# COMAR Title 09 — Maryland Department of Labor

## Subtitle 32 — Unemployment Insurance

### Chapter 07 — Reconsideration of Unemployment Insurance Overpayment Recovery and Waiver Request

**Authority:** Labor and Employment Article, §§8-305 and 8-809, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.09 adopted as an emergency provision effective March 14, 1989 (16:7 Md. R. 809); emergency status expired July 14, 1989

**Administrative History:** Regulations .01—.09 adopted permanently effective November 13, 1989 (16:22 Md. R. 2366)

**Administrative History:** Chapter recodified from COMAR 24.02.07 to COMAR 09.32.07, May 1996

**Administrative History:** Regulation .02 amended as an emergency provision effective August 17, 2022 (49:20 Md. R. 909); emergency provision expired effective November 22, 2022

**Administrative History:** Regulation .02 amended effective December 26, 2022 (49:26 Md. R. 1079)

**Administrative History:** Regulation .03B amended as an emergency provision effective August 17, 2022 (49:20 Md. R. 909); emergency provision expired effective November 22, 2022

**Administrative History:** Regulation .03B amended effective December 26, 2022 (49:26 Md. R. 1079)

**Administrative History:** Regulation .04 amended as an emergency provision effective August 17, 2022 (49:20 Md. R. 909); emergency provision expired effective November 22, 2022

**Administrative History:** Regulation .04 amended effective December 26, 2022 (49:26 Md. R. 1079)

**Administrative History:** Regulation .08E, F adopted as an emergency provision effective August 17, 2022 (49:20 Md. R. 909); emergency provision expired effective November 22, 2022

**Administrative History:** Regulation .08E, F adopted effective December 26, 2022 (49:26 Md. R. 1079)

#### Regulation .01 Purpose.

*COMAR 09.32.07.01*

The purpose of these regulations is to establish procedures and interpret the standards for waiver of recovery of overpayments of unemployment insurance benefits, and to establish procedures for appealing the correctness of the application of an overpayment, in accordance with Labor and Employment Article, §8-809, Annotated Code of Maryland.

#### Regulation .02 Scope and Applicability.

*COMAR 09.32.07.02*

These regulations apply to any claimant who has been found to have received an overpayment of unemployment insurance benefits and requested a waiver, unless the overpayment was determined to have resulted from fraud on the part of the claimant.

#### Regulation .03 Definitions.

*COMAR 09.32.07.03*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Claimant” means any individual who has filed a claim for unemployment insurance benefits.

  (2) “Deliver” or “delivery” means the Department’s transmission of a communication to a claimant in accordance with the claimant’s preferred communication method. In cases involving notices of a decision of an overpayment waiver request, the term “deliver” or “delivery” means to also require transmission by first-class mail to the claimant’s last known address.

  (3) “Deliver” or “delivery” means the Department's transmission of a communication to a claimant in accordance with the claimant's preferred communication method. In cases involving notices of a decision of an overpayment waiver request, the term “deliver” or “delivery” means to also require transmission by first-class mail to the claimant's last known address.

  (4) “Department” means the Maryland Department of Labor.

  (5) “Overpaid claimant” means any claimant who has been determined to have received an overpayment of unemployment insurance benefits.

  (6) “Overpayment” means any amount of unemployment insurance benefits received by an individual which has been determined to be in excess of that which the individual was entitled to receive under the applicable law.

  (7) “Secretary” means the Secretary of Labor, or the Secretary's authorized representative.

  (8) “Unemployment insurance benefits” means any monetary payments of benefits, including dependents' allowances, which are made pursuant to:

    (a) The Unemployment Insurance Law and intended to replace income lost by reason of unemployment; or

    (b) Another state's unemployment insurance law or an unemployment insurance benefit program of the United States, where the benefits paid are subject to a governmental offset agreement.

  (9) “Unemployment Insurance Law” means Labor and Employment Article, Title 8, Annotated Code of Maryland.

#### Regulation .04 Recovery of Overpayments.

*COMAR 09.32.07.04*

The Department may recover overpayments by beginning civil actions or, in the discretion of the Secretary, overpayment may be offset against current or future payments of unemployment insurance benefits to which the overpaid claimant is entitled. If the Department chooses to recover the overpayment by offset, the amount of the offset may be 100 percent of the current or future weekly benefit entitlement. The Department may not recover an overpayment before the time for requesting an overpayment waiver has expired, while a timely filed waiver request is pending decision by the Secretary or the Secretary’s designee, or while a timely filed appeal of the denial of an overpayment waiver request is pending.

#### Regulation .05 Waiver of Recovery of Overpayments.

*COMAR 09.32.07.05*

A. Waiver of recovery of the overpayment will be approved when, in the judgment of the Secretary, the overpaid claimant:

  (1) Is without fault; and

  (2) Lacks the ability to pay now and in the foreseeable future, or is likely to be below the federal minimum poverty level and is likely to remain there for the foreseeable future.

B. If an overpaid claimant is found to be without fault because the overpayments were caused exclusively by agency error, the waiver request may be recommended.

C. In any proceedings under these regulations, the overpaid claimant shall have the burden of proving entitlement to a waiver.

D. An overpayment found to have been illegally received pursuant to Labor and Employment Article, §8-809, Annotated Code of Maryland, may not be waived.

#### Regulation .06 Determination of Fault.

*COMAR 09.32.07.06*

A. “Fault”, as used in the phrase “without fault”, applies only to the fault of the overpaid claimant. Fault on the part of the Department in making the overpayment does not relieve the overpaid claimant of liability for repayment if the claimant's fault contributed to the overpayment.

B. In determining whether an individual is at fault, the Secretary may consider the nature and cause of the overpayment and the capacity of the particular claimant to have recognized the error causing the overpayment. The elements which constitute fault on the part of the overpaid claimant depend upon whether the facts show:

  (1) An incorrect statement made by the claimant which the claimant knew or should have known to be incorrect;

  (2) Failure to furnish information which the claimant knew or should have known to be material, including failure to correct a monetary determination; or

  (3) Acceptance of a payment which the claimant knew or should have known was incorrect.

C. The determination of what an overpaid claimant “should have known” is an issue of fact to be found by the administrative agency.

#### Regulation .07 Notice of Recovery and Right to Request Waiver.

*COMAR 09.32.07.07*

When the Secretary decides to recover an overpayment, the Secretary shall notify the overpaid claimant in writing. The notice shall include:

A. The amount to be recovered;

B. The weeks with respect to which the benefits were paid;

C. The provision of the law under which it was determined that the claimant was ineligible for benefits;

D. A brief explanation of the means available to the Department for recovery of the overpayment;

E. A statement directing the claimant to the claimant's local office to obtain an application for waiver of overpayment; and

F. A statement advising that the claimant has 30 days from the date of the notice to submit an application for waiver of overpayments, unless the claimant can show good cause for not meeting the 30-day requirement.

#### Regulation .08 Processing of Application for Waiver of Overpayment.

*COMAR 09.32.07.08*

A. After an application for waiver of overpayment is received, the local office representative shall determine the cause of the overpayment and forward the application to the Department's recoveries section. The recoveries section shall make the initial recommendation to recover or waive the overpayment.

B. If the recommendation is to recover the overpayment and deny waiver, written notice shall be given to the claimant. The notice shall include a statement:

  (1) Of the reasons for the proposed denial in accordance with Regulation .05 of this chapter, including a determination of fault and the claimant's ability to pay. If the waiver request is denied on the ground that the overpaid claimant was at fault, however, no further finding will be made.

  (2) Advising the claimant of the right to provide additional information within 15 days to the Secretary for the Secretary's consideration.

C. Applications recommended for approval shall be forwarded to the Secretary.

D. The Secretary may grant a waiver of overpayment only within 1 year of the initial determination establishing the overpayment. The 1-year period shall be stayed pending the outcome of any appeal.

E. Following the grant or denial of a request for waiver of recovery of an overpayment, the Department shall promptly deliver to the claimant a written notice setting out the basis for grant or denial of the request and explaining the claimant's appeal rights.

F. Within 30 days of the delivery of a denial of a request for waiver of a recovery of overpayment, a claimant may appeal the denial in accordance with COMAR 09.32.11 or, if the claimant disagrees with the decision issued, in accordance with COMAR 09.32.06, as applicable.

#### Regulation .09 Interest on Overpayments.

*COMAR 09.32.07.09*

Interest on overpayments shall be calculated from the initial determination of the overpayment.