New Jersey Administrative Code › Title 10 - HUMAN SERVICES › Chapter 87 - NEW JERSEY SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM (NJ SNAP) MANUAL › Subchapter 11 - INCORRECT ISSUANCE › Section 10:87-11.5 - Disqualification hearings

Current through Register Vol. 56, No. 14, July 15, 2024
(a) The State shall
				conduct administrative disqualification hearings for individuals accused of
				IPVs in accordance with the requirements outlined at (a)1 through 9 below:
1. The State may combine a fair hearing and
				an administrative disqualification hearing into a single hearing if the factual
				issues arise out of the same, or related, circumstances and the household
				receives prior notice that hearings will be combined. If the disqualification
				hearing and fair hearing are combined, the CWA shall follow the time frames for
				conducting disqualification hearings. If the hearings are combined for the
				purpose of settling the amount of the claim at the same time as determining
				whether or not an IPV has occurred, the household shall lose its right to a
				subsequent fair hearing on the amount of the claim. However, upon household
				request, the 30-day advance notice period may be waived by the household when
				the disqualification hearing and fair hearing are combined.
2. Disqualification hearing procedures are as
				follows:
i. The provisions of
				7
				C.F.R. 273.15(m) through
				(q)1 are also applicable to disqualification
				hearings.
ii. Within 90 days of the
				date the household member is notified in writing that a State hearing initiated
				by the CWA has been scheduled, OAL shall conduct the hearing, arrive at a
				decision and notify the household member of the decision.
iii. OAL publishes clearly written rules of
				procedure for disqualification hearings at N.J.A.C. 1:10-1, and makes these
				procedures available to any interested party.
3. Advance notice of hearings are as follows:
i. The CWA shall provide written notice to
				the individual suspected of committing an IPV at least 30 days in advance of
				the date a disqualified hearing has been scheduled. If mailed, the notice shall
				be sent certified mail-return receipt requested or, if served, it shall be
				served in person by a CWA representative.
(1)
				In the event that the individual refuses to accept delivery of the advance
				notice and the mail receipt notes that fact, the receipt will be accepted as
				proof of notice served. Accordingly, the certified letter should generally be
				clearly marked "deliver to addressee only" in order to ensure that notice is
				served on the correct individual. A return receipt for certified mail that
				contains the signature of an individual other than the person addressed, is
				insufficient evidence that proper advance notice was given. Furthermore,
				letters sent by certified mail which are returned to the CWA with notations
				such as "unclaimed" or "undeliverable" offer no proof at all that the advance
				notice requirements have been met.
(2) The CWA shall proceed with hearings only
				when sufficient proof is available which indicates that individuals have either
				received timely notices of hearings or have refused delivery of such
				notice.
(3) When the CWA has been
				unsuccessful in obtaining proof of receipt, for example, a postal notice has
				been returned to the CWA indicating "unclaimed" or "undeliverable," the CWA
				shall take further steps to attempt delivery of the notice. Those steps
				include, but are not limited to, telephone calls or contacts with family and
				friends to obtain a current address or served in person by a CWA
				representative.
(4) Under certain
				circumstances, it may be more effective for the notice not to be a strict
				"deliver to addressee" procedure. For example, if the individual suspected of
				the IPV is believed to be currently employed during the usual mail delivery
				hours and is still living with or in frequent contact with his or her family,
				the certified mail should be accompanied by a return receipt which a household
				member is permitted to sign. However, this signature, even by an individual's
				spouse, must be supported by proof that the correct individual actually
				received the notice on a timely basis. A telephone confirmation by that person
				would be adequate proof. If the individual cannot be contacted, a telephone
				confirmation by a family member that the notice was actually given to the
				individual accused of the IPV shall be acceptable proof in the absence of a
				claim of non-receipt by the individual.
(5) If no proof of receipt is obtained, a
				timely (as defined at paragraph (a)4ii below) showing of non-receipt by the
				individual shall be considered good cause for not appearing at the
				hearing.
ii. The notice
				shall contain at a minimum:
(1) The date, time
				and place of the hearing;
(2) The
				charge(s) against the individual;
(3) A summary of the evidence, and how and
				where the evidence can be examined;
(4) A warning that the decision shall be
				based solely on information provided by the CWA if the individual fails to
				appear at the hearing;
(5) A
				statement that the individual or representative will, upon receipt of the
				notice, have 10 days from the date of the scheduled hearing to present good
				cause for failure to appear in order to receive a new hearing;
(6) A warning that a determination of IPV
				will result in disqualification periods as provided at
				10:87-11.2, and a statement of
				which penalty the CWA believes is applicable to the case scheduled for a
				hearing;
(7) A listing of the
				individual's rights as contained at N.J.A.C. 10:87-8;
(8) A statement that the hearing does not
				preclude the State or Federal government from prosecuting the individual for
				the IPV in a civil or criminal court action, or from collecting any over
				issuance(s);
(9) If there is an
				individual or organization available that provides free legal representation,
				the notice shall advise the affected individual of the availability of the
				service;
(10) A copy of OAL's
				published hearing procedures shall be attached to the 30 days advance notice or
				the advance notice shall inform the individual of his or her right to obtain a
				copy of the CWA's published hearing procedures upon request; and
(11) Each CWA shall use the DFD advance
				notice form, Advance Notice--NJ SNAP Administrative Disqualification
				Hearing.
4.
				Procedures for the scheduling of hearings are as follows:
i. The time and place of a hearing shall be
				arranged so that the hearing is convenient to the household member suspected of
				an IPV. If the household member or its representative cannot be located or
				fails to appear at a hearing without good cause, the hearing shall be conducted
				without the household member being represented. Even though the household
				member is not represented, the ALJ is required to carefully consider the
				evidence and determine if an IPV was committed based upon clear and convincing
				evidence.
ii. The household member
				has 30 days after the date of the written notice of the hearing decision to
				claim good cause for failure to appear, if the good cause is based upon
				non-receipt of the hearing notice. The good cause decision shall be entered
				into the record.
iii. Complete
				procedures for the scheduling of hearings can be found at N.J.A.C.
				1:10-1.
5. Procedures
				for participation while awaiting a hearing is as follows:
i. A pending disqualification hearing shall
				not affect the individual's or the household's right to be certified and
				participate in the program. Since a household member cannot be disqualified for
				an IPV until the DFD Director affirms the ALJ's decision, at which point it
				becomes final, the CWA shall determine the eligibility and benefit level of the
				household in the same manner it would be determined for any other household.
				For example, if the misstatement or action for which the household member is
				suspected of an IPV does not affect the household's current circumstances, the
				household would continue to receive its allotment based upon the latest
				certification action or be recertified based on a new application and its
				current circumstances;
ii. The
				household's benefits shall be terminated if the certification period has
				expired and the household, after receiving its notice of expiration, fails to
				reapply. The CWA shall also terminate or reduce the household's benefits if the
				CWA has documentation which substantiates that the household is ineligible or
				eligible for fewer benefits (even if these facts led to the suspicion of an IPV
				and the resulting disqualification hearing) and the household fails to request
				a fair hearing and continuation of benefits pending the hearing. For example,
				the CWA may have facts which substantiate that a household failed to report a
				change in its circumstances, in accordance with
				10:87-9.5, even though the CWA has
				not yet demonstrated that the failure to report involved an IPV.
6. The ALJ shall base the
				determination of an IPV on clear and convincing evidence which demonstrates
				that the household member(s) committed, and intended to commit, an IPV as
				defined at
				10:87-11.3.
7. Policies on the imposition of
				disqualification penalties are as follows:
i.
				If the final hearing decision, as affirmed by the DFD Director, has found that
				the individual has committed an IPV, the household member shall be disqualified
				in accordance with the disqualification period and procedures specified at
				10:87-11.2. The same act of an IPV
				repeated over a period of time shall not be separated so that separate
				penalties can be imposed;
ii. No
				further administrative appeal procedure exists after an IPV hearing. The
				determination of an IPV made by a disqualification arising from a final hearing
				decision cannot be reversed by a subsequent fair hearing decision. The
				household member, however, is entitled to seek relief in a court having
				appropriate jurisdiction. The period of disqualification may be subject to stay
				by a court of appropriate jurisdiction or other injunctive remedy;
iii. Once a disqualification penalty has been
				imposed against a currently participating household member, the period of
				disqualification shall continue uninterrupted until completed, regardless of
				the eligibility of the disqualified member's household. However, the
				disqualified member's household shall continue to be responsible for repayment
				of the overissuance which resulted from the disqualified member's IPV,
				regardless of its eligibility for program benefits.
8. Procedures for notification of hearing
				decision are as follows:
i. If the final
				hearing decision, as affirmed by the DFD Director, finds that the household
				member did not commit an IPV, DFD shall provide a written notice that informs
				the household of the decision.
ii.
				If the final hearing decision, as affirmed by the DFD Director, finds that the
				household member committed an IPV, DFD shall provide written notice to the
				household member, as well as to the CWA, prior to disqualification. The notice
				shall inform the household member of the decision and the reason for the
				decision. In addition, the CWA shall send a notice that informs the household
				member of the date the disqualification shall take effect. The CWA shall also
				provide written notice to the remaining household members, 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. The procedures
				for handling the income and resources of the disqualified member are described
				at 10:87-7.7(b). A
				written demand letter for restitution, as described at
				10:87-11.20(i),
				shall also be provided.