713.07 IPV Administrative Disqualification Hearing (FSM) |
_____________________________________________________________
An administrative disqualification hearing (ADH) is one method for deciding if an individual committed an intentional program violation (IPV).
Waiver of Hearing: The individual may waive the right to an ADH. If they do, the individual will be notified of the automatic disqualification by the Special Investigations Unit (SIU). The individual’s only opportunity for further appeal is a court of appropriate jurisdiction.
The accused member must sign the waiver. When the accused is not the head of household, the casehead must also sign the waiver.
The Administrative Disqualification Hearing (ADH): To begin proceedings, SIU must convince the Administrative Appeals Unit (AAU) of the need for an ADH by showing convincing documentation.
A pending ADH has no effect on the individual’s eligibility or benefit level. An individual need not be currently eligible to be the object of an ADH.
The AAU may combine an administrative appeal with an ADH when case circumstances are the same. The household must be given advance notice and the time frames of the ADH must be followed (see below). Regardless of the outcome, when a household submits to combined hearings to settle the amount of the claim, it cannot later request another administrative appeal based on the same circumstances to resettle the amount of the claim.
The ADH may be conducted without the household present when the household neither appears nor notifies the AAU of good cause for not appearing.
A determination of guilt for an IPV must be based on "clear and convincing evidence" that an individual purposefully committed the violation. ADH decisions cannot be reversed by a subsequent administrative appeal, but only by a court having appropriate jurisdiction. An ADH may be initiated and charges may be brought against a client in a court having appropriate jurisdiction, but both a hearing and court charges may not be pursued simultaneously.
Time Frames
Recipient notification: The AAU must notify the household at least 30 days in advance of a scheduled date for an ADH.
Decision: Within 90 days of the notification, the AAU must conduct the ADH and inform the household and appropriate Department of Health and Human Services (DHHS) offices of the decision.
Postponements: The household may postpone the ADH according to the criteria below:
• The new ADH date cannot be more than 30 calendar days after the initial date.
• The household must request a postponement at least 10 days before the scheduled ADH. This requirement may be waived for good cause.
• The 90-day limit imposed upon the AAU is extended by as many days as the ADH is postponed.
Before the Hearing
Notice of the Recipient’s Right to Waive the ADH
SIU issues a notice that the individual may waive their right to an ADH. The notice must contain all the following:
• the date by which SIU must receive the signed waiver. The accused individual has 10 days from the date of the notice to waive the ADH;
• a signature block for the accused individual and a signature block for the head of household or authorized representative;
• a statement of the accused individual’s right to remain silent concerning the charges;
• a statement that signing the waiver results in disqualification and reduction in benefits;
• an opportunity for the individual to admit or deny the facts as presented by DHHS;
• a telephone number for further information;
• that any remaining FS household members will be held responsible for repayment of the resulting claim; and
• all the information included in the Notice of Hearing below.
Notice of Hearing
If the individual chooses not to waive the ADH, the AAU must issue a notice 30 days before the ADH containing all of the following:
• date, time, and place of the hearing;
• charges against the individual;
• summary of evidence and how and where it can be examined;
• that the decision will be based solely on information provided by the state if the individual fails to appear at the hearing;
• that the individual will have up to 10 days after the date of the scheduled ADH to present good cause for failure to appear;
• that a determination of IPV will result in a specific disqualification penalty;
• the procedures of the ADH and the individual’s rights and responsibilities there;
• that the ADH does not preclude the state or federal government from prosecuting the individual in a civil or criminal court for the violation, or from collecting the overissuance; and
• that free legal services are available.
After the Hearing
The AAU writes a decision on the case. The decision must include all the following:
• the decision;
• reasons for the decision;
• supporting evidence;
• pertinent FS regulations; and
• responses to reasoned arguments made on behalf of the individual.
The AAU also provides a written notice to all affected parties of the ADH decision. The written notice need only include the actual decision.
SIU notifies all parties if there is a disqualification period or collection action. SIU’s notice must specify all the following:
• the decision;
• reasons for the decision; and
• the date the disqualification will take place.
SIU provides a notice to remaining members of the household explaining one of the following:
• the allotment amount they will receive during the period of disqualification; or
• that the household must reapply because the certification period has expired.
SIU also issues a demand letter for repayment.