N.M. Admin. Code § 8.139.647.9

Current through Register Vol. 35, No. 21, November 5, 2024

Section 8.139.647.9 - DISQUALIFICATION HEARINGS

The HCA will publish clearly written rules of procedure for disqualification hearings, and will make these procedures available to any interested party.

A.HCA conducted hearings: When the HCA has sufficient documentary evidence indicating that an individual may have committed an intentional program violation (IPV), action will be taken to conduct an administrative disqualification hearing.

(1)Consolidation of ADH with fair hearing: An administrative disqualification hearing and a fair hearing may be combined into a single hearing if the factual issues arise out of the same or related, circumstances and the household receives prior notice that the hearing will be combined.

(a)Time frames: If a disqualification hearing and fair hearing are combined, the HCA will follow the time frames for conducting disqualification hearings.

(b)Claims and IPV determination: If the hearings are combined for the purpose of settling the amount of the claim at the same time as determining whether or not intentional program violation has occurred, the household will lose its right to a subsequent fair hearing on the amount of the claim.

(c)Waiving the 30-day advance notice: The HCA will allow, upon household request, a household to waive the required 30-day advance notice of hearing when the disqualification hearing and fair hearing are combined.

(2)Administrative disqualification hearing procedures:

(a)Hearing officers: The HCA may use the same hearing official for disqualification hearings and fair hearings or may designate hearing officials to conduct only disqualification hearings.

(b)Advising household or representative: At the disqualification hearing the hearing official will advise the household member or representative that they may refuse to answer questions during the hearing.

(c)Time limits for decision: Within 90 days of the date the household member is notified in writing that the hearing has been scheduled the HCA will conduct the hearing, arrive at a decision, and notify the household member and local agency of the decision.

(d)Postponing the scheduled hearing: The household member or representative is entitled to a postponement of the scheduled hearing provided that the request for postponement is made at least 10 days in advance of the date of the scheduled hearing. The hearing will not be postponed for more than a total of 30 days and the HCA may limit the number of postponements to one. If the hearing is postponed the time limits above may be extended for as many days as the hearing is postponed.

(3)Advance notice of hearing: The HCA will provide written notice to a household member suspected of intentional program violation at least 30 days in advance of the date a disqualification hearing which is initiated by HCA has been scheduled.

(a) If mailed, the notice will be sent either first class mail or certified mail-return receipt requested. The notice may also be provided by any other reliable method. If no proof of receipt is obtained, a showing of non-receipt by the household member will be considered good cause for not appearing at the hearing.

(b) The notice will contain, at a minimum:

(i) the date, time and place of the hearing;

(ii) the charge(s) against the household member;

(iii) a summary of the evidence, and how and where the evidence can be examined;

(iv) a warning that the decision will be based solely on information provided by the county office if the household member fails to appear at the hearing;

(v) 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 in order to receive a new hearing;

(vi) a warning that a determination of IPV will result in disqualification periods as determined by 8.139.647.8 NMAC; and a statement of which penalty HCA believes is applicable to the case scheduled for a hearing;

(vii) a listing of the household's member's rights;

(viii) a statement that the hearing does not preclude the state or federal government from prosecuting the household member for IPV in civil or criminal court action, or from collecting the over-issuance;

(ix) the name of an individual or organization, if any, that provides free legal representation;

(x) the date that the signed waiver must be received by the hearing official to avoid holding the hearing;

(xi) a statement of the accused individual's right to remain silent concerning the charge(s), and that anything said or signed by the individual concerning the charge(s) can be used against him/her in a court of law;

(xii) the telephone number and, if possible, the name of the person to contact for additional information; and

(xiii) the fact that the remaining household members, if any, will be held responsible for repayment of the resulting claim.

(4)Scheduling the hearing: The time and place of the hearing will be arranged so that the hearing is accessible to the household member suspected of IPV.

(5)Failure to appear: If the household member or representative cannot be located or fails to appear at a hearing initiated by the HCA without good cause, the hearing will be conducted without the household member being represented. Even if the household member is not represented, 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 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 HCA will conduct an 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. The good cause decision will be documented into the case record.

(6)Participation while awaiting a hearing: A pending disqualification hearing will not affect the individual's or household's right to be certified and participate the food stamp program. Since a household member cannot be disqualified for IPV until a hearing official finds that individual has committed IPV, the HCA will determine eligibility and benefit amount of the household in the same manner it would be determined for any other household. Household benefits will be terminated if the certification period has expired and the household, after receiving its notice of expiration, fails to reapply. The household benefits will be reduced or terminated if the HCA has documentation which substantiates that the household is ineligible or eligible for fewer benefits, even if these facts led to the suspicion of intentional program violation and resulting disqualification hearing, and the household fails to request a fair hearing and continuation of benefits pending the hearing. For example, the HCA may have documentation which substantiates that a household failed to report a change in circumstances even though the HCA has not yet demonstrated that the failure to report involved an act of intentional program violation.

(7)Criteria for determining IPV: The hearing officer will base the determination of IPV on clear and convincing evidence which demonstrates that the household member(s) committed, and intended to commit, intentional program violation as defined in Subsection D of 8.139.647.8 NMAC.

(8)Imposition of disqualification penalties:

(a)Beginning the disqualification: The period of disqualification will begin with the first month which follows the date the household member receives written notification of the disqualification. If the act of IPV which led to the disqualification occurred prior to the disqualification periods specified in Subsection B of 8.139.647.8 NMAC, the household member will be disqualified in accordance with the disqualification periods in effect at the time of the offense.

(b)No further appeal: No further administrative appeal procedure exists after an ADH conducted by the HCA. The determination of IPV made by a hearing officer 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.

(c)Ineligibility at disqualification: If the individual is not certified to participate in the food stamp program at the time the disqualification period is to begin, the disqualification penalty will be imposed immediately upon a determination of IPV, as though the individual was a participant in the FSP.

(d)Disqualification period continues: Once a disqualification penalty has been imposed against a currently participating household member, the period of disqualification will continue uninterrupted until completed, regardless of the eligibility of the disqualified member's household. The disqualified member's household will continue to be responsible for repayment of the over-issuance which resulted from the disqualified member's intentional program violation, regardless of the household's eligibility for food stamp benefits.

(9)Notification of disqualification: If the hearing officer finds that the household member committed IPV, HCA will provide written notice to a household member prior to disqualification.

(a) The notice will inform the household member of the decision; the reason for the decision; and the date the disqualification penalty begins and ends.

(b) Written notice will also be provided to any remaining household members of the benefit amount they will receive during the period of disqualification or that they must reapply because the certification period has expired. A written demand letter for restitution will also be provided.

B.Waived hearings: The HCA will provide written notification to the household member suspected of intentional program violation that the member can waive their right to an administrative disqualification hearing. Prior to providing written notification to the household member, the evidence must be reviewed by the office of inspector general (OIG). OIG must have made a determination that such evidence warrants scheduling a disqualification hearing.

(1)Contents of written notice: The written notification provided to the household member will include, at a minimum:

(a) The date that the signed waiver must be received by the HCA to avoid the holding of a hearing and a signature block for the accused individual along with a statement that the head of household must also sign the waiver if the accused individual is not the head of household, with an appropriately designated signature block;

(b) A statement of the accused individual's right to remain silent concerning the charge(s), and that anything said or signed by the individual concerning the charge(s) can be used against him/her in a court of law;

(c) The fact that a waiver of the disqualification hearing will result in disqualification and a reduction in benefits for the period of disqualification, even if the accused individual does not admit to the facts as presented by the HCA;

(d) An opportunity for the accused individual to specify whether or not they admit to the facts as presented by the HCA. This opportunity will consist of the following statements:

(i) "I admit to the facts as presented, and understand that a disqualification penalty will be imposed if I sign this waiver;" and

(ii) "I do not admit that the facts as presented are correct; however, I have chosen to sign this waiver and understand that a disqualification penalty will result."

(e) The telephone number and if possible the name of the individual to contact for additional information;

(f) The fact that the remaining household members if any will be held responsible for repayment of the resulting claim.

(2)Imposition of disqualification penalties: If the household member suspected of IPV signs the waiver of right to an ADH and the signed waiver is received within the time frames specified by the HCA, the household member will be disqualified in accordance with the disqualification periods in Subsection B of 8.139.647.8 NMAC above.

(a)Beginning the disqualification: The period of disqualification will begin with the first month following the date the household member receives written notification of the disqualification. If the act of IPV which led to the disqualification occurred prior to the written notification of the disqualifications specified in Subsection B of 8.139.647.8 NMAC, the household member will be disqualified in accordance with the disqualification period in effect at the time of the offense. The same act of IPV repeated over a period of time will not be separated so that separate penalties can be imposed.

(b)No further appeal: No further administrative appeal procedure exists after an individual waives their right to an administrative disqualification hearing and a disqualification penalty has been imposed. The disqualification penalty cannot be changed by a subsequent fair hearing decision. The household member 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.

(c)Ineligibility at disqualification: If the individual is not certified to participate in the program at the time the disqualification period is to begin, the disqualification penalty will be imposed immediately upon a determination of an IPV, as though the individual was a participant in the FSP.

(d)Disqualification continues: Once a disqualification penalty has been imposed against a currently participating household member, the period of disqualification will continue uninterrupted until completed regardless of the eligibility of the disqualified members household. The disqualified member's household will continue to be responsible for repayment of the over-issuance which resulted from the disqualified member's IPV regardless of the household's eligibility for program benefits.

(3)Written notification: Written notice will be provided to the household member prior to disqualification. Written notice will also be provided to any remaining household members of the allotment they will receive during the period of disqualification or that the household must reapply because the certification period has expired. A written demand letter for restitution, will also be provided.

C.Court referrals: The HCA will refer cases of alleged IPV for prosecution in accordance with an agreement with prosecutors or state law. The agreement will include the understanding that prosecution will be pursued in cases where appropriate. The agreement will also include information on how and under what circumstances cases will be accepted for possible prosecution and any other criteria set by the prosecutor for accepting cases for prosecution. The HCA is encouraged to refer for prosecution under state or local statutes those individuals suspected of committing IPV, particularly if large amounts of food stamp benefits are suspected of having been obtained by IPV, or the individual is suspected of committing more than one act of IPV.

(1)Imposition of disqualification penalties: The HCA will disqualify an individual found guilty of IPV for the length of time specified by the court. If the court fails to impose a disqualification period, the HCA will impose a disqualification period in accordance with the provisions in Subsection B of 8.139.647.8 NMAC, unless contrary to the court order. If disqualification is ordered but a date for initiating the disqualification period is not specified, the HCA will initiate the disqualification period for currently eligible individuals within 45 days of the date the disqualification was ordered. Any other court-imposed disqualification will begin within 45 days of the date the court found a currently eligible individual guilty of civil or criminal misrepresentation or fraud.

(2)Beginning the disqualification: If the individual is not certified to participate in the program at the time the disqualification period is to begin, the disqualification penalty will be imposed immediately upon a determination of IPV, as though the individual was a participant in the FSP.

(3)Disqualification continues: Once a disqualification penalty has been imposed against a currently participating household member, the period of disqualification will continue uninterrupted until completed regardless of the eligibility of the disqualified member's household. The disqualified member's household will continue to be responsible for repayment of the over-issuance which resulted from the disqualified members IPV regardless of the household's eligibility for program benefits.

(4)Notification of disqualification: If the court finds that the household member committed IPV the HCA will provide written notice to the household member. The notice will be provided prior to disqualification, whenever possible. The notice will inform the household member of the disqualification and the date the disqualification will take effect. The HCA will provide written notice to the remaining household members, if any, of the benefit amount they will receive during the period of disqualification or that they must reapply because the certification period has expired. The HCA will provide a written demand letter for restitution.

D.Deferred adjudication: The HCA may allow individuals to sign disqualification consent agreements in cases referred for prosecution. The HCA may use this option for those cases in which a determination of guilt is not obtained from a court due to the accused individual having met the terms of a court order or which are not prosecuted due to the accused individual having met the terms of an agreement with the prosecutor.

(1)Advance notification:

(a) The HCA will enter into an agreement with the state's attorney general's office or where necessary, with county prosecutors which provides for advance written notification to the household member of the consequences of consenting to disqualification in cases of deferred adjudication.

(b) The written notification provided to the household member which informs him/her of the consequences of consenting to disqualification as a part of deferred adjudication will include, at a minimum:

(i) a statement for the accused individual to sign that the accused understands the consequences of consenting to disqualification, along with a statement that the head of household must also sign the consent agreement if the accused individual is not the head of household, with an appropriately designated signature block;

(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 periods for IPV under the food stamp program are as specified in Subsection B of 8.139.647.8 NMAC, and a statement of which penalty will be imposed as a result of the accused individual having consented to disqualification;

(iv) a statement of the fact 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.

(2)Imposition of disqualification penalties: If the household member suspected of IPV signs the disqualification consent agreement, the household member will be disqualified in accordance with the disqualification periods specified in Subsection B of 8.139.647.8 NMAC, unless contrary to the court order. The disqualification period will begin within 45 days of the date the household member signed the disqualification consent agreement. However, if the court imposes a disqualification period or specifies the date for initiating the disqualification period, the HCA will disqualify the household member in accordance with the court order.

(3)Beginning the disqualification: If the individual is not certified to participate in the program at the time the disqualification period is to begin, the disqualification penalty will be imposed immediately upon a determination of IPV, as if the individual was a participant in the FSP.

(4)Disqualification continues: Once a disqualification penalty has been imposed against a currently participating household member, the disqualification period will continue uninterrupted until completed regardless of the eligibility of the disqualified member's household. The disqualified member's household will continue to be responsible for repayment of the over-issuance which resulted from the disqualified member IPV regardless of the household's eligibility for program benefits.

(5)Notification of disqualification: If the household member suspected of IPV signs the disqualification consent agreement, the HCA will provide written notice to the household member. The notice will be provided prior to disqualification whenever, possible. The notice will inform the household member of the disqualification and the date the disqualification will take effect. The HCA will also provide written notice to the remaining household members, if any, of the benefit amount the household will receive during the disqualification period or that the household must reapply because the certification period has expired. The HCA will provide a written demand letter for restitution.

E.Reporting requirements:

(1) The HCA will report to food and consumer services (FCS) information concerning individuals disqualified for IPV based on the determination of an administrative disqualification hearing official or a court of appropriate jurisdiction, and those individuals disqualified as a result of signing either a waiver of right to a disqualification hearing or a disqualification consent agreement in cases referred for prosecution. The information must be submitted so that it is received by FCS no later than 30 days after the effective date of the disqualification.

The HCA will submit required information on each individual disqualified for IPV through a reporting system in accordance with procedures specified by FCS. The following information concerning the individual will be reported to FSC:

(a) social security number, date of birth, full name;

(b) the type and number of the disqualification (1st, 2nd, 3rd);

(c) the state and county in which the disqualification took place;

(d) the date on which the disqualification took effect;

(e) the length of the disqualification period imposed.

(2)Availability to all state agencies: All data submitted will be available for use by any state welfare agency. The data will be used, at a minimum, for the following:

(a) to determine eligibility of individual program applicants prior to certification in cases where there is reason to believe a household member is subject to disqualification in another political jurisdiction and

(b) to ascertain the appropriate penalty to impose, based on past disqualifications in a case under consideration.

(c)Other uses: The HCA may also use the data in other ways, such as the following:

(i) to screen all program applicants prior to certification, and

(ii) to periodically match the entire list of disqualified individuals against their current caseloads.

(3)Disqualification valid in all political jurisdictions: The disqualification of an individual for IPV in one political jurisdiction will be valid in another. However, one or more intentional program violations which occurred prior to the implementation of the disqualification periods specified in Paragraph 1 of Subsection B of 8.139.647.8 NMAC will be considered as only one previous disqualification when determining the appropriate penalty to impose in a case under consideration, regardless of where the disqualification(s) took place. The HCA is required to identify any individuals disqualified for fraud prior to implementation of this rule and to submit the information required by this section on such individuals.

(4)Court reversal of the disqualification: In cases where the disqualification for IPV is reversed by a court of appropriate jurisdiction, the HCA will submit a report to purge the file of the information relating to the disqualification which was reversed. In cases where the determination of IPV is reversed by a court of appropriate jurisdiction, the HCA will reinstate the individual in the program if the household is eligible. Food stamp benefits that were lost as a result of the disqualification will be restored.

N.M. Admin. Code § 8.139.647.9

05/03/95, 05/15/97; 8.139.647.9 NMAC - Rn, 8 NMAC 3.FSP.648, 5/15/2001, Adopted by New Mexico Register, Volume XXXV, Issue 13, July 16, 2024, eff. 7/16/2024