§ 831.1305 Reopening or appeal.

(a) Time limit. Before appealing to the MSPB, an annuitant may, within 30 calendar days after receipt or the final hearing decision, request the Associate Director to reopen the decision made by his/her representative. If the annuitant elects to request reopening rather than appeal to MSPB after the hearing decision, he/she will have the right to appeal to MSPB after the Associate Director issues his/her decision. The Associate Director may reopen the decision on his/her own motion or when the party requesting reopening submits written argument or evidence which tends to establish that:

(1) New and material evidence is available that was not readily available when the reconsideration decision was made;

(2) The reconsideration decision involves an erroneous interpretation of law or regulation, or a misapplication of established policy; or

(3) The reconsideration decision is of a precedential nature involving new or unreviewed policy considerations that may have effect beyond the case at hand.

(b) Limitations. The Associate Director may not reopen a case which has been appealed to the MSPB.

(c) How to file. A request to reopen a reconsideration decision must be in writing, must include the individual's name, address, date of birth and claim number and must state the basis for the request.

(d) Associate Director for Compensation decision. When the Associate Director has reopened a reconsideration decision, he shall review the record of the proceedings and all written representations. He shall issue a written decision and send copies thereof to the parties and to the employee's representative. This decision shall be final unless appealed to the MSPB in accord with procedures prescribed by MSPB.

§ 831.1306 Recovery of overpayment.

(a) Method of recovery. If possible, OPM will collect overpayments in one lump sum. However recovery may be effected by withholding installments from the annuitant's monthly benefit.

(b) Installment collection. Where recovery must be made in monthly installments

(1) Collection shall be completed within a reasonable period after discovery, considering the annuitant's expected period of entitlement, his/her age and physical condition;

(2) Where fraud or deliberate misrepresentation has been established a monthly maximum need not be applied;

(3) Interest charges may be applied where applicable by law.

(c) Commencement of collection. Recovery according to a monthly recovery schedule shall commence in the next monthly check vouchered for payment after

(1) An annuitant who has been overpaid does not submit a request for reconsideration within the time limit specified in § 831.1303(b)(2) or for a hearing within the time limit specified in § 831.1304(b) or for reopening within the time limit specified in § 831.1305(a); or

(2) The Associate Director for Compensation issues a final decision that the annuitant was overpaid and that waiver should not be granted.

Subpart N Standards for Waiver of Overpayments

SOURCE: 44 FR 37892, June 29, 1979, unless otherwise noted.

§ 831.1401 Conditions of waiver.

Recovery of an overpayment from the Civil Service Retirement and Disability Fund may be waived pursuant to § 8346(b), of title 5, United States Code when the annuitant (a) is without fault and (b) recovery would be against equity and good conscience. Where it has been determined that the recipient of an overpayment is ineligible for waiver, the individual is nevertheless entitled to an adjustment in the recovery schedule if he/she shows that it would cause him/her financial hardship to make payment at the rate scheduled.

§ 831.1402 Fault.

A recipient of an overpayment is without fault if he/she performed no

act of commission or omission which resulted in the overpayment. The fact that the Office of Personnel Management may have been at fault in initiating an overpayment will not necessarily relieve the individual from liability. (a) Considerations. Pertinent considerations in finding fault are—

(1) Whether payment resulted from the individual's incorrect but not necessarily fraudulent statment, which he/she should have known to be incorrect;

(2) Whether payment resulted from the individual's failure to disclose material facts in his/her possession which he/she should have known to be material; or

(3) Whether he/she accepted a payment which he/she knew or should have known to be erroneous.

(b) Mitigation factors. The individual's age, physical and mental condition or the nature of the information supplied to him/her by the Office of Personnel Management or a Federal agency may mitigate against finding fault if one or more contributed to his/her submission of an incorrect statement, a statement which did not disclose material facts in his/her possession, or his/her acceptance of an erroneous overpayment.

§ 831.1403 Equity and good conscience.

(a) Defined. Recovery is against equity and good conscience when

(1) Recovery would cause financial hardship to the person from whom recovery is sought;

(2) The recipient of the overpayment can show (regardless of his or her financial circumstances) that because of a notice that such payment would be made or by reason of the incorrect payment either he/she has relinquished a valuable right or changed positions for the worse; or

(3) Recovery could be unconscionable under the circumstances.

§ 831.1404 Financial hardship.

Financial hardship may be deemed to exist (but should not be limited to) situations where the annuitant from whom collection is sought needs substantially all of his/her current income and liquid assets to meet cur

rent ordinary and necessary living expenses and liabilities.

(a) Considerations. Some pertinent considerations in determining whether recovery would cause financial hardship are as follows.

(1) The individual's financial ability to pay at the time collection is scheduled to be made should be emphasized.

(2) Income to other family members should be reported if such member's ordinary and necessary living expenses are included in expenses reported by the annuitant.

(3) Assets exempt from execution under state law should not be considered in determining an individual's ability to repay the indebtedness, rather, primary emphasis shall be placed upon the annuitant's liquid assets and current income in making such determinations.

§ 831.1405 Ordinary and necessary living expenses.

An individual's ordinary and necessary living expenses include rent, mortgage payments, utilities, maintenance, food, clothing, insurance (life, health and accident), taxes, installment payments, medical expenses, support expenses when the annuitant is legally responsible, and other miscellaneous expenses which the individual can establish as being ordinary and necessary.

§ 831.1406 Waiver precluded.

(a) When not granted. Waiver of an overpayment cannot be granted when

(1) The overpayment was obtained by fraud; or

(2) The overpayment was made to an estate.

§ 831.1407 Burdens of proof.

(a) Burden of OPM. The Associate Director for Compensation must establish by the preponderance of the evidence that an overpayment occurred.

(b) Burden of annuitant. The recipient of an overpayment must establish by substantial evidence that he/she is eligible for waiver or an adjustment.

Subpart O-Allotments From Civil Service Annuities

SOURCE: 42 FR 52373, Sept. 30, 1977; 42 FR 61240, Dec. 2, 1977, unless otherwise noted.

§ 831.1501 Definitions.

(a) “Allotment" means a specified deduction from the annuity payments due an annuitant voluntarily authorized by the annuitant to be paid to an allottee.

(b) "Allottee" means the institution or organization to which the allotment is paid.

(c) "Allotter" means the annuitant from whose annuity payments an allotment is deducted.

(d) "Annuity Payments" means the net monthly annuity payment due an annuitant after all authorized deductions (such as those for health benefits, Federal income tax, overpayment of annuity, payment of a government claim, etc. have been made.

§ 831.1511 Authorized allottees.

(a) An annuitant may make an allotment to the national office or headquarters of any of the following organizations:

(1) A labor organization recognized under Executive Order 11491, as amended;

(2) An employee organization recognized under 5 U.S.C. 8901(8);

(3) Other lawful organizations which:

(i) Are national in scope,

(ii) Are nonprofit and noncommercial, existing primarily for the purpose of representing employee or annuitant interests in their dealings with employing agencies or OPM,

(iii) Consist primarily of Federal employees and/or annuitants, and

(iv) Existed as of December 23, 1975. (b) OPM, in its sole discretion, may approve the individual organizations which may receive allotments only after the organization has collected, in accordance with procedures prescribed by OPM, a minimum of two thousand (2,000) allotment authorizations from civil service annuitants.

(c) OPM shall permit an annuitant to make an allotment to an organization only when:

(a) The amount of any allotment may not be less than one dollar ($1) and, in the absence of compelling circumstances, shall be in whole dollars.

(b) The total amount of any allotment(s) may not exceed the net monthly annuity due the allotter.

(c) An annuitant may make only one allotment payable to the same allottee at the same time and may make no more than a total of two allotments.

(d) Payment of an allotment shall be discontinued when the allotter's annuity payments are terminated or suspended by OPM.

(e) Allotments shall be disbursed on one of the regularly designated paydays of the allotter in accordance with OPM's agreement with the allottee.

(f) Allotters shall agree that OPM shall be held harmless for any authorized allotment request made by an allottee in accordance with the allottee's agreement with OPM.

(g) Allotters shall agree that disputes regarding any authorized allotment shall be a matter between the allotter and the allottee.

(h) The total number of allottees shall be limited to twenty (20), with first preference given to those organizations participating in the Federal Employees Health Benefits Program. Thereafter, preference shall be based on the date of application and the number of annuitants who have completed allotment authorizations.

(i) OPM, in its discretion, shall recover from the allottee, the incremental costs of making allotments.

(j) OPM, in its sole discretion, may terminate an allottee's participation in the allotment program described by this subpart at any time in accordance with its agreement with the allottee.

Subpart P-Procedures for Overpayment Hearings

SOURCE: 44 FR 37893, June 29, 1979, unless otherwise noted.

§ 831.1601 Coverage.

This subpart prescribes procedures for conducting hearings prior to a final decision by the Associate Director for Compensation in regard to overpayment reconsideration decisions under Subpart M of this part.

§ 831.1602 Failure to prosecute.

The representative of the Associate Director shall dismiss a request for hearing (hereinafter referred to simply as request) for failure to prosecute if the annuitant or his/her representative does not furnish required information and duly proceed with the advancement of his/her request. However, instead of dismissing for failure to prosecute, the Associate Director's representative may adjudicate the request if sufficient information for that purpose is available. The Associate Director's representative may reopen a hearing request under this section only on a showing by the appellant that circumstances beyond his/her control prevented him/her from prosecuting his/her request.

§ 831.1304(a), an annuitant is entitled to an informal evidentiary hearing before a representative of the Associate Director for Compensation.

§ 831.1604 Hearing procedures.

(a) The annuitant is entitled to appear at the hearing personally or through or accompanied by a representative. If the annuitant appears through a representative, he/she must provide the annuitant's signed authorization to act in his/her behalf.

(b) The representative of the Associate Director shall allow the annuitant the opportunity to introduce additional evidence, and to cross-examine witnesses.

(1) Evidence. The Associate Director's representative shall make availa

ble and discuss all relevant representations and evidence with the annuitant.

(2) Witnesses. The Associate Director's representative is not authorized to subpoena witnesses. Such witnesses as the annuitant or his/her representative requires for cross-examination purposes will be requested to appear, provided the annuitant submits a list of such witnesses with a summary of the points annuitant will seek to establish during the course of his/her cross-examination to the Associate Director's representative at least 30 days prior to the date of the hearing. The Associate Director's representative shall make a ruling on the need for such witnesses and request the appearance of all such persons employed by the Federal Government. In the event such witnesses are employed by a Federal agency other than OPM, appropriate reimbursement will be made for the employee's appearance. If the witness' employing agency determines that it is not administratively practicable to comply with the request of the Associate Director's representative, it shall submit its written reasons for the declination. The Associate Director's representative shall then insert the explanation in the record, notify the annuitant that witness(es) will not be provided and of the reason therefor and, when appropriate, inform the annuitant of the procedures under which a signed sworn statement or letter of interrogatory will be obtained from the witness(es). Federal employees shall be in an official duty status for all purposes in connection with their provision of sworn statements or their appearance as witnesses and shall be free from restraint, interference, coercion, discrimination, or reprisal in presenting their testimony.

the

(c) The hearing shall be recorded. A transcript will be produced from the recording unless the annuitant requests a stenographer at least 30 days before the date of the hearing. A copy of the transcript will be furnished to the annuitant or his/her representative.

(d) If possible, the hearing will be held in a Federal office building close to the annuitant's home. However, hearings may be scheduled so that sev

eral cases can be heard in one location. In such cases, the hearings will be scheduled in a location centrally located to all requesting parties.

(e) Closing the record. (1) The Associate Director's representative shall close the record in any case after the parties to the request have had a full opportunity to present any and all relevant and material evidence. When there is a hearing, the record shall be closed at the conclusion of the hearing except that the Associate Director's representative has discretion to permit the annuitant to submit written argument or briefs after the record is closed.

(2) When the record is closed there is no right to submit additional evidence into the record, except at the discretion of the Associate Director's representative.

(3) The Associate Director's representative shall recommend a decision based upon the evidence of record.

§ 831.1605 Final decision.

(a) OPM shall issue a written decision and send copies thereof to the annuitant and his/her representative. The decision on each request covered by this part shall contain an analysis of the evidence, findings, a statement of the reasons for the conclusions reached, and recommendations for any corrective action required.

(b) This decision is final and shall inform the annuitant of the right to appeal or to request reopening provided by § 831.1305.

Subpart C-Amount of Insurance

Sec. 870.301 Amount of employee's insurance. 870.302 Annual rates of pay.

Subpart D-Withholdings and Contributions

870.401 Withholdings and contributions.

Subpart E-Termination and Conversion

870.501 Termination and conversion of insurance coverage.

Subpart F-Retired Employees 870.601 Eligibility for life insurance. 870.602 Amount of life insurance.

Subpart G-Employees' Compensation 870.701 Eligibility for life insurance. 870.702 Amount of life insurance.

Subpart H-[Reserved]

Subpart I-Order of Precedence and Designation of Beneficiary

870.901 Designation of beneficiary.

AUTHORITY: 5 U.S.C. 8716, unless otherwise noted.

SOURCE: 33 FR 12506, Sept. 4, 1968, unless otherwise noted.

NOMENCLATURE NOTE: For nomenclature changes to Part 870, see 44 FR 76747, Dec. 28, 1979.

Subpart A-Administration and General Provisions

§ 870.101 Actions on the policy.

Life and accidental death and dismemberment benefits (referred to in this part as "regular insurance") shall be payable in accordance with a policy or policies purchased by OPM from the Metropolitan Life Insurance Co., 1 Madison Avenue, New York, N.Y. 10010, pursuant to section 8709 of title 5, United States Code. Actions at law or in equity to recover on an insurance policy, in which there is not alleged any breach of any obligation undertaken by the United States, should be brought against the insurance company.

870.206 Reopening.

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