section-7 DISCONTINUING ELIGIBILITY

A. Reduction/Termination of Benefits of Households Containing Ineligible/Disqualified Individuals 1. Reduction Or Termination of Benefits Within the Certification Period When an individual becomes ineligible or disqualified during the certification period, the eligibility of the remaining household members should be based to the extent possible on case file information. The law specifies that when a recipient is found to have committed an IPV by a State or Federal court or State administrative disqualification hearing (ADH), his or her needs must be removed from consideration in determining the grant for a period of time determined by the number of IPVs committed. If a household's benefits are reduced or terminated within the certification period, the district shall issue a notice of adverse action. The notice of adverse action shall: a. Inform the household of the ineligibility/disqualification. b. The reason for ineligibility/disqualification. c. The eligibility and benefit level of the remaining members. d. The actions the household must take to end the ineligibility/disqualification; and, e. The household’s right to a fair hearing. 2. Intentional Program Violation When a household's benefits are reduced or terminated within the certification period because a member has been disqualified due to and intentional program violation, the district must notify the remaining members of their eligibility and benefit level at the same time the disqualified individual(s) is notified of his/her disqualification, using "IPV Disqualification Notice for TA and SNAP Programs" (LDSS forms 4799 and 4827). See SNAP SB Section 16. The household is not entitled to a notice of adverse action, but it can request a fair hearing to contest the reduction or termination of benefits, unless the household has already had a fair hearing on the amount of the claim as a result of consolidation of the administrative disqualification hearing with the fair hearing. It is important to note that a household disqualified for a public assistance IPV shall not be disqualified for SNAP solely by reason of a public assistance IPV. Districts must establish whether a public assistance IPV also results in a SNAP IPV. Therefore, for TA/SNAP cases where a public assistance IPV disqualification is imposed, districts must make a separate determination for the SNAP portion of the case. References: 387.16 Special provisions for household circumstances 93 ADM-8 Disqualifications for Intentional Program Violations 7 CFR 273.11 (c) (ii) B. Disqualification for Intentional Program Violation This section describes the processes and procedures that must be followed when a SNAP recipient is accused of intentionally violating the requirements of the SNAP in a fraudulent manner. If such a recipient is found to have committed an intentional program violation (IPV), the recipient may be disqualified from participation in such program for the periods of time set forth in this section. NOTE: Except for matters involving fraud (acts committed prior to August 1, 1983) as defined in Department Regulation 399.1(a), the provisions of Department Regulation 399 are superseded by the provisions of Department Regulation 359. Any matters or procedures commenced pursuant to Department Regulation 399 prior to June 30, 1992, will be continued in accordance with the provisions of Department Regulation 359 as if the matter had been commenced in accordance with such provisions. Department Regulation 359 will apply to all further proceedings in pending matters initiated pursuant to Department Regulation 399, except to the extent that a hearing officer determines that application of Department Regulation 359 in a particular pending matter would not be feasible or create an injustice, in which event the procedures under Department Regulation 399 may be used. Proceedings held pursuant to the laws and regulations in existence prior to June 30, 1992 will not be impaired by Department Regulation 359. Reference: 359.0 Disqualification for Intentional Program Violation, Scope 399.11 Food Stamp Fraud and Food Stamp Intentional Program Violations- Disqualifications C. Definitions 1. SNAP IPV - The commission of one or more acts in violation of standards of SNAP. A SNAP IPV occurs when an individual has intentionally: a. Made a false or misleading statement, or misrepresented, concealed or withheld facts concerning the individual's eligibility for SNAP; or b. Committed any act constituting a violation of the requirements of SNAP, including, but not limited to, acts constituting a fraudulent use, presentation, transfer, acquisition, receipt, possession or alteration of SNAP Benefits, CBICs, BINs or any other evidence of the individual's eligibility for SNAP. 2. Administrative Disqualification Hearing - Administrative disqualification hearing means a hearing scheduled by the OTDA, at the request of a 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 number 1 above. 3. Waiver Of Administrative Disqualification Hearing - Waiver of administrative disqualification hearing means an election of an individual, in compliance with the provisions of this section, to accept the imposition of an appropriate penalty contained in this section without a hearing. 4. Disqualification Consent Agreement - 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 IPV and consents, as described in this section, to the imposition of an appropriate disqualification penalty, as set forth in this section without a trial. 5. Head Of Household - The head of household is the member of the applicant household designated by the household to represent the household in all matters pertaining to its eligibility for and receipt of benefits. The head of household classification must not be used to impose special requirements on the household, such as requiring that the head of household, rather than another responsible member of the household, appear at the certification office to apply for benefits. NOTE: Except for matters involving fraud (acts committed prior to August 1, 1983) as defined in Department Regulation 399.1(a), the provisions of Department Regulation 399 are superseded by the provisions of Department Regulation 359. Any matters or procedures commenced pursuant to Department Regulation 399 prior to June 30, 1992, will be continued in accordance with the provisions of Department Regulation 359 as if the matter had been commenced in accordance with such provisions. Department Regulation 359 will apply to all further proceedings in pending matters initiated pursuant to Department Regulation 399, except to the extent that a hearing officer determines that application of Department Regulation 359 in a particular pending matter would not be feasible or create an injustice, in which event the procedures under Department Regulation 399 may be used. Proceedings held pursuant to the laws and regulations in existence prior to June 30, 1992 will not be impaired by Department Regulation 359. References: 359.1 Definitions 399.1 Definitions 359.3 Standards D. Responsibilities 1. Dual Responsibility The OTDA and Districts have the responsibility for investigating the alleged commission of IPVs and ensuring that the procedures set forth in this Section are followed. 2. Change In Regulation Except for matters involving fraud (acts committed prior to August 1, 1983) as defined in Department Regulation 399.1(a), the provisions of Department Regulation 399 are superseded by the provisions of Department Regulation 359. Any matters or procedures commenced pursuant to Department Regulation 399 prior to June 30, 1992, will be continued in accordance with the provisions of Department Regulation 359 as if the matter had been commenced in accordance with such provisions. Department Regulation 359 will apply to all further proceedings in pending matters initiated pursuant to Department Regulation 399, except to the extent that a hearing officer determines that application of Department Regulation 359 in a particular pending matter would not be feasible or create an injustice, in which event the procedures under Department Regulation 399 may be used. Proceedings held pursuant to the laws and regulations in existence prior to June 30, 1992, will not be impaired by Department Regulation 359. 3. Administrative Hearings Administrative hearings for a SNAP IPV may be scheduled by the OTDA, provided that not more than six years have elapsed between the month an individual committed an IPV and the date on which the District discovered the IPV, and the OTDA determines that there is evidence to substantiate that an IPV has occurred. 4. Inadvertent Household Error Unless specifically granted written authorization to proceed directly on an SNAP IPV by either a district 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 SNAP IPV allegation, a district must initially treat the allegation as an inadvertent household error prior to either referring the case to the district attorney or processing the allegation for an administrative disqualification hearing. A district's failure to comply with the provisions of this Section will not affect the OTDA's determination at a hearing or a court's determination when an allegation is referred by a 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 SNAP allotment reduction authorized in this section after a hearing decision is issued that a SNAP IPV has occurred. 5. Social Services District Investigation Unit Operations Plan districts must file their Investigation Unit Plan with the OTDA when a change is made to a previously submitted plan. This plan must include: • A description of the organizational unit(s) responsible for the investigation of allegations of client fraud. • A description of any claims establishment (recoupment) and collection activities for which the fraud referral unit may also be responsible. • Procedures for the referral of fraud cases for administrative hearings. • A description of the organizational unit(s) responsible for the prosecution of allegations of client fraud. • Detailed procedures for the referral of fraud cases to the prosecuting authority. • A detailed, step by step description of the DCA process following the guidelines set forth in 91-ADM-51 and 18 NYCRR 359.4. • An explanation of how it is proven that the individual was advised on the record of the court of the disqualification provision prior to entering any plea; and • A copy of or a statement of the agreement with the prosecuting authority’s office in accordance with 18 NYCRR 348.2(c) and 359.4, and the federal regulation 7 CFR 273.16(g)(1). This agreement must include information on how, and under what circumstances, cases will be accepted for possible prosecution and the criteria set by the prosecutor for accepting cases for prosecution. The criteria should include, but not be limited to, the dollar threshold and the type of violation. All Plans must be submitted to: NYS Office of Temporary and Disability Assistance Office of Audit and Quality Improvement Program Integrity 40 N Pearl Street Albany, NY 12243 Social services districts must report information on individuals who have been found to have committed SNAP IPVs to the OTDA's Program Integrity Unit. 6. Referral to the Investigation Unit When an inconsistency in the facts of a SNAP case is discovered, the SNAP worker must document the inconsistency, including the amount of any over issuance and determine whether it was the result of a potential IPV. • If the worker has reason to suspect an individual has committed an act which may be an IPV, the worker starts the recoupment. • For TA, a timely and adequate notice must be sent and if there is a SNAP impact, a repayment agreement must also be sent. This may be done concurrently with referring the case to the district’s Investigation Unit. • The procedures for making the referral must be established by the district. • The Investigation Unit then investigates the alleged/potential IPV. There does not have to be an actual overpayment and/or over issuance to be an IPV. • If the Investigation Unit determines that the allegation is unfounded or that all the elements necessary to process the case further as an IPV are not present (e.g., unavailability of pieces of documentary evidence required to prove the intent of the client), no further action is taken, and the eligibility worker is notified to begin the recovery of over issuances if this has not already begun. NOTE: Except for matters involving fraud (acts committed prior to August 1, 1983) as defined in Department Regulation 399.1(a), the provisions of Department Regulation 399 are superseded by the provisions of Department Regulation 359. Any matters or procedures commenced pursuant to Department Regulation 399 prior to June 30, 1992, will be continued in accordance with the provisions of Department Regulation 359 as if the matter had been commenced in accordance with such provisions. Department Regulation 359 will apply to all further proceedings in pending matters initiated pursuant to Department Regulation 399, except to the extent that a hearing officer determines that application of Department Regulation 359 in a particular pending matter would not be feasible or create an injustice, in which event the procedures under Department Regulation 399 may be used. Proceedings held pursuant to the laws and regulations in existence prior to June 30, 1992 will not be impaired by Department Regulation 359. Reference: 359.2 Applicability 399.11 Effectiveness of this Part 93 ADM-8 Disqualifications for Intentional Program Violations 15 INF-07 Investigative Unit Operations Plan (Revised) E. Referral To Prosecuting Authorities The district must refer a case involving a SNAP IPV in which it believes the facts warrant civil or criminal prosecution to the appropriate District Attorney (DA) or to any other prosecutor authorized to action the matter, and not to the OTDA for an administrative disqualification hearing. This will not apply in instances in which the district has received prior notification from the DA, or other equivalent prosecutor that the amount of the 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 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 OTDA may not reverse a determination following an administrative SNAP disqualification hearing for lack of compliance with this provision. NOTE: Conviction of or a plea of guilty to violation of SSL 145.1 does NOT establish guilt of a Supplemental Nutrition Assistance Program (IPV) since SSL 145.1 addresses public assistance or care and omits SNAP benefits. NTA cases and the SNAP portion of TA cases, therefore, should NOT be prosecuted under SSL 145 and should not be treated as IPVs. A conviction for the misuse of SNAP benefits under SSL 147 or any section of the Penal Law should be categorized as an IPV. 1. Deferred Adjudication When a case is accepted for prosecution, the appropriate prosecutor may choose to settle the case or a court of appropriate jurisdiction hearing the case may issue an order, such as an order, adjourning the case in contemplation of dismissal provided restitution is made. In such cases, the district may use a DCA as described below. 2. Disqualification Consent Agreement (DCA) A disqualification consent agreement LDSS-4903 is a document in which any individual, caretaker relative, or head of the household consent to the imposition of the appropriate disqualification penalty contained in this section without a trial. In cases of deferred adjudication, the district may utilize a disqualification consent agreement under the following conditions: a. districts which choose to use disqualification consent agreements must enter into a written agreement with the appropriate prosecutors which specifies that all households will be provided with advance written notification of the consequences of signing a disqualification consent to all households when deferred adjudication is offered. Since each prosecutor's office may have its own requirements for an agreement, each district should design its own format for the written agreement between the district and the appropriate prosecutors. Once the written agreement is signed, a copy must be forwarded to the New York State Office of Temporary and Disability Assistance, Office of Audit and Quality Improvement, Program Integrity Unit as must all future agreements and modifications. b. Because no further administrative appeal is available to a client who has entered a DCA, it is important that the district do a complete and thorough investigation of the allegation. (1) Additionally, an adequate screening and review process must be established to ensure that only appropriate cases are referred to the appropriate prosecutor. Evidence packages referred to the DA must sustain the district's contention that an Intentional Program Violation has occurred. (2) A DCA is to be used only when the appropriate prosecutor has determined that the elements necessary to pursue a prosecution are present and has accepted the case for prosecution. c. Unless a DCA is completed by the appropriate prosecutor's office directly, the DA must provide written delegation for each case in which the district is being authorized to act on the appropriate prosecutor's behalf in obtaining a DCA. This delegation must state that the case has been accepted for prosecution by the appropriate prosecutor, but such prosecution will be deferred if the client enters the DCA. d. In all DCA cases, the advance written notification of the consequences of entering a DCA must be sent by the district at least ten calendar days before the date of the scheduled interview to discuss signing the DCA. This advance notification appears on the front page of the DCA currently used by the districts. (1) All districts must review their procedures to ensure that a copy of the DCA with the advance notice language is provided at least ten days before the client is required to meet with the county representative to discuss signing the DCA. (2) The accused client's understanding of the consequences of entering a DCA is evidenced by signing the consequences statement. (3) If the accused client who signs the consequences statement is not the head of household, the consequences statement must also be signed by the head of household. e. The form to be used in completing the DCA, which combines the advance notice, is LDSS-4903. This form must be produced locally with no variations. f. A DCA must be in a format prescribed by the OTDA and must include: (1) Notification to the accused individual of the consequences of signing the agreement and consenting to a disqualification penalty. (2) 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. (3) A statement that signing the agreement will result in disqualification of the accused individual and reduction or discontinuance of assistance or SNAP benefits for the disqualification period, even if the accused individual was not found guilty of civil or criminal misrepresentation or fraud. (4) A statement describing the disqualification period which will be imposed because of the accused individual's signing the agreement; and (5) 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. g. The advance notice appointment letter must contain the information that the client is entitled to have a representative present when executing the DCA. References: 359.4 Referral to Prosecuting Authorities 399.11 Effectiveness of this Part 91 ADM-51 Use of the Disqualification Consent Agreement (DCA) in the Food Stamp Program F. Commencement Of the Administrative Disqualification Hearing Process Upon discovering and determining that an IPV may have occurred, the district must document the determination and reach a conclusion as to whether the documented acts constitute an IPV in accordance with the definitions described in this section. a. If the district concludes that the documented acts resulted in an IPV and that referral, in accordance with this section, to the appropriate prosecutor authorized to act on the matter, is not warranted or not possible due to the amount in issue, the district may process the case for an administrative disqualification hearing. b. If the 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 act on the referral within a reasonable period of time, and the district elects to initiate the process for an administrative disqualification hearing, the 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 OTDA or at the hearing may result in an administrative disqualification hearing decision adverse to the district. c. If the 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 IPV and forward the evidence in the form of an evidentiary packet to the New York State Office of Temporary and Disability Assistance, Office of Administrative Hearings, with a request that the OTDA schedule an administrative disqualification hearing. d. If the district processes a case for an administrative disqualification hearing for a SNAP IPV and the factual issues arise from the same or related circumstances as a case for an SN IPV or TANF IPV, the cases must be consolidated and the district must submit with the required evidentiary packet a statement of the particular IPV being alleged and the sanction sought to be imposed for each such IPV being alleged. e. The evidentiary packet forwarded by the district to the OTDA accompanying the 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: (1) 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 charge(s) and the individual or individuals against whom a disqualification is sought, together with any statement required by section d above 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 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 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 IPV 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 IPV 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. NOTE: Verification of actual benefits received is required when submitting the evidentiary packet. f. Upon receipt of a district's request for a hearing and accompanying evidentiary packet, the OTDA will review the packet to determine if it contains sufficient documentary evidence to substantiate that an individual has committed one or more IPV's in accordance with the definition described in this section. The OTDA will also determine whether the evidentiary packet satisfies the provisions of paragraph e above. g. If the OTDA’s review of the evidentiary packet indicates that there is either insufficient documentary evidence to establish that an IPV was committed or that the packet does not comply with the provisions of paragraph e above, the OTDA will return the packet to the district and not schedule a hearing. Reference: 359.5 Commencement of the administrative disqualification hearings process 399.11 Effectiveness of this Part 93 ADM-8 Disqualifications for Intentional Program Violations G. Notification Of Administrative Disqualification Hearing 1. Policy a. Following a determination that the evidentiary packet is sufficient; the OTDA must schedule an administrative disqualification hearing. The notice of administrative disqualification hearing which notifies the accused individual of the scheduled hearing must be mailed certified mail, return receipt requested, to the accused individual. b. The hearing will be held at a time and place convenient to the accused as far as practicable, considering 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 OTDA must mail to the district which requested the hearing a notification of the time, date, and place of the hearing by regular mail. d. A written notice of administrative disqualification hearing must be provided by the OTDA to an individual alleged to have committed an IPV in accordance with the definitions described in this section. 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 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 SNAP unit or the nature or status of pending criminal prosecutions, cannot be released. (6) Notification of the individual's right to: (a) 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. (b) Present the case or be represented by legal counsel or other person; (c) Bring witnesses. (d) Advance arguments without undue interference. (e) Question or refute any testimony or evidence. (f) Confront and cross-examine adverse witnesses; and (g) 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 inference can be drawn from the silence of the individual. (8) A statement that upon request, a copy of Department Regulation 359 will be made available to the individual or his or her representative at the district during normal business hours. (9) Copies of the sections of Department Regulation 359 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 IPV 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 this section. This explanation must include: (a) The date that the signed waiver must be received by the OTDA and a place in which the accused individual can sign his or her name. This explanation must also include: 1) 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 and a place in which such person can sign his or her name; and, 2) The waiver statement must include an appropriately designated signature block in which such other individual can sign his or her name. (b) A statement of the accused individual's right to remain silent concerning the charge(s), but those 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; (c) 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 SNAP benefits for the appropriate period even if the accused individual does not admit to the facts as presented by the district. (d) An opportunity for the accused individual to specify whether or not he or she admits to the facts as presented by the district. (e) The telephone number and, if possible, the name of the OTDA employee to contact for additional information; and (f) 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. Reference: 359.6 Notification of administrative disqualification hearing 399.11 Effectiveness of this Part 93 ADM-8 Disqualifications for Intentional Program Violations H. Administrative Disqualification Hearings Following a determination that the evidentiary packet is sufficient, the scheduling of an administrative disqualification hearing and the receipt of the notice required by this section, an administrative disqualification hearing will be conducted in accordance with the following requirements: 1. Consolidated Hearing Where factual issues arise from the same or related circumstances, a consolidated administrative disqualification hearing will be held for a SNAP IPV and a TA 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 IPV. 2. Adjournment An administrative disqualification hearing will be adjourned when: a. The request for such adjournment is made at least 10 days in advance of the scheduled hearing date; or b. 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. 3. Rights In the Administrative Disqualification Hearing Process The accused individual, or such individual's representative, must have adequate opportunity to: a. Examine the contents of the individual's case file, and all documents and records to be used by the district at the hearing, at a reasonable time before the date of the hearing and during the hearing. b. Present the case himself or herself, or with the aid of an authorized representative. c. Bring witnesses. d. Establish all pertinent facts and circumstances. e. Advance any arguments without undue influence; and f. Question or refute any testimony or evidence including the opportunity to cross-examine adverse witnesses. 4. Conduct of An Administrative Disqualification Hearing a. The hearing officer must advise the accused individual that he or she may refuse to answer questions during the hearing. b. The burden of proving that an accused individual has committed an IPV is on the district. c. 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 Department Regulations 358: 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 district nor by any person acting on behalf of the office or district nor by any witness presented by any social services official. d. All provisions in Department Regulation 358 and FSSB Section 8 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. 5. Decision After an Administrative Disqualification Hearing a. 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 IPV. b. 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. c. The OTDA must conduct the hearing, arrive at a decision and forward the decision to the 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. 6. Default of An Administrative Disqualification Hearing a. 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 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. b. If the opportunity to appear at a hearing has been defaulted by the accused individual in accordance with paragraph 6a above 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 IPV was committed based on clear and convincing evidence. c. If an accused individual fails to appear at a scheduled administrative disqualification hearing and is found to have committed an IPV, but a hearing official later determines that the individual had good cause for not appearing, the previous decision will not remain valid and a new hearing will be scheduled and conducted. The hearing officer who presided originally at the hearing may conduct the new hearing. 7. 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. 8. Review Of Disqualification Hearing Decisions A decision that an IPV has been committed cannot be reversed by a subsequent fair hearing. 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. Reference: 359.7 Administrative disqualification hearing 399.11 Effectiveness of this Part 93 ADM-8 Disqualifications for Intentional Program Violations I. Waiver Of an Administrative Disqualification Hearing 1. An administrative disqualification hearing is waived when a waiver of administrative hearing document which is sent by the OTDA to an individual for whom the OTDA 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. 2. The OTDA will send written notification to the district which had requested the hearing that it may impose the appropriate penalty contained in TASB Section 6 upon sending a notice of disqualification to the individual, as described in TASB Section 6. A waiver of an administrative disqualification hearing must comply with the provisions of TASB Section 6. 3. A disqualification penalty which has been imposed following a waiver of an administrative disqualification hearing cannot be changed in a subsequent fair hearing. There is no right to appeal the penalty by a fair hearing. 4. Upon timely receipt of a properly executed waiver, the OTDA will notify the district in writing of the cancellation of the scheduled administrative disqualification hearing and of the district's responsibility to proceed with the recovery of any overpayment or over issuance. 5. When an individual waives his or her right to appear at an administrative disqualification hearing, the disqualification and appropriate reduction or discontinuance of assistance must result regardless of whether the individual admits or denies the charges made by the district. Reference: 359.8 Waiver of an administrative disqualification hearing 399.11 Effectiveness of this Part 93 ADM-8 Disqualifications for Intentional Program Violations J. Penalties 1. SNAP IPV Individuals found to have committed a SNAP 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 DCA will be ineligible to participate in SNAP: a. For a first non-drug or non-firearms or non-explosives related IPV, the disqualification periods are: (1) First Offense 1 year (2) Second Offense 2 years (3) Third Offense permanent b. For a drug, firearms, or explosives related IPV, the disqualification periods are: (1) First finding by Court 2 years of controlled substance trafficking for coupons (2) Second finding by Court permanent of controlled substance trafficking for coupons (3) First finding by Court permanent of trading of firearms, ammunition or explosives for coupons. 2. Court Determined IPV If a court of appropriate jurisdiction determines that an individual has engaged in conduct that would constitute an IPV in accordance with the definition described in this section, the district must impose the penalties except as otherwise set forth below: a. Notwithstanding the provisions of this section, an individual found guilty of an IPV must be disqualified from SNAP for the length of time specified by the court, if the court has imposed a disqualification period for such a violation. b. With respect to a SNAP IPV, if a court fails to impose a disqualification period, the district must impose the disqualification penalties specified in section #1 above, unless such imposition is contrary to the court order. c. If disqualification is ordered by a court, but a date for initiating the disqualification period is not specified, the district must initiate the disqualification period for currently eligible individuals within 45 days of the date the disqualification was ordered. d. 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 IPV, the district must initiate the disqualification period for currently eligible individuals within 45 days of the date of the court determination. 3. Disqualification The district must disqualify from the appropriate program(s) the individual(s) found to have committed an IPV, or who have signed a waiver of right to an administrative disqualification hearing or DCA in cases referred for prosecution, but not the entire assistance unit or household of such individual(s), except as provided in paragraph c below. a. A disqualified individual is ineligible to participate in a program from which he or she is disqualified for the periods provided in section 1. b. If an individual signs a DCA, the period of disqualification will begin within 45 days of the date the individual signed the DCA unless the DCA 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 district will disqualify the individual in accordance with the court order. c. If an individual signs a waiver of right to an administrative disqualification hearing or has been found to have committed an IPV 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 SNAP-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 IPV. The remaining members of the household which contained an individual who has been found to have committed an IPV must agree to make restitution within 10 days of the date that the district's demand letter is mailed, or the household's monthly allotment will be reduced. If the remaining members agree to make restitution but fail to do so, the district must reduce the household’s monthly allotment. Restitution must begin during the period of disqualification imposed by the district or a court of law. d. If the individual continues to receive SNAP, because the disqualification is not imposed and the unserved disqualification is later discovered, only the remaining sanction time can be imposed. For example, if a 12-month disqualification period is discovered 6 months after it was supposed to have started, only the remaining 6 months is imposed. e. When a disqualification due to an IPV is determined after an individual is no longer receiving SNAP the imposition of the disqualification can no longer be postponed until the individual applies for and is determined eligible for benefits. Disqualification penalties are to be imposed as if all individuals are eligible to participate in the SNAP program at the time of the IPV determination. f. IPV disqualifications which are imposed while an individual is not participating in the SNAP and which elapse before the individual reapplies, count toward the progressive disqualification count (i.e., 1st, 2nd, or 3rd occurrence). Once a disqualification period is imposed, it continues uninterrupted until completed. g. Once a disqualification penalty has been imposed against a participating individual (including periods the district mistakenly left the case open) it continues uninterrupted until completed, even if the case is closed prior to the end of the disqualification period. h. A disqualification counts towards the progressive disqualification penalties (1st, 2nd, or 3rd occurrence) even if the individual never actually stops receiving SNAP benefits because the disqualification is not imposed within the timeliness standards. i. Assistance paid to an individual during a period the individual should have been disqualified, but was not, is an overpayment. An appropriate claim - agency error, inadvertent household or IPV - must be established. To establish the claim as an IPV, there must be signed waiver of ADH or a signed DCA, or it must be determined through a court or administrative disqualification hearing procedure that the individual deliberately withheld information about the pended disqualification. If the individual did receive SNAP benefits and therefore, the disqualification is considered imposed, it must be determined when the individual applies for assistance in New York, if there is any part of the disqualification period remaining to be served. If the disqualification is not discovered at the time of application, the individual must be disqualified for any remaining unserved time when it is discovered. Also, it must be determined if any overpayment occurred in this state due to failure to start the disqualification at the time of application. 4. Notice To Be Sent If there is a determination that a member of the household or assistance unit has committed an IPV, the district must take immediate action to send the individual a notice of disqualification as set forth in this section. a. In the case of an individual who is not currently in receipt of SNAP benefits, the imposition of the disqualification can no longer be postponed until the individual applies for and is determined eligible for benefits. Disqualification penalties are to be imposed as if all individuals are eligible to participate in the SNAP at the time of the IPV determination. b. 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 IPV regardless of the household's or unit's eligibility for SNAP benefits. 5. Reporting Districts must report to the OTDA information on individuals who have been found to have committed an IPV 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: a. Full name. b. Social security number. c. Date of birth. d. Number of disqualification(s) (1st, 2nd, 3rd, etc.). e. Date disqualification took effect for a currently otherwise eligible individual; and 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 of whose disqualification penalty will not be imposed until the individual becomes eligible for assistance or benefits. This information is to be updated by districts where appropriate. f. The data must be forwarded to: NYS Office of Temporary and Disability Assistance Office of Audit and Quality Improvement Program Integrity 40 N Pearl Street Albany, NY 12243 Reference: 359.9 Penalties 399.11 Effectiveness of this Part 93 ADM-8 Disqualifications for Intentional Program Violations K. Notice of Disqualification 1. The district will provide a written notice of disqualification to an individual who: a. Has been found, after an administrative disqualification hearing, to have committed an IPV. b. Has waived his or her right to appear at an administrative disqualification hearing in accordance with this section. c. Has been determined by a court to have engaged in conduct that would constitute an IPV in accordance with this section. 2. A notice of disqualification must: a. 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. b. 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. c. In the case of an individual who is not currently in receipt of SNAP benefits, the imposition of the disqualification can no longer be postponed until the individual applies for and is determined eligible for benefits. Disqualification penalties are to be imposed as if all individuals are eligible to participate in the SNAP program at the time of the IPV determination. d. In the case of an individual who has been found after an administrative disqualification hearing to have committed an IPV, inform such individual of the decision and the reason for the decision; and e. 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: (1) 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. (2) The amount of the TA or SNAP allotment to be provided to the remaining members of the household or assistance unit during the disqualification period; and (3) The 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. 3. If the OTDA's decision confirms the district's determination of IPV, the district shall mail the household written notices in accordance with SNAP SB Section 16, prior to disqualification. It is recommended that districts coincide the certification period of any remaining household members with the end of the disqualification period. This will help assure the issuance of correct benefits, particularly if the disqualified individual is a mandatory member of the SNAP household. Reference: 359.10 Notice of Disqualification 399.11 Effectiveness of this Part 93 ADM-8 http://otda.ny.gov/policy/directives/1993/ADM/93_ADM-08.pdf L. Disqualification For Failure to Provide Or Apply For a Social Security Number If the district determines that a household member(s) has refused or failed without good cause to provide or apply for an SSN, then the individual without the SSN shall be ineligible to participate in the SNAP. The disqualification applies to the individual(s) for whom the SSN is not provided and not to the entire household. The disqualified individual(s) may become eligible upon providing the district with an SSN or proof of application for an SSN. The income and resources of an individual disqualified from the household for failure to comply with this requirement shall be handled as set forth in SNAPSB Sections 13 and 17. Reference: 387.9 Investigation and Eligibility 7CFR 273.6 (c) Failure to Comply M. Other Disqualifications 1. Disqualification for Trafficking in Supplemental Nutrition Assistance Program Benefits This provision permanently disqualifies persons convicted by a Federal, State, or local court of trafficking in SNAP benefits worth $500 or more. Trafficking includes the illegal use, transfer, acquisition, alteration, or possession of SNAP benefits, authorization cards, or access devices. 2. Disqualification for Multiple Benefits As of September 21, 1996, any applicants, recipients or former recipients found by a Department Administrative Disqualification Hearing (ADH) or convicted by a court, of having made a fraudulent statement or misrepresentation of identity or residence in order to receive multiple SNAP benefits simultaneously, is ineligible to participate in the SNAP for ten years. A finding by the Department includes a disqualification consent agreement (DCA) or waiver of an ADH, in addition to the above ADH decision. 3. Disqualification for Fleeing Felons and Parole Probation Violators Clients who are found to be fleeing to avoid prosecution, or custody for a crime, or an attempt to commit a crime, or confinement for a felony, that would be classified as a felony, or who are violating a condition of probation or parole under a Federal or State law are ineligible for SNAP benefits. The court decision in Fowlkes v. Adamec issued by the Second Circuit of the United States Court of Appeals acknowledged a fleeing felon to exist only when a court or tribunal had determined a person to have escaped, or to be fleeing to avoid prosecution, or custody or confinement for a felony or an attempted felony. In addition, the court also held the term ‘‘fleeing’’ to mean ‘‘the conscious evasion of arrest or prosecution.” Thus, for the Agency to take adverse action against an individual described in the Social Security Act as ‘‘fleeing to avoid prosecution, custody, or confinement,’’ the Agency must have some evidence that the individual knew his or her apprehension was sought. Section 4112 of the Food, Conservation and Energy Act of 2008 (also known as the Food and Nutrition Act of 2008) amends federal law with respect to fleeing felons. Specifically, the law requires the Secretary to define the terms “fleeing” and “actively seeking” and “ensure that State agencies use consistent procedures established by the Secretary that disqualify individuals whom law enforcement authorities are actively seeking for the purpose of holding criminal proceedings against the individual”. Therefore, in anticipation of such regulations, the Agency also should ask the issuing jurisdiction if it is seeking the individual with the intent to prosecute such individual. In summary, to establish that a felon is actually fleeing, the district must: • Obtain a copy of the flight warrant from the issuing agency or a written statement from such agency on their letterhead with the specific flight/escape warrant information. If flight warrant cannot be obtained, do not pursue further. • Ask the issuing jurisdiction if it is actively seeking the individual with the intent to prosecute such individual. • Attain evidence that the individual knew his or her apprehension was sought. On March 19, 2010, the United States Court of Appeals for the Second Circuit decided Clark, et.al.v. Astrue. The essence of the decision, as it pertains to applicants for and recipients of SNAP and TA, is that there be more than a warrant issued based on probable cause or reasonable suspicion to believe that someone is violating a condition of probation or parole: The court held that such warrants are not equivalent to a determination that one is in fact violating a condition of probation or parole. Such warrants merely constitute evidence that one is violating one’s probation or parole, but do not establish that such warrants meet the necessary evidentiary standard of establishing that the alleged violation exists. Therefore, districts must not deny or discontinue TA or SNAP benefits on the basis of a warrant issued on the basis of an alleged probation or parole violation because practically all such warrants do not constitute a determination of violation but, instead, are mere allegations of violation. Reference: 09 INF 12 Program Integrity Questions and Answers GIS 10 TA/DC026 Clark v. Astrue: Temporary Assistance (TA) and Food Stamps (FS) Policy for Probation and Parole Violators 07-INF-03 Recovery/Recoupment Due to Fleeing Felon and Probation/Parole Violator Status GIS 08 TA/WMS008 New Policy and Closing Codes for Fleeing Felons and Probation and Parole Violators 97 ADM-4 Clarifications of Various Food Stamp Welfare Reform Provisions 96 LCM-83 Food Stamp Impact of New Federal Welfare Law