N.M. Code R. § 8.139.647.8

Current through Register Vol. 35, No. 11, June 11, 2024

Section 8.139.647.8 - ADMINISTRATIVE DISQUALIFICATION PROCEDURES

A. Administrative Responsibility: HSD will be responsible for investigating any case of alleged Intentional Program Violation (IPV), and ensuring that appropriate cases are acted upon either through administrative disqualification hearings (ADH) or referral to a court of appropriate jurisdiction. Administrative disqualification procedures or referrals for prosecution should be initiated by HSD in cases in which HSD has sufficient documentary evidence to substantiate that an individual has committed one or more acts of Intentional Program Violation. A recommendation to pursue administrative disqualification of an individual is made by the Office of the Inspector General (OIG) upon review of documentary evidence submitted by the county office. If HSD does not initiate administrative disqualification procedures or refer for prosecution a case involving an over-issuance caused by a suspected act of IPV, HSD will take action to collect the over-issuance by establishing an inadvertent household error claim against a household in accordance with the procedures in Subsection B of 8.139.640.9 NMAC and Subsection A of 8.139.640.10 NMAC.

(1) Initiating Hearings: HSD should conduct administrative disqualification hearings in the following situations:

(a) In cases in which HSD believes the facts of the individual case do not warrant civil or criminal prosecution through the appropriate court system;

(b) In cases previously referred for prosecution that were declined by the appropriate legal authority, and

(c) In previously referred cases where no action was taken within a reasonable period of time and the referral was formally withdrawn by HSD.

(2) When a Hearing is Not Initiated: HSD will not initiate an administrative disqualification hearing against an accused individual whose case is currently being referred for prosecution or subsequent to any action taken against the accused individual by the prosecutor or court of appropriate jurisdiction, if the factual issues of the case arise out of the same, or related circumstances.

(3) Household Eligibility: HSD may initiate administrative disqualification procedures or refer a case for prosecution regardless of the current eligibility of an individual.

(4) Determination of Administrative Disqualification:

(a) HSD will base administrative disqualifications for IPV on the determinations of hearing authorities arrived at through administrative disqualification hearings, or on determinations reached by courts of appropriate jurisdiction.

(b) HSD has the option of allowing accused individuals either to waive their rights to administrative disqualification hearings or to sign disqualification consent agreements for cases of deferred adjudication. If HSD chooses either of these options, the administrative disqualification for IPV may be based on the waived right to an administrative disqualification hearing or on the signed disqualification consent agreement in cases of deferred adjudication.

B. Disqualification Penalties:

(1) Individuals found to have committed an Intentional Program Violation (IPV) either through an administrative disqualification hearing or by a Federal, State, or local court, or who have signed either a waiver of right to an administrative disqualification hearing or a disqualification consent agreement in cases referred for prosecution, will be ineligible to participate in the Food Stamp Program as follows:

(a) For a period of six months for the first IPV; or for a period of one year for the first IPV if the offense occurred after August 22, 1996;

(b) For a period of one year for the second IPV; or for a period of two years for the second IPV if the offense occurred after August 22, 1996;

(c) Permanently for the third finding of an IPV.

(d) One or more Intentional Program Violations which occurred prior to the implementation of the disqualification periods specified above will be considered as only one previous disqualification when determining the appropriate penalty to impose in a case under consideration.

(2) Sale of Controlled Substances: Individuals found by a Federal, State or local court to have used or received food stamp benefits in a transaction involving the sale of a controlled substance (as defined in Sec. 102 of the Controlled Substances Act [ 21 USC 802 ]) will be ineligible to participate in the Food Stamp Program:

(a) For a period of one year upon the first occasion of such Violation; or for two years upon the first occasion of such Violation if the offense occurred after August 22, 1996; and

(b) Permanently upon the second occasion of such Violation.

(3) Permanent Disqualification from Participation in FSP:

(a) Individuals found by a Federal, State or local court to have used or received food stamp benefits in a transaction involving the sale of firearms, ammunition, or explosives will be permanently ineligible to participate in the FSP upon the first occasion of such Violation.

(b) Individuals convicted in federal or state court of trafficking food stamp benefits with a value of $500 or more, for an offense which occurred after August 22, 1996.

(c) The penalties in (2) and (3) above will also apply in cases of deferred adjudication described in Subsection D of 8.139.647.11 NMAC, where the court makes a finding that the individual engaged in the conduct described in (2) or (3). Regardless of when an action taken by an individual which caused an IPV occurred, the disqualification periods in (2) and (3)(a) will apply to any case in which the court makes the requisite finding on or after September 1, 1994.

(4) Dual Participation in the FSP: An individual will be ineligible to participate in the FSP as a member of any household for a period of ten years upon a finding of IPV, or conviction in federal or state court, for having made a fraudulent statement or representation with respect to the identity or place of residence of the individual in order to receive multiple benefits simultaneously in the FSP. The provision applies only to an offense which occurred after August 22, 1996.

(5) Court Failure to Impose Disqualification: If a court fails to impose a disqualification period for the IPV, HSD will impose the disqualification penalties specified above, unless it is contrary to the court order.

(6) Disqualifying the Individual: HSD will disqualify only the individual found to have committed Intentional Program Violation, or who has signed the waiver of right to an administrative disqualification hearing or disqualification consent agreement in cases referred for prosecution, and not the entire household.

(7) Restitution by Remaining Household Members: The remaining household members must agree to make restitution within thirty days of the date HSD's written demand letter is mailed, or the households monthly food stamp benefit amount will be reduced.

(a) If the remaining household members agree to make restitution but fail to do so, HSD will impose a benefit reduction on the household's monthly benefit amount.

(b) The remaining household members, if any, will begin restitution during the period of disqualification imposed by HSD or a court of law.

(c) All restitutions will be made in accordance with established procedures for cash repayment, benefit reduction, or coupons for repayment. See 8.139.640.11 NMAC for procedures on claims collection.

C. Notification to Applicant Households: HSD will inform a household in writing of the disqualification penalties for Intentional Program Violation each time a household applies for Program benefits.

D. Definition of IPV: For purposes of determining through administrative disqualification hearings whether or not an individual has committed an Intentional Program Violation, an IPV will consist of having intentionally:

(1) Made a false or misleading statement, or misrepresented, concealed or withheld facts; or

(2) Committed any act that constitutes a Violation of the Food Stamp Act, Food Stamp Program Regulations, or any state statute relating to the use, presentation, transfer, acquisition, receipt, or possession of food stamp benefits.

N.M. Code R. § 8.139.647.8

05/03/95, 05/15/97; 8.139.647.8 NMAC - Rn, 8 NMAC 3.FSP.647, 5/15/2001