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.

 

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