To address the Federal changes for the Treasury Offset Program (TOP) delinquency timeframes, additions to the compromise policy to define processes and requirements, additions of the Benefit Recovery client notices and substantive language changes ...

 

DEPARTMENT OF CHILDREN AND FAMILIES

Economic Self-Sufficiency Program

RULE NO.: RULE TITLE:

65A-1.900: Overpayment and Benefit Recovery

PURPOSE AND EFFECT: To address the Federal changes for the Treasury Offset Program (TOP) delinquency timeframes, additions to the compromise policy to define processes and requirements, additions of the Benefit Recovery client notices and substantive language changes throughout the document for consistency purposes.

SUMMARY: This rule addresses the overpayment and benefit recovery within the context of food assistance program eligibility determinations.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department considered the factors in Section 120.541, F.S. The proposed rule is not expected to exceed the criteria in paragraph 120.541(2)(a), F.S., therefore, legislative ratification is not required under subsection 120.541(3), F.S.

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.

RULEMAKING AUTHORITY: 414.41, 414.45 FS.

LAW IMPLEMENTED: 414.31, 414.36, 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: December 29, 2016, 10:30 a.m.

PLACE: 1317 Winewood Boulevard, Building 3, Room 455, Tallahassee, Florida 32399-0700

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: Johanna Stewart, [e-mail], [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Johanna Stewart, [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

65A-1.900 Overpayment and Benefit Recovery.

The purpose of Tthis section is to define sets forth the administrative policies applicable to the establishment and recovery of overpayments in the food assistance and cash assistance programs.

(1) Administrative Definitions Applicable to Overpayment and Benefit Recovery.

(a) Adult, for the purpose of this rule, is:

1. Eighteen years of age or older,

2. A teen parent receiving food public assistance or cash assistance for themselves as an adult,

3. An emancipated minor, or

4. An individual who has been married even if the marriage ended in divorce.

(b) Cash Assistance, for the purposes of this rule includes, Temporary Cash Assistance, Work and Gain Economic Self-Sufficiency, Aid to Families with Dependent Children and Temporary Assistance for Needy Families.

(c) Delinquency, for the purposes of the Treasury Offset Program (TOP), is the failure to sign a Voluntary Repayment Agreement.

(a) Overpayment: Overpayment is the amount of public assistance received for which an individual was not entitled.

(d)(b) Intentional Program Violation: Intentional Program Violation (IPV) or fraud, is defined pursuant to Section 414.39(1), (2) and (4), F.S., 7 C.F.R. §273.16(c) and 45 C.F.R. §235.110(a)(2) incorporated by reference.

(e) Overpayment, is the amount of food public assistance or cash assistance received for which an individual or assistance group was is not entitled.

(f)(c) Direct Reimbursement,: Direct Reimbursement Repayment, is the repayment by an individual or assistance group to the Department or contractor for an overpayment claim. Repayment may be sought by the individual payee or  assistance group members who met the criteria in section (1) of this rule.

(g)(d) Recoupment of Benefits:, Recoupment of Benefits is the deduction of repayment amounts from benefits prior to disbursing them.

(h)(e) Refusal to Repay:, Refusal to repay occurs when the individual responsible for repayment:

1. Received notification of the overpayment or request for Voluntary Rrepayment Aagreement as specified in subsection (8) and subsequently:

a. Fails to comply with the time frames as set forth in paragraph (8)(d);

b. Advises the Department either orally or in writing that they refuse to repay the amount owed; or

c. Fails to sign and return a Voluntary Rrepayment Aagreement when and repayment, which must be made in whole or in part by direct reimbursement payment.

2. Received written notification of a failure to comply with the terms of a repayment agreement and subsequently:

a. Fails to contact the Department within ten days for food assistance IPV, 20 days for food assistance Inadvertent Household Error (IHE), or 30 days for food assistance agency error and all other public assistance errors including those for the Refugee Assistance ((RAP) and Optional State Suppplementation (OSS) Programs from th date of notification; or

b. Contacts the Department, 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 Department’s consent to a change in the repayment agreement.

(i)(f) Notification,: Notification for purposes of this section rule, is any correspondence from the Department that advises an individual or assistance group of the status of an overpayment. Any notification will be in compliance with 7 C.F.R. §273.18(e)(3).

(j)(g) Extreme hardship policy,: Extreme hardship policy applies only to cash assistance agency errors and occurs when monthly expenses for basic maintenance needs exceed monthly income. 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. 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 assistance benefits.

2. Shelter expenses include rent, mortgage, mandatory maintenance or membership fees; loan repayments, including interest for the purchase of a mobile home; property taxes and insurance on the home; cost of fuel, electricity, water, sewerage and garbage pickup; and the basic service fees for one telephone.

3. Medical expenses include those not paid by insurance.

4. Transportation expenses include those necessary for household vehicles or public transportation.

5. Clothing and personal and household incidental expenses include those necessary for individuals in the household.

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 Responsible for Repayment of Overpayment.

(a) Individuals who received Aid to Families with Dependent Children (AFDC) and other cash assistance overpayments as an adult will be responsible for repayment of the overpayment.

(b) Individuals who received fFood assistance overpayments as an adult will be responsible for repayment recovered from an individual as specified in 7 C.F.R. §273.18(a)(4) (20105), incorporated by reference.

(c) Individuals who received Medicaid overpayments as an adult will be responsible for repayment of the overpayment.

(d) Adults who apply for and/or receive assistance on behalf of others.

(e) Authorized/Designated Representative, for purposes of this rule, means an individual who has knowledge of the assistance group’s circumstances and is authorized to act responsibly on their behalf.

(e) For the purpose of this rule, an adult is:

1. Eighteen years of age or older,

2. A teen parent receiving assistance for themselves as an adult,

3. An emancipated minor, or

4. An individual who has been married even if the marriage ended in divorce.

(3)Monthly Repayment Amounts.

(a) monthly repayment amounts of all AFDC and cash assistance overpayments include the following provisions:

1. Any individual no longer receiving cash assistance will negotiate a repayment agrement with the Department or contractor.

(3)Monthly Repayment Amounts.

(a) The monthly repayment amounts of all food public assistance and cash assistance are subject to negotiation.

1.2. Any individual or assistance group adversely affected by the preceding subparagraph is entitled to a departmental review or hearing pursuant to Chapter 65-2, F.A.C.

(b) Monthly repayment amounts of all food assistnace overpayments will be determined in accordance with 7 C.F.R. § 273.18(c)(2010), incororated by reference.

(cb) Any adult who applied for and/or received Medicaid benefits for themselves or the assistance group is liable or responsible for repayment. They will negotiate a repayment agreement with the Department or contractor.

(4) Methods of Repayment.

(a) The methods of repayment of cash assistance overpayment are as follows:

1. As specified in 45 C.F.R. § 233.20(a)(13) (2015) (2009), incorporated by reference; or

2. Through application of child support credit. Child support credit exists when child support collected and retained by the state 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, if requested by the absent parent or recipient, be credited as repayment and the amount owed by the individual 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 Department all AFDC or cash assistance benefits received on behalf of the overpaid assistance group. Child support credit is not applicable to RAP overpayments.

(b) The method of repayment of all food assistance overpayments will be as specified in 7 C.F.R. § 273.18(f)-(g) (2015) (2010), incorporated by reference.

(c) For purposes of this rule only, the method of a repayment of a, Medicaid overpayments will be collected by direct reimbursement repayment.

(5) Refusal to Repay. When an individual or assistance group refuses to make repayment by direct reimbursement after a request to do so, the Department, at its discretion, may take appropriate civil action against the income or resources of the individual or assistance group involved.

(6) Compromising Food Assistance Claims. Effective August 1, 2001, a food assistance claim or any portion of a food assistance claim may be compromised with the exception of court ordered restitutions or IPVs. The Department reserves the right to approve or not approve the compromise.

(a) Individuals with an overpayment claim in the fFood Aassistance Program may request a compromise of their claim using the compromise request included in the Notice of Case Action Form BVFSOE. If a prior request has been decided, then any pending request is bound by the prior decision, unless the individual or assistance group can demonstrate a change in circumstances. at any time after they are notified of the claim.

(b) For purposes of a compromise request made pursuant to this rule, the Department will determine that the economic household circumstances reasonably demonstrate the overpayment claim will not be paid within three years of being notified of the overpayment claim. For purposes of this paragraph, the three-year period is 36 months after the date of the Notice of Case Action. A claim and will be compromise to zero dollars when at least one of the following is present:

1. The death or prognosis of death of any liable individual within three years of being notified;

2. Pending litigation: in a court, which shall not include administrative fair hearings or appeals of final orders from administrative fair hearings but does include proceedings of including a bankruptcy court, that involves any liable individual’s obligation to repay the overpayment within three years of being notified;

3. Any liable individual is sentenced to a period of incarceration that will expire after the three-year period the overpayment is expected to be paid; or

4. The liable individual(s) sole household’s income is based only on either elderly age or disability projecting a fixed, limited economic potential to repay the overpayment within three years; or

5. Other reasons for a compromise. The Department will not speculate about the liable individual’s ability to repay the overpayment. If the Department must speculate, the Department will deny the request and provide written notice of the decision. 

(c) The Department requires At the time of the compromise request, the individual or assistance group shall submit verification of subparagraphs 1. through 5.4. above. When a decision is made concerning the compromise request, the Department will provide written notice of the decision including information about hearing appeal rights.

(d) Liable individual(s) can request a compromise even if subparagraphs (b)1. Through 4. Above do not apply. The request and any other related information provided must clearly show the overpayment claim will not be paid within the three year period. The Department will not speculate about the liable individual’s ability to repay the overpayment. If the Department must speculate about the liable individual’s ability to repay the overpayment, the Department will deny the request and provide written notice of the decision.

(7) Computation of Overpayment.

(a) Overpayment computations will be made using the applicable program policies in effect during the certification period in which the overpayment occurred.

(b) When the Department determines that it needs additional documentation of expenses to compute overpayment, it will notify the individuals or assistance groups responsible for repayment of the information needed. The individual or assistance group must provide any requested items within the time requested by the Department, or the expense will not be considered in computing the overpayment amount.

(8) Notification of Overpayment. The Department must notify the individuals or assistance groups responsible for repayment of overpayment 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., or that they may seek compromise of a food assistance overpayment pursuant to 7 C.F.R. § 273.18(e)(3), and (7) (2015) (2010) incorporated by reference.

(a) The individual has a right to an administrative hearing in accordance with the Department’s hearings procedures in Chapter 65-2, F.A.C.

(b) The Department will send notification of overpayment to current and prior recipients by regular mail at the address the Department sends benefits or correspondence. The Department presumes delivery unless the postal service returns the notice to the Department. For the purposes of this rule, mail shall be defined as outlined in subsection 65A-1.203(12).

(c) Notification of overpayment to individuals no longer receiving assistance will be made as follows:

1. By regular mail to the last known address availbale to the Department. The Department presumes delivery unless the postal service returns the notice to the Department.

2. The last notification prior to the initiation of civil action will be sent cetified mail, return receipt requested, or hand delivered with certification that delivery was made to the individuals responsible for repayment.

(c)(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 30 days from the date of notification for all food assistance or cash assistance errors including cash assistance errors for the Refugee Assistance Program (RAP) and Optional State Supplementation (OSS) Programs. ten days for food assistance IPV, 20 days for food assistance IHE, or 30 days for food assistance agency error and all the other public assistance errors including those for RAP and OSS Programs from the date of notification.

(9) Claim Thresholds. The Benefit Recovery Program will not pursue a claim in bankruptcy proceedings if the amount of the claim is at or below $1,250.

(10) Determination of Intentional Program Violation.

(a) Pursuant to sSections 414.33, 414.36 and 414.39, F.S., when the Department has information that an individual or assistance group has committed fraud or an IPV, it will refer the case to the Department of Financial Services, Division of Public Assistance Fraud (DPAF) for investigation. In cases where DPAF determines that an individual has committed fraud in the cash assistance or Food Assistance Programs, it will pursue a determination of IPV through either court action, administrative disqualification hearing, or both, where permitted by 7 C.F.R. § 273.16(a) (2015) (2010), incorporated by reference, 45 C.F.R. § 235.110 (2015) (2009), incorporated by reference and Section 414.41, F.S. The Division of Public Assistance Fraud DPAF will pursue a determination of IPV through court action in instances where it determines that an individual has committed fraud in the Medicaid Program.

(b) Individuals found by an administrative fair hearing officer or court to have committed an act of IPV while receiving, or attempting to receive, food assistance, cash assistance, or both, food assistance and cash assistance benefits will 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) (20105), incorporated by reference or Section 414.41, F.S.

(11) Treasury Offset Program.

(a) The Department will refer individuals who owe past-due, legally enforceable federal food assistance overpayment debts to the U.S. 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) and (f). Referral of individuals owing such debt will be completed in accordance with procedures and criteria contained in 26 C.F.R. § 301.6402-6 and 31 C.F.R. Part 5 Subpart C et. seq., as provided for in 7 C.F.R. § 3.46.

(b) A past-due, legally enforceable debt exists when an individual in receipt of overpayment as defined in Section 414.41(1), F.S. and paragraph (1)(e)(a) of this rule is at least 120 180 days delinquent in repayment of the such overpayment, and the overpayment has not been discharged through administrative or legal action.

(c) The Department must make a reasonable attempt as defined in 26 C.F.R. § 301.6402-6(d), to notify individuals owing such debt that:

1. The debt is past due, and

2. Unless a signed Voluntary Repayment Agreement and payment is received repaid within 180 60 days from the date on the notification, it will refer the debt to the U.S. 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 request a review in writing, via presentation of evidence to the Department, that all or part of the debt is not past-due or legally enforceable.

(d) The Department will consider evidence presented timely by an individual in receipt of notification described in paragraph (11)(c)(3) 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. The Department will notify the individual within thirty (30) days from the receipt of the review request. If it is found that the debt is past due and legally enforceable, the individual will be notified that they may request a Federal review by Food and Nutrition Services (FNS).This consideration process is separate and apart from the fair administrative hearings appeals process and will address only the past-due status or legal enforceability of all or part of the debt.

(e) The Department 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:

(a) Information Concerning Administrative Disqualification Hearings, CF-ES 3057, 09/2009;

(b) Request for Additional Information, CF-ES 3400, 09/2009;

(c) Waiver of Administrative Disqualification Hearing With a Program Loss, CF-ES 3410, 09/2006;

(d) Waiver of Administrative Disqualification Hearing Without a Program Loss, CF-ES 3410A, 09/2006;

(e) Disqualification Consent Agreement, CF-ES 3414, 11/2007;

(f) Notice of Compromise Decision, CF-ES 3110, 03/2010 and

(g) Request for Information to Determine Compromise, CF-ES 3111, 03/2010

(h) Notice of Case Action, BVFSOI, BVFSOE, BVCAOP, BVMAOP, BVPFBI, BVPFBE, BVPCBL, BVPMBL, BV06D5,BV10D5,BV06D6, BV10D6, BV06D9, BV10D9, BV06DF, BV10DF, BV06DA, BV10DA, BV06DG, BV10DG, BV06DB, BV10DB, BV06DH, BV10DH, BV11OH, BV11OD, BVRPON, BVEBBL, BV12OS;

(i) Payroll Deduction Agreement;

(j) Treasury Offset Notification Letter; and

(k) Treasury Offset Review Decision Notice.

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.

Rulemaking Authority 409.919, 414.41, 414.45 FS. Law Implemented 414.31, 414.36, 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, 6-21-10,               -16.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Sheri Hall

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Mike Carroll

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 16, 2016

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 08, 2016