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 399.4 - Referral to district attorney

Current through Register Vol. 46, No. 28, July 10, 2024
(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.