(1) An intentional program violation (IPV) is a willful action which consists of:
(a) a false or misleading statement or a misrepresentation, concealment, or withholding of facts; or
(b) any other action intended to mislead, misrepresent, conceal, or withhold facts.
(2) If a TANF participant appears to have committed an IPV as defined in (1), the department must initiate administrative disqualification hearing (ADH) procedures to determine if the person should be disqualified from receiving cash assistance.
(3) The individual subject to the ADH must be sent written notification and will be presented with the following:
(a) an explanation of the charges against the individual;
(b) the evidence which exists;
(c) the individual's right to an administrative disqualification hearing;
(d) the option to waive the right to an ADH by signing a written "waiver of right to administrative disqualification hearing"; and
(e) an explanation of the disqualification period and repayment obligation if the individual is found to have committed an IVP at an ADH or signs a waiver of the individual's right to an ADH.
(4) If the individual does not sign a waiver of the right to an ADH within ten days of the date of the written notification, ADH procedures shall be initiated and the individual alleged to have committed an IPV shall be sent a written notice of the hearing at least 30 days prior to the date of the hearing.
(a) The notice must contain:
(i) the date, time, and place of the hearing;
(ii) the charge(s) against the individual;
(iii) a summary of the evidence, and how and where the evidence can be examined;
(iv) a warning that the decision will be based solely on the information provided by the department if the individual fails to appear at the hearing;
(v) a statement that an individual who has received notice of the hearing but did not appear at the hearing shall have ten days from the date of the hearing to present good cause for the failure to appear in order to receive a new hearing;
(vi) a warning that a determination of intentional program violation will result in disqualification periods as set forth in (8)(b)(i) through (b)(iii) of this rule, and a statement of which penalty the department believes is applicable to the individual's case;
(vii) a listing of the individual's rights as set forth in (7) of this rule;
(viii) a statement that the hearing does not preclude the state or federal government from prosecuting the individual for the intentional program violation in a civil or criminal court action, or from collecting any over issuances;
(ix) if there is an individual or organization available which provides free legal representation, notice of the availability of that service; and
(x) notice of the individual's right to obtain a copy of the department's hearing procedures upon request.
(b) The hearing may be held if the notice is returned as undeliverable. However, if no proof of receipt of the notice is obtained, the hearing decision shall be set aside and a new hearing shall be held if the recipient claims good cause for failure to appear due to nonreceipt of the notice within 30 days after the date of written notice of the hearing decision and shows good cause as defined in ARM 37.78.508(4)(a) through (g)(i).
(5) If the participant or the participant's representative cannot be located or fails without good cause to appear at the hearing, the hearing shall be held, but the hearing officer must carefully consider the evidence and determine whether clear and convincing evidence exists that an intentional program violation was committed.
(a) The participant has 30 days as specified in (4)(b) to claim good cause for failure to appear based on nonreceipt of the notice. If the participant claims good cause for failure to appear based on any other cause or circumstance, the recipient must present the claim of good cause within five days of the date of the hearing.
(6) The ADH shall be conducted by an impartial individual appointed or employed by the department as a hearing officer who has not had previous involvement in the individual's case.
(7) An individual charged with an IPV has the right to:
(a) examine all documents and records to be used at the hearing at a reasonable time before the date of hearing as well as during the hearing;
(b) examine the contents of the individual's case file, provided that confidential information such as the name of persons who have anonymously disclosed information about the individual or information about a pending criminal investigation or action shall not be released to the individual and also cannot be offered into evidence at the hearing;
(c) a free copy of any portions of the case file which are relevant to the hearing, if the individual requests a copy.
(8) After the ADH, the hearing officer shall issue a written decision to the participant and the department no later than 90 days after written notice is given to the participant of the hearing, unless the hearing has been postponed, in which case the 90-day period shall be extended for as many days as the hearing was postponed. If the written decision is adverse to the participant the decision will notify the participant of the right to appeal to the Board of Public Assistance.
(a) The participant is entitled to one postponement of the hearing if the request for postponement is made at least ten days in advance of the scheduled date of hearing. However, the hearing may not be postponed for more than a total of 30 days.
(b) The department may limit the number of postponements to one.
(9) If the hearing officer determines after an ADH has been held that the individual committed an IPV, the department must provide the individual with a written notice of disqualification prior to the commencement of the disqualification period. The notice must contain the following information:
(a) notice of the decision and the reason for the decision;
(b) the date the disqualification shall take effect; and
(c) the amount of assistance the remaining household members, if any, will receive during the disqualification period.
(10) If it is determined through an ADH that an individual committed an IPV or if the individual alleged to have committed an IPV signs a waiver of right to ADH, the period of disqualification shall be:
(a) for IPVs involving misrepresentation of the individual's residence to obtain TANF cash assistance benefits in two or more states simultaneously, ten years;
(b) for all other types of IPVs:
(i) 12 months for the first violation;
(ii) 24 months for the second violation; and
(iii) permanently for the third violation.
(11) Disqualification shall begin the first month which follows the date the individual receives written notice of disqualification. Once a disqualification has been imposed, the period of disqualification must continue uninterrupted until completed regardless of the eligibility of the disqualified individual's household.
(12) The determination by the hearing officer that an IPV has occurred cannot be reversed by a subsequent fair hearing decision relating to the same or a similar issue.
(13) During the disqualification period, the income and resources of the disqualified individual shall be counted in their entirety, but the disqualified individual shall not be included as a member of the assistance unit in determining the size of the assistance unit.
(14) During the disqualification period, the disqualified individual shall lose his or her portion of the monthly cash payment and/or any other TANF Cash Assistance benefits.