11250 Making the Referral - Administrative Disqualification Hearing - When the decision has been made to request an Administrative Disqualification Hearing, a referral shall be sent to the Administrative Disqualification Hearing Officer (ADHO). The form, Referral for an Administrative Disqualification Hearing, ES-3112, shall be used for this purpose.

 

11250.1 Referral Form - The following information shall be provided on the ES-3112:
 

  1. PI name and address, and name of the individual alleged to have committed fraud (if different from the PI head);

    NOTE:     This person is usually the person who signed the application and/or monthly report forms. In some circumstances, it could be a person other than this which would require explanation and documentation;
     
  2. Case number;
     
  3. The name of the agency representative (i.e., the person who will be presenting the evidence for the agency at the hearing);
     
  4. The type and date(s) of the alleged violation(s);
     
  5. The actual amount of overissuance;
     
  6. Details regarding what documentary evidence will be available for presentation at the hearing. Any additional comments which the agency feels the ADHO should know can be itemized on the referral form as well;
     
  7. The number of prior fraud disqualifications. Include the dates of the prior disqualifications, and the manner in which fraud was determined for each, in accordance with 11200. If the person being referred for an administrative disqualification hearing received benefits in another State prior to receiving in Kansas, eDRS data must be accessed to determine if the individual has had any prior food assistance disqualifications to determine the proper disqualification period for the fraud being referred. The eDRS should also be used for persons who have received in Kansas, if there is reason to suspect that there was a prior finding of fraud and there is no documentation in the current case file. Whenever the agency uses eDRS for this purpose, the agency can accept a verbal confirmation from the Locality Contact as a basis for an initial assessment. However, documentation supporting the prior disqualification must be obtained prior to making a final determination of the length of the penalty. Since Administrative hearings notifies the individual if they are found guilty of the penalty period, the agency must have the documentation supporting the prior disqualification prior to the referral for an Administrative Disqualification Hearing being sent. If documentation of a prior disqualification cannot be obtained, then it will not be considered in determining the length of the disqualification period for the case being referred. Also refer to 1434 and 11270. and;
     
  8. If the hearing is to be held strictly for the purpose of determining fraud in accordance with the NOTE in 11232.
     

If the documentary evidence is available at the time the referral is made to the ADHO, it should be numbered (e.g., "Agency Exhibit #1") and submitted. If the agency's evidence is not ready at the time the referral is made, it should be submitted to the ADHO when ready.

 

11250.2 Time Limits
 

  1. Within 90 days of the date the household member is notified in writing that an Administrative Disqualification Hearing has been scheduled, the ADHO shall:
     
    1. Conduct the administrative disqualification hearing;
       
    2. Arrive at a decision; and
       
    3. Notify the household member and the local office of the decision.
       
  2. 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. However, the hearing shall not be postponed for more than a total of 30 days and there shall only be one postponement, unless the ADHO decides that good cause exists to grant a second postponement. If the hearing is postponed, the above time limits shall be extended for as many days as the hearing is postponed.

 

11250.3 Waived Hearings - Any individual who has been referred to the ADHO shall have the option of waiving his/her rights to an administrative disqualification hearing. In addition to sending the advance notification of a disqualification hearing as provided in 11250.7, the household member suspected of fraud shall also be informed of the fact that he/she may waive his/her right to an administrative disqualification hearing. The written notification provided to the household member which informs him/her of the possibility of waiving the administrative disqualification hearing shall be the Waiver of Right to an Administrative Disqualification Hearing form. This form will be mailed to the household by the Administrative Disqualification Hearing Officer. If the individual returns this form to the local DCF office, it shall immediately be forwarded to the Administrative Disqualification Hearing Officer. Persons who sign the waiver are to be disqualified for the appropriate time period and the claim on the system is to be changed from "client" error to "fraud".

 

11250.4 Publication of Rules of Procedure - The procedure for a disqualification hearing has been published as a brochure titled "Administrative Food Assistance Disqualification Hearing" and shall be made available to any interested party.

 

11250.5 Notification to Applicant Households - Applicants shall be informed in writing of the disqualification penalties for committing or attempting to commit fraud each time they apply for program benefits. The penalties are written in clear, prominent, and boldface lettering on the application form.

 

11250.6 Consolidation of Administrative Disqualification Hearing with Fair Hearing - A fair hearing and an administrative disqualification 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 hearings will be combined. If the disqualification hearing and fair hearing are combined, the time frames for conducting disqualification hearings shall be followed. And, if the hearings are being combined for the purpose of settling the amount of the claim at the same time as determining whether or not fraud or attempted fraud has occurred, the household shall lose its right to a subsequent fair hearing on the amount of the claim. However, upon request from the household, the 30-day advance notice period required by 11250.7 shall be waived when the disqualification hearing and the fair hearing are combined. At the discretion of the Secretary of the Department of Administration, the same hearing official can be appointed to conduct both types of hearings.

 

11250.7 Advance Notice of Administrative Disqualification Hearing - The Administrative Disqualification Hearing Officer, or his/her designee, shall provide written notice to the household member suspected of fraud or attempted fraud at least 30 days in advance of the date a disqualification hearing is scheduled. The notice shall be mailed and shall contain at a minimum:

 

  1. The date, time, and place of the hearing;
     
  2. The charge(s) against the household member;
     
  3. A summary of the evidence (which is to be provided by the local agency free of charge either prior to or on the day of the hearing);
     
  4. A warning that the decision will be based solely on information provided by the food assistance office if the household member fails to appear at the hearing;
     
  5. 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;
     
  6. A warning that a determination of fraud or attempted fraud for food assistance will result in a 6 or 12-month disqualification for the first violation, a 12 or 24-month disqualification for the second violation, permanent disqualification for the third violation, and a statement as to which penalty the agency believes is applicable to the case scheduled for hearing;

  7. A warning that a determination of fraud or attempted fraud for cash and child care will result in permanent disqualification for both TANF and child care.
     
  8. A listing of the household's rights as contained in the Fair Hearing Section (1613);
     
  9. A statement that the hearing does not preclude the state or federal government from prosecuting the household member for fraud or attempted fraud in a civil or criminal court action, or from collecting the overissuances; and
     
  10. The availability, if any, of free legal representation provided by an individual or organization.
     

If the individual cannot be located and/or notified of the disqualification hearing, the hearing will be dismissed without prejudice by the ADHO. If the individual alleged to have committed fraud is subsequently found (either by reapplying for assistance or other means), the agency may re-refer the individual for an administrative disqualification hearing.

 

11250.8 Scheduling of Hearing - The time and place of the hearing shall be arranged so that the hearing is accessible to the household member suspected of fraud or attempted fraud. If the household member or its representative fails to appear without good cause at a hearing initiated by the local agency, the hearing shall be conducted without the household member being represented. The household member will have 10 days from the date of the scheduled hearing to present reasons indicating a good cause for failure to appear. Even though the household member is not represented, the ADHO is required to carefully consider the evidence and determine if fraud or attempted fraud was committed based on clear and convincing evidence. If the household member is found to have committed fraud or attempted fraud but the ADHO later determines that the household member or representative had good cause for not appearing, the previous decision shall no longer remain valid and the ADHO shall conduct a new hearing. The ADHO who originally ruled on the case may conduct the new hearing. The ADHO must enter the good cause decision into the record.

 

11250.9 Participation While Awaiting Hearing - 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 fraud or attempted fraud until the ADHO finds that the individual has committed fraud or attempted to commit fraud, the eligibility and benefit level of the household shall be determined 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 fraud does not affect the household's current circumstances, the household would continue to receive its allotment based on the latest certification action or be reviewed based on a new application and its current circumstances. However, the household's benefits shall be terminated if the review period has expired and the household, after receiving its notice of expiration, fails to reapply. The household's benefits shall be reduced or terminated if documentation exists which substantiates that the household is ineligible or eligible for fewer benefits (even if these facts led to the suspicion of alleged fraud and the resulting disqualification hearing) and the household fails to request a fair hearing and continuation of benefits pending the hearing. For example, the local office may have facts which substantiate that a household failed to report a change in its circumstances even though the local office has not yet demonstrated that the failure to report involved an intentional act of fraud.

 

11250.10 Criteria for Determining Fraud or Attempted Fraud - The ADHO shall base the determination of fraud on clear and convincing evidence which demonstrates that the household member(s) committed, and intended to commit, fraud as defined in 11200.

 

11250.11 Decision Format - The Administration Disqualification Hearing Officer's decision shall specify the reasons for the decision, identify the supporting evidence, identify the pertinent Kansas Economic and Employment Support Manual and FNS regulations, and respond to reasoned arguments made by the household member or representative.

 

11250.12 Notification of Hearing Decision

 

  1. Not Guilty Decision - If the hearing official finds that the household member did not commit fraud, a written notice shall be provided which informs the household member of the decision. The overissuance which occurred shall be considered a client overissuance and a client claim shall be established in accordance with 11121.2.
     
  2. Guilty Decision - If the hearing official finds that the household member committed fraud, a written notice shall be provided to the household member prior to the disqualification. The Action Taken on Administrative Disqualification Hearing Form, has been designed for this purpose. The notice shall inform the household member of the decision and the reason for the decision. In addition, the notice shall inform the household member of the date the disqualification will take effect. Disqualification periods shall be in effect for a specified period of time, regardless of the individual's receipt of food assistance benefits at the time of the fraud decision. In no instance shall a disqualification period be deferred until the individual is next eligible for benefits. A written notice shall also be provided 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 review period has expired. The income and resources of the disqualified individual shall be handled as outlined in 6500. A written repayment agreement shall be sent by the local office. The claim type shall be changed from "client" to "fraud."

    NOTE:     It is very important that the claim type be changed to fraud before collection begins. The State agency retains 35% of all repayments on fraud claims and only 20% of all repayments on client error claims. (None is retained on agency error claims.)
     
  3. Household Signs Waiver - If the household member signs the Waiver of Administrative Disqualification Hearing, a written notice shall be provided to the household member prior to the disqualification. The notice, Action Taken on Waiver of Administrative Disqualification Hearing, has been developed for this purpose. The notice shall inform the household member of the date the disqualification will take effect. Disqualification periods shall be in effect for a specified period of time, regardless of the individual's receipt of food assistance benefits at the time the is received by the agency. In no instance shall a disqualification period be deferred until the individual is next eligible for food assistance benefits. The written notice shall also provide 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 review period has expired. The income and resources of the disqualified individual shall be handled as outlined in 6500. A written repayment agreement shall be sent by the local office. The claim type shall be changed from "client" error to "fraud" as noted above.