Minnesota Department of Human Services Administrative Disqualification Hearings

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Minnesota Department ofHuman ServicesAdministrat
ive Disqualification Hearings

• Deborah L. Johnson
• DHS Appeals Referee

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Administrative Disqualification Hearing

• Impartial review by the Appeals Referee of the
  referral of an alleged intentional program
  violation (IPV).
• Evaluation of the evidence and individuals
  action(s).
• For the purpose of rendering a decision of guilty
  or not guilty of committing an IPV.

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Intentional Program ViolationMINN. STAT. 256.98

• Any person who commits any of the following
• Acts or omissions with intent
• obtains or attempts to obtain, or aids or abets
  any person to obtain by means of a willfully
  false statement or representation, by intentional
  concealment of any material fact, or by
  impersonation or other fraudulent device
• knowingly aids or abets in buying or in any way
  disposing of the property of a recipient or
  applicant

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Intentional Program Violation(Food Support)

• Shall consist of having intentionally
• Made a false or misleading statement, or
  misrepresented, concealed or
• Committed any act that constitutes a violation of
  the Food Stamp(Support) Act, the Food
  Stamp(Support) Program Regulations, or any State
  statute relating to the use thereof.
• Applies to stand alone Food Stamps.

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Disqualification Penalties

• 1st IPV 12 months
• 2nd IPV 24 months
• 3rd IPV Permanently
• Applies to MFIP, GA, MSA and GRH. In
• addition, any person disqualified from the
• Minnesota family investment program
• shall also be disqualified from the food stamp
• program.

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A Brief look at Child Care Assistance
Disqualifications in Minnesota

• obtains or attempts to obtain, alone or in
  collusion with others, the receipt of payments to
  which the individual is not entitled as a
  provider of subsidized child care, or by
  furnishing or concurring in a willfully false
  claim for child care assistance.
• Unlike MFIP disqualifications, all members of the
  family are disqualified from receiving child care
  assistance funds.
• Disqualification periods extend to all child care
  programs and are applied immediately.

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Disqualifications for Child Care

• Three months for the first offense.
• Six months for the second offense.
• Two years for the third offense.
• Permanently for any subsequent violation.

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Referral for an ADH

• Identifying information.
• Summary of the allegations.
• A summary of the evidence and how and where the
  evidence can be examined.
• Copies of documents supporting the allegations.
• Correctly signed/dated.

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Inconsistent Procedures

• Agency representatives are unaware of what
  paperwork needs to be filed in requesting a
  hearing.

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Paperwork should be consistent

• Consistency will lead to more thorough
  information from investigators
• Consistency will assist Chief Appeal Referee in
  evaluating the referral or understanding the case

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Advance Notice of Hearing

• Appeal Referee will schedule and send notice of
  the hearing. Notice is sent to the respondent
  and the county agency and to legal counsel for
  the respondent.
• The notice must be sent 30 days in advance of the
  scheduled hearing.
• If sent via first class mail and returned
  (undeliverable) hearing may still be conducted.
• If no proof of receipt, a timely showing of
  non-receipt due to circumstances (specified by
  agency) shall be good cause for not appearing.

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Notice (Inclusions)

• Date, Time and Place.
• The Charges and Penalty if IPV found.
• Summary of the evidence, and how and where
  evidence can be examined.
• Warning that the Decision will be based solely on
  information provided by the agency if the
  individual fails to appear.
• Summary of the individuals hearing rights.

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Failure to Appear

• Hearing and Decision in Absentia.
• Individual has 10 days from scheduled ADH to
  present good cause for failure to appear.
• If good cause found, new hearing will be
  scheduled.

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Disqualification Hearing Procedures

• The Appeal Referee shall advise the party or
  representative of the right to refuse to answer
  questions during the hearing.
• Consolidation of ADH with Fair Hearing into a
  single hearing if factual issues are the same or
  related and party has received prior notice.
• Disposition within 90 days of written
  notification of the scheduled hearing. The
  hearing must be scheduled, heard and decision
  rendered.

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Burden of Proof

• Agency bears the burden of proof,
• by clear and convincing evidence (truth of facts
  asserted is highly probable or a reasonable
  certainty),
• that an intentional program violation occurred

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Two Kinds of Proof

• 1. All essential facts
• County must prove each and every essential fact.
  This burden exclusively on the agency.
• 2. Production of evidence.
• Agency has initial burden of producing evidence
  but may shift it to the other party.

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Example 1

• Suppose a county alleges, in part, that the
  respondent intentionally failed to report
  his/her earnings in November and December 2003.
  However, the only evidence the county submits is
  a letter from the employer stating that the
  respondent worked there in the latter half of
  2003. The respondent does not appear for the
  hearing.

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Example 2

• Suppose the county is alleging that A, and MFIP
  recipient, was overpaid as a result of failing to
  report that her childrens absent father, B, was
  actually living in the recipients home during
  January through November 2003. At the hearing, A
  submits twenty unsworn statements from
  individuals stating that B was not living with A
  in 2003.

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Example 2 (cont)

• This evidence would be clearly outweighed, in
  terms of probative value, by the countys
  evidence from one witness who testifies that he
  resided next door to A during 2003, that he
  observed B leaving As apartment each morning at
  630 and returning each evening at 530, that he
  saw B parking a car in the common driveway next
  to the two apartments and that he visited A and B
  at least twice a week at their apartment.

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Evidence and Fact

• Evidence any information offered to prove the
  existence of alleged fact(s).
• Fact Actual occurrence or existence of which is
  to be determined of which is determined by the
  Appeal Referee. (Believed to be true, based on
  the evidence.)

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Forms of Evidence

• Testimony oral or written uses words to
  persuade the Appeal Referee of something that has
  happened at another time and another place.
• Documentary a writing offered to prove the
  validity of a fact recorded in the document such
  as a birth certificate.

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Examples of Evidence

• Written verification of unreported income or
  resources received by the individual
• Verification that the individual understands the
  reporting requirements
• An application or change report form which omits
  the information in question
• Documented contacts with the individual in which
  he/she failed to report the information.

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Consideration of Evidence

• Consideration should be given to
• Whether the party was given a clear and full
  explanation of the eligibility requirements.
• Was the party advised of his responsibility to
  give complete and accurate information related to
  eligibility and to report any changes.

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The Key Issue

• Did the individual intentionally commit and
  Intentional Program violation?
• Intentional means To do something
• purposely, not accidentally or by
• mistake.

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Intent

• Intent goes to the state of mind.
• Intent is a question of fact to be determined in
  view of all the circumstances surrounding the
  situation.
• Circumstantial evidence may often be the only way
  to prove intent.
• Intent may be inferred from the words and acts
  and circumstances.
• Design, resolve, or determination with which
  person acts.
• Intent requires that the individual knew that the
  representation was false or that the concealment
  was fraudulent.

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Intent is crucial

• Proof of a mere naked falsehood such as
  representation, failure to report
  income/household changes/ownership of asset,
  standing alone, may not be clear and convincing
  evidence.
• A program violation without proven intent to
  defraud does not amount to an IPV.

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Intent to Misrepresent or Conceal

• There must be a false representation, fraudulent,
  concealment, false pretenses, fraudulent devises,
  schemes or tricks.
• These acts must be deliberately, knowingly, and
  intentionally made.
• There must be a consciousness that they will be
  relied on.
• The representation or concealment must be made
  with the specific intent to deceived.

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Whom to Disqualify

• Disqualify ONLY the individual found to have
  committed the IPV, or who signed the waiver.

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Investigators Concerns

• Inconsistent/Undefined Standards of Evidence
• Inconsistent/Undefined Concept of Intent

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Truth

• To be persuasive, we must be believable. To be
  believable, we must be credible. To be
  credible, we must be truthful.
• Generally, the theories we believe we call facts,
  and the facts we disbelieve we call theories.
  Felix Cohen
• To treat your facts with imagination is one
  thing, but to imagine your facts is another.
  John Burroughs
• The truth is more important than the facts.
  Frank Lloyd Wright

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Defenses which may negate Intent

• Misunderstanding
• Honest Mistake
• Language or Cultural Issues
• Negligence or Carelessness
• Lack of Capacity

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FACT PATTERN TERMS

• Each pattern will be analyzed in terms of the
  following
• Would a request based on such facts be accepted
  for scheduling by the state ADH screening
  process?
• Within which category do these facts fall?
• If a request is scheduled, what is the likely
  outcome of the case?