RULES AND REGULATIONS
Title 55--PUBLIC WELFARE
DEPARTMENT OF PUBLIC WELFARE
[55 PA. CODE CHS. 255, 275 AND 501]
Restitution; Appeal and Fair Hearing and Administrative Disqualification Hearings; Food Stamp Discretionary Provisions
[31 Pa.B. 3538] The Department of Public Welfare (Department), by this order, amends Chapters 255, 275 and 501 (relating to restitution; appeal and fair hearing and administrative disqualification hearings; and food stamp discretionary provisions) as set forth in Annex A under the authority of sections 201(2) and 403(b) of the Public Welfare Code (code) (62 P. S. §§ 201(2) and 403(b)). Section 201(2) of the code provides that the Department has the authority to promulgate amendments, with approval of the Governor, as may be necessary to render the Commonwealth eligible for Federal funds or other assistance. Section 403(b) of the code provides that the Department establish rules, regulations and standards consistent with the law, as to eligibility for assistance and as to its nature and extent. Section 403(b) of the code also provides that, whenever possible, except for residency requirements for General Assistance (GA), the Department establish rules, regulations and standards for GA consistent with those established for Aid to Families with Dependent Children (AFDC), which has been replaced by Temporary Assistance for Needy Families (TANF). The rules, regulations and standards established for GA will not provide for assistance greater than that provided for AFDC (now TANF). In addition, section 402(a)(6) of the Social Security Act (42 U.S.C.A. § 602(a)(6)) requires the Commonwealth to certify that it has established and is enforcing standards and procedures to guard against fraud and abuse. These amendments affect the TANF and GA Cash Assistance Programs and the Food Stamp Program.
Notice of proposed rulemaking is omitted in accordance with section 204(1)(iv) and (3) of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204(1)(iv) and (3)) referred to as the Commonwealth Documents Law (CDL) because a ruling in a Federal case announced the legal interpretation of the Federal statute which provides the authority for these amendments and the amendments relate to Commonwealth grants and benefits. The Department finds that notice of proposed rulemaking is contrary to the public interest as the amendments benefit persons who have been determined to be disqualified but who are now eligible for benefits. Notice of proposed rulemaking would delay benefits to those who are the intended beneficiaries of the Court ruling and the regulation. A Notice of Rule Change (NORC) was published at 26 Pa.B. 5659 (November 16, 1996) which invited public comment. The Department received no public comments.
Purpose
The purpose of these amendments is to incorporate into Chapters 255, 275 and 501 new Federal agency directives concerning the implementation of cash assistance and food stamp disqualification penalties for individuals who are not eligible for program benefits at the time the disqualification is determined.
Background
Under regulations in effect prior to the NORC, the Department postponed implementing the disqualification penalty if the individual to be disqualified was not eligible for benefits under the program in which the intentional program violation occurred. Instead, the disqualification was imposed when the individual reapplied for and was determined eligible for the benefits.
The United States Department of Agriculture requires these amendments to achieve compliance with the ruling of the United States Court of Appeals for the Ninth Circuit in Garcia v. Concannon & Espy, 67 F.3d 256 (9th Cir. 1995). In Garcia, the Court held that the policy of postponing the implementation of a food stamp disqualification penalty until such time as the individual was eligible for Food Stamp Program benefits violated section 6(b)(1) of the Food Stamp Act of 1977 (7 U.S.C.A. § 2015(b)(1)). The United States Department of Health and Human Services, Administration for Children and Families, required the same amendments for the AFDC Program. The Department extended the amendments to the GA Program because the Department, whenever possible, except for residency requirements for GA, will establish rules, regulations and standards for GA consistent with those established for AFDC (now TANF). The rules, regulations and standards established for GA will not provide for assistance greater than that provided for AFDC (now TANF). As a result, an individual found to have committed an intentional program violation or who agrees to the disqualification penalty and who is not currently eligible for program benefits will be subject to immediate disqualification. These amendments do not affect the 45 days allowed for the imposition of a disqualification penalty for individuals who are eligible for program benefits.
Since issuance of the NORC, however, the TANF program has replaced the former AFDC program. The Federal mandate requiring the rules in AFDC to mirror food stamp disqualification penalties have been rescinded. See 62 Fed. Reg. 64301. Under Federal Welfare Reform, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), the Commonwealth is required to certify that it has established and is enforcing standards and procedures to guard against fraud and abuse. See 42 U.S.C.A. § 602(a)(6). The Department announced in its implementation of the TANF program NORC published at 27 Pa.B. 1093 (July 17, 1993) and the TANF State Plan published at 27 Pa.B. 342 (January 18, 1997) that it would continue AFDC rules for the most part, except as noted in the NORC for TANF. The Department has decided to continue to treat the imposition of TANF/GA and Food Stamp disqualification penalties in the same manner.
Any disqualification penalties pended prior to the NORC were considered served if the time elapsed from the decision date was greater than or equal to the length of the disqualification period. If the time elapsed from the decision date was less than the length of the disqualification period, the individual was considered disqualified until the time elapsed was equal to the length of the disqualification period. The Department updated its Disqualified Recipient System to indicate that individuals served the disqualification penalty as long as the time elapsed from the decision date was equal to the disqualification period. Since all pended disqualifications have been served, there is no need to regulate this provision of the Federal agency directives.
Need for Amendments
These amendments are needed to implement intentional program violation disqualification directives as specified in United States Department of Agriculture Administrative Notice 4-96, relating to Food Stamps and United States Department of Health and Human Services, Administration for Children and Families Action Transmittal No. ACF-AT-96-1, relating to AFDC. Although the AFDC Program has been replaced by the TANF Program, Federal law still requires the Commonwealth to administer a fraud and abuse program under 42 U.S.C.A. § 602(a)(6). The AFDC rules have been continued under TANF, except as noted in the TANF NORC published at 27 Pa.B. 1092 (February 28, 1997). The policy directives were implemented under a NORC published at 26 Pa.B. 5659 (November 16, 1996), retroactively effective to February 2, 1996, for the Food Stamp Program and March 4, 1996, for the TANF and GA cash assistance programs.
Summary of Regulations
Chapter 255
The amendment to § 255.1 (relating to restitution and disqualification policy) clarifies that there is a difference in the dates on which disqualification is implemented if an individual is eligible for cash assistance benefits under the program in which the intentional program violation occurred, or if the individual is not eligible for benefits at the time of disqualification. The amendment also changes the date on which the disqualification is imposed when the individual is not eligible for benefits at the time of disqualification, to the date of a court or administrative order, the signing of a consent agreement or the waiver of an administrative disqualification hearing.
Chapter 275
The amendment to § 275.32 (relating to filing of an intentional program violation) changes the notice given when an intentional program violation is found. The amendment clarifies that if an individual is not eligible for benefits at the time of the violation, the notice will indicate an immediate implementation of the penalty.
Chapter 501
The amendment to § 501.13 (relating to intentional program violation disqualification) clarifies that there is a difference in the dates on which disqualification is implemented if an individual is eligible for food stamp benefits, or if the individual is not eligible for benefits at the time of disqualification. The amendment also changes the date on which the disqualification is imposed when the individual is not eligible for food stamp benefits at the time of disqualification, to the date of a court or administrative order. The amendments also make the same clarification as applied to disqualification when an administrative disqualification hearing is waived.
Affected Individuals and Organizations
These amendments will affect all applicants and former and current recipients of the TANF and GA Cash Assistance Programs and the Food Stamp Program.
Accomplishments/Benefits
Adoption of these amendments will codify the program changes mandated by Garcia as well as with United States Department of Agriculture Administrative Notice 4-96, 42 U.S.C.A. § 602(a)(6), the TANF State Plan (27 Pa.B. 342) and the TANF NORC (27 Pa.B. 1092).
Fiscal Impact
Public Sector: These amendments impose no costs on the public sector.
Private Sector: These amendments impose no costs on the private sector.
General Public: These amendments impose no costs on the general public.
Paperwork Requirements
These amendments will not change existing reporting or paperwork requirements.
Cross References
These amendments do not affect any other laws or regulations.
Effective Date
These amendments will take effect upon publication in the Pennsylvania Bulletin as final-form rulemaking retroactively to February 1, 1996, for the Food Stamp Program regulations and March 4, 1996, for the TANF and GA Cash Assistance Program regulations, as set forth in the NORC published at 26 Pa.B. 5659.
Sunset Date
There is no sunset date. The amendments apply to an ongoing program. The Department will evaluate the effectiveness of these regulations on an ongoing basis.
Public Comments
Although these amendments are being adopted without prior notice, interested persons are invited to submit written comments within 30 days from the date of the publication for consideration by the Department as to whether these amendments should be revised. The comments should be sent to the Department of Public Welfare, Edward J. Zogby, Acting Director, Bureau of Policy, Room 431 Health and Welfare Building, Harrisburg, PA 17120, (717) 787-4081.
Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).
Regulatory Review Act
Under section 5.1(c) of the Regulatory Review Act (71 P. S. § 745.5a(c)) on April 25, 2001, the Department submitted a copy of these final-omitted regulations to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare. On the same date, the final-omitted regulations were submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101--732-506).
Under section 5.1(d) of the Regulatory Review Act, on May 15, 2001, these final-omitted regulations were deemed approved by the House or Senate Committees. Under section 5.1(e) of the Regulatory Review Act, on May 17, 2001, IRRC met and approved the final-omitted regulations.
Findings
The Department finds that:
(1) Public notice of intention to amend the administrative regulations amended by this order is omitted in accordance with section 204(1)(iv) and (3) of the CDL because a ruling in a Federal case announced the legal interpretation of the Federal statute which provides the authority for these regulations and the regulations relate to Commonwealth grants and benefits.
(2) The adoption of these amendments in the manner provided in this order is necessary and appropriate for the administration and enforcement of the code.
Order
The Department acting under the code orders that:
(a) The regulations of the Department, 55 Pa. Code Chapters 255, 275 and 501, are amended by amending §§ 255.1, 275.32 and 501.13 to read as set forth in Annex A.
(b) The Secretary of the Department shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as to legality and form as required by law.
(c) The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin 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.
FEATHER O. HOUSTOUN,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 31 Pa.B. 2855 (June 2, 2001).)
Fiscal Note: 14-448. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 55. PUBLIC WELFARE
PART II. PUBLIC ASSISTANCE MANUAL
Subpart G. RESTITUTION AND REIMBURSEMENT
CHAPTER 255. RESTITUTION
GENERAL PROVISIONS § 255.1. Restitution and disqualification policy.
(a) This chapter applies to AFDC, GA and SBP, except as modified in subsections (c)--(e) and in Chapter 451 (relating to State Blind Pension) and MA. This chapter does not apply to overpayments resulting from the forged endorsement of assistance checks. Recovery of overpayments is described in § 231.24(c) (relating to procedures).
(b) The general restitution policy of the Department will be as follows:
(1) The course of action of the Department in respect to overpayments will be directly related to the cause or reason underlying the client's receipt of assistance for which the client was not eligible. When the overpayment appears due to fraud, the Public Welfare Code (62 P. S. §§ 101--1412) will set the course of action to be taken.
(2) The decision as to whether or not fraud is suspected will be an administrative decision which will place on the Department the responsibility of distinguishing between overpayments due to fraud, and those due to error. To carry out this responsibility, the Department has developed certain objective criteria which will be used in deciding the appropriate action for an overpayment.
(3) Assistance regulations, including this chapter, are aimed at reducing and preventing the incidence of overpayment. Accomplishment of this objective will depend to a large extent on the degree to which the respective responsibilities of the client and the worker are understood and developed. These responsibilities are given in detail in other sections of this title but essential elements are repeated here because of their importance.
(4) A person applying for or receiving assistance has an obligation to report his resources and changes in circumstances. An adult applicant and recipient will be responsible for reporting these facts as they apply to him and to other persons in his assistance unit.
(5) The worker will have an obligation to explain eligibility requirements in terms that fit the situation of the client. The worker will be responsible for being alert to the possibility of resources or changes in the circumstances of the client and for setting up with the client definite and specific reporting requirements appropriate to the situation. The plan for reporting will be entered in the case record.
(c) In addition to being subject to other civil or criminal penalties, an AFDC or GA recipient who has been found by a Federal or State court or by the Department, following an administrative disqualification hearing--as described in Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings)--to have committed an intentional program violation shall be disqualified from receiving Cash Assistance for 6 months for the first offense, 12 months for the second offense and permanently for the third offense. The Department will not take the disqualified individual's needs into account when determining the budget group's need for and amount of assistance. The Department will consider available to the budget group countable income and resources of the disqualified individual.
(d) The Department will provide an applicant for GA and AFDC, at the time of application or reapplication for aid, with written notice of the penalties for intentional program violation which are provided in subsection (c).
(e) The Department will provide current recipients of GA and AFDC with a one-time written notice of the penalties which are provided for in subsection (c) prior to imposition of disqualification.
(f) If the individual is eligible for benefits under the program in which the intentional program violation occurred, the Department will impose the disqualification within 45 days of the date of the finding of the court, administrative disqualification hearing final order or signing of a consent agreement or waiver of administrative disqualification hearing as set forth in Chapter 275, Subchapter B (relating to administrative disqualification hearings). If the individual, who is found to have committed an intentional program violation or who signs a consent agreement or waiver of administrative disqualification hearing is not eligible for benefits under the assistance program in which the intentional program violation occurred, the Department will impose the disqualification effective on the date of the finding of the court, administrative disqualification hearing final order or signing of a consent agreement or waiver of administrative disqualification hearing. Once the Department imposes the disqualification, the disqualification period shall continue uninterrupted.
Subpart H. APPEAL AND FAIR HEARING
CHAPTER 275. APPEAL AND FAIR HEARING AND ADMINISTRATIVE DISQUALIFICATION HEARINGS
Subchapter B. ADMINISTRATIVE DISQUALIFICATION HEARINGS
HEARING RESULTS § 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).
Subpart L. FOOD STAMP PROGRAM
CHAPTER 501. FOOD STAMP DISCRETIONARY PROVISIONS § 501.13. Intentional program violation disqualification.
(a) Determination of an intentional program violation.
(1) Disqualification hearings--7 CFR 273.16(a) and (e). The Office of Hearings and Appeals is responsible for conducting administrative disqualification hearings for individuals alleged to have committed an intentional program violation as set forth in § 275.11(a) (relating to general policy).
(2) Court referrals--7 CFR 273.16(g). The Office of Inspector General will refer appropriate cases to law enforcement authorities for prosecution. An individual suspected of committing one or more acts of intentional program violations will be referred by the Office of Inspector General for prosecution.
(3) Imposing the disqualification--7 CFR 273.16(e) and (g). The Department will impose the disqualification against the individual eligible for food stamp benefits within 45 days of the date of the finding of the court or administrative disqualification hearing final order. If the individual, who is found to have committed an intentional program violation is not eligible for food stamp benefits, the Department will impose the disqualification effective on the date of the finding of the court or administrative disqualification hearing final order. Once the Department imposes the disqualification, the disqualification period shall continue uninterrupted.
(b) Disqualification without a hearing or prosecution by a court.
(1) Waived hearings--7 CFR 273.16(f). The procedures to allow the individual to waive an administrative disqualification hearing are set forth in § 275.41 (relating to waiver of administrative disqualification hearing). If the individual is eligible for food stamp benefits, the period of disqualification will begin within 45 days of the date the individual signed the waiver. If the individual is not eligible for food stamp benefits, the Department will impose the disqualification effective on the date the individual signed the waiver. Once the Department imposes the disqualification, the disqualification period shall continue uninterrupted.
(2) Deferred adjudication--7 CFR 273.16(h). The Department will establish procedures to allow accused individuals to sign disqualification consent agreements for cases of deferred adjudication. The Office of Inspector General may use this method for cases in which a determination of guilt is not obtained from a court due to the accused individual having met the terms of a court order or which are not prosecuted due to the accused individual having met the terms of an agreement with the prosecutor. Disqualification consent agreements in cases referred for prosecution will conform with the following requirements:
(i) Notification. Advance written notification will be provided to the household member stating the consequences of consenting to disqualification as part of the deferred adjudication. The advance notification will include, at a minimum:
(A) A statement for the accused individual to sign that indicates the accused individual understands the consequences of consenting to disqualification. The head of the household shall also sign the consent agreement if the accused individual is not the head of the household.
(B) A consent to disqualification will result in disqualification and a reduction in benefits for the period of disqualification, even though the accused individual was not found guilty of civil or criminal misrepresentation or fraud.
(C) Disqualification penalties for intentional program violation under the Food Stamp Program which could be imposed are 6-month disqualification for the first violation, 12-month disqualification for the second violation and permanent disqualification for the third violation.
(D) A statement that the remaining household member, if any, will be held responsible for repayment of the resulting claim as a result of meeting the terms of the agreement with the prosecutor or the court order.
(ii) Household member consent to disqualification. If the household member suspected of an intentional program violation signs the disqualification consent agreement, the household member shall be disqualified in accordance with the disqualification period specified in 7 CFR 273.16(b) (relating to disqualification for intentional program violation), unless contrary to the order. The period of disqualification shall begin against the household member eligible for food stamp benefits within 45 days of the date the household member signed the disqualification consent agreement. If the household member is not eligible for food stamp benefits, the Department will impose the disqualification effective on the date the individual signed the disqualification consent agreement. Once the Department imposes the disqualification, the disqualification period shall continue uninterrupted.
[Pa.B. Doc. No. 01-1217. Filed for public inspection July 6, 2001, 9:00 a.m.]
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