[Code of Federal Regulations]

[Title 7, Volume 4]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 7CFR253.8]



[Page 538-540]

 

                          TITLE 7--AGRICULTURE

 

    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE

 

PART 253_ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR HOUSEHOLDS 

ON INDIAN RESERVATIONS--Table of Contents

 

Sec. 253.8  Administrative disqualification procedures for intentional 

program violation.



    (a) What is an intentional program violation? An intentional program 

violation is considered to have occurred when a household member 

knowingly, willingly, and with deceitful intent:

    (1) Makes a false or misleading statement, or misrepresents, 

conceals, or withholds facts in order to obtain Food Distribution 

Program benefits which the household is not entitled to receive; or

    (2) Commits any act that violates a Federal statute or regulation 

relating to the acquisition or use of Food Distribution Program 

commodities.

    (b) What are the disqualification penalties for an intentional 

program violation? Household members determined by the State agency to 

have committed an intentional program violation will be ineligible to 

participate in the program:

    (1) For a period of 12 months for the first violation;

    (2) For a period of 24 months for the second violation; and

    (3) Permanently for the third violation.

    (c) Who can be disqualified? Only the household member determined to 

have committed the intentional program



[[Page 539]]



violation can be disqualified. However, the disqualification may affect 

the eligibility of the household as a whole, as addressed under 

paragraphs (e)(5) and (h) of this section.

    (d) Can the disqualification be appealed? Household members 

determined by the State agency to have committed an intentional program 

violation may appeal the disqualification, as provided under Sec. 

253.7(h)(1).

    (e) What are the State agency's responsibilities? (1) Each State 

agency must implement administrative disqualification procedures for 

intentional program violations that conform to this section.

    (2) The State agency must inform households in writing of the 

disqualification penalties for intentional program violations each time 

they apply for benefits, including recertifications. This notice must 

also advise households that an intentional program violation may be 

referred to authorities for prosecution.

    (3) The State agency must attempt to substantiate all suspected 

cases of intentional program violation. An intentional program violation 

is considered to be substantiated when the State agency has clear and 

convincing evidence demonstrating that a household member committed one 

or more acts of intentional program violation, as defined in paragraph 

(a) of this section.

    (4) Within 10 days of substantiating that a household member has 

committed an intentional program violation, the State agency must 

provide the household member with a notice of disqualification, as 

described in paragraph (f) of this section. A notice must still be 

issued in instances where the household member is not currently eligible 

or participating in the program.

    (5) The State agency must advise any remaining household members if 

the household's benefits will change or if the household will no longer 

be eligible as a result of the disqualification.

    (6) The State agency must provide the household member to be 

disqualified with an opportunity to appeal the disqualification through 

a fair hearing, as required by Sec. 253.7(h).

    (7) The State agency must refer all substantiated cases of 

intentional program violations to Tribal, Federal, State, or local 

authorities for prosecution under applicable statutes. However, a State 

agency that has conferred with its legal counsel and prosecutors to 

determine the criteria for acceptance for possible prosecution is not 

required to refer cases that do not meet the prosecutors' criteria.

    (8) The State agency must establish claims, and pursue collection as 

appropriate, on all substantiated cases of intentional program violation 

in accordance with Sec. 253.9.

    (f) What are the requirements for the notice of disqualification? 

(1) Within 10 days of substantiating the intentional program violation, 

the State agency must issue to the household member a notice of 

disqualification. The notice must allow an advance notice period of at 

least 10 days. The disqualification must begin with the next scheduled 

distribution of commodities that follows the expiration of the advance 

notice period, unless the household member requests a fair hearing. A 

notice must still be issued in instances where the household member is 

not currently eligible or participating in the program.

    (2) The notice must conform to the requirements of Sec. 

253.7(b)(3)(iii)(C) for notices of adverse action.

    (g) What are the appeal procedures for administrative 

disqualifications?--(1) Appeal rights. The household member has the 

right to request a fair hearing to appeal the disqualification in 

accordance with the procedures at Sec. 253.7(h).

    (2) Notification of hearing. The State agency must provide the 

household member with a notification of the time and place of the fair 

hearing as described in Sec. 253.7(h)(7). The notice must also include:

    (i) A warning that if the household member fails to appear at the 

hearing, the hearing decision will be based solely on the information 

provided by the State agency; and

    (ii) A statement that the hearing does not prevent the Tribal, 

Federal, State, or local government from prosecuting the household 

member in a civil or criminal court action, or from collecting any 

overissuance(s).

    (h) What are the procedures for applying disqualification penalties? 

(1) If the household member did not request a



[[Page 540]]



fair hearing, the disqualification must begin with the next scheduled 

distribution of commodities that follows the expiration of the advance 

notice period of the notice of adverse action. If the commodities are 

normally made available to the household within a specific period of 

time (for example, from the first day of the month through the tenth day 

of the month), the effective date of the disqualification will be the 

first day of that period. The State agency must apply the 

disqualification period (that is, 12 months, 24 months, or permanent) 

specified in the notice of disqualification. The State agency must 

advise any remaining household members if the household's benefits will 

change or if the household is no longer eligible as a result of the 

disqualification.

    (2) If the household member requested a fair hearing and the 

disqualification was upheld by the fair hearing official, the 

disqualification must begin with the next scheduled distribution of 

commodities that follows the date the hearing decision is issued. If the 

commodities are normally made available to the household within a 

specific period of time (for example, from the first day of the month 

through the tenth day of the month), the effective date of the 

disqualification will be the first day of that period. The State agency 

must apply the disqualification period (that is, 12 months, 24 months, 

or permanent) specified in the notice of disqualification. No further 

administrative appeal procedure exists after an adverse fair hearing 

decision. The decision by a fair hearing official is binding on the 

State agency. The household member, however, may seek relief in a court 

having appropriate jurisdiction. As provided under Sec. 

253.7(h)(11)(iii)(B), the State agency must advise any remaining 

household members if the household's benefits will change, or if the 

household is no longer eligible as a result of the disqualification.

    (3) Once a disqualification has begun, it must continue 

uninterrupted for the duration of the penalty period (that is, 12 

months; 24 months; or permanent). Changes in the eligibility of the 

disqualified household member's household will not interrupt or shorten 

the disqualification period.

    (4) The same act of intentional program violation continued over a 

period of time will not be separated so that more than one penalty can 

be imposed. For example, a household intentionally fails to report that 

a household member left the household, resulting in an overissuance of 

benefits for 5 months. Although the violation occurred over a period of 

5 months, only one penalty will apply to this single act of intentional 

program violation.

    (5) If the case was referred for Tribal, Federal, State, or local 

prosecution and the court of appropriate jurisdiction imposed a 

disqualification penalty, the State agency must follow the court order.



[64 FR 73384, Dec. 30, 1999]