CALCULATING THE AMOUNT OF THE ERROR (CALCULATING CLAIMS)

(a) The total amount of the claim is calculated, based at a minimum, on the monthly overpayment amount which occurred during the twelve (12) months preceding the date the overpayment was discovered.

(b) The department shall calculate the amount of the claim back to the month the error occurred regardless of the length of time that elapsed until the error was discovered.

(d) If an eligibility determination group member is determined to have committed an IPV by intentionally failing to report a change in eligibility determination group circumstances, the first month affected by the failure to report will be the first month in which the change would have been effective if it had been timely reported.

(e) In no event shall the department determine as the first month that the change would have been effective any month later than two (2) months after the month that the change in eligibility determination group circumstances occurred.

(f) If an eligibility determination group received a larger benefit amount than it was entitled to receive, a claim will be established against the eligibility determination group equal to the difference between the benefit amount the eligibility determination group received and the amount the eligibility determination group should have received.

(g) Earned income deduction penalty: When determining the amount of benefits the eligibility determination group should have received, the twenty percent (20%) earned income deduction is not applied to that portion of earned income that the eligibility determination group intentionally failed to report. A claim must be recomputed if it was initially handled as an IHE claim.

(3) Offsetting the claim: Once the amount of the claim for IPV, IHE, and AE is established, the department may offset the amount of the claim against any benefit amount not yet restored to the eligibility determination group. Action must be taken to initiate collection of the remaining balance, if any.

B. Cash assistance programs:

(1) Claims for administrative and client caused errors: Claims are established when the department issues more than the eligibility determination group was eligible to receive due to an AE or if the eligibility determination group fails, either intentionally or unintentionally, to report correct information at application or while receiving benefits.

(a) For each month of eligibility, the grant determinations are made using the standard of need, case information and policy in effect for that month.

(b) The department shall recover all cash assistance overpayments, including overpayments resulting from an AE, and any assistance paid while pending a fair hearing decision.

(c) An historical change that results in a lower payment than was originally issued, results in an overpayment and the establishment of a claim if it exceeds the claims establishment thresholds listed in Subsection G of 8.100.640.11 NMAC.

(d) If a change occurs that makes the eligibility determination group eligible for a lower benefit payment for a month, the adult member(s) of the eligibility benefit group is responsible for paying the difference back to the department.

(e) If a change occurs that lowers the standard of need for which the eligibility determination group is eligible, the eligibility determination group shall be allowed the amount that they were eligible on the first day of the month.

(2) Overpayments to sponsored aliens:

(a) Aliens and sponsors are jointly liable for overpayments caused by failure of the sponsor to provide correct information, unless the sponsor is without fault or has good cause. "Without fault" or "good cause" exists when:

(i) the agency failed to request information from the sponsor; or

(ii) the sponsor can show that the sponsor provided all information available to the sponsor at the time the information was provided;

(iii) the alien provided incorrect information without the knowledge of the sponsor; or

(iv) the sponsor can show that the giving of incorrect information was not intentional on the part of the sponsor.

(b) If good cause is found to exist, the alien has sole responsibility for repayment.

(3) Developing substantiating information:

(a) Upon receiving indication that a possible error exists, the department shall investigate whether an erroneous payment has occurred. Pertinent information shall be requested from the participant. Because this information may be used to prosecute the participant for fraud, the participant shall not be required to provide such information; however, if the participant declines to provide information crucial to the determination of overpayment, the participant shall be ineligible for the period in question because of failure or refusal to provide information.

(b) The same standards shall be used in determining erroneous payments as are used to determine initial and ongoing eligibility and payment.

(c) The participant must be periodically reminded of the reporting responsibilities and must indicate, no less frequently than at every certification, that the participant understands these requirements. This requirement is met by the use of a department form that reminds participants at each certification of their reporting responsibilities. This form also serves as the participant's statement that the participant understands the reporting responsibilities. If it is determined that a participant may have difficulty understanding the reporting responsibilities because of language, literacy, or mental or emotional problems, the department shall supplement the written notice with an oral explanation. All such oral explanations must be documented in the case record.

(d) The participant shall become ineligible on a continuing basis if there is a continuing failure to provide information affecting the participant's current eligibility.

(4) Offsetting the claim: Once the amount of the claim for IPV, IHE and AE is established, any restoration the eligibility determination group is eligible to receive is reduced or offset by the amount of the claim. Action must be taken to initiate collection of the remaining balance, if any.

C. LIHEAP:

(1) A claim shall be established for LIHEAP benefits that have been overpaid regardless of the reason of the overpayment.

(2) The department may establish a claim that exceeds the claim establishment threshold, as identified in Subsection G of 8.100.640.11 NMAC, for LIHEAP benefits overpaid up to six (6) years prior to the date the overpayment occurred.

(3) Offsetting the claim: A benefit amount may be offset during the issuance process in order to recover a LIHEAP overpayment. The amount that is offset shall be conveyed to the restitutions bureau to be applied to the eligibility determination group's overpayment.

D. Claims involving reported changes: In cases involving reported changes, the department shall determine the first month the overpayment occurred.

(1) Inadvertent household error: If caused by an inadvertent error on the part of the eligibility determination group (failure to report a change in circumstances within the required time frames), the first month affected by the eligibility determination group's failure to report is the first month in which the change would have been effective if it had been reported timely. In no event will the department determine as the first month in which the change would have been effective any month later than two (2) months from the month in which the change in eligibility determination group's circumstances occurred.

(2) Agency error: If an eligibility determination group reported a change timely but the department did not act on the change within the required time frame, the change should have taken effect the first month following the reported change, if it had been acted upon within the time frame. In no event shall the department determine as the first month in which the change would have been effective any month later than two (2) months from the month in which the change in eligibility determination group circumstances occurred. If an adverse action notice was required but was not provided, the department shall assume for the purpose of calculating the claim that the maximum advance notice period would have expired without the eligibility determination group requesting a fair hearing.

[8.100.640.12 NMAC - N, 09/30/2013]