TN 6 (08-07)
GN 04030.090 Reopening When Government Pension Offset (GPO) is Involved
The rules of administrative finality apply to initial determinations involving GPO the same as to any other initial determination. (See GN 03101.040 and GN 03101.070 for a definition of initial determination.)
COLA increases are considered changes in the amount of the non-covered government pension for the purpose of imposing GPO. A non-covered pension COLA notice can be used to impose GPO since it is considered to be a change in the factual situation.
NOTE: A Social Security Administration COLA notice is not considered to be a change in the factual situation. (see GN 04030.060)
B. Situations involving reopening and Government Pension Offset (GPO)
1. Initial adjudicator does not address GPO
When we initially entitled someone to benefits, there was information in the file that the claimant was entitled to a government pension not covered by Social Security. However, the adjudicator did not address the non-covered government pension in any way and no paragraph was included in the award notice.
SSA's notice of entitlement is a notice of an initial determination on all issues which were before the adjudicator. Therefore, an initial determination has been made on GPO; i.e., the adjudicator has “determined,” albeit erroneously, that GPO is not an issue or does not apply in this case.
If the error is discovered within 4 years of the notice of initial determination, then we can reopen the earlier initial determination based on having good cause with this error on the face of the evidence.
If more than 4 years pass after the date of the notice of the initial determination and we discover the error and the claimant is still receiving the same pension amount on which the initial determination was based, then we cannot correct the error and cannot impose GPO since the end result of revising the record would be unfavorable to the claimant (GN 04010.020).
If there was any change in the non-covered government pension amount, (increase or decrease in amount, benefits stopped and started, lump-sum awarded, recalculation, COLA, etc.) at any time after the date of the initial determination and we failed to offset the SSA benefit amount, we can make a new initial determination and calculate the GPO considering the amount of the non-covered government pension effective with the date of the change in the non-covered pension amount.
2. Claimant misinforms SSA about government pension
The claimant answered the government pension question on the application and said he was not receiving a government pension when, in fact, he was.
We may consider the possibility of reopening based on fraud or similar fault and impose GPO retroactive to the first possible date, regardless of when we make the discovery if development justifies a fraud or similar fault determination.
Follow normal procedures for fraud and similar fault as stated in GN 04020.010.
If fraud or similar fault is established, the claim can be reopened at any time.
If fraud or similar fault is not established, the normal reopening rules apply.
3. Government pension question not answered
The government pension question was on the application but was not answered. We consider that when we adjudicated the claim, we made an initial determination that GPO did not apply.
We can make a determination that GPO applies and impose offset beginning with the date of any change in the government pension which occurred after the initial determination.
If there has not been a change in the amount of non-covered pension, normal administrative finality rules apply.
4. Unverified non-covered government pension amount is not correct
On her application, the spouse of a NH tells us she is receiving a non-covered government pension of $700 per month. We fail to verify the amount and merely compute the GPO using her allegation.
If the error is discovered within 4 years of the notice of initial determination, we can reopen the prior erroneous determination based on good cause since we have new and material evidence of her non-covered government pension amount.
If more than 4 years pass and we later find out it should have been $800 per month, we are bound by the initial determination which was made using $700 per month, regardless of what paragraph was included in the notice.
If there has been any change in the amount of the non-covered pension at any time after the date of the initial determination, we can make a new initial determination and impose offset effective with the date of the change.
NOTE: If fraud or similar fault is established, the claim could be reopened based on the unrestricted reopening policy in GN 04020.010.
5. Copy of non-covered government pension award filed in folder after initial entitlement to SSA spouse’s benefits
A spouse states on her application that she is eligible and has filed for her non-covered government pension but has not yet become entitled to her government pension or received any pension payments. We do not include her non-covered government pension amount when calculating her benefit amount.
When she is awarded her non-covered government pension, she sends us a copy of her award letter. We file it in the folder and do not recalculate her benefit amount. Five years later we discover the award letter and realize our mistake.
Since we never made an initial determination and did not send a notice of an initial determination for the receipt of her non-covered government pension award, we can impose GPO effective the first date it should have been imposed. (See GN 04001.030 regarding the failure to make a determination.)
6. Non-covered government pension awarded after initial entitlement to SSA spouse’s benefits
At some date after the initial determination of entitlement to Social Security spouse’s benefits, a claimant becomes entitled to a non-covered government pension.
We can make a new initial determination and impose offset beginning with the first month she is entitled to both Social Security and a non-covered government pension. Even if we are not advised of the award until many years after the awarded pension, we can still make an initial determination on this issue, since one was not previously made, and impose GPO the first possible month she is concurrently entitled to Social Security and a non-covered government pension.
In addition, if the claimant tells us when the pension award is made but we do not make an initial determination based on the report, (and thus, do not send a notice of an initial determination), we can impose GPO whenever we discover the error (retroactive to the first possible month of offset.) (See GN 04001.030 regarding the failure to make a determination.)
7. Initial “erroneous” determination — non-covered pension Cost of Living Adjustment (COLA) notice issued within 4 years but error not discovered within 4 years
In 01/1990 SSA determines that GPO does not apply because the last 60 months of employment were covered under Social Security. In 10/1999, SSA discovers that the claimant only had 50 months of covered employment. There was also a Cost of Living Adjustment (COLA) notice from the Office of Personnel Management (OPM) stating the claimant’s pension amount increased by 3% effective 01/1992. There has been no COLA notice from the OPM since 01/1992.
Since SSA made an initial determination in 01/1990 that GPO did not apply and we did not receive new and material evidence within 4 years from the date of the initial award letter, SSA is bound by the 01/1990 decision that GPO does not apply.
However, since there was a COLA increase in the pension in 01/1992, we can make a new determination that GPO applies effective with the date of the change in the non-covered pension amount (01/92). A non-covered pension COLA notice can be used to make a new initial determination since it represents a change in the factual situation.
If we had discovered that the claimant only had the 50 months of covered employment within 4 years, then we could have reopened and revised this record back to the date of the initial determination of 01/1990.
8. Initial determination addresses GPO – non—covered pension Cost of Living (COLA) notices issued within 4 years but SSA didn’t know about COLAs until more than 4 Years passed from the date of the initial determination
On her application, the spouse of a NH reports that she is receiving a non-covered pension of $777 in 03/1993. SSA determines that GPO applies and imposes offset on her spouse’s benefit in 03/1993. In 04/2003 SSA finds out that she has been receiving an annual cost of living increase (COLA) of 3.3% on her non-covered pension every year since the date she became entitled to SSA.
Because the failure to adjust the Government Pension Offset (GPO) on a Social Security benefit amount based on a COLA of a non-covered pension amount is not an initial determination, we can adjust the SSA benefit anytime we become aware of the change in the non-covered pension amount.
Any action which is not an initial determination can be changed at any time and is not protected by the rules of administrative finality (see GN 04001.030B.1.).
Even though we made an initial determination on GPO over 10 years ago, we can adjust the rates going back to 01/1994 (first COLA) because the failure to adjust the GPO is not an initial determination. (See GN 04001.030)
9. Government pension initially applied in error and over 4 years have passed since the initial determination was made
SSA applied GPO in an initial determination and discovers after 4 years that GPO should not have applied. If there was an error on the face of the evidence, the determination can be reopened under the unrestricted reopening rules since correction would be advantageous (GN 04020.080). However, if there is new and material evidence, we cannot reopen under the unrestricted reopening rules of administrative finality. If the claimant did not appeal the initial determination before, and appeals it now, we can accept a reconsideration and re-examine the claim and determine good cause for late filing exists. (See GN 03101.020A.4)
If GPO was erroneously applied or the spouse/claimant meets one of the exceptions to GPO (see GN 02608.100 – GN 02608.107), SSA can use good cause for late filing in these specific types of cases and correct the error of applying GPO erroneously (see GN 03101.020 and GN 04040.001).
Corrections can be made back to the date of the initial determination provided the outcome is favorable to the spouse/claimant.
The basis for taking an appeal in these situations is that our notices do not give the spouse/claimant sufficient information about the effect of GPO on their benefit amount nor do they provide critical dates for the application of GPO.
If SSA discovers new and material evidence within 4 years of the notice of initial determination that GPO should not have applied or the spouse/claimant meets one of the exceptions to GPO, we can reopen and revise per GN 04010.030.
NOTE: Reconsiderations should be processed following the instructions regarding component responsibility contained in GN 03102.175.
For information on what constitutes a request for reconsideration, see GN 03102.100C.3.
10. Errors discovered while developing cases involving government pension offset errors and over 4 years have passed since the initial determination was made
During development requests, SSA may discover new and material evidence that may affect whether we used the correct information in calculating the GPO.
If errors are discovered within 4 years from the date of the initial determination that SSA should not have imposed GPO, SSA should reopen and revise the determination based on new and material evidence (see GN 04010.030).
If errors are discovered after 4 years from the date of the initial determination that we should NOT have imposed GPO, SSA should send a reconsideration to the claimant and use good cause for late filing of an appeal. Good cause can be used in these cases. (See GN 04030.100B.6.). Explanations should be provided to the beneficiary about the possible error in the benefit amount. SSA should explain that in order to correct the error, the beneficiary must file a reconsideration.