TITLE 8 SOCIAL
SERVICES
CHAPTER 100 GENERAL PROVISIONS FOR PUBLIC ASSISTANCE PROGRAMS
PART 640 RESTORATION
AND CLAIMS
8.100.640.1 ISSUING AGENCY:
New Mexico Human Services Department.
[8.100.640.1
NMAC - N, 09/30/2013]
8.100.640.2 SCOPE: The rule
applies to the general public.
[8.100.640.2
NMAC - N, 09/30/2013]
8.100.640.3 STATUTORY
AUTHORITY:
A. Chapter 27 NMSA 1978 (1992 Repl.)
provides for the department to "...adopt, amend and repeal bylaws, rules
and regulations..." It also provides for administration of public
assistance programs.
B. The ISD of the HSD was created by
the HSD secretary under authority granted by 9-8-6(B)(3)
NMSA 1978.
[8.100.640.3
NMAC - N, 09/30/2013]
8.100.640.4 DURATION:
Permanent.
[8.100.640.4
NMAC - N, 09/30/2013]
8.100.640.5 EFFECTIVE DATE:
September 30, 2013, unless a later date is cited at the end of a
section.
[8.100.640.5
NMAC - N, 09/30/2013]
8.100.640.6 OBJECTIVE:
The objective of these regulations is to provide regulations in
accordance with federal and state laws and regulations for the ISD administered
programs.
[8.100.640.6
NMAC - N, 09/30/2013]
8.100.640.7 DEFINITIONS:
Unless otherwise apparent from the context, the following definitions
shall apply throughout these regulations.
A. Claim: means correcting the over-issuance of
benefits an eligibility determination group received, but was not entitled to
receive, subject to the recovery of such overpayments.
B. Administrative or
agency error (AE) claim: means any claim for an overpayment caused by an
action or failure to take action by the department.
C. Eligibility
determination group: means the basic assistance unit for a category of
assistance, or a group of people, either mandatory or optional, to be included
in determining the monthly benefit amount.
D. Inadvertent
household error (IHE) claim: means any claim for an overpayment resulting
from a misunderstanding or unintended error on the part of the eligibility
determination group.
E. Intentional program
violation (IPV) claim: means any claim for an overpayment or trafficking
resulting from an individual committing an IPV, as defined in regulation in
Subsection D of 8.139.647.8 NMAC.
F. Restoration:
means the issuance of benefits to an eligibility determination group that it was
entitled to receive, but did not receive due to:
(1) an
agency error or department discovered error;
(2) judicial
action; a favorable fair hearing decision or an erroneous administrative
disqualification for an IPV that is later reversed; or
(3) a
regulation specifically requiring issuance of lost benefits.
G. Sponsored aliens: means
an alien lawfully admitted for permanent residence in the United States as an
immigrant, as defined in Subsection 101(a)(15) and
Subsection 101(a)(2) of the Immigration and Nationality Act.
H. Supplement: means the
amount of benefits issued in addition to the monthly benefit amount the
eligibility determination group has already received that equals the amount of
benefits the group was entitled to receive for that month.
[8.100.640.7
NMAC - N, 09/30/2013]
8.100.640.8 ERRONEOUS PAYMENT PROVISIONS: An erroneous payment exists when an error is
made by the client or the department that resulted in an underpayment or
overpayment of program benefits. The
difference between the amount issued and the corrected amount is the amount of
the payment error. The department shall
take action to correct errors in the supplemental nutrition assistance program
(SNAP), state SNAP supplement, New Mexico combined application project (NMCAP),
New Mexico works (NMW) cash assistance, general assistance for disabled adults
and unrelated children (GA), adult residential shelter care home (ARSCH),
education works (EWP), refugee cash assistance, medical assistance, and LIHEAP
benefits issued to an eligibility determination group regardless of the cause
of the error. NMW cash assistance, GA,
ARSCH, EWP, refugee cash assistance will be referenced as cash assistance
programs throughout the regulations unless otherwise specified.
A. The
department will correct the error by restoring benefits for an underpayment or
establishing claims for an overpayment.
B. SNAP: The amount of the restoration or claim is
determined by using the maximum SNAP benefit amount and applying the allowable
deductions in place for a particular month, including any federal law placing a
restriction on the use of deductions.
C. Cash
assistance programs: The amount of
the restoration or claim is determined using the standard of need the case was
eligible for on the first day of a month.
If the standard of need increases during the month, the higher amount
shall be allowed for the entire month.
[8.100.640.8 NMAC - N, 09/30/2013]
8.100.640.9 ESTABLISHING PERIOD OF ERROR:
A. An erroneous payment occurs when an error is made by
the client or the department that resulted in an underpayment or overpayment of
program benefits or assistance.
B. Restoration
of benefits: If benefits must be
restored to an eligibility determination group, the department shall determine
each month for which the eligibility determination group was underpaid
benefits. The month(s) may or may not be
consecutive. In some cases, federal
regulations mandate the restoration of SNAP benefits to eligibility
determination groups for a specific time period.
C. Overpayment of benefits:
(1) Establishing period of overpayment:
If benefits have been overpaid to an eligibility determination group,
the department shall determine each month in which the eligibility
determination group received benefits to which it was not entitled. The months may or may not be consecutive.
(a)
The first month in which a benefit is considered erroneous is the month
in which the eligibility determination group received a benefit amount
differing from the amount that the eligibility determination group was entitled
to receive.
(b)
The last month of an erroneous payment ends on the last day of the last
month in which payment is discovered. In
the case of an overpayment, if the period of overpayment has been extended
while a proposed reduction or termination is the subject of an administrative hearing
decision, it is included in the overpayment claim period.
(2) Establishing a claim: A
claim will be established against any eligibility determination group for any
month in which the eligibility determination group received an overpayment of
benefits if it exceeds the claims establishment threshold as defined in
Subsection G of 8.100.640.11 NMAC.
(a)
At a minimum, the department shall take action on claims for which
twelve (12) months or less have elapsed between the month an overpayment
occurred and the month the overpayment was discovered.
(b)
The department may choose to take action on claims for which more than
twelve (12) months have elapsed.
(c)
No action will be taken on claims for which more than six (6) years have
elapsed between the month an overpayment occurred and the month an overpayment
was discovered.
[8.100.640.9
NMAC - N, 09/30/2013]
8.100.640.10 RESTORATION OF BENEFITS:
A. Entitlement:
(1) Program benefits will
be restored to an eligibility determination group when the loss was caused by:
(a)
agency error;
(b)
SNAP administrative disqualification for IPV that is later reversed; or
(c)
a regulation specifically requiring restoration
of lost benefits.
(2) Unless there is a
specific regulation authorizing benefit restoration for a longer period, SNAP
benefits will be restored for not more than the twelve (12) months prior to
whichever of the following occurred first:
(a)
date the department receives a request for
restoration from an eligibility determination group; or
(b)
date the department is notified or otherwise
discovers that a loss to an eligibility determination group has occurred; or
(c) if the
resolution of a request extends beyond the twelve (12) month limit, an
eligibility determination group will be entitled to more than twelve (12)
months of restored benefits.
B. Errors in benefits:
(1) ISD discovered errors:
(a)
If the department determines that a loss of benefits has occurred, and
that an eligibility determination group is entitled to a restoration of
benefits, action will be taken automatically to restore lost benefits. No
action by the eligibility determination group is necessary.
(b)
Benefits will not be restored if benefits were lost more than twelve
(12) months before the month the loss was discovered in the normal course of business,
or loss occurred more than twelve (12) months before the month the department
was notified, in writing or orally, of a possible loss to a specific
eligibility determination group.
(c)
The department shall notify the eligibility determination group of
entitlement to lost benefits; amount of benefits to be restored; any offsetting
that will be done; method of restoration, and right to appeal through the fair
hearing process if the eligibility determination group disagrees with any
aspect of the proposed restoration.
(2) Judicial action:
(a)
The department shall restore benefits found by any judicial action to
have been wrongfully withheld.
(b) If the judicial action is the first
action the recipient has taken to obtain restoration of lost benefits, then
benefits will be restored for a period of not more than twelve (12) months from
the date the court action was initiated.
(c)
If the judicial action is a review of the department’s action, benefits
will be restored for a period of not more than twelve (12) months from the
first of the following dates:
(i) date the department receives a request for restoration;
(ii)
if a request for restoration is not received,
date the fair hearing action was initiated; but never more than one (1) year
from the date the department is notified of, or discovers, the loss.
(3) Disqualification for SNAP IPV:
(a)
For each month an eligibility determination group member is erroneously
disqualified, not to exceed twelve (12) months, the amount to be restored is
determined by comparing the SNAP benefit amount the eligibility determination
group received with the amount the eligibility determination group would have
received if the disqualified member had been allowed to participate.
(b)
Participation in an administrative disqualification hearing in which the
eligibility determination group is contesting the department’s assertion of IPV
is considered notification that the eligibility determination group is
requesting restored SNAP benefits.
(4) Agency errors:
(a)
If an eligible eligibility determination group's application has been
erroneously denied, the month the loss initially occurred will be the month of
application; or for an eligible eligibility determination group filing a timely
reapplication, the month following the expiration of its certification period.
(b)
If an eligible eligibility determination group's application was
delayed, the months for which benefits were lost will be calculated in
accordance with application processing guidelines for delayed eligibility
determinations in Subsection D of 8.139.110.13 NMAC, Subsection D of
8.102.110.12 NMAC and Subsection C of 8.106.110.12 NMAC.
(c)
If an eligibility determination group's benefits were erroneously
terminated, the month the loss initially occurred will be the first month that
benefits were not received as a result of the erroneous action.
C. Processing the restoration:
(1) SNAP: Regardless of whether
an eligibility determination group is currently eligible or ineligible, the
department shall restore lost benefits to an eligibility determination group by
issuing an amount equal to the amount of benefits that were lost. The amount
restored is issued in addition to the benefit amount a currently eligible
eligibility determination group is entitled to receive.
(a)
For each month affected by the loss, the department shall determine if
the eligibility determination group was actually eligible.
(b)
In cases where there is no information in the eligibility determination
group's case record to document that the eligibility determination group was
actually eligible, the department shall notify the eligibility determination
group in writing of what information is necessary to determine eligibility for
these months. For each month the eligibility determination group cannot provide
the necessary information to demonstrate its eligibility, the eligibility
determination group will be determined ineligible.
(2) Cash assistance programs:
The department shall restore lost cash assistance benefits for
eligibility determination groups who are currently eligible under the cash
assistance program that the error occurred or would be eligible except for the
error causing the underpayment.
(a)
A restoration to a denied applicant or to a former participant who is
not eligible at the time the error is discovered shall be corrected if the
applicant is, or participant becomes, eligible at a later date.
(b)
Before issuing a benefit correcting an underpayment, the department
subtracts from the amount owed to the participant any outstanding claim against
the participant in the cash assistance program that the error is being
corrected.
(3) Medical assistance programs:
The department shall restore months of eligibility for individuals who
are currently eligible under the medical assistance program that the error
occurred or would be eligible except for the error causing the ineligibility.
[8.100.640.10 NMAC - N, 09/30/2013]
8.100.640.11 OVERPAYMENTS
(CLAIMS AGAINST ELIGIBILITY DETERMINATION GROUPS): The department shall take action
to establish a claim against any eligibility determination group that received
more benefits than it was entitled to receive, including LIHEAP benefits paid
to a vendor on behalf of the eligibility determination group, whether or not
the overpayment occurred because of an IHE, an AE, or an IPV.
A. Claim recovery:
(1) All adult eligibility determination group
members will be jointly liable for any overpayment of benefits to the
eligibility determination group.
(2) A claim will be established against any or
all of the adult members of an eligibility determination group at the time an
overpayment occurred.
(3) A claim will be established against any
eligibility determination group that contains an adult member who was an adult member
of another eligibility determination group that received more benefits than it
was entitled to receive.
(4) The earned income deduction of twenty
percent (20%) is not allowed when determining an overpayment due to the failure
of an eligibility determination group to report earned income in a timely
manner.
B. Types
of claims for all programs:
(1) IHE
claims:
(a)
A claim will be handled as an IHE claim if the overpayment was caused
by:
(i) the
misunderstanding or unintended error on the part of the eligibility
determination group; or
(ii)
the misunderstanding or unintended error on the part of a categorically
eligible eligibility determination group, provided that a claim can be
calculated based on a change in the eligibility determination group's net
income, eligibility determination group size, or both; or
(iii) a
social security administration action, or failure to take action, resulting in
an eligibility determination group becoming or continuing categorical
eligibility, provided that a claim can be calculated based on a change in net
income, eligibility determination group size, or both.
(b)
Instances of IHE’s that may result in a claim include, but are not
limited to, the following:
(i) eligibility
determination group unintentionally failed to provide the department with
correct or complete information; or
(ii)
eligibility determination group unintentionally
failed to report changes in its circumstances; or
(iii) eligibility determination group
unintentionally received benefits or received more benefits than it was
entitled to receive pending a fair hearing decision because the eligibility
determination group requested a continuation of benefits based on the mistaken
belief it was entitled to them; or
(iv)
eligibility determination group received
benefits solely because of categorical eligibility, but was later determined
ineligible for cash assistance; or
(v)
social security administration took action or
failed to take appropriate action, resulting in the eligibility determination
group improperly receiving supplemental security income (SSI).
(2) Administrative
or agency errors:
(a)
A claim will be handled as an AE claim if the overpayment was caused by
the department’s action or failure to take action.
(b)
In the case of a SNAP categorical eligibility, a claim will be handled
as an AE if action by an agency of the state or local government resulted in
the eligibility determination group's improper eligibility for cash assistance.
C. IPV
claims established for SNAP:
(1) A claim will be handled as an IPV claim
only if:
(a)
an administrative disqualification hearing
official or a court of appropriate jurisdiction has determined that an
eligibility determination group member committed an IPV; or
(b)
an individual is disqualified as a result of
signing a waiver of disqualification hearing in a case referred for
prosecution; or
(c)
an individual has signed a disqualification
consent agreement in a case of deferred adjudication; or
(d)
an individual has signed a waiver of an
administrative disqualification hearing in a case referred for
disqualification.
(2) Before the determination of an IPV or the
signing of either the waiver of right to a disqualification hearing or a
disqualification consent agreement, the claim against an eligibility
determination group is handled as an IHE claim.
D. Claims for medical assistance benefits: Upon a determination that the individual is
not eligible for the category of assistance in which they were enrolled, the
department shall determine if the individual is eligible for any category of
assistance. If the individual is
ineligible for any category, the department shall determine which months the
individual was not eligible and forward the documentation to the medical
assistance division for the determination of repayment of fee for service
payments or the capitation payments made to the health maintenance organization
on behalf of the individual for months the individual was not eligible for the
category of assistance. The department
will pursue the repayment of capitation amounts paid to the health maintenance
organization for the months the individual was ineligible for any medical
assistance programs and received medical services.
E. Development
of information: When quality control
review findings, or information reported or received indicate, that benefits
may have been issued incorrectly; the department shall attempt to obtain and
verify whether benefits were provided in error.
F. When claims are not established: Overpayment claims shall not
be established for administrative or IHE’s, if an over-issuance occurred
because the department did not ensure that the following procedural
requirements were fulfilled:
(1) an
application form was signed; or
(2) appropriate
work registration code was entered.
G. Claim
establishment threshold: Claims for
SNAP, cash assistance and LIHEAP will not be established when the cumulative
amount of the claim is less than the establishment thresholds.
(1) Claims for all
programs resulting from an administrative error will not be established if the
cumulative claim is less than five hundred dollars ($500).
(2) Claims resulting from
an IHE will not be established if the cumulative error is less than two hundred
fifty dollars ($250).
(3) Claims resulting from
fraud or an IPV will always be established for the full amount of the
overpayment.
[8.100.640.11 NMAC - N, 09/30/2013]
8.100.640.12 CALCULATING THE AMOUNT OF THE ERROR (CALCULATING CLAIMS)
A. SNAP:
(1) Calculating the claim for an IHE and AE: For each month that benefits have been
over-issued to an eligibility determination group because of an IHE or AE, the department
shall determine the correct benefit amount the eligibility determination group
was entitled to receive.
(a)
The total amount of the claim is calculated, based at a minimum, on the
monthly overpayment amount which occurred during the twelve (12) months preceding the date the overpayment was discovered.
(b)
The department shall calculate the amount of the claim back to the month
the error occurred regardless of the length of time that elapsed until the
error was discovered.
(c)
The department shall not include in the calculation any overpayment
amount that occurred in a month more than six (6) years before the date the
overpayment was discovered.
(2) Calculating the claim for an IPV:
(a)
For each month that benefits have been over-issued to an eligibility
determination group because of an IPV, the department shall determine the
correct amount of benefits the eligibility determination group was entitled to
receive.
(b)
The amount of the IPV claim will be calculated back to the month the IPV
occurred, regardless of the length of time that elapsed until the determination
of an IPV was made.
(c)
The department may not include in the calculation any amount of the
overpayment that occurred in a month more than six (6) years prior to the date
the overpayment was discovered.
(d) If an eligibility
determination group member is determined to have committed an IPV by
intentionally failing to report a change in eligibility determination group
circumstances, the first month affected by the failure to report will be the
first month in which the change would have been effective if it had been timely
reported.
(e)
In no event shall the department determine as the first month that the
change would have been effective any month later than two (2) months after the
month that the change in eligibility determination group circumstances
occurred.
(f)
If an eligibility determination group received a larger benefit amount
than it was entitled to receive, a claim will be established against the
eligibility determination group equal to the difference between the benefit
amount the eligibility determination group received and the amount the
eligibility determination group should have received.
(g) Earned income deduction penalty:
When determining the amount of benefits the eligibility determination
group should have received, the twenty percent (20%) earned income deduction is
not applied to that portion of earned income that the eligibility determination
group intentionally failed to report. A
claim must be recomputed if it was initially handled as an IHE claim.
(3) Offsetting the claim: Once
the amount of the claim for IPV, IHE, and AE is established, the department may
offset the amount of the claim against any benefit amount not yet restored to
the eligibility determination group.
Action must be taken to initiate collection of the remaining balance, if
any.
B. Cash assistance programs:
(1) Claims
for administrative and client caused errors: Claims are established when the department
issues more than the eligibility determination group was eligible to receive
due to an AE or if the eligibility determination group fails, either intentionally or
unintentionally, to report correct information at application or while
receiving benefits.
(a)
For each month of eligibility, the grant determinations are made using
the standard of need, case information and policy in effect for that month.
(b)
The department shall recover all cash assistance overpayments, including
overpayments resulting from an AE, and any assistance paid while pending a fair
hearing decision.
(c) An historical change
that results in a lower payment than was originally issued, results in an
overpayment and the establishment of a claim if it exceeds the claims
establishment thresholds listed in Subsection G of 8.100.640.11 NMAC.
(d)
If a change occurs that makes the eligibility determination group
eligible for a lower benefit payment for a month, the adult member(s) of the
eligibility benefit group is responsible for paying the difference back to the
department.
(e)
If a change occurs that lowers the standard of need for which the
eligibility determination group is eligible, the eligibility determination
group shall be allowed the amount that they were eligible on the first day of
the month.
(2) Overpayments to sponsored aliens:
(a)
Aliens and sponsors are jointly liable for overpayments caused by
failure of the sponsor to provide correct information, unless the sponsor is
without fault or has good cause.
"Without fault" or "good cause" exists when:
(i) the agency failed
to request information from the sponsor; or
(ii) the sponsor can
show that the sponsor provided all information available to the sponsor at the
time the information was provided;
(iii) the alien
provided incorrect information without the knowledge of the sponsor; or
(iv)
the sponsor can show that the giving of
incorrect information was not intentional on the part of the sponsor.
(b)
If good cause is found to exist, the alien has sole responsibility for
repayment.
(3) Developing substantiating
information:
(a)
Upon receiving indication that a possible error exists, the department shall
investigate whether an erroneous payment has occurred. Pertinent information shall be requested from
the participant. Because this information may be used to prosecute the
participant for fraud, the participant shall not be required to provide such information;
however, if the participant declines to provide information crucial to the
determination of overpayment, the participant shall be ineligible for the
period in question because of failure or refusal to provide information.
(b) The same standards
shall be used in determining erroneous payments as are used to determine
initial and ongoing eligibility and payment.
(c)
The participant must be periodically reminded of the reporting responsibilities
and must indicate, no less frequently than at every certification, that the
participant understands these requirements.
This requirement is met by the use of a department form that reminds
participants at each certification of their reporting responsibilities. This
form also serves as the participant's statement that the participant
understands the reporting responsibilities.
If it is determined that a participant may have difficulty understanding
the reporting responsibilities because of language, literacy, or mental or
emotional problems, the department shall supplement the written notice with an
oral explanation. All such oral
explanations must be documented in the case record.
(d)
The participant shall become ineligible on a continuing basis if there
is a continuing failure to provide information affecting the participant's
current eligibility.
(4) Offsetting the claim: Once
the amount of the claim for IPV, IHE and AE is established, any restoration the
eligibility determination group is eligible to receive is reduced or offset by
the amount of the claim. Action must be
taken to initiate collection of the remaining balance, if any.
C. LIHEAP:
(1) A claim shall be
established for LIHEAP benefits that have been overpaid regardless of the
reason of the overpayment.
(2) The department may
establish a claim that exceeds the claim establishment threshold, as identified
in Subsection G of 8.100.640.11 NMAC, for LIHEAP benefits overpaid up to six
(6) years prior to the date the overpayment occurred.
(3) Offsetting the claim: A
benefit amount may be offset during the issuance process in order to recover a LIHEAP
overpayment. The amount that is offset
shall be conveyed to the restitutions bureau to be applied to the eligibility
determination group's overpayment.
D. Claims
involving reported changes: In cases involving reported changes, the
department shall determine the first month the overpayment occurred.
(1) Inadvertent
household error: If caused by an
inadvertent error on the part of the eligibility determination group (failure
to report a change in circumstances within the required time frames), the first
month affected by the eligibility determination group's failure to report is
the first month in which the change would have been effective if it had been
reported timely. In no event will the
department determine as the first month in which the change would have been
effective any month later than two (2) months from the month in which the
change in eligibility determination group's circumstances occurred.
(2) Agency
error: If an eligibility determination
group reported a change timely but the department did not act on the change
within the required time frame, the change should have taken effect the first
month following the reported change, if it had been acted upon within the time
frame. In no event shall the department determine as the first month in which
the change would have been effective any month later than two (2) months from
the month in which the change in eligibility determination group circumstances
occurred. If an adverse action notice was
required but was not provided, the department shall assume for the purpose of
calculating the claim that the maximum advance notice period would have expired
without the eligibility determination group requesting a fair hearing.
[8.100.640.12
NMAC - N, 09/30/2013]
8.100.640.13 RECOVERY
(COLLECTION ACTION): The department
shall initiate collection action by sending the eligibility determination group
an overpayment notice.
A. Adverse action notice: If the amount of the claim was not
established by a fair hearing decision, the eligibility determination group
will be provided with an adverse action notice. The adverse action notice is
sent on all claims established after March 26, 1990 and on any preexisting
claims if at any time after March 26, 1990 a follow-up demand letter is sent on
the claim. A one-time adverse action
notice that informs the eligibility determination group that it has ninety (90)
days to appeal the amount of the claim will satisfy notice requirements.
B. Demand letter: Collection action is initiated by sending the
eligibility determination group a demand letter. The demand letter informs the eligibility
determination group of the claim amount, the reason for the claim, time period
for which there is a claim, any offset that reduces the claim and how the
eligibility determination group may pay the claim. The first demand letter to a participating
eligibility determination group shall inform the eligibility determination
group:
(1) that unless the eligibility determination
group selects an acceptable method of payment and informs the department within
the specified time limit, or timely requests a fair hearing and continued
benefits, their SNAP benefit amount will be reduced;
(2) that benefit
reduction will affect the eligibility determination group’s monthly benefits,
only if the department has not otherwise informed the eligibility determination
group;
(3) that if the
eligibility determination group timely selects an acceptable benefit reduction
amount, the reduction will begin with the first benefit month that is issued
after the selection;
(4) that if the eligibility determination
group fails to make a timely selection or fails to request a fair hearing and
continued benefits, the benefit reduction will be effective with the first
benefit issued after timely notice of such selection or request for hearing is
due to the department; and
(5) advise the
eligibility determination group of any individual or organization that provides
free legal representation.
C. Collection
action:
(1) Initiating
action: The department shall
initiate collection action on all claims unless the claim is collected through
an offset or one of the following conditions applies:
(a)
the total amount of the claim is less than the established claims
threshold outlined in Subsection G of 8.100.640.11 NMAC, and the claim cannot
be recovered by reducing the eligibility determination group's SNAP benefit
amount; or
(b)
the department has documentation that
establishes the eligibility determination group cannot be located.
(2) Postponing
action: Collection action will be
postponed on claims where an eligibility determination group is being referred
for possible prosecution or for administrative disqualification, and the
determination is made that collection action will prejudice the case.
(3) Collection
action: Restitution bureau shall
pursue collection as specified in 8.100.640.13 NMAC.
D. SNAP Intentional program violation (IPV):
(1) Initiating
collection: If an eligibility determination
group member is found to have committed an IPV or has signed either a waiver or
a disqualification consent agreement, the department shall initiate collection
action against the individual's eligibility determination group. Personal contact with the eligibility
determination group is made, if possible.
The department is required to initiate such collection unless:
(a)
the eligibility determination group has repaid
the overpayment already; or
(b) the
department has documentation establishing that the eligibility determination
group cannot be located; or
(c)
the department determines that collection
action will prejudice the case against an eligibility determination group
member referred for prosecution.
(2) Partially
paid claim: The department shall
initiate collection action for an unpaid or partially paid claim, even if
collection action was previously initiated while the claim was being handled as
an IHE claim.
(3) In cases where an eligibility
determination group member has been found guilty of misrepresentation or fraud
by a court or has signed a disqualification consent agreement in a case referred
for prosecution, the department shall request that the matter of restitution be
brought before the court or be addressed in the agreement reached between the
prosecutor and the accused individual.
(4) Changes
in eligibility determination group composition:
(a)
Collection action will be initiated by the restitution bureau against
the eligibility determination group containing the member found to have
committed an IPV.
(b) If a change in
eligibility determination group composition occurs, collection action is
pursued against any or all of the adult members of an eligibility determination
group at the time an overpayment occurred.
(c)
Collection action is pursued against any eligibility determination group
which has a member who was an adult member of the eligibility determination
group that received the overpayment.
E. Fraud exception: Notice of overpayment and administrative
hearings rights shall not be given if the department has decided to pursue
criminal prosecution for fraud. In such
cases, the participant's notice of rights are limited
to those afforded by state criminal statutes.
No attempt shall be made by department staff to recover overpayments in
such cases, nor shall any offers to refund the overpayment be accepted by the
county office.
F. Recovery action:
(1) Overpayments
of less than $1,000: Overpayments of
less than one thousand dollars ($1,000) to currently eligible cases shall be
immediately processed by the department for recoupment.
(2) Overpayments
over $1,000: Overpayments of more
than one thousand dollars ($1,000) to currently eligible cases shall be
referred to the office of inspector general (OIG) for a fraud action decision.
(3) Response
to referral:
(a)
The department shall be notified by the OIG within thirty (30) days
whether fraud action has or will be taken on an open case. If no fraud action is contemplated, the case
shall be immediately processed for either recoupment or cash recovery.
(b)
If a response is not received from the OIG within thirty (30) days of
referral, the county will initiate recoupment from currently eligible cases.
G. Fraud referral:
(1) Fraud
elements:
(a)
By state statute, Section 30-16-6, NMSA 1978, fraud is the intentional
misappropriation or taking of anything of value that belongs to another by
means of fraudulent conduct, practices or representations.
(b)
Fraud exists when:
(i) a person, by
words or conduct, misrepresents facts to the department with the intention to
deceive the department; and
(ii)
because of the misrepresentation and the
department's reliance upon it, the eligibility benefit group has obtained
benefits from the department to which they were not entitled.
(2) Referral
for investigation: If the department
decides that fraud may exist, the case is referred to the OIG for further
investigation or possible prosecution.
[8.100.640.13 NMAC - N, 09/30/2013]
8.100.640.14 METHODS FOR COLLECTING
OVERPAYMENTS:
A. Recoupment: The department shall retain the value of
benefits collected to repay a claim against a participating eligibility determination
group, whether or not the claim occurred because of an IHE, an AE, or an
IPV. The eligibility determination
group's monthly SNAP or cash assistance benefit amount will be reduced to
recover any amount of a claim that was not repaid through a lump sum cash or
SNAP benefit payment, unless a payment schedule has been negotiated with the
eligibility determination group.
Collection of a claim by the department may also be obtained through
recoupment of unemployment compensation benefits, federal pay, income tax
intercepts, or any other method established by the department.
(1) Recoupment
from monthly benefit allotments: A
claim may be recovered from an eligibility determination group currently
participating in SNAP or cash assistance programs by reducing the eligibility
determination group’s monthly benefit allotment.
(2) Recoupment
amount: The amount of benefits that
will be recovered each month through benefit reduction will be determined by
one the following methods.
(a)
SNAP IHE and AE: The amount of reduction will be ten percent
(10%) of the eligibility determination group’s monthly SNAP benefit amount, or
ten dollars ($10) per month, or the agreed amount, whichever is greater.
(b)
SNAP IPV: The SNAP benefit amount to be recovered will
be twenty percent (20%) of the eligibility determination group’s monthly SNAP
benefit amount, or twenty dollars ($20) per month, or the agreed amount,
whichever is greater.
(c)
Cash assistance errors: The cash assistance benefit amount to be
recouped is equal to fifteen percent (15%) of the eligibility determination
group's payment standard.
(d) Recoupment is the
last step in the calculation prior to determining the monthly benefit amount.
B. Cash payment methods:
(1) Lump
sum cash:
(a)
If the eligibility determination group asks to make a lump sum cash
payment or is financially able to repay the claim at one time, the restitution
bureau shall collect a lump sum cash payment.
(b)
An eligibility determination group will not be required to liquidate all
of its resources to make a lump sum payment.
(c)
If an eligibility determination group is financially unable to pay the
entire amount of the claim at one time and prefers to make a lump sum cash
payment as partial payment of the claim, the department shall accept this
method of payment.
(d)
If an eligibility determination group chooses to make a lump sum payment
of benefits from their EBT account as full or partial payment of the claim, the
department shall accept this method of repayment, to include:
(i) SNAP benefits to repay a SNAP claim; or
(ii)
cash benefits to repay a cash assistance claim
or medical assistance claim; or
(iii) cash benefits to
repay a SNAP claim.
(2) Installment
payment schedules:
(a)
The department shall negotiate
a payment schedule with the eligibility determination group for repayment of
any amounts of the claim not repaid through a lump sum payment.
(b)
Payments will be accepted in regular installments.
(c)
An eligibility determination group may use its SNAP or cash assistance
benefits as full or partial payment of any installment repayment to include:
(i) SNAP benefits to repay a SNAP claim; or
(ii)
cash benefits to repay a cash assistance claim
or medical assistance claim; or
(iii) cash benefits to
repay a SNAP claim.
(3) Repayment
of SNAP overpayments:
(a)
If an eligibility determination group is currently receiving benefits,
and a payment schedule is negotiated for repayment of a claim, the negotiated
amount to be repaid each month in installment payments may not be less than the
amount that could be recovered through benefit reduction.
(b)
The amount to be repaid each month through installment payments will
remain unchanged regardless of subsequent changes in the eligibility
determination group's monthly SNAP benefit amount.
(4) Repayment
of cash assistance overpayments:
(a)
Repayments are used to recover cash assistance overpayments from cases
no longer receiving cash assistance or where recovery of an overpayment from an
active cash assistance case cannot be liquidated within twenty (20) months by
recoupment.
(b)
The amount the department tries to recover monthly through repayment is
based on the following schedule, or, if a court order for repayment exists, in
accordance with the court order. If the level of payment sought would cause an
extreme hardship on the participant, the restitution bureau may agree to accept
a lesser amount. Arrangements for
repayments are made by the restitution bureau in all cases, except those where
the participant is willing to repay the entire overpayment in a single payment.
(c) Repayment schedule:
|
Overpayment Amount |
Monthly Repayment Payment |
|
$ 35 -$100 |
$ 5 |
|
$101 - $200 |
$10 |
|
$201 - $300 |
$15 |
|
$301 - $400 |
$20 |
|
$401 - $500 |
$25 |
|
$501 - $600 |
$30 |
|
$601 - $700 |
$35 |
|
$701 - $800 |
$40 |
|
$801 - $900 |
$45 |
|
$901 or more |
$50 |
(5) Repayment
of LIHEAP benefits:
(a)
The eligibility determination group will have forty-five (45) days from the
date of notification of the claim amount to repay the claim in full or make
arrangements to make regular installments to repay the claim.
(b)
The department will initiate collection action to recover the claim
amount on day forty-five (45) if the eligibility determination group does not
repay or make arrangements to repay the amount owed.
(6) Renegotiating
payments: The restitution bureau,
the eligibility determination group, or both, have the option to initiate
renegotiation of the payment schedule if either or both believes that the
eligibility determination group's economic circumstances have changed enough to
warrant such action.
(7) Failure
to pay: If an eligibility determination
group fails to make a payment in accordance with the established repayment
schedule, (either a lesser amount is paid, or no payment is made), the
restitution bureau shall send the eligibility determination group a notice
explaining that no payment or insufficient payment was received.
(a)
The notice informs an eligibility determination group that renegotiation
of the payment schedule may be discussed with the restitution bureau.
(b)
The notice also informs an eligibility determination group that unless
the overdue payments are made or the restitution bureau is contacted to discuss
renegotiation of the payment schedule, the SNAP benefit amount of a currently
participating eligibility determination group against which a claim has been
established will be reduced without an adverse action notice.
(c)
If the eligibility determination group responds to the notice, one of
the following actions will be taken by the restitution bureau.
(i) If the eligibility determination group
makes the overdue payments and wishes to continue making payments based on the
previous schedule, the eligibility determination group is permitted to do so.
(ii)
If the eligibility determination group requests renegotiation, and if
the restitution bureau concurs, a new payment schedule will be negotiated.
(iii) If the eligibility determination group
requests renegotiation of the amount of its repayment schedule, but the
restitution bureau believes that the eligibility determination group's economic
circumstances have not changed enough to justify the requested settlement,
renegotiation will continue until a settlement can be reached.
(d)
The restitution bureau has the option to invoke SNAP benefit reduction
against a currently participating eligibility determination group for repayment
of a claim if a settlement cannot be reached.
(e)
If a currently participating eligibility determination group against
which a claim has been established fails to respond to the notice, a benefit
reduction will be initiated. If benefit
reduction is initiated, no notice of adverse action will be required.
C. Other
payment methods:
(1) Federal
tax intercept: The department may
offset an eligibility determination group’s federal income tax return following
notification to the eligibility determination group, and apply the offset to
the oldest established SNAP claim.
(2) Unemployment
compensation benefit reduction: The
department may offset the unemployment compensation benefits of an adult
eligibility determination group member, following notification to the
eligibility determination group, and apply the offset to the oldest established
active SNAP claim.
(3) Federal
pay: The department may offset an
eligibility determination group member’s federal pay, following notification to
the eligibility determination group, and apply the offset to the oldest
established active SNAP claim.
(4) Any
other means: The department may
invoke collections by any other means available, including but not limited to,
the use of private collection agencies, following notification to the
eligibility determination group.
(5) State
tax intercept: The department may
offset a household’s state income tax return following notification to the
household, and apply the offset to the oldest established active cash claim.
[8.100.640.14 NMAC - N, 09/30/2013]
8.100.640.15 TERMINATING
OVERPAYMENT CLAIMS: A terminated
claim is a claim in which all collection action has ceased. The department may
terminate a claim for any of the reasons described in Subsections A through E
of this section. SNAP, LIHEAP, TANF,
AFDC, GA and refugee cash assistance and support services for participation in
the SNAP and TANF work programs can be terminated.
A. Invalid claims: The overpayment is determined to be invalid based on an administrative hearing decision,
a court decision or a department determination that the claim was established
in error.
B. Death: All adult members responsible for repayment
of the claim are deceased.
C. Cost effectiveness: The department has determined that the cost of
further collection action is likely to exceed the amount that can be recovered
because:
(1) the
cumulative amount of all existing claims against the eligibility determination
group equals twenty-five dollars ($25) or less; and
(2) a
payment on the claim has not been received by the department in at least ninety
(90) days.
D. Failure to locate: There is documentation establishing that the
eligibility determination group cannot be located and the existing claim has
been delinquent for at least six (6) years.
E. Inability to pay: There is written documentation establishing
the eligibility determination group has filed for bankruptcy and the department
is named as a creditor.
F. Reinstating a
terminated claim: A terminated claim
may be reinstated when a new collection method or a specific event substantially
increases the likelihood of further collections.
G. Uncollectible claims:
(1) A claim may be determined uncollectible
after being held in suspense for three (3) years.
(2) A suspended or terminated claim may be
offset against any SNAP benefit amount to be restored.
H. Overpaid
claims:
(1) If a household has overpaid a claim, the
department shall reimburse any overpaid amounts as soon as possible after the
overpayment becomes known.
(2) The household may be reimbursed by
whatever method the department deems appropriate after considering the
household's circumstances.
I. Compromising the claim:
(1) If the full or
remaining amount of a claim cannot be liquidated in three (3) years, the
restitution bureau may compromise the claim by reducing it to an amount that
will allow the household to make restitution within three (3) years.
(2) A compromised claim
will be offset by any benefit that has not yet been restored to the household.
(3) Claims caused by a
SNAP IPV will not be compromised.
[8.100.640.15
NMAC - N, 09/30/2013]
8.100.640.16 WRITING OFF A CLAIM:
Writing off a claim means that the claim is no longer considered a
receivable subject to any federal or state collection requirements such as the
Treasury Offset Program at 31 CFR 285 or the Supplemental Nutrition Assistance
Program at 7 CFR 273.18. A claim may be written off if the claim is at least
six (6) years old and at least one of the provisions of Subsections A through E
of 8.100.640.15 NMAC apply. Only SNAP,
LIHEAP and NMW cash assistance claims may be written off.
[8.100.640.16
NMAC - N, 09/30/2013]
8.100.640.17 DORMANT BENEFIT
ACCOUNTS: Stale benefit
accounts are those SNAP and cash assistance accounts that have not been
accessed for ninety (90) days from the most recent date of withdrawal.
A. Offline accounts: If EBT
accounts are not accessed for ninety (90) days, the department may store such
benefits in an offline account.
(1) Notification: The department shall notify the eligibility
determination group of this action before storing benefits in an offline
account and how to reactivate the account.
(2) Reinstatement: An adult eligibility determination group
member or authorized representative may contact the department or the EBT
customer service help desk and request reinstatement of their EBT account.
(a)
SNAP: SNAP benefits may be restored within three
hundred sixty-four (364) days of the initial date of benefit activity. Initial date of benefit activity is the first
deposit made to the account upon initial approval of the eligibility
determination group’s benefits.
(b)
Cash assistance: Cash assistance benefits may be restored
within three hundred sixty-four (364) days of the initial date of benefit
activity. Initial date of benefit
activity is the first deposit made to the account upon initial approval of the
eligibility determination group’s benefits.
B. Expungements: SNAP and cash assistance benefits
that have not been accessed in excess of the threshold for each program will be
expunged. All benefits will no longer be
available to the eligibility determination group. The eligibility determination group loses all
rights to expunged benefits.
(1) Stale
benefit threshold:
(a) SNAP: SNAP benefits will be expunged after no
activity within three hundred sixty-four (364) days of the initial date of
benefit activity.
(b)
Cash assistance: Cash assistance benefits which have had no
activity within one hundred eighty (180) days of the initial date of benefit
activity will be expunged.
(2) Notification: The contractor shall notify the department no
less than five (5) days prior to expungement of the
SNAP benefits. The department shall
identify any SNAP claims against the eligibility determination group and shall
apply upon expungement.
(a)
SNAP: The department shall notify the eligibility
determination group no less than thirty (30) days prior to the expungement of the SNAP benefits. Request from the participant to reinstate any
benefit must be received prior to date of expungement.
(b)
Cash assistance: The department shall attempt to notify the
eligibility determination group no less than forty-five (45) days prior to the expungement of the cash assistance benefits. A request from
the participant to reinstate any benefit must be received prior to the date of expungement.
(3) Payments
of claims against the eligibility determination group. The contractor shall notify the department no
less than five (5) days prior to expungement of the
SNAP or cash assistance benefits and any claims against the eligibility
determination group shall be removed from the account and applied to the claims
upon expungement.
[8.100.640.17 NMAC - N, 09/30/2013]
History of 8.100.640 NMAC: [RESERVED]