New Mexico
Register / Volume XXXV, Issue 22 / November 19, 2024
This
is an amendment to 11.3.300 NMAC Section 25 effective 11/19/2024.
11.3.300.325 OVERPAYMENTS AND [WAIVER] WAIVERS
OF OVERPAYMENTS [PURSUANT TO THE TRADE ACTS OR ANY ENACTED FEDERAL EXTENSION
PROGRAM]:
A. Trade
acts or any enacted federal extension program overpayment waivers: The department shall use the process set
forth [herein] in this subsection to evaluate disputes of
overpayments paid under the Trade Acts, the Trade Adjustment Assistance (TAA),
Trade Readjustment Assistance (TRA), Federal Extended Benefits, or any enacted
federal extension program under the following circumstances:
(1) When
a decision of the department results in an overpayment, an appealable
determination will be sent to the claimant.
The claimant may file an appeal no later than 15 days from the date of
the determination in accordance with 11.3.500 NMAC.
(2) At the department’s discretion, a
request for review of an overpayment may be administratively initiated to
determine if a waiver of overpayment will be approved. A waiver will be approved if the department
determines that:
(a) the application was made timely;
(b) payment
was made without the fault of the claimant; and
(c) requiring
repayment would be contrary to equity and good conscience.
(3) The
department's affirmative finding of any one of the following factors of fault
precludes a waiver:
(a) that
the claimant knowingly made a material misrepresentation, which
misrepresentation resulted in the overpayment; or
(b) that
the claimant knowingly failed to disclose a material fact, which failure to
disclose resulted in the overpayment; or
(c) that
the claimant knew or should have known that he was not eligible for the
payment; or
(d) that
the department has previously issued a determination of fraud in regards to the overpayment.
(4) The department shall consider the following
factors in determining whether, in equity and good conscience, the department
should require repayment:
(a) whether
the overpayment was the result of a decision on appeal;
(b) whether
the claimant was given notice that repayment would be required in the event of
reversal on appeal;
(c) whether
the recovery of the overpayment would cause an extraordinary and lasting
financial hardship to the claimant, resulting in the claimant’s inability to
obtain minimal necessities of food, medicine and shelter for at least 30 days
and period of financial hardship lasting at least three months, and
(d) whether, if recoupment from other
benefits is proposed, the length of time of extraordinary and lasting financial
hardship shall be the longest potential period of benefit eligibility as seen
at the time of the request for waiver of determination.
(5) In
determining whether fraud has occurred, the department shall consider the
following factors:
(a) whether the claimant knowingly made,
or caused another to make, a false statement or representation of a material
fact resulting in the overpayment;
(b) whether
the claimant knowingly failed, or caused another to fail, to disclose a
material fact resulting in the overpayment.
[B.] (6) If a determination of fraud is made, the claimant shall be
ineligible for any further TAA, TRA or any other enacted federal
extension program benefits and shall be ineligible for waiver of any
overpayment.
[C.] (7) A finding that the TAA or TRA overpayment was
not the result of a decision on appeal or that the recovery would not cause
extraordinary and lasting financial hardship shall preclude a waiver.
[D.] (8) If a TAA or TRA claimant
fails, without good cause, to complete training, a job search or a relocation,
any TAA or TRA payment to such claimant that is not properly and
necessarily expended in attempting to complete the activity shall constitute an
overpayment. Such overpayments shall be
recovered or waived according to the standards of fault, equity and good
conscience contained in 11.3.300.325 NMAC.
B. Coronavirus Aid, Relief and Economic Security (CARES)
Act overpayment waivers: The department
shall use the process set forth in this subsection to evaluate disputes of
overpayments paid under section 2105 of the CARES Act to specifically include
Pandemic Unemployment Assistance (PUA) benefits, Federal Pandemic Unemployment
Compensation (FPUC) benefits, Mixed Earners Unemployment Compensation (MEUC)
benefits, and Pandemic Emergency Unemployment Compensation (PEUC) benefits:
(1) Claimants who were assessed an
overpayment of CARES Act benefits are eligible to apply for a waiver of all or
part of the federal benefit overpayment.
A waiver will be approved if the department determines that:
(a) payment was made without the fault of
the claimant; and
(b) requiring
repayment would be contrary to equity and good conscience. Equity and good conscious, for the purposes
of this subsection, exists when at least one of three circumstances
exists: 1) recovery would cause financial hardship to
the person from whom it is sought; 2) the recipient of the overpayment can show
that due to the notice that such overpayment could be made or because of the
incorrect payment, either the claimant has relinquished a valuable right or
changed positions for the worse; or 3) recovery would be unconscionable under
the circumstances.
(2) Claimants seeking an overpayment
waiver must affirmatively request an overpayment review. Waivers will be considered on an individual
basis and shall not be granted as a matter of course unless a blanket waiver is
specifically approved by the US Department of Labor.
(3) Claimants may file an application
for a waiver of a federal CARES Act overpayment by completing the application
in their online account or by contacting the department’s operations center.
(4) The department's affirmative finding
of any one of the following factors of fault precludes a waiver:
(a) that
the claimant knowingly made a material misrepresentation, which
misrepresentation resulted in the overpayment; or
(b) that
the claimant knowingly failed to disclose a material fact, which failure to
disclose resulted in the overpayment; or
(c) that
the department has previously issued a determination of fraud in regards to the overpayment. Claimants may appeal the underlying fraud
determination by following procedures outlined in 11.3.500 NMAC.
(5) After the waiver application has
been adjudicated, a determination shall be issued informing the claimant of the
outcome of the request, the overpayment amount waived, the reason any amount
was not waived, and explaining the claimant’s right to appeal the determination
in accordance with 11.3.500 NMAC.
[D] C. In any event, no repayment shall be
required or deduction made until a notice and an opportunity for fair hearing
have been provided to the claimant in accordance with 11.3.500 NMAC, a
determination has been issued by the department, and the determination has
become final. Once a waiver
application has been received by the department, all collections activity,
including benefit offsets, collections notices, or liens shall cease until the
waiver application has been processed and the decision is deemed final or all
appeal deadlines under 11.3.500 NMAC or NMRA 1-077 have expired.
[11.3.300.325 NMAC - Rp,
11.3.300.325 NMAC, 11/1/2018 A, 10/29/2019; A, 11/19/2024]