In re: DCIS No. Redacted Redacted

Appearances:
G. Andy Andrews, Audit and Recovery Management Services ("ARMS")

I.

Pursuant to the federal rule at 7 CFR 273.16, an individual may be disqualified from participation in the Food Stamp Program after a finding as a result of an administrative hearing that the person intentionally violated a Food Stamp Program rule. The violation, and intent to commit the violation, must be proven by clear and convincing evidence.

DSS proposes to disqualify Redacted, a resident of the State of Delaware, from participation in the Food Stamp Program for allegedly failing to report a change in her income when she returned to work at Pinnacle Foods on May 12, 2003, and subsequently began receiving wages on May 22, 2003, and thereafter failed to report a change in her income when her unemployment compensation stopped on May 22, 2003 after she began receiving wages from Pinnacle Foods.

I find that the State does not possess evidence as required under the federal rule at 7 CFR 273.16(e)(3) that the Respondent received advance notice of this hearing within the time period set for receipt. (Notice of the hearing was sent by certified mail and was returned as "unclaimed.") The Respondent is not present for the hearing. Jurisdiction for this hearing decision is under the federal rule at 7 CFR 273.16. A hearing decision may be reached based on information provided by a Food Stamp Program office if the household member proposed for disqualification is unable to be located or fails, without good cause, to appear for the hearing. 7 CFR 273.16(e)(4).

ARMS offers hearsay evidence in the form of a Verification of Employment ("VOE") form (Form 170) (Exhibit 5) along with an additional page of wage information faxed from the Pinnacle Foods Human Resources Department approximately one week after the VOE form was provided to DSS. ARMS has also testified that through investigation they determined the Respondent did not report the change in her income until she returned the Food Stamp Recertification form on September 25, 2003.

The ARMS investigation also revealed that the Respondent failed to report that her unemployment compensation stopped when she returned to work on or about May 12, 2003. The Delaware Department of Labor Unemployment Insurance Claim History payment history form (Exhibit 2) supports a finding that the Respondent received wages as of May 22, 2003, apparently the first wages she received after returning to Pinnacle Foods on May 12, 2003. ARMS additionally provided a written statement completed by Jolynn Esham, DSS Senior Social Worker/Case Worker (Exhibit 3), that reported the Respondent signed a Food Stamp Recertification Form on February 26, 2003 that outlined a Food Stamp program participant's responsibilities with regard to reporting changes in income to DSS within 10 days of the change.

ARMS contends that the VOE form, additional faxed wage form along with the written statement (Exhibit 3) by Jolynn Esham, and a Delaware Department of Labor Unemployment Insurance Claim History payment history form, supports the proposed action to disqualify Ms. Phillips from participating in the Food Stamp Program.

Ms. Esham is not present for the hearing to offer testimony or to authenticate her written statement.

The written statements offered by the ARMS proponent are made outside of this hearing and, therefore, qualify as hearsay. Hearsay evidence is not "clear and convincing" evidence.

The standard of evidence used to determine if an intentional program violation was committed is that of "clear and convincing" evidence. See 7 CFR 273.16 (e)(6).

The testimony and evidence received for this hearing is not supported by admissible, non-hearsay evidence.

The record also does not support a finding that the respondent did not timely report changes in household income. This is because, beginning in or about February 2003 at the time of the income changes that allegedly were not reported by Ms. Redacted, DSS had a process of "simplified reporting" in place in which recipients were not required to report income changes unless the household income exceeded a prescribed percentage limit of the federal poverty level for the particular household size. The hearing record does not disclose what the income and income eligibility limits were at the time of the event which ARMS asserts was a disqualifying event. Therefore, ARMS has not shown that the respondent failed to meet her duty to report income changes.

II

For the reasons given above, the proposal to disqualify the respondent from participating in the Food Stamp Program is not granted.

Date: April 26, 2005

MICHAEL L. STEINBERG
HEARING OFFICER

THE FOREGOING IS THE FINAL DECISION OF THE DEPARTMENT OF HEALTH AND SOCIAL SERVICES

POSTED
MLS/vmd

cc:
Redacted
G. Andy Andrews, ARMS
Jolynn Esham, DSS
William Garfinkel, DSS

SUMMARY OF DOCUMENTARY EVIDENCE

• Exhibit # 1 - Copy of Administrative Disqualification Hearing Summary dated November 15, 2004, consisting of two (2) pages.
• Exhibit # 2 - Copy of a Delaware Department of Labor Unemployment Insurance Claim History dated December 17, 2003. This is excluded pursuant to DSSM 5600.
• Exhibit # 3 - Copy of a Social Worker's Statement from Jolynn Esham dated March 26, 2004. This is exclused as hearsay.
• Exhibit # 4 -Copy of an Overpayment Routing Form dated September 28, 2004.
• Exhibit # 5 - Copy of Verification of Employment (Form 170) dated September 30, 2003, consisting of two pages (2) pages. This is excluded as hearsay.