DAR File No. 43481

Workforce Services, Employment Development

Section R986-100-117

Disqualification Periods And Civil Penalties For Intentional Program Violations (IPVs)

Notice of Proposed Rule

(Amendment)

DAR File No.: 43481
Filed: 01/15/2019 02:48:15 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of these amendments is to identify unauthorized uses of Temporary Assistance to Needy Families (TANF) financial assistance benefits that may constitute an Intentional Program Violation.

Summary of the rule or change:

The Department of Workforce Services (Department) administers the State's TANF public assistance programs, including the Family Employment Program (FEP) and Family Employment Two Parent Program (FEPTP). These programs provide financial assistance to eligible families. Financial assistance is intended to provide for the individual's or household's basic needs. In February 2012, Congress passed, as part of the Middle Class Tax Relief and Job Creation Act of 2012, the Welfare Integrity and Data Improvement Act, which requires all states to maintain policies and practices as necessary to prevent TANF financial assistance from being used in any electronic benefit transfer transaction in: 1) liquor stores; 2) casinos, gambling casinos, or gaming establishments; and 3) adult-oriented entertainment establishments in which performers disrobe or perform in an unclothed state for entertainment (codified in 42 USC 608(a)(12)). In the 2013 General Session, H.B. 209 prohibited recipients of financial assistance under TANF from accessing benefits through an electronic benefit transfer in a place that exclusively or primarily sells intoxicating liquor, allows gambling, or provides adult entertainment where performers disrobe or perform unclothed (codified in Subsection 35A-3-302(10)). These proposed rule changes further restrict recipients from spending financial assistance on intoxicating beverages or tobacco products, regardless of location. Such unauthorized spending may be considered an Intentional Program Violation.

Statutory or constitutional authorization for this rule:

• 42 U.S.C. Sec 608(a)
• Section 35A-3-302

Anticipated cost or savings to:

the state budget:

There is no expected fiscal impact to state revenues or expenditures. There are no additional state employees or resources needed to oversee the proposed amendment because the changes are not expected to impact existing state practices or procedures. These changes will not increase workload and can be carried out with existing budget.

local governments:

These proposed rule changes are not expected to cause any costs or savings to local governments because TANF programs are federally-funded programs that do not rely on local governments for funding, administration, or enforcement.

small businesses:

These proposed rule changes are not expected to cause any costs or savings to small businesses because these are federally-funded programs and there are no fees or costs associated with these proposed changes. The Department has considered whether these proposed rule changes will have a measurable negative fiscal impact on small businesses and has determined that they will not have a negative fiscal impact.

persons other than small businesses, businesses, or local governmental entities:

The persons that may potentially be affected by these amendments will be benefit recipients and businesses patronized by those recipients. These proposed rule changes are not expected to cause any costs or savings to persons other than small businesses, businesses, or local government entities because these are federally-funded programs and there are no fees or costs associated with these proposed changes.

Compliance costs for affected persons:

These proposed rule changes are not expect to cause any compliance costs for affected persons because they do not create any new eligibility or administrative requirements for TANF recipients or any other affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

After a thorough analysis, it was determined that these proposed rule changes will not result in a fiscal impact to businesses.

Jon Pierpont, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Workforce Services
Employment Development
140 E 300 S
SALT LAKE CITY, UT 84111-2333

Direct questions regarding this rule to:

• Amanda McPeck at the above address, by phone at 801-517-4709, by FAX at , or by Internet E-mail at ampeck@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/04/2019

This rule may become effective on:

03/11/2019

Authorized by:

Jon Pierpont, Executive Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2019	FY 2020	FY 2021
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

After a thorough analysis, it was determined that these proposed rule changes will not result in a fiscal impact to businesses because these are federally-funded programs and there are no fees or costs associated with these proposed changes.

 

The executive director of the Department of Workforce Services, Jon Pierpont, has reviewed and approved this fiscal analysis.

 

 

R986. Workforce Services, Employment Development.

R986-100. Employment Support Programs.

R986-100-117. Disqualification Periods And Civil Penalties For Intentional Program Violations (IPVs).

(1) An Intentional Program Violation (IPV) occurs when a person, either personally or through a representative, intentionally, knowingly, or recklessly (as those terms are defined in Utah Code Ann. Section 76-2-103 and as shown by clear and convincing evidence) violates a program rule, or helps another person violate a program rule, in an attempt to obtain, maintain, increase, or prevent the decrease or termination of public assistance payment(s) from any of the programs listed in R986-100-102. Acts which may constitute an IPV include but are not limited to:

(a) making false or misleading statements;

(b) misrepresenting, concealing, or withholding facts or information;

(c) posing as someone else;

(d) taking, using or accepting a public assistance payment the person knew they were not eligible to receive or not reporting the receipt of a public assistance payment the person knew they were not eligible to receive;

(e) not reporting a material change as required by and in accordance with these rules;

(f) committing an act intended to mislead, misrepresent, conceal or withhold facts or propound a falsity;

(g) accessing TANF financial[public] assistance benefits[funds] through an electronic benefit transfer, including through an automated teller machine or point-of-sale device, in an establishment in the state that:[;]

(i) exclusively or primarily sells intoxicating liquor,

(ii) allows gambling or gaming, or

(iii) provides adult-oriented entertainment where performers disrobe or perform unclothed;

(h) using TANF financial assistance benefits to purchase beer, intoxicating beverages, cigarettes, or tobacco; or

(i[h]) committing any act that constitutes a violation of federal or state law for the purpose of using, presenting, transferring, acquiring, receiving, possessing, or trafficking SNAP or EBT cards.

(2) When an IPV is alleged, the Department may:

(a) Refer the case for criminal prosecution;

(b) In SNAP cases, refer the case for an administrative disqualification hearing (ADH); or

(c) In non-SNAP cases, issue an initial decision finding the person committed an IPV, which the person may appeal via the fair hearing process set forth in R986-100-123 to -135.

(3) The Department may not disqualify a person from SNAP unless an ADH has been held or the person has been criminally convicted. The Department may not make concurrent referrals for an ADH and criminal prosecution. If a SNAP case referred for criminal prosecution is dismissed or referred back to the Department without prosecution, the Department may refer the case for an ADH.

(4) A person who is found liable for committing an IPV in either an administrative or criminal proceeding shall:

(a) In the case of any program other than SNAP, be assessed a civil penalty of 10% of the amount of the overpayment; and

(b) In the case of any program other than Medicaid, be disqualified from receiving assistance from the program(s) at issue for a period of:

(i) 12 months for a first offense;

(ii) 24 months for a second offense; and

(iii) Permanently for a third offense.

(c) Disqualifications run concurrently.

(d) A disqualification applies only to the person(s) found to have committed an IPV. However, all adult members of the relevant household at the time the overpayment occurred shall be responsible for repaying the overpayment.

(e) Notwithstanding the foregoing, if a more specific provision of federal or state law provides for different sanctions for committing an act that constitutes an IPV, that provision is controlling.

(5) All income and assets of a person who has been disqualified from assistance for an IPV continue to be counted and affect the eligibility and assistance amount of the household assistance unit in which the person resides.

(6) If an individual has been disqualified in another state, the disqualification period for the IPV in that state will apply in Utah provided the act which resulted in the disqualification would have resulted in a disqualification had it occurred in Utah. If the individual has been disqualified in another state for an act which would have led to disqualification had it occurred in Utah and is found to have committed an IPV in Utah, the prior periods of disqualification in any other state count toward determining the length of disqualification in Utah.

(7) The person being disqualified will be notified that a disqualification period has been determined. The disqualification period shall begin no later than the second month which follows the date the person being disqualified receives written notice of the disqualification and continues in consecutive months until the disqualification period has expired. The Department will also provide written notice to any remaining household members informing them of the allotment they will receive during the disqualification period.

(8) Nothing in these rules is intended to limit or prevent a criminal prosecution for fraud based on the same facts used to determine the IPV.

 

KEY: employment support procedures, hearing procedures, public assistance, SNAP

Date of Enactment or Last Substantive Amendment: [July 23, 2018]2019

Notice of Continuation: September 2, 2015

Authorizing, and Implemented or Interpreted Law: 35A-3-101 et seq.; 35A-3-301 et seq.; 35A-3-401 et seq.