Tenn. Comp. R. & Regs. 1240-05-14-.04 - DISQUALIFICATION HEARINGS
The Department shall conduct Administrative Disqualification Hearings for individuals accused of intentional program violations in accordance with the requirements outlined in this section. An Administrative Disqualification Hearing shall be initiated by the Department in cases in which the Department has sufficient documentary evidence to substantiate that an individual has committed one or more acts of intentional program violation as defined by Rule 1240-05-14-.02. Such cases may include those in which the Department believes the facts of the individual case do not warrant civil or criminal prosecution through the appropriate court system. Other cases may be those previously referred for prosecution but for which prosecution was declined by the appropriate legal authority and in previously referred cases where no action was taken within a reasonable period of time and the referral was formally withdrawn by the Department. The Department may initiate an Administrative Disqualification Hearing regardless of the current eligibility of the individual. The disqualification period for nonparticipants at the time of the hearing decision shall be deferred until the individual applies for and is determined eligible for program benefits. If the Department does not initiate Administrative Disqualification procedures or refer for prosecution a case involving an overissuance caused by a suspected act of intentional program violation, the Department shall take action to collect the overissuance by establishing an inadvertent household error claim against the household. The burden of proving intentional program violation is on the Department. The Department shall not initiate an Administrative Disqualification Hearing against an accused individual whose case is currently being referred for prosecution or subsequent to any action taken against the accused individual by the prosecutor or court of appropriate jurisdiction, if the factual issues of the cases arise out of the same or related circumstances.
(1) Consolidation of
Administrative Disqualification Hearing with Fair Hearing. The Department may
combine a Fair Hearing (as defined in
1240-05-02-.01(p))
and an Administrative Disqualification Hearing into a single hearing if the
factual issues arise out of the same or related circumstances and the household
receives prior notice that the hearings will be combined. If the
Disqualification Hearing and Fair Hearing are combined, the Department shall
follow the time frames for conducting Disqualification Hearings. And, if the
hearings are combined for the purpose of settling the amount of the claim at
the same time as determining whether or not an intentional program violation
has occurred, the household shall lose its right to a subsequent Fair Hearing
on the amount of the claim. However, the Department shall, upon household
request, allow the household to waive the thirty (30) day advance notice period
required by law when the Disqualification Hearing and Fair Hearing are
combined.
(2) Disqualification
Hearing Procedures.
(a) The Department shall
provide Administrative Disqualification Hearings only at the State level;
however, these hearings may be conducted in any of its project areas.
(b) The Department may use the same hearing
officials for Disqualification Hearings and Fair Hearings or designate hearing
officials to conduct Disqualification Hearings only.
(c) At the Disqualification Hearing, the
hearing official shall advise the household member or representative that they
may refuse to answer questions during the hearing.
(d) Within ninety (90) days of the date the
household member is notified in writing that a hearing initiated by the
Department has been scheduled, the Department shall conduct the hearing, arrive
at a decision, and notify the household member and the local office of the
decision. The household member or representative is entitled to a postponement
of the scheduled hearing provided that the request for postponement is made at
least ten (10) days in advance of the date of the scheduled hearing. However,
the hearing shall not be postponed for more than a total of thirty (30) days
and the Department may limit the number of postponements to one. If the hearing
is postponed, the above time limits shall be extended for as many days as the
hearing is postponed.
(e) The
Department shall publish clearly written rules of procedure for
Disqualification Hearings and shall make these procedures available to any
interested party upon request.
(3) Advance Notice of Hearing.
(a) The Department shall provide written
notice to the household member suspected of an intentional program violation at
least thirty (30) days in advance of the date a Disqualification Hearing by the
Department has been scheduled. If mailed, the notice shall be sent either by
first class mail or certified mail, return receipt requested. The notice may
also be provided by any other reliable method. If the notice is sent using
first class mail and returned as undeliverable, the hearing may still be held.
The thirty (30) day notice period begins upon the date of the notice. The
notice shall contain at a minimum:
1. The
date, time, and place of the hearing;
2. The charge(s) against the household
member;
3. A summary of the
evidence, and how and where the evidence can be examined;
4. A warning that the decision will be based
solely on information provided by the SNAP Office if the household fails to
appear at the hearing;
5. A
statement that the household member or representative will have ten (10) days
from the date of the scheduled hearing to present good cause failure to appear
in order to receive a new hearing;
6. A warning that a determination of
intentional program violation will result in disqualification either
temporarily or permanently as required by
1240-05-14-.01 or current
Federal Law or Federal Regulations at the time the decision is rendered. The
Department will also include a statement of which penalty it believes to be
applicable in the case scheduled for hearing;
7. A listing of the household member's
rights;
8. A statement that the
hearing does not preclude the State or Federal Government from prosecuting the
household member of intentional program violation in a civil or criminal court
action nor from collecting the overissuance; and
9. A statement that the individual can call
the county SNAP Office to get the name and phone number (if available) or
someone who can give free legal advice. If free legal advice is not available,
the county office shall provide, when called, the phone number of a lawyer
referral service of the local bar association.
(b) A copy of the Department's published
hearing procedures shall be attached to the thirty (30) day advance notice or
the advance notice shall inform the household of its right to obtain a copy of
the Department's published hearing procedures upon request.
(c) If no proof of receipt of notice of the
disqualification hearing is obtained, a timely showing of non-receipt by the
household member shall be considered good cause for not appearing at the
hearing. A "timely showing" because of alleged failure to receive the written
notice shall be made to the Department by the household member by a sworn,
written statement signed by the household member presented to the Department's
hearing official who rendered the decision on the household member's case
within thirty (30) days of the date of written notice of the decision made at
the hearing.
(d) Good cause for not
appearing at the hearing due to alleged non-receipt of the written notice shall
include a sworn, written statement of the household member that:
1. The mail was misdelivered by the postal
service, or the mail was destroyed or inaccessible due to circumstances beyond
the household's control. Failure of any member of the household to timely
acquire the mail when delivered, failure to recall having received the notice,
or the failure of any individual to whom the pick-up or receipt of the mail was
assigned by the household to pick up or receive the mail shall not be
sufficient reason to establish good cause for purposes of the subparagraph;
or
2. The individual was
hospitalized during the notice period and due to such hospitalization was
unable, due to a medical condition, to receive or read the notice or to appear
at the hearing as a result of such hospitalization;
(e) In all other instances, the household
member has ten (10) days from the date of the scheduled hearing to present
reasons, other than failure to receive the written notice, to the hearing
official for failure to appear at the hearing.
(4) Scheduling of Hearing. The time and place
of the hearing shall be arranged so that the hearing is accessible to the
household member suspected of intentional program violation.
(a) If the household member or its
representative cannot be located or fails to appear at a hearing initiated by
the Department without good cause, the hearing shall be conducted without the
household member being represented. Even though the household member is not
represented, the hearing official is required to carefully consider the
evidence and determine if intentional program violation was committed, based on
clear and convincing evidence.
(b)
If the household member is found to have committed an intentional program
violation, but a hearing official later determines that the household member or
representative had good cause for not appearing, the previous decision shall no
longer remain valid and the Department shall conduct a new hearing. The Hearing
Official who originally ruled on the case may conduct the new hearing. The
household member has ten (10) days from the date of the scheduled hearing to
present reasons indicating a good cause for failure to appear. A hearing
official must enter the good cause decision into the record.
(5) Participation While Awaiting a
Hearing. A pending disqualification hearing shall not affect the individual's
nor the household's right to be certified and participate in the program. Since
the Department cannot disqualify a household member for intentional program
violation until the hearing official finds that the individual has committed an
intentional program violation, the Department shall determine the eligibility
and benefit level of the household in the same manner it would be determined
for any other household. However, the household's benefits shall be terminated
if the certification period has expired and the household, after receiving its
notice of expiration, fails to reapply. The Department shall also reduce or
terminate the household's benefits if the Department has documentation which
substantiates that the household is ineligible or eligible for fewer benefits
and the household fails to request a fair hearing and continuation of benefits
pending the hearing.
(6) Criteria
for Determining Intentional Program Violation. The Commissioner or his/her
designated representative shall base the determination of intentional program
violation on clear and convincing evidence which demonstrates that the
household member(s) committed and intended to commit an intentional program
violation.
(7) Decision Format. The
decision of the Commissioner or his/her designated representative shall specify
the reasons for the decision, identify the supporting evidence, identify the
pertinent FNS Regulation, and respond to reasoned arguments made by the
household member or representative.
(8) Disqualification Penalties.
(a) One or more intentional program
violations which occurred prior to April 1983 shall be considered as only one
previous violation when determining the appropriate penalty to
impose.
(b) The disqualification
shall apply only to the individual who is found to have committed the
intentional program violation. It does not apply to the whole
household.
(c) Remaining Household
Members. Once a household member is disqualified for an intentional program
violation, the Department shall impose allotment reduction as the means of
restitution.
(d) Notification to
Applicant Households. The Department shall inform the household in writing of
the disqualification penalties for intentional program violation each time it
applies for program benefits.
(e)
Imposition of Disqualification Penalties.
1.
The disqualification penalties outlined in paragraph (1) of
1240-05-14-.01 shall apply only
to individuals for acts of intentional program violation which occurred either
during a certification period based on an application form containing these
penalties or after receipt of written notification from the Department of these
penalties. If the act of intentional program violation which led to the
disqualification occurred prior to written notification of these
disqualification penalties, the household member shall be disqualified in
accordance with the disqualification periods in effect at the time of the
rendering of such determination. However, no disqualification penalty may be
imposed which is contrary to court order.
2. Appropriate disqualification penalties (as
outlined in paragraph (1) of
1240-05-14-.01) shall be imposed
(unless contrary to court order) on household members in the following
instances:
(i) An administrative
disqualification hearing official rules that the household member has committed
an intentional program violation. The disqualification period shall begin with
the first month which follows the date the household member receives written
notification of the hearing decision as cited in Section
1240-05-14-.04.
(ii) A court of appropriate jurisdiction
finds the household member guilty of intentional program violation. In such
cases, the Department shall disqualify the individual for the length of time
specified by the court. If the court fails to impose a disqualification period,
the Department shall impose a disqualification period in accordance with
paragraph (1) of
1240-05-14-.01. If the court
does not specify a date for initiating the disqualification period, the
Department shall initiate the disqualification period as soon as is
administratively feasible.
(iii) A
household member suspected of intentional program violation signs a consent
agreement in cases of pre-trial diversion. The period of disqualification shall
begin as soon as it is administratively feasible after the date the household
member signed the disqualification consent agreement.
3. The same act of intentional program
violation repeated over a period of time shall not be separated so that
separate penalties can be imposed.
4. An adverse Administrative Disqualification
Hearing may be appealed to Chancery Court by petition for judicial review, but
the determination of intentional program violation made by a disqualification
hearing official cannot be reversed by a subsequent fair hearing decision. The
period of disqualification may be subject to stay or other injunctive remedy by
the court in which the petition for review is filed.
5. Once a disqualification penalty has been
imposed against an individual, the period of disqualification shall continue
uninterrupted until completed regardless of eligibility of the disqualified
member's household. The disqualified member's household shall continue to be
responsible for repayment of the overissuance which resulted from the
disqualified member's intentional program violation, regardless of its
eligibility for benefits.
(9) Notification of Hearing Decision.
(a) If the Commissioner or his/her designated
representative finds that the household member did not commit the intentional
program violation, the Department shall provide a written notice which informs
the household member of the decision.
(b) If the Commissioner or his/her designated
representative finds that the household member committed the intentional
program violation, the Department shall provide written notice to the household
member prior to disqualification. The notice shall inform the household member
of the decision and the reason for the decision. In addition, the notice shall
inform the household member of the date disqualification will take effect. If
the individual is no longer participating, the notice shall inform the
individual that the period of disqualification will be deferred until such time
as the individual again applies for and is determined eligible for program
benefits. The Department shall also provide written notice to the remaining
household members, if any, of either the allotment they will receive during the
period of disqualification or that they must reapply because the certification
period has expired.
(c) A written
demand letter for restitution must be provided. This letter informs the
household of:
1. The amount owed;
2. The reason for the claim;
3. The period of time the claim
covers;
4. Any offsetting that was
done to reduce the claim;
5. How
the household must pay the claim; and
6. The household's right to a fair hearing if
the household disagrees with the amount of the claim unless the household has
already had a fair hearing on the amount of the claim as a result of
consolidation of the Administrative Disqualification Hearing with the Fair
Hearing.
(d) The
household shall also be informed of its right to request renegotiation of any
agreed to schedule should the household's economic circumstances
change.
(e) The demand letter shall
provide space for the household to indicate the method of repayment and a
signature block.
Notes
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