A person who is overpaid an amount of benefits is liable for the amount overpaid unless the following conditions exist:

1. (1) A request is made that the department waive the right to recover the overpayment within 15 days after notice of overpayment;
2. (2) The overpayment was not due to fault, misrepresentation, or willful nondisclosure. In determining fault, the department shall consider the capacity of the particular claimant to recognize the error resulting in the overpayment. The claimant is not at fault if the benefits were retained because of the claimant's good faith reliance on the department. A claimant who negligently reports or fails to report information which results in an overpayment is at fault and is liable for repayment; and

3. (3) The person does not have the ability to repay. In determining the ability to repay, the department may consider family income and any liquid or readily convertible assets available to the claimant and the claimant's spouse in addition to the income. The department may waive liability for the overpayment if the claimant's average gross income for the preceding 12 months does not exceed the applicable level in the table in this section. If the family income exceeds the level in the table, the department may also waive the overpayment in circumstances such as unusually high medical expenses or other financial emergency that would cause repayment to impose an extraordinary hardship on the claimant.

   Percent of Average

   Weekly Wage Rate x 52

   Family Size

4. (Roundtonearestonedollar) 1

   50%

   2

   60%

   3

   70%

   4

   80%

   5

   90%

   6

   100%

   The average weekly wage rate in South Dakota is computed by dividing the sum of the total wages in covered employment, as reported by the department for the preceding calendar year, by the average number of workers in covered employment and dividing the result by 52.

Source: 7 SDR 56, effective December 15, 1980; 9 SDR 81, 9 SDR 124, effective July 1, 1983; 19 SDR 182, effective June 23, 1993; 39 SDR 127, effective January 23, 2013.

General Authority: SDCL 61-6-42.

Law Implemented: SDCL 61-6-42.