on the most vulnerable? As it turns out, a negative amount. Last year, a report from the Office of the Inspector General found that SSA spends three times more than it collects trying to recover overpayments. Between 2008 and 2013, SSA spent over $323 million to collect $109.4 million in the low-dollar overpayments. There is no moral or fiscal justification for this cruel practice.

In the case of overpayments resulting from the striking down of the Defense of Marriage Act, the injustice has now been corrected. That is thanks to the work of many dedicated individuals. Justice in Aging, GLBTQ Advocates & Defenders (GLAD) and the law firm of Foley Hoag brought litigation to stop these collection efforts. Learning about the litigation and the issue, Senator Elizabeth Warren (D-MA) joined with Representative Mark Takano (D-CA) and 119 of their colleagues to send a letter to the Acting Social Security Commissioner urging a blanket waiver, so that SSI recipients in same-sex marriages are not hit with overpayments.

To her credit, the Acting Commissioner listened. SSA has now announced a waiver process which identifies the SSI beneficiaries who were affected and essentially exempts them from being targeted for overpayments. This news comes as a huge relief to some of our country's most vulnerable couples. Justice is being done in this case.

Now, it is time for SSA to continue down the right path by ending the crusade to collect overpayments that beneficiaries (or their relatives) received through no fault of their own. The government should do everything it can to assure accurate payments, but when mistakes happen, as they inevitably will, the cost should not be thrust upon the individuals, who often will have no ability to repay.

Although SSA has a waiver process in situations that violate "equity and good conscience," that isn't good enough. This places the burden on the individual. Imagine, if English is not your first language, if you never finished high school, if you have barely any income and no savings. Imagine receiving a letter from the government stating that you owe a staggering amount, an amount so large that you have no idea how you can possibly pay it. That kind of distress should not be rained down upon law-abiding Americans by their government, even if a waiver will be granted if and when one is sought.

While politicians earn points by being hard on so-called government "fraud, waste, and abuse," these efforts at recoupment cruelly torment those our Social Security system is intended to serve. If these politicians are really concerned about fraud, waste and abuse, they should increase the enforcement dollars overseeing large and powerful government contractors and auditing the wealthiest taxpayers. Going after ordinary, law abiding citizens is nothing short of harassment and bullying.

It is time that we remind our government that it works for us. It should simply stop going after the accidental overpayments going to the least among us. It should focus its resources on making our lives better, not worse.

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