No. 26924 (Amendment): R994-406. Appeal Procedures

DAR File No.: 26924
Filed: 01/28/2004, 04:08
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The unemployment rules are being rewritten to ensure that they comply with current law and practice.

 

Summary of the rule or change:

In order to keep all procedural rules together, some provisions of this rule have been moved to Rule R994-508. Rule R994-508 is a proposed rule that is being repealed and reenacted and that is being filed with this amendment. (DAR NOTE: The proposed repeal and reenact of Rule R994-508 is under DAR No. 26929 in this issue.)

 

State statutory or constitutional authorization for this rule:

Section 35A-4-406

 

Anticipated cost or savings to:

the state budget:

There will be no costs or savings to the State budget because this is a federally-funded program and there are no substantive changes being made to this rule. These changes reflect current Department practices.

 

local governments:

In addition to the reasons stated in relation to the State budget, there will be no costs or savings to local government as this is a federally-funded, state-wide program that does not affect local government.

 

other persons:

There will be no costs to any person for the reasons stated in relation to the State budget. This amendment does not make any substantive changes to current law or rule.

 

Compliance costs for affected persons:

There will be no compliance costs to any person. This amendment does not make any substantive changes to current law or rule but rather moves provisions to a different rule number (Rule R994-508).

 

Comments by the department head on the fiscal impact the rule may have on businesses:

There will be no fiscal impact on businesses as a result of these rule changes.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Workforce Services
Workforce Information and Payment Services
140 E 300 S
SALT LAKE CITY UT 84111-2333

 

Direct questions regarding this rule to:

Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/19/2004

 

This rule may become effective on:

03/22/2004

 

Authorized by:

Raylene G. Ireland, Executive Director

 

 

RULE TEXT

R994. Workforce Services, Workforce Information and Payment Services.

R994-406. [Appeal Procedures.]Fraud and Fault.

[R994-406-201. Continuing Jurisdiction - General Definition.

Subsection 35A-4-406(2) specifies the conditions under which the Workforce Information and Payment Services Division, as the agent of the Department, has the authority to reconsider decisions made with regard to claims for benefits after they have become final. A decision is not final until the time permitted for the filing of an appeal has elapsed. There are no limitations on the review of decisions during the appeal period. Subsection 35A-4-406(2) establishes the guidelines for the Department's exercise of discretion in reviewing decisions.

 

R994-406-202. Limited Jurisdiction.

(1) The Department has no jurisdiction to review or reconsider final decisions with regard to benefits beyond one year from the date of the decision unless the claimant was at fault in creation of an overpayment. Jurisdiction may be taken for up to one year after the original determination was made provided there was either a change in conditions or a mistake as to facts. When a decision is made on an issue, the date shown by the Department Representative on the notice provided to the parties or the date the decision is recorded in the Department's records is the date of the decision. If a decision was not made, the date the Department was on notice of an issue but failed to act is the date of the decision.

(a) Change of Conditions.

A change of conditions may include a change in the law which would make a reconsideration necessary in fairness to the parties who were adversely affected by a law change. A change in conditions may also include personal circumstances of the claimant or employer which would have made it reasonable not to file an appeal, provided those circumstances have subsequently and unforeseeably changed.

(b) Mistake as to Facts.

A mistake as to facts is limited to material information which was the basis for the decision. A mistake as to facts may include information which is misunderstood or misinterpreted, but does not include an error in the application of the Act or the Rules provided the decision is made under the correct section of the Act. A "mistake" is inadvertent rather than wrong information intentionally provided by the party subsequently alleging the mistake.

 

R994-406-203. Unlimited Jurisdiction.

There is no time limitation on exercising jurisdiction if there was fraud or an overpayment as the result of fault by the claimant. There must be an overpayment which is charged to the claimant in accordance with provisions of Subsection 35A-4-406(4) before jurisdiction can be taken beyond one year after the original determination.

 

R994-406-204. Discretion.

Section 35A-4-406 does not require the Department to take jurisdiction in all cases where there is a change in conditions or a mistake as to facts; the statute merely permits the Department to take jurisdiction. The claimant and employer may request a reconsideration of a decision, but they cannot compel the Department to exercise continuing jurisdiction. The Department will exercise continuing jurisdiction if it is necessary in fairness to an interested party who did not have access to material information or could not reasonably have filed an appeal provided there was a mistake as to facts or a change in conditions. However, jurisdiction may not be taken if the redetermination would have little or no effect. The Department will weigh the administrative burden of making a redetermination against the requirements of fairness and the opportunities of the parties affected to file an appeal. Jurisdiction will be taken in all cases where the Department is aware of a claimant fault overpayment which is large enough to be "set up" as provided by R994-406-404.]

 

R994-406-205. Obligation of Department Employees.

Employees of the Department are obligated, regardless of when the information is discovered, to bring to the attention of the proper Department representatives any information that may affect an individual's eligibility for unemployment insurance benefits or information affecting the employer's contributions.

 

[R994-406-206. Notice.

Any time a decision is reconsidered all interested parties will be notified of the new information and provided an opportunity to attend hearings held in conjunction with the review. All interested parties will receive notification of the redetermination and given the right to appeal.

 

R994-406-301. Provisions for Filing an Appeal - General Definition.

Subsection 35A-4-406(3) provides the opportunity for any parties affected by decisions made by the Department to file an appeal. The time limitations for filing appeals, which includes protests, requests for hearings, petitions and other requests or applications, and the exceptions to those time limitations are explained in Section R994-406-301 through R994-406-314. Subsection 35A-4-406(3) also provides provisions for withdrawing appeals, explains the opportunities which must be provided to parties to assure a fair hearing; identifies the commission as a party to the hearing; specifies the requirements of notification of the referee's decisions; and explains the further rights of appeal.

 

R994-406-302. Issuance of Determinations.

A notice of determination is not considered to have been issued unless it is sent through the U. S. mail or served in person.

 

R994-406-303. Appeal Time Limitation for Decisions that are Not Mailed.

If a decision issued by the Department is personally given to a party rather than sent through the mail, the amount of time permitted for an appeal is ten calendar days unless otherwise specified on the decision or by the Act.

 

R994-406-304. Appeal Time Limitation for Decisions Which are Mailed.

If a decision issued by the Department is mailed, five days are added to the time prescribed by the Act for filing the appeal. Therefore, the amount of time permitted for filing an appeal from any decision that is mailed by the Department is fifteen calendar days unless otherwise specified on the decision or by the Act.

 

R994-406-305. Computation of Time Limitations.

In computing the period of time allowed by the Act for filing appeals under Subsection 35A-4-406(3), the day the decision is mailed or handed to a party is not to be included. The last day of the appeal period that follows is to be included in the computation unless it is a Saturday, Sunday or legal holiday when the offices of the Department are closed. If the last day permitted for filing an appeal falls on a Saturday, Sunday or legal holiday, the time permitted for filing a timely appeal will be extended to the next day when the offices of the Department are open.

 

R994-406-306. Date of Receipt.

Any appeal which has been sent through the U.S. Mail, is considered filed and received by the Department on the date shown by the post office cancellation mark. When the post mark date cannot be established because it is illegible, erroneous or omitted, the appeal will be considered filed on the date it was mailed if the sender establishes that date by competent evidence and can show that it was mailed prior to the date of actual receipt. If the date of mailing cannot be established by competent evidence, the document will be considered filed on the date it is actually received by the Department as shown by the Department's date stamp on the document or other credible evidence such as a written notation of the date of receipt.

 

R994-406-307. Limitation of Jurisdiction.

When it appears that an appeal may not have been filed within the time allowed by the Act or these Rules, the appellant will be notified and given an opportunity to show that the appeal was timely or was delayed for good cause. If it is found that the appeal was not filed within the applicable time limit and the delay was without good cause, the Administrative Law Judge will not have jurisdiction to consider the merits unless jurisdiction is established in accordance with provisions of Subsection 35A-4-406(2). Any decision with regard to jurisdictional issues will be issued in writing and given or mailed to all interested parties with a clear statement of the right of further appeal or judicial review.

 

R994-406-308. Good Cause for Not Filing Within Time Limitations.

(1) A late appeal may be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause is limited to circumstances where it is shown that:

(a) the appeal was filed within 10 days of actual receipt of the decision if such receipt was beyond the original appeal period and not the result of willful neglect; or

(b) the delay in filing the appeal was due to circumstances beyond the control of the appellant; or

(c) the appellant delayed filing the appeal for circumstances which were compelling and reasonable.

 

R994-406-309. Procedure for Filing an Appeal.

An appeal must be filed in writing by mailing a signed letter to the mailing address of the Appeals Tribunal as shown on the notice of decision, or submitting a written statement at an employment center. The appeal must be signed by an interested party who has a right to notice of a determination unless it can be shown that the interested party has conveyed in writing the authority to another person to act in his behalf, or he is physically or mentally incapable of acting in his own behalf. The statement of appeal should give the date and issue of the decision being appealed, the social security number of any claimant involved, the employer number or case number of the decision, a statement of the intent of the appeal and the facts or reasons which support the request. However, the failure of an appellant to include such information will not preclude the acceptance of an appeal. The scope of review will not be limited to the issues or contentions stated in the appeal. If the Department has begun payment of benefits to a claimant, such payments will not be discontinued pending the outcome of an appeal even if the claimant is willing to waive his right to payment. However, if benefits are denied as a result of the appeal an overpayment may be established in accordance with provisions of either Subsection 35A-4-406(4) or 35A-4-406(5).

 

R994-406-310. Reasonable Opportunity for Fair Hearing.

(1) Notice.

(a) All interested parties will be notified by mail at least seven days prior to the hearing of:

(i) the time and place, or conditions of the hearing,

(ii) the legal issues,

(iii) the consequences of not appearing, and

(iv) the procedures and limitations for requesting rescheduling.

(b) When a new issue arises during the hearing or under other unusual circumstances, advance written notice may be waived by the parties after a full verbal explanation of the issues and potential results.

(c) It is the responsibility of the parties to a hearing to notify any representatives or witnesses of the time and place of the hearing and to make necessary arrangements for their participation.

(d) If a party has designated a person or professional organization as his agent, notice of hearings will be sent to that agent and when such notice is sent, it will be considered that the party has been given notice.

(e) If an interpreter is needed by any parties or their witnesses, the party should arrange for an interpreter who is an adult with fluent ability to understand and speak English and the language of the person testifying, or notify the Appeals Office at the time the appeal is filed (or when notification is given that an appeal has been filed) that assistance is required in arranging for an interpreter.

(2) Hearing of Appeal.

(a) All hearings will be conducted informally and in such manner as to protect the rights of the parties. All issues relevant to the appeal will be considered and passed upon. The decision of the Appeals Referee hereafter referred to as Administrative Law Judge, will be based solely on the testimony and evidence presented at the hearing.

(b) All testimony of witnesses will be given under oath. Any party to an appeal will be given an adequate opportunity to be heard and present any pertinent evidence of probative value and to know and rebut by cross-examination or otherwise any other evidence submitted. The Administrative Law Judge will direct the order of testimony and rule on the admissibility of evidence. Oral or written evidence of any nature, whether or not conforming to the legal rules of evidence, may be accepted and will be given its proper weight. However, no finding of fact will be based solely on contested hearsay. Any official records of the Department, including reports submitted in connection with the administration of the Employment Security Act may be included in the record. The Administrative Law Judge may take such additional evidence as is deemed necessary.

(c) The parties to an appeal, with consent of the Administrative Law Judge, may stipulate to the facts involved. The Administrative Law Judge may decide the appeal on the basis of such facts, or in his discretion, may set the appeal for hearing and take such further evidence as deemed necessary to determine the appeal.

(d) The Administrative Law Judge may require portions of the evidence to be transcribed as necessary for rendering a decision.

 

R994-406-311. Rescheduling, Continuing and Reopening a Hearing and Decisions when a Party Fails to Participate.

(1) If a party knows in advance of the hearing that they will be unable to participate in the hearing on the date or time scheduled, the party must request that the hearing be rescheduled or continued to another day or time.

(a) The request must be made prior to the hearing. If the request is not made prior to the hearing, the party must show cause for failing to make a timely request.

(b) The request must be made orally or in writing to the ALJ scheduled to hear the case or the ALJ's supervisor.

(c) The party making the request must show cause for the request.

(d) Normally, a party will not be granted more than one request for a continuance.

(2) If a party fails to appear for or participate in the hearing, either personally or through a representative, the ALJ will issue a decision based on the available evidence.

(3) Any party failing to participate, personally or by authorized representative, in a hearing may request that the hearing be reopened.

(a) The request will be granted if the party was prevented from appearing at the hearing due to circumstances beyond the party's control.

(b) The request may be granted upon such terms as are just for any of the following reasons: mistake, inadvertence, surprise, excusable neglect or any other reason justifying relief from the operation of the decision. The determination of what sorts of neglect will be considered excusable is an equitable one, taking into account all of the relevant circumstances including:

(i) the danger that the party not requesting reopening will be harmed by reopening,

(ii) the length of the delay caused by the party's failure to participate including the length of time to request reopening,

(iii) the reason for the request including whether it was within the reasonable control of the party requesting reopening,

(iv) whether the party requesting reopening acted in good faith, and

(v) whether the party was represented by another at the time of the hearing. Attorneys and representatives are held to a higher standard, and

(vi) whether based on the evidence of record and the parties arguments or statements, taking additional evidence might effect the outcome of the case.

(c) Requests to reopen are remedial in nature and thus must be liberally construed in favor of providing parties with an opportunity to be heard and present their case. Any doubt must be resolved in favor of granting reopening.

(d) Excusable neglect is not limited to cases where the failure to act was due to circumstances beyond the party's control.

(e) The request must be in writing, must set forth the reason for the request and must be mailed, faxed or delivered to the Division of Adjudication within ten days of the issuance of the decision made pursuant to paragraph (2) above. If the request is made after the expiration of the time limit, the party requesting reopening must show good cause for not making the request within ten days.

(f) The ALJ has the discretion to schedule a hearing to determine if a party requesting reopening satisfied the requirements of this rule or may, after giving the other party an opportunity to respond to the request, grant or deny the request on the basis of the official record in the case.

(4) The ALJ may, on the ALJs own motion, reschedule, continue or reopen a case if it appears necessary to take continuing jurisdiction based on a mistake as to facts or if the denial of a hearing would be an affront to fairness.

 

R994-406-312. Withdrawal of Appeal.

Any party who has filed an appeal from a decision of the Department may request withdrawal of the appeal by making a request to an Administrative Law Judge, explaining the reasons for the withdrawal. The Administrative Law Judge may deny such a request if the withdrawal of the appeal could result in a disservice to any of the parties, including the Department.

 

R994-406-313. Division a Party to Proceedings.

The Division is the authorized agent of the Department. The Act requires that the Department be given notice of the pendency of an appeal and that the Department will be a party to the proceedings. Unless the Department designates a representative who is authorized to represent the Department in appeals, notification of appeals will be sent to the Division of Workforce Information and Payment Services which rendered the initial determination. As a party to the hearing the Department or its representatives have all rights and responsibilities of other interested parties to present evidence, bring witnesses, cross-examine witnesses, give rebuttal evidence, and appeal decisions of the Administrative Law Judge. Where the burden of proof is with the Department, the failure of the Department to meet that burden may result in an unfavorable ruling for the Department. The Administrative Law Judge cannot act as the agent for the Department and therefore is limited to including in the record only that evidence which is in the Department files or submitted by Department representatives. Witnesses for the Department may be called on the motion of the Administrative Law Judge when the need for such testimony is necessary to clarify rather than impeach the testimony or evidence presented by the other parties, or the need for such witnesses or evidence could not have been anticipated by the Department prior to the hearing.

 

R994-406-314. Prompt Notification of Decision.

All decisions by Administrative Law Judges which affect the rights of any party with regard to benefits, tax liability, or jurisdictional issues will be mailed to the last known address of the parties or delivered in person. Each decision issued will be in writing with a complete statement of the findings of fact, reasoning and conclusions of law and will include or be accompanied by a notice specifying the further appeal rights of the parties. The notice of appeal rights shall state clearly the place and manner for taking an appeal from the decision and the period within which an appeal may be taken.

 

R994-406-315. Finality of Decision.

Decisions of the Administrative Law Judge are binding on all parties and are the final decision of the Department as provided by Subsection 35A-4-508(7) unless appealed within 30 days of mailing or delivery of the decision.]

 

R994-406-401. Fault Overpayments - General Definition.

Subsection 35A-4-406(4) identifies the repayment requirements of individuals who have been overpaid due to fraud, or due to claimant fault not constituting fraud.

 

R994-406-402. Fraud.

(1) When the Department has evidence of an overpayment resulting from the claimant's failure to properly report material information, the claimant will be notified of the issue, given an opportunity to provide information concerning the issue, and told that payments are being held pending a decision. In such circumstances, payment of benefits for claims currently in process may be held for up to two weeks pending the issuance of a fraud or overpayment decision. Benefit payments which have not been paid for eligible weeks prior to the disqualification period under Subsection 35A-4-405(5), shall be used to reduce such an overpayment. 100% of the benefit check to which he is entitled will be used to reduce the overpayment.

(2) The overpayment and penalties for fraud are established only when benefits have been denied under Subsection 35A-4-405(5). The repayment amount is determined by Subsection 35A-4-405(5) and, following a decision, repayment must be made in cash before the claimant will be eligible to establish a waiting week credit or receive future benefit payments. Therefore, the overpayment and penalties cannot be offset.

 

R994-406-403. Claimant Fault.

(1) Elements of Fault.

Fault is established if all three of the following elements are present. If one or more element cannot be established, the overpayment does not fall under the provisions of Subsection 35A-4-405(5).

(a) Materiality.

Benefits were paid to which the claimant was not entitled.

(b) Control.

Benefits were paid based on incorrect information or an absence of information which the claimant reasonably could have provided.

(c) Knowledge.

The claimant had sufficient notice that the information might be reportable.

(2) Claimant Responsibility.

The claimant is responsible for providing all of the information requested of him in written documents regarding his Unemployment Insurance claim, as well as any verbal instructions given by a Department representative. Before certifying that he is eligible for benefits, he is under obligation to make proper inquiry if he has any questions to determine definitely what is required. Therefore, when a claimant has knowledge that certain information may affect his claim, but makes his own determination that the information is not material or if he ignores it, he is at fault.

(3) Receipt of Settlement or Back-Pay.

(a) A claimant is "at fault" for an overpayment created if he fails to advise the Department that grievance procedures are being pursued which may result in payment of wages for weeks he claims benefits.

(b) When the claimant advises the Department prior to receiving a settlement that he has filed a grievance with his employer, and he makes an assignment directing the employer to pay to the Department that portion of the settlement equivalent to the amount of unemployment compensation he receives, he will not be "at fault" if an overpayment is created due to payment of wages attributable to weeks for which he receives benefits. If the grievance is resolved in favor of the claimant and the employer was properly notified of the wage assignment, the employer is liable to immediately reimburse the Unemployment Insurance Fund upon settlement of the grievance. If reimbursement is not made to the Department consistent with the provisions of the Assignment, collection procedures will be initiated against the employer.

(c) If the claimant refuses to make an assignment of the wages he is claiming in a grievance proceeding, benefits will be withheld on the basis that he is not unemployed because he anticipates receipt of wages. In this case, the claimant should file weekly claims and if he does not receive back wages when the grievance is resolved, benefits will be paid for weeks properly claimed provided he is otherwise eligible.

 

R994-406-404. Method of Repayment of Fault Overpayments.

(1) When the claimant has been determined to be "at fault" in the creation of an overpayment, the overpayment must be repaid. If payment is made by personal check, no benefit checks will be released until the personal check has been honored by the bank. If the claimant is otherwise eligible and files for additional benefits during the same or any subsequent benefit year, 50% of the benefit check to which he is entitled will be used to reduce the overpayment.

(2) Discretion for Repayment.

(a) Full restitution is required of all overpayments established under Subsection 35A-4-405(5). At the discretion of the Department, however, the claimant may not be required to make payments and legal collection proceedings may be held in abeyance. The overpayment will be deducted from future benefits payable during the current or subsequent benefit years. Discretion may be exercised:

(i) if the Department or the employer share fault in the creation of the overpayment, or

(ii) if installment payments would impose unreasonable hardship such as in the case of an individual with an income which does not provide for additional money beyond minimum living requirements.

(b) The Department cannot exercise repayment discretion for fraud overpayments and these amounts are subject to all collection procedures.

(3) Installment Payments.

(a) If repayment in full has not been made within 90 days of the first billing the Department shall enter into an agreement with the claimant whereby repayment of the money owed is collectible by monthly installments. The Department shall notify the claimant in writing of the minimum installment payment which the claimant is required to make. If the claimant is unable to make the minimum installment payments, he may request a review within ten days of the date written notice is mailed or delivered.

(b) Installment agreements shall be established as follows:

Overpayments Equaling Minimum Monthly Payment

$3,000 or less 50% of claimant's weekly benefit entitlement

3,001 to 5,000 100% of claimant's weekly benefit entitlement

5,001 to 10,000 125% of claimant's weekly benefit entitlement

10,001 or more 150% of claimant's weekly benefit entitlement

(c) Installment agreements will not be approved in amounts less than those established above except in cases of extreme hardship. An ability to make a minimal payment is presumed if the claimant has a household income which is in excess of the poverty level guidelines as established by the federal government and used to grant waivers of overpayments under Subsection 35A-4-406(5). The installment agreement will be reviewed periodically and adjustments made based upon changes in the claimant's income or circumstance. A due date will be established for each installment agreement which is mutually agreed upon by the claimant and the Department.

(4) Collection Procedures.

(a) Billings are sent to claimants with overpayments on a monthly basis. After 30 days, if payment is not made, the account is considered delinquent. If no payment has been received in 90 days the individual is notified that a warrant will be filed unless a payment is received within 10 days. However, there may be other circumstances under which a warrant may be filed on any outstanding overpayment. A warrant attaches a lien to any personal or real property and establishes a judgment that is collectible under Utah Rules of Civil Procedure.

(b) All outstanding overpayments are reported to the State Auditor for collection whereby any refunds due to the individual from State income tax or any such rebates, refunds, or other amounts owed by the state and subject to legal attachment may be applied against the overpayment.

(5) Offset In Time.

Offset in time occurs when the claimant files valid weekly claims to replace weeks of benefits which were overpaid. When an overpayment is established after the claimant has exhausted all benefits, the claimant may file claims for additional weeks during the same benefit year provided he is otherwise eligible. Offset in time will be allowed on claims that have expired if a written request is made within 30 days of the notification of the overpayment. No offset in time will be allowed on overpayments established under Subsection 35A-4-405(5). One hundred percent (100%) of the weekly benefit amount for the weeks claimed will be credited against the established overpayment up to the amount of the balance owed to the Department. No penalty for late filing will be assessed when a claimant is otherwise eligible to file claims to offset in time.

 

R994-406-501. Non-Fault Overpayments - General Definition.

Subsection 35A-4-406(5) identifies the repayment requirements of individuals who have received an overpayment of benefits through no fault of their own. Such overpayments are referred to as "accounts not receivable" (ANR).

 

R994-406-502. Responsibility.

(1) The claimant is responsible for providing all of the information requested in written documents as well as any verbal request from a Department representative. If the claimant has provided such information, and then receives benefits to which he is not entitled through an error of the Department or an employer, he is not at fault for the overpayment.

(2) "Through no fault of his own" does not mean the claimant can shift responsibility for providing correct information to another person such as a spouse, parent, or friend. The claimant is responsible for all information required on his claim.

 

R994-406-503. Method of Repayment.

Even though the claimant is without fault in the creation of the overpayment, 50 percent of the claimant's weekly benefit amount will be deducted from any future benefits payable to him until the overpayment is repaid. No billings will be made and no collection procedures will be initiated.

 

R994-406-504. Waiver of Recovery of Overpayment.

(1) If waiver of recovery of overpayment is granted under Subsection 35A-4-406(5), the amount of the overpayment owing at the time the request is granted is withdrawn, forgiven or forgotten and the claimant has no further repayment obligation. Granting of a waiver will not be retroactive for any of the overpayment which has already been offset except if the offset was made pending a decision on a timely waiver request.

(a) Time Limitation for Requesting Waiver.

A waiver must be requested within 10 days of the notification of opportunity to request a waiver or within 10 days of the first offset of benefits following a reopening or upon a showing of a significant change of the claimant's financial circumstances. Good cause will be considered if the claimant can show the failure to request a waiver within these time limitations was due to circumstances which were reasonable or beyond his control.

(b) Basic Needs of Survival.

The claimant may be granted a waiver of the overpayment if recovery by 50 percent offset would create an inability to pay for the basic needs of survival for the immediate family, dependents and other household members. In making this waiver determination, the Department shall take into consideration all the potential resources of the claimant, the claimant's family, dependents and other household members. The claimant will be required to provide documentation of claimed resources. The claimant must also provide social security numbers of family members, dependents and household members. "Economically disadvantaged" for federal programs is defined as 70 percent of the Lower Living Standard Income Level (LLSIL). "Inability to meet the basic needs of survival" is defined consistent with "economically disadvantaged." Therefore, if the claimant's total family resources in relation to family size are not in excess of 70 percent of the LLSIL, the waiver will be granted provided the economic circumstances are not expected to change within an indefinite period of time. Individual expenses will not be considered.

(c) Indefinite Period.

An indefinite period of time is defined as the current month and at least the next two months. Therefore, the duration of the financial hardship must be expected to last at least three months. If the claimant or household members expect to return to work within the three months the anticipated income will be included in determining if he lacks basic needs of survival for an indefinite period of time. Available resources will be averaged for the three months.

 

R994-406-505. Overpayments Not Set Up (NSU).

The minimum overpayment amount which will be established is determined by multiplying the state maximum weekly benefit amount by 15% and rounding the result to the next highest $5. Overpayments of ($10 or less) less than this amount do not justify the expense of collection and will not be (established) set up (NSU). Accumulations of overpaid benefits, accruing (from) for more than one week, which equal more than ($10) the minimum overpayment amount will be established.

 

KEY: appellate procedures, jurisdiction, overpayments, unemployment compensation

[March 4, 2003]2004

Notice of Continuation May 23, 2002

35A-4-406(2)

35A-4-406(3)

35A-4-406(4)

35A-4-406(5)