Subchapter B. ADMINISTRATIVE DISQUALIFICATION
HEARINGS


GENERAL PROVISIONS

Sec.


275.11.    General policy.
275.12.    Definitions.

HEARING REQUIREMENTS


275.21.    Scheduling of the hearing.
275.22.    Combining a fair hearing and an administrative disqualification hearing.
275.23.    Postponement.
275.24.    Participation while awaiting hearing.
275.25.    Rights of the individual at the hearing.
275.26.    Conducting the hearing.
275.27.    Presence at the hearing.

HEARING RESULTS


275.31.    Hearing decision.
275.32.    Finding of an intentional program violation.
275.33.    Finding that no intentional program violation occurred.

WAIVER OF AN ADMINISTRATIVE
DISQUALIFICATION HEARING


275.41.    Waiver of an administrative disqualification hearing.

DISQUALIFICATION


275.51.    Imposing the disqualification.

RECONSIDERATION OR APPEAL
OF HEARING DECISION


275.61.    Right to request reconsideration or right to appeal, or both.

Authority

   The provisions of this Subchapter B issued under sections 201(2) and 403(b) of the Public Welfare Code (62 P.S. § §  201(2) and 403(b)), unless otherwise noted.

Source

   The provisions of this Subchapter B adopted December 16, 1994, effective December 17, 1994, 24 Pa.B. 6300, unless otherwise noted.

Cross References

   This subchapter cited in 55 Pa. Code §  255.1 (relating to restitution and disqualification hearings).

GENERAL PROVISIONS


§ 275.11. General policy.

 (a)  The Office of Hearings and Appeals is responsible for conducting administrative disqualification hearings for individuals alleged to have committed an intentional program violation as defined under § §  255.2 and 501.1 (relating to definitions; and general provisions), which incorporates 7 CFR 273.16(c) (relating to disqualification for intentional program violation), when one of the following exists:

   (1)  The Office of Inspector General did not refer the case to the criminal court system.

   (2)  The Office of Inspector General referred the case to the criminal court system and the district attorney declined to prosecute.

   (3)  The Office of Inspector General referred the case to the criminal court system and the court took no action within a reasonable period, resulting in case withdrawal by the Office of Inspector General.

 (b)  The Office of Inspector General may initiate administrative disqualification hearing procedures despite the current eligibility of the individual alleged to have committed an intentional program violation.

 (c)  The Office of Inspector General will not initiate an administrative disqualification hearing against an individual whose case is currently being referred for prosecution or after 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.

 (d)  An administrative disqualification hearing will not preclude future prosecution if the Office of Inspector General later determines that prosecution is advisable.

§ 275.12. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

   Director—The head of the Office of Hearings and Appeals who will affirm, amend, reverse or remand the hearing officer’s decision in an administrative disqualification hearing.

   Good cause—The term includes serious illness, accident, death or physical or mental handicap making it unreasonable for the individual to be present at the hearing.

   Hearing officer—A person designated by the Department to conduct administrative disqualification hearings and render decisions.

   Hearing record—An official record containing the testimony recorded at the proceeding, and the exhibits, papers and requests filed in the proceeding.

   Individual—A person alleged to have committed an intentional program violation.

   Intentional program violation—An action by an individual as defined under § §  255.2 and 501.1 (relating to definitions; and general provisions) which incorporates 7 CFR 273.16(c) (relating to disqualification for intentional program violation).

   Office of Inspector General—The agency within the Executive Office of the Governor designated to pursue cases of intentional program violations.

HEARING REQUIREMENTS


§ 275.21. Scheduling of the hearing.

 (a)  The Department will schedule all hearings. If a telephone hearing is scheduled, the individual will be given the opportunity to request a face-to-face hearing, which the Department will grant.

 (b)  The Department will send a hearing notice to each individual at least 30 days before the hearing date. The Department will send the notice by certified mail—return receipt requested—or by another method as long as the Department or the Office of Inspector General obtains proof of receipt. The notice will contain:

   (1)  The date and time of the hearing. If scheduled as a face-to-face hearing, the location shall be specified.

   (2)  The charges against the individual.

   (3)  A summary of the evidence, and how and where it can be examined.

   (4)  A statement that, if the individual fails to be present for the telephone or face-to-face hearing without good cause, the hearing decision will be based solely on the testimony and exhibits provided by the Office of Inspector General.

   (5)  A statement that, to receive a new hearing, the individual or individual’s representative has 10 days from the hearing date to present sufficient reasons to show good cause for failing to be present for the telephone or face-to-face hearing.

   (6)  A statement that the Office of Inspector General and the individual are each entitled to one postponement of the hearing as described under §  275.23 (relating to postponement). The individual’s representative may request the postponement on behalf of the individual. Subject to §  275.23(b), the request shall be made at least 10 days before the scheduled hearing date.

   (7)  A description of the disqualification penalties and a statement of which penalty applies.

   (8)  A listing of the individual’s rights as contained under §  275.25 (relating to rights of the individual at the hearing).

   (9)  A statement that the hearing does not preclude the State or Federal government from prosecuting the individual for an intentional program violation or from collecting the overpaid benefits.

   (10)  A listing of persons or organizations that provide free legal representation to an individual alleged to have committed an intentional program violation.

   (11)  A copy of the hearing procedures.

   (12)  An explanation that the individual may waive an administrative disqualification hearing as described under §  275.41 (relating to waiver of administrative disqualification hearing).

   (13)  A statement of the individual’s right to remain silent concerning the charges and that anything said or signed by the individual concerning the charges may be used against the individual in a court of law.

Cross References

   This section cited in 55 Pa. Code §  275.41 (relating to waiver of administrative disqualification hearing).

§ 275.22. Combining a fair hearing and an administrative disqualification hearing.

 (a)  The Department may combine a fair hearing, as described under Subchapter A (relating to appeal and fair hearing), and an administrative disqualification hearing into one hearing if the issues originate from the same or related circumstances. The budget group/household will receive at least 30 days notice that the Department will combine the hearings.

 (b)  The Department will apply the regulations under this subchapter when the hearings are combined.

 (c)  If the Department combines the hearings to adjudicate the claim amount and to adjudicate whether an intentional program violation occurred, the budget group/household will not be entitled to a subsequent fair hearing on the claim amount.

 (d)  One hearing officer, as designated by the Office of Hearings and Appeals, may preside over the combined fair and administrative disqualification hearing.

§ 275.23. Postponement.

 (a)  The Office of Inspector General and the individual are each entitled to one postponement of the scheduled hearing. The individual’s representative may request the postponement on behalf of the individual. The request may be oral or written. An oral request for postponement shall be made at least 10 days before the hearing date. A written request for postponement shall be postmarked at least 10 days before the hearing date. Except as otherwise provided in subsection (b), a request for postponement that does not meet these time frames will be denied.

 (b)  Within 10 days prior to the scheduled hearing, the individual or the individual’s representative may present, either orally or in writing, good cause for failing to meet the postponement requirements under subsection (a). Based on this information, the hearing officer may postpone the hearing.

 (c)  The hearing will not be postponed for more than 30 days from the date the Department scheduled the original hearing.

 (d)  The time limit for rendering a decision as specified under §  275.31(b) (relating to hearing decision) will be extended for as many days as the hearing is postponed up to a maximum of 30 days.

Cross References

   This section cited in 55 Pa. Code §  275.21 (relating to scheduling of the hearing); and 55 Pa. Code §  275.31 (relating to hearing decision).

§ 275.24. Participation while awaiting hearing.

 A pending administrative disqualification hearing will not affect the right of the individual or budget group/household to be determined eligible and to receive benefits. The Department will determine the eligibility in the same manner it would be determined for another budget group/household.

§ 275.25. Rights of the individual at the hearing.

 At the hearing, the individual has the following rights:

   (1)  To present a defense or have a defense presented by legal counsel, another authorized representative, relative, friend or other spokesperson.

   (2)  To call witnesses to testify.

   (3)  To present arguments without undue influence.

   (4)  To question or refute testimony or evidence, including an opportunity to confront and cross-examine adverse witnesses.

   (5)  To present evidence to establish pertinent facts and circumstances in the case.

   (6)  To refuse to answer questions during the hearing.

   (7)  To remain silent concerning the charges because anything said or signed concerning the charges can be used against the individual in a court of law.

   (8)  To examine, upon request, the Office of Inspector General’s evidence before the hearing as well as during the hearing.

     (i)   The Department will make available, upon request by the individual, the contents of the case record that the Office of Inspector General will use at the hearing.

     (ii)   The Department will provide, upon request, and without charge, copies of case record material that the Office of Inspector General will use at the hearing.

Cross References

   This section cited in 55 Pa. Code §  275.21 (relating to scheduling of the hearing).

§ 275.26. Conducting the hearing.

 An impartial hearing officer will conduct the hearing. The hearing officer will do the following:

   (1)  Administer oaths and affirmations.

   (2)  Advise the parties that this is an administrative hearing.

   (3)  Advise the individual of the right to remain silent when asked a question during the hearing.

   (4)  Ensure that relevant issues are considered.

   (5)  Mark and admit relevant exhibits into evidence.

   (6)  Conduct an orderly hearing and ensure that the parties’ due process rights are protected.

   (7)  Obtain, at the Department’s expense, medical assessments when determined necessary by the hearing officer and admit the assessments into the record.

   (8)  Provide a hearing record and recommend the final hearing decision to the Director.

   (9)  Ensure that the individual or the individual’s representative is given adequate time to be present for the telephone or face-to-face hearing.

     (i)   For a telephone hearing, the hearing officer will make, at minimum, three attempts to contact the individual or the individual’s representative in the 20-minute period following the scheduled time of the hearing before conducting the hearing without the individual or the individual’s representative being present.

     (ii)   For a face-to-face hearing, the hearing officer will delay the hearing 20 minutes from the scheduled time of the hearing before conducting the hearing without the individual or the individual’s representative being present for the hearing.

§ 275.27. Presence at the hearing.

 (a)  The Office of Inspector General and the individual or the individual’s representative will be present for the telephone or face-to-face hearing.

 (b)  Friends or relatives of the individual may be present for a telephone or face-to-face hearing. The hearing officer may limit the number of persons present at a face-to-face hearing if space limitations exist.

 (c)  If the individual or the individual’s representative fails to be present for the telephone or face-to-face hearing without good cause, the hearing officer will conduct the hearing without the individual or individual’s representative being present. Even though the individual is not present or represented, the hearing officer will consider carefully the evidence and make a determination. If the hearing officer finds that the individual committed an intentional program violation but later determines that there was good cause for not being present, the Director will nullify the decision. The hearing officer who originally ruled on the case may conduct the new hearing.

 (d)  The individual or the individual’s representative has 10 days from the hearing date to show good cause for failing to be present in order to receive a new hearing. The hearing officer will enter the good cause decision into the hearing record.

HEARING RESULTS


§ 275.31. Hearing decision.

 (a)  The hearing officer will have the delegated authority from the Secretary to make a decision on the administrative disqualification hearing.

 (b)  The Department’s Office of Hearings and Appeals will issue a hearing decision within 90 days from the date it sent the hearing notice except as described under §  275.23(d) (relating to postponement).

 (c)  The hearing officer will base the hearing decision on clear and convincing evidence.

 (d)  The hearing officer’s decision will:

   (1)  Summarize the facts.

   (2)  Specify the reasons for the decision.

   (3)  Identify the regulations supporting the decision.

   (4)  Identify the supporting evidence.

   (5)  Respond to reasoned arguments made by the parties.

   (6)  Specify the period of disqualification if the individual is found to have committed an intentional program violation.

   (7)  Specify the claim amount, if appropriate.

 (e)  The Department’s Office of Hearings and Appeals will send the hearing decision to the individual and parties present for the telephone or face-to-face hearing. The decision will include notification of the individual’s right to request a reconsideration or to appeal the decision as described under §  275.61 (relating to right to request reconsideration or right to appeal, or both).

 (f)  The transcript or recording of testimony, exhibits or official reports introduced at the hearing, together with the papers and requests filed in the proceeding will be available upon request to the individual or the individual’s representative at a reasonable time and place for copying and inspection.

Cross References

   This section cited in 55 Pa. Code §  275.23 (relating to postponement).

§ 275.32. Finding of an intentional program violation.

 (a)  If the hearing officer finds that the individual committed an intentional program violation, the Department will notify the individual before disqualification. The notice will include:

   (1)  The period of disqualification.

   (2)  The date disqualification will take effect.

   (3)  The benefit amount the budget group/household will receive during the disqualification period.

   (4)  The statement that, if the individual is not eligible for benefits in the program in which the intentional program violation occurred, the Department will impose the disqualification effective on the date of the administrative disqualification hearing final order.

 (b)  The Department will notify the remaining budget group/ household, if any, of the benefit/allotment they will receive during the disqualification period.

 (c)  The Office of Inspector General will send a demand letter for payment of the claim. The letter will include:

   (1)  The amount owed.

   (2)  The reason for the claim.

   (3)  The offset that reduces the claim.

   (4)  The payment options.

 (d)  The Office of Inspector General will recover the claim pursuant to the procedures in § §  255.4 and 501.1 (relating to procedures; and general provisions).

Source

   The provisions of this §  275.32 amended July 6, 2001, effective July 7, 2001, and apply retroactively to February 1, 1996, for the Food Stamp Program and retroactively to March 4, 1996, for the TANF and GA Cash Assistance Programs, 31 Pa.B. 3538. Immediately preceding text appears at serial pages (220460) to (220461).

Cross References

   This section cited in 55 Pa. Code §  275.33 (relating to finding that no intentional program violation occurred).

§ 275.33. Finding that no intentional program violation occurred.

 (a)  If the hearing officer determines that the individual owes the claim amount but that the individual did not commit an intentional program violation, the hearing officer will order the individual to repay the claim amount as described under § §  255.4 and 501.1 (relating to procedures; and general provisions), which incorporates 7 CFR 273.18(d) (relating to claims against households).

 (b)  The Office of Inspector General will send a demand letter for payment of the claim as described under §  275.32(c) (relating to finding of an intentional program violation).

WAIVER OF ADMINISTRATIVE DISQUALIFICATION
HEARING


§ 275.41. Waiver of administrative disqualification hearing.

 (a)  The individual may waive the administrative disqualification hearing. The notice—see §  275.21 (relating to scheduling of the hearing)—giving the option to waive the administrative disqualification hearing will include:

   (1)  A waiver for the individual to sign and the date the Department must receive the signed waiver to avoid conducting the hearing. The payment name/head of household also shall sign the waiver if the individual is not the payment name/head of the household.

   (2)  A statement that the individual has the right to remain silent concerning the charges and that anything said or signed concerning the charges can be used in a court of law.

   (3)  A statement that the waiver will result in disqualification and a reduction in benefits for the period of disqualification, even if the individual does not admit to the facts as presented by the Office of Inspector General.

   (4)  A statement giving the individual the opportunity to clarify whether the individual admits to the facts as presented by the Office of Inspector General.

   (5)  A Department telephone number to contact for more information.

   (6)  A statement that the remaining budget group/household members, if any, are responsible for payment of the resulting claim.

 (b)  If the individual signs the waiver and the Department receives the waiver within the specified time frame, the Department will impose the disqualification as described under §  275.51 (relating to imposing the disqualification).

Cross References

   This section cited in 55 Pa. Code §  275.21 (relating to scheduling of the hearing).

DISQUALIFICATION


§ 275.51. Imposing the disqualification.

 (a)  An individual found to have committed an intentional program violation or who waived an administrative disqualification hearing is ineligible for program benefits as described under § §  255.1 and 501.13 (relating to restitution and disqualification policy; and intentional program violation disqualification).

 (b)  The Department will disqualify only the individual found to have committed an intentional program violation or who signed the waiver of an administrative disqualification hearing, and not the entire household.

 (c)  The Department will impose the disqualification within the time frame described under § §  255.1 and 501.13.

Cross References

   This section cited in 55 Pa. Code §  275.41 (relating to waiver of administrative disqualification hearing).

RECONSIDERATION OR APPEAL OF
HEARING DECISION


§ 275.61. Right to request reconsideration or right to appeal, or both.

 (a)  One of the following actions may be taken regarding the hearing decision:

   (1)  Either party to the hearing may request a reconsideration of the decision by the Secretary as described under 1 Pa. Code §  35.241 (relating to application for rehearing or reconsideration). The request shall be in writing, state the reason for the reconsideration request, and be postmarked no later than 15 days from the date of hearing decision.

   (2)  Either the individual or the individual’s representative may file a petition for review of the hearing decision with Commonwealth Court.

 (b)  No further administrative review procedure exists after an adverse decision by the Secretary.

Cross References

   This section cited in 55 Pa. Code §  275.31 (relating to hearing decision).

APPENDIX A. [Reserved]



Source

   The provisions of this Appendix A reserved July 11, 1986, effective July 12, 1986, 16 Pa.B. 2524. Immediately preceding text appears at serial pages (42423) to (42428).



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