PART 17—OVERPAYMENTS FROM THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND UNDER THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM (FSRDS) AND THE FOREIGN SERVICE PENSION SYSTEM (FSPS) Authority: 22 U.S.C. 4047(d); 22 U.S.C. 4071(b); 5 U.S.C. 8470(b); 5 CFR 845.301-07. Source: 71 FR 16229, Mar. 31, 2006, unless otherwise noted. § 17.1 General. This part establishes procedures for notifying individuals of their rights if they have received an overpayment from the Foreign Service Retirement and Disability Fund under Chapter 8 of the Foreign Service Act of 1980, as amended, including their right to contest the determination that there has been an overpayment and the right to request a waiver of recovery of the overpayment. This part also provides the procedures for administrative determination of these rights and for appeals of negative determinations. § 17.2 Conditions for waiver of recovery of an overpayment. (a) Foreign Service Retirement and Disability System. (b) Foreign Service Pension System. (c) When it has been determined that the recipient of an overpayment is ineligible for waiver, the individual is nevertheless entitled to an adjustment in the recovery schedule if he or she shows that it would cause him or her financial hardship to make payment at the rate scheduled. § 17.3 Fault. A recipient of an overpayment is without fault if he or she performed no act of commission or omission that resulted in the overpayment. The fact that the Department of State or other agency may have been at fault in initiating an overpayment will not necessarily relieve the individual from liability. (a) Considerations. (1) Whether payment resulted from the individual's incorrect but not necessarily fraudulent statement, which he/she should have known to be incorrect; (2) Whether payment resulted from the individual's failure to disclose material facts in his/her possession which he/she should have known to be material; or (3) Whether he/she accepted a payment which he/she knew or should have known to be erroneous. (b) Mitigation factors. § 17.4 Equity and good conscience. (a) Defined. (1) It would cause financial hardship to the person from whom it is sought; (2) The recipient of the overpayment can show (regardless of his or her financial circumstances) that due to the notice that such payment would be made or because of the incorrect payment either he/she has relinquished a valuable right or changed positions for the worse; or (3) Recovery could be unconscionable under the circumstances. (b) [Reserved] § 17.5 Financial hardship. (a) Waiver of overpayment will not be allowed in any case prior to receipt and evaluation of a completed Statement of Financial Status, duly sworn by the recipient of the overpayment. (b) Financial hardship may be deemed to exist in, but not limited to, those situations where the recipient from whom collection is sought needs substantially all of his or her current income and liquid assets to meet current ordinary and necessary living expenses and liabilities. (1) Considerations. (i) The individual's financial ability to pay at the time collection is scheduled to be made. (ii) Income to other family member(s), if such member's ordinary and necessary living expenses are included in expenses reported by the individual. (c) Exemptions. § 17.6 Ordinary and necessary living expenses. An individual's ordinary and necessary living expenses include rent, mortgage payments, utilities, maintenance, food, clothing, insurance (life, health and accident), taxes, installment payments, medical expenses, support expenses when the individual is legally responsible, and other miscellaneous expenses which the individual can establish as being ordinary and necessary. § 17.7 Waiver precluded. (a) Waiver of an overpayment cannot be granted when: (1) The overpayment was obtained by fraud; or (2) The overpayment was made to an estate. (b) [Reserved] § 17.8 Burdens of proof. (a) Burden of the Department of State. (b) Burden of individual. § 17.9 Procedures. (a) Notice. (1) The amount of the overpayment; (2) The cause of the overpayment; (3) The intention of the Department to seek repayment of the overpayment, (4) The date by which payment should be made to avoid the imposition of interest, penalties, and administrative costs; (5) The applicable standards for the imposing of interest, penalties, and administrative costs; (6) The department's willingness to discuss alternative payment arrangements and how the individual may offer to enter into a written agreement to repay the amount of the overpayment under terms acceptable to the Department; and (7) The name, address and telephone number of a contact person within the Bureau of Resource Management. The written notice also shall inform the individual of their right to contest the overpayment, their right to request a waiver of recovery of the overpayment, and the procedures to follow in case of such contest or request for waiver of recovery. The notification shall allow at least 30 days from its date within which the individual may contest in writing the overpayment or request a waiver of recovery, including with their submission all evidence and arguments in support of their position. (b) Administrative file. (c) Additional information. (d) Decision and right of appeal.