OKDHS - OAC 340:2-5-78. Administrative disqualification hearings

340:2-5-78. Administrative disqualification hearings

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Issued 6-27-02

(a) Administrative disqualification hearings. An administrative disqualification hearing is initiated by the Department of Human Services (DHS) when the facts of the individual Food Stamp Program or Temporary Assistance to Needy Families (TANF) case indicate that an intentional program violation may have occurred.

(b) Definition of intentional program violation.

(1) Food Stamp Program. An intentional program violation consists of a client intentionally:
- (A) making a false or misleading statement;
- (B) misrepresenting, concealing, or withholding facts; or
- (C) committing any act that constitutes a violation of the Food Stamp Act; the Food Stamp Program regulations; or any Oklahoma law or regulation relating to the use, presentation, transfer, acquisition, receipt, or possession of food stamp coupons, authorization to participate (ATP) document, or electronic benefit transfer (EBT) cards.
(2) TANF. An intentional program violation occurs when an individual, for the purpose of establishing or maintaining the household's eligibility for TANF or for increasing or preventing a reduction in the amount of the grant, intentionally:
- (A) makes a false or misleading statement or misrepresentation, concealment, or withholding of facts;
- (B) performs any act intended to mislead, misrepresent, or conceal;
- (C) withholds facts; or
- (D) offers or proposes a falsity.

(c) Consolidation of administrative disqualification hearing with administrative hearing. DHS may combine an administrative hearing and an administrative disqualification hearing into a single hearing if the factual issues arise out of the same, or related circumstances and the household receives prior notice that the hearings will be combined. If the disqualification hearing and administrative hearing are combined:

(1) DHS follows the time frame for conducting disqualification hearings; • 1 and
(2) the household loses its right to an additional administrative hearing on the amount of the overpayment if the combined hearing addressed the overpayment amount.

(d) Advance notice of hearing. DHS sends a written notice to the household member suspected of an intentional program violation by first class mail at least 30 days in advance of the scheduled date of a disqualification hearing. The household may waive the 30-day advance notice if an administrative hearing and disqualification hearing are combined. • 2

(e) Failure to appear at the hearing.

(1) If the household member suspected of an intentional program violation or its representative cannot be located or fails to appear at the hearing initiated by DHS without good cause, the hearing is conducted without the household member present.
(2) Even though the household member suspected of an intentional program violation is not present, the administrative hearing officer (AHO) is required to carefully consider the evidence and determine if an intentional program violation was committed. In the event of an adverse decision against the client, the client may demonstrate to the AHO good cause for failure to appear. If good cause is shown, the adverse decision is rescinded and another hearing scheduled.

(f) Waiver of hearing. DHS provides the accused household member(s) the option of signing a waiver for an administrative disqualification hearing. • 3

(g) Postponement of hearing.

(1) The household member or representative is entitled to a postponement of a scheduled Food Stamp Program hearing, provided that the request for the postponement is made at least ten days in advance of the scheduled hearing.
(2) The local office notifies the Appeals Unit, if a postponement is requested.

(h) Right to refuse to answer questions. At an administrative disqualification hearing, the AHO advises the household member(s) or representative that they have the right to remain silent and that anything said, or signed, may be used against them in a court of law.

(i) Criteria for determining intentional program violation. The AHO bases the determination of intentional program violation on clear and convincing evidence which demonstrates that the household member(s) committed an intentional program violation, as defined in this Section.

(j) Time limit for decision. Within 90 days of the date on the notice of hearing the household member is notified in writing of the decision. However, if the hearing has been postponed at the request of the household member suspected of an intentional program violation, the time limit is extended for as many days as the hearing was postponed. • 4

(k) Further appeal.

(1) No further administrative appeal procedure exists after an individual waives his or her right to an administrative disqualification hearing or is determined to have committed an intentional program violation by an AHO.
(2) The disqualification penalty cannot be changed by a subsequent administrative hearing decision.

INSTRUCTIONS TO STAFF 340:2-5-78

1. This does not mean that a client who failed to timely appeal a notice of overpayment may contest the existence or amount of the overpayment at an administrative disqualification hearing. In order for a client to contest the existence or amount of an overpayment, the client must timely request a hearing following receipt of the notice of overpayment.

2. The notice contains:

(1) the date, time, and place of the hearing;

(2) the charge(s) against the household member;

(3) a summary of the evidence, and how and where the evidence can be examined;

(4) a warning that the decision will be based solely on information provided by the local office if the household fails to appear at the hearing;

(5) a statement that the household member or representative has ten days from the date of the scheduled hearing to present "good cause" for failure to appear in order to receive a new hearing;

(6) a warning that a determination of an intentional program violation will result in a 12 month disqualification for the first violation, 24 month disqualification for the second violation, and permanent disqualification for the third violation, and a statement of which penalty the Department of Human Services (DHS) believes is applicable to the case scheduled for the hearing;

(7) the household member or its representative's rights, which include:

(A) an adequate opportunity to examine the entire case file, except confidential information. Examples of confidential information include names of individuals who have disclosed information about the household without its knowledge or the nature of the status of pending criminal prosecutions. Such information is not introduced at the hearing or considered by the administrative hearing officer (AHO);

(B) upon request, DHS provides the household or its representative a free copy of any documents or records in the case file pertaining to the disqualification hearing;

(C) to present the case himself or herself or by authorized representative;

(D) to bring witnesses;

(E) to advance arguments without undue interference;

(F) to question or refute any testimony or evidence including an opportunity to confront and cross examine adverse witnesses;

(G) to submit evidence to establish all pertinent facts and circumstances in the case;

(H) to remain silent concerning the charge(s), and that anything said or signed by the individual(s) concerning the charge(s) can be used against him or her in a court of law; and

(I) to waive his or her right to an administrative disqualification hearing by signing a waiver which will result in disqualification and a reduction in benefits for the period of disqualification, even if the individual(s) does not admit to the facts as presented by DHS;

(8) a statement that the hearing does not preclude the state or federal government from prosecuting the household member for an intentional program violation in a civil or criminal court action, or from collecting the overissuance; and

(9) a statement advising the household member(s) to contact the local office to determine whether or not free legal services are available.

3. The waiver, Form H-S-13-A (new Form 08OP016E), Administrative Disqualification Hearing Waiver, is attached to Form FSP-S-18, Notification of Food Stamp Overpayment, and/or Form ADM-S-20 (new Form 08AD012E), Notification of TANF Overpayment, mailed to the household by the Overpayment Unit. Form H-S-13-A (new Form 08OP016E):

(1) contains a statement that the accused individual(s) has the right to remain silent concerning the charge(s), 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;

(2) states that a waiver of the disqualification hearing will result in disqualification and a reduction in benefits for the period of disqualification, even if the accused individual does not admit to the facts as presented by DHS;

(3) asks the accused individual to specify whether or not he or she admits to the facts as presented by DHS. The options of the household member(s) are to:

(A) admit to the facts as presented and to understand that a disqualification penalty will be imposed if the waiver is signed; or

(B) not admit to the facts as presented. However, he or she may choose to sign the waiver and understand that a disqualification penalty will result;

(4) the telephone number of the Overpayment Unit to call in event the accused household member(s) desires additional information; and

(5) the fact that the remaining household members, if any, will be held responsible for repayment of the resulting claim.

4. After a decision is rendered regarding an intentional program violation, the individual or household member is notified in writing. A copy of the decision letter is mailed to the local office and the Overpayment Unit.

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