10-144 C.M.R. ch. 607, § 4 - CONFIDENTIALITY, PARTICIPANT'S RIGHTS AND RESPONSIBILITIES, GOOD CAUSE, FAIR HEARINGS, SANCTIONS, INTENTIONAL PROGRAM VIOLATIONS, OVERPAYMENT PROCEDURES

SUMMARY. This Section summarizes participants' rights and responsibilities including fair hearings, grievance procedures, and confidentiality. The Section also outlines Good Cause and sanctionable actions.

I. CONFIDENTIALITY

A. Release of information about a participant to other Offices and Divisions within the Department of Health and Human Services or agencies under contract with ASPIRE-TANF, will be made only when such release is directly related to the administration of the ASPIRE-TANF activity for which information is needed.

Release of information to entities, other than those within the Department or agencies under contract with ASPIRE-TANF regarding participants will be made only upon receipt of written permission from the participant affected. This general rule relating to release of information applies to all requests from outside of the Department including other governmental authorities (local, State and Federal), courts of law, and law enforcement agencies, except as provided in Section 4, Subsection I, B. No information will be given to an absent parent concerning a participant without the written permission of said participant.

In addition, when information is sought and the participant's permission is furnished, ASPIRE-TANF will disclose only such information as is directly related to the administration of ASPIRE-TANF or the agency requesting the information.

B. Exceptions to the requirement of obtaining the participant's written permission for release of information outside the Department are as follows:

1. In an emergency situation when the participant's consent for release of information cannot be obtained, and ASPIRE-TANF decides it is in the best interest of the participant to release the requested information, ASPIRE-TANF may release such information without written permission of the participant, with approval of a supervisor or supervisor's designee. The participant will be notified as soon as possible about the release and the reason for such release.

2. Release of information to employers may be made as part of a job development or ASPIRE-Plus/OJT contract development activity providing that activity is included in the Family Contract Amendment which has been signed by the participant.

3. If a subpoena or order is issued from a court for a case record, or for ASPIRE-TANF staff to testify concerning a participant, ASPIRE-TANF will call the court's attention to statutory provisions and regulations against disclosure of information. The decision regarding release of information will reside with the presiding judge.

4. A participant's current address only may be made available to Federal, State or local law enforcement officers if the officer furnishes ASPIRE-TANF with the participant's name and demonstrates that:

a. The participant is fleeing to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which the individual flees, for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees; or

b. The participant is violating a condition of probation or parole imposed under Federal or State law; and

c. The location or apprehension of the participant is within the officer's official duties; and

d. The request is made in proper exercise of those duties.

5. In circumstances other than those covered in Section B, 4, when ASPIRE-TANF employees are asked by a law enforcement officer for the current address or other information regarding a participant, the employee should State that ASPIRE-TANF has no legal authority to disclose the information; but that ASPIRE-TANF will contact the participant and ask for permission to discuss the information, or to encourage the participant to come forward.

C. With advance written notice of one working day a participant, or a participant's designated representative, may view the contents of the case record during normal business hours and on the premises where the case record is normally kept. Upon request, ASPIRE-TANF will make photocopies of relevant portions of the case record for the participant, or the designee, to take from the premises. The provision for advance written notice of one working day will be waived in instances where a supervisor meeting, or similar event, has been scheduled within twenty-four hours of its being requested.

Information contained in the case record and deemed confidential by ASPIRE-TANF (e.g., names of persons providing information, or information about other persons, of which the participant should not be aware and which has no bearing on the participant's right to due process) must be removed, de-identified or deleted prior to the participant viewing the record. Information removed from the case record will not be used by either party in hearings or similar proceedings.

D. ASPIRE-TANF will take all necessary precautions to ensure that paper case records and other information regarding participants are kept, when not in use, in filing cabinets or drawers out of public view. Case records may be viewed by supervised ASPIRE-TANF trainees, temporary employees or contractors who have signed a Statement informing them of their responsibilities to ensure client confidentiality.

II. PARTICIPANTS' RIGHTS AND RESPONSIBILITIES

A. Participants will be notified orally of their rights and responsibilities at the time of the Assessment interview and when a sanctionable act is committed if ASPIRE-TANF is able to meet face-to-face with the participant.

B. A Notice of Rights and Responsibilities will be printed on the reverse side of all correspondence sent to participants as well as on the Family Contract Amendment and other ASPIRE-TANF documents signed by the participant.

C. The Notice of Rights and Responsibilities will include a description of sanctions and participant rights and responsibilities including fair hearings.

D. Federal law and regulations require that mandatory participants who fail without Good Cause to comply with ASPIRE-TANF program rules be sanctioned for failure to comply. Failure of a mandatory ASPIRE recipient to attend ASPIRE appointments or to sign or abide by the terms of the Family Contract Amendment without Good Cause will result in termination of benefits to the individual for the lesser of ninety (90) days or until the failure to comply ceases. TANF cash assistance for the remainder of the eligible family members will continue, if they are otherwise eligible for TANF. Should the first failure to comply last for longer than 90 days or for a second and subsequent non-compliance, TANF cash assistance for the full family unit will be terminated. Food Supplement (SNAP) benefits may also be reduced for a specified period. Non-mandatory participants who do not comply with ASPIRE-TANF program rules may have services and support withdrawn, but TANF and Food Supplement (SNAP) benefits will not be reduced.

E. Any participant who has Good Cause for failure to comply with ASPIRE-TANF program rules as determined by ASPIRE-TANF will not be sanctioned.

F. Participants who disagree with ASPIRE-TANF decisions have the right to an Administrative Hearing, sometimes referred to as a Fair Hearing (Section 4, IV ).

G. The ASPIRE-TANF program is obligated by Federal regulations and State law to protect the basic rights and dignity of participants by ensuring confidentiality of information concerning those participants.

H. The Deficit Reduction Act of 2005 requires States to report actual, verified hours of activity of TANF recipients. ASPIRE participants must provide verification of their hours of participation in ASPIRE activities.

III. GOOD CAUSE

A. A finding of Good Cause allows the participant to temporarily suspend compliance with ASPIRE-TANF rules and policies, including participation in a particular activity. It is the responsibility of the participant to demonstrate to ASPIRE-TANF staff that Good Cause exists. ASPIRE-TANF staff will determine whether Good Cause exists based on the information and verification provided by the participant. In addition, Good Cause can be granted by OFI Eligibility staff at the time of application in instances where participation in ASPIRE-TANF would not be in the best interests of the TANF recipient (e.g., domestic violence situations). Please refer to the Maine Public Assistance Manual for further information.

B. Good Cause for failure to comply with ASPIRE-TANF rules is the following:

1. Illness or advanced age of the participant, or illness or incapacity of a household member that requires the participant to provide care in the home. Verification by a physician may be required.

2. Court-required appearance or incarceration.

3. A crisis, special circumstances, or other reason that the Department determines to be Good Cause that causes an individual to be absent from or discontinue a Department activity, about which the Department has been advised, including lack of transportation or childcare necessary for participation when the individual does not have a reasonable alternative to enable the individual to participate.

If an individual has access to transportation that is reasonable under the circumstances through any program at the Department, the individual is ineligible to receive Good Cause based on lack of transportation.

4. Inability to participate due to domestic violence when the individual is unable to participate because of physical injuries or the psychological effects of abuse; because of legal proceedings, counseling or other activities related to abuse; because the abuser actively interferes with the individual's participation; because the location puts the individual at risk; or for other Good Cause related to domestic violence. Reasonable and verifiable evidence may include, but is not limited to, the following:

a. court, medical, law enforcement, child protective, social services, psychological or other records that establish that the individual has been the victim of domestic violence; or

b. sworn statements from persons other than the individual with knowledge of the circumstances affecting the individual; or

c. visual observation by ASPIRE-TANF staff of physical injuries.

C. Good Cause for failure to accept employment or for quitting employment includes those items listed in Section III, (B), and the following:

1. The employment does not pay at least the Maine minimum wage.

2. The employment is dangerous to health or safety.

3. Daily commuting time or daily distance is more than a two hour round trip commute from the participant's residence.

4. The participant is not physically and/or mentally able to do the job.

5. The participant is required to join or quit a union.

6. There is a legal strike or lock-out or other bona fide labor dispute at the work site.

7. The job or work hours interfere with the participant's religious beliefs.

8. Community resources (e.g., transportation and child care) necessary for participation in employment are not available.

9. The employment offered interrupts a program in progress under an approved Family Contract Amendment.

10. The participant is laid off and job-attached as defined by Unemployment Insurance law.

D. Good Cause Procedure:

When a participant is notified that they failed to comply with ASPIRE-TANF rules and they claim, either orally or in writing, within five working days of receiving the notification, that they have Good Cause, the Department or the Department's representative shall offer to meet with the participant.

The Department or the Department's representative will schedule a meeting with the participant. A meeting will be scheduled by:

1. The Department or the Department's representative contacting the participant by phone and agreeing on a location, date and time which is at least five days from the date of the phone contact; or

2. A written scheduling notice mailed to the participant, when phone attempts for scheduling are unsuccessful. A written scheduling notice will be mailed to the participant a minimum of seven calendar days prior to the meeting date.

3. The meeting may be conducted by phone, as scheduled a minimum of five days in advance.

E. Meeting Requirements:

1. The Department or Department's representative will:

a. Present a notice describing Good Cause and the participant's rights to request Good Cause; and

b. Verbally explain to the participant the reasons for which Good Cause may be granted and the participant's right to apply for Good Cause verbally or in writing; and

c. Provide an opportunity for the participant to request Good Cause either wholly or in part.

2. The Department or Department's representative will make a written record of the meeting including documenting that the participant was given the notice describing Good Cause, the opportunity to request Good Cause and the participant's reason for requesting Good Cause.

F. Meeting Result:

1. The Department's representative shall make a recommendation on the participant's request for Good Cause, including the basis for the recommendation, in writing.

2. The Department shall issue a final determination notice approving or denying, wholly or in part, the participant's request for Good Cause. This notice will include the reasons for the Good Cause decision and the participant's right to a fair hearing.

3. The Department may deny Good Cause if the participant fails to attend the scheduled meeting under Section E. above.

IV. FAIR HEARINGS

A. A participant who disputes an ASPIRE-TANF decision, including either involving the ASPIRE-TANF Family Contract Amendment (including suspension, reduction, overpayment, or the discontinuation of program services), or the allegation by ASPIRE-TANF that an act of non-compliance or a sanctionable act has been committed, has the right to a fair hearing, provided the request for a fair hearing is made timely. ASPIRE-TANF or OFI eligibility staff will complete the fair hearing request on behalf of the participant and forward it to the Administrative Hearings Unit. See 10-144 CMR Ch. 331, Maine Public Assistance Manual (TANF) Chapter VI, for additional information on the Fair Hearings and Administrative Hearings.

B. The request for a fair hearing must be made within thirty (30) calendar days of the issuance of the notice of action which is disputed. If the disputed decision involves suspension or termination of ASPIRE-TANF services which have been previously granted or reduction of TANF or Food Supplement (SNAP) benefits, and the participant requests a fair hearing within ten (10) days of the notice, ASPIRE-TANF services and/or TANF and Food Supplement (SNAP) benefits will continue pending outcome of the fair hearing.

C. ASPIRE-TANF will offer to assist the participant in contacting free legal counsel and will otherwise assist the participant in preparing for the fair hearing as may be necessary.

D. At the fair hearing, the participant has the right to:

1. be assisted by a representative of the participant's choice;

2. present witnesses;

3. examine and introduce evidence from the case record, and examine and introduce any other pertinent Department documents;

4. present and establish all relevant facts and circumstances by oral testimony and documentary evidence;

5. advance any pertinent arguments without undue interference;

6. question any testimony, and confront and cross-examine adverse witnesses.

V. SANCTIONABLE ACTS

A. TANF recipients are expected to enroll and participate in ASPIRE-TANF activities, and every effort will be made to encourage the cooperative participation by both mandatory and voluntary participants.

When a participant fails to participate, as required by ASPIRE-TANF rules, a sanction may occur.

B. A sanctionable act is one which can result in the loss of TANF and Food Supplement (SNAP) benefits for a period in accordance with OFI eligibility rules. The following will be considered sanctionable acts unless Good Cause is established:

1. Failure or refusal to keep an initial Assessment appointment. The participant will receive the Assessment appointment scheduling information in writing.

2. Failure or refusal to keep additional appointments required by ASPIRE-TANF, scheduled either by including appointment details on the Family Contract Amendment, by a written appointment letter, or by scheduling the appointment verbally.

3. Failure or refusal to sign, or abide by the provisions of the Family Contract, Family Contract Amendment, Training Agreement, or Work Site Agreement, or failure or refusal to abide by performance or satisfactory progress standards listed in a Family Contract Amendment, Training Agreement, or Work Site Agreement.

4. Seriously disrupting an ASPIRE-TANF activity, including employment, or behaving in a manner which constitutes a threat, hazard or risk to others, including an activity site agency or business.

5. Failure or refusal to report to an employer when referred; make application or accept suitable employment; voluntarily quitting a job or reducing wages without Good Cause; or being discharged for misconduct (refer to Section 4, (III)(C) for Good Cause reasons).

OFI may not sanction a single custodial parent with a child under age 6 based on the parent's refusal to engage in required work if she or he demonstrates an inability to obtain needed child care which is appropriate, affordable, and suitable.

VI. SANCTIONING PROCEDURES

A. Prior to imposing a sanction against an individual, ASPIRE-TANF must complete a sanction determination process, which includes the following:

1. Thoroughly review the circumstances of the individual.

2. Make a sanction recommendation.

3. Obtain supervisory approval of the recommendation of the ASPIRE Specialist to begin the sanction process.

4. A notice of noncompliance will be completed by ASPIRE-TANF staff, and will be forwarded to the appropriate workers for initiating the sanction process.

5. The sanction process will be initiated according to Maine Public Assistance Manual (TANF), Chapter II. The sanction will take effect no sooner than 12 workdays from the date of the notice of decision set forth in Section 4, VI(A)(6), below.

6. The individual will receive a notice of decision that states the basis for the sanction, including the appropriate ASPIRE-TANF rule citations and the right to appeal the decision, and a complete list of Good Cause reasons as set forth in 22 M.R.S. §3785.

7. The participant will have 10 workdays from the date of the notice of decision to respond to the notice to the caseworker by:

a. disputing the allegations;

b. providing information showing Good Cause;

c. taking the necessary steps to stop the sanction process, such as completing the requirement that caused the sanction process to be initiated; or

d. appealing the notice of decision:

(i) if the appeal is requested within 10 workdays from the date of the notice, benefits stay open.

(ii) if the appeal is after 10 workdays from the date of the notice, but within 30, benefits will close in the same manner as described in the notice of decision.

8. A supervisor shall stop the sanction process if:

a. factual allegations giving rise to the initiation of the sanction process are proven incorrect, per Section 4, VI(A)(7)(a);

b. Good Cause has been verified; or

c. the necessary steps have been taken to stop the sanction process.

9. If a supervisor finds Good Cause, he or she shall offer reasonable alternative participation requirements, and document them in the participant's Family Contract Amendment and case record.

10. OFI shall provide the participant written notification of the decision made by ASPIRE-TANF staff concerning a claim made pursuant to Section 4, VI(A)(7)(a) or (b).

11. If the Hearing Officer rules that a sanction has been imposed in error, the Department will correct the error and remedy the case by restoring appropriate benefits, per the Maine Public Assistance Manual (TANF) rules.

B. OFI shall maintain data on sanctions, including the number of sanctions recommended and results of supervisory reviews.

VII. OVERPAYMENT PROCEDURES

A. When a support service (e.g., child care, transportation, auto repairs, etc.) payment amount is determined to be incorrect as a result of an agency or participant error, or false information presented by the participant, then an overpayment must be calculated. This information is forwarded to an OFI Overpayment Specialist, who will determine the recoupment amount from the TANF or PaS check, according to TANF policy (Maine Public Assistance Manual, Chapter VI, pgs. 14 - 17).

B. Prior to forwarding the overpayment information to the Overpayment Specialist, the ASPIRE-Specialist will contact the participant in writing about the overpayment. The participant will have 10 days from the mailing date to respond to the ASPIRE Specialist. The participant will be notified in writing of the right to an Administrative Hearing.

C. If the participant fails to respond to the letter about the overpayment, or if following a response the ASPIRE Specialist determines that the overpayment still exists, the overpayment information will be sent to the TANF worker for action.

D. If an overpayment is established OFI may refer the case to the Fraud Investigation and Recovery Unit for action.

E. If an ASPIRE payment is made directly to a provider who has misled or misrepresented their services provided or fees, an overpayment will not be the responsibility of the participant. This overpayment will be referred to the Fraud Investigation and Recovery Unit for action.

VIII. INTENTIONAL PROGRAM VIOLATION.

A. Intentional program violations (IPVs): if the ASPIRE Specialist determines that an action taken by a participant (such as submitting false bills for payment) is taken with the intention of receiving financial assistance to which the individual is not entitled, a referral to the OFI Overpayment Specialist will be made, providing the information and documentation that will allow the Overpayment Specialist, in collaboration with the Fraud, Investigation and Recovery Unit (FIRU), to decide if an IPV hearing is warranted (according to the rules as set forth in the Maine Public Assistance Manual (TANF), Chapter VI, pages 18 - 30), and to schedule the hearing. The ASPIRE Specialist will be present at the IPV hearing to participate as needed.

B. Restrictions on the use of the EBT system (See TANF/Maine Public Assistance Manual, Chapter VI Administrative Procedures; Section - Electronic Benefits Transfer (EBT) System). Unauthorized spending of benefits will result in an Intentional Program Violation (IPV) and, when discovered, a referral will be made to the Fraud, Investigation and Recovery Unit (FIRU) for further review and recovery. This includes the intentional misuse of ASPIRE support service benefits.

Notes

10-144 C.M.R. ch. 607, § 4