359.5 Commencement of the administrative disqualification hearings process.
(a) Upon discovering and determining that an intentional program
violation may have occurred, the social services district must document the determination
and reach a conclusion as to whether the documented acts constitute an intentional program
violation in accordance with the standards described in section 359.3 of this Part.
(b) If the social services district concludes that the documented acts
resulted in an intentional program violation and that referral, in accordance with section
359.4 of this Part, to the appropriate prosecutor authorized to act on the matter, is not
warranted or not possible due to the amount in issue, the social services district may
process the case for an administrative disqualification hearing.
(c) If, pursuant to section 359.4 of this Part, the social services
district refers an overpayment or over-issuance to the appropriate prosecutor authorized
to act on the matter, and that prosecutor declines to prosecute or fails to take action on
the referral within a reasonable period of time, and the social services district elects
to initiate the process for an administrative disqualification hearing pursuant to this
section, the social services district must formally withdraw in writing the referral to
the prosecutor before referring the case to the department. Failure to present evidence of
such a formal written withdrawal either in its evidentiary transmittal to the department
or at the hearing may result in an administrative disqualification hearing decision
adverse to the social services district.
(d) (1) If the social services district elects to
process a case for an administrative disqualification hearing, it must assemble
documentary evidence which the district believes is sufficient on its face to support its
determination of intentional program violation and forward the evidence in the form of an
evidentiary packet to the Office of Administrative Hearings, New York State Department of
Social Services, with a request that the department schedule an administrative
disqualification hearing.
(2) If the social services district processes a
case for an administrative disqualification hearing for an FS-IPV and the factual issues
arise from the same or related circumstances as a case for a public assistance-IPV, the
cases must be consolidated and the social services district must submit with the
evidentiary packet required by this subdivision, a statement of the particular intentional
program violation(s) being alleged and the sanction sought to be imposed for each such
intentional program violation being alleged.
(e) The evidentiary packet forwarded by the social services district to
the department accompanying the social services district's request for an administrative
disqualification hearing must have consecutively numbered pages, must be submitted in
three copies for each accused individual and must include, but not be limited to, the
following:
(1) the full name (including middle name), the
complete address (including county of residence), the social security number, the case
number and the date of birth of the person(s) charged and against whom a disqualification
penalty is sought;
(2) a list of the particular charge(s) and the
individual or individuals against whom a disqualification penalty is sought, together with
any statement required by paragraph (2) of subdivision (d) of this section if cases are
consolidated;
(3) a summary of the evidence to be introduced;
(4) a listing of the names, titles and phone
numbers of all social services district personnel and witnesses who will appear in support
of the determination;
(5) an itemized list of all the exhibits
included in the packet with the page number(s) on which each exhibit is found;
(6) copies of all documents to be used in
support of the social services district's determination;
(7) information as to when and where the
original evidence exhibits submitted in the case may be reviewed;
(8) information as to the availability of free
legal services; and
(9) a statement indicating whether the
individual previously has been determined to have committed an intentional program
violation by either a court of competent jurisdiction or an administrative
disqualification hearing decision or whether the individual previously has waived
attendance at an administrative disqualification hearing or previously has signed a DCA.
If the person previously has been determined to have committed an intentional program
violation or previously has waived attendance at an administrative disqualification
hearing or previously has signed a DCA, supporting documentation of such facts must be
included in the evidentiary packet.
(f) Upon receipt of a social services district's request for a hearing
and accompanying evidentiary packet, the department will review the packet to determine if
it contains sufficient documentary evidence to substantiate that an individual has
committed one or more intentional program violations in accordance with the standards
described in section 359.3 of this Part. The department also will determine whether the
evidentiary packet satisfies the provisions of subdivision (e) of this section.
(g) If the department's review of the evidentiary packet indicates that
there is either insufficient documentary evidence to establish that an intentional program
violation was committed or that the packet does not comply with the provisions of
subdivision (e) of this section, the department will return the packet to the social
services district and not schedule a hearing.