Virginia Administrative Code › Title 8 - EDUCATION › Agency 20 - STATE BOARD OF EDUCATION › Chapter 790 - CHILD CARE PROGRAM › Part I - General Provisions › Section 8VAC20-790-100 - Recipient intentional program violation and disqualification

Current through Register Vol. 40, No. 24, July 15, 2024
A. When it is
				  suspected that there has been a deliberate misrepresentation of facts by a
				  recipient in order to receive benefits, services, or payments, the local
				  department shall investigate whether or not an intentional program violation
				  was committed. If the local department finds clear and convincing evidence that
				  an intentional program violation has occurred, the case will be referred for an
				  administrative disqualification hearing. The local department may also refer
				  the case to the attorney for the Commonwealth for criminal
				  prosecution.
B. Recipients found to
				  have committed an intentional program violation either through an
				  administrative disqualification hearing or by a court of competent jurisdiction
				  shall be ineligible to participate in the Child Care Subsidy Program for a
				  period of three months upon the first finding, 12 months upon the second
				  finding, and permanently upon the third finding.
C. In cases where a nonfraud overpayment
				  occurred due to an inadvertent household error, the parent will not be
				  disqualified from participating in the subsidy program as long as a repayment
				  schedule is entered into with the local department and payments are made
				  according to that schedule.
D.
				  Administrative disqualification hearings shall be held in accordance with the
				  following:
1. Prior to submitting the request
				  for an ADH to the state hearing authority, the local department shall provide
				  written notification to the individual suspected of an intentional program
				  violation that the individual can waive his right to an ADH by signing a waiver
				  request and returning it to the local department within 10 days from the date
				  notification is sent to the individual in order to avoid submission of the
				  request for an ADH.
2. If a signed
				  waiver is received, no ADH is conducted and the disqualification period is
				  imposed.
3. The local department
				  shall request an ADH be scheduled by submitting a written request to the state
				  hearing authority. The form must include the following information:
a. Identifying information;
b. Summary of the allegations;
c. Summary of the evidence; and
d. Copies of documents supporting the
				  allegations.
The referral is to be signed and dated by the supervisor or
					 local department director.
4. The hearing officer will schedule a date
				  for the ADH and provide written notice to the individual suspected of
				  committing an IPV at least 30 days in advance of the date the ADH has been
				  scheduled. The notice shall contain at a minimum:
a. The date, time, and place of the
				  hearing;
b. The charges against the
				  individual;
c. A summary of the
				  evidence, and how and where the evidence can be examined;
d. A statement that the decision will be
				  based solely on information provided by the local department of social services
				  if the individual fails to appear at the hearing;
e. 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;
f. A
				  statement that a determination of intentional program violation will result in
				  a disqualification period, and a statement of which penalty is applicable to
				  the case scheduled for a hearing;
g. A listing of the individual's rights,
				  including the right to:
(1) Examine the
				  contents of his case file and all documents and records to be used by the
				  agency at the hearing at a reasonable time before the date of the hearing as
				  well as during the hearing;
(2) At
				  his option, present his case himself or with the aid of an authorized
				  representative;
(3) Bring
				  witnesses;
(4) Establish all
				  pertinent facts and circumstances;
(5) Advance any arguments without undue
				  interference; and
(6) Question or
				  refute any testimony or evidence, including opportunity to confront and
				  cross-examine adverse witnesses; and
h. 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.
5. The time and place of the ADH shall be
				  arranged so that the hearing is accessible to the individual suspected of
				  committing an IPV. The individual may request a postponement of the ADH if the
				  request for postponement is made at least 10 days in advance of the date of the
				  scheduled hearing. The ADH shall not be postponed for more than a total of 30
				  days and the state hearing authority may limit the number of
				  postponements.
6. The ADH can be
				  held even if the individual fails to appear. The individual has 10 days after
				  the date of the scheduled ADH to present reasons indicating a good cause
				  failure to appear.
7. Even though
				  the individual is not present, the hearing officer shall carefully consider the
				  evidence and determine if an IPV was committed, based on clear and convincing
				  evidence.
8. If the recipient is
				  found to have committed an IPV, but a hearing officer later determines there
				  was good cause for not appearing, the previous decision will no longer be valid
				  and a new ADH shall be conducted. The hearing officer who conducted the
				  original hearing may conduct the new hearing. The good cause decision shall be
				  entered into the hearing record by the hearing officer.
9. The hearing officer shall:
a. Identify those present for the
				  record;
b. Advise the individual
				  that he may refuse to answer questions during the hearing and that anything
				  said or signed by the individual concerning the charges may be used against him
				  in a court of law;
c. Explain the
				  purpose of the ADH, the procedure, and how and by whom a decision will be
				  reached and communicated;
d.
				  Consider all relevant issues and determine if an IPV was committed, based on
				  clear and convincing evidence;
e.
				  Request, receive, and make part of the record all evidence determined necessary
				  to render a decision;
f. Regulate
				  the conduct and course of the hearing consistent with due process to ensure an
				  orderly hearing; and
g. Advise the
				  local department to obtain a medical assessment at the local department's
				  expense if the hearing officer considers it necessary.
10. The individual alleged to have committed
				  an IPV shall be given adequate opportunity to:
a. Examine all documents and records to be
				  used at the ADH at a reasonable time prior to the ADH as well as during the
				  ADH. The contents of the case file, including the application form and
				  documents of verification used by the local department to establish the alleged
				  IPV, shall be made available;
b.
				  Present his case himself or with the aid of an authorized
				  representative;
c. Bring
				  witnesses;
d. Establish all
				  pertinent facts and circumstances;
e. Question or refute any testimony or
				  evidence, including the opportunity to confront and cross-examine witnesses;
				  and
f. Advance arguments without
				  any undue influence.
11.
				  The hearing officer shall prepare a written report of the hearing, which shall
				  include findings, conclusions, decisions, and appropriate recommendations. The
				  decision shall specify the reasons for the decision, identify the supporting
				  evidence, identify pertinent regulations, and respond to reasoned arguments
				  made by the individual or representative.
12. If the individual is found to have
				  committed an IPV, the written decision shall advise the individual that
				  disqualification shall occur.
Upon receipt of the notice of a decision from the hearing
					 officer finding that the individual committed an IPV, the local department
					 shall inform the individual of the reason for the disqualification and the date
					 the disqualification will take effect.