N.Y. Comp. Codes R. & Regs. tit. 18 § 399.7

Current through Register Vol. 46, No. 45, November 2, 2024

Section 399.7 - Administrative disqualification hearings (acts occurring on or after August 1, 1983)

(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.

(p) The administrative disqualification hearing decision. The decision after hearing shall be based upon clear and convincing evidence which demonstrates that the household member(s) committed, and intended to commit, one or more intentional program violations.

(1) The decision of the department shall specify the reasons for the decision, identify the supporting evidence, identify the pertinent Food and Nutrition Service (FNS) regulation, and respond to reasoned arguments made by the household member or representative.

(2) The department shall conduct the hearing, arrive at a decision and forward the decision to the local district for implementing action within 90 days (unless there is a client-requested adjournment) of the date of the initial notice from the department that the hearing has been scheduled.

(q) A decision of intentional program violation made after an administrative disqualification hearing cannot be reversed by a subsequent fair hearing decision. There is no right to appeal the decision by a fair hearing.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 399.7