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 Health Care Authority.
[8.100.640.1 NMAC
- N, 09/30/2013; A, 7/1/2024]
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 health care authority (HCA) to "...adopt, amend and
repeal bylaws, rules and regulations..." It also provides for
administration of public assistance programs.
B. The ISD of the[ HSD] HCA was
created by the HCA secretary under authority granted by Paragraph (3) of
Subsection B of Section 9-8-6 NMSA 1978.
[8.100.640.3 NMAC - N, 09/30/2013 ; A, 7/1/2024]
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 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 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 EBT Adjustments:
A. EBT adjustment pertains to any EBT
transaction resulting in a change to a client’s cash or snap benefits. If a system error causes a customer to
receive funds to which they were not entitled or causes their account to not be
charged for an EBT transaction, an adjustment may be completed to reclaim the
funds or settle the transaction.
(1) Client-initiated adjustments: The department must act on all requests for
adjustments made by client households within 90 calendar days of the error
transaction.
(a) For SNAP the department has 10 business days from the date the household
notifies it of the error to investigate and reach a decision on an adjustment
and move funds into the client account.
(b) For cash the department has 20 business days from the date the household
notifies it of the error to investigate and reach a decision on an adjustment
and move funds into the client account.
(c) These timeframes also apply if the department or entity other than the
household discovers a system error that requires a credit adjustment to the
household. Business days are defined as
calendar days other than Saturdays, Sundays, and federal holidays.
B. Retailer-initiated adjustments: The department must act upon all adjustments
to debit a household's account no later than 10 business days from the date the
error occurred, by placing a hold on the adjustment balance in the household's
account. If there are insufficient
benefits to cover the entire adjustment, a hold shall be placed on any
remaining balance that exists, with the difference being subject to
availability only in the next future month.
The household shall be given adequate notice. The notice must be sent at the time the
initial hold is attempted on the household's current month's remaining balance,
clearly state the full adjustment amount, and advise the household that any
amount still owed is subject to collection from the household's next future
month's benefits.
(1) The household shall have 90 days from
the date of the notice to request a fair hearing.
(2) Should the household dispute the
adjustment and request a hearing within 10 days of the notice, a provisional
credit must be made to the household's account by releasing the hold on the
adjustment balance within 48 hours of the request by the household, pending
resolution of the fair hearing. If no
request for a hearing is made within 10 days of the notice, the hold is
released on the adjustment balance, and this amount is credited to the
retailer's account. If there are
insufficient funds available in the current month to cover the full adjustment
amount, the hold may be maintained and settled at one time after the next
month's benefits become available.
[8.100.640.17 NMAC - N, 3/1/2020]
8.100.640.18 DORMANT BENEFIT ACCOUNTS: Stale benefit accounts are those
SNAP and cash assistance accounts that have not been accessed for 90 days from
the most recent date of withdrawal.
A. Offline accounts: If EBT
accounts are not accessed for 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 274 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 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 274 days of the
initial date of benefit activity.
(b) Cash assistance: Cash assistance benefits which have had no
activity within 180 days of the initial date of benefit activity will be
expunged.
(2) Notification: The contractor shall notify the department no
less than five 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 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 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 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; A and Rn, 3/1/2020;
A, 10/1/2021]
History of 8.100.640
NMAC: [RESERVED]