Part 359 - DISQUALIFICATION FOR INTENTIONAL PROGRAM VIOLATION

Doc Status: 
Complete
Statutory Authority: 
Social Services Law, Sections 20[3][d], 34[3][f], 95, 145-c, 355[3]

Section 359.0 - Scope.

Section 359.0 Scope. This Part prescribes the processes and procedures that must be followed when a public assistance recipient is accused of intentionally violating the requirements of the public assistance programs in a fraudulent manner or a food stamp recipient is accused of intentionally violating the requirements of the food stamp program in a fraudulent manner. If such a recipient is found to have committed an intentional program violation, the recipient may be disqualified from participation in such program for the periods of time set forth in this Part.

Doc Status: 
Complete

Section 359.1 - Definitions.

359.1 Definitions. (a) Intentional program violation in the public assistance programs (public assistance-IPV) means the commission of one or more acts in violation of standards for the public assistance programs described in section 359.3(a) of this Part.

(b) Intentional program violation in the Food Stamp program (FS-IPV) means the commission of one or more acts in violation of standards for the Food Stamp program described in subdivision (c) of section 359.3 of this Part.

(c) Administrative disqualification hearing means a hearing scheduled by the office, at the request of a social services district, upon the submission by the district of sufficient documentary evidence to establish that an individual has committed one or more acts in violation of program standards described in section 359.3 of this Part.

(d) Waiver of administrative disqualification hearing means an election of an individual, in compliance with the provisions of section 359.8 of this Part, to accept the imposition of an appropriate penalty contained in section 359.9 of this Part without a hearing.

(e) Disqualification consent agreement (DCA) means a document signed by an accused individual in which an individual or any caretaker relative or head of household admits to committing an intentional program violation and consents, as described in subdivision (b) of section 359.4 of this Part, to the imposition of an appropriate disqualification penalty, as set forth in section 359.9 of this Part, without a trial.

(f) Caretaker relative means a parent or other relative, as defined in section 369.1 of this Title, with whom a child eligible for ADC is living.

(g) Head of household means a person as defined in section 387.1(t) of this Title.

(h) For the purposes of this Part, office means the Office of Temporary and Disability Assistance.

 

Doc Status: 
Complete

Section 359.2 - Applicability.

359.2 Applicability. (a) The department and social services districts have the responsibility for investigating the alleged commission of intentional program violations and ensuring that the procedures set forth in this Part are followed.

(b) Subject to the provisions of section 399.11 of this Title, any matters or procedures commenced pursuant to Part 399 prior to the effective date of this Part will be continued in accordance with the provisions of this Part as if the matter had been commenced in accordance with this Part.

(c) Administrative hearings for public assistance IPVs and FS-IPVs may be scheduled by the office, provided that not more than six years have elapsed between the month an individual committed an intentional program violation and the date on which the social services district discovered the intentional program violation, and the office determines that there is evidence to substantiate that an intentional program violation has occurred.

(d) Unless specifically granted written authorization to proceed directly on an FS-IPV by either a social services official or his or her authorized representative or the appropriate district attorney, or by any other prosecutor authorized to act on the matter, on the grounds that to do otherwise would prejudice the prosecution of an FS-IPV allegation, a social services district must initially treat the allegation as an inadvertent household error in accordance with Part 387 of this Title prior to either referring the case to the district attorney or processing the allegation for an administrative disqualification hearing. A social services district's failure to comply with the provisions of this subdivision will not affect the department's determination at a hearing conducted pursuant to this Part or a court's determination when an allegation is referred by a social services district to the appropriate district attorney or any other prosecutor for prosecution. Non-compliance with the provisions of this section will not affect the amount of any food stamp allotment reduction authorized in section 359.9(f) of this Part after a hearing decision is issued that an FS-IPV has occurred.

 

Doc Status: 
Complete

Section 359.3 - Standards.

359.3 Standards. The standards for determining whether an individual has committed an intentional program violation are:

(a) A public assistance-IPV occurs when an individual has established or maintained his or her eligibility or the eligibility of the individual's family for public assistance or has increased or prevented a reduction in the amount of public assistance by intentionally:

(1) making a false or misleading statement, or misrepresenting, concealing or withholding facts concerning the individual's eligibility for public assistance;

(2) committing any act intended to mislead, misrepresent, conceal, or withhold facts or propound a falsity concerning the individual's eligibility for public assistance; or

(3) engaging in any conduct inconsistent with the requirements of Parts 350, 351, 352, 369 or 370 of this Title.

(b) An FS-IPV occurs when an individual has intentionally:

(1) made a false or misleading statement, or misrepresented, concealed or withheld facts concerning the individual's eligibility for food stamps; or

(2) committed any act constituting a violation of the requirements of the Food Stamp program, including, but not limited to, acts constituting a fraudulent use, presentation, transfer, acquisition, receipt, possession or alteration of food stamp coupons or authorization to participate cards or any other evidence of the individual's eligibility for food stamps.

 

Doc Status: 
Complete

Section 359.4 - Referral to prosecuting authorities.

359.4 Referral to prosecuting authorities. (a) The social services district must refer a case involving a public assistance-IPV or FS-IPV in which it believes the facts warrant civil or criminal prosecution to the appropriate district attorney, or to any other prosecutor authorized to act on the matter, and not to the office for an administrative disqualification hearing. This subdivision will not apply in instances in which the social services district has received prior notification from the district attorney or other equivalent prosecutor that the amount of any overpayment or over-issuance determined by the district to exist is less than the amount which the appropriate official has deemed sufficient for prosecution, provided that the social services district has not been notified by any other prosecutor authorized to act on the matter that such prosecutor intends or desires to prosecute such matter. The office may not reverse a determination following an administrative disqualification hearing for lack of compliance with the provisions of this subdivision.

(b) Disqualification consent agreement (DCA). (1) A DCA must be in a format prescribed by the department and must include:

(i) notification to the accused individual of the consequences of signing the agreement and consenting to a disqualification penalty;

(ii) a statement for the accused individual to sign indicating that he or she understands the consequences of signing the agreement, along with a statement that any caretaker relative or head of household must also sign the agreement if the accused individual is not the caretaker relative or head of household;

(iii) a statement that signing the agreement will result in disqualification of the accused individual and reduction or discontinuance of assistance or food stamps for the disqualification period, even if the accused individual was not found guilty of civil or criminal misrepresentation or fraud;

(iv) a statement describing the disqualification period which will be imposed as a result of the accused individual's signing the agreement; and

(v) a statement that the remaining members of the household or assistance unit, if any, will be held responsible for repayment of the overpayment or over-issuance, unless the accused individual has already repaid the overpayment or over-issuance as a result of meeting the terms of any agreement with the prosecutor or any court order.

(2) When a case is referred in accordance with this section to the appropriate district attorney, or to any other prosecutor authorized to act on the matter, and is accepted for prosecution the prosecutor may choose to settle the case or a court of appropriate jurisdiction hearing the case may issue a pre-determination disposition order, such as an order adjourning the case in contemplation of dismissal, provided that full restitution is made. In such cases, the social services district may use a DCA as described in paragraph (1) of this subdivision.

(3) Social services districts which contemplate the use of DCA's must enter into written agreements with the appropriate prosecutors which give the social services districts opportunity to send advance written notification of the consequences of signing a DCA to the assistance unit or household when deferred adjudication is contemplated.

(4) If the prosecutor requests or authorizes a social services district to assist in obtaining a DCA as described in paragraph (1) of this subdivision, a copy of the DCA, together with the notification of the consequences of signing the DCA as described in subparagraph (i) of paragraph (1) of this subdivision must be provided to the accused individual at least 10 days prior to the execution of the DCA and the accused individual must be advised that he or she may obtain a legal or other authorized representative for counsel and advice prior to and at the time the DCA is executed by such accused individual.

 

Doc Status: 
Complete

Section 359.5 - Commencement of the administrative disqualification hearings

359.5 Commencement of the administrative disqualification hearings process. (a) Upon discovering and determining that an intentional program violation may have occurred, the social services district must document the determination and reach a conclusion as to whether the documented acts constitute an intentional program violation in accordance with the standards described in section 359.3 of this Part.

(b) If the social services district concludes that the documented acts resulted in an intentional program violation and that referral, in accordance with section 359.4 of this Part, to the appropriate prosecutor authorized to act on the matter, is not warranted or not possible due to the amount in issue, the social services district may process the case for an administrative disqualification hearing.

(c) If, pursuant to section 359.4 of this Part, the social services district refers an overpayment or over-issuance to the appropriate prosecutor authorized to act on the matter, and that prosecutor declines to prosecute or fails to take action on the referral within a reasonable period of time, and the social services district elects to initiate the process for an administrative disqualification hearing pursuant to this section, the social services district must formally withdraw in writing the referral to the prosecutor before referring the case to the department. Failure to present evidence of such a formal written withdrawal either in its evidentiary transmittal to the department or at the hearing may result in an administrative disqualification hearing decision adverse to the social services district.

(d) (1) If the social services district elects to process a case for an administrative disqualification hearing, it must assemble documentary evidence which the district believes is sufficient on its face to support its determination of intentional program violation and forward the evidence in the form of an evidentiary packet to the Office of Administrative Hearings, New York State Department of Social Services, with a request that the department schedule an administrative disqualification hearing.

(2) If the social services district processes a case for an administrative disqualification hearing for an FS-IPV and the factual issues arise from the same or related circumstances as a case for a public assistance-IPV, the cases must be consolidated and the social services district must submit with the evidentiary packet required by this subdivision, a statement of the particular intentional program violation(s) being alleged and the sanction sought to be imposed for each such intentional program violation being alleged.

(e) The evidentiary packet forwarded by the social services district to the department accompanying the social services district's request for an administrative disqualification hearing must have consecutively numbered pages, must be submitted in three copies for each accused individual and must include, but not be limited to, the following:

(l) the full name (including middle name), the complete address

(including county of residence), the social security number, the case number and the date of birth of the person(s) charged and against whom a disqualification penalty is sought;

(2) a list of the particular charge(s) and the individual or individuals against whom a disqualification penalty is sought, together with any statement required by paragraph (2) of subdivision (d) of this section if cases are consolidated;

(3) a summary of the evidence to be introduced;

(4) a listing of the names, titles and phone numbers of all social services district personnel and witnesses who will appear in support of the determination;

(5) an itemized list of all the exhibits included in the packet with the page number(s) on which each exhibit is found;

(6) copies of all documents to be used in support of the social services district's determination;

(7) information as to when and where the original evidence exhibits submitted in the case may be reviewed;

(8) information as to the availability of free legal services; and

(9) a statement indicating whether the individual previously has been determined to have committed an intentional program violation by either a court of competent jurisdiction or an administrative disqualification hearing decision or whether the individual previously has waived attendance at an administrative disqualification hearing or previously has signed a DCA. If the person previously has been determined to have committed an intentional program violation or previously has waived attendance at an administrative disqualification hearing or previously has signed a DCA, supporting documentation of such facts must be included in the evidentiary packet.

(f) Upon receipt of a social services district's request for a hearing and accompanying evidentiary packet, the department will review the packet to determine if it contains sufficient documentary evidence to substantiate that an individual has committed one or more intentional program violations in accordance with the standards described in section 359.3 of this Part. The department also will determine whether the evidentiary packet satisfies the provisions of subdivision (e) of this section.

(g) If the department's review of the evidentiary packet indicates that there is either insufficient documentary evidence to establish that an intentional program violation was committed or that the packet does not comply with the provisions of subdivision (e) of this section, the department will return the packet to the social services district and not schedule a hearing.

 

Doc Status: 
Complete

Section 359.6 - Notification of administrative disqualification hearing.

359.6 Notification of administrative disqualification hearing. (a) Following a determination that the evidentiary packet is sufficient, the department must schedule an administrative disqualification hearing. The notice of administrative disqualification hearing which notifies the accused individual of the scheduled hearing must be mailed by first class mail, or provided by any other reliable method, to the accused individual.

(b) The hearing will be held at a time and place convenient to the accused as far as practicable, taking into account circumstances such as physical inability to travel to a regular hearing location.

(c) When it mails the notice of administrative disqualification hearing to the accused individual, the department must mail to the social services district which requested the hearing a notification of the time, date and place of the hearing by regular mail.

(d) Notice of administrative disqualification hearing. A written notice must be provided by the department to an individual alleged to have committed an intentional program violation in accordance with the standards described in section 359.3 of this Part. This notice must be provided to the individual at least 30 days prior to the date of the administrative disqualification hearing. The notice must include:

(1) the date, time, and place of the hearing;

(2) the charge(s) against the individual;

(3) a summary of the evidence and how and where the evidence may be examined;

(4) a statement warning that the decision will be based solely on information provided by the social services district if the individual fails to appear at the hearing;

(5) a notification that the individual or the individual's representative may have an opportunity to examine all documents and records to be used at the hearing by calling an identified telephone number and making arrangements to examine the documents and records at a specified place, provided that confidential information, such as names of individuals who have disclosed information about the public assistance unit or the nature or status of pending criminal prosecutions, cannot be released;

(6) notification of the individual's right to:

(i) an adjournment, provided that such a request is made at least 10 days in advance of the scheduled hearing date. In addition, such notification must advise the individual that if an adjournment is requested less than 10 days prior to the scheduled hearing date, the individual must demonstrate good cause for requesting the adjournment;

(ii) present the case or be represented by legal counsel or other person;

(iii) bring witnesses;

(iv) advance arguments without undue interference;

(v) question or refute any testimony or evidence;

(vi) confront and cross-examine adverse witnesses; and

(vii) submit evidence to establish all pertinent facts in the case;

(7) notification that the accused individual has the right to remain silent during the hearing process, but that inferences can be drawn from the silence of the individual;

(8) a statement that upon request, a copy of this part will be made available to the individual or his or her representative at the social services district during normal business hours;

(9) copies of the sections of this part relevant to the hearing process;

(10) a citation of the federal or State regulations governing the hearing and/or offense where appropriate;

(11) a listing of legal aid and/or legal services organizations which are available to assist in the defense of the case;

(12) a statement that the hearing does not preclude the state or federal government from prosecuting the individual for fraud in a civil or criminal court action, or from collecting an overpayment or recovering over-issuances of benefits;

(13) a statement that in order to receive a new hearing the individual or the individual's representative will have 10 days from the date of the scheduled hearing to present to the department good cause reasons for failing to appear at the hearing;

(14) a description of the penalties that can result from a determination that the individual has committed an intentional program violation and a statement of the penalty which is applicable to the individual; and

(15) an explanation that the individual may, in writing, waive his or her right to appear at an administrative disqualification hearing as provided in section 359.8 of this Part. This explanation must include:

(i) the date that the signed waiver must be received by the department and a place in which the accused individual can sign his or her name. This explanation must also include a statement that any caretaker relative or head of household must also sign the waiver if the accused individual is not the caretaker relative or head of household; the waiver statement must include an appropriately designated signature block in which such other individual can sign his or her name;

(ii) a statement of the accused individual's right to remain silent concerning the charge(s), but that inferences can be drawn from the silence of the individual, and that anything said or signed by the individual concerning the charge(s) can be used against him or her in a court of law or at an administrative hearing;

(iii) the fact that a waiver of an individual's right to appear at an administrative disqualification hearing may result in a disqualification penalty and a reduction or discontinuance of assistance or food stamp benefits for the appropriate period even if the accused individual does not admit to the facts as presented by the social services district;

(iv) an opportunity for the accused individual to specify whether or not he or she admits to the facts as presented by the social services district;

(v) the telephone number and, if possible, the name of the department employee and an employee of the social services district to contact for additional information; and

(vi) the fact that the remaining members, if any, of the household or assistance unit will be held responsible for the repayment of any overpayment or over-issuance.

 

Doc Status: 
Complete

Section 359.7 - Administrative disqualification hearings.

359.7 Administrative disqualification hearings.

(a) Following a determination that the evidentiary packet is sufficient and the scheduling of an administrative disqualification hearing, an administrative disqualification hearing will be conducted in accordance with the requirements of this section.

(b) Where factual issues arise from the same or related circumstances, a consolidated administrative disqualification hearing will be held for an FS-IPV and a public assistance-IPV. All evidence, testimony and proof relating to the consolidated cases will be presented together, but separate findings will be made with respect to each separately alleged intentional program violation.

(c) An administrative disqualification hearing scheduled pursuant to this Part will be adjourned when:

(1) the request for such adjournment is made at least 10 days in advance of the scheduled hearing date; or

(2) the request for such adjournment is made less than 10 days prior to the scheduled hearing date and the individual demonstrates good cause for requesting the adjournment.

The hearing cannot be adjourned for more than a total of 30 days.

(d) Rights in the administrative disqualification hearing process. The accused individual, or such individual's representative, must have adequate opportunity to:

(1) examine the contents of the individual's case file, and all documents and records to be used by the social services district at the hearing, at a reasonable time before the date of the hearing and during the hearing;

(2) present the case himself or herself, or with the aid of an authorized representative;

(3) bring witnesses;

(4) establish all pertinent facts and circumstances;

(5) advance any arguments without undue influence; and

(6) question or refute any testimony or evidence including the opportunity to cross-examine adverse witnesses.

(e) Conduct of an administrative disqualification hearing.

(1) The hearing officer must advise the accused individual that he or she may refuse to answer questions during the hearing.

(2) The burden of proving that an accused individual has committed an intentional program violation is on the social services district.

(3) When an individual has been convicted in a State or Federal court of a public assistance-IPV, and such conviction was based on a plea of guilty, and such conviction was based on the same set of facts which will be the subject of the administrative disqualification hearing, and such individual was not advised on the record in the court proceeding of the disqualification provisions of this Part:

(i) neither the conviction itself nor the records of the court proceeding may be used in any manner in the administrative disqualification hearing; and

(ii) the existence of the court proceeding may not be disclosed in any manner to the hearing officer by the office or social services district nor by any person acting on behalf of the office or social services district nor by any witness presented by any social services official.

(4) All provisions in Part 358 of this Title concerning the conduct of fair hearings which are not inconsistent with any of the specific provisions of this section are applicable to administrative disqualification hearings.

(f) Decision after an administrative disqualification hearing.

(1) The decision after an administrative disqualification hearing must be based exclusively on clear and convincing evidence and other material introduced at the hearing which demonstrates that an individual committed and intended to commit one or more intentional program violations.

(2) The decision after an administrative disqualification hearing must specify the reasons for the decision, identify the supporting evidence, identify the pertinent statutes or regulations and respond to reasoned arguments made by the individual or his or her representative.

(3) The department must conduct the hearing, arrive at a decision and forward the decision to the social services district for implementing action within 90 days of the date of the notice of administrative disqualification hearing. In the event of a client-requested adjournment, this time limit will be extended by the number of days the hearing was postponed.

(g) Default of an administrative disqualification hearing.

(1) If an accused individual cannot be located or fails to appear at an administrative disqualification hearing scheduled pursuant to this Part, the opportunity to appear at the hearing may be considered to be defaulted by such individual except as follows:

(i) The individual contacts the department within 30 days after the date of the hearing decision and claims good cause for failure to appear based on nonreceipt of the notice of administrative disqualification hearing or the notice of administrative disqualification hearing was returned as undeliverable. In such situations, a hearing will be scheduled at which the commission or the commissioner's designee will determine whether the individual had good cause for failing to appear at the administrative disqualification hearing. Good cause for failing to appear based on nonreceipt of the notice of administrative disqualification hearing will be deemed to exist when the individual establishes at the hearing that the failure to receive the notice of administrative disqualification hearing was not caused by the individual. If good cause for failing to appear is not established, the hearing decision will remain valid. If good cause is established, the recipient and the agency will have an opportunity to present any evidence or testimony concerning the agency's allegation that the recipient committed an intentional program violation. After consideration of such evidence and/or testimony, the prior hearing decision will be vacated and a new hearing decision will be issued; the hearing officer who originally presided at the hearing may conduct the new hearing; or

(ii) The individual contacts the department within 10 days after the date of the scheduled hearing and claims good cause for failing to appear. In such a case, a hearing will be scheduled at which the commissioner or the commissioner's designee will determine whether the recipient had good cause for failing to appear at the administrative disqualification hearing. If good cause for failing to appear is not established, the hearing decision will remain valid. If good cause is established, the recipient and the agency will have an opportunity to present any evidence or testimony concerning the agency's allegation that the recipient committed an intentional program violation. After consideration of such evidence and/or testimony, the prior hearing decision will be vacated and a new hearing decision will be issued; the hearing officer who originally presided at the hearing may conduct the new hearing.

(1) If an accused individual cannot be located or fails to appear at a hearing scheduled pursuant to this section, the opportunity to appear at the hearing may be considered to be defaulted by such individual unless the individual contacts the department within 10 days after the date of the scheduled hearing and presents good cause reasons for the failure to appear. If such reasons exist, the hearing will be rescheduled. A determination that good cause exists must be entered into the record.

(2) If the opportunity to appear at a hearing has been defaulted by the accused individual in accordance with paragraph (1) of this subdivision, the hearing must be conducted without the accused individual being present. Even though the accused individual is not present, the hearing officer is required to consider the evidence carefully and determine if an intentional program violation was committed based on clear and convincing evidence.

(h) Access to record of proceedings. The transcript or recording of testimony, exhibits, or other official reports introduced at the hearing, together with all papers and requests filed in the proceeding, and the original or a true copy of the decision after an administrative disqualification hearing must be made available to the individual or to the individual's representative at a reasonable time and place.

(i) Review of disqualification hearing decisions. A decision that an intentional program violation has been committed cannot be reversed by a subsequent fair hearing held pursuant to Part 358 of this Title. However, the disqualified individual is entitled to seek relief in a court having appropriate jurisdiction pursuant to article 78 of the Civil Practice Law and Rules. The period of disqualification may be subject to stay or other injunctive remedy ordered by such a court, but any period for which sanctions are imposed shall remain in effect, without possibility of administrative stay, unless and until the finding upon which the sanctions were imposed is subsequently reversed by a court of appropriate jurisdiction.

 

Doc Status: 
Complete

Section 359.8 - Waiver of an administrative disqualification hearing.

359.8 Waiver of an administrative disqualification hearing.

(a) An administrative disqualification hearing is waived when a waiver of administrative hearing document which is sent by the department to an individual for whom the department has scheduled an administrative disqualification hearing is properly executed by the individual or any caretaker relative or head of household, if the accused individual is not the caretaker relative or head of household, and received by the department.

(b) The department will send written notification to the social services district which had requested the hearing that it may impose the appropriate penalty contained in section 359.9 of this Part upon sending a notice of disqualification to the individual, as described in section 359.10 of this Part. A waiver of an administrative disqualification hearing must comply with the provisions of paragraph (15) of subdivision

(d) of section 359.6 of this Part.

(c) A disqualification penalty which has been imposed following a waiver of an administrative disqualification hearing cannot be changed in a subsequent fair hearing held pursuant to Part 358 of this Title. There is no right to appeal the penalty by a fair hearing.

(d) Upon timely receipt of a properly executed waiver, the department will notify the social services district in writing of the cancellation of the scheduled administrative disqualification hearing and of the social services district's responsibility to proceed with the recovery of any overpayment or over-issuance in accordance with the provisions of sections 352.31 or 387.19 of this Title.

(e) When an individual waives his or her right to appear at an administrative disqualification hearing, the disqualification and appropriate reduction or discontinuance of assistance or food stamps must result regardless of whether the individual admits or denies the charges made by the district.

 

Doc Status: 
Complete

Section 359.9 - Penalties.

359.9 Penalties.

(a) Individuals found to have committed a public assistance-IPV, either through an administrative disqualification hearing or by a court of appropriate jurisdiction, or who have signed either a waiver of right to an administrative disqualification hearing or a disqualification consent agreement, will be ineligible, individually or as a member of an assistance unit, to receive public assistance:

(1) for six months for the commission of a first public assistance-IPV; or

(2) for 12 months for the commission of a second public assistance-IPV or when the offense results in the wrongful receipt of benefits in an amount between $1,000 and $3,900; or

(3) for 18 months for the commission of a third public assistance-IPV or when the offense results in the wrongful receipt of benefits in an amount in excess of $ 3,900; or

(4) for five years for the commission of a fourth or subsequent public assistance-IPV.

Findings of the commission of intentional program violations in the ADC and HR programs prior to August 20, 1997 must be considered in determining the sanction to be imposed for a public assistance-IPV.

(b) The sanction in subdivision (a) of this section is in addition to, and not in substitution for, any other sanctions which may be provided for by law with respect to the offenses involved. However, the social services official or court official assessing penalties against a public assistance recipient for an act of fraud or misrepresentation may consider whether to impose such penalties based upon the existence of the penalties described in subdivision (a) of this section.

(c) Individuals found to have committed an FS-IPV, either through an administrative disqualification hearing or by a court of appropriate jurisdiction, or who have signed either a waiver of right to an administrative disqualification hearing or a disqualification consent agreement, will be ineligible to participate in the Food Stamp program:

(1) for one year for the commission of a first FS-IPV;

(2) for two years upon:

(i) the commission of a second FS-IPV; or

(ii) the first occasion of a finding by a Federal, State, or local court of the trading of a controlled substance for coupons; and

(3) permanently upon:

(i) the commission of a third FS-IPV; or

(ii) the second occasion of a finding by a Federal, State, or local court of the trading of a controlled substance for coupons; or

(iii) the first occasion of a finding by a Federal, State, or local court of the trading of firearms, ammunition, or explosives for coupons; or

(iv) the conviction of an offense for knowingly using, transferring, acquiring, altering or possessing food stamp coupons, authorization to participate cards or access devices in any matter not authorized by this Part if such food stamp coupons, authorization to participate cards or electronics devices have a value of $500 or more.

(d) If a court of appropriate jurisdiction determines that an individual has engaged in conduct that would constitute an intentional program violation in accordance with the standards described in section 359.3 of this Part, the social services district must impose the penalties specified in this section, except as otherwise set forth below:

(1) Notwithstanding the provisions of this section, an individual found guilty of an intentional program violation must be disqualified from the public assistance or Food Stamp program for the length of time specified by the court, if the court has imposed a disqualification period for such a violation.

(2) With respect to an FS-IPV, if a court fails to impose a disqualification period, the social services district must impose the disqualification penalties specified in subdivision (c) of this section, unless such imposition is contrary to the court order. With respect to a public assistance-IPV, if a court fails to impose a disqualification period, the social services district may impose the disqualification penalties for a public assistance-IPV as specified in subdivisions (a) and (b) of this section.

(3) If disqualification is ordered by a court, but a date for initiating the disqualification period is not specified, the social services district must initiate the disqualification period for currently eligible individuals within 45 days of the date the disqualification was ordered.

(4) If disqualification is not ordered by a court, but disqualification must be imposed as the result of a criminal or civil court determination finding that an individual has engaged in conduct that constitutes an intentional program violation, the social services district must initiate the disqualification period for currently eligible individuals within 45 days of the date of the court determination.

(5) No individual may be sanctioned for a public assistance-IPV on the basis of a conviction in a State or Federal court if that conviction is based on a plea of guilty unless the individual was advised on the record in the court proceeding that his or her conviction may serve as the basis for disqualification from receipt of public assistance benefits and in writing prior to or at the time of entry of the plea of the disqualification provisions contained in this section. An individual not so advised may, however, be subject to an administrative disqualification hearing on the same set of facts as the court proceeding, provided that neither the conviction itself nor the records of the court proceeding may be used in any manner in the administrative disqualification hearing, nor may the office or a social services district, any person acting on behalf of the office or a social services district or any witness presented by the office or a social services district, disclose the existence of the court proceeding in any manner to the hearing officer prior to the entry of the plea.

(e) The social services district must disqualify from the appropriate program(s) the individual(s) found to have committed an intentional program violation, or who have signed a waiver of right to an administrative disqualification hearing or disqualification consent agreement in cases referred for prosecution, but not the entire assistance unit or household of such individual(s), except as provided in subdivision (f) of this section.

(1) A disqualified individual is ineligible to participate in a program from which he or she is disqualified for the periods provided in this section.

(2) If an individual signs a disqualification consent agreement, the period of disqualification will begin within 45 days of the date the individual signed the disqualification consent agreement unless the disqualification consent agreement is incorporated into a court determination issued at a later date or a court determination has specified the date for initiating the disqualification period, in which event the social services district will disqualify the individual in accordance with the court order.

(3) If an individual signs a waiver of right to an administrative disqualification hearing or has been found to have committed an intentional program violation through an administrative disqualification hearing, the period of disqualification will begin with the first month which follows the date the individual receives written notification of disqualification after having been found to have committed an FS-IPV, and must begin no later than the first day of the second month which follows the date of the notice of disqualification after having been found to have committed any other intentional program violation.

(f) The remaining members of the household which contained an individual who has been found to have committed an FS-IPV must agree to make full restitution within 10 days of the date that the social services district's demand letter is mailed, or the household's monthly allotment will be reduced. If the remaining household members agree to make full restitution but fail to do so, the social services district must reduce the household's monthly food stamp allotment. Restitution must begin during the period of disqualification imposed by the social services district or a court of law. Any public assistance overpayment must be recovered in accordance with the provisions of section 352.31 of this Title.

(g) If there is a determination that a member of the household or assistance unit has committed an intentional program violation, the social services district must take immediate action to send the individual a notice of disqualification as set forth in section 359.10 of this Part.

(1) In the case of an individual who is not currently in receipt of public assistance, federally funded aid to dependent children or food stamps, the disqualification period will be postponed until after a re-application for benefits under the applicable program has been approved.

(2) Once a disqualification penalty has been imposed against a member of the household or assistance unit, the period of disqualification continues uninterrupted until completed regardless of the eligibility of the other members of the household or assistance unit. However, the disqualified member's household or assistance unit continues to be responsible for repayment of any overpayment or over-issuance which resulted from the disqualified member's intentional program violation regardless of the household's or unit's eligibility for home relief, aid to dependent children or food stamps.

(h) Social services districts must report to the department information on individuals who have been found to have committed an intentional program violation by a hearing decision or a court or who have signed a waiver of hearing or a DCA. The following data must be submitted on each individual:

(1) full name;

(2) social security number;

(3) date of birth;

(4) number of disqualification(s) (1st, 2nd, 3rd, ect.);

(5) date disqualification took effect for a current otherwise eligible individual; and

(6) length of disqualification imposed or to be imposed. This information is to be submitted no later than 20 days after the date the disqualification took effect, or would have taken effect for a currently ineligible individual, the imposition whose disqualification penalty will not be imposed until the individual becomes eligible for assistance or benefits. This information is to be updated by social services districts where appropriate.

 

Doc Status: 
Complete

Section 359.10 - Notice of disqualification.

359.10 Notice of disqualification. (a) The social services district will provide a written notice of disqualification to an individual who:

(1) has been found, after an administrative disqualification hearing, to have committed an intentional program violation;

(2) has waived his or her right to appear at an administration disqualification hearing in accordance with section 359.8 of this Part;

(3) has signed a disqualification consent agreement in which he or she admits committing an intentional program violation in accordance with section 359.4 of this Part; or

(4) has been determined by a court to have engaged in conduct that would constitute an intentional program violation in accordance with subdivision (d) of section 359.9 of this Part.

(b) A notice of disqualification must:

(1) inform the individual as to when any disqualification period will take effect and the date upon which it will end and the length of the disqualification period;

(2) inform the individual and any members of the household or assistance unit of the amount of payment or allotment, if any, that the unit will receive during the period of disqualification;

(3) in the case of an individual who is not currently in receipt of public assistance, inform the individual that the disqualification period will be postponed until after a new application for public assistance is approved;

(4) in the case of an individual who has been found after an administrative disqualification hearing to have committed an intentional program violation, inform such individual of the decision and the reason for the decision; and

(5) inform the individual to be disqualified and any members of the household or assistance unit of the right to request a fair hearing to contest:

(i) the amount of the overpayment or over-issuance, if such amount has not been established by an administrative disqualification hearing or court determination or set forth in a DCA or waiver of an administrative disqualification hearing;

(ii) the amount of the public assistance or food stamp allotment to be provided to the remaining members of the household or assistance unit during the disqualification period; and

(iii) the social services district's failure to restore the disqualified individual to the household or assistance unit at the end of the disqualification period indicated in the written notice even though the individual has requested such restoration.

 

Doc Status: 
Complete