[Code of Federal Regulations]
[Title 20, Volume 1]
[Revised as of April 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR255.11]

[Page 505-506]
 
                      TITLE 20--EMPLOYEES' BENEFITS
 
                  CHAPTER II--RAILROAD RETIREMENT BOARD
 
PART 255_RECOVERY OF OVERPAYMENTS--Table of Contents
 
Sec.  255.11  Fault.

    (a) Before recovery of an overpayment may be waived, it must be 
determined that the overpaid individual was without fault in causing the 
overpayment. If recovery is sought from other than the overpaid 
individual but the overpaid individual was not without fault, then 
waiver is not available. However, see Sec.  255.16 of this part for 
provisions as to when administrative relief from recovery may be granted 
in such circumstances.
    (b) Fault means a defect of judgment or conduct arising from 
inattention or bad faith. Judgment or conduct is defective when it 
deviates from a standard of reasonable care taken to comply with the 
entitlement provisions of this chapter. Conduct includes both action and 
inaction. Unlike fraud, fault does not require a deliberate intent to 
deceive.
    (c) Whether an individual is at fault in causing an overpayment 
generally depends on all circumstances surrounding the overpayment. 
Among the factors the Board will consider are: the ability of the 
overpaid individual to understand the reporting requirements of the 
Railroad Retirement Act or to realize that he or she is being overpaid 
(e.g., age, education, comprehension, physical and mental condition); 
the particular cause of non-entitlement to benefits; and the number of 
instances in which the individual may have made erroneous statements.
    (d)(1) Circumstances in which the Board will find an individual at 
fault include but are not limited to:
    (i) Failure to furnish to the Railroad Retirement Board information 
which the individual knew or should have known to be material;
    (ii) An incorrect statement made by the individual which he or she 
knew or should have known was incorrect (including furnishing an opinion 
or conclusion when asked for facts); and
    (iii) Failure to return a payment which the individual knew or 
should have known was incorrect.
    (2) Where any of the circumstances listed in paragraph (d)(1) are 
found to have occurred, the individual shall be presumed to be not 
without fault. This presumption may be rebutted, but the burden of 
presenting evidence to rebut the presumption is on the individual.
    (3) For purposes of paragraph (d)(1)(i), furnishing information to 
the Social Security Administration or any other agency shall not be 
considered to constitute furnishing information to the Railroad 
Retirement Board.
    (4) For purposes of this section, an error on the part of the agency 
shall not extinguish fault on the part of the individual.
    (e) Circumstances in which the Board will find an individual not at 
fault include but are not limited to:
    (1) The overpayment is the result of Board error of which the 
overpaid individual was not aware and could not reasonably have been 
expected to be aware (Example 1 of this section).
    (2) The overpayment is the result of an adjustment to the overpaid 
individual's annuity because of entitlement of another individual to an 
annuity on the same record of compensation as that of the overpaid 
individual (Example 2 of this section).
    (3) The overpayment is the result of the Board's continuing to pay 
an individual after he or she has notified the Board of an event which 
caused or should have caused a reduction in his or her benefit; provided 
that continued payment of the unreduced benefit led the individual to 
believe in good faith that he or she was entitled to the payments 
subsequently received.

[[Page 506]]

    (f) The application of this section may be illustrated by the 
following examples:

    Example (1). The Board makes a mathematical error in the computation 
of an employee's annuity, thus giving the employee a higher rate than he 
or she is entitled to but which is sufficiently close to the estimated 
rate given the employee at the time he or she applied for the annuity 
that the employee believed, in good faith, that the amount was correct. 
The employee is not at fault in causing the overpayment in this case. 
The overpayment may be waived if the requirements of Sec.  255.12 or 
Sec.  255.13 of this part are met.
    Example (2). The widow and four minor children of a railroad 
employee are receiving benefits from the Board under the family maximum. 
Another minor child not living in the same household as the above 
individuals is also determined to be the child of the deceased employee. 
The widow was not aware of the existence of this child. An award of 
benefits to this child causes a reduction in benefits to the other 
individuals under the family maximum benefit provision of the Social 
Security Act. Because of normal administrative delay this reduction does 
not take place for a period of 2 months after its effective date. The 
widow and her children are without fault with respect to this 
overpayment. The overpayment may be waived if the requirements of Sec.  
255.12 or Sec.  255.13 of this part are met.