(a) When conforming with an applicable federal extended unemployment compensation program, this section implements waiver of repayment requirements by setting out the process that the Agency and Commission shall use to determine whether to waive the repayment and recovery of non-fraudulent overpayments. The terms repayment and recovery will be referred to as repayment in this section, and the federal extended unemployment compensation overpayment will be referred to as overpayment.     
      (b) When a decision of the Agency or Commission results in a federal extended unemployment compensation overpayment, the Agency or Commission will also determine whether the overpayment will be waived.     
      (c) A claimant may appeal the underlying issue that created the overpayment determination pursuant to the provisions of Chapter 212 of the Act and the provisions set out in §815.16 of this chapter (relating to Appeals to Appeal Tribunals from Determinations), §815.17 of this chapter (relating to Appeals to the Commission from Decisions), and §815.18 of this chapter (relating to General Rules for Both Appeal Stages).     
      (d) A claimant may also appeal a denial of a request to waive the repayment of an overpayment in the same manner as stated in subsection (c) of this section.     
      (e) The Agency or Commission will deny a request to waive the repayment of a non-fraudulent overpayment if it determines that:      
        (1) the payment of the federal extended unemployment compensation benefits is the fault of the claimant, or       
        (2) the repayment is not contrary to equity and good conscience.       
      (f) The Agency or Commission will waive the repayment of a non-fraudulent overpayment if it determines that:      
        (1) the payment of the federal extended unemployment compensation benefits is not the fault of the claimant, and       
        (2) the repayment is contrary to equity and good conscience.       
      (g) In determining whether fault exists, the Agency or Commission shall consider the following:      
        (1) whether a material statement or representation was made by the claimant in connection with the application for the federal extended unemployment compensation that resulted in an overpayment, and whether the claimant knew or should have known that the statement or representation was inaccurate;       
        (2) whether the claimant failed or caused another to fail to disclose a material fact, in connection with an application for the federal extended unemployment compensation that resulted in an overpayment, and whether the claimant knew or should have known that the fact was material;       
        (3) whether the claimant knew or could have been expected to know that the claimant was not entitled to the federal extended unemployment compensation payment; and       
        (4) whether, for any other reason, the overpayment resulted directly or indirectly, and partially or totally, from any act or omission of the claimant or of which the claimant had knowledge, and which was erroneous or inaccurate or otherwise wrong.       
      (h) In determining whether equity and good conscience exists, the Agency or Commission shall consider the following factors:      
        (1) whether the overpayment is the result of a decision on appeal;       
        (2) whether the Agency gave notice to the claimant that the claimant may be required to repay the overpayment in the event of a reversal of the federal extended unemployment compensation eligibility determination on appeal; and       
        (3) whether repayment of the federal extended unemployment compensation overpayment will cause financial hardship to the claimant.       
      (i) Hearings under this section will be conducted in a fair and impartial manner in accordance with the provisions of §815.15 of this chapter (relating to Parties with Appeal Rights), §815.16 of this chapter (relating to Appeals to Appeal Tribunals from Determinations), §815.17 of this chapter (relating to Appeals to the Commission from Decisions), and §815.18 of this chapter (relating to General Rules for Both Appeal Stages), except to the extent that the sections are clearly inapplicable.     
      (j) For the purposes of this section, a federal extended unemployment compensation program is an unemployment compensation program enacted by Congress that provides additional federally funded benefits. It does not include Extended Benefits under Subchapter F of this chapter or Chapter 209 of the Act.     
     Source Note:        The provisions of this §815.12 adopted to be effective July 16, 2002, 27 TexReg 6339; amended to be effective October 12, 2020, 45 TexReg 7273