4]. (a) If it is finally determined that an individual received benefits under this chapter for which the individual was not entitled, the individual shall repay, in cash, the amount of the overpayment to the Department for the Unemployment Compensation Fund. The individual is liable regardless of whether the overpayment was received through fraud or mistake, or whether the individual was legally awarded the payment of benefits at the time but on appeal was subsequently found not to be entitled thereto. (b) Nonfraud overpayments are collected as follows: (1) If the person becomes eligible for benefits before the amount of the overpayment is completely repaid, the Department shall deduct the remaining balance of the overpayment from the benefits. a. The Department has the discretion to elect not to require repayment of the overpayment amount in cash, and elect to only deduct the overpayment amount from subsequently awarded benefits. b. The deduction from subsequently awarded benefits can be only 50% of the payable weekly benefit amount until the overpayment is completely repaid. (2) Discretionary decisions by the Department of how or by what means the Department elects to collect nonfraud overpayments, including by cash, deduction from subsequently awarded benefits, or by any other means, are administrative collections decisions made by the executive branch of government and are not subject to review by quasi-judicial or judicial tribunals of this State. (3) The Department may not collect interest on a nonfraud overpayment. (c) (1) When the Department determines that a claimant who is liable to repay any overpayment amount committed fraud in order to obtain benefits, the claimant shall be required to repay the overpayment amount due to the Department as well as interest thereon. Benefit overpayments paid to a claimant as the result of fraud shall be repaid with interest at the same rate as provided for past due assessments and reimbursement payments in lieu of assessments under § 3357 of this title and 19 DE Admin. Code § 1202-18. Interest collected pursuant to this section shall be paid into the Special Administration Fund. In addition, a monetary penalty of 15.0% of the amount received by a claimant as the result of fraud shall be assessed. The monetary penalty collected under this section shall be paid into the Unemployment Compensation Fund under § 3161 of this title. (2) When the Department determines that an individual obtained an overpayment by fraud, in addition to any disqualification under § 3314(6) of this title, the individual is disqualified from receiving benefits for any week of unemployment, including the week in which the determination of fraud is made, until the Department determines that all of the following have occurred: a. The total amount of the fraud overpayment has been repaid in full. b. The monetary penalty, including interest, under this subsection has been paid in full. (3) For fraud overpayments established by final decision before August 29, 2019, paragraph (c)(2) of the section does not apply and the Department may choose to deduct the remaining balance of the fraud overpayment due to the Department from future benefits payable to the individual under this chapter, with 100% of the payable weekly benefit amount being deducted from the subsequent awarded benefits until the fraud overpayment established before August 29, 2019, is completely repaid. (d) The Department shall issue a notice of overpayment that includes the grounds for the overpayment, and an order for recoupment, before initiating action to collect the overpayment. Unless an individual files an appeal to an Unemployment Insurance appeals referee within 15 days after the order for recoupment was mailed to the individual at the individual's last known address or otherwise delivered to the individual by the Department, the order for recoupment is final and recoupment shall be made in accordance with the order. An appeal from an Unemployment Insurance appeals referee decision to the Unemployment Insurance Appeal Board must be filed within 15 days after such decision was mailed to the individual or otherwise delivered to the individual by the Department. An appeal from the Unemployment Insurance Appeal Board decision to Superior Court may be made in the same fashion as an appeal of the Unemployment Insurance Appeal Board's benefit decisions. (e) Any employer who makes a deduction from a back wage award to a claimant because of the claimant's receipt of unemployment benefits, for which the claimant has become ineligible by reason of the award, shall be liable to pay into the Unemployment Compensation Fund an amount equal to the amount of the deduction. When the employer has made the payment into the Unemployment Compensation Fund, the amount of the payments shall be considered when determining, if applicable, the employer's entitlement to rehire credit. (f) (1) The Department may do any of the following when an individual has an overpayment debt: a. Write off, in whole or in part, an overpayment debt after a period of 3 years, when it has ascertained after investigation and after reasonable attempts at collection that the overpayment debt is wholly or partly uncollectible. The Department may prescribe the appropriate accounting methods by which the uncollected portion of the debt is written off its accounts instead of being carried indefinitely as an uncollected debt. b. Collect an overpayment of benefits by bringing a civil action in a court of competent jurisdiction against the claimant. 1. Nonfraud overpayments. — No action shall be taken by the Department to collect a nonfraud overpayment of benefits from an individual after a period of 5 years from the end of the "benefit year," as defined in § 3302 of this title, with respect to which such benefits were paid, unless during this 5-year period the Department has brought a civil action in a court of competent jurisdiction against the individual. 2. Fraud overpayments. — Notwithstanding § 8106 of Title 10, or any other law to the contrary, the Department may bring a civil action in a court of competent jurisdiction against a person for purposes of collecting a fraud overpayment of benefits at any time. 3. All overpayments. — Notwithstanding anything in this section, § 8106 of Title 10, or any other law to the contrary, the Department may collect at any time an overpayment of benefits through any of the following means: A. An offset of future benefits under this section. B. As provided in § 545 of Title 30. C. As provided in § 6402 of the Federal Internal Revenue Code (26 U.S.C. § 6402). D. As provided in § 303(m) of the Social Security Act (42 U.S.C. § 503(m)). (2) The Department shall credit any payment on account by a claimant on an overpayment, by any means, except the offset of subsequently awarded benefits, against the outstanding indebtedness of the claimant in the following manner: a. First, principal on fraud overpayments in oldest to newest outstanding indebtedness order. b. Second, interest on fraud overpayments. c. Third, monetary penalty on fraud overpayments. d. Fourth, principal on nonfraud overpayments in oldest to newest outstanding indebtedness order. e. Fifth, court costs. (3) The Department shall credit any collection of an overpayment by the offset of subsequently awarded benefits by the Department only against the principal of the outstanding indebtedness of the claimant under § 303(a)(5) of the Social Security Act (42 U.S.C. § 503) and § 3304(a)(4) of the Federal Unemployment Tax Act (26 U.S.C. § 3304). The Department shall credit an offset of subsequently awarded benefits in the following manner: a. First, to fraud overpayment principal in oldest to newest outstanding indebtedness order. b. Second, to nonfraud overpayment principal in oldest to newest outstanding indebtedness order. (g) In addition to the methods of collection authorized under this chapter, the Department may collect overpayments, interest, penalties, and other liabilities due under this chapter as provided in § 545 of Title 30, § 6402 of the Federal Internal Revenue Code (26 U.S.C. § 6402), § 303(m) of the Social Security Act (42 U.S.C. § 503(m)), and any other means available under federal or state law. (h) (1) Effective March 15, 2020, the Department may waive the recovery of any overpayment of benefits received under this chapter by any individual for which the individual was not entitled, in accordance with such regulations as the Department prescribes, if the Department finds any of the following: a. In the judgment of the Department, recovery would be against equity and good conscience. b. The overpayment was the result of Department error. (2) Repayment of an overpayment may be found by the Department to be against equity and good conscience if the individual, at the time of submitting an application for overpayment waiver, is a current recipient of a low-income based public assistance program designated by the Department. (3) Fraud overpayments are not eligible for waiver under this section. (4) The Department shall notify the overpaid individual in writing of the opportunity to file an application to request waiver of an overpayment. The individual shall have 30 days from the date of the notice to submit a completed application for waiver of any overpayment set forth in the notice. (5) Following the grant or denial of a request for waiver of recovery of an overpayment, the Department shall promptly deliver to the overpaid individual, by mail to the individual's last known address or other delivery method, a written determination setting forth the basis for grant or denial of the request and explaining the overpaid individual's appeal rights. The determination becomes final unless a written appeal is filed to the appeals tribunal within 15 days after the determination is mailed to the individual's last known address or otherwise delivered to the individual, which appeal shall be handled in the same manner as appeals of benefit determinations pursuant to § 3318(c) of this title. The individual and the Department shall be notified of the appeals tribunal's decision, together with the reasons therefor, which shall be final unless within 15 days from the date of mailing or other delivery method of the decision a further appeal is initiated to the Unemployment Insurance Appeal Board, which appeal shall be handled in the same manner as appeals of benefit determinations pursuant to §§ 3320, 3321 and 3323 of this title. The decision of the Unemployment Insurance Appeal Board shall be final and not subject to further review.
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