475 Neb. Admin. Code, ch. 1, § 007

Current through September 17, 2024

Section 475-1-007 - DISQUALIFICATION HEARINGS

The Special Investigations Unit Central Office initiates a disqualification hearing whenever sufficient documentary evidence is established to substantiate that a household member has committed an Intentional Program Violation. The Department informs the household in writing of the disqualification penalties for committing an Intentional Program Violation each time the household applies for benefits. The penalties are listed in clear, prominent, and bold face lettering on the application form or attachment.

007.01INITIATING DISQUALIFICATION PROCEEDINGS. Upon receiving information that a household may have committed an Intentional Program Violation, the Department takes steps to investigate the report and determine if disqualification may be warranted.

007.01(A)REPORTING REQUIREMENTS. The Department reports cases of suspected Intentional Program Violation to the Special Investigations Unit, Central Office.

007.01(B)SPECIAL INVESTIGATIONS UNIT GUIDELINES. The Special Investigations Unit considers the following in determining whether to proceed with a disqualification hearing or refer the matter for prosecution:

(i) A disqualification hearing may be initiated regardless of the current eligibility status of the individual;

(ii) The burden of proving Intentional Program Violation by clear and convincing evidence is on the Department;

(iii) The Department will not initiate a disqualification hearing against an individual whose case is currently being referred for prosecution or after any action taken against the accused individual by a court, if the factual issues of the case arise out of the same, or related, circumstances; and

(iv) The Department will refer for criminal prosecution those individuals suspected of committing Intentional Program Violation in cases which meet evidentiary standards of state or federal criminal statutes.

007.02DISQUALIFICATION HEARING PROCEDURES. The Department designates either an employee or an individual under contract to the Department to conduct disqualification hearings.

007.02(A)TIMELINESS STANDARDS. The following timeliness standards are followed in the disqualification hearing process:

(1) The household member suspected of intentional program violation is given at least 30 days written advance notice of the hearing unless the household requests a waiver of the advance notice in situations when the disqualification and fair hearings are combined;

(2) The Department has 90 days from the date the accused household member is notified of the hearing to:

(a) Conduct the hearing;

(b) Arrive at a decision; and

(c) Initiate administrative action to make the decision effective; and

(3) If the hearing is postponed, the time limits are extended for as many days as the hearing is postponed.

007.02(A)(i)SCHEDULING HEARINGS. A Department hearing officer conducts the Disqualification Hearing in Lincoln, Nebraska at a date and time set by the Department, according to the following guidelines:

(a) The household member or representative is entitled to one postponement of a maximum of 30 days of the scheduled hearing if the request for postponement is made at least ten days before the scheduled hearing;

(b) If the household member or the individual's representative cannot be located or fails to appear at a hearing without good cause, the hearing will be conducted without representation for the household member. Even though the household member is not represented, the hearing officer or Director will carefully consider the evidence and determine if Intentional Program Violation was committed based on clear and convincing evidence;

(c) If a household member is found to have committed an intentional program violation, but it is later determined by the Department hearing officer or Director that the household had good cause for not appearing, the previous decision is no longer valid and the Department will conduct a new hearing;

(d) The household member has ten days from the date of the scheduled hearing to present reasons indicating a good cause for failure to appear. The Department hearing officer or Director will enter the good cause decision into the record; and

(e) The household member and any person appearing on the household member's behalf may appear by telephone, in person at the location of the hearing officer, or by telephone or video conference from a local office that is more accessible to the person.

007.02(A)(i)(1)CONSOLIDATED HEARINGS. A disqualification hearing may be combined with a fair hearing when:

(i) The factual issues of both hearings arise out of the same or related circumstances; and

(ii) The household is notified in advance that the hearings will be combined in a single hearing.

007.02(A)(i)(1)(a)TIMELINESS. If a disqualification hearing and a fair hearing are combined, the Hearing Office will follow the timeliness standards for disqualification hearings.

007.02(A)(i)(1)(b)CONSOLIDATED HEARINGS REGARDING CLAIM AMOUNTS AND INTENTIONAL PROGRAM VIOLATIONS. If the hearings are combined for the purpose of settling the claim amount and determining if intentional program violation has occurred, the household loses its right to a later fair hearing on the claim amount. Upon the household's request, the Department will allow the household to waive the 30-day advance period when the disqualification hearing and fair hearing are combined.

007.02(A)(ii)ADVANCE NOTICE OF HEARING. The Special Investigations Unit of the Department will send an Advance Notice of Disqualification Hearing, to the individual suspected of the intentional program violation at least 30 days before the date of the disqualification hearing. The Advance Notice of Disqualification Hearing is mailed first class mail or certified mail, return receipt requested.

007.02(A)(iii)WAIVED HEARING. The Advance Notice of Disqualification Hearing contains information advising the household of its right to waive the disqualification hearing. If the household wishes to waive a disqualification hearing, the Special Investigations Unit will send a waiver of hearing consent form to the household.

007.02(A)(iv)PARTICIPATION WHILE AWAITING A HEARING. A pending disqualification hearing does not affect the right of the individual or the household to be certified and participate in the program. The Department shall determine the eligibility and benefit level in the same manner it would be determined for any other household, until there is a determination that the individual has committed intentional program violation. If the pending disqualification action does not affect the household's current circumstances, the household would continue to receive its allotment based on the latest certification action or be recertified based on a new application and its current circumstances. If the certification period has expired and the household does not reapply after receiving its notice of expiration, benefits will be terminated. The Department will also reduce or terminate the household's benefits if there is documentation which substantiates ineligibility or eligibility for fewer benefits and the household fails to request a fair hearing and continuation of benefits pending the hearing. These actions occur even if the documented facts led to the suspicion of intentional program violation and the resulting disqualification hearing. The Department may have facts which substantiate that a household failed to report a change in its circumstances even though the state has not yet demonstrated that the failure to report involved an act of intentional program violation. In these cases, the Department will reduce or terminate benefits.

007.02(B)THE HEARING OFFICER. The information below applies to the hearing officers.

007.02(B)(i)DUTIES OF THE HEARING OFFICER. The hearing officer shall ensure that:

(1) All relevant issues are considered;

(2) All persons who testify at the hearing present their evidence as completely and accurately as possible; and

(3) The hearing record contains enough evidence to enable the hearing officer or the Director to make a decision.

007.02(B)(ii)POWERS OF HEARING OFFICER. The hearing officer has the power to:

(1) Administer oaths;

(2) Ask for additional witnesses and question witnesses;

(3) Ask that additional documents be brought in;

(4) Dismiss witnesses from the room for good and sufficient reason;

(5) Recess, continue, or close the hearing at any time if there is good and sufficient reason for so doing; and

(6) Regulate the conduct and course of the hearing in accordance with due process and keep the hearing orderly and to the point by excluding and discouraging evidence which is not relevant.

007.02(B)(iii)INTENTIONAL PROGRAM VIOLATION HEARING DECISION AUTHORITY. The power to make the final disqualification hearing decision is vested in the Director or an agent to whom authority has been delegated by the Director.

007.02(C)CONDUCT OF THE HEARING. Disqualification hearings will be conducted by the hearing officer as informal hearings, but witnesses will be placed under oath.

007.02(C)(i)ATTENDANCE AT THE HEARING. The hearing will be attended by a representative of the Department. The suspected household member and the member's representative, if applicable, are encouraged to attend, but their presence is not required. The hearing is not open to the public, but friends or relatives of the household may attend if the household so chooses. However, the hearing officer has the authority to limit the number of persons in attendance at the hearing if space is limited or if persons in attendance must be limited to ensure an orderly hearing.

007.02(C)(ii)RECORDING THE HEARING. Disqualification hearings are recorded by either mechanical equipment, a stenographer, or both.

007.02(C)(iii)ORDER OF THE HEARING. The hearing will begin with introductions by the hearing officer. At this time the hearing officer will advise the suspected household member or the representative that the individual may refuse to answer questions during the hearing. The Department's representative will present the state's case first. The household member or the representative will then present the individual's case.

007.02(D)RECESSING THE HEARING. The hearing officer may order a recess if the individual considers it necessary to request, receive, or obtain additional testimony or evidence in order for the hearing officer or Director to decide the issues being raised. The hearing officer will advise the household member or the individual's representative of the reason for the recess and the nature of the additional information that is required. The hearing will be reconvened when the witness, document, or other evidence is available so that the household member will have an opportunity to question or refute any testimony or other evidence received. When reconvened, the hearing is conducted as any other disqualification hearing.

007.02(E)ADMISSION OF EVIDENCE AFTER HEARING IS CLOSED. Evidence may be submitted after a hearing is closed. However, copies of any new evidence will be sent to interested parties, together with an explanation of the right to explain or refute new evidence.

007.03HEARING DECISION. The following applies to the hearing decision.

007.03(A)CRITERIA FOR DETERMINING INTENTIONAL PROGRAM VIOLATION. The Department of Health and Human Services hearing officer or Director will base the determination of intentional program violation on clear and convincing evidence which demonstrates that the household member knowingly, willfully and with deceitful intent committed an intentional program violation.

007.03(B)DECISION FORMAT. On the basis of the evidence presented, the hearing officer or Director will enter a final decision which:

(i) Specifies the reasons for the decision;

(ii) Identifies the supporting evidence;

(iii) Identifies the pertinent Food and Nutrition Service regulation; and

(iv) Responds to reasonable arguments made by the household member or representative.

007.04APPEAL RIGHTS OF THE HOUSEHOLD. No further administrative appeal procedure exists after a hearing decision is made which is adverse to the household member. A determination of intentional program violation cannot be reversed by a subsequent fair hearing decision on the same level. However, the household member is entitled to seek relief in a court having appropriate jurisdiction under Neb. Rev. Stat. § 84-917. The period of disqualification may be subject to stay or other injunctive remedy.

007.05COURT-IMPOSED PENALTIES. A court of appropriate jurisdiction of either the State, a political subdivision of the State, or the United States, may find an individual guilty of civil or criminal fraud. Court decisions will not address disqualification periods. Court orders regarding penalties for intentional program violation which are received by the Department will be referred to Food Programs and Office of the General Counsel at the Department. Court ordered penalties may be imposed separate and apart from any action taken by the Department to disqualify the individual through a disqualification hearing unless it is contrary to the court order.

007.05(A)NOTICE OF COURT DECISION. If the court finds that the household member committed an intentional program violation, the Department contacts the Special Investigations Unit for further instructions. After receiving instructions from the Special Investigations Unit, the Department mails a written notice to the household member before the disqualification whenever possible. The notice will inform the household member of the decision and the reason for the decision. The Department will send the remaining household members a notice of the hearing decision and the allotment amount for the next month, if appropriate.

007.05(B)REVERSED INTENTIONAL PROGRAM VIOLATION DISQUALIFICATIONS. In cases where the determination of intentional program violation is reversed by a court of appropriate jurisdiction, the individual will be reinstated in the program if the household is eligible. The Department will restore any benefits that were lost as a result of the disqualification.

475 Neb. Admin. Code, ch. 1, § 007

Amended effective 5/21/2016.

Amended effective 7/4/2020

Amended effective 9/17/2024