1145.000.00 DISQUALIFICATION FOR INTENTIONAL PROGRAM VIOLATION

IM-#140 November 30, 2005IM-#94 July 29, 2002

An Intentional Program Violation (IPV) exists whenever an EU member(s) intentionally:

The State is responsible for investigating any case of alleged IPV and ensuring that appropriate cases are acted upon either through administrative disqualification hearings or referral to a court of appropriate jurisdiction. The agency delegates the responsibility for investigation of an alleged IPV to the Department of Social Services, Division of Legal Services, Welfare Investigation Unit (WIU).

This manual section contains policy and procedures for the following:

1145.005.00 REFERRAL FOR INVESTIGATION-WIU

IM-#140 November 30, 2005,  IM-#94 July 29, 2002

Any suspected intentional program violation is referred to WIU for investigation. There are two types of investigations, those involving a food stamp overpayment, and those involving a program violation without a food stamp overpayment. Refer these cases for overpayment in the following manner:

WIU investigations result in one or more of the following:

1145.010.00 DISQUALIFICATION PROCESS

IM-#140 November 30, 2005

The Division of Legal Services, Welfare Investigation Unit (WIU) is delegated the responsibility for investigation of an alleged IPV, whether for a claim or for a different situation. FSD, WIU, and the Hearing Unit all have a role in determining if an IPV occurred and, if necessary, imposing the disqualification. Disqualifications may be imposed due to

All disqualifications are directed against the individual for whom the strongest evidence exists of an IPV.

EXAMPLE: If the husband is head of EU and FSD discovers his wife began receiving income and did not report it, process the IPV on the wife since she clearly withheld information she knew.

WIU reviews all claims entered as suspected program violations (SPV) to determine if an intentional program violation (IPV) may have occurred. It is important that the worker entering the claim records the circumstances and reason for a specific overpayment on the CARS System Note Add (OVNA) screen. WIU investigators use the notes entered on this screen as one of the tools to determine if an investigation is warranted.

The following processes are discussed in more detail below:

1145.010.05 WIU Returns Claim/Referral Without Investigating

IM-#140 November 30, 2005

WIU may return the claim or referral to the county office without investigating. The county may still initiate an ADH if they feel there is enough evidence to warrant a hearing. The county manager or designee (other than the worker who made the claim determination) must review the claim or referral before the county initiates the ADH.

To initiate the ADH, enter Y in the ADH field on the CARS Change Claim Information (OVCC) screen, and forward the IM-160 Advance Notice of Your Administrative Disqualification Hearing pdf logo to the Hearing Unit. The Hearing Unit schedules the ADH. The county office is responsible for preparing the case, obtaining witnesses, and representing the agency. WIU provides the county with the documentation they gathered, if applicable.

1145.010.10 WIU Recommends Administrative Disqualification

IM-#140 November 30, 2005

WIU staff completes an investigation to determine that there is sufficient evidence of an intentional program violation (IPV) to pursue a disqualification. Having completed the investigation, WIU staff decides whether to pursue the matter in court or as an administrative disqualification. The WIU investigator must confer with the FSD County Manager to decide that sufficient evidence exits to pursue the administrative disqualification. The process of conferring with the County Manager is tracked using FSD/WIU Tracking Sheet pdf.

After making the decision to pursue the disqualification in court or through an administrative hearing, the WIU investigator may present the EU member accused of the IPV the option of waiving the administrative disqualification hearing (Waiver of Administrative Disqualification Hearing and Consent to Disqualification, IM-161 pdf logo). The IM-161 Waiver cannot be offered when there is a suspicion of guilt but the evidence is not convincing or there is no evidence. The following steps must be followed before the Waiver of Administrative Hearing Disqualification Consent Agreement (IM-161) pdf logo can be offered to the individual.

The outcome of the discussion is documented on the FSD/WIU pdf logo Tracking Sheet. The next step depends on the decision. The outcomes will be:

After the decision is reached, the county manager returns the WIU/FSD Tracking Sheet to the investigator confirming the results of the discussion.

The investigator attempts to contact the individual. After contacting or attempting to contact the individual, the investigator returns the WIU/FSD Tracking Sheet to the county manager, informing FSD of whether or not the IM-161 pdf logo Waiver was offered, and whether it was signed. File the tracking sheet in the claim record (or case record, if there is no claim).

If the individual agrees to waive the ADH and consents to the disqualification, and does not withdraw the waiver, WIU staff enters the disqualification on the Disqualification/Tracking (FMAM) screen. If the individual does not agree to the waiver, or agrees and then withdraws the waiver, WIU recommends an ADH.

As the individual was offered the opportunity to waive the hearing and did not, or waives the hearing and withdraws the waiver, the county must initiate the ADH.

1145.010.15 Food Stamp Program Participation While Awaiting A Hearing

IM-#140 November 30, 2005

A pending administrative disqualification hearing does not affect the individual's or the EU's right to be certified and participate in the program. Since the agency cannot disqualify an EU member for an IPV until the hearing official finds the individual member has committed an IPV, determine eligibility and benefit level of the EU in the same manner as for any other EU.

1145.010.20 Administrative Disqualification Hearing Scheduled

IM-#140 November 30, 2005

Initiate an administrative disqualification hearing in the following circumstances:

1145.010.20.05 WIU Returns Claim/Referral Without Investigating

IM-#140 November 30, 2005

The county may still initiate an ADH if they feel there is enough evidence to warrant a hearing. The county manager or designee (other than the worker who made the claim determination) must review the claim or referral before the county initiates the ADH.

To initiate the ADH, enter Y in the ADH field on the CARS Change Claim Information (OVCC) screen, and forward the IM-160 Advance Notice of Your Administrative Disqualification Hearing pdf logo to the Hearing Unit. The Hearing Unit schedules the ADH. The county office is responsible for preparing the case, obtaining witnesses, and representing the agency.

1145.010.20.10 FSD/WIU Agree to ADH - Waiver Not Offered

IM-#140 November 30, 2005

When an agreement has been reached that there may have been an IPV, the WIU investigator attempts to contact the individual to offer the IM-161 Waiver pdf logo. If the investigator is unable to reach the individual, WIU returns the FSD/WIU Tracking sheet pdf logo with the IM-161 Waiver and IM-161A Withdrawal indicating the individual was not offered the opportunity to waive the hearing.

Initiate the ADH by:

The FSD/WIU Tracking Form must state that the IM-161 was not offered because the individual could not be reached.

1145.010.20.15 IM-161 Waiver Offered - Not Accepted

IM-#140 November 30, 2005

When an agreement has been reached that there may have been an IPV, and the individual has been given the option to waive the hearing by signing an IM-161 Waiver, but has chosen not to waive the ADH, the hearing must be initiated.

Initiate the ADH by:

The FSD/WIU Tracking Form must state that the IM-161 Waiver was offered and the individual chose not to sign the form.

1145.010.20.20 IM-161 Waiver Offered - Accepted

IM-#140 November 30, 2005

If the individual waives the right to the administrative hearing by signing the IM-161 Waiver pdf logo, no action is taken until at least ten business days have passed after the waiver is received by WIU, the Hearing Unit, or FSD.

If no waiver IM-161A Withdrawal is received, staff from the agency which receives the signed IM-161 Waiver, WIU, Hearing Unit, or FSD county office staff, enters the disqualification on the Sanction/Disqualification (FMAM) screen.

Use disqualification type code WHC, unless a different DQ code is more appropriate. It is important to use the correct disqualification code, as different codes impose different penalties. The individual is disqualified beginning the month following the month the waiver was received by the agency, or the second month if the waiver is received in the last five business days of the month.

No further administrative appeal procedure exists after an individual waives the right to an administrative disqualification hearing and a disqualification penalty has been imposed. The disqualification penalty cannot be changed by a subsequent fair hearing decision. The EU member, however, may appeal the disqualification through the local circuit court in the county of residence by the same procedure outlined for fair hearings.

To withdraw the IM-161 Waiver, the individual is instructed to sign and return the IM-161A to the county office. Upon receipt of the IM-161A, the county immediately faxes the IM-161A to the appropriate Hearing Unit or WIU office. Mail the hard copy to the appropriate Hearing Unit or WIU office within 24 hours.

1145.010.20.25 IM-161 Waiver Offered - Accepted and Withdrawn

IM-#140 November 30, 2005

To withdraw the Waiver of Administrative Disqualification Hearing and Consent to Disqualification (IM-161), the individual is instructed to sign and return the IM-161A to the county office within five business days of signing the waiver. Upon receipt of the IM-161A, the county immediately faxes the IM-161A to the appropriate Hearing Unit or WIU office. Mail the hard copy to the appropriate Hearing Unit or WIU office within 24 hours.

1145.010.25 Administrative Disqualification Hearing Procedure

IM-#140 November 30, 2005

Once the county office initiates the administrative disqualification hearing, the Hearing Unit schedules the hearing. The hearing officer mails the hearing packet to the EU suspected of fraud at least 30 days in advance of the date an administrative disqualification hearing is scheduled. The hearing packet contains the following:

1145.010.25.05 Scheduling the ADH

IM-#140 November 30, 2005

State telephone hearings are scheduled in all counties with speaker-phones. The claimant has the right to refuse a telephone hearing. If this occurs, a face-to-face hearing is scheduled.

The time and place of the hearing are arranged so that the hearing is accessible to the EU member suspected of an IPV.

The EU member is entitled to a postponement of the scheduled hearing, provided that the request is made at least ten days in advance of the date of the scheduled hearing. However, the hearing will not be postponed for more than 30 days. Only one postponement is allowed.

1145.010.25.10 Conducting the ADH

IM-#140 November 30, 2005

Within 90 days of the date the EU member is notified in writing that an administrative disqualification hearing has been scheduled, the Hearing Unit conducts the hearing and notifies the EU and the county office of the decision.

An individual(s) suspected of an IPV is afforded the same rights during the administrative disqualification hearing as EUs requesting fair hearings.

At the administrative disqualification hearing, the hearing official advises the EU member or representative that s/he may refuse to answer questions during the hearing.

A fair hearing and an administrative disqualification hearing may be combined into a single hearing if the factual issues arise out of the same, or related, circumstances. The EU receives prior notice the hearings will be combined. Timeliness standards for conducting administrative disqualification hearings are followed.

If the EU member or his/her representative cannot be located or fails to appear at the administrative disqualification hearing without good cause, the hearing official conducts the hearing. The Agency presents the evidence and states the case as normal. The hearing official carefully considers the evidence, determines if an IPV was committed based on clear and convincing evidence, and renders a decision.

1145.010.25.15 Good Cause for Failure to Appear

IM-#140 November 30, 2005

The EU member has 10 days from the date of the scheduled hearing to establish good cause for failure to appear for the hearing due to reasons other than non-receipt of the hearing notice.

The EU member has 30 days after receipt of the written hearing decision to establish good cause for failure to appear due to non-receipt of the hearing notice.

The hearing official renders a good cause decision as well as a final decision on the facts in question.

If the EU member is found to have committed an IPV but the hearing official later determines the EU member had good cause for not appearing, the previous decision no longer remains valid and a new hearing is conducted. Hearing Unit staff delete the disqualification on the Sanction/Disqualification (FMAM) screen.

1145.010.25.20 Hearing Decision

IM-#140 November 30, 2005

The hearing officer bases the determination of IPV on clear and convincing evidence that demonstrates the EU member committed or intended to commit an IPV.

The hearing officer's decision specifies the reasons for the decision, identifies supporting evidence and the pertinent FNS regulation, and responds to reasonable arguments made by the EU member or representative.

If the Hearing Unit did not enter the disqualification on the Sanction/ Disqualification (FMAM) screen, enter the disqualification immediately, within 45 days or less from the date of the hearing decision. If the individual is not eligible for food stamps at the time the disqualification period begins, the disqualification penalty begins the month following the month of notification and continues uninterrupted until completed.

The EU member may appeal the decision through the local circuit court in the county in which s/he resides by the same procedure outlined for fair hearings.