N.Y. Comp. Codes R. & Regs. tit. 18 § 399.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 399.4 - Referral to district attorney

(a) This section shall apply to referrals to the district attorney of intentional program violations (acts occurring on or after August 1, 1983). Referrals of administrative food stamp fraud (for acts occurring prior to August 1, 1983) shall be made as set forth in section 399.3(d) of this Part.

(b) Intentional program violation, on or after August 1, 1983. The local social services district shall refer all cases in which it believes the facts of the individual case warrant civil or criminal prosecution through the appropriate court system to the local district attorney (or other local equivalent) in the initial instance and not to the department for an administrative disqualification hearing. This subdivision shall not apply in instances in which the local social services district has received prior notification from the district attorney or other local equivalent that the amount of the overpayment determined by the district is less than the amount which the local official has deemed sufficient for prosecution. The department shall not reverse a determination following an administrative disqualification hearing for lack of compliance with the provisions of this subdivision.

(c) Should the district attorney (or other local equivalent) either decline prosecution following receipt of a referral occasioned by this section or fail to proceed with prosecution within a reasonable time, then the local social services district may formally withdraw the referral in writing.

(d) Subsequent to formal withdrawal the local social services district may make an election to proceed with an administrative disqualification hearing pursuant to section 399.7 of this Part. Should the district elect not to do so, its collection of the claim will continue to proceed as an inadvertent household error pursuant to the provisions of section 399.5(b) of this Part.

(e) Deferred adjudication.

(1) When a case is referred to the local district attorney (or other local equivalent) pursuant to this section and accepted for prosecution the district attorney (or other local equivalent) may choose to settle the case or a court of appropriate jurisdiction hearing the case may issue an order, as an example, adjourning the case in contemplation of dismissal provided that restitution is made.

(2) In cases such as those above, the local social services district may utilize a disqualification consent agreement. Local social services district which contemplate the use of disqualification consent agreements shall enter into written agreements with the local district attorney (or other local equivalent) providing the district with the opportunity to send advance written notification of the consequences of signing a disqualification consent to all households where deferred adjudication is contemplated.

(3) The written notification to the household member which informs the member of the consequences of consenting to disqualification as a part of deferred adjudication shall be prescribed by the department and shall contain:

(i) a statement for the accused individual to sign that the accused individual understands the consequences of consenting to disqualification, along with a statement that the head of household (if not the accused individual) must also sign the consent agreement with appropriate signature blocks;

(ii) a statement that consenting to disqualification will result in disqualification and a reduction in benefits for the period of disqualification, even though the accused individual was not found guilty of civil or criminal misrepresentation or fraud;

(iii) a warning that the disqualification penalties for intentional program violation under the Food Stamp Program which could be imposed are a 6-month disqualification for the first violation, 12-month disqualification for the second violation and permanent disqualification for the third violation and a statement of which penalty will be imposed should the accused individual sign the disqualification consent agreement; and

(iv) a statement that the remaining household members, if any, will be held responsible for repayment of the resulting claim, unless the accused individual has already repaid the claim as a result of meeting the terms of the agreement with the prosecutor or the court order.

(4) Upon its receipt of notification from the department that a household member has executed a waiver as defined in section 399.1(e) or upon its receipt of a disqualification consent executed by the household, the local district shall send to the household written notice as set forth in section 399.6(h) of this Part prior to disqualification.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 399.4