Current through Register Vol. 35, No. 18, September 24, 2024
A.
Administrative
responsibility: The HCA will be responsible for investigating any case
of alleged intentional program violation (IPV), and ensuring that appropriate
cases are acted upon either through administrative disqualification hearings
(ADH) or referral to a court of appropriate jurisdiction. Administrative
disqualification procedures or referrals for prosecution should be initiated by
the HCA in cases in which the HCA has sufficient documentary evidence to
substantiate that an individual has committed one or more acts of intentional
program violation. A recommendation to pursue administrative disqualification
of an individual is made by the office of the inspector general (OIG) upon
review of documentary evidence submitted by the county office. If the HCA does
not initiate administrative disqualification procedures or refer for
prosecution a case involving an over-issuance caused by a suspected act of IPV,
the HCA will take action to collect the over-issuance by establishing an
inadvertent household error claim against a household in accordance with the
procedures in Subsection B of 8.139.640.9 NMAC and Subsection A of 8.139.640.10
NMAC.
(1)
Initiating hearings:
The HCA should conduct administrative disqualification hearings in the
following situations:
(a) in cases in which
the HCA believes the facts of the individual case do not warrant civil or
criminal prosecution through the appropriate court system;
(b) in cases previously referred for
prosecution that were declined by the appropriate legal authority,
and
(c) in previously referred
cases where no action was taken within a reasonable period of time and the
referral was formally withdrawn by the HCA.
(2)
When a hearing is not
initiated: The HCA will 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 case arise out of the same, or related
circumstances.
(3)
Household
eligibility: The HCA may initiate administrative disqualification
procedures or refer a case for prosecution regardless of the current
eligibility of an individual.
(4)
Determination of administrative disqualification:
(a) The HCA will base administrative
disqualifications for IPV on the determinations of hearing authorities arrived
at through administrative disqualification hearings, or on determinations
reached by courts of appropriate jurisdiction.
(b) The HCA has the option of allowing
accused individuals either to waive their rights to administrative
disqualification hearings or to sign disqualification consent agreements for
cases of deferred adjudication. If the HCA chooses either of these options, the
administrative disqualification for IPV may be based on the waived right to an
administrative disqualification hearing or on the signed disqualification
consent agreement in cases of deferred adjudication.
B.
Disqualification
penalties:
(1) Individuals found to
have committed an intentional program violation (IPV) either through an
administrative disqualification hearing or by a federal, state, or local court,
or who have signed either a waiver of right to an administrative
disqualification hearing or a disqualification consent agreement in cases
referred for prosecution, will be ineligible to participate in the food stamp
program as follows:
(a) for a period of six
months for the first IPV; or for a period of one year for the first IPV if the
offense occurred after August 22, 1996;
(b) for a period of one year for the second
IPV; or for a period of two years for the second IPV if the offense occurred
after August 22, 1996;
(c)
permanently for the third finding of an IPV.
(d) one or more intentional program
violations which occurred prior to the implementation of the disqualification
periods specified above will be considered as only one previous
disqualification when determining the appropriate penalty to impose in a case
under consideration.
(2)
Sale of controlled substances: Individuals found by a federal,
state or local court to have used or received food stamp benefits in a
transaction involving the sale of a controlled substance (as defined in Sec.
102 of the Controlled Substances Act) will be ineligible to participate in the
food stamp program:
(a) for a period of one
year upon the first occasion of such violation; or for two years upon the first
occasion of such violation if the offense occurred after August 22, 1996;
and
(b) permanently upon the second
occasion of such violation.
(3)
Permanent disqualification from
participation in FSP:(a) Individuals
found by a federal, state or local court to have used or received food stamp
benefits in a transaction involving the sale of firearms, ammunition, or
explosives will be permanently ineligible to participate in the FSP upon the
first occasion of such violation.
(b) Individuals convicted in federal or state
court of trafficking food stamp benefits with a value of $500 or more, for an
offense which occurred after August 22, 1996.
(c) The penalties above will also apply in
cases of deferred adjudication described in Subsection D of 8.139.647.11 NMAC,
where the court makes a finding that the individual engaged in the conduct
described above. Regardless of when an action taken by an individual which
caused an IPV occurred, the disqualification periods above will apply to any
case in which the court makes the requisite finding on or after September 1,
1994.
(4)
Dual
participation in the FSP: An individual will be ineligible to
participate in the FSP as a member of any household for a period of 10 years
upon a finding of IPV, or conviction in federal or state court, for having made
a fraudulent statement or representation with respect to the identity or place
of residence of the individual in order to receive multiple benefits
simultaneously in the FSP. The provision applies only to an offense which
occurred after August 22, 1996.
(5)
Court failure to impose disqualification: If a court fails to
impose a disqualification period for the IPV, HCA will impose the
disqualification penalties specified above, unless it is contrary to the court
order.
(6)
Disqualifying the
individual: HCA will disqualify only the individual found to have
committed intentional program violation, or who has signed the waiver of right
to an administrative disqualification hearing or disqualification consent
agreement in cases referred for prosecution, and not the entire
household.
(7)
Restitution by
remaining household members: The remaining household members must agree
to make restitution within 30 days of the date the HCA's written demand letter
is mailed, or the household's monthly food stamp benefit amount will be
reduced.
(a) If the remaining household
members agree to make restitution but fail to do so, the HCA will impose a
benefit reduction on the household's monthly benefit amount.
(b) The remaining household members, if any,
will begin restitution during the period of disqualification imposed by the HCA
or a court of law.
(c) All
restitutions will be made in accordance with established procedures for cash
repayment, benefit reduction, or coupons for repayment. See 8.139.640.11 NMAC
for procedures on claims collection.
C.
Notification to applicant
households: The HCA will inform a household in writing of the
disqualification penalties for intentional program violation each time a
household applies for Program benefits.
D.
Definition of IPV: For
purposes of determining through administrative disqualification hearings
whether or not an individual has committed an intentional program violation, an
IPV will consist of having intentionally:
(1)
made a false or misleading statement, or misrepresented, concealed or withheld
facts; or
(2) committed any act
that constitutes a violation of the Food Stamp Act, food stamp program
regulations, or any state statute relating to the use, presentation, transfer,
acquisition, receipt, or possession of food stamp benefits.
