3.609.5 Intentional Program Violation (IPV) and Fraud A.

All clients must be provided with their rights in relation to IPV as follows: 1. The client has the right to an administrative disqualification hearing (ADH) before an administrative law judge (ALJ). 2. The county department may offer an ADH at the county. This does not preclude the client from requesting the initial ADH or a second ADH be held before an ALJ under subsections M and O. 3. A client may waive the right to an ADH, either before an ALJ or with the county department, by signing a waiver of ADH form. Clients have a right to look at all the evidence that would be used at an ADH before deciding whether to waive the right to an ADH. 4. If a client chooses to appear at the ADH he or she has the right to represent him or herself or to be represented by an attorney at his or her expense. 5. The client may choose to be represented by any other person he or she chooses pursuant to section 26-2-127(1)(a)(IV), C.R.S. 6. A client and/or his or her representative, upon providing a signed release, may look at his or her case file, including all the evidence that will be used at the ADH. The client and/or his or her representative has the right to look at his or her case file before and during the ADH. 7. The county department shall provide a free copy of the evidence to be utilized during the ADH to the client at least fifteen (15) days prior to an ADH heard by the county. Upon request, the county department will provide a free copy of any other parts of the case file that the client determines is needed at the ADH. 8. A client may bring witnesses to speak on his or her behalf at the ADH. 9. The client and or his or her representative has the right to question or deny any evidence or statements made against him or her at the ADH. This includes the right to ask questions of persons testifying against him or her. 10. The client has the right to present any evidence that he or she feels is important to prove his or her case. B. All Colorado Works clients must be provided with a written notice of the penalties for an IPV on the application form. All Colorado Works clients shall be notified of the penalties for an IPV when reporting changes on the redetermination form. C. A county department is required to refer the investigation to the appropriate investigatory agency for any client or representative payee whenever there is an allegation or reason to believe that individual has committed an IPV as described below. When conducting an interview for IPV and/or fraud, the county department investigator or representative has the responsibility to ensure the following: 1. That an explanation was given to the individual regarding the reason the interview is taking place; and, 2. That the individual’s rights have been provided to him or her (section 3.609.6.A); and, 3. That the individual’s rights and responsibilities including confidentiality of records and information, the right to non-discrimination provisions, the right to a county conference, and the right to a state level fair hearing have been provided to him or her; and, 4. That the rights and responsibilities presented in the “what I should know” section of the application that the client acknowledged when he or she signed the application form have not been violated; and, 5. That the county and/or representative of the county shall not threaten the individual or engage in any other intimidation tactics toward the client. D. If the county receives questionable information that is necessary for determining a client’s eligibility and the verification requested by the county department is not supplied by the client as required by the county department’s verification request timeframes (section 3.604.3), grant payments may be reduced and/or the case closed and grant payments terminated for a client’s failure to prove eligibility following the notice policies outlined in section 3.609.1. These actions and notification shall not be used as an intimidation tactic or threat. E. Following an investigation, the county must take action on cases where documented evidence exists to show a client has committed one or more acts of IPV. The county must take action through: 1. Obtaining a “waiver of administrative disqualification hearing”; or, 2. Proceeding with an ADH, either at the county department or in front of an ALJ, or both as described in subsections M. and O. below; or, 3. Referring the case for civil or criminal action in a county or district court; or, 4. Documenting in the case file the county department’s decision to take no action to pursue IPV using documented evidence to support the decision. 5. Establishing a claim based on the IPV, if appropriate. F. In proceeding against a client who is alleged to have committed an IPV, the county department must coordinate any action with actions taken under the food assistance program where the factual issues are the same or related. G. Overpayment actions shall be initiated in the statewide automated system within ten (10) calendar days of the investigation’s conclusion, unless otherwise specified in the case file. This is required in all cases even if ADH procedures or referral for prosecution is not initiated, except in instances where notification of overpayments may prejudice the ongoing criminal case or investigation. In these instances, the county department may make the determination to postpone notification of claims to the client if the overpayment is being referred to a court of appropriate jurisdiction. The determination to postpone notification must be clearly documented in the case file. H. The state department will not condone any actions of the county department that could be determined to be a violation of state or federal law. Any actions taken by a county department that is determined to be in violation of state or federal law may be subject to corrective action per 9 C.C.R. 2501-1 section 1.150. I. These rules apply to all clients who commit an IPV who are recipients or representative payees of grant payments and/or services. The determination of IPV shall be based on clear and convincing evidence that demonstrates intent to commit IPV. J. Supporting evidence warranting the pursuit of an IPV disqualification must be documented and reviewed by a supervisor. If the county department determines there is evidence to substantiate that a person has committed an IPV, the person has a right to an ADH. However, the county department shall allow that person the opportunity to waive the right to an ADH. 1. The State approved IPV forms shall be provided to the individual suspected of an IPV. These may be offered to the individual during the investigation or mailed once it has been suspected an IPV has occurred, but there is no plan to pursue criminal charges. 2. One of the state approved forms affords the individual the right to waive the ADH. If the individual chooses to waive his or her right to an ADH, the individual shall have fifteen (15) calendar days from the date the IPV forms are hand-delivered or mailed by the county to return the waiver. If the form is not returned, the county department shall pursue an ADH. 3. The completion of the waiver is voluntary and the county department may not require, nor by its actions appear to require, the completion of the waiver. K. An IPV ADH must be requested whenever: 1. The facts of the case do not warrant civil or criminal prosecution; 2. Documentary evidence exists to show an individual has committed one or more acts of IPV; and 3. The individual has failed to sign and return the waiver of ADH form. L. An ADH may be requested against an accused individual whose case is currently being referred for prosecution on a civil or criminal action in county or district court. M. A county department may conduct an ADH or may use the Office of Administrative Courts (OAC) to conduct the ADH. 1. The individual may request verbally, in writing, electronically, or in person that the OAC conduct the ADH in lieu of a county ADH. Such an ADH must be requested ten (10) calendar days before the scheduled date of the county ADH. 2. The OAC or the county department must mail by certified mail, return receipt requested, a notice of the date of the ADH on the form prescribed by the state department, to the individual alleged to have committed an IPV. The notice must be mailed at least thirty (30) calendar days prior to the ADH date, to the individual’s last known address. The notice form shall include a statement that the individual may waive the right to appear at an ADH. 3. The ALJ or ADH officer shall not enter a default judgment against the individual for failure to file a written answer to the notice of hearing or failure to appear at the ADH, but shall base the initial decision upon the evidence introduced at the ADH. 4. The ADH must be continued at the accused individual's request if good cause is shown. The request for continuance must be received by the presiding ALJ or ADH officer at least ten (10) calendar days prior to the ADH. The ADH shall not be continued for more than a total of thirty (30) calendar days from the original ADH date. One additional continuance is permitted at the ADH officer or ALJ's discretion. If the ADH officer or ALJ considers it necessary, a medical assessment may be ordered to substantiate or disprove a good cause statement of an accused individual. Such assessment shall be obtained at the agency’s expense and made part of the record. 5. In the event that the ADH was heard by the county, the client may request an ADH to be heard by the OAC within fifteen (15) calendar days of the date the county department mails the local ADH decision to the client. N. Disqualification for IPV shall be as follows: 1. If the individual signs and returns the request for waiver of ADH within fifteen (15) calendar days from the date the waiver is sent, that person shall be provided with a notice of the period of disqualification. 2. The disqualification period shall begin no later than the first day of the following month from the date determined through the ADH process or, if the individual signed an ADH waiver, the date he or she signed the waiver. a. Once the disqualification is imposed it shall continue without interruption. To consider a disqualification period served, the client shall have a break in grant payments totaling the time period of the disqualification. The disqualification period shall remain in effect unless and until the finding is reversed by the Office of Appeals or a court of appropriate jurisdiction or until the period of disqualification is served per section c below. b. The disqualification may be in addition to any other penalties which may be imposed by a court of law for the same offenses (i.e. criminal or civil sanctions). c. The disqualification shall be in effect for twelve (12) months upon the first occasion of any such offense; twenty-four (24) months upon the second occasion of any such offense and permanently upon the third such offense, pursuant to section 26-2-128(1), C.R.S. all disqualifications imposed shall run and be served consecutively. 3. The disqualification penalizes only the individual(s) found to have committed an IPV. If a client’s spouse and/or sponsor(s) have received an IPV on his or her own case(s), the spouse’s and/or sponsor(s)’ income and resources, when applicable, will be considered available to the client and used for determining eligibility. 4. An IPV disqualification in one county is valid and effective in all other Colorado counties. A county department shall consider a disqualification imposed by another county department when determining the appropriate disqualification penalty for the disqualified individual without an additional ADH or further right to appeal. O. If, as a result of the ADH, the county ADH officer or ALJ finds the individual has committed an IPV, a written notice shall be provided to notify the individual of the decision. The county hearing decision notice shall be a state prescribed form, which includes a statement that a state ADH at the OAC may be requested. 1. In the event that the ADH was heard by the county, the client may appeal the decision of the county ADH to the OAC. An appeal must be received by the county department or by the OAC within fifteen (15) calendar days of the date the county department mails the local ADH decision to the client. See section 3.609.7 for rules regulating the appeal process. 2. A copy of the county ADH decision shall be forwarded to the State Department Division of Economic and Workforce Support for review at the same time the decision is mailed to the client. If the client does not appeal the county ADH decision to the OAC, it becomes an initial decision and if no response is sent by the Division of Economic and Workforce Support to the county department, the county’s decision becomes a final decision. If the Division of Economic and Workforce Support disagrees with the county department decision, they may: remand the decision to the county department or require the county to send the ADH request to OAC for determination of IPV, as described in M.5 above. 3. In an ADH before an ALJ, the determination of IPV shall be an initial decision, which shall not be implemented while pending state department review and a final agency decision. The initial decision shall advise the client that failure to file exceptions to findings of the initial decision will waive the right to seek judicial review of a final agency decision under section 24-4-106, C.R.S. affirming the initial decision. 4. When an individual waives his or her right to an ADH, a written notice of the disqualification penalty shall be mailed to the individual. This notice shall be on a state prescribed notice form. P. When the county department determines that it has paid a client a grant payment as a result of fraud, the facts used in the determination shall be reviewed with the department’s legal counsel within the attorney general’s office and/or a representative from the district attorney’s office. If suspected fraud is substantiated by the available evidence, the case shall be referred to the district attorney. All referrals to the district attorney shall be made in writing and shall include the amount of assistance fraudulently received by the client. Q. If any deduction is being made from the client’s assistance payment it must be consistent with any court order resulting from a prosecution by the district attorney. If the individual being prosecuted is not a Colorado Works program client, another method of recovery shall be used to collect amounts due to the department. 1. Interest shall be charged from the month in which the overpayment was received until the date the overpayment is recovered. Interest shall be calculated at the legal rate. 2. The client may choose to repay the county department the entire amount of the overpayment at one time or establish a repayment plan. In either instance, the fraud charge should be discussed with the district attorney or appropriate investigative authority. R. If the district attorney declines to prosecute, the amount of overpayment due, as established by the department, will continue to be recovered by deduction from subsequent grant payments or other method of recovery if the individual is not a current client of Colorado Works grant payments.