N.Y. Comp. Codes R. & Regs. tit. 18 § 399.6

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

Section 399.6 - Administrative food stamp fraud hearings (pre-August 1, 1983, acts)

(a) Administrative food stamp fraud hearings are defined in section 399.1(b) of this Part and are separate and distinct from administrative disqualification hearings which are defined in section 399.1(d).

(b) Such hearings are scheduled by the department at the request of the local social services district with the department providing at least 30 days' advance notice of the hearing to the recipient or former recipient against whom the hearing is requested. The district shall request the hearing by forwarding to the department an evidentiary packet which conforms to the standards as set forth in section 399.3(i) of this Part, along with its request for a hearing.

(c) Upon receipt of a local social services district's request for hearing and accompanying evidentiary packet, the department will review the packet to determine if it contains sufficient documentary evidence to substantiate that an individual has committed one or more acts of fraud as defined in section 399.1(a) of this Part. The department will make a further and concurrent determination as to whether the evidentiary packet satisfies the provisions of section 399.3(i) of this Part. Should the department's review of the evidentiary packet indicate that there is either insufficient documentary evidence to establish fraud as committed or that the packet does not comply with the provisions of section 399.3(i), the department will return the packet to the local social services district as insufficient for scheduling.

(d) Following a determination that the evidentiary packet is sufficient, the department shall schedule an administrative food stamp fraud hearing in accordance with subdivision (b) of this section. The notice of hearing shall be mailed certified mail, return receipt requested, to the recipient charged and shall contain a warning that a determination of fraud will result in a three-month disqualification for the individual and a reduction in benefits for the remainder of the household and:

(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 may be examined;

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

(5) a notification that the household or its representative may have an opportunity to examine all documents and records to be used at the hearing by calling a specific contact telephone number and making arrangements to examine the documents and records at a specified place, provided that confidential information, such as names of individuals who have disclosed information about the household without its knowledge or the nature or status of pending criminal prosecutions, is protected from release;

(6) notification of the household's right to request an adjournment (indicating that such a request should be made at least 10 days in advance of the scheduled hearing date), to present the case or be represented by legal counsel or other person, to bring witnesses, to advance arguments without undue interference, to question or refute any testimony or evidence, to confront and cross-examine adverse witnesses and to submit evidence to establish all pertinent facts in the case;

(7) notification to the household and to the individual charged of the right to remain silent both before and at the hearing;

(8) a statement that a copy of this Part is available to the household at the local social services district;

(9) copies of the pages of this Part relevant to the hearing process;

(10) a citation of the Federal or State food stamp regulation governing the action where appropriate;

(11) a listing of legal aid and/or legal services organizations in all portions of the State which are available to assist with defense of the case;

(12) a statement that the hearing does not preclude the State or Federal government from prosecuting the household member for fraud in a civil or criminal court action, or from collecting the overissuance; and

(13) a statement that the household member or representative will have 10 days from the date of the scheduled hearing to present good cause for failure to appear to the department in order to receive a new hearing.

The notice of hearing sent to recipients in New York City shall be in Spanish and English.

(e) The department shall mail the local social services district which requested the hearing notification of the time, date and place of the hearing by regular mail at the same time it mails notice of the hearing to the household member.

(f) The department shall base a determination of fraud on a showing by the local social services district by clear and convincing evidence that the household member knowingly, willingly and with deceitful intent committed fraud as defined in section 399.1(a) of this Part. The burden of proof shall be on the local district.

(g) If the department issues a decision confirming the local social services district's determination of fraud, no further administrative appeal exists. The household member is entitled to seek relief in a court having appropriate jurisdiction. The period of disqualification may be subject to stay or other injunctive remedy by such a court.

(h) If the department's decision confirms the local social services district's determination of fraud, the local social services district shall mail the household member found to have committed fraud a written notice accompanied by a demand letter prior to disqualification which shall:

(1) Inform the household member of the decision and the reason for the decision and the length of the period of disqualification.

(2) Advise the remaining members of the household, if any, of either the allotment they will receive during the period of disqualification, or that they must reapply because the certification period has expired.

(3) Advise the household member of the date upon which the disqualification will take effect and the date upon which it will end. If the individual is no longer participating, advise that the period of disqualification shall be deferred until such time as the individual applies for and is determined eligible for benefits.

(4) Enclose a written notice of food stamp overissuance and repayment agreement, specified by the department, which must indicate to the household:

(i) the amount owed;

(ii) the reason for the claim;

(iii) the period of time the claim covers;

(iv) any offsetting that was done to reduce the claim;

(v) how the household may pay the claim;

(vi) the length of time the household has to decide which method of repayment it will choose and inform the local social services district of its decision;

(vii) the fact that the household's allotment will be reduced if the household fails to agree to make restitution within the time period specified;

(viii) the household's right to request renegotiation of any repayment schedule to which it has agreed should the household's economic circumstances change;

(ix) a method of electing the repayment method by which the household wishes to liquidate the claim;

(x) the place for signature for the household member who committed the intentional program violation and that the head of household must also sign the demand letter if the individual found to have committed the intentional program violation is not the head of household;

(xi) that if the participating household fails to sign and return the repayment agreement within 30 days from the mailing date of such agreement that the social services district will collect the over-issuance by allotment reduction.

(5) Inform the individual to be disqualified and the remainder of the household of its right to a fair hearing to contest:

(i) the amount of the claim;

(ii) the benefits to be provided the remaining members of the household during the disqualification period; or

(iii) the social services district's failure to restore the disqualified individual to the household when the household requested the restoration after the end of the disqualification period indicated in the written notice.

(i) The department shall schedule hearings requested under the provisions of paragraph (h)(5) of this section in the same manner as any other fair hearing.

(j) A pending administrative food stamp fraud hearing shall not affect the individual or the household's right to be certified and participate in the Food Stamp Program.

(k) The local social services district shall offset any lost benefits to be restored to the household against the outstanding amount of the claim from the time it receives the department's decision until the claim is liquidated. The district shall send the household a written indication of each such offset transaction which shall indicate the claim balance before offset, the amount of lost benefits offset and the remaining claim balance.

(l) The time and place of the hearing shall be arranged so that the hearing is accessible to the household member. If the household member or its representative cannot be located or fails to appear at the hearing initiated by the State agency, the hearing shall be conducted without the household member being present. Even though the household member is not present, the hearing official is required to carefully consider the evidence and determine if fraud was committed based on clear and convincing evidence. If the household member is found to have committed fraud, but a hearing official later determines that the household member or representative had good cause for not appearing, the previous decision shall no longer remain valid and the State agency shall conduct a new hearing. The hearing official who originally rules on the case may conduct the hearing. The household member has 10 days from the date of the scheduled hearing to present reasons indicating a good cause for failure to appear. A hearing officer must enter the good cause decision into the record.

(m) Conducting the hearing.

(1) The hearing officer shall advise the household member of representative that they may refuse to answer questions during the hearing.

(2) The burden of proof shall be on the local social services district.

(3) All provisions of the department's regulations regarding the conduct of fair hearings in the Food Stamp Program which are not inconsistent with any of the specific provisions of this section shall be applicable to these hearings.

(n) The administrative food stamp fraud hearing decision. The decision after hearing shall be based upon clear and convincing evidence which demonstrates that the household member(s) knowingly, willingly and with deceitful intent committed fraud.

(1) The decision of the department shall specify the reasons for the decision, identify the supporting evidence, identify the pertinent Food and Nutrition Service (FNS) regulation, and respond to reasoned arguments made by the household member or representative.

(2) The department shall conduct the hearing, arrive at a decision and forward the decision to the local district for implementing action within 90 days (unless there is a client-requested adjournment) of the date of the initial notice from the department that the hearing has been scheduled.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 399.6