CHAPTER 67:48:05
RECOVERIES -- CHILD CARE SERVICES
Section
67:48:05:01 Definitions.
67:48:05:02 Recovery of overpayments -- Funds paid in error.
67:48:05:03 Benefit paid in error as a result of intentional program violation.
67:48:05:04 Intentional program violation disqualification hearing.
67:48:05:05 Hearing waiver.
67:48:05:06 Notice of hearing.
67:48:05:07 Individual's rights -- Administrative disqualification hearing.
67:48:05:08 Hearing may be held in absence of accused individual -- Department to conduct new hearing if good cause found for individual's absence.
67:48:05:09 Postponement of IPV hearing.
67:48:05:10 Disqualification hearing decision.
67:48:05:11 Disqualification -- Notice -- Penalties.
67:48:05:12 Consolidation of administrative disqualification hearing with fair hearing.
67:48:05:01. Definitions. Terms used in this chapter mean:
(1) "Child care assistance" or "child care services," payments made by the department to a child care provider for caring for the child of an individual who qualifies to receive assistance with the payment of child care costs under the provisions of chapters 67:47:01 to 67:47:03, inclusive; or payments made by the department to a child care provider under the terms of a grant obtained under the provisions of chapter 67:47:04;
(2) "IPV," intentional program violation; and
(3) "Provider," a child care provider who receives child care assistance payments or grant funds from the department under the provisions of article 67:47.
Source: 28 SDR 111, effective February 20, 2002.
General Authority: SDCL 28-1-61.
Law Implemented: SDCL 28-1-61.
67:48:05:02. Recovery of overpayments -- Funds paid in error. The department shall consider that funds were paid in error if any of the following occurs:
(1) The department pays the provider for child care services and subsequently finds that the individual on whose behalf the funds were paid was ineligible for child care assistance;
(2) The department pays the provider for child care services on behalf of an individual who was eligible for child care assistance but the department subsequently finds that the amount of assistance paid exceeded the amount of benefits payable;
(3) The department pays the provider for child care services and subsequently finds that the provider was not entitled to the benefits; or
(4) The department pays child care services grant funds to a provider and the provider fails to fulfill the requirements of the grant.
Child care assistance paid in error as a result of an intentional program violation constitutes a debt to and is subject to recovery by the department according to the provisions and limits of this chapter. Child care assistance paid in error that is not the result of an intentional program violation constitutes a debt to and is subject to recovery by the department according to the provisions and limits of article 67:47.
Source: 28 SDR 111, effective February 20, 2002.
General Authority: SDCL 28-1-61.
Law Implemented: SDCL 28-1-61.
67:48:05:03. Benefit paid in error as result of intentional program violation. A benefit paid in error includes a payment made as a result of an intentional program violation. An IPV exists if any of the following occurs:
(1) The individual pleads guilty or nolo contendere to fraud;
(2) The individual waives the right to a disqualification hearing; or
(3) An administrative hearing officer or a court of appropriate jurisdiction finds that the individual made a false or misleading statement or misrepresented, concealed, or withheld facts or intentionally acted to mislead, misrepresent, conceal, withhold facts, or propound a falsity for the purpose of establishing or maintaining eligibility under article 67:48 or increasing or preventing a reduction in the amount of benefits payable.
Source: 28 SDR 111, effective February 20, 2002.
General Authority: SDCL 28-1-61.
Law Implemented: SDCL 28-1-61.
67:48:05:04. Intentional program violation disqualification hearing. If the department finds evidence that indicates an intentional program violation has occurred, the department may initiate an administrative disqualification hearing or may refer the matter to federal, state, or local officials for further legal action.
Source: 28 SDR 111, effective February 20, 2002.
General Authority: SDCL 28-1-61.
Law Implemented: SDCL 28-1-61.
67:48:05:05. Hearing waiver. An individual accused of committing an IPV may waive the right to an administrative hearing for the first or second violations. If the individual waives this right, the department may initiate a collection action against the individual to recover the amount of the overpayment.
If the individual suspected of having committed an IPV chooses not to sign a waiver, the department shall hold an administrative disqualification hearing to determine whether an IPV occurred.
An IPV hearing is held according to the provisions of SDCL chapter 1-26 and ARSD chapter 67:17:02, unless otherwise specified in this chapter.
Source: 28 SDR 111, effective February 20, 2002.
General Authority: SDCL 28-1-61.
Law Implemented: SDCL 28-1-61.
67:48:05:06. Notice of hearing. If the individual chooses not to sign the IPV waiver, the department shall schedule an IPV hearing. At least 30 days before the date of the hearing, the department shall send written notice to the individual suspected of having committed the IPV. The notice must be sent by certified mail with return receipt requested and must include the following information:
(1) The date, time, and location of the hearing;
(2) The charge against the individual;
(3) A summary of the evidence and a statement of how and where the individual may examine the evidence;
(4) A warning that the decision by the hearing officer will be based solely on information provided by the department if the individual fails to appear at the hearing;
(5) A statement that the individual may request a postponement of the hearing if the request is made to the department at least 10 days prior to the scheduled hearing;
(6) A statement that the individual has 10 days from the date of the scheduled hearing to present good cause for failing to appear at the hearing in order to receive a new hearing;
(7) A description of the penalties that result from a determination that the individual has committed an IPV and a statement indicating which penalty is applicable to the individual;
(8) A statement that the hearing does not preclude the department from prosecuting the individual for an IPV in a criminal court action or from collecting the overpayment;
(9) A listing of individuals or organizations that provide free legal representation to individuals alleged to have committed an IPV;
(10) An explanation that the individual may waive the right to appear at an administrative disqualification hearing; and
(11) A statement of the individual's right to remain silent concerning the charge and that anything said or signed by the individual concerning the charge may be used against the individual in a court of law.
Source: 28 SDR 111, effective February 20, 2002.
General Authority: SDCL 28-1-61.
Law Implemented: SDCL 28-1-61.
67:48:05:07. Individual's rights -- Administrative disqualification hearing. If the department notifies an individual suspected of committing an IPV that an administrative disqualification hearing is scheduled, the individual has the following rights:
(1) To examine the documents and records to be used at the hearing at a reasonable time before the date of the hearing as well as during the hearing;
(2) To present the case or have it presented by legal counsel or another person;
(3) To bring witnesses;
(4) To advance arguments;
(5) To question or refute any testimony or evidence, including an opportunity to confront and cross-examine witnesses; and
(6) To submit evidence to establish pertinent facts and circumstances in the case.
Source: 28 SDR 111, effective February 20, 2002.
General Authority: SDCL 28-1-61.
Law Implemented: SDCL 28-1-61.
67:48:05:08. Hearing may be held in absence of accused individual -- Department to conduct new hearing if good cause found for individual's absence. If the individual cannot be located or fails to appear at an IPV hearing without good cause, the hearing examiner shall conduct the hearing without the individual being represented. The hearing examiner shall consider the evidence to determine whether an intentional program violation was committed. If the individual is found to have committed an intentional program violation but a hearing examiner later determines that the individual had good cause for not appearing, the previous decision is no longer valid and the department shall conduct a new hearing. The hearing examiner who originally ruled on the case may conduct the new hearing.
If good cause for failure to appear is based on a showing of nonreceipt of the hearing notice, the individual has 30 days after the date of the written notice of the hearing decision to claim good cause. In all other instances, the individual has 10 days from the date of the scheduled hearing to present reasons for failing to appear. The hearing examiner shall enter the good cause decision into the record.
Source: 28 SDR 111, effective February 20, 2002.
General Authority: SDCL 28-1-61.
Law Implemented: SDCL 28-1-61.
67:48:05:09. Postponement of IPV hearing. An IPV hearing may be postponed once if the individual requesting the postponement makes the request at least 10 days before the scheduled hearing.
Source: 28 SDR 111, effective February 20, 2002.
General Authority: SDCL 28-1-61.
Law Implemented: SDCL 28-1-61.
67:48:05:10. Disqualification hearing decision. The hearing officer shall conduct the hearing, arrive at a decision, and notify the individual and the department of the final decision within 90 days after the date the individual was notified of the hearing. If the hearing is postponed, the 90-day limit is extended by the length of the postponement.
The decision must be based on clear and convincing evidence that demonstrates that the individual committed and intended to commit an IPV.
Source: 28 SDR 111, effective February 20, 2002.
General Authority: SDCL 28-1-61.
Law Implemented: SDCL 28-1-61.
67:48:05:11. Disqualification -- Notice -- Penalties. If an IPV exists, the department shall disqualify the individual from participating in the child care services program for the following lengths of time:
(1) For the first occurrence, one year;
(2) For the second occurrence, two years; and
(3) For the third occurrence, permanently.
If the disqualified individual is a provider, the individual may not apply for any child care grants or receive any grant funding during the period of the disqualification.
The department shall notify the individual in writing before the disqualification becomes effective.
A disqualification penalty remains in effect without the possibility of an administrative stay unless a court of appropriate jurisdiction reverses the finding on which the penalty was based. The duration of the disqualification penalty is not subject to review.
If a disqualification penalty and other sanctions or penalties apply, the disqualification penalty must be adhered to and is in addition to any other sanction or penalty that may be imposed by law for the same offense.
Source: 28 SDR 111, effective February 20, 2002.
General Authority: SDCL 28-1-61.
Law Implemented: SDCL 28-1-61.
67:48:05:12. Consolidation of administrative disqualification hearing with fair hearing. The department may combine a fair hearing and an administrative disqualification hearing into a single hearing if the factual issues arise out of the same, or related, circumstances and the household receives prior notice that the hearings will be combined.
Source: 28 SDR 111, effective February 20, 2002.
General Authority: SDCL 28-1-61.
Law Implemented: SDCL 28-1-61.
