4100, Introduction and Legal Basis — 1 Texas Administrative Code (TAC) §357.521

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Revision 15-2; Effective November 20, 2015

A respondent becomes ineligible to take part in the Supplemental Nutrition Assistance Program (SNAP) and/or Temporary Assistance for Needy Families (TANF) program if a state or federal court or administrative agency finds he has committed an intentional program violation.

The Food Stamp Act of 1977, as amended in Section 6(b) by the Omnibus Budget Reconciliation Act of 1981, and Sections 403, 416 and 1102 of the Social Security Act provide for this action.

4110 Requirement for Administrative Disqualification Hearing (ADH)

Revision 15-2; Effective November 20, 2015

Federal regulations implementing the provisions of the Food Stamp Act and Social Security Act require the Texas Health and Human Services Commission (HHSC) to establish procedures for holding administrative disqualification hearings.

According to TAC, Title 1, Part 15, Chapter 357, §357.521, HHSC may initiate an administrative disqualification hearing in SNAP and TANF cases. To initiate this hearing, HHSC must have documented evidence to prove that a respondent has intentionally committed one or more of the acts described in Section 4111, Definition of Intentional Program Violation.

HHSC will combine the proceedings against a person taking part in both the SNAP and TANF programs if the factual issue arises from the same or similar circumstances.

4111 Definition of Intentional Program Violation

Revision 15-2; Effective November 20, 2015

The Code of Federal Regulations (CFR), Title 7, Subtitle B, Chapter II, Part 273, Subpart F, §273.16(c) states that a SNAP intentional program violation is one or more of the following intentional actions:

Making a false or misleading statement, or misrepresenting, concealing or withholding facts.
Committing any act that constitutes a violation of the Food Stamp Act; SNAP regulations; or any state statute relating to the use, presentation, transfer, acquisition, receipt, possession or trafficking* of SNAP coupons or authorization cards, or reusable documents used as part of an automated benefit delivery system (access device).

* Trafficking means:

the buying, selling, stealing or otherwise effecting an exchange of SNAP benefits issued and accessed via Electronic Benefit Transfer (EBT) cards, card numbers and personal identification numbers (PINs), or by manual voucher and signature, for cash or consideration other than eligible food, either directly, indirectly, in complicity or collusion with others, or acting alone;
attempting to buy, sell, steal or otherwise effect an exchange of SNAP benefits issued and accessed via EBT cards, card numbers and PINs, or by manual voucher and signature, for cash or consideration other than eligible food, either directly, indirectly, in complicity or collusion with others, or acting alone;
the exchange of firearms, ammunition, explosives or controlled substances, as defined in Section 802 of Title 21, United States Code, for SNAP benefits;
purchasing a product with SNAP benefits that has a container requiring a return deposit with the intent of obtaining cash by discarding the product and returning the container for the deposit amount, intentionally discarding the product, and intentionally returning the container for the deposit amount;
purchasing a product with SNAP benefits with the intent of obtaining cash or consideration other than eligible food by reselling the product, and subsequently intentionally reselling the product purchased with SNAP benefits in exchange for cash or consideration other than eligible food; or
intentionally purchasing products originally purchased with SNAP benefits in exchange for cash or consideration other than eligible food.

Title 45 CFR, Subtitle B, Chapter II, Part 235, §235.110(b) states that a TANF intentional program violation is determined in accordance with state law. A TANF violation occurs when a person’s action results in:

a false or misleading statement, or misrepresentation, concealment or withholding of facts; or
any act intended to mislead, misrepresent, conceal or withhold facts or to represent a falsehood as a fact.

HHSC may charge a respondent with an intentional program violation even if he has not actually received benefits to which he is not entitled.

4112 Initiating the Administrative Disqualification Process

Revision 15-2; Effective November 20, 2015

Office of Inspector General (OIG) investigators are responsible for starting the process to inform certain individuals accused of an intentional program violation about their right to waive an administrative disqualification hearing. If the respondent signs the waiver, see Section 4131, Waivers. When the respondent does not sign the waiver, OIG investigators send the case to a hearings officer to schedule an administrative disqualification hearing. The hearings officer decides whether or not the respondent is guilty of committing an intentional program violation.

4120 Administrative Disqualification Hearings Officer

Revision 15-2; Effective November 20, 2015

4121 Designation of Hearings Officer — 1 TAC §357.522

Revision 15-2; Effective November 20, 2015

HHSC employs impartial officials to preside over fair and fraud hearings and to issue decisions on actions taken by HHSC and its designees, per state and federal law. A person authorized to conduct fair hearings under Section 1000, Fair Hearings, may also conduct administrative disqualification hearings.

4122 Disqualification of Hearings Officer — 1 TAC §357.523

Revision 15-2; Effective November 20, 2015

HHSC disqualifies a hearings officer if he takes part in the decision to:

refer the case to the investigation unit, or
recommend disqualification for intentional program violation.

HHSC may disqualify a hearings officer for any of the following reasons:

The hearings officer took part in a case conference with the worker, investigator or the supervisor to make a referral for an intentional program violation decision. The hearings officer may not have discussed or evaluated a case or any major points at issue.
The hearings officer reviewed the entire record or a comprehensive summary of the record to make a referral for disqualification.
The hearings officer has a personal interest in the outcome of the hearing decision or has some other conflict of interest.
A respondent asks that a certain hearings officer not hold the hearing or makes allegations against the fairness of the hearings officer.
The hearings officer has supervised the worker or investigator within the past two years, although the hearings officer may not have been involved in the decision.

HHSC does not disqualify a hearings officer for answering a question about HHSC policy concerning the case if the question and answer are stated in broad terms.

4123 Alternate Hearings Officer

Revision 15-2; Effective November 20, 2015

If the hearings officer questions his qualifications, he informs the hearings manager or hearings administrator about his concerns. The hearings manager or administrator may assign the hearing to another hearings officer.

If an alternate hearings officer cannot be chosen from within the same area, the hearings administrator appoints an alternate hearings officer from another area.

When the hearings manager or administrator appoints an alternate hearings officer, the first hearings officer immediately sends all documents concerning the hearing to the alternate hearings officer.

4124 Hearings Officer's Powers and Duties — 1 TAC §357.524

Revision 15-2; Effective November 20, 2015

The hearings officer:

administers oaths or affirmations;
makes sure all relevant issues are considered;
requests, receives and includes in the record all evidence determined necessary to make a decision;
ensures an orderly hearing by regulating the conduct and course of the hearing;
makes an administrative decision concerning the hearing in the name of HHSC; and
requires the attendance of an HHSC representative to explain and defend HHSC’s allegation. The hearings officer may request the presence of another HHSC representative, but does not have the authority to subpoena witnesses.

4130 Referral Process

Revision 15-2; Effective November 20, 2015

The OIG investigator sends the hearings officer a referral for an administrative disqualification concerning the alleged intentional program violation. The referral must include, but is not limited to:

a recommendation of TANF or SNAP disqualification,
a brief statement of allegations,
a summary of the evidence,
the respondent's most current address and telephone number available to any division within HHSC.

Before the hearing, the OIG investigator sends the hearings officer and the respondent an evidence packet which must include, but is not limited to:

the referral summary,
the notice and final notice to the respondent, and
copies of all documents necessary to support the disqualification recommendation.

The OIG investigator should send the evidence packet to the hearings officer and the respondent at least 20 calendar days before the hearing to allow sufficient time for review.

The hearings officer sets the date for the hearing and sends Form H4851-F, Notice of Administrative Disqualification Hearing, to the respondent and OIG investigator.

If two or more members of the same household are charged, the hearings officer handles each as a separate case. However, at the request of both parties, HHSC may hold a joint hearing. Even if HHSC holds a joint hearing, the hearings officer issues separate decisions and must send a separate notice to each person.

4131 Waivers

Revision 15-2; Effective November 20, 2015

OIG investigators are responsible for starting the process to inform certain individuals accused of an intentional program violation about their right to waive an administrative disqualification hearing. The respondent may waive his right to a hearing when the respondent signs and returns the waiver. If the respondent waives the administrative disqualification hearing, he will sign a Waiver of Disqualification Hearing form and a Repayment Agreement form.

The OIG investigator sends a copy of the signed waiver to the Appeals Division and to the OIG Disqualification Unit, State Office, which initiates the disqualification penalty. The Appeals Division will make sure appropriate hearings staff are informed.

4132 Definition of a Valid Waiver

Revision 15-2; Effective November 20, 2015

7 CFR §273.16(f) refers to waivers. Please see the full section for more information.

7 CFR §273.16(f) defines a valid waiver as:

"(ii) The written notification provided to the household member which informs him/her of the possibility of waiving the administrative disqualification hearing shall include, at a minimum:

(A) The date that the signed waiver must be received by the State agency to avoid the holding of a hearing and a signature block for the accused individual, along with a statement that the head of household must also sign the waiver if the accused individual is not the head of household, with an appropriately designated signature block."

4133 Processing ADH Waivers or Withdrawals

Revision 15-2; Effective November 20, 2015

Upon receipt of a valid waiver from a respondent or a request from OIG to withdraw the ADH referral, the hearings officer takes action based on the circumstances described below. A case folder will be created for each waiver/withdrawal and filed according to local office procedures.

Scenario 1: After hearings staff mail the appointment notice, the hearings officer receives a waiver, or OIG asks to withdraw the ADH request.

OIG sends an ADH case report to hearings staff asking for an ADH. Hearings staff schedule the ADH and mail the appointment letter to the respondent. After the mailing of the appointment notice, but before the hearing, OIG gives the hearings officer a valid waiver. The hearings officer sends the respondent a letter stating the hearing will not be held because the respondent waived his right to a hearing. Hearings staff generate all waiver and withdrawal notices via the Texas Integrated Eligibility Redesign System (TIERS) Hearings and Appeals Correspondence.

Scenario 2: Before hearings staff mail the appointment notice, the hearings officer receives a waiver, or OIG asks to withdraw the ADH request.

OIG sends an ADH summary to hearings staff asking for an ADH. Before hearings staff mail the appointment letter, OIG receives a valid waiver from the respondent and sends it to the hearings officer, or OIG decides it should not have asked for an ADH and sends a withdrawal to the hearings officer. If the ADH has not been assigned to a hearings officer, the waiver/withdrawal is sent to the manager for assignment. The hearings officer generates a letter to the respondent via TIERS Hearings and Appeals Correspondence.

Scenario 3: During or after the hearing, OIG asks to withdraw the ADH request, or the hearings officer receives a waiver.

OIG sends an ADH summary to hearings staff asking for an ADH. Hearings staff schedule the ADH and mail the appointment letter to the respondent. During or after the hearing, OIG decides to withdraw its request or submits a waiver. The hearings officer will issue a decision. The decision will be “did not commit” if OIG requests to withdraw the ADH request. If the hearings officer receives a waiver during or after the hearing, he will decide the case based on the evidence.

4134 Scheduling the Hearing — 1 TAC §357.525

Revision 15-2; Effective November 20, 2015

Form H4851-F, Notice of Administrative Disqualification Hearing, must be sent to the respondent within 20 calendar days from the date OIG asks for the hearing. The hearings officer must hold the hearing and issue a written decision no later than 90 calendar days from the date hearings staff mail the hearing notice to the respondent. The hearings officer schedules the hearing at a reasonable time and place. Hearings are normally held using a scan call conferencing system. A respondent may ask for a face-to-face hearing, but must show good cause for a face-to-face hearing before the hearings officer grants the request. The hearings officer decides whether good cause exists for a face-to-face hearing.

4135 Advance Notice of Hearing — 1 TAC §357.526

Revision 15-2; Effective November 20, 2015

The hearings officer sends the respondent advance notice of the hearing in sufficient time to allow receipt at least 30 calendar days before the scheduled hearing date. The notice is sent first class and certified mail, return receipt requested, to the most current mailing address available to any division within HHSC, and it is marked "return service requested." Delivery is not restricted to the addressee. The notice specifies the charges against the respondent and a summary of the evidence (including how and where it may be examined). If the notice is returned showing a new address, the hearings officer will re-send it and reapply advance notice requirements.

Form H4851-F, Notice of Administrative Disqualification Hearing, serves as a notice of the hearing for the respondent. Hearings staff generate all hearing notices via TIERS Hearings and Appeals Correspondence.

The hearings officer sends a full hearing packet to the respondent and the respondent’s representative, which includes a copy of Form H4800-ADH, Request for Administrative Disqualification Hearing; Form H4851-F; Form H4855, Statement of Household Member's Rights in Administrative Disqualification Hearing; Form H4856, Request for Another Appointment for Administrative Disqualification Hearing; Form H4861, Receipt of Notice; and an envelope addressed to the hearings officer.

The hearings officer sends a partial hearing packet to the witnesses, which includes Form H4851-F only.

TIERS generates an alert to the agency representative when the Managed Office Resource (MOR) search function is used to create the appeal. If MOR is not used, a packet containing Form H4851-F is generated.

Because the respondent must receive the notice at least 30 days before the hearing, TIERS will not allow hearings staff to enter the notice less than 40 days before the hearing if advance notice requirements apply. (See Section 4220, Time Frames, Postponements, Recesses and Delays — 1 TAC §357.533 and §357.534, for information on when advance notice requirements do not apply. If advance notice requirements do not apply, TIERS will not allow hearings staff to enter the notice less than 14 days before the hearing.)

Advance notice requirements are met when the hearings officer mails the notice to the most current mailing address available to any division within HHSC. Regardless of whether the certified or first class mail is returned, if the hearings officer mailed it per advance notice requirements, the hearing will be held.

If the returned notice shows a new address, another notice is mailed following the procedures in the first paragraph of this section, and the 90-day time requirement for issuing a decision begins again with the date that the second notice is mailed.
If the respondent claims non-receipt of notice of the hearing, he has one year after the date of the hearing decision to claim good cause for not appearing at the hearing. In all other instances, the respondent has 10 calendar days from the date of the hearing to claim good cause for not appearing. If the respondent is found to have committed an intentional program violation, but a hearings officer later finds that good cause existed for the respondent's failure to appear, then the previous decision shall no longer be valid, a new hearing will be held, and a new decision will be issued.

4136 Participation While Hearing Is Pending — 1 TAC §357.527

Revision 15-2; Effective November 20, 2015

HHSC may not disqualify a respondent for an intentional program violation until the hearings officer finds that the person committed an intentional program violation. A pending hearing does not affect the respondent's or the household's right to be certified and participate in the program.

HHSC reduces or terminates benefits if:

HHSC has documentation substantiating the household is either ineligible or eligible for fewer benefits (even if these facts suggest an intentional program violation and lead to an administrative disqualification hearing), or
the household fails to ask for a fair hearing and for continued benefits pending the hearing.

HHSC may adjust benefits if it has facts substantiating the household's failure to report a change in its circumstances. HHSC does not have to show that the failure to report was an intentional program violation before making the adjustment.

Pending the hearing, HHSC determines the eligibility and benefit level of the household per usual procedures. If the suspected action does not affect the household's current circumstance, the household:

continues to get its allotment based on the latest certification action, or
is recertified based on a new application and current circumstances.

HHSC terminates benefits if:

the certification period has expired, and
the household fails to reapply after receiving an expiration notice.