Any household adversely affected by an action of DEMS must be provided an opportunity to appeal this action through a hearing process. This process is called an Administrative Hearing. The Appeals and Hearings Section of the Office of General Counsel conducts all Administrative Hearings and renders decisions based upon food stamp policy and regulations. Administrative Hearings policy begins in [FSC 16200].

The Appeals and Hearings Section also conducts Administrative Disqualification Hearings. An Administrative Disqualification Hearing is one of the procedures by which a determination of an intentional program violation can be made. Policy on Administrative Disqualification Hearings begins in [FSC 16600].

The Appeals and Hearings Section must process each request for an Administrative Hearing under uniform rules of procedure which are available in the Appeals and Hearings Section for public inspection and copying. The uniform rules of procedure includes all filing limits for requests and appeals, advance notification requirements, expedited and other hearing timeliness standards, rules of conduct at the hearing, and the rights and responsibilities of persons who request a hearing.

At the time of the application interview each household must be advised orally of:

1. Its right to a hearing;
2. How a hearing may be requested; and
3. That the household may be represented at the hearing by legal counsel, a friend, a relative or any other spokesman. If there is an individual or organization available which provides free legal representation, the household will be advised of the availability of that service.

The household may request a hearing at the time of any action when it believes the action has adversely affected its participation in the Food Stamp Program. For example, a household may appeal when its application for food stamps is denied, when its food stamp allotment is decreased, when its food stamp case is closed, or when it believes that its food stamp allotment is inadequate.

Discrimination complaints will be processed as specified in [FSC 700].

A request for a hearing is defined as any clear expression, oral or written, by the household or its representative that it wishes to appeal a decision or to present its case to a higher authority. The freedom to make such a request must not be hampered in any way. If it is unclear from the household's request what action it wishes to appeal, the Appeals and Hearings Section may request that the household clarify its grievance.

Upon request, DEMS must make available, without charge, the specific materials necessary for a household or its representative to determine whether a hearing should be requested or to prepare for a hearing.

County office personnel will issue an EMS-1200, Appeal for Fair Hearing, to households expressing an interest in an Administrative Hearing. County office personnel will assist the household in completion of the EMS-1200 if such assistance is requested.

The household may also make a request for an Administrative Hearing by sending a letter to the Appeals and Hearings Section or by completing the back a manually issued EMS-1, Notice of Action.

The household will be advised of any available legal service which can provide the household with representation at the hearing. If the individual making the request cannot speak the English language and the agency is required to provide bilingual staff or interpreters as specified in [FSC 230], the Appeals and Hearings Section must insure that the hearing procedures are verbally explained in the household's language.

A household may designate a representative to act in its behalf during the hearing process by providing a signed statement. The household must specify in the statement whether the representative is to review its Administrative Hearing File, represent it in the hearing or both. The statement will be filed in the Hearing File. (See [FSC 16511] for an explanation of an Administrative Hearing File.)

Once a household has officially designated a representative, the representative will receive a copy of all correspondence and materials mailed or provided to the household by DEMS regarding the Administrative Hearing proceedings.

Administrative Hearings must be requested within 90 days of the date of notification of the disputed action or loss of benefits with the following exceptions.

Exception 1 - A hearing may be requested by a household to dispute its current level of benefits at any time within the certification period.

Exception 2 - A hearing to dispute the agency's decision to deny a household's request for restoration of benefits must be requested within 90 days of the notice of denial. However, the benefits may have been lost up to a year prior to the household's request for restoration. See [FSC 13310].

The Appeals and Hearings Section will not deny or dismiss a request for a hearing except under the following circumstances.

1. The request was not received within the specified time period.
2. The request was withdrawn in writing by the household or its representative.
3. The household or its representative failed, without good cause, to appear at the scheduled hearing. (The Appeals and Hearings Section will determine good cause.) When the household fails to appear without good cause, the hearing is considered abandoned and the Appeals and Hearings Section immediately dismisses the request.

A memo advising the county that the hearing request has been dismissed is sent by the Appeals and Hearings Section. No additional notification is sent to the household since it was previously advised that hearings must be rescheduled in advance. Should the Fair Hearings Section determine that the household had good cause for failure to appear, the county office will be so notified.

16510 Beginning the Administrative Hearing Process

Requests for an Administrative Hearing submitted to the county office will be forwarded immediately to the Appeals and Hearings Section. If the household indicates that it wishes the Appeals and Hearings held in its home or at a location other than the county office in the county of residence, the Appeals and Hearings Section should be so notified by the county office.

When a request for a hearing is received, the Appeals and Hearings Section will prepare Form DHS-1210 and send it to the Administrator of Field Operations, Division of Economic and Medical Services for routing to the appropriate county office. This form requests information regarding whether or not the appeal represents a timely request for a hearing. If the request was timely, the county office prepares the Administrative Hearing File (including the County Statement) and returns it to EMS Field Operations as explained in [FSC 16511]. If the appeal has not been filed timely, the county office is required to note this fact on the Form DHS-1210. Response by the county office must be made within seven calendar days from receipt of this memorandum in the county. Field Operations is responsible for routing this information to Appeals and Hearings. 

Upon notice from the Appeals and Hearings Section that an individual has timely requested an Administrative Hearing (by form DHS-1210), the county office will prepare an Administrative Hearing File which will be separate and apart from that individual's case record.

A copy of the Administrative Hearing File must be submitted to the EMS Field Operations Section within seven calendar days from the date the notice from the Appeals and Hearings Section is received in the county office.

Information will not be included in the Administrative Hearing File unless the household will be allowed to review such information. An example of information which must not be included in the file is the name of an informant who wishes to remain anonymous. See [FSC 530] for a full explanation of information in the case record which may not be revealed to the household. Only information which may be included in the Administrative Hearing File may be presented as evidence at the hearing.

The following information must be included in the Administrative Hearing File.

1. Notices of Action - Include any notices sent to the household which pertain to the action being appealed. If the notice was system generated, include a copy of the EMS-233, turnaround upon which the notice was generated.
2. Documentary Evidence - That part of the case record which constitutes documentary evidence to support the notice of action upon which the household is basing its appeal. For example, the food stamp application (EMS-220) submitted by the household, the EMS-233 upon which the budget was prepared, collateral statements, income statements, resource verification, Work Program non- compliance notification, county referral to Work Program or workfare, and witness statements will be included.
3. County Statement (EMS-1203) - Include a copy of the county statement. The county statement must state the issue and must contain a summary of all facts and evidence supporting the county office's position. Ambiguous and technical language will be avoided.

Five copies of the DHS-1203 will be prepared. The original will be sent to the plaintiff prior to the date of the hearing, a copy sent to the appropriate EMS Field Manager, a copy included in the hearing file sent to the Appeals and Hearings Section, a copy included in the hearing file retained in the county office, and a copy filed in the case record.

The Administrative Hearing file may be discarded or attached to the household's case record after receipt of the decision. (A copy of the DHS-1203 must be retained in the case record.)

The household has ten days from the receipt of the DHS-3205, a form letter, to go to the county office and review its Administrative Hearing File. The household may be accompanied by its designated representative. The EMS supervisor or a designee must be present during the review.

Either the household or the county office has the right to subpoena witnesses to testify at the Administrative Hearing.

NOTE: DHS employees will be expected to attend hearings and testify without being subpoenaed. The Appeals and Hearings Section will notify DHS employees of the time and place of the hearing by memorandum.

The household is notified of its right to subpoena witnesses on the form, DHS-3205, which is sent by certified mail, return receipt requested.

Following its review of the hearing file, the household will notify the Appeals and Hearings Section of any individuals it wishes to have subpoenaed on its behalf.

When the Administrative Hearing File is submitted the county office must advise the Appeals and Hearings Section of any witnesses it wishes to have subpoenaed. The county office will be advised by the Appeals and Hearings Section of any witnesses the household has requested to be subpoenaed. The county office will have five days from receipt of this notice to request subpoenas for rebuttal witnesses.

The Department of Human Services, General Counsel, will issue the subpoenas, pursuant to the terms of agreement and authority of Ark. Stat. Ann. 20-76-103.

A household's food stamp allotment may be continued at the same amount pending the Administrative Hearing Decision if both of the following conditions are met.

1. The household is currently certified.
2. The request was made within 10 days of the date the notice of action was issued. This includes notices of adverse action sent at least 10 days prior to the effective date of action and notices of action sent at the time the action is taken. (See [FSC 11440] for details.)

Both the EMS-1200, Appeal for Fair Hearing, and the manually issued EMS-1, Notice of Action, contain a space for the household to indicate whether or not benefits should be continued.

If the household does not specifically waive continuation of benefits, the Appeals and Hearings Section will assume that continuation is desired.

If an Administrative Hearing and continuation of benefits is requested during a 10-day advance notice period, the household's food stamp allotment will be continued on the basis authorized immediately prior to the notice. If an Administrative Hearing with continuation of benefits is requested during the 10-day period following the issuance of an adequate notice of action, the household's food stamp allotment must be re-instated to the basis authorized immediately prior to the notice. Re-instatement must occur within 5 working days of the receipt of the hearing request. A supplemental issuance will be authorized when necessary. (See FSC 13200 for instructions on authorizing supplemental benefits.)

The continued benefit level will not be changed unless one of the following situations occur.

1. The household's certification period expires.

The household must reapply and be determined eligible based on its current circumstances. Food stamps will be issued on the basis determined at recertification.

2. A change occurs which affects the household's eligibility or allotment size.

The household's eligibility and food stamp allotment must be redetermined based on the change in circumstances. If the change results in case closure or a reduction in the allotment, a notice of adverse action must be issued. Unless the household requests another hearing based upon the action specified in this notice, the change will be made when the 10-day advance notice period expires.

3. A mass change occurs.

If the mass change affects the household, the change will be made regardless of the status of the Administrative Hearing request.

NOTE: When the food stamp allotment is reduced or the case is closed due to a mass change, participation at the prior level will be re-instated only if:

1. An Administrative Hearing is requested based upon the change; and
2. The issue being contested is that the food stamp allotment was incorrectly calculated or that federal law or regulation is being misapplied or misinterpreted by DEMS.

4. The Hearing Officer makes a preliminary determination that the sole issue is based on Federal law, regulation or policy and that DEMS has not incorrectly calculated the budget or misapplied or misinterpreted the policy.

When the county receives the Hearing Officer's preliminary determination in writing, the household's case will be closed or its food stamp allotment will be reduced as specified in the notice of action.

If a hearing request is not made within the specified 10-day period, the food stamp allotment will be reduced or terminated as stated unless the household establishes that its failure to make the request within the specified time was for good cause. (The Appeals and Hearings Section will determine good cause.) If good cause is established, DEMS must reinstate the allotment to the prior basis.

Households subject to monthly reporting (MR) have 10 days from the date the automated notice of adverse action was mailed to request an Administrative Hearing and continuation of benefits.

A monthly reporting household whose benefits are being continued must continue to submit an MR form each month. The county will adjust the allotment during the continuation period to take into account reported changes except for the factor or factors upon which the hearing request was based.

Upon receipt of the Administrative Hearing File, the Appeals and Hearings Section will schedule a time and place for the hearing.

The time, date, and place of the hearing will be arranged so that the hearing is accessible to the household. A telephonic hearing may be scheduled. A telephonic hearing will be conducted through a conference call involving the hearing official, the household, and county office personnel. All participants except the Hearing Officer must be in the same location. A telephonic hearing may not be utilized unless the household agrees to the arrangement. 

The Appeals and Hearings Section will expedite hearing requests from households, such as migrant farm workers, that plan to move from the jurisdiction of the hearing official before the hearing decision would normally be reached. Hearing requests from such households will be processed faster than others if necessary for the household to receive a decision and (if the decision so indicates) restoration of benefits before they leave the area.

In the interest of providing timely services to all households, the Appeals and Hearings Section may respond to a series of individual requests for hearings by conducting a single group hearing where related issues of State and/or Federal law, regulation or policy are the sole issues being raised and individual issues of fact are not disputed.

In all group hearings, the policies governing individual hearings must be followed. Each individual household shall be permitted to present its own case or have the case presented by a representative.

The Appeals and Hearings Section will provide written notice to all parties involved at least ten days prior to the hearing to allow for adequate preparation of the case. The notice will contain:

1. The name, address and telephone number of the office to notify if the household will not be able to attend the scheduled hearing;
2. A statement that the Appeals and Hearings Section will dismiss the hearing request if the household or its representative fails to appear for the hearing without good cause; and
3. Any additional information which will provide the household with an understanding of the proceedings and will contribute to the effective presentation of the household's case.

NOTE: The household may waive, in writing, the 10-day advance notice requirement in order to expedite the hearing process.

The household is entitled to receive a postponement of a scheduled hearing upon request. The postponement will not exceed 30 days. The time limit for action on the decision will be extended for as many days as the hearing is postponed. For example: If a hearing is postponed by the household for 10 days, the final action will be required within 70 days from the date of the request for the hearing.

The Hearing Officer may postpone a hearing when, in his judgement, a postponement is warranted. Upon the officer's determination that a postponement is warranted, the hearing will be adjourned and re-scheduled at a later time. The time frame for Administrative Hearing decisions will be extended by the number of days between the original hearing and the rescheduled hearing.

The hearing will normally be held in the DHS County Office in the county in which the household resides. It may be held in another DHS County Office if this is more convenient for the household or its representative. The hearing may be held in the household's home or at any other reasonable location in the county if so requested.

The DHS County Office must provide an area in which an Administrative Hearing may be conducted with some degree of privacy.

The county must be prepared for the hearing.

If legal assistance is needed, the County EMS Supervisor should request assistance by memorandum to the General Counsel, Office of General Counsel.

A county representative must be designated prior to the time of the hearing. The county representative must be prepared to represent the county at the time the hearing is scheduled. The county representative must be familiar with the case to the degree that he will be able to answer pertinent questions from either the hearing official or the household.

The county worker will assist the household in preparing for the hearing if such assistance is requested.

The Appeals and Hearings Section will designate all Hearing Officers. The Hearing Officer must not have any personal interest or involvement in the case and must not have been involved in the contested action either as a case worker or in a supervisory capacity.

The Hearing Officer may not review the case record or other material either prior to or at the hearing unless such material is made available to the household or its representative. 

A Hearing Officer will conduct the hearing. The household may be accompanied by friends or other persons and may be represented by a friend, attorney, or designated representative. The county will be represented by the service representative responsible for the case, by the EMS supervisor or his designee, or by an Assistant General Counsel (if previously requested, in writing).

The hearing will be conducted in an informal but orderly manner. The Hearing Officer will explain the Administrative Hearing procedure to the household (plaintiff). The County Office Administrative Hearing Statement will be read by the county office representative. The county office will present its case. This includes presenting evidence and questioning of witnesses it has subpoenaed to the hearing. The county office will also be allowed to cross-examine the plaintiff's witnesses. The plaintiff will then be allowed to present his case. He may do so by himself or with the aid of others. The plaintiff or his representative will be given the opportunity to present witnesses, advance arguments, offer additional evidence and to question or refute any testimony or evidence. The plaintiff will be allowed to question the county office representative and to confront and cross-examine any adverse witnesses. If the plaintiff is unable to present his evidence in a logical manner, the Hearing Officer will assist him. The county office representative will be given the opportunity to present additional evidence and to question the plaintiff, his designated representative, or witnesses. Questioning of all parties will be confined to the issue involved. Other eligibility factors may be dealt with when appropriate.

When all relevant information has been obtained, the Hearing Officer will summarize the issues, the evidence, the agency policy, and will explain that he will recommend a decision to the Administrator, Appeals and Hearings Section, who will make the final decision.

The plaintiff will also be advised of his right to judicial review in the event of an adverse ruling.

Prompt, definitive, and final administrative actions must be taken within 60 days of receipt of a request for an Administrative Hearing. The hearing decision is based upon documentary evidence contained in the Administrative Hearing file and the testimony presented at the hearing.

The Hearing Officer will prepare the decision in compliance with FNS approved policy or Federal Regulations. The manager of the Food Stamp Section or designee may be asked to review the decision for correctness in relation to policy or Federal Regulation. The decision will be signed by the Administrator, Appeals and Hearings Section. The signed decision is binding on DEMS and cannot be changed unless it is overturned in a court of law. 

The hearing decision will contain the following information.

1. An Introduction - This part of the decision will summarize the reason for the appeal. Any pertinent information regarding the appeal are included. The date and location of the hearing must appear. The participants in the hearing must be named.
2. Findings of Fact - The facts upon which the decision is rendered are contained in this section. If any testimony was presented, it will be summarized in the Findings of Fact section.
3. Conclusions of Law - This part will summarize the food stamp policy which applies the issue being appealed.
4. Decision - This part contains the decision. Based upon the facts presented and the appropriate conclusions of law, a decision is rendered. The decision will determine that the county office was correct or was incorrect in taking the adverse action. If the county was incorrect, its action will be overturned.

Once a hearing decision is rendered, both the household and the county office will be notified in writing of:

1. The decision;
2. The reason for the decision as supported by food stamp policy or Federal regulation;
3. That the household's food stamps will be issued or terminated as decided through the hearing process; and
4. That the household has the right to a judicial review of the hearing which may result in a reversal of the decision.

Hearing decisions adverse to the household are sent via certified mail, return receipt requested. This procedure insures that timely filing for judicial review may be ascertained.

Households not satisfied with an Administrative Hearing decision have the right to judicial review under the Administrative Procedures Act.

The household must file a petition in the Circuit Court of the county in which the household lives or does business or in the Circuit Court of Pulaski County within 30 days from the date the household received the Administrative Hearing decision. Copies of the petition are served on DEMS and other parties of record by personal delivery or mail.

Within 30 days from the date of the service of the petition on DEMS (or additional time granted by the Court, not to exceed 90 days total), The Office of General Counsel must transmit to the Court the original or a certified copy of the entire record of the hearing under review.

The review will be conducted by the Court without jury and will be confined to the record unless a question of irregularity in procedure exists which is not indicated in the record. Testimony may then be taken before the Court.

The county office will take prompt action to implement decisions from the Appeals and Hearings Section and assure that the decision is reflected in the household's coupon allotment within the 60 days from the date the hearing was requested.

When the Administrative Hearing Decision upholds the household, certain actions must be taken within the 60 day Administrative Hearing processing period.

1. For Households Currently Certified

If the household continued to receive food stamps on the basis authorized prior to appeal action, there is no need to adjust the case or to authorize restored benefits.

If the household waived continuation of benefits and the decision results in an increase in the household's current allotment, the allotment must reflect the increase within 10 days of the receipt of the hearing decision.

This is true even if a supplemental issuance must be authorized to insure that the increase is reflected.

NOTE: The county may take longer than 10 days to increase the food stamp allotment if the household's next regularly scheduled issuance will occur within the 60 day fair hearing processing period.

Restored benefits will be authorized for any earlier months when the household received an under-issuance of food stamps due to the issue appealed.

2. For Households Not Currently Participating

Restored benefits will be authorized if applicable. If the household's certification period has expired, benefits will be restored for any month in the certification period when an underissuance occurred due to the issue under appeal.

If a household continued to receive food stamps on the basis authorized prior to the appealed action, no restoration will be authorized.

If the household's case was closed and the decision reverses the closure, benefits will be restored for any months when no food stamps were received due to the closure.

1. Benefits will not be restored for any month in which benefits were continued.
2. Benefits will not be restored for any month which would not have been included in the original period of certification.
3. Benefits will not be restored for the current month or future months which were included in the original certification period. The case will be reopened or the household must reapply as specified in the Administrative Hearing Decision.

If the household's application (initial or recertification) was denied and the denial was ruled invalid, the action to be taken will be specified in the decision.

When the hearing decision upholds the county, the following actions will be taken.

If the household had continued to receive food stamps on the basis authorized prior to the appealed action, immediate action will be taken to close the case or reduce the household's allotment. No new notice of adverse action will be issued because the hearing decision will serve as the notice of action.

An overpayment will be prepared if the household was overissued any benefits during the appeal process. The overpayment will include any months when the household continued to receive benefits pending the receipt of the decision.

See [FSC 15400] for instructions on completing an overpayment.

The taxpayer has thirty (30) days from the mailing date of the Intercept Notice to file a written request for a hearing. All hearing requests will be sent to Overpayments Recovery Unit (ORU) of Program Accounting who maintains a chronological register of the hearing results to ensure each request is acted upon in a timely manner. After the identifying information is placed on the register, a copy of the request will be sent to the county office which originated the case. A copy will be sent to the Appeals and Hearings Section. (Exception: If the taxpayer has moved to a different county, the county copy along with any case records will be forwarded to the current county of residence.) The county office is required to complete Form DHS-1203, County Office Hearings Statement, and forward it to the Hearing Officer so that it will be received at least two (2) days before the hearing.

If the taxpayer is unable to be present on the date the hearing is scheduled, the hearing may be rescheduled once at the taxpayers request. After that, the request for hearing will be considered abandoned. The rehearing must also be held within the thirty (30) day period from the date of the request. If the taxpayer does not appear at the hearing or give notice of inability to appear at least 24 hours before the hearing, the request will be considered abandoned. All rescheduling will be recorded on the Chronological Register by the ORU.

Accompanying the hearing request, in a pending file, will be a set of hearing forms. The hearing forms packet will contain an acknowledgement letter (Form SS-RR) and a hearing statement. These forms will be completed when the hearing is scheduled and conducted. When the acknowledgement letter is mailed to the taxpayer, a copy is held in the pending file, a copy is sent to the Hearing Officer, and a copy is sent to the County Office.

When the hearing packet is received from the ORU, copies of this information along with a memorandum from the Appeals and Hearings Section are sent to the county office of the county of residence of the appellant. The memorandum advises the county office to prepare a county statement to establish the validity of the overpayment. This should be submitted to Appeals and Hearings within seven days of the receipt of the memorandum from Appeals and Hearings.

The procedures described in [FSC 16512] and [16530-16536] will also apply to STRI Hearings.

16600 Disqualification For Intentional Program Violation

An intentional violation of the Food Stamp Program occurs when an individual intentionally:

1. Makes false or misleading statements to qualify for the Program or to obtain benefits to which the household is not entitled.
2. Misrepresents, conceals or withholds facts to qualify for the Program or to obtain benefits to which the household is not entitled; or
3. Commits any act that constitutes a violation to the Food Stamp Regulation or any State statute relating to the use, presentation, transfer, acquisition, receipt or possession of food stamp coupons.

A determination of an intentional program violation (IPV) is made either through a court of law or a hearing process. The hearing process is known as an Administrative Disqualification Hearing and is administered through the Appeals and Hearings Section of the Office of General Counsel. Penalties in the form of disqualifications are imposed against individuals found guilty of an IPV through either process.

This section describes both the hearing process and the imposition of penalties on individuals disqualified either through a court of law or an Administrative Disqualification Hearing.

Administrative Disqualification Hearings are conducted:

• To permit the State to disqualify from the Food Stamp Program for a certain period of time or permanently those individuals found to have committed intentional program violations; and

• To allow the State to retain 50% of the value of collected overissuances resulting from an intentional program violation.

Clear written rules of procedures for Administrative Disqualification Hearings (Form DHS-1206) will be made available by the Appeals and Hearings Section to any interested party.

Administrative Disqualification Hearings are conducted when one or more acts of IPV have been established through documentary evidence and one of the following conditions is met:

1. Civil or criminal prosecution through the court system is not warranted;
2. The appropriate legal authority declined prosecution; or
3. No action was taken by the legal authority within a reasonable period of time resulting in withdrawal of the request to prosecute.

Administrative Disqualification Hearings are not to be conducted if the amount the individual obtained because of a suspected IPV is under $35.00 or if the value of the ineligible items purchased with food stamps is less than $35.00. The $35.00 minimum may be a cumulative amount.

An Administrative Disqualification Hearing will not be initiated against an individual whose case is currently in the prosecutor's office or if action has been taken against the individual by the Prosecutor or the court of appropriate jurisdiction unless another unrelated IPV has occurred.

Administrative Disqualification Hearings may be combined with other hearings 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 hearings are combined, the time frames for conducting Administrative Disqualification Hearings will be followed unless the household waives the 30 day advance notice requirement for disqualification hearings. 

The Appeals and Hearings Section of the Office of General Counsel (OGC) conducts Administrative Disqualification Hearings and determines if intentional program violations have occurred.

Administrative Disqualification Hearings will be conducted by a Hearing Officer who does not have personal interest or involvement in the case. The same Hearing Officers who conduct Administrative Hearings will also conduct Disqualification Hearings and will be subject to the same requirements.

An Administrative Disqualification Hearing may be initiated by either the Overpayment Unit or the Fraud Investigation Section of OGC. Each procedure is described below.

It is the responsibility of the county office to have sufficient documentation to present at an Administrative Disqualification Hearing before the case is referred to the Overpayment Unit as a suspected IPV via EMS-217, Summary of Circumstances and/or Fraud. (An EMS-216, Summary of Food Coupon Overissuance, must accompany the EMS-217. The Overpayment Unit will review the EMS-216 and EMS-217 to determine if the case is to be a) referred to the Fraud Section for possible prosecution, b) referred for an Administrative Disqualification Hearing or c) referred for non-fraud collection. If a hearing is requested, a copy of the request will be sent to the county office.

The Fraud Investigation Section determines which cases referred to their office are to be subsequently referred for prosecution. Cases in which an IPV is established and which are not referred for prosecution, will be referred for an Administrative Disqualification Hearing. The Overpayment Unit will notify the county office that a disqualification hearing will be held.

16721 Cases Referred by the Overpayment Unit

An Administrative Disqualification Hearing File must be prepared at the time the county office receives notification from the Overpayment Unit that a hearing is to be held. A copy of the file must be sent to the Appeals and Hearings Section within seven calendar days of receipt of the notification. The original file will be retained in the county office.

The file will contain:

1. A completed DHS-1208, Food Stamp Intentional Program Violation statement; and
2. Any supporting documentary evidence upon which the suspected IPV was established. Examples of material which may be considered documentary evidence include applications, change reports forms, collateral statements, income statements, copies of award letters and verification of resources.

When cases are prepared for an Administrative Disqualification Hearing by the Fraud Investigation Section, the Overpayment Unit will send copies of documentation gathered by the Fraud Investigation Unit to the county office. This will become the Administrative Disqualification Hearing File. The documentation will be sent at the time the memorandum is sent by the Overpayment Unit to the county office advising that an Administrative Disqualification Hearing will be held. Copies of this documentation plus copies of food stamp applications signed during the time of the alleged overissuance and IPV will be sent to the Appeals and Hearings Section by the Overpayment Unit.

The county office will not have to send copies of the Administrative Hearing File to the Appeals and Hearings Section. The case record and original applications will be returned to the county office from the Fraud Investigation Section. Neither the case record nor the applications are to be destroyed as long as an Administrative Disqualification Hearing is pending. The Fraud Investigation Section retains all other original evidence which may be obtained from the Fraud Section when needed.

The Fraud Investigation Unit will prepare the Administrative Disqualification Hearing State (DHS-1208). It will be attached to the documentation when it is sent to the county office. It is the responsibility of the county office to review this information prior to the hearing and to present the evidence at the hearing. If any questions arise after receipt of this documentation, the county office must contact the Fraud Investigation Section prior to the date of the hearing to resolve the issue. The Fraud Investigator's name will appear on the DHS-1208. If this individual is needed for inquiry or testimony at the hearing, the county office will contact the Administrator, Fraud Investigation Unit, directly to request that this individual be present at the hearing.

If at any time prior to the time of the Administrative Disqualification Hearing the county office feels that there is not sufficient evidence on which to conduct a hearing, the Appeals and Hearings Section should be contacted immediately so that the hearing can be cancelled and the case administratively withdrawn. (This does not apply to cases referred by the Fraud Section.)

The Appeals and Hearings Section must notify the accused individual at least 30 days in advance of the date the hearing is scheduled. The notice must be mailed by certified mail, return receipt requested. The notification must include the following information.

• The date, time and place of hearing.

• The charges against the household member.

• A summary of the evidence (Administrative Disqualification File) and where and how it may be examined.

• A warning that if the accused individual fails to appear for the hearing, the decision will be based solely on the evidence provided by the county office.

• A warning that if the hearing decision determines that an intentional program violation has occurred, a disqualification period will be imposed according to the following schedule: six months for the first violation; twelve (12) for the second violation; and permanently for the third violation.

• A listing of the household member's rights during the hearing.

• A statement that the State or Federal government may still prosecute the household member in civil or criminal court action and collect the overissuances.

• A statement that the client may contact the county office for the name and telephone number (if available) of a person who can give free legal advice. If free legal advice is not available, the county office should provide the number of the lawyer referral service of the local Bar Association.

• A statement that the household member or representative has 10 days from the date of the scheduled hearing to present good cause for failure to appear in order to have the hearing rescheduled.

• A copy of DEMS' published hearing procedures or a statement that a copy of the hearing procedures is available upon request.

The Appeals and Hearings Section uses form SS-255, Advance Notice of Your Administrative Disqualification Hearing, for this purpose. A statement attached to the SS-255 contains a space for the individual to name any persons he wishes to have subpoenaed to present testimony on his behalf at the hearing. A waiver of the right to subpoena witnesses is also provided.

Individuals accused of intentional program violations may waive their rights to an Administrative Disqualification Hearing.

When a case is referred for an Administrative Disqualification Hearing, the Appeals and Hearings Section must advise the individual in writing, that he may waive his right to an Administrative Disqualification Hearing.

The written notification must contain the following information.

• The date by which the signed waiver must be received by the Appeals and Hearings Section.

• A signature blank for the accused individual and the head of the household if the accused individual is not head of the household.

• A statement that the accused individual has the right to remain silent concerning the charges and that anything said or signed by the individual concerning the charges can be used in a court of law.

• The fact that a waiver will result in disqualification and a reduction in food stamps during the period of disqualification even if the accused individual does not admit the charges.

• An opportunity for the accused person to admit the charges or to waive the hearing without admitting the charges.

• The telephone number to call for additional information.

• The fact that any remaining eligible household members will be held responsible for repayment of the resulting claim.

• That the accused individual will be notified at least 30 days in advance of the date the hearing is scheduled if he chooses not to waive the hearing.

The Appeals and Hearings Section uses form SS-257, Waiver of Right to an Administrative Disqualification Hearing, for this purpose. (A copy of the signed SS-257 will be sent to the county office.)

The Fraud Investigations Unit may also obtain a waiver to an Administrative Disqualification Hearing from the accused individual during the course of an investigation and prior to referral to the Appeals and Hearings Office. Form DHS-267, Waiver of Hearing and Disqualification Agreement, is used for this purpose. Upon receipt of a signed DHS-267, Fraud Investigations will forward the form to the County Office so that the appropriate disqualification may be imposed.

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

When the Appeals and Hearings Section has proof that the household member accused of committing an IPV has received a timely, advance notice of the hearing, or has refused such notice, then the Appeals and Hearings Section has fulfilled the notice requirements and can proceed with the hearing. When neither proof of receipt nor proof of refusal exists, and the household member fails to appear, the Appeals and Hearings Section has not met its regulatory obligation and cannot proceed with the hearing. If the household member appears for the hearing but establishes that the notice was not received 30 days prior, the Hearing Officer shall determine in consultation with the household member whether to allow additional time for this individual to submit documents to support his claim or to reschedule the hearing. In the absence of proof that the advance notice was received 30 days prior, but the household member admits this fact, then the hearing can proceed.

If the hearing decision determines that an IPV exists, and the household member provides good cause for failing to appear for the initial hearing, the hearing will be rescheduled. The previous decision is invalidated. The decision is made based on information presented at the latter hearing. The same Hearing Officer may conduct both hearings.

At the time the SS-255 (Scheduling Letter) is sent, the accused individual is advised that he has ten calendar days from the date the signs the certified mail receipt to review the Administrative Disqualification Hearing File and request subpoenas.

The county office will provide free copies of the relevant portions of the hearing file if requested by the household or its representative, provided that confidential information is not released. In all cases, the EMS county supervisor or his designee must review the hearing file with the household or its representative. Confidential information which the household is not allowed to contest or challenge may not be used at the hearing or have any bearing on the decision.

Either the individual accused of the IPV or the county office may request that witnesses be subpoenaed to appear at an Administrative Disqualification Hearing. The accused individual will use the attachment to the SS-255 (Scheduling Letter) to request subpoenas. The County Office will be advised by the Appeals and Hearings Section of any witnesses the household has requested to be subpoenaed.

The County Office will have five days from receipt of this notice to request subpoenas for rebuttal witnesses. The County Office may request subpoenas on the reverse side of the County Statement, Form SS-1208. If subpoenas are needed by the county office on any case upon which the Fraud Investigation Section has prepared the County Statement, a copy of this form should be made, subpoenas requested, and sent to the Appeals and Hearings Section.

The Department of Human Services, Office of General Counsel, will issue the subpoenas, pursuant to the terms of agreement and authority of Ark. Stat. Ann. §20-76-103.

A household is allowed a postponement of the scheduled hearing if the request is made at least 10 days in advance of the scheduled hearing or if good cause for failure to appear at the hearing can be shown. However, the hearing cannot be postponed more than 30 days, and the postponement may be limited to one at the discretion of the Administrator of the Appeals and Hearings Section.

If the hearing is postponed, the time limits for processing the hearing will be extended for as many days as the hearing is postponed not to exceed 90 days.

All household members have the right to be certified and participate in the Food Stamp Program while the determination of an IPV is pending. If the action for which the charge has been brought does not affect the household's current circumstances, the household will continue to receive food stamps based on the latest certification. Recertification is based on current circumstances. Benefits will not be continued if the household does not reapply. The county office will terminate or reduce benefits if it has verification that the household is totally ineligible or eligible for fewer benefits (if the household fails to request a fair hearing and continuation of benefits). This is true even if these facts lead to the suspicion of an IPV and a resulting Administrative Disqualification Hearing. For example, the county office may have verification that a household failed to report a change in its circumstances which will cause a reduction in the food stamp allotment. Benefits will be reduced even though DHS has not yet demonstrated through the hearing process that the failure to report involved an IPV.

A household may not be familiar with the rules of order so it is necessary for the hearing officer to make a particular effort to arrive at the facts of a case in a way that makes the household feel at ease.

The hearing shall be attended by a representative of the county office which initiated the suspected IPV and by the household and/or its representative. The hearing may also be attended by friends or relatives upon household consent. If space limitations exist, the hearing officer has the authority to limit the number of persons in attendance at the hearing. The oath will be administered to all persons presenting testimony at the hearing.

The household will be permitted to examine the Administrative Disqualification Hearing File prior to the date of the hearing as well as during the hearing. (See [FSC 16761].) Other rights the household has are:

1. The right to subpoena witnesses on his behalf to appear at the hearing;
2. The right to present his case or to have it presented by a legal counsel or other person;
3. The right to advance arguments without undue interference;
4. The right to question or refute any testimony or evidence, including an opportunity to confront and cross examine adverse witnesses; and
5. The right to submit evidence to establish all pertinent facts and circumstances in the case.

At the Administrative Disqualification Hearing, the Hearing Officer will advise the individual or representative that he may refuse to answer questions during the hearing.

An individual may designate in a signed statement the name of a representative to act in his behalf in viewing the hearing file. If the representative is to act in the individual's behalf in the Administrative Disqualification Hearing, this must be so specified on the signed statement. The statement designating the individual must appear in the hearing file.

The designated representative will receive a copy of all correspondence regarding the hearing proceedings.

The hearing officer will:

1. Insure that all relevant issues are considered;
2. Request, receive, and make part of the record all evidence determined necessary to decide the issues being raised;
3. Regulate the conduct and course of the hearing consistent with due process to insure an orderly hearing;
4. Order, where relevant and useful, additional information from a source mutually satisfactory to the household and DCO; and
5. Provide a summary of the hearing so that a decision may be rendered about the alleged act of IPV.

The Hearing Officer will prepare a recommended decision based on a comprehensive report of the proceedings. The format will consist of an Introduction, Findings of Facts, Conclusions of Law and a Decision. The order may be reviewed by the manager, Food Stamp Section, or designee for policy correctness. The Administrator, Appeals and Hearings Section, will review and sign the order.

Final action (including arriving at a decision and initiating administrative action) must be taken within 90 days of the date the household member is notified in writing that an Administrative Disqualification Hearing has been scheduled.

If the decision is that an IPV has not occurred, the household member will be notified of this decision by the Appeals and Hearings Section in writing. A copy of the decision will be sent to the county office, the Overpayments Unit and to the Fraud Investigation Section if this section was involved in the case.

If the decision is that an IPV has occurred, the original hearing decision and one copy will be sent to the appropriate county office. Copies will also be sent to the Overpayments Unit, to the household and to the Fraud Investigation Section if this section has been involved.

NOTE: The copy is being sent to the household for informational purposes only. The county is still obligated to send the original decision to the household as instructed in [FSC 16800].

16800 Imposing the Disqualification - County Office Actions

When the county office receives a hearing decision finding that an IPV has occurred, a period of disqualification will be imposed against the individual who committed the violation. The disqualification periods are:

• One year for the first violation;
• Two years for the second violation; and
• Permanently for the third violation.

For certain offenses there are specific penalties. See the chart below.

Only the household member found to have committed an IPV will be disqualified. Remaining members may participate if otherwise eligible. The disqualification will be effective with the first day of the month which follows the date the household member received written notification of the hearing decision. Once imposed, a disqualification period continues uninterrupted until completed regardless of whether the food stamp case is open or closed. Upon receipt of a decision, the worker will take the following actions:

• Establish a disqualification period that begins with the month following the month the household received the hearing decision.
• Recalculate the household's budget in accordance with [FSC 1623.2] and complete the Food Stamp Authorization Document (DCO-233). If necessary, the certification period will be shortened to coincide with the end of the disqualification period. The completed DCO-233 will be routed for keying.
• Complete and route the DCO-256 and DCO-19.

  An advance notice of adverse action is not required prior to imposing the disqualification. The DCO-256 serves as notification of the disqualification period and the resulting allotment change.

  A Food Stamp Disqualified Recipient Report, DCO-19, must be completed according to the instructions on the form.

  The DCO-19 must be completed and routed within 10 days of receiving an intentional program violation decision. The form is also completed when an IPV disqualification is imposed. The original is routed to the Central Office, Food Stamp Section, mail slot 1240, in Little Rock. A copy of the form is filed in the case record and retained three years following the date the disqualification has been served. For permanent disqualifications, the form is retained indefinitely.

Federal regulations require all states to use the Disqualified Recipient System (DRS). DRS is the automated system which contains information about individuals disqualified from participating in the Food Stamp Program when the individual has been found guilty of committing an intentional program violation. DRS replaced the DRIPS (Disqualified Recipient Information Program System). DRIPS was discontinued in July, 1989.

Under DRS a Food Stamp Disqualified Recipient Report, DCO-19, is routed to the Central Office Food Stamp Section. The forms are keyed to a DRS data file in Little Rock. The DRS file in then transmitted via modem to the FCS National Computer Center in Kansas City monthly.

The day following transmission of the data file to Kansas City, the Central Office, Food Stamp Section receives an error report of DCO-19's sent to FCS with which DRS had a problem. For example, an DCO-19 is keyed with disqualification number entered as "1" but the national DRS file already has a first offense record in the data file for the individual. If the items on the error report received from FCS can be resolved by the Food Stamp Section, the items are reentered on the DRS and forwarded to FCS at the next available opportunity. However, errors which cannot be resolved by the Food Stamp Section are returned to the DHS County Office for resolution.

The Voice Response Unit (VRU) provides recipient disqualification information for the DRS. The VRU is accessed by using a touch tone telephone, a six digit User ID, and a six digit password. The VRU is accessed by dialing:

1-800-445-9498

The U. S. Department of Agriculture, Food and Consumer Service Voice Response System User's Guide is in the EMSUM 10000 section. It describes the actions required to use the DRS VRU.

The VRU should be accessed:

1. Prior to approving an application from a household which has moved to Arkansas from out of state within the past three months. All adult members of the household should be screened against the DRS VRU.
2. Prior to adding an adult member to an existing food stamp household when the member being added has moved to Arkansas from out of state within the past three months.
3. Prior to imposing a disqualification when the individual appeared on the report "Food Stamp Recipients With Pending/Active Intentional Program Violations". This query is required to determine the proper offense number imposed: first, second, or third offense. Since data from the old DRIPS system has not been updated to the new DRS for Arkansas, it is strongly recommended that the paper case record also be checked in conjunction with the DRS query to determine the correct offense number to impose

Each month the Food Stamp Central Office receives a Match File of DRS cases from FCS. The DRS Match File contains information about individuals who are currently serving disqualification as well as individuals whose disqualification period has not yet been imposed. The DRS Match File is interfaced with a data file of active food stamp recipients. Individuals participating in a food stamp case who are on the DRS Match File are included on a report "Food Stamp Recipients With Pending/Active Intentional Program Violations". The report is sent to the DHS County Office in which the food stamp case is located.

When an individual is included on the "Food Stamp Recipient With Pending/Active Intentional Program Violations" report the county will impose the disqualification as per [FSC 16800]. The DHS County Office uses the report to impose the disqualification. Information printed on the report includes the food stamp case name and case number as well as the following information for the IPV individual:

Name
SSN
Date of Birth
Sex Code
Disqualification Number
Disqualification Start Date
Length of Disqualification                     (99 if permanently disqualified)
Disqualification Decision Date

The following information appears on the report to assist the County Office in obtaining any needed information from the state and/or county which placed the DRS record on the national system:

State of Disqualification

Locality of Disqualification (County Code if State is Arkansas, FIPS Code if State is not Arkansas. A FIPS Code Directory is available in each DHS County Office.)

Contact Title (Job title of individual to contact for information about the disqualified individual, e.g., County Supervisor.)

Contact Organization (Office to contact for information about the disqualified individual, e.g. Yell DHS County Office.)

Contact Phone

Contact Phone Extension (if applicable)

Upon imposition of the disqualification, an DCO-19 is completed by the DHS County Office and a copy is forwarded to the Food Stamp Section. The Food Stamp Section keys the DCO-19 into the DRS file for transmission to FCS.

Upon receipt of a copy of the hearing decision of IPV, the Overpayments Unit will issue a letter to the household. The letter will specify:

1. That the household must make restitution for the related overpayment; and
2. That if an agreement to repay the overpayment is not made within 30 days, the household's food stamp allotment will be reduced to recoup the overpayment.

After the individual who committed the IPV is disqualified, the household continues to be liable for repayment of the resulting overpayment. The remaining household members must begin restitution during the period of disqualification.

If the household agrees to make restitution, but fails to do so, the household's food stamp allotment will be reduced to recoup the overpayment. (The household may also choose to make restitution through recoupment.) Either 20% of the household's monthly food stamp allotment or $10.00, whichever is greater, will be recouped. If the household ceases participation in the Program while the overpayment is being recouped, equivalent cash payments will be required until the overpayment is completely repaid.

See [FSC 15530] for additional information on collection of overpayments.

If the accused individual signs the Waiver of Hearing and Disqualification Agreement (DHS-267) within the specified time frames, the individual will be disqualified as instructed in [FSC 1623.2].

The original signed waiver is routed to the Overpayment Unit. Two copies are sent to the appropriate county office. One copy will be retained in the case record. The second copy will be sent to the disqualified individual with a completed Action Taken on Your Administrative Disqualification Hearing/Waiver (DCO-256).

The period of disqualification will begin with the first month following the date the household member received written notification of the disqualification. (Unless the Fraud Investigations Unit can reasonably expect to get a waiver packet to the county by the 20th of the month, imposition of the penalty will be delayed by the Fraud Investigations Unit until the following month.) If appropriate, the household's certification period will be shortened to end in the month when the disqualification ends. The household of the disqualified member is liable for the overissuance resulting from the IPV.

The Overpayment Unit will contact households which complete the DCO-257 to arrange for repayment to begin. An Food Stamp Intentional Program Violation Repayment Agreement (DHS-254) will be issued to the household.

See [FSC 16800] for complete instructions on disqualifying a household member for IPV.

DCO will disqualify an individual found to have committed an IPV by a court of law for the length of time specified by the court. The disqualification periods for individuals found guilty in a federal, state or local court of trading food stamps for controlled substances will be subject to disqualification for a period of 12 months for the first offense and permanently for the second offense. Individuals found guilty by a court of trading firearms, ammunition or explosives for food stamps will be subject to permanent disqualification for the first offense. If the court does not impose a disqualification period, DCO will impose a disqualification period in accordance with [FSC 16800], paragraphs 1 and 2.

When a court finds that a household member has committed an IPV, the Fraud Investigation Section will inform the county office by memo, with a copy to the Overpayments Unit. Upon receipt of the memo, the county office will immediately complete an Notice of Court Decision (DCO-259), and send it to disqualified household member to initiate the disqualification.

NOTE: Court decisions which specify that NO disqualification be imposed do not require an DCO-259.

An DCO-233 will be completed indicating the new allotment, household size, income, etc. The certification period will be shortened to coincide with the disqualification period if necessary. The income and resources of the disqualified member are handled according to procedures described in [FSC 1623.2].

An Food Stamp Intentional Program Violation Repayment Agreement (DCO-254) will be sent to the household by the Overpayments Unit upon notification of a determination of an IPV by a court of law

16900 Appeal Rights After the Hearing

No further administrative appeal procedure exists after an adverse decision through an Administrative Disqualification Hearing. The determination of an IPV resulting from an Administrative Disqualification Hearing cannot be reversed by another Administrative Disqualification Hearing. The household member is, however, entitled to seek relief in a court having appropriate jurisdiction since the period of disqualification may be subject to change through a court decision.

An individual found guilty of an IPV through an Administrative Disqualification hearing has the right to judicial review.

A petition must be filed in the Circuit Court of any county in which the petitioner lives or does business or in the Circuit Court of Pulaski County within 30 days from the date the petitioner received the decision. Copies of the petition are served on the Agency and other parties of record by personal delivery or mail.

Within 30 days from the date of the service of the petition on the agency or additional time granted by the Court, not to exceed 90 days total, DEMS must transmit to the Court, the original or a certified copy of the entire record of the hearing under review.

The review shall be conducted by the Court without jury and will be confined to the record unless a question of irregularity in the procedure exists which is not indicated in the record. Testimony may then be taken before the Court.

In cases where the conviction of an individual for IPV is reversed by a court of appropriate jurisdiction, DCO will reinstate the individual in the Program if the household is otherwise eligible. Benefits that were lost as a result of the disqualification will be restored in accordance with the procedures specified in [FSC 13330]. The county office will be advised if an Administrative Disqualification Hearing is reversed so that the penalty can be removed.