Use of ADH Waiver

Supervisory Review. Before sending advance notification to the household of the LDSS’s intent to refer an individual for an ADH, someone other than the case manager must review the evidence against the household member and determine that the evidence warrants scheduling an ADH. This could be a supervisor or a person in the unit designated to make such decisions.

The LDSS and/or OIG, must:

Decide if there is enough evidence to hold an ADH.

Intend to hold an ADH prior to offering the individual an opportunity to sign an ADH waiver.

Never offer an ADH waiver when there is a suspicion of guilt but the evidence is not convincing.

If the LDSS has enough evidence to hold a hearing and has offered the individual an opportunity to waive the hearing, the agency should schedule a hearing if the individual does not sign the waiver.

It is important to inform the customer that the penalty is the same whether the individual chooses to have a hearing and is found guilty, or waives the hearing. Customers who are unfamiliar with administrative hearings may confuse the ADH with a court proceeding. They may think that the consequence of a hearing is the same as a conviction in court. Individuals also may believe the waiver is a way of avoiding a more serious penalty they might be subject to if they went ahead with the hearing.

Some individuals with a mental disability may lack the ability to form the intent necessary for establishing an IPV. Additionally, they may not fully understand the consequences of signing an ADH waiver. In these situations, the agency may choose to schedule an administrative hearing without offering a waiver. This will help protect the rights of the individual without raising the issue that the waiver was questionable.

The signing of the Waiver of the Right to an Administrative Disqualification Hearing, DHS/FIA IPV Notice 6, ends the administrative process to establish an intentional program violation.

480.12 Waiver of an Administrative Disqualification Hearing (continued)

Any subsequent administrative hearing decision cannot change the disqualification penalty.

The individual is entitled to seek judicial review of the disqualification.

The individual may request an administrative hearing if there is disagreement with the amount of the over issuance.

480.13 Referral for a Disqualification Hearing

If a signed waiver for the hearing is not received within twenty days of the notification to the individual of the local department’s intent to pursue a hearing, refer the individual to the Office of Administrative Hearings (OAH), using the Administrative Disqualification Hearing Referral Form, DHS/FIA FS-113.

Make the referral within five working days after the twenty-day deadline.

Include the following information in the referral:

Identifying case information;

A summary of the documentation supporting the IPV; and

Copies of the documentation.

Indicate if there is documentation that the individual referred for the disqualification hearing has been disqualified previously for an IPV or been convicted of SNAP benefit fraud by a court.

480.14 Scheduling of Hearings

OAH will send written notice to the individual and the local department at least thirty days in advance of the date the hearing is scheduled.

OAH may combine a SNAP benefit administrative hearing and a disqualification hearing into a single hearing if the factual issues arise out of the same circumstances and the household receives prior notice that the hearings are combined.

If the hearings are combined to settle a claim and determine an IPV, the household loses its right to a subsequent administrative hearing on the amount of the claim.

480.14 Scheduling of Hearings (continued)

The individual is entitled to one postponement of the scheduled hearing, provided it makes the request before the hearing. The hearing may not be postponed more than thirty days.

OAH will conduct the hearing, reach a decision and notify the household and the local department of the outcome within ninety days of the date the household is notified in writing of the scheduled hearing.

480.15 Pre-Hearing Procedures

A pending disqualification hearing does not affect the individual’s or the household’s right to be certified and participate in the program.

NOTE: The local department will terminate or reduce the household’s SNAP benefits if it is determined that the household fails to request an administrative hearing and continuation of SNAP benefits after the notice of the termination or reduction.

The local department will make available to the individual or representative all documents and records used at the hearing.

Prior to the hearing, the local department will make available to the individual or representative the contents of the case file, including the application forms and documents used to establish the household’s eligibility and allotment.

NOTE: The local department may not release information that is confidential under State law, such as the names of individuals who have disclosed information about the household without its knowledge, or the nature or status of pending criminal prosecutions.

If requested by the individual or representative, provide, free of charge, a copy of the portions of the case file relevant to the hearing.

480.16 Hearings Procedures

OAH may use the same administrative law judge (ALJ) for the disqualification hearing and administrative hearing. The ALJ will:

Administer oaths or affirmations;

Ensure that all relevant issues are considered;

480.16 Hearings Procedures (continued)

Request, receive and make part of the record all evidence necessary to decide all the issues raised;

Regulate the conduct and course of the hearing consistent with due process to ensure an orderly hearing;

Order, where relevant and useful, an independent medical assessment or professional evaluation from a source mutually satisfactory to the household; and

Render a decision in the name of the Family Investment Administration.

480.17 Hearing the Case

At the hearing, the individual or representative will have the opportunity to:

Present the case;

Examine witnesses;

Advance arguments without interruption;

Question or refute any testimony or evidence, including an opportunity to confront and cross-examine hostile witnesses; and

Submit evidence to establish facts and circumstances in the case.

The hearings examiner will advise the individual or representative of the right to remain silent concerning the charges.

Confidential information that is protected from release and other documents or records that the household does not have the opportunity to contest or challenge cannot be introduced into the hearing record and cannot be used by the hearings examiner to make a decision.

The local department has the burden of proving an intentional program violation by clear and convincing evidence.

480.18 Failure to Appear (“No-Show”) Hearings

OAH will conduct the hearing without the individual being present or represented if the individual or representative fails to appear at the hearing without good cause.

NOTE: Even though the individual is not present or is not represented, the hearing examiner will consider the evidence and determine if an IPV was committed.

OAH will close the hearing record if the individual or representative does not notify OAH within ten days after a hearing that he or she had good cause for not attending the hearing.

480.19 Hearings Decision

The hearing decision will be issued within ninety days from the date when the advance notice of the hearing was sent unless the ninety-day period was extended.

Hearing decisions are based on the hearing record.

A hearing decision will:

Summarize the facts of the case;

Specify the reasons for the decision;

Identify the supporting evidence and the pertinent Federal or State regulations; and

Respond to reasoned arguments made by the household member or representative.

The decision is part of the record.

A hearing decision is binding on the local department.

The individual and the local department are notified in writing of the decision.

The household is notified of its right to a judicial review of the decision if it upholds the local department’s action.

480.20 Application of Disqualification Penalties

The local department will disqualify only the individual found to have committed the IPV and not the entire household.

The disqualification period begins no later than the following:

Court Referrals

The date ordered by the court; or

Within forty-five days of the court decision if the court did not speak to the disqualification’s effective date.

Disqualification Consent Agreement (MD DHS 8)

Within forty-five days of the date the individual signed the Disqualification Consent Agreement.

Administrative Disqualification Hearing

The beginning of the month that follows the date the household receives written notification of the hearing decision

Waiver of the Right to an Administrative Disqualification Hearing

The beginning of the month that follows the date the household member receives written notification (Notice to Disqualified Individual, DHS/FIA IPV 1A or B) of the disqualification.

If the individual is ineligible for SNAP benefits when the penalty is imposed, begin the penalty within the above time frames and continue it until the time elapses.

480.21 Notification of Disqualification

The local department will provide written notification to the disqualified individual using the Notice to Disqualified Individual, DHS/FIA IPV 2A or 2B, or DHS/FIA IPV 3A or 3B for court disqualifications.

In cases involving an Administrative Disqualification Hearing or the individual’s signing of the waiver of rights to such a hearing, provide the notification of disqualification to the individual prior to the disqualification.

Note: Even though the individual is disqualified, the household is responsible for repaying the amount of any overpayment.

480.21 Notification of Disqualification (continued)

Use the DHS/FIA 401-B to inform the household of the following:

Claim amount owed;

The reason for the claim;

The period of time the claim covers;

Any offsetting done;

Method of repayment;

The household’s right to a administrative hearing if it disagrees with the amount of the claim unless the household had a administrative hearing on the claim as a result of the consolidation of the administrative disqualification hearing with the administrative hearing;

The household’s right to request re-negotiation of any agreed upon repayment schedule should the household’s circumstances change; and

Space for the household to indicate the method of repayment and a signature block.

480.22 Reporting on Disqualified Individuals - Disqualified Recipient Report

The Electronic Disqualified Recipient System (eDRS) is a nationwide database to which all states have access checking IPV penalties in other states.

The local department must enter all disqualified recipients on the eDRS within 30 days after the finding of an IPV or signing of the waiver of an administrative disqualification hearing.

In addition to entering all IPVs into e-DRS, all local departments must complete the 366B-MD tracking form within 30 days of the end of each calendar quarter and submit it to the Family Investment Administration.