In re: DCIS No. Redacted Redacted

Appearances:
Redacted, pro se, Appellant
Andy Andrews, Investigative Auditor, ARMS
Joanne Friend, Sr. Social Worker/Case Manager, Division of Social Services
Heather Turrsline, Sr. Social Worker/Case Manager, Division of Social Services
Brenda Lee, Sr. Social Worker/Case Manager, Division of Social Services

I

Redacted ("Appellant") is dissatisfied with the action of the Division of Social Services ("DSS") to recover an unknown amount of food stamp benefits that she received, which resulted in an overpayment recoupment action processed by Audit and Recovery Management Services ("ARMS"). Appellant maintains that she was advised that the only thing she needed to do for food stamp eligibility is to provide a certificate that she had completed a drug and alcohol treatment program.

The Division of Social Services ("DSS") contends that the Appellant received an overpayment of food stamp benefits because she was never entitled to receive them due to a drug felony conviction on her record.

II.

The Appellant was issued a Notice of Food Stamp Overpayment sometime in October 2004.

The Appellant filed a request for a fair hearing dated November 4, 2004. (Exhibit 2)

The Appellant was notified by certified letter dated December 6, 2004, that a fair hearing would be held on January 31, 2005. The hearing was conducted on that date in Georgetown, DE.

This is the decision resulting from that hearing.

III.

Redacted applied for food stamp benefits on January 1, 2004. At that time, DSS failed to verify information relating to a drug conviction that the Appellant had listed on her application. Sometime thereafter, DSS, through ARMS, investigated the drug conviction and determined that as a result of a conviction for maintaining a dwelling for distributing drugs in February 2002, the Appellant was not eligible to receive the food stamp benefits that she had been receiving since sometime in early 2004. (see, Exhibit 3)

At the hearing, the Appellant testified that she was not sure what she was convicted of, and that if she had pled guilty to maintaining a dwelling for distributing drugs, it was probably because she had a large amount of drugs there for her personal use. Appellant also testified that if she was overpaid, it was not her fault because DSS did not check the status of her drug conviction. Finally, Appellant testified that she does not agree with the amount of overpayment.

Based upon the documentary evidence (and lack thereof) and testimony at the hearing, the overpayment was not the fault of the Appellant and should be attributed to DSS. It is unknown whether the appropriate disregards were applied, as DSS and ARMS failed to produce the Notice of Food Stamp Overpayment at the hearing.

IV.

Pursuant to DSSM 2027, individuals convicted under Federal or State law of any offense that is classified as a felony that has the element of possession, use or distribution of controlled substances shall not be eligible for cash assistance or benefits under the food stamp program. House Bill 263 amends that regulation, in part, which is reflected in Administrative Notice A-18-2003. The major change is that those convicted of drug possession or use felonies, without an element of distribution, may now be eligible for food stamp benefits. In this case, because the Appellant was convicted of a drug felony with an element of distribution, she was ineligible to receive food stamp benefits when she applied in January 2004.

Pursuant to 7 CFR 273.18(a) adult household members shall be jointly and severally liable for the value of any over issuance of benefits to the household. The Division of Social Services shall establish a claim against any household that has received more benefits than it is entitled to receive. This is true whether the overpayment is due to an inadvertent household error, an intentional violation or an administrative error.

An administrative error occurs when an over issuance of benefits was caused by State agency action or failure to take action. 7 CFR 273.18(a)(2). Specifically, 7 CFR (b)(2)(ii) allows for a claim due to administrative error when the State agency incorrectly computes the household's income or deductions or when they otherwise assign an incorrect or improper allotment.

Under the facts of this case, ARMS was entitled to seek repayment of all of the food stamp benefits paid to the Appellant in error, but fault should not be attributed to the Appellant and all income disregards should be applied. However, in this particular case, since DSS and ARMS have failed to produce a copy of the Notice of Overpayment so that the actual amount of overpayment and disregards could be evaluated, the record is insufficient to sustain the decision of ARMS to seek repayment of an unknown amount of an overpayment in food stamps from the Appellant.

V. Conclusion

For the reasons stated above, the decision of the Division of Social Services to seek repayment of an unknown amount of food stamp benefits is REVERSED.

Date: March 4, 2005

MICHAEL L. STEINBERG
HEARING OFFICER

THE FOREGOING IS THE FINAL DECISION OF THE DIVISION OF SOCIAL SERVICES