65A-1.900: Overpayment and Benefit Recovery
PURPOSE AND EFFECT: The proposed rule amendment amends policy governing the compromise of a food stamp overpayment. Included in this proposed rule amendment are some wording changes and technical changes of a non-substantive nature improving the overall content of the rule.
SUBJECT AREA TO BE ADDRESSED: Compromise of food stamp overpayment.
SPECIFIC AUTHORITY: 409.919, 414.41, 414.45 FS.
LAW IMPLEMENTED: 414.31, 414.41 FS.
IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
TIME AND DATE: February 17, 2009, 1:30 p.m.
PLACE: 1317 Winewood Boulevard, Building 3, Room 455, Tallahassee, Florida 32399-0700
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Cindy Keil, ACCESS Florida Program Policy, 1317 Winewood Boulevard, Building 3, Tallahassee, Florida 32399-0700, (850)410-3291
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:
65A-1.900 Overpayment and Benefit Recovery.
The purpose of this section is to define the administrative policies applicable to the establishment and recovery of overpayment in the public assistance programs.
(1) No change.
(a) Overpayment: Overpayment is tThe amount of public assistance received for which an individual was not entitled.
(b) Intentional Program Violation: Intentional Program Violation (IPV) or fraud is defined pursuant to Section 414.39, F.S., incorporated by reference (2008), 7 C.F.R. §273.16 incorporated by reference (2008), and 45 C.F.R. §235.110 incorporated by reference (2008).
(c) Direct Reimbursement: Direct reimbursement is repayment by an individual person to the Ddepartment or contractor by cash, check or money order.
(d) Recoupment of Benefits: Recoupment of benefits is the deduction of repayment amounts from benefits prior to disbursing them to the person receiving assistance.
(e) Refusal to Repay: Refusal to repay occurs when the individual person responsible for repayment has:
1. through a. No change.
b. Advises the Ddepartment either orally or in writing that they refuse to repay the amount owed; or
c. through 2. No change.
a. Fails to contact the Ddepartment within ten days for food stamp Intentional Program Violation, 20 days for food stamp Inadvertent Household Error (IHE), or 30 days for food stamp aAgency eError and all other public assistance errors including those for the Refugee Assistance (RAP) and Optional State Supplementation Programs from the date of such notification; or
b. Contacts the Ddepartment, but still fails to make the delinquent payment by the last day of the month following the month in which the payment was originally due, unless the individual has obtained, in writing, the Ddepartment’s consent to a change in the repayment agreement.
(f) Notification: Notification, for purposes of this section, is defined as any correspondence from the Ddepartment that advises an individual of the status of an overpayment. Any Such notification will shall be in compliance with 7 C.F.R. §273.18 incorporated by reference (2008) or 45 C.F.R. §235.110 as appropriate.
(g) No change.
1. Food expenses will be considered according to the current United States Department of Agriculture thrifty food plan with no income for the number of people in the household.
2. Shelter expenses will include rent or mortgage payments; taxes and insurance on the home; cost of fuel, electricity or both with which to heat, cool and cook; and the basic service fee for one telephone. These expenses will not be considered if paid by someone outside those residing together.
3. through 4. No change.
5. Clothing and personal and household incidental expenses will be considered in the amount of actual expenses. The Department requires vVerification will be required if it the department considers reported expenses excessive.
(2) Individuals Persons Responsible for Repayment of Overpayment.
(a) Individuals Persons who received Aid to Families with Dependent Children (AFDC) and other cash assistance overpayments as an adult will shall be responsible for repayment of the overpayment.
(b) Food stamp overpayments will shall be recovered from an individual as specified in 7 C.F.R. §273.18.
(c) Individuals Persons who received Medicaid overpayments as an adult will shall be responsible for repayment of the overpayment.
(d) No change.
(e) For the purpose of this rule, an adult is defined as:
1. Eighteen (18) years of age or older,
2. through (3) No change.
(a) Monthly repayment amounts of all AFDC and cash assistance overpayments shall include the following provisions:
1. Any individual person no longer receiving cash assistance will shall negotiate a repayment agreement with the Ddepartment or contractor.
2. Any individual person affected by the preceding subparagraph 65A-1.900(3)(a)1., F.A.C., is entitled to a departmental review or hearing pursuant to Chapter 65-2, F.A.C.
(b) Monthly repayment amounts of all food stamp overpayments will shall be determined in accordance with 7 C.F.R. §273.18.
(c) Monthly repayment amounts of all Medicaid overpayments will shall be determined with those individuals persons responsible for repayment based on factors relating to the amount of the claim, their persons’ financial situation and the period over which the claim will be liquidated.
(4) No change.
(a) The methods of repayment of cash assistance overpayment are shall be as follows:
1. As specified in 45 C.F.R. §233.20(a)(13) incorporated by reference (2008); or
2. Through application of child support credit. Child support credit exists when child support collected and retained by the Ddepartment during any month in which overpayment occurred exceeds the amount of AFDC or cash assistance to which the assistance group was entitled for that month after computation of the overpayment has been completed. The excess amount of child support may, if requested by absent parent or recipient, be credited as repayment and the amount owed by the individual person responsible for repayment will be reduced by that amount. In addition, all or part of the overpayment claim can be satisfied should the absent parent of an overpaid assistance group repay to the Ddepartment all AFDC or cash assistance benefits received on behalf of the overpaid assistance group. Child support credit is not applicable to Refugee Assistance Program overpayments.
(b) The method of repayment of all food stamp overpayment will shall be as specified in 7 C.F.R. §273.18.
(c) For purposes of this rule only, the method of repayment of a Medicaid overpayment will shall be by direct reimbursement.
(5) Refusal to Repay. When an individual person refuses to make repayment by direct reimbursement after a being requested to do so, the Ddepartment, at its discretion, may take appropriate civil action against the income or resources of the individual person involved.
(6) Compromising Food Stamp Claims. Effective August 1, 2001, a food stamp claim or any portion of a food stamp claim may be compromised. The Ddepartment reserves the right to approve or not approve the compromise. Compromise will be considered to resolve (1) pending litigation; (2) bankruptcy proceedings.
(a) Individuals with an overpayment claim in the Food Stamp Program may request a compromise of their claim at any time after they are notified of the claim.
(b) The Department will only consider such claims for individuals liable on the overpayment claim being considered or someone duly authorized to do so on behalf of the liable individual(s).
(c) For purposes of a compromise request made pursuant to this rule, the Department will determine that an individual’s economic household circumstances reasonably demonstrate the overpayment claim or debt will not be paid within three years of the debtor being notified of the overpayment claim or debt only when the information or materials permitted by paragraph (d) below also include or involve at least one of the following:
1. The death of the debtor or liable individual(s);
2. The probability of an impending death of the debtor or liable individual(s);
3. Pending litigation in a court, including a bankruptcy court, that involves the debtor or liable individual’s obligation to repay the overpayment or debt;
4. The debtor or liable individual(s) are sentenced to a period of incarceration in a city, county, state or federal correctional institution that will exceed the three-year period by which the overpayment or debt is expected to be paid; or
5. An event or occurrence similar to the events or occurrences described in subparagraphs 1. through 4. above involving the debtor or other liable individuals(s).
(d) For purposes of evaluating a compromise request, in addition to the information or materials required by paragraph (c) above, individuals liable for an overpayment claim or debt may submit to the Department any other written information or materials related to their household’s economic circumstances. The information or materials must state how the overpayment claim or debt will not be paid within the three-year period. When a decision is made concerning the compromise request, the Department will notify the individual making the request of the decision.
(7) through (a) No change.
(b) When the Ddepartment determines that it needs additional documentation of expenses is needed to compute overpayment, it the department will notify the individuals persons responsible for repayment of the information needed. The individual must provide aAny requested items must be provided within the time requested by the Ddepartment, or the expense will not be considered in computing the overpayment amount.
(8) Notification of Overpayment. The Department must notify tThe individuals persons responsible for repayment of overpayment must be notified in writing that overpayment exists and that they are required, by law, to repay the entire amount pursuant to Section 414.41, F.S., incorporated by reference (2008), or that they may seek compromise of a food stamp overpayment pursuant to 7 C.F.R. §273.18(e)(3), (7).
(a) The individual has a right to an administrative hearing in accordance with the Ddepartment’s hearings procedures in Chapter 65-2, F.A.C., Part VI, Hearings.
(b) The Department can send nNotification of overpayment can be sent to current recipients by regular mail at the address to which the Ddepartment sends benefits or correspondence. The Department presumes dDelivery will be presumed unless the postal service returns the notice to the Ddepartment.
(c) Notification of overpayment to individuals persons no longer receiving assistance will be made as follows:
1. By regular mail to the last known address available to the Ddepartment. The Department presumes dDelivery will be presumed unless the postal service returns the notice to the Ddepartment.
2. The last notification prior to the initiation of civil action will shall be sent certified mail, return receipt requested, or hand delivered with certification that such delivery was made to the individuals persons responsible for repayment.
(d) The assistance group or individuals persons that receive such notification will have 30 calendar days in which to contact the Ddepartment before being considered to have refused to repay, except for food stamp recipients the period to contact the Ddepartment will shall be, from the post-marked date of the letter: five days for IPVs intentional program violations; 10 days for IHE inadvertent household error; and, 30 days for agency error. For those individuals persons notified via mail, the time in which to contact the Ddepartment begins five days after the notification is mailed.
(9) Claim Thresholds. The Bbenefit Rrecovery Pprogram will not pursue a claim in bankruptcy proceedings if the amount of the claim is at or below $1,250.
(10) No change.
(a) Pursuant to Sections 414.39 and 414.41, F.S., when the Ddepartment has information that an individual has committed fraud, it the department will refer the case to the Division of Public Assistance Fraud (DPAF) for investigation. In cases where the Ddepartment determines that an individual has committed fraud in the cash assistance or Ffood Sstamp Pprograms, it the department will pursue a determination of Intentional Program Violation (IPV) through either court action, administrative disqualification hearing, or both, where permitted by 7 C.F.R. §273.16, or 45 C.F.R. §235.110. The Ddepartment will pursue a determination of IPV through court action in instances where it the department determines that an individual has committed fraud in the Medicaid Pprogram.
(b) Individuals found by an administrative hearing officer or court to have committed an act of IPV intentional program violation while receiving, or attempting to receive, food stamp, cash assistance, or food stamp and cash assistance benefits will shall be disqualified from participation in the program(s) under which that act was committed or attempted in accordance with 7 C.F.R. §273.16 or 45 C.F.R. §235.110.
(11) No change.
(a) The Ddepartment will refer individuals who owe past-due, legally enforceable federal food stamp overpayment debts to the U.nited S.tates Department of the Treasury for purposes of collection of such debt through offset against federal payments pursuant to 26 U.S.C. 6402, incorporated by reference (2000 Ed., Sup. 5). Referral of individuals owing such debt will be completed in accordance with procedures and criteria contained in 26 C.F.R. Part 301 et. seq., incorporated by reference (2008), and 31 C.F.R. Part 5 Subpart C et. seq., incorporated by reference (2008), as provided for in 7 C.F.R. Part 3 Subpart §3.82, incorporated by reference (2008).
(b) A past-due, legally enforceable debt exists when an individual in receipt of overpayment as defined in Section 414.41, F.S., and paragraph (1)(b) of this rule is at least 180 days delinquent in repayment of the such overpayment, and the which overpayment has not been discharged through administrative or legal action.
(c) The Ddepartment must make a reasonable attempt as defined in 26 C.F.R. Part 301, §301.6402-6(d), to notify individuals owing such debt that:
1. No change.
2. Unless repaid within 180 days from the date on the notification, it will refer the debt will be referred to the U.nited S.tates Department of the Treasury for offset against any refund of federal tax due that individual, and
3. The individual debtor has 60 days from the date of notification to appeal, via presentation of evidence to the Ddepartment, that all or part of the debt is not past-due or legally enforceable.
(d) The Ddepartment will consider evidence presented timely by an individual in receipt of such notification described in paragraph (11)(c) above that indicates all or part of their debt is not past-due or legally enforceable, and will make a determination as to the status of that debt prior to referral for offset. This consideration process is separate and apart from the administrative hearings appeals process and will address only the past-due status or legal enforceability of all or part of the debt.
(e) The Ddepartment will provide a toll free telephone number for use in obtaining information concerning the offset.
(12) The following forms notices, hereby incorporated by reference, are used by the Ddepartment in the process of establishing and recovering overpayment: CF-ES Form 3057, 09/2006, Information Concerning Administrative Disqualification Hearings; CF-ES Form 3400, 10/2005, Request for Additional Information; CF-ES Form 3410, 09/2006, Waiver of Administrative Disqualification Hearing With a Program Loss; CF-ES Form 3410A, 09/2006, Waiver of Administrative Disqualification Hearing With a Program Loss; and, CF-ES Form 3414, 11/Nov. 2007, Disqualification Consent Agreement; CF-ES 3110, 01/2009, Notice of Compromise Decision. Copies of Each of these forms are available from listed as incorporated by reference may be obtained without cost from any Benefit Recovery office or by written request to the ACCESS Florida Headquarters Program Office, 1317 Winewood Boulevard, Tallahassee, Florida 32399-0700 or on the Department’s web site at http://www.dcf.state.fl.us/DCFForms/Search/DCFFormSearch.aspx.
Specific Authority 409.919, 414.41, 414.45 FS. Law Implemented 414.31, 414.41 FS. History–New 7-21-92, Amended 1-5-93, 9-5-93, Formerly 10C-1.900, Amended 7-9-98, 4-2-00, 2-26-02, 3-18-03, 7-21-05, 1-19-09,_________.