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.
SUMMARY: Compromise of food stamp overpayment.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 409.919, 414.41, 414.45 FS.
LAW IMPLEMENTED: 414.31, 414.41 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: April 28, 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 IS: Cindy Keil, ACCESS Florida Program Policy, 1317 Winewood Boulevard, Building 3, Tallahassee, Florida 32399-0700; (850)410-3291
THE FULL TEXT OF THE PROPOSED RULE 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 error is defined pursuant to Sections 414.39(1)-(2) and (4), F.S., 7 C.F.R. §273.16 (c), 45 C.F.R. §235.110(a)(2) and Section 414.14, F.S. 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 a 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. Received notification of the overpayment or request for repayment agreement as specified in subsection (8) of this section and subsequently:
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 IPV 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 (OSS) 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 (e)(3), 45 C.F.R. §235.110 and Section 414.14, F.S. 7 CFR 273.18 incorporated by reference (2008) or 45 CFR 235.110 as appropriate.
(g) Extreme hardship: Extreme hardship policy applies only to cash assistance agency errors and. Extreme hardship occurs when monthly expenses for basic maintenance needs exceed monthly income. Expenses taken into account Basic maintenance needs are those items required for survival, include including food, shelter, clothing, medical expenses, transportation, clothing and personal and household incidentals, child or adult care and court ordered child support payments. Any expenses paid by someone outside the household are not used. The Department requires verification if it considers reported items excessive.
1. Food expenses exclude food stamp benefits will be considered according to the current USDA thrifty food plan with no income for the number of people in the household.
2. Shelter expenses expense will include rent, or mortgage, mandatory maintenance or membership fees; loan repayments, including interest for the purchase of a mobile home payments; property taxes and insurance on the home; cost of fuel, electricity, water, sewerage and garbage pickup or both with which to heat, cool and cook; and the basic service fees fee for one telephone. These expenses will not be considered if paid by someone outside those residing together.
3. Medical expenses include those will be considered if not paid by insurance or by someone outside those residing together.
4. Transportation expenses will include those necessary for household vehicles private automobile or public transportation.
5. Clothing and personal and household incidental expenses include those necessary for individuals in the household incidental expenses will be considered in the amount of actual expenses. Verification will be required if the department considers reported expenses excessive.
6. Child or adult care expenses include those costs paid to someone not residing in the household.
7. Court ordered child support payment expenses include those paid to someone not residing in the household.
(2) Individuals Persons Responsible for Repayment of Overpayment.
(a) Individuals Persons who received Aid to Families with Dependent Children (AFDC) 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 (a)(4) incorporated by reference (2009) 7 CFR 273.18.
(c) Individuals Persons who received Medicaid overpayments as an adult will shall be responsible for repayment of the overpayment.
(d) Adults who apply for or and receive assistance on behalf of others if they provide inaccurate information.
(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) incorporated by reference (2009) 7 C.F.R. 273.18.
(c) Any adult who applied for and/or received Medicaid benefits for themselves or the assistance group are liable or responsible for repayment. They will negotiate a repayment agreement with the Department or contractor. Monthly repayment amounts of all Medicaid overpayments shall be determined with those persons responsible for repayment based on factors relating to the amount of the claim, the 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) 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 state department 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 can may, if requested by the 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 RAP 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 (f)-(g) incorporated by reference (2009) 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 a person refuses to make repayment by direct reimbursement after a request 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. The debtor or other liable individual(s) sole household’s income is based on either age or disability projecting a fixed, limited economic potential to repay the overpayment or debt within three years.
(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 information or written materials related to their household’s economic circumstances. Expenses taken into account include food, shelter, medical, transportation, clothing and personal and household incidentals, child or adult care and court ordered child support payments as described in subparagraphs (1)(g)1. through 7. Any items paid by someone outside the household are not used. The Department requires verification if it considers reported items excessive. 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 give the individual making the request a written notice of the decision including information about hearing appeal rights.
1. The overpayment or debt will be compromised to zero for situations indicated in subparagraphs 1. through 4. above.
2. The overpayment or debt will be compromised to no less than $5.00 per month for situations indicated in subparagraph 5. above.
(7) through (a) No change.
(b) When the Ddepartment determines that it needs additional documentation of expenses expense 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 the individuals The 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 (1), 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) incorporated by reference (2009) 7 CFR 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 will 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 that receive notification will be considered to have refused to repay when they fail to contact the Department within ten days for food stamp IPV, 20 days for food stamp IHE, or 30 days for food stamp agency error and all other public assistance errors including those for RAP and OSS Programs from the date of notification. The assistance group or persons that receive such notification will have 30 calendar days in which to contact the department before being considered to have refused to repay, except for food stamp recipients the period to contact the department shall be, from the post-marked date of the letter: five days for intentional program violations; 10 days for inadvertent household error; and, 30 days for agency error. For those persons notified via mail, the time in which to contact the department 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 Florida Department of Law Enforcement, Division of Public Assistance Fraud (PAF) Unit (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 IPV Intentional Program Violation (IPV) through either court action, administrative disqualification hearing, or both, where permitted by 7 C.F.R. §273.16 (a) incorporated by reference (2009), or 45 C.F.R. §235.110 incorporated by reference (2008) 7 C.F.R. 273.16, or 45 C.F.R. 235.110. The PAF Unit department 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 (b) incorporated by reference (2009), 45 C.F.R. §235.110 or Section 414.14, F.S. 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.S. United States Department of the Treasury for purposes of collection of such debt through offset against federal payments pursuant to 26 U.S.C. 6402 (d)(1)-(2), (f). 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 §301.6402-6 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 D §3.46 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(1), F.S. 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), 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.S. United States 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, incorporated by reference, are used by the Department in the process of establishing and recovering overpayment: Information Concerning Administrative Disqualification Hearings, CF-ES 3057, 09/2006; Request for Additional Information, CF-ES 3400, 02/2006; Waiver of Administrative Disqualification Hearing With a Program Loss, CF-ES 3410, 09/2006; Waiver of Administrative Disqualification Hearing Without a Program Loss, CF-ES 3410A, 09/2006; Disqualification Consent Agreement, CF-ES 3414, 11/2007; and Notice of Compromise Decision, CF-ES 3110, 03/2009. Copies of the forms and materials incorporated by reference are available from the ACCESS Florida Headquarters Office, 1317 Winewood Boulevard, Tallahassee, Florida 32399-0700. Forms are also available on the Department’s web site at http://www.dcf.state.fl.us/DCFForms/Search/DCFFormSearch.aspx. The following notices, hereby incorporated by reference, are used by the department in the process of establishing and recovering overpayment: CF-ES Form 3057, 09/2006, Information Concerning Administrative Disqualification Hearings; CF-ES Form 3400, 02/2006, 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, Nov. 2007, Disqualification Consent Agreement. Each of these forms listed as incorporated by reference may be obtained without cost from any Benefit Recovery office or by written request to the ACCESS Florida Program Office, 1317 Winewood Boulevard, Tallahassee, Florida 32399-0700.
Rulemaking 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, ________.