New York Codes, Rules and Regulations › Title 18 - DEPARTMENT OF SOCIAL SERVICES › Chapter II - Regulations of the Department of Social Services › Subchapter B - Public Assistance › Article 5 - MISCELLANEOUS › Part 399 - Food Stamp Fraud And Food Stamp Intentional Program Violations-disqualification › Section 399.7 - Administrative disqualification hearings (acts occurring on or after August 1, 1983)

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
			 Administrative disqualification hearings are defined in section
			 399.1(d) 
			 of this Part, and are separate and distinct from administrative food stamp
			 fraud hearings which are defined in section
			 399.1(b).
(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 to the individual against
			 whom the hearing is requested.
(c)
			 Local social services district responsibilities with respect to the compilation
			 and content of the evidentiary packet to accompany the district's hearing
			 request are set forth in section
			 399.3(i) 
			 of this Part.
(d) Upon receipt of a
			 local social services district's request for a 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 intentional program violations as defined in section
			 399.1(c) 
			 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).
(e) Should the department's review of the
			 evidentiary packet indicate that there is either insufficient documentary
			 evidence to establish that an intentional program violation was committed or
			 that the packet does not comply with the provisions of section
			 399.3(i) 
			 of this Part, the department will return the packet to the local social
			 services district as insufficient for scheduling.
(f) Following a determination that the
			 evidentiary packet is sufficient, the department shall schedule an
			 administrative disqualification 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 intentional program violation will result in 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 the local social services district believes is
			 applicable to the case scheduled for a hearing as well as the information
			 contained in section
			 399.6(d)(1)-(13) 
			 of this Part.
(g) The department
			 shall mail to 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.
(h) The department shall base a determination
			 of intentional program violation on a showing by the local social services
			 district by clear and convincing evidence that the household member committed
			 and intended to commit intentional program violation as defined in section
			 399.1(c) 
			 of this Part. The burden of proof shall be on the local district.
(i) If the department issues a decision
			 confirming the local social services district's determination of intentional
			 program violation, 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.
(j) If the
			 department's decision confirms the local social services district's
			 determination of intentional program violation, the local social services
			 district shall mail to the household member found to have committed an
			 intentional program violation, a written notice prescribed by the department
			 prior to disqualification which shall conform to the requirements set forth in
			 section
			 399.6(h) 
			 of this Part.
(k) The department
			 shall schedule hearings requested under the provisions of section
			 399.6(h)(5) 
			 of this Part in the same manner as any other fair hearing.
(l) A pending administrative disqualification
			 hearing shall not affect the individual or the household's right to be
			 certified and participate in the Food Stamp Program.
(m) 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 received 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.
(n) 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
			 intentional program violation was committed based on clear and convincing
			 evidence. If the household member is found to have committed an intentional
			 program violation, 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
			 new 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.
(o) Conducting the hearing.
(1) The hearing officer shall advise the
			 household member or 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.