N.J. Admin. Code § 10:87-11.5

Current through Register Vol. 56, No. 21, November 4, 2024

Section 10:87-11.5 - Disqualification hearings

(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.

N.J. Admin. Code § 10:87-11.5

As amended, R.1983 d.224, effective 5/31/1983.
See: 15 N.J.R. 633(a), 15 N.J.R. 1034(a).
Originally adopted as an Emergency Rule, R.1983 d.117, effective 3/31/1983, operative April 1, 1983. The amendments are pursuant to the Food Stamp Act Amendments of 1982 (P.L. 97-253) and the Omnibus Budget Reconciliation Act of 1981 (P.L. 97-35).
Section formerly definition of fraud deleted in entirety.
Amended by R.1989 d.121, effective 2/21/1989.
See: 20 N.J.R. 2689(a), 21 N.J.R. 511(b).
Recodified from 11.2.
Repeal and New Rule, R.2004 d.181, effective 5/17/2004.
See: 36 N.J.R. 28(a), 36 N.J.R. 2425(a).
Section was "Definition of intentional program violation".
Administrative change.
See: 44 N.J.R. 1529(a).