1/01/89

Any household adversely affected by an action of the Division of County Operations (DCO) must be provided an opportunity to appeal this action through a hearing process called an administrative hearing. The Office of Appeals and Hearings of the Office of Chief Counsel conducts all administrative hearings and renders decisions based upon state policy and regulations. Administrative hearing policy appears in [FSC 16200-16552].

The Office of Appeals and Hearings also conducts administrative disqualification hearings. An administrative disqualification hearing is one of the procedures used to determine if an individual has committed an intentional program violation. Policy on administrative disqualification hearings appears in [FSC 16600-16920].

1/01/89

The Office of Appeals and Hearings must process each request for an administrative hearing under uniform rules of procedure. The uniform rules of procedures are available in the Office of Appeals and Hearings for public inspection and copying. The uniform rules of procedure include 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 individuals who request a hearing.

1/01/89

At the time of an initial application interview each household must be advised orally of the following information:

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

A household may request an administrative hearing to appeal any action the household believes has adversely affected its Food Stamp Program participation. A household may appeal when an application for food stamps is denied, when food stamp benefits are decreased, when a food stamp case is closed, when food stamp benefits are believed to be inadequate, or when a request for restored benefits is denied.

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

1/01/89

A request for a hearing is defined as any clear expression, oral or written, by the household or a representative that the household 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 the household's appeal is unclear, the Office of Appeals and Hearings may request that the household clarify the grievance.

Upon request, DCO must make available, without charge, the specific materials necessary for a household or a representative to determine if a hearing should be requested or to prepare for a hearing. County office personnel will issue an Appeal for Fair Hearing, (DHS-1200) to households expressing an interest in an administrative hearing. County office personnel will assist the household to complete the DHS-1200 if such assistance is requested. (The county may document verbal requests for a hearing on a DHS-1200.) A household may also request an administrative hearing by sending a letter to the Office of Appeals and Hearings or by completing the back of a manually issued Notice of Action (DCO-1).

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

1/01/89

A household may designate in writing a representative to act on the household’s behalf during the hearing process. The household must specify in the statement whether the representative is to review the administrative hearing file, to represent the household 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 must receive a copy of all information provided to the household by DCO regarding the administrative hearing proceedings.

1/01/89

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 household may request a hearing to dispute current level of benefits at any time within the certification period.

Exception 2: A hearing to dispute denial of a household's request for restored 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].

1/01/89

The Office of Appeals and Hearings 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.  (The DHS county office will handle untimely requests for an administrative hearing as a request for restoration of benefits.  See [FSC 13300] for instructions on handling requests for restoration of benefits.)
2. The household or representative withdrew the request in writing.
3. The household or representative failed, without good cause, to appear at the scheduled hearing. (The Office of Appeals and Hearings will determine good cause.) When the household fails to appear without good cause, the hearing is considered abandoned and the Office of Appeals and Hearings immediately dismisses the request.

The Office of Appeals and Hearings sends a final order stating that the hearing request has been dismissed to the county office. Since households are advised that hearings must be rescheduled in advance, no additional notification is sent to the household. Should the Office of Appeals and Hearings determine that the household had good cause for failure to appear, the county office will be so notified.

1/01/89

16510 Beginning the Administrative Hearing Process

Requests for an administrative hearing submitted to the county office will be forwarded immediately to the Office of Appeals and Hearings. If the household wants the hearing to be held at a location other than the county office, the Office of Appeals and Hearings should be so notified by the county office.

When a request for a hearing is received, the Office of Appeals and Hearings will send a DHS-1210 to the appropriate county office to request information about whether the appeal request was submitted timely. If the request was timely, the county office must prepare an administrative hearing file (including the county statement) and return it to the Office of Appeals and Hearings. If the appeal was not filed timely, the county office must note this on the DHS-1210. The county office must respond within seven calendar days of receipt of this memorandum.

1/01/89

If an individual has timely requested an administrative hearing, the county office will prepare an administrative hearing file. This file must be separate and apart from the case record.

A copy of the administrative hearing file must be submitted to the Office of Appeals and Hearings within seven calendar days of the date the DHS-1210 from the Office of Appeals and Hearings was received in the county office.

Information will not be included in the administrative hearing file unless the household will be allowed to review the information. An example of information that 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 that may not be revealed to the household. Only information that 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 – The file must include notices sent to the household about the action under appeal. If a notice was system generated, documentation of the date generated and notice type must appear.
2. Documentary Evidence – The file must include documentary evidence that supports the notice of action upon which the household is basing the appeal. Examples, of documentary evidence include, but are not limited to, the application submitted by the household, authorizing documents or narrative, collateral statements, income statements, resource verification, county referral to E&T Program or the Workfare Program, and witness statements.
3. County Statement (DHS-1203) – The file must 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 must be avoided.

Five copies of the DHS-1203 must be prepared. The original will be sent to the plaintiff prior to the date of the hearing. A copy will be sent to the appropriate Area Manager.  A copy will be included in the hearing file sent to the Office of Appeals and Hearings. A copy will be included in the hearing file retained in the county office. A copy will be 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.)

1/01/89

The household has ten days from the receipt of a form letter from the Office of Appeals and Hearings to go to the county office and review the administrative hearing file. The designated representative may accompany the household. The ES Supervisor or a designee must be present during the review.

1/01/89

Either the household or the county office has the right to subpoena witnesses to testify at an administrative hearing.

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

The Office of Appeals and Hearings will notify the household of its right to subpoena witnesses.

Following review of the hearing file, the household will notify the Office of Appeals and Hearings of any individuals who must be subpoenaed on the household’s behalf.

When the administrative hearing file is submitted, the county office must advise the Office of Appeals and Hearings of any witnesses to be subpoenaed to testify on behalf of the county office. The Office of Appeals and Hearings will notify the county office 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, Chief Counsel, will issue the subpoenas, pursuant to the terms of agreement and authority of Ark. Code Ann. 20-76-103.

1/01/89

A household's food stamp benefit amount may be continued at the same amount pending the administrative hearing decision if the household is currently certified; and 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 adequate notices sent at the time the action is taken.)

Both the Appeal for Fair Hearing (DHS-1200) and the manually issued Notice of Action (DCO-1) provide 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 Office of Appeals and Hearings will assume that continuation is desired.

If an administrative hearing and continuation of benefits is requested during the 10-day advance notice period, the household's food stamp benefits 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 benefit amount must be reinstated to the basis authorized immediately prior to the notice. Reinstatement must occur within 5 working days of the receipt of the hearing request. A supplemental issuance must be authorized when necessary. (See [FSC 13200] for instructions on authorizing supplemental benefits.)

Unless one of the following situations occurs, the continued benefit level will not be changed.

1. If the household's certification period expires the household must reapply and be determined eligible based on current circumstances. Food stamp benefits will be issued on the basis determined at recertification.

2. If a change that affects the household's eligibility or benefit amount occurs, the household's eligibility and food stamp benefit amount must be recalculated based on the change in circumstances. If the change results in case closure or a reduction in benefits, 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. If a mass change that affects the household occurs, the change will be made regardless of the status of the administrative hearing request.

NOTE: At a mass change, participation at the prior level will be reinstated only if an administrative hearing is requested based upon the change and the issue being contested is that the food stamp benefit amount was incorrectly calculated or that federal law or regulation was misapplied or misinterpreted by DCO.

4. When a hearing officer makes a preliminary finding that the sole issue is based on federal law, regulation or policy and that DCO has not incorrectly calculated the budget or misapplied or misinterpreted the policy, the household's case will be closed or the food stamp benefits will be reduced as specified in the notice of action. (The hearing officer will notify the DHS county office in writing of this decision.)

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

1/01/89

Households subject to semi-annual reporting have 10 days from the date the automated notice of adverse action was mailed to request an administrative hearing and continuation of benefits.

When a semi-annual reporting household’s benefits are being continued, the household must continue to submit a semi-annual report form. Except for the factor or factors upon which the appeal was based, the county will adjust the household’s benefits during the continuation period to take into account reported changes.

1/01/89

Upon receipt of the administrative hearing file, the Office of Appeals and Hearings 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 will be scheduled unless the household requests a face-to-face interview. Telephonic hearings will be conducted through a conference call involving the hearing official, the household, and county office personnel. All participants except the hearing officer may be in the same location. A telephonic hearing may not be utilized unless the household agrees to the arrangement. A face-to-face hearing will be held when requested by the household.

1/01/89

The Office of Appeals and Hearings 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 will if necessary for the household to receive a decision and (if the decision so indicates) restoration of benefits before they leave the area.

1/01/89

In the interest of providing timely services to all households, the Office of Appeals and Hearings may respond to a series of individual requests for hearings by conducting a single group hearing. A group hearing may be conducted if related issues of state and/or federal law, regulation or policies 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 will be permitted to present its case or have the case presented by a representative.

1/01/89

The Office of Appeals and Hearings 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 the name, address and telephone number of the office to notify if the household will not be able to attend the scheduled hearing. The notice will also contain a statement that the Office of Appeals and Hearings will dismiss the hearing request if the household or designated representative fails to appear for the hearing without good cause and any additional information that 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.

1/01/89

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 the household postpones a hearing for 10 days, the final action will be required within 70 days of the date of the request for the hearing.

The hearing officer may postpone a hearing when, in his or her judgement, a postponement is warranted. Upon the officer's determination that a postponement is warranted, the hearing will be adjourned and rescheduled 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.

1/01/89

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

1/01/89

The DHS county office must provide an area where an administrative hearing can be conducted privately.

The county must be prepared for the hearing.

If legal assistance is needed, the ES supervisor should request assistance by memorandum to the Chief Counsel, Office of Chief 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 enough with the case that he or she can 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.

1/01/89

The Office of Appeals and Hearings 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 county office 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 a representative.

1/01/89

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 individual. The county will be represented by the county office worker responsible for the case, by the ES supervisor or his designee or by a DHS attorney (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 representative will read the county office statement. The county office will present evidence and question any witnesses 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 or her case. He or she may do so alone or with the aid of others. The plaintiff or representative will be given the opportunity to present witnesses, to advance arguments, to 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 or her evidence in a logical manner, the hearing officer will assist him or her. The county office representative will be given the opportunity to present additional evidence and to question the plaintiff, his or her designated representative, or witnesses. Questioning of all parties will be confined to the issue involved. However, other eligibility factors may be dealt with when appropriate.

When all relevant information has been gathered, the hearing officer will summarize the issues, the evidence, the agency policy, and will explain that he or she will write the final decision which may be reviewed by the supervisor or manager of the Office of Appeals and Hearings.

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

1/01/89

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 a 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 manager or supervisor of the Office of Appeals and Hearings may review the decision. The signed decision is binding on DCO and cannot be changed unless overturned in a court of law.

1/01/89

A hearing decision consists of four parts: Introduction, Finding of Fact, Conclusions of Law, and Decision. Each of these parts is described below.

1. Introduction - This part of the decision summarizes the reason for the appeal. Any pertinent information regarding the appeal must be included. The date and location of the hearing must appear. The participants in the hearing must be named.
2. Findings of Fact - The facts used to make a decision appear in this part. Any testimony presented must be summarized in this part.
3. Conclusions of Law - This summarizes the food stamp policy that applies to the issue under appeal.
4. Decision - This part states the decision rendered. This decision must be based upon the facts presented and the appropriate conclusions of law. The decision must state if the county office was correct in taking the adverse action. If the county was incorrect, the action must be overturned by the decision.

1/01/89

Once a hearing decision is rendered, both the household and the county office will be notified in writing. The notice must supply the following information:

1. The decision
2. The reason for the decision as supported by food stamp policy or federal regulation
3. The impact of the decision on the household's food stamp benefits as decided through the hearing process
4. The household’s right to a judicial review of the hearing decision and that this review may result in a reversal of the decision

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

1/01/89

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 where the household lives or does business or in Pulaski County within 30 days from the date the household received the administrative hearing decision. Copies of the petition are served on DHS and other parties of record by personal delivery or mail.

Within 30 days from the date of the service of the petition on DHS (or additional time granted by the court, not to exceed 90 days total), the Office of Chief 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 but is not indicated in the record. Testimony may then be taken before the court.

1/01/89

The county office will take prompt action to implement decisions from the Office of Appeals and Hearings and assure that the decision is reflected in the household's food stamp benefit amount within the 60 days from the date the hearing was requested.

1/01/89

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 stamp benefits 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 benefit amount, the benefit amount 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 office may take longer than 10 days to increase the food stamp benefit amount if the household's next benefits will be authorized within the 60 day administrative hearing processing period.

Restored benefits will be authorized for any earlier months when the household received an under-issuance of food stamp benefits 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 under-issuance occurred due to the issue under appeal. If a household continued to receive food stamp benefits 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, food stamp benefits will be restored for those months where no benefits were received due to the closure. Benefits will not be restored for any month when food stamp benefits were continued. Benefits will not be restored for any month that would not have been included in the original period of certification. Benefits will not be restored for the current month or future months that 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.

1/01/89

When the hearing decision upholds the county, and the household had continued to receive food stamp benefits on the basis authorized prior to the appealed action, the case will be closed or the benefit amount will be reduced. No new notice of adverse action will be issued. The hearing decision serves as the notice of action.

An overpayment will be prepared since benefits were over-issued 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.

1/01/89

The taxpayer has thirty days from the mailing date of the intercept notice to file a written request for a hearing. All disqualification hearing requests will be sent to Overpayments Recovery Unit (ORU) where a chronological register of hearing results is maintained. After the identifying information is placed on the register, a copy of the request will be sent to the county office that originated the case and to the Office of Appeals and Hearings. (Exception: If the taxpayer has moved to a different county, the county copy along with any case records ill be forwarded to the current county of residence.)

Accompanying the hearing request, in a pending file, will be a set of hearing forms prepared by the ORU. The hearing packet will contain an acknowledgement letter 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 Office of Appeals and Hearings are sent to the DHS county office. The memorandum advises the county office to prepare a county statement to establish the validity of the overpayment. The county statement should be submitted to the Office of Appeals and Hearings within seven days of the receipt of the memorandum from the Office of Appeals and Hearings.

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

If the taxpayer is not present on the date the hearing is scheduled, the hearing may be rescheduled once at the taxpayer’s request. After that, the request for hearing will be considered abandoned. (The rehearing must also be held within the thirty-day period from the date of the original request for a hearing.) If the taxpayer does not appear at the rescheduled hearing or give notice of inability to appear at least twenty-four hours before the hearing, the request will be considered abandoned. All rescheduling will be recorded on the chronological register by the ORU.

4/01/90

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 was not entitled.
2. Misrepresents, conceals or withholds facts to qualify for the Program or to obtain benefits to which the household was not entitled; or
3. Commits any act that constitutes a violation to the federal regulations or any state statute relating to the use, presentation, transfer, acquisition, receipt or possession of food stamp benefits or electronic benefits transfer (EBT) cards.

A finding of 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 Office of Appeals and Hearings. Penalties in the form of a period of disqualification 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.

11/01/89

Administrative disqualification hearings are conducted for the following reasons:

• To permit the State to disqualify from the Food Stamp Program those individuals found to have committed intentional program violations.

• To allow the State to retain a percentage of the value of the money collected from overpayments resulting from an intentional program violations

The Office of Appeals and Hearings will make clear written rules of procedures for administrative disqualification hearings (DHS-1206) available to any interested party.

11/01/89

Administrative disqualification hearings are conducted when one or more acts of IPV have been established through documentary evidence if one of the following conditions has been met:

• Civil or criminal prosecution through the court system is not warranted.
• The appropriate legal authority declined prosecution.
• The legal authority took no action within a reasonable period of time resulting in withdrawal of the request to prosecute.

11/01/89

Administrative disqualification hearings are not 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 stamp benefits 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 when the individual’s case is currently in the prosecutor's office, or when the prosecutor or a court of appropriate jurisdiction has taken action against the individual unless another unrelated IPV has occurred.

1/01/89

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 proper 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.

1/01/89

The Office of Appeals and Hearings conducts administrative disqualification hearings and determines if intentional program violations have occurred.

A hearing officer who does not have personal interest or involvement in the case will conduct administrative disqualification hearings. The same hearing officers who conduct administrative hearings will also conduct disqualification hearings and will be subject to the same requirements.

1/01/89

Either the Overpayment Unit or the Fraud Investigation Section may initiate an administrative disqualification hearing. Each procedure is described below.

1/01/89

The DHS county office must have sufficient documentation to present at an administrative disqualification hearing before the case is referred to the Overpayment Unit as a suspected IPV. The Overpayment Unit will determine if the case is to be referred to the Fraud Section for possible prosecution, referred for an administrative disqualification hearing, or referred for non-fraud collection. If a hearing is requested, a copy of the request will be sent to the county office.

1/01/89

The Fraud Investigation Unit determines which cases referred to their office are to be subsequently referred for prosecution. When an IPV is established but the case is not referred for prosecution, the case will be referred for an administrative disqualification hearing. The Overpayment Unit will notify the DHS county office that a disqualification hearing will be held.

1/01/89

16721 Cases Referred by the Overpayment Unit

An administrative disqualification hearing file must be prepared when 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 Office of Appeals and Hearings within seven calendar days of receipt of the hearing notification. The original file will be retained in the county office.

The file must contain a completed Food Stamp Intentional Program Violation Statement (DHS-1208) and any supporting documentary evidence. Examples of documentary evidence include applications; change reports forms, collateral statements, income statements, copies of award letters and verification of resources.

1/01/89

When the Fraud Investigation Section prepares cases for an administrative disqualification hearing, the Overpayment Unit will send copies of documentation gathered by the Fraud Investigation Unit to the county office. The documentation will be sent with the memorandum advising that an administrative disqualification hearing is to be held. This documentation will become the administrative disqualification hearing file. 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 Office of Appeals and Hearings by the Overpayment Unit.

The county office will not send copies of the Administrative Hearing File to the Office of Appeals and Hearings. 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 keeps all other original evidence.

The Fraud Investigation Unit will prepare the Administrative Disqualification Hearing Statement (DHS-1208) and send it to the DHS county office with the documentation. The county office must review this information prior to the hearing and must present the evidence at the hearing. If any questions arise after receipt of the 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 he or she is needed for inquiry or testimony at the hearing, the county office will contact the Administrator, Fraud Investigation Unit, to request this individual’s presence at the hearing.

1/01/89

If at any time prior to the time of the administrative disqualification hearing the county office feels that there is not sufficient evidence to conduct a hearing, the Office of Appeals and Hearings should be contacted immediately. The hearing will be cancelled and the case administratively withdrawn. (This does not apply to cases referred by the Fraud Section.)

1/01/89

The Office of Appeals and Hearings must notify the accused individual at least 30 days in advance of the hearing date. 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)
• An explanation of where and how the evidence 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 is that an intentional program violation has occurred, a disqualification will be imposed
• 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 over-issuance
• A statement that the household member 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 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 DCO’s published hearing procedures or a statement that a copy of the hearing procedures is available upon request

The Office of Appeals and Hearings uses an Advance Notice of Your Administrative Disqualification Hearing (DHS-255) for this purpose. A statement attached to the DHS-255 provides a space for the accused to name any persons he or she wishes to have subpoenaed to present testimony on his or her behalf at the hearing. A waiver of the right to subpoena witnesses is also provided.

8/01/93

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 Office of Appeals and Hearings must advise the individual in writing, that he or she may waive his or her right to an administrative disqualification hearing.

The written notification must contain the following information:

• A signature blank for the accused individual and the casehead if the accused individual is not the casehead
• 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
• A statement that a signed waiver will result in disqualification and a reduction in food stamp benefits during the period of disqualification even if the accused individual does not admit the charges
• An opportunity for the accused individual to admit the charges or to waive the hearing without admitting the charges
• The telephone number to call for additional information
• A statement that any remaining eligible household members will be held responsible for repayment of the resulting claim
• A statement that the accused individual will be notified of the hearing date at least 30 days in advance if he or she chooses not to waive the hearing

The Office of Appeals and Hearings uses a Waiver of Right to an Administrative Disqualification, Hearing for this purpose. (A copy of the signed waiver will be sent to the county office.)

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

8/01/93

The hearing must be accessible to the member of the household suspected of the IPV.

When the Office of Appeals and Hearings has proof that the household member accused of committing an IPV has received timely advance notice of the hearing, or has refused such notice, then the Office of Appeals and Hearings 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 Office of Appeals and Hearings 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 must consult with this individual and determine if the individual will be allowed additional time to submit documents to support his claim or the hearing will be rescheduled. If there is no proof that the advance notice was received 30 days prior, but the household member admits this, then the hearing can proceed.

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

1/01/89

At the time the scheduling letter is sent, the accused individual is advised that he or she has ten calendar days from the date the certified mail receipt is signed to review the administrative disqualification hearing file and request subpoenas.

The county office must provide free copies of the relevant portions of the hearing file if requested by the household or a representative so long as no confidential information is released. In all cases, the county administrator or a designee must review the hearing file with the household or a representative. Confidential information that the household is not allowed to contest or challenge is inadmissible at the hearing and may not have any bearing on the decision.

1/01/89

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 scheduling letter to request subpoenas. The Office of Appeals and Hearings will advise the county office 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 Administrative Disqualification Hearing Statement (DHS-1208). If subpoenas are needed by the county office on any case where the Fraud Investigation Section prepared the county statement, a copy of this form should be used to request the subpoenas from the Office of Appeals and Hearings.

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

1/01/89

A household is allowed a postponement of a 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 Office of Appeals and Hearings.

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.

1/01/89

All household members have the right to 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 will be based on current circumstances. Benefits will not be continued if the household does not reapply.

The county office will terminate or reduce benefits if there is verification that the household is totally ineligible or eligible for fewer benefits and the household fails to request an administrative 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 circumstances that will cause a reduction in food stamp benefit amount. Benefits will be reduced even though DHS has not yet demonstrated through the hearing process that the failure to report involved an IPV.

1/01/89

The hearing officer should make a particular effort to arrive at the facts of a case in a way that makes the food stamp household feel at ease.

1/01/89

The hearing be attended by a representative of the county office that initiated the suspected IPV and by the household and/or representative. With the household's consent, friends or relatives may also attend the hearing.  If space limitations exist, the hearing officer may limit the number of persons allowed to attend at the hearing.  The oath will be administered to all persons presenting testimony at the hearing.

1/01/89

The household will be allowed to examine the administrative disqualification hearing file prior to the date of the hearing and during the hearing. (See [FSC 16761].) The household has other rights as listed below:

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

The hearing officer will advise the individual or representative that he or she may refuse to answer questions during the hearing.

1/01/89

An individual may designate in a signed statement the name of a representative to act in his behalf by reviewing the hearing file. If the representative is to act on the individual's behalf during 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.

1/01/89

The hearing officer has the following duties:

• To insure that all relevant issues are considered
• To request, receive, and make part of the record all evidence determined necessary to decide the issues being raised
• To regulate the conduct and course of the hearing consistent with due process to insure an orderly hearing
• To order, where relevant and useful, additional information from a source mutually satisfactory to the household and DHS
• To provide a summary of the hearing so that a decision may be rendered about the alleged act of IPV

1/01/89

The hearing officer will prepare a 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 administrator of the Office of Appeals and Hearings may review and sign the order.

1/01/89

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.

1/01/89

If the decision is that no IPV has occurred, the household member will be so notified by the Office of Appeals and Hearings 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.

1/01/89

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 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].

0801/04

16800 Imposing the Disqualification - County Office Actions

See FSC 16830 when an individual signs a waiver of their rights to an administrative hearing. See FSC 16840 when and individual is found guilty of an IPV through a decision of court.

An individual found to have committed an intentional program violation (IPV) trough the administrative disqualification hearing process will be disqualified from participating in Food Stamp Program. When the county office receives a hearing decision that an IPV had occurred, a period of disqualification will be imposed against the individual who committed the violation.  For offenses that occurred or began on or after October 1996, the disqualification periods are listed below:

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

For offenses that occurred or began prior to March 1979, no disqualification will be imposed. For offenses that occurred or began during the period from March 1979 to September 1983, the disqualification will be three months regardless of the number of offenses. For offenses that occurred or began during the period from October 1983 to September 1996, the disqualification will be six months for the first offense, twelve months for the second offense, and permanent for the third offense.

Only the household member found to have committed an IPV would be disqualified. Remaining members may participate if otherwise eligible. The disqualification will be effective on the first day of the month following the month in which 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 establish a disqualification period that begins with the month following the month the household received the hearing decision. Then the worker will recalculate the household's budget in accordance with [FSC 1623.2].   Last, the worker will complete and route the Action Taken on Your Fraud Hearing (DCO-256) and Food Stamp Disqualified Recipient Report (DCO-19).

An advance notice of adverse action is not required when a disqualification is imposed. The DCO-256 serves as notification of the disqualification period and the resulting change in benefit amount. The DCO-19 must be completed according to the instructions on the form and routed within 10 days of receipt of an IPV decision. The original is routed to the Central Office, Food Stamp Section, mail slot 1240. A copy of the form is filed in the case record and retained for three years following the date the disqualification ended. For a permanent disqualification, the form is retained indefinitely.

7/01/95

The Disqualified Recipient System (DRS) is an automated system that contains information about individuals disqualified from participating in the Food Stamp Program due to an IPV.

A Food Stamp Disqualified Recipient Report, DCO-19, must be routed to the Central Office, Food Stamp Section, where the form will be keyed to a DRS data file. The DRS file is transmitted to the Department of Agriculture, Food and Nutrition Services (FNS) National Computer Center in Kansas City each month.

7/01/95

The day following transmission of the data file to Kansas City, the Central Office, Food Stamp Section receives an error report. 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 Food Stamp Section can resolve the items on the error report received from FNS, the correction will be forwarded to FNS at the next available opportunity. However, errors that cannot be resolved by the Food Stamp Section are returned to the DHS County Office for resolution.

7/01/95

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.  Dialing 1-800-445-9498 accesses the VRU.

The VRU should be accessed prior to approving an application from a household that moved to Arkansas from another state within the past three months. (All adult members of the household should be screened against the DRS VRU.) The VRU should be accessed prior to adding an adult member to an existing food stamp household if this member moved to Arkansas from another state within the past three months.

The VRU should be accessed prior to imposing a disqualification if the individual appeared on the report "Food Stamp Recipients With Pending/Active Intentional Program Violations". This query is needed to determine if this offense is first, second, or third offense. Since data from the old DRIPS system has not been updated to the new DRS for Arkansas, the case record must also be checked the offense is imposed.

7/01/95

Each month the Central Office, Food Stamp Section, receives a Match File of DRS cases from FNS. The DRS Match File contains information about individuals who are currently serving disqualification and 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 where the food stamp case is located.

6/01/96

When an individual is included on the "Food Stamp Recipient With Pending/Active Intentional Program Violations" report, the county must impose the disqualification as per [FSC 16800] using the report. 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 help the county office obtain needed information from the state and/or county that placed the DRS record on the national system:

• State of Disqualification
• Locality of Disqualification (This is the county code if the state is in Arkansas or the FIPS code if state is not in Arkansas. A FIPS Code Directory is available in each DHS county office.)
• Contact Title (This is the job title of individual to contact for information about the disqualified individual.)
• Contact Organization (This is the office to contact for information about the disqualified individual.)
• Contact Phone
• Contact Phone Extension

Upon imposition of the disqualification, the DHS county office completes a DCO-19 and a copy is forwarded to the Food Stamp Section, Slot 1240. The Food Stamp Section keys the DCO-19 into the DRS file for transmission to FNS.

6/01/96

Upon receipt of a copy of a hearing decision of IPV, the Overpayments Unit will issue a letter to the household. The letter will specify that the household must make restitution for the related overpayment. The letter will also specify that if an agreement to repay the overpayment is not made within 30 days, the household's food stamp benefit amount 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 benefit amount 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 benefit amount or $10.00, whichever is greater, will be recouped. If the household stops participating 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.

6/01/96

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 filed 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 month during which 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, the Fraud Investigations Unit will delay imposition of the penalty 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 that complete the DCO-257 to arrange for repayment to begin. A 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 by a court of law to have committed an IPV for the length of time specified by the court.  If the court does not impose a disqualification period, DCO will impose a disqualification period in accordance with FSC 16800. Individuals found guilty in a federal, state, or local court of trading food stamps for controlled substances will be disqualified for 24 months for the first violation and permanently for the second violation unless the court imposes a specific period of disqualification. Individuals found guilty by a court of trading firearms, ammunition or explosives for food stamps will be subject to permanent disqualification unless the court imposes a shorter disqualification period.

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 a Notice of Court Decision (DCO-259), and send it to the disqualified household member to initiate the disqualification.

NOTE: Court decisions that specify that NO disqualification is to be imposed do not require a DCO-259.

The budget will be recalculated, and 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].

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

1/01/89

16900 Appeal Rights After the Hearing

No further administrative appeal procedure exists after an adverse decision through an administrative disqualification hearing. Another administrative disqualification hearing cannot reverse the determination of an IPV resulting from an 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.

1/01/89

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

Within 30 days from the date the petitioner received the decision 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. 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, DCO 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.

1/01/89

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]. If an administrative disqualification hearing decision is reversed, the county office will be advised so that any disqualification can be ended.