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The Oregon Administrative Rules contain OARs filed through October 15, 2014
 
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DEPARTMENT OF HUMAN SERVICES, SELF-SUFFICIENCY PROGRAMS

 

DIVISION 195

LIENS, OVERPAYMENTS AND IPVs

461-195-0301

Definitions

For purposes of OAR 461-195-0301 to 461-195-0350, the following definitions shall apply:

(1) "Action" means an action, suit, or proceeding.

(2) "Applicant" means an applicant for assistance.

(3) "Assistance" means moneys for the needs of a recipient and for the needs of other individuals living with the recipient whom the recipient has an obligation to support which are paid by the Department, by a prepaid managed care health services organization, or by a coordinated care organization (see OAR 410-141-0000) either directly to the recipient or to others for the benefit of the recipient. Assistance includes both cash and medical assistance programs. Assistance does not include SNAP benefits. The assistance must be directly related to the personal injury. Assistance is received by the recipient on the date of issuance of a check for cash assistance and the date of service for medical assistance, regardless of the actual payment date by the Department, the prepaid managed care health services organization, or the coordinated care organization.

(4) "Claim" means a legal action or a demand by, or on behalf of, a recipient for damages for or arising out of a personal injury which is against any person, public body, agency, or commission other than the State Accident Insurance Fund Corporation or Workers' Compensation Board.

(5) "Compromise" means a compromise between a recipient and any person or public body, agency or commission against whom the recipient has a claim.

(6) "Judgment" means a judgment in any action or proceeding brought by a recipient to enforce the claim of the recipient.

(7) "Personal injury" means a physical or emotional injury to an individual including but not limited to assault, battery, or medical malpractice arising from such physical or emotional injury.

(8) "Prepaid managed care health services organization" means a managed health, dental or mental health care organization that contracts with the Department on a prepaid basis under the Oregon Health Plan (see OAR 410-200-0020). Prepaid managed care health organizations may be dental care organizations, fully capitated health plans, mental health organizations, physician care organizations, or chemical dependency organizations.

(9) "Recipient" means an individual who receives assistance or whose needs are included in a public assistance grant.

(10) "Settlement" means a settlement between a recipient and any person or public body, agency or commission against whom the recipient has a claim.

Stat. Auth.: ORS 409.050, 410.070, 411.060, 411.070, 412.049, 413.033, 413.042, OLs 2013 Ch 14 sec. 10
Stats. Implemented: ORS 409.010, 411.060, 411.070, 412.049, 413.033, 413.042, 416.510 - 416.610
Hist.: AFS 62-1989, f. 10-5-89, cert. ef. 10-15-89; AFS 26-1993, f. 10-29-93, cert. ef. 11-1-93; Renumbered from 461-010-0100; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06; SSP 15-2006, f. 12-29-06, cert. ef. 1-1-07; SSP 37-2013, f. 12-31-13, cert. ef. 1-1-14

461-195-0303

Personal Injury Claim

(1) Medical assistance applicants and recipients are required, as a condition of eligibility, to assign to the Department any rights to payment for medical care from any third party and, once they receive assistance, to assist the Department in pursuing any third party who may be liable for medical care or services paid by the Department, including health services paid for pursuant to ORS 414.705 to 414.750.

(2) For all programs, the existence of a claim for damages for personal injuries does not make recipients ineligible for program benefits. For all programs except SNAP, the Department will file a lien on the claim.

(3) If a recipient fails to pursue such a claim, after the Department's Personal Injury Liens staff determine that a claim should be pursued, the Department shall apply the penalties in OAR 461-120-0330 unless good cause is established per 461-120-0350.

Stat. Auth.: ORS 409.050, 411.060 & 416.510 - 416.610
Stats. Implemented: ORS 411.620, 411.630, 411.632, 411.635 & 411.640
Hist.: AFS 80-1989, f. 12-21-89, cert. ef. 2-1-90; AFS 26-1993, f. 10-29-93, cert. ef. 11-1-93; Renumbered from 461-195-0300; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06

461-195-0305

Lien of the Department

(1) Whenever a recipient has a claim for damages for a personal injury, the Department shall have a lien upon the amount of any judgment in favor of a recipient or amount payable to the recipient under a settlement or compromise as a result of that claim for all assistance received from the date of the injury to:

(a) The date of satisfaction of the judgment favorable to the recipient; or

(b) The date of the payment under the settlement or compromise.

(2) The person or public body, agency or commission bound by the judgment, settlement, or compromise shall be responsible for immediately informing the Department's Personal Injury Liens Unit when a judgment has been issued or a settlement or compromise has been reached so that the exact amount of the Department's lien may be determined. For the purposes of this rule, immediately means within ten calendar days. If the Department is not timely notified, the 180 day limitation in ORS 416.580(1) does not begin to run until the Department's Personal Injury Liens Unit has actual notice of a settlement, compromise, or judgment.

(3) The lien will not attach to the amount of any judgment, settlement, or compromise to the extent of the attorney fees, costs and expenses which the Recipient incurred in order to obtain that judgment, settlement, or compromise.

(4) The lien will not attach to the amount of any judgment, settlement, or compromise to the extent of medical, surgical and hospital expenses personally incurred by such recipient on account of the personal injury giving rise to the claim, for which assistance was not provided or paid. For purposes of OAR 461-195-0301 to 461-195-0350, personally incurred expenses are limited to those expenses not covered by the Department, and for which the client is personally liable at the time of judgment, settlement, or compromise.

(5) The Department's lien must be satisfied or specific approval must be given by the Department's Personal Injury Liens Unit's staff before any portion of the claim judgment, settlement, or compromise is released to the recipient. There is a rebuttable presumption that the entire proceeds from any judgment, settlement, or compromise, are, unless otherwise identified, in payment for medical services. The Department shall have a cause of action against any person, public body, agency, or commission bound by the judgment, settlement, or compromise who releases any portion of the claim judgment, settlement, or compromise to the recipient before meeting this obligation.

Stat. Auth.: ORS 409.050, 411.060 & 416.510 - 416.610
Stats. Implemented: ORS 25.020, 25.080, 409.020, 411.060, 416.510-416.610
Hist.: AFS 62-1989, f. 10-5-89, cert. ef. 10-15-89; AFS 26-1993, f. 10-29-93, cert. ef. 11-1-93; Renumbered from 461-010-0105; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06; SSP 15-2006, f. 12-29-06, cert. ef. 1-1-07

461-195-0310

Notice of Claim or Action by Applicant or Recipient

(1) An applicant for or recipient of assistance who has a claim for a personal injury or begins an action to enforce such claim, or the attorney or authorized representative (see OAR 461-115-0090) for the applicant or recipient, is required to notify the Department, the prepaid managed care health services organization, and the coordinated care organization (see OAR 410-141-0000) of the recipient, if the recipient is receiving services from the organization, within ten days of initiating that claim or action, unless the action was initiated prior to the application for assistance.

(a) If the action was initiated prior to the application for assistance, the applicant must notify the Department at the time of application.

(b) The notification must include:

(A) The names and addresses of all parties against whom the action is brought or claim is made;

(B) A copy of each claim demand; and

(C) If an action is brought, identification of the case number and the county where the action is filed.

(c) A parent, guardian, foster parent or caretaker relative must make the notification on behalf of a minor or incompetent adult.

(2) The reporting requirements in section (1) of this rule are mandatory reporting requirements.

(3) Notification by an attorney or authorized representative for an applicant or recipient or other person required to provide notification must be sent to the Personal Injury Liens Unit, Office of Payment Accuracy and Recovery, Department of Human Services, either by mail or fax.

(4) The mailing address for the Personal Injury Liens Unit is: Personal Injury Liens Unit, PO Box 14512, Salem OR 97309-0416.

(5) The Personal Injury Liens Unit's fax number is (503) 378-2577 and telephone number is (503) 378-4514.

(6) If an applicant for or recipient of assistance fails to give the notification as required by this rule, the Department or the prepaid managed care health services organization of the recipient, if the recipient is receiving services from the organization, will have a cause of action under ORS 416.610 against the recipient for amounts received by the recipient pursuant to a judgment, settlement, or compromise to the extent that the Department or the prepaid managed care health services organization could have had a lien against such amounts had such notice been given. At least 30 days prior to commencing an action under ORS 416.610, the Personal Injury Liens Unit and the prepaid managed care health services organization, if any, must consult with each other.

Stat. Auth.: ORS 409.050, 410.070, 411.060, 411.070, 412.049, 413.033, 413.042, OL 2013 Ch 14 sec. 20
Stats. Implemented: ORS 416.530, 416.610
Hist.: AFS 62-1989, f. 10-5-89, cert. ef. 10-15-89; AFS 26-1993, f. 10-29-93, cert. ef. 11-1-93; Renumbered from 461-010-0110; AFS 5-2002, f. & cert. ef. 4-1-02; AFS 13-2002, f. & cert. ef. 10-1-02; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06; SSP 15-2006, f. 12-29-06, cert. ef. 1-1-07; SSP 37-2013, f. 12-31-13, cert. ef. 1-1-14

461-195-0315

Notice of Determination of Lien by Department

Where the Department determines that it has a lien pursuant to OAR 461-195-0305, the Department shall:

(1) Notify the recipient of the Department's determination;

(2) File a notice of lien with the county recording officer as provided in ORS 416.550(a); and

(3) Send, by registered or certified mail, a certified copy of the Notice of Lien filed pursuant to section (2) of this rule to each person or public body, agency or commission against whom the claim is made or action is brought by or on behalf of the recipient.

Stat. Auth.: ORS 409.050, 411.060 & 416.510 - 416.610
Stats. Implemented: ORS 25.020, 25.080, 409.020 & 411.060
Hist.: AFS 62-1989, f. 10-5-89, cert. ef. 10-15-89; AFS 26-1993, f. 10-29-93, cert. ef. 11-1-93; Renumbered from 461-010-0115; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06

461-195-0320

Release of Lien for Future Medicals

(1) To qualify for consideration of a full or partial release of the State's share of the Department's lien (including the amount of an assigned lien) pursuant to ORS 416.600, the recipient must demonstrate, through documentation satisfactory to the Department, that:

(a) As a result of the personal injury for which the recipient has a claim, the recipient has a medical condition which will require future medical treatment;

(b) The nature of future medical treatment;

(c) The date on which the future medical treatment can reasonably be expected to occur;

(d) The anticipated cost of the future medical treatment;

(e) The amount of the settlement, compromise, or judgment awarded the recipient;

(f) Timely compliance by the recipient with the notification requirements; and

(g) Any other documentation requested by the Department.

(2) In considering a request for a full or partial release of a lien pursuant to ORS 416.600, the Department may take into account:

(a) Whether the recipient has provided the documentation required by section (1) of this rule;

(b) Whether the future medical treatment is likely to occur in the near future. The Department will evaluate this factor in light of the nature and certainty of the type of medical treatment anticipated;

(c) Whether the amount of the settlement, compromise, or judgment is sufficient to pay the future medicals and all or part of the Department's lien;

(d) Whether the recipient has or is likely to have another source for payment of the future medical expenses;

(e) The effect, if any, of the requested release on the continuing eligibility for future medical or public assistance of the recipient;

(f) Any other factor deemed relevant by the Department, including information received from a prepaid managed health care services organization;

(g) In the event the recipient is a minor, the provisions of OAR 461-195-0350 may apply.

(3) In no case will the Department consider a request for a partial or full lien release pursuant to ORS 416.600 unless the recipient and the liable third party have entered into a final, binding settlement or compromise agreement or the recipient has received a final judgment. In every case, the lien amount that represents the federal share of Title XIX or Title XXI payments must be repaid to the federal government and shall not be subject to partial or full lien release.

Stat. Auth.: ORS 416.510 - 416.600
Stats. Implemented: ORS 25.020, 25.080, 409.020 & 411.060
Hist.: AFS 14-1995, f. 6-30-95, cert. ef. 7-1-95; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06

461-195-0321

Assigning a Lien to a Prepaid Managed Care Health Services Organization

(1) The Department may assign a lien in accordance with ORS 416.510 to 416.610 to a prepaid managed care health services organization (organization) for assistance in the amount of covered health services (as defined in Oregon Health Plan Rules, OAR division 410-141 and the General Rules, OAR division 410-120, or other Department rules establishing covered medical assistance) costs incurred by a recipient on account of a personal injury that were actually paid for by the organization:

(a) During a period for which the Department paid the organization a capitation or enrollment fee pursuant to ORS 414.725; and

(b) On account of the personal injury for which the recipient had a claim.

(2) The assignment described in section (1) of this rule will be made only if the organization makes a timely request for assignment to the Department. A timely request is made if the Department's Personal Injury Liens Unit receives the request not more than 30 days from the date the organization receives notice of a claim or action under OAR 461-195-0310.

(3) The amount of the lien that may be assigned does not include amounts excluded from a lien according to OAR 461-195-0305(3) and (4), 461-195-0320, or 461-195-0350.

(4) For purposes of ORS 416.510 to 416.610, assignment of the lien establishes the organization as a designee of the Department in relation to the lien, pursuant to ORS 416.540(5), which designation shall include the following:

(a) As the Department's designee, the organization is subject to these rules in the pursuit of its assigned lien and any actions taken by the organization to settle, compromise or release its lien.

(b) In cases where the Department and the organization share a joint lien, the organization shall copy the Personal Injury Liens Unit on all documentation related to the assigned lien, including communications with the person or public body, agency or commission against whom a claim is made or an action is brought in relation to settlement, compromise or release of the assigned lien. This requirement can be met by listing the Personal Injury Liens Unit on the "cc" portion of the documentation or certificate of service, and sending a copy to the Personal Injury Liens Unit when the document is sent or filed. In other cases, the organization shall make such documentation available to the Department for review upon request.

(c) The Department may require the use of forms and procedures related to the assignment of liens and the efficient administration of these rules, to minimize redundancy in communications with a recipient and the parties to an action.

(5) The form of notice of lien that may be assigned to an organization shall comply with ORS 416.560, with the organization assigned as the designee. Upon receiving assignment of lien from the Department, the organization shall follow the procedure to perfect such lien established in 416.550. An organization to which the Department has assigned a lien must notify the Department no later than 10 calendar days after filing notice of the lien.

(6) An organization to which a lien is assigned is solely responsible for taking all necessary actions to perfect its lien and to document actions taken to recover under the lien. Consequences for failure to comply with applicable requirements for perfecting the lien and recovering under the lien shall be the sole responsibility of the organization and shall not prevent the Department from recovering amounts due the Department pursuant to its lien authority.

(7) Immediately after a judgment has been rendered in favor of a recipient or a settlement or compromise has been agreed upon, the person or public body, agency or commission bound by such settlement, compromise, or judgment is required to notify the Department.

(a) If the organization receives such notification on an assigned lien, the organization shall provide a copy of such notification to the Department within 10 calendar days of receipt of the notification.

(b) After such notification, the Department must send a statement of the amount of the lien to such person or public body, agency or commission by registered mail or by certified mail with return receipt. This statement should also include information provided by the organization that has properly perfected its assigned lien.

(8) A lien assigned by the Department to an organization is subject to release or compromise as described in OAR 461-195-0325.

Stat. Auth.: ORS 411.060
Stats. Implemented: ORS 411.060
Hist.: AFS 27-2001, f. 12-21-01, cert. ef. 1-1-02; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06

461-195-0325

Release or Compromise of Lien

(1) If the Department has not assigned a lien to a prepaid managed care health services organization (organization) or if the organization failed to perfect its assigned lien, the Department may release or compromise its lien -- for the amount of the settlement, compromise, or judgment that is subject to the lien -- and distribute collections under its lien as follows:

(a) To the Department, an amount equal to the State share of Department's assistance expenditures for the amount of the settlement, compromise, or judgment that is subject to the lien.

(b) To the federal government, the federal share of the Department's assistance expenditures for the amount of the settlement, compromise, or judgment that is subject to the lien, pursuant to applicable law.

(c) To the recipient, any remaining amount after distributions provided for in subsections (a) and (b) of this section. The amount distributed to the recipient must be treated as income or resources consistent with applicable law.

(2) If the Department has assigned a lien to a prepaid managed care health services organization (organization) and the organization properly perfected its lien, the Department and the organization may release or compromise and distribute collections under the liens for the amount of the settlement, compromise, or judgment that is subject to the lien, consistent with OAR 461-195-0305(5), as follows:

(a) To the Department, an amount equal to the State share of assistance and the federal share of medical assistance expenditures for the amount of the settlement, compromise, or judgment that is subject to the lien.

(b) The Department will reimburse to the federal government, the federal share of the State assistance expenditures for the amount of the settlement, compromise, or judgment that is subject to the lien for which federal match was claimed by the Department.

(c) To the organization, the assistance expenditures subject to the lien by the organization except as otherwise provided in subsections (a) and (b) of this section.

(d) To the recipient, the amount remaining after the distributions provided for in subsections (a), (b), and (c) of this section. The amount distributed to the recipient must be treated as income or resources consistent with applicable law.

(e) As between the Department and the organization after the distributions provided for in subsections (a), (b), (c) and (d) of this rule, ORS 416.540(6) requires that the Department's lien must be satisfied first.

Stat. Auth.: ORS 409.050, 411.060 & 416.510 - 416.610
Stats. Implemented: ORS 25.020, 25.080, 409.020, 411.060, 416.510-416.610
Hist.: AFS 18-1991, f. 9-30-91, cert. ef. 10-1-91; AFS 27-2001, f. 12-21-01, cert. ef. 1-1-02; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06; SSP 15-2006, f. 12-29-06, cert. ef. 1-1-07

461-195-0350

Procedure Where Injured Recipient is a Minor

(1) Where the injured recipient is a minor, the Department may petition the court having probate jurisdiction in the county in which the minor lives to determine the sum that will be needed for the minor's complete physical rehabilitation. Except to the extent that of the federal share of the amount of a lien, the lien of the Department, including any lien assigned to a prepaid managed care health services organization, shall not attach to the amount of any sum needed for the rehabilitation.

(2) If the recipient is a minor, no payments to the Department in satisfaction of its lien and no payments to the recipient under a judgment, settlement, or compromise may be made until a hearing has taken place and the court has issued its order under ORS 416.590.

Stat. Auth.: ORS 409.050, 411.060 & 416.510 - 416.610
Stats. Implemented: ORS 25.020, 25.080, 409.020 & 411.060
Hist.: AFS 62-1989, f. 10-5-89, cert. ef. 10-15-89; AFS 26-1993, f. 10-29-93, cert. ef. 11-1-93; Renumbered from 461-010-0150; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06

461-195-0501

Definitions and Categories of Overpayments

This rule applies to benefits and services delivered under chapters 410, 411, and 461 of the Oregon Administrative Rules.

(1) "Overpayment" means:

(a) A benefit or service received by or on behalf of a client, or a payment made by the Department on behalf of a client, that exceeds the amount for which the client is eligible.

(b) A payment made by the Department and designated for a specific purpose which is spent by a person on an expense not approved by the Department.

(c) A payment for child care made by the Department to, or on behalf of, a client that:

(A) Is paid to an ineligible provider;

(B) Exceeds the amount for which a provider is eligible;

(C) Is paid when the client was not engaged in an activity that made the client eligible for child care, such as an activity of the JOBS program (see OAR 461-001-0025 and 461-190-0151 to 461-190-0401);

(D) Is paid when the client was not eligible for child care benefits; or

(E) Has given an electronic benefit transfer (EBT) card, card number, or personal identification number (PIN) to a provider for the purpose of checking a child in or out from the provider's child care.

(d) A misappropriated payment when a person cashes and retains the proceeds of a check from the Department on which that person is not the payee and the check has not been lawfully endorsed or assigned to the person.

(e) A benefit or service provided for a need when that person is compensated by another source for the same need and the person fails to reimburse the Department when required to do so by law.

(f) A cash benefit received by an individual in the GA or SFPSS programs for each month for which the client receives a retroactive SSI lump sum payment.

(g) In the TA-DVS program, only when an IPV in the TA-DVS program is established.

(2) The Department may establish an overpayment for the initial month (see OAR 461-001-0000) of eligibility under circumstances including but not limited to:

(a) The filing group, ineligible student, or authorized representative (see OAR 461-115-0090) withheld information;

(b) The filing group, ineligible student, or authorized representative provided inaccurate information;

(c) The Department fails to use income reported as received or anticipated in determining the benefits of the filing group; or

(d) The error was due to an error in computation or processing by the Department.

(3) In the OCCS Medical programs, the Department may establish an overpayment for the budget month (see OAR 410-200-0015) when OCCS medical program household group (see 410-200-0015) or authorized representative (see 410-200-0015) withheld or provided inaccurate information.

(4) Overpayments are categorized as follows:

(a) An administrative error overpayment is an overpayment caused by any of the following circumstances:

(A) The Department fails to reduce, suspend, or end benefits after timely reporting by the filing group, OCCS medical program household group, ineligible student, or authorized representative (see OAR 461-001-0000 and 410-200-0015) of a change covered under 461-170-0011 or 410-200-0235 and that reported change requires the Department to reduce, suspend, or end benefits;

(B) The Department fails to use the correct benefit standard;

(C) The Department fails to compute or process a payment correctly based on accurate information timely provided by the filing group, OCCS medical program household group, ineligible student, or authorized representative (see OAR 461-001-0000 and 410-200-0015);

(D) In the GA and SFPSS programs, the Department fails to require a client to complete an interim assistance agreement; or

(E) The Department commits a procedural error that was no fault of the filing group, OCCS medical program household group, ineligible student, or authorized representative (see OAR 461-001-0000 and 410-200-0015).

(b) A client error overpayment is any of the following:

(A) An overpayment caused by the failure of a filing group, OCCS medical program household group, ineligible student, or authorized representative (see OAR 461-001-0000 and 410-200-0015) to declare or report information or a change in circumstances as required under 461-170-0011 or 410-200-0235, including information available to the Department, that affects the client's eligibility to receive benefits or the amount of benefits.

(B) A client's unreduced liability or receipt of unreduced benefits pending a contested case hearing decision or other final order favorable to the Department.

(C) A client's failure to return a benefit known by the client to exceed the correct amount.

(D) A client's use of a JOBS or SFPSS program support payment (see OAR 461-190-0211) for other than the intended purpose.

(E) A payment for child care when the client was not engaged in an activity that made the client eligible for child care, such as an activity of the JOBS program (see OAR 461-001-0025 and 461-190-0151 to 461-190-0401).

(F) A payment for child care when the client was not eligible for child care benefits.

(G) The failure of a client to pay his or her entire share of the cost of services or the participant fee (see OAR 461-160-0610 and 461-160-0800) in the month in which it is due.

(H) An overpayment caused by a client giving an electronic benefit transfer (EBT) card, card number, or personal identification number (PIN) to a provider for the purpose of checking a child in or out from the provider's child care.

(c) A fraud overpayment is an overpayment determined to be an intentional program violation (see OAR 461-195-0601 and 461-195-0611) or substantiated through a criminal prosecution.

(d) In the SNAP program, a provider error overpayment is an overpayment made to a drug or alcohol treatment center or residential care facility that acted as a client's authorized representative.

(e) In the child care program, a provider error overpayment is a payment made by the Department on behalf of a client to a child care provider when:

(A) Paid to an ineligible provider;

(B) The payment exceeds the amount for which a provider is eligible.

(5) When an overpayment is caused by both an administrative and client error in the same month, the Department determines the primary cause of the overpayment and assigns as either an administrative or client error overpayment.

(6) In the TANF program, when an overpayment puts the client at greater risk of domestic violence (see OAR 461-001-0000), the overpayment is waived (see OAR 461-135-1200).

(7) Except as provided in section (8) of this rule, the Department establishes an overpayment when the following thresholds are exceeded:

(a) Administrative error overpayments concerning:

(A) Cash and child care programs, when the amount is greater than $200;

(B) SNAP open case, when the amount is greater than $100; and

(C) SNAP closed case, when the amount is greater than $200.

(b) Client error overpayments in:

(A) Cash and child care programs, when the amount is greater than $200;

(B) SNAP open case, when the amount is greater than $100;

(C) SNAP closed case, when the amount is greater than $200;

(D) Medical programs, when the amount is greater than $750.

(c) Provider error overpayments in:

(A) Cash and child care programs, when the amount is greater than $200;

(B) SNAP open case, when the amount is greater than $100;

(C) SNAP closed case, when the amount is greater than $200.

(8) There are no overpayment thresholds in all of the following situations:

(a) In SNAP program, if the overpayment was identified in a quality control review.

(b) In all programs, if the overpayment was caused by a client's receipt of continuing benefits in a contested case.

(c) In all programs, if the overpayment was caused by possible fraud by a client or provider.

Stat. Auth.: ORS 409.050, 411.060, 411.070, 411.081, 411.404, 411.816, 412.001, 412.014, 412.049, 2013 HB 2089 Sec. 10
Stats. Implemented: ORS 409.010, 411.060, 411.070, 411.081, 411.117, 411.404, 411.620, 411.640, 411.690, 411.816, 411.892, 412.001, 412.014, 412.049, 414.025, 416.350
Hist.: AFS 3-2000, f. 1-31-00, cert. ef. 2-1-00; AFS 7-2001(Temp), f. & cert. ef. 4-4-01 thru 6-30-01; AFS 12-2001, f. 6-29-01, cert. ef. 7-1-01; SSP 33-2003, f. 12-31-03, cert. ef. 1-4-04; SSP 14-2005, f. 9-30-05, cert. ef. 10-1-05; SSP 11-2007(Temp), f. & cert. ef. 10-1-07 thru 3-29-08; SSP 14-2007, f. 12-31-07, cert. ef. 1-1-08; SSP 15-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 3-29-08; SSP 5-2008, f. 2-29-08, cert. ef. 3-1-08; SSP 13-2009, f. & cert. ef. 7-1-09; SSP 38-2009, f. 12-31-09, cert. ef. 1-1-10; SSP 25-2011, f. 9-30-11, cert. ef. 10-1-11; SSP 7-2013(Temp), f. & cert. ef. 3-25-13 thru 9-21-13; SSP 23-2013, f. & cert. ef. 9-20-13; SSP 36-2013(Temp), f. & cert. ef. 11-1-13 thru 4-30-14; SSP 9-2014, f. & cert. ef. 4-1-14

461-195-0521

Calculation of Overpayments

This rule specifies how the Department calculates an overpayment (see OAR 461-195-0501).

(1) The Department calculates an overpayment by determining the amount the client received or the payment made by the Department on behalf of the client that exceeds the amount for which the client was eligible.

(2) When a filing group, OCCS Medical programs household group (see OAR 410-200-0015), ineligible student, or authorized representative (see 461-115-0090 and 410-200-0015) fails to report income, the Department calculates and determines the overpayment by assigning unreported income to the applicable budget month without averaging the unreported income, except:

(a) A client's earned income reported quarterly from the Employment Department is considered received by the client in equal amounts during the months identified in the report.

(b) In the ERDC, MAA, MAF, REF, SNAP, and TANF programs, a client's actual self-employment income is annualized retrospectively to calculate the overpayment.

(c) In the OCCS Medical programs, if actual income is not available for the months in which an overpayment occurred, a client's actual self-employment income (see OAR 410-200-0015) received during the year when an overpayment occurred is annualized to calculate an overpayment.

(3) When using prospective budgeting (see OAR division 461-150) and the actual income differs from the amount determined under 461-150-0020(2), there may be a client error overpayment (see 461-195-0501) only when the filing group, ineligible student, or authorized representative withheld information, failed to report a change, or provided inaccurate information. In such a case, the Department uses the actual income to determine the amount of an overpayment.

(4) When using anticipated income for the OCCS Medical programs and the actual income differs from the amount determined under OAR 410-200-0310, there may be a client error overpayment only when the OCCS Medical programs household group (see 410-200-0015) or authorized representative (see 410-200-0015) withheld information, failed to report a change, or provided inaccurate information. In such a case, the Department uses the actual income to determine the amount of an overpayment.

(5) When a filing group, ineligible student, or authorized representative fails to report all earned income within the reporting time frame, the earned income deduction (see OAR 461-160-0160, 461-160-0190, 461-160-0430, 461-160-0550, and 461-160-0552) is applied as follows:

(a) In the OSIP, OSIPM, QMB, and REFM programs, the Department allows the earned income deduction.

(b) In the MAA, MAF, REF, and TANF programs, the Department allows the earned income deduction when good cause (see section (6) of this rule) exists.

(c) In the SNAP program, no deduction is applied to earned income not timely reported.

(6) For the purposes of OAR 461-195-0501 to 461-195-0561, "good cause" means circumstances beyond the client's reasonable control that caused the client to be unable to report income timely and accurately.

(7) When support is retained:

(a) In the TANF program, the amount of support (other than cash medical support) the Department of Justice retains as a current reimbursement each month is added to other income to determine eligibility. When a client is not eligible for TANF program benefits, the overpayment is offset by the support the Department of Justice retains as a current reimbursement.

(b) In the medical programs, the amount of the cash medical support the Department retains each month is excluded income and not used to determine eligibility for medical program benefits. When a client has incurred a medical program overpayment, the overpayment is offset by the amount of the cash medical support the Department retains during each month of the overpayment.

(8) In the REF and TANF programs, when a client directly receives support used to determine eligibility or calculate benefits, the overpayment is:

(a) If still eligible for REF or TANF program benefits, the amount of support the client received directly; or

(b) If no longer eligible for REF or TANF program benefits, the amount of program benefits the client received.

(9) When an overpayment occurs due to the failure of an individual to reimburse the Department, when required by law to do so, for benefits or services (including cash medical support) provided for a need for which that individual is compensated by another source, the overpayment is limited to the lesser of the following:

(a) The amount of the payment from the Department;

(b) Cash medical support; or

(c) The amount by which the total of all payments exceeds the amount payable for such a need under the Department's rules.

(10) Benefits paid during a required notice period (see OAR 461-175-0050, 410-200-0120) are included in the calculation of the overpayment when:

(a) The filing group, OCCS Medical programs household group (see OAR 410-200-0015), ineligible student, or authorized representative (see 461-115-0090 and 410-200-0015) failed to report a change within the reporting time frame under 461-170-0011 or 410-200-0235; and

(b) Sufficient time existed for the Department to adjust the benefits to prevent the overpayment if the filing group, OCCS Medical program household group (see OAR 410-200-0015), ineligible student, or authorized representative (see 461-115-0090 and 410-200-0015) had reported the change at any time within the reporting time frame.

(11) In the SNAP program:

(a) If the benefit group (see OAR 461-110-0750) was categorically eligible, there is no overpayment based on resources.

(b) For a filing group (see OAR 461-110-0370) found eligible for SNAP program benefits under OAR 461-135-0505(1)(a) to (c), and the actual income made the group ineligible for the related program, the group remains categorically eligible for SNAP program benefits as long as the eligibility requirement under 461-135-0505(1)(d) is met. A benefit group of one or two individuals would be entitled to at least the minimum SNAP program benefit allotment under 461-165-0060.

(c) For a filing group found eligible for SNAP program benefits only under OAR 461-135-0505(1)(d), and the actual income equals or exceeds 185 percent of the Federal Poverty Level, the filing group is no longer categorically eligible. The overpayment is the amount of SNAP program benefits incorrectly received.

(12) In the OSIP and OSIPM programs, when a client does not pay his or her share of the cost of services (see OAR 461-160-0610) or the OSIP-EPD or OSIPM-EPD program participant fee (see OAR 461-160-0800) in the month in which it is due, an overpayment is calculated as follows:

(a) All payments made by the Department on behalf of the client during the month in question are totaled, including but not limited to any payment for:

(A) Capitation;

(B) Long term care services;

(C) Medical expenses for the month in question;

(D) Medicare buy-in (when not concurrently eligible for an MSP);

(E) Medicare Part D;

(F) Mileage reimbursement;

(G) Special needs under OAR 461-155-0500 to 416-155-0710; and

(H) Home and community-based care (see OAR 461-001-0030), including home delivered meals and non-medical transportation.

(b) Any partial or late liability payment made by a client receiving home and community-based care in-home services or participant fee paid by an OSIP-EPD or OSIPM-EPD program client is subtracted from the total calculated under subsection (a) of this section. The remainder, if any, is the amount of the overpayment.

(13) When a client's liability is unreduced pending the outcome of a contested case hearing about that liability the overpayment is the difference between the liability amount determined in the final order and the amount, if any, the client has repaid.

(14) In the OCCS Medical programs, OSIPM, QMB, and REFM programs if the client was not eligible for one program, but during the period in question was eligible for another program:

(a) With the same benefit level, there is no overpayment.

(b) With a lesser benefit level, the overpayment is the amount of medical program benefit payments made on behalf of the client exceeding the amount for which the client was eligible.

(15) When an overpayment is caused by administrative error (see OAR 461-195-0501), any overpayment of GA, OSIP, REF, SFPSS, or TANF program benefits is not counted as income when determining eligibility for the GAM, OCCS Medical programs, OSIPM, and REFM programs.

(16) Credit against an overpayment is allowed as follows:

(a) In the GA, REF, and TANF programs, a credit is allowed for a client's payment for medical services made during the period covered by the overpayment, in an amount not to exceed the Department fee schedule for the service, but credit is not allowed for an elective procedure unless the Department authorized the procedure prior to its completion.

(b) In the SNAP program, if the overpayment was caused by unreported earned income, verified child care costs are allowed as a credit to the extent the costs would have been deductible under OAR 461-160-0040 and 461-160-0430.

(c) In the SFPSS and TANF programs, if the overpayment is caused by reported earned income, a credit is allowed for the Post-TANF grant if the client meets eligibility under OAR 461-135-1250 and the client has received less than 12 months of Post-TANF program benefits.

(d) In all programs, for an underpayment of benefits.

(17) In the SNAP program, in compliance with the American Recovery and Reinvestment Act of 2009, effective April 1, 2009 through September 30, 2009, the amount between the normal Thrifty Food Plan (TFP) benefit amount under this section and the increased TFP benefit amount under OAR 461-155-0190 is not counted in the overpayment amount unless the filing group was ineligible for SNAP program benefits. [Table not included. See ED. NOTE.]

[ED. NOTE: Tables referenced are not included in rule text. Click here for PDF copy of table(s).]

Stat. Auth.: ORS 409.050, 411.060, 411.070, 411.404, 411.660, 411.706, 411.816, 412.014, 412.049, 412.124, 414.231, 2013 HB 2089 Sec. 10
Stats. Implemented: ORS 409.010, 411.060, 411.070, 411.404, 411.620, 411.630, 411.635, 411.640, 411.660, 411.690, 411.706, 411.816, 412.014, 412.049, 412.124, 414.231, 416.350
Hist.: AFS 3-2000, f. 1-31-00, cert. ef. 2-1-00; AFS 25-2000, f. 9-29-00, cert. ef. 10-1-00; AFS 6-2001, f. 3-30-01, cert. ef. 4-1-01; AFS 27-2001, f. 12-21-01, cert. ef. 1-1-02; AFS 22-2002, f. 12-31-02, cert ef. 1-1-03; SSP 23-2003, f. & cert. ef. 10-1-03; SSP 4-2005, f. & cert. ef. 4-1-05; SSP 10-2006, f. 6-30-06, cert. ef. 7-1-06; SSP 20-2003, f. & cert. ef. 8-15-03; SSP 7-2007, f. 6-29-07, cert. ef. 7-1-07; SSP 14-2007, f. 12-31-07, cert. ef. 1-1-08; SSP 8-2008, f. & cert. ef. 4-1-08; SSP 6-2009(Temp), f. & cert. ef. 4-1-09 thru 9-28-09; SSP 13-2009, f. & cert. ef. 7-1-09; SSP 28-2009, f. & cert. ef. 10-1-09; SSP 38-2009, f. 12-31-09, cert. ef. 1-1-10; SSP 17-2011, f. & cert. ef. 7-1-11; SSP 25-2011, f. 9-30-11, cert. ef. 10-1-11; SSP 13-2013, f. & cert. ef. 7-1-13; SSP 17-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SSP 26-2013, f. & cert. ef. 10-1-13; SSP 36-2013(Temp), f. & cert. ef. 11-1-13 thru 4-30-14; SSP 9-2014, f. & cert. ef. 4-1-14

461-195-0541

Liability for Overpayments

(1) In all programs except the OCCS Medical, OSIP, OSIPM, QMB, REFM, and SNAP programs or a child care program, the following persons are liable for repayment of an overpayment (see OAR 461-195-0501):

(a) Each individual in the filing group or required to be in the filing group and the payee when the overpayment was incurred, except an individual who did not reside with and did not know he or she was included in the filing group.

(b) A caretaker relative (see OAR 461-001-0000) and his or her spouse (see 461-001-0000) who were not part of, but resided with, the filing group when the overpayment was incurred.

(c) A parent (see OAR 461-001-0000) or caretaker relative of a child (see 461-001-0000) in the benefit group (see 461-110-0750) and the spouse of the parent or caretaker relative if the parent, caretaker relative, or spouse was a member of or resided with the filing group when the overpayment was incurred.

(d) An individual determined liable for an overpayment remains liable when the individual becomes a member of a new filing group.

(e) An authorized representative (see OAR 461-115-0090) when the authorized representative gave incorrect or incomplete information or withheld information resulting in the overpayment.

(2) In the OCCS Medical and REFM programs, the following persons are liable for repayment of an overpayment:

(a) Each individual in the filing group, the OCCS Medical programs household group (see OAR 410-200-0015), or required to be in the filing group and the payee when the overpayment was incurred, except an individual who:

(A) Was a child or dependent child (see OAR 461-001-0000) at the time of the overpayment; or

(B) Did not reside with and did not know he or she was included in the filing group.

(b) A caretaker relative and his or her spouse who were not part of, but resided with, the filing group or OCCS Medical programs household group (see OAR 410-200-0015) when the overpayment was incurred.

(c) A parent or caretaker relative of a child in the filing group or OCCS Medical programs household group (see OAR 410-200-0015) and the spouse of the parent or caretaker relative if the parent, caretaker relative, or spouse was a member of or resided with the filing group or OCCS Medical programs household group when the overpayment was incurred.

(d) An authorized representative (see OAR 461-001-0000 and 410-200-0015) when the authorized representative gave incorrect or incomplete information or withheld information that resulted in the overpayment.

(3) In a child care program:

(a) An overpayment caused by administrative error is collectible as follows:

(A) The provider is liable for a provider overpayment made on behalf of a client eligible for child care payments.

(B) Each adult in the filing group or required to be in the filing group is liable for an overpayment if the client was not eligible for the payment.

(b) Each adult in the filing group or required to be in the filing group is liable for a client overpayment, and a provider is liable for an overpayment caused by the provider. The client and provider are jointly and severally liable for an overpayment caused by both. In the case of an alleged provider overpayment, a provider's failure to provide contemporaneous records of care provided creates a rebuttable presumption that the care was not provided.

(c) An adult who cosigned an application with a minor provider applicant is liable for an overpayment incurred by the minor provider.

(4) In the GA, GAM, OSIP, OSIPM, and QMB programs, the following persons are liable for repayment of an overpayment:

(a) Each individual in the filing group or required to be in the filing group and the payee when the overpayment was incurred, except an individual who:

(A) Was a child or dependent child at the time of the overpayment; or

(B) Did not reside with and did not know he or she was included in the filing group.

(b) A caretaker relative and his or her spouse who were not part of, but resided with, the filing group when the overpayment was incurred.

(c) A parent or caretaker relative of a child in the filing group and the spouse of the parent or caretaker relative if the parent, caretaker relative, or spouse was a member of or resided with the filing group when the overpayment was incurred.

(d) An authorized representative when the authorized representative knowingly gave incorrect or incomplete information or intentionally withheld information that resulted in the overpayment.

(5) In the SNAP program, the following persons are liable for repayment of an overpayment or a claim that results from trafficking (see OAR 461-195-0601(2)) of SNAP benefits:

(a) The primary person (see OAR 461-001-0015) of any age, an ineligible student in the household, and all adults (see OAR 461-001-0015) who were members of or required to be in the filing group (see 461-110-0370) when excess benefits were issued.

(b) A sponsor of a non-citizen household member if the sponsor is at fault, for payments prior to November 21, 2000.

(c) A drug or alcohol treatment center or residential care facility that acted as the authorized representative of the client.

(6) Except as provided otherwise in section (7) of this rule, in all programs, both a non-citizen and the sponsor of the non-citizen are liable for an overpayment incurred if the overpayment results from the failure of the sponsor to provide correct information (see OAR 461-145-0820 to 461-145-0840). If the sponsor had good cause (see 461-195-0521(5)) for withholding the information, the sponsor is not liable for the overpayment.

(7) In the SNAP program, the sponsor of a non-citizen is not liable under section (6) of this rule for payments on or after November 21, 2000.

(8) In the OCCS medical programs, the November 2013 amendments to OAR 461-195-0501, 461-195-0521, 461-195-0541, and 461-195-0561 apply as of October 1, 2013.

Stat. Auth.: ORS 409.050, 411.060, 411.404, 411.816, 412.014, 412.049, 2013 HB 2089 Sec. 10
Stats. Implemented: ORS 409.010, 411.060, 411.087, 411.404, 411.630, 411.635, 411.640, 411.690, 411.816, 412.014, 412.049, 416.350
Hist.: AFS 3-2000, f. 1-31-00, cert. ef. 2-1-00; AFS 17-2000, f. 6-28-00, cert. ef. 7-1-00; SSP 23-2003, f. & cert. ef. 10-1-03; SSP 4-2005, f. & cert. ef. 4-1-05; SSP 14-2005, f. 9-30-05, cert. ef. 10-1-05; SSP 15-2006, f. 12-29-06, cert. ef. 1-1-07; SSP 4-2007, f. 3-30-07, cert. ef. 4-1-07; SSP 38-2009, f. 12-31-09, cert. ef. 1-1-10; SSP 25-2011, f. 9-30-11, cert. ef. 10-1-11; SSP 7-2013(Temp), f. & cert. ef. 3-25-13 thru 9-21-13; SSP 13-2013, f. & cert. ef. 7-1-13; SSP 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SSP 23-2013, f. & cert. ef. 9-20-13; SSP 36-2013(Temp), f. & cert. ef. 11-1-13 thru 4-30-14; SSP 9-2014, f. & cert. ef. 4-1-14

461-195-0551

Methods of Recovering Overpayments

(1) In addition to judicial process, the Department may recover an overpayment (see OAR 461-195-0501) through an agreed repayment plan, reduction in benefits, voluntary payment from the client or authorized representative (see OAR 461-115-0090), and offset of the debt.

(2) The Department reduces current benefits to collect an overpayment only as follows:

(a) In the GA and OSIP programs, the Department may recover an overpayment by reducing cash benefit payments by the lesser of the following:

(A) The total overpayment amount;

(B) The total benefit amount; or

(C) Ten percent of the client's total benefit requirement at the standard of need.

(b) In the REF, SFPSS, and TANF programs, the Department:

(A) Allows only half of the 50 percent earned income deduction described in OAR 461-160-0160.

(B) Reduces the benefit payment by 10 percent of the total benefit requirement of the benefit group (see OAR 461-110-0750) at the adjusted income payment standard. The reduced benefit payment after such reduction, when combined with all other income may not be less than 90 percent of the benefit group's adjusted income payment standard for a family with no income. In the TANF program, the cooperation incentive (see OAR 461-135-0210) is not included in the calculations prescribed by this paragraph.

(c) In the SNAP program, unless the Department and the client agree to a repayment plan and the filing group (see OAR 461-110-0370) meets the terms of the plan, the Department collects an overpayment from a liable member of a filing group participating in the SNAP program by reducing the SNAP program benefit allotment of the benefit group each month as follows:

(A) For an overpayment caused by client error (see OAR 461-195-0501) or administrative error (see OAR 461-195-0501), 10 percent of the group's monthly allotment or $10 a month, whichever is greater.

(B) For an overpayment caused by an IPV (see OAR 461-195-0601), 20 percent of the group's monthly entitlement or $20 a month, whichever is greater.

(3) In the child care programs:

(a) The Department may not recover an overpayment through reduction of a client's child care program benefits.

(b) When a child care program provider is liable for a child care overpayment (see OAR 461-195-0501) the Department may recover the child care overpayment by reducing up to 100 percent any future child care payment for which the provider bills the Department.

(4) The Department may recover an overpayment by offset as follows:

(a) Using the collection services provided by the Department of Revenue and any other state or federal agency to collect a liquidated claim established by:

(A) A court judgment.

(B) A confession of judgment.

(C) A document signed or acknowledged by the debtor that acknowledges the debt, such as:

(i) The Department-designated form to acknowledge an IPV.

(ii) A plea bargain agreement.

(iii) Any other document acknowledging the overpayment.

(D) A written notification of overpayment from the Department to the debtor, advising the debtor of the basis and amount of the overpayment and the right to request a hearing, if the debtor has exhausted his or her rights of administrative appeal.

(E) A written communication from the debtor acknowledging the debt.

(b) The amount of any retroactive payment or restoration of lost benefits otherwise payable to the client, when the retroactive payment corrects a prior underpayment of benefits in the program in which the overpayment occurred.

(c) Through use of a warrant authorized by ORS 411.703. Upon issuance of the warrant, the Department may issue a notice of garnishment in accordance with ORS 18.854.

(d) In the SNAP program, by offsetting the full amount of the overpayment against restored benefits owed to the benefit group or to another benefit group that a liable member of the overpaid group has joined.

(5) A confession of judgment is used in the case of a client error (see OAR 461-195-0501) overpayment. The Department may not file a confession of judgment while the client receives public assistance or medical assistance, and may file one only if the client has refused to agree to or has defaulted on a repayment plan.

(6) The Department may not take collection action against a filing group while a member of the filing group is working under a JOBS Plus agreement.

Stat. Auth.: ORS 411.060, 411.660, 411.816, 412.049
Stats. Implemented: ORS 18.854, 18.900, 411.630, 411.635, 411.660, 411.703, 411.816, 412.049 & 416.350
Hist.: AFS 3-2000, f. 1-31-00, cert. ef. 2-1-00; AFS 25-2001, f. & cert. ef. 11-1-01 thru 12-31-01; AFS 27-2001, f. 12-21-01, cert. ef. 1-1-02; SSP 8-2004, f. & cert. ef. 4-1-04; SSP 11-2007(Temp), f. & cert. ef. 10-1-07 thru 3-29-08; SSP 14-2007, f. 12-31-07, cert. ef. 1-1-08; SSP 15-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 3-29-08; SSP 5-2008, f. 2-29-08, cert. ef. 3-1-08; SSP 38-2009, f. 12-31-09, cert. ef. 1-1-10; SSP 37-2013, f. 12-31-13, cert. ef. 1-1-14

461-195-0561

Compromise of Overpayment Claim

This rule specifies when and how the Department may compromise an overpayment (see OAR 461-195-0501) claim.

(1) The Department may consider a request to compromise an overpayment claim only if the estimated administration and collection costs necessary to collect the account in full likely exceed the current balance of the overpayment.

(2) The following limitations apply to the compromise of an overpayment claim:

(a) The authority of the Department to compromise may be limited by federal or state law.

(b) The Department may compromise a claim only once it is a liquidated claim (see OAR 461-195-0551).

(c) The Department may compromise a claim only if the requester has made a good faith effort to repay the overpayment.

(d) The Department may not compromise:

(A) A fraud overpayment claim;

(B) Any overpayment claim, unless 36 months have passed since the requester initially was notified of the overpayment;

(C) An overpayment claim if the debtor has the ability to repay the overpayment in full within 36 months of the request date.

(D) An overpayment claim for less than 75 percent of the total amount of the claim.

(E) An overpayment claim if the debtor is a member, currently or in the previous 12 months, of a filing group or OCCS medical program household group (see OAR 410-200-0015) that received benefits under the program in which the overpayment occurred.

(F) A child care provider overpayment claim if the provider, currently or in the previous 12 months, received a direct provider payment for child care under division 165 of this chapter of rules.

(3) The Department may allow a compromised claim to be paid in installments over a period not to exceed 90 days.

(4) During the 12 months following the date of the compromise agreement, the Department reserves the right to collect the original unmitigated claim through benefit reduction under OAR 461-195-0551.

Stat. Auth.: ORS 409.050, 411.060, 411.404, 411.816, 412.014, 412.049, 2013 HB 2089 Sect. 10
Stats. Implemented: ORS 409.010, 411.060, 411.404, 411.635, 411.816, 412.014, 412.049, 416.350
Hist.: AFS 34-2000, f. 12-22-00, cert. ef. 1-1-01; SSP 33-2003, f. 12-31-03, cert. ef. 1-4-04; SSP 10-2006, f. 6-30-06, cert. ef. 7-1-06; SSP 11-2007(Temp), f. & cert. ef. 10-1-07 thru 3-29-08; SSP 5-2008, f. 2-29-08, cert. ef. 3-1-08; SSP 38-2009, f. 12-31-09, cert. ef. 1-1-10; SSP 36-2013(Temp), f. & cert. ef. 11-1-13 thru 4-30-14; SSP 9-2014, f. & cert. ef. 4-1-14

461-195-0601

Intentional Program Violations; Defined

(1) In the child care programs, a provider commits an intentional program violation (IPV) by intentionally making a false or misleading statement or misrepresenting, concealing or withholding information related to his or her request to be eligible for a child care payment under OAR 461-165-0180 or a claim for a child care payment.

(2) In the SNAP program:

(a) An individual commits an intentional program violation by:

(A) Making a false or misleading statement or misrepresenting, concealing or withholding a fact relating to the use, presentation, transfer, acquisition, receipt, possession, or trafficking of SNAP benefits; or

(B) Committing any act that constitutes a violation of the Food Stamp Act, the SNAP program regulations, or any state statute relating to the use, presentation, transfer, acquisition, receipt, possession, or trafficking of SNAP benefits.

(b) "Trafficking" means any of the following:

(A) The buying, selling, stealing, or other exchange of SNAP benefits for cash or consideration other than eligible food, either directly or indirectly, in complicity or collusion with others or acting alone.

(B) The exchange of firearms, ammunition, explosives, or controlled substances (as defined in section 802 of title 21, United States Code), for SNAP benefits.

(C) Purchasing a product with SNAP benefits that has a container return deposit with the intent of obtaining cash by intentionally discarding the product and returning the container for the deposit amount.

(D) Purchasing a product with SNAP benefits with the intent of obtaining cash or consideration other than eligible food by intentionally reselling the product purchased with SNAP benefits.

(E) Intentionally purchasing products originally purchased with SNAP benefits in exchange for cash or consideration other than eligible food.

(3) In the SFPSS program, an individual commits an intentional program violation by intentionally:

(a) Making a false or misleading statement or misrepresenting, concealing, or withholding a fact for the purpose of establishing or maintaining eligibility for SFPSS or increasing, or preventing a reduction in, the amount of the SFPSS grant; or

(b) Committing any act intended to mislead or to conceal or withhold information for the purpose of establishing or maintaining eligibility for SFPSS or increasing, or preventing a reduction in, the amount of the SFPSS grant.

(4) In the TA-DVS program, an individual commits an IPV by intentionally and without intimidation or coercion by an abuser:

(a) Making a false or misleading statement or misrepresenting, concealing, or withholding a fact for the purpose of establishing eligibility for or receiving a benefit from the TA-DVS program; or

(b) Committing any act intended to mislead or to conceal or withhold information for the purpose of establishing eligibility for or receiving a benefit from the TA-DVS program.

(5) In the TANF program, an individual commits an intentional program violation by intentionally:

(a) Making a false or misleading statement or misrepresenting, concealing, or withholding a fact for the purpose of establishing or maintaining eligibility for TANF or increasing, or preventing a reduction in, the amount of the TANF grant; or

(b) Committing any act intended to mislead or to conceal or withhold information for the purpose of establishing or maintaining eligibility for TANF or increasing, or preventing a reduction in, the amount of the TANF grant.

Stat. Auth.: ORS 411.060, 411.660, 411.816, 412.014, 412.049
Stats. Implemented: ORS 411.060, 411.630, 411.635, 411.660, 411.816, 412.014, 412.049
Hist.: AFS 3-2000, f. 1-31-00, cert. ef. 2-1-00; SSP 8-2004, f. & cert. ef. 4-1-04; SSP 11-2007(Temp), f. & cert. ef. 10-1-07 thru 3-29-08; SSP 5-2008, f. 2-29-08, cert. ef. 3-1-08; SSP 7-2013(Temp), f. & cert. ef. 3-25-13 thru 9-21-13; SSP 23-2013, f. & cert. ef. 9-20-13

461-195-0611

Intentional Program Violations; Establishment and Appeal

(1) In the ERDC, SNAP, and TANF programs, an IPV is established by a state or federal court, by an administrative agency in a contested case, or by a person signing the designated form acknowledging the IPV and waiving the right to an administrative hearing. If the IPV will be established in a contested case, the Department initiates the IPV hearing.

(2) Except as provided in section (3) of this rule, there is no administrative appeal after a person waives the right to an IPV hearing and the penalty may not be changed by subsequent administrative action.

(3) A person who waives the right to an IPV hearing may seek relief in court or request a contested case hearing on the sole issue of whether the waiver was signed under duress (see OAR 461-025-0310). If there is a determination that the waiver was signed under duress, the initial IPV penalty is void, and:

(a) If a court determines that a waiver was signed under duress, the court may determine whether an IPV occurred and the amount of the penalty.

(b) If an administrative law judge determines that a waiver was signed under duress, the Department may initiate an IPV hearing to determine whether an IPV occurred and the amount of the penalty.

Stat. Auth.: ORS 411.060, 411.095, 411.816, 412.049
Stats. Implemented: ORS 411.060, 411.095, 411.816, 412.049
Hist.: AFS 3-2000, f. 1-31-00, cert. ef. 2-1-00; AFS 6-2001, f. 3-30-01, cert. ef. 4-1-01; SSP 14-2005, f. 9-30-05, cert. ef. 10-1-05; SSP 14-2006, f. 9-29-06, cert. ef. 10-1-06; SSP 15-2006, f. 12-29-06, cert. ef. 1-1-07

461-195-0621

Intentional Program Violations; Penalties and Liability for Overpayments

(1) Disqualification penalties resulting from intentional program violations and other violations of law are listed in this rule. A person may be subject to disqualification for an IPV only if the person was advised of the disqualification penalties prior to committing the IPV. A disqualification established in another state or established in the Food Distribution Program on Indian Reservations continues in effect in Oregon.

(2) In the ERDC program, if an IPV is established against a person through a contested case hearing, a waiver of the right to hearing, or by a state or federal court, that person is liable for repayment to the Department of the full amount of overpayment the Department has established. The amount of restitution to the Department ordered by a court as part of a criminal proceeding does not lower the amount owed to the Department. Payments of restitution to the Department are credited against the amount owed. A client is not subject to an IPV disqualification but is still required to repay overpayment amounts.

(3) A child care provider found to have committed an intentional program violation (IPV) is ineligible for payment for child care as follows:

(a) A child care provider with an IPV established between April 1, 2001 and September 30, 2005 is permanently disqualified to receive payment.

(b) A child care provider who has incurred an overpayment established as an IPV claim after September 30, 2005 is ineligible for payment:

(A) For six months and until the full amount of the overpayment is paid; or

(B) Permanently, if the Child Care Program Manager finds that such ineligibility is in the public interest. The following is a non-exclusive list of reasons that support a determination of permanent ineligibility: safety concerns; or, the likelihood of future violations; or, the degree of egregiousness of any of the established IPVs; or, the degree of primary involvement in the violation by the provider.

(4) In the SNAP and TANF programs, when an IPV is established against a person through a contested case hearing, a waiver of the right to hearing, or by a state or federal court:

(a) That person is liable for repayment to the Department of the full amount of overpayment the Department has established, regardless of any restitution ordered by a court.

(b) Except as otherwise set forth in this section, the client is disqualified from receiving benefits in the program in which the IPV was committed for a period of 12 calendar months for the first IPV, 24 calendar months for the second IPV, and permanently for the third IPV.

(c) A person found by a federal, state, or local court to have traded a controlled substance for SNAP benefits is disqualified from participation in the SNAP program as follows:

(A) For a period of two years upon the first occasion.

(B) Permanently upon the second occasion.

(d) A person found by a federal, state, or local court to have traded firearms, ammunition, or explosives for SNAP benefits is permanently disqualified from participation in the SNAP program.

(e) A person convicted of trafficking (see OAR 461-195-0601) benefits for a value of $500 or more is permanently disqualified from participation in the SNAP program.

(f) A person is disqualified for a 10-year period, except if permanently disqualified under subsection (b) of this section, from receiving benefits in the program in which the person committed fraud if the person:

(A) In TANF program:

(i) Is convicted in state or federal court of having made a fraudulent statement or representation with respect to the place of residence of the individual in order to receive assistance simultaneously from two or more states under programs that are funded under Title IV or XIX of the Social Security Act; or

(ii) Is found in an IPV hearing or admits, in a written waiver of the right to an IPV hearing, to having made a fraudulent statement or representation with respect to the identity or place of residence of the individual in order to receive benefits simultaneously from two or more states.

(B) In the SNAP program, is found to have or admits to having made a fraudulent statement or representation with respect to the identity or place of residence of the individual in order to receive multiple SNAP benefits simultaneously.

(5) If the TANF grant is affected by the IPV penalty imposed under this rule, eligibility for and the level of SNAP benefits are determined in accordance with OAR 461-145-0105.

(6) In the TA-DVS program, when an IPV is established against a person through a contested case hearing, a waiver of the right to hearing, or by a state or federal court:

(a) That person is liable for repayment to the Department of the full amount of overpayment the Department has established, regardless of any restitution ordered by a court. The Department will seek repayment from the client only if seeking repayment would not place the client at greater risk of domestic violence.

(b) Subsequent applications for TA-DVS that meet the eligibility criteria set forth in OAR 461-135-1215 and 461-135-1225 must be staffed with the Department's central office.

(7) The Department issues notice of disqualification in accordance with OAR 461-175-0220. The disqualification provided for in this rule begins the first of the month following the month in which the notice period ends.

(8) Once a disqualification period begins, it continues uninterrupted until completed, regardless of the eligibility of the filing group of the disqualified person.

Stat. Auth.: ORS 409.050, 411.060, 411.816, 412.049
Stats. Implemented: ORS 409.010, 411.060, 411.816, 412.049
Hist.: AFS 3-2000, f. 1-31-00, cert. ef. 2-1-00; AFS 6-2001, f. 3-30-01, cert. ef. 4-1-01; SSP 8-2004, f. & cert. ef. 4-1-04; SSP 17-2004, f. & cert. ef. 7-1-04; SSP 14-2005, f. 9-30-05, cert. ef. 10-1-05; SSP 6-2006, f. 3-31-06, cert. ef. 4-1-06; SSP 14-2006, f. 9-29-06, cert. ef. 10-1-06; SSP 13-2009, f. & cert. ef. 7-1-09; SSP 25-2011, f. 9-30-11, cert. ef. 10-1-11; SSP 7-2013(Temp), f. & cert. ef. 3-25-13 thru 9-21-13; SSP 23-2013, f. & cert. ef. 9-20-13

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