ARSD Article 67:48 — RECOVERIES AND INVESTIGATIONS

SOCIAL SERVICES SOCIAL SERVICES

Chapter 67:48:01 Collection of medical benefits paid in error

ARSD 67:48:01:01 Definitions

Terms used in this chapter mean:

(1) "Assets," when determining eligibility for medical services, the income and resources of those individuals required to be considered under article 67:46, including any income or resources which the individual or the individual's spouse, if applicable, is entitled to receive but does not because of some action or inaction on the part of any of the individuals listed in § 67:46:05:32.01;

(2) "IPV," intentional program violation;

(3) "Long-term care," continuing 24-hour service in a medical facility, a nursing facility, an intermediate care facility for individuals with intellectual disabilities, an assisted living facility, or an adult foster home; participation in a home and community-based service program under chapter 67:54:04 or 67:44:03; and

(4) "SSI," supplemental security income.

History

• Source: 25 SDR 141, effective May 20, 1999; 40 SDR 122, effective January 8, 2014.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:02 Establishing claim against individual -- Medical benefits paid in error

If medical assistance is paid on behalf of an individual and the department subsequently finds that the individual was ineligible for the medical assistance benefits paid, the department considers that the medical benefit was paid in error. A benefit paid in error constitutes a debt to and is subject to recovery from the individual by the department according to the provisions and limits of this chapter.

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History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:03 Medical benefit not subject to recovery if error made by department

If a medical benefit is paid in error because of a mistake made by the department, the medical benefit paid in error is not subject to recovery. Instances of department error include items such as the following:

(1) The department failed to take prompt action on a change reported by the individual or the individual's authorized representative;

(2) The department incorrectly computed the individual's income, resources, or deductions; or

(3) The department continued to provide the individual with medical benefits during the time the department was redetermining the individual's eligibility.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:04 Recovery for certain long-term care cases

A medical benefit paid in error on behalf of an individual who was residing or is residing in a long-term care facility is subject to recovery from the individual if the individual meets one of the following conditions:

(1) The individual is not an SSI recipient and would have been ineligible for medical benefits if information concerning the individual's assets had been disclosed within the mandatory reporting period specified in § 67:46:02:09; or

(2) The individual is not an SSI recipient and would have been ineligible for medical benefits if information concerning transferred assets had been disclosed within the mandatory reporting period specified in § 67:46:02:09.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:05 Medical benefit paid in error as result of intentional program violation

A medical benefit paid in error includes a payment made as a result of an intentional program violation. An intentional program violation exists if an administrative hearing or a court of appropriate jurisdiction finds that the individual or the individual's authorized representative intentionally 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 67:46 or increasing or preventing a reduction in the amount of medical benefits payable on behalf of the individual. The individual or the individual's authorized representative may sign a waiver waiving the individual's rights to an administrative hearing.

Cross-Reference: Hearing waiver, § 67:48:01:14.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:06 Administrative hearing to determine whether intentional program violation occurred

If the individual suspected of having committed an IPV chooses not to sign a waiver, the department shall hold an administrative 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.

The hearing examiner shall base the determination of an intentional program violation on clear and convincing evidence that demonstrates that the individual committed and intended to commit an intentional program violation.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:07 Notice to individual suspected of committing an intentional program violation

If the department intends to proceed with an IPV hearing, the department shall send a written notice to the individual suspected of having committed the intentional program violation. A copy of the notice must also be sent to the individual's authorized representative, if the department is aware that one exists. The notice must contain the following information:

(1) A statement that a review of the case indicates that an intentional program violation has occurred;

(2) A summary of the evidence supporting the finding;

(3) Information on how and where the evidence may be examined;

(4) Information on the intentional program violation hearing that will be scheduled; and

(5) Instructions on how the individual may waive the right to an administrative hearing and information on the ramifications of signing the waiver.

Cross Reference: Notice to individual -- Waiver of right to intentional program violation hearing, § 67:48:01:15.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:08 Notice of intentional program violation 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 and the individual's representative, if applicable, advising the individual that an intentional program violation hearing has been scheduled. The notice must be sent by certified mail with a return receipt requested. If the notice is returned as undeliverable, the hearing may still be held. The notice must contain the following information:

(1) The date, time, and place of the hearing;

(2) The charge against the individual;

(3) A summary of the evidence;

(4) Information on how and where the evidence may be examined;

(5) A warning that the decision will be based solely on information provided by the department if the individual or the individual's representative, if applicable, fails to appear at the hearing;

(6) A statement that the individual or the individual's representative, if applicable, has 10 days from the date of the scheduled hearing to present good cause for failing to appear in order to receive a new hearing;

(7) A statement that the hearing does not preclude the state or federal government from prosecuting the individual for the intentional program violation in a civil or criminal court action or from collecting any overpayment; and

(8) The name of the individual or organization that provides free legal representation.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:09 Individual's rights -- Intentional program violation hearing

If the department holds an IPV hearing, the department shall give the individual or the individual's representative, if applicable, the opportunity to:

(1) 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) Present the case or have it presented by legal counsel or another person;

(3) Bring witnesses;

(4) Advance arguments;

(5) Question or refute any testimony or evidence, including an opportunity to confront and cross-examine adverse witnesses; and

(6) Submit evidence to establish pertinent facts and circumstances in the case.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:10 Time frame for holding hearing and writing final decision

A hearing examiner shall conduct the hearing, arrive at a decision, and notify the individual and the department of the final hearing decision within 90 days of the date the individual was notified in writing that the IPV hearing was scheduled.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:11 Postponement of intentional program violation hearing

The individual may request that the IPV hearing be postponed. The request must be made at least 10 days before the date of the scheduled hearing. The hearing may not be postponed for more than 30 days and the number of postponements is limited to one. If the hearing is postponed, the department shall extend the 90-day time limit established in § 67:48:01:10 for as many days as the hearing is postponed.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:12 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 rules on the case may conduct the new hearing.

In instances where 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.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:13 Consolidation of hearings

The department may combine a fair hearing and an IPV hearing into a single hearing if the factual issues arise out of the same or related circumstances and the individual receives prior notice that the hearings will be combined. If the hearings are combined, the department shall follow the time frames for conducting an intentional program violation hearing. However, at the individual's request, the department shall waive the 30-day advance notice period required.

If the hearings are combined for the purpose of settling the amount of the overpayment at the same time as determining whether or not an intentional program violation has occurred, the individual loses the right to a subsequent fair hearing on the amount of the claim.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:14 Hearing waiver

An individual accused of committing an intentional program violation may waive the right to an administrative hearing. If the individual waives this right, the department may initiate a collection action against the individual to recover the amount of the overpayment.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

ARSD 67:48:01:15 Notice to individual -- Waiver of right to intentional program violation hearing

The department shall provide written notice to the individual suspected of having committed an intentional program violation that the individual may waive the right to an IPV hearing. The notice must include at least the following information:

(1) The date the department must receive the signed waiver to avoid the holding of an intentional program violation hearing;

(2) A signature block for the accused individual or the individual's authorized representative, if applicable, to sign;

(3) A statement of the accused 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; and

(4) An opportunity for the accused individual to specify whether or not the individual admits to the facts as presented by the department.

History

• Source: 25 SDR 141, effective May 20, 1999.
• General Authority: SDCL 28-6-1(4).
• Law Implemented: SDCL 28-6-1(4).

Chapter 67:48:02 Liens and estate recoveries

ARSD 67:48:02:01 Definitions

Terms used in this chapter mean:

(1) "Contiguous property," all land adjacent to the home including land separated only by roads, rivers, streams, and similar features and not separated by intervening property owned by another person;

(2) "Estate," all real and personal property and other assets included within the individual's estate as defined in SDCL 29A-1-201, and any other real and personal property or other assets in which the individual had any legal title or interest at the time of death, including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement, including any funds remaining in an individual's prepaid burial trust or prepaid burial account after the individual's reasonable burial expenses are paid; and

(3) "Real property," real property as defined in SDCL 43-1-3.

History

• Source: 21 SDR 119, effective January 4, 1995; 40 SDR 229, effective June 30, 2014.
• General Authority: SDCL 28-6-23, 28-6-24.
• Law Implemented: SDCL 28-6-23, 28-6-24.

ARSD 67:48:02:02 Individuals subject to liens and estate recoveries

Any payment of medical assistance by or through the department is a debt due to the department if the individual is residing in any of the following:

(1) A nursing home;

(2) An intermediate care facility for individuals with intellectual disabilities;

(3) An adult foster care home;

(4) An assisted living center;

(5) A hospital swingbed; or

(6) An institution for individuals with a mental disease.

History

• Source: 21 SDR 119, effective January 4, 1995; 40 SDR 122, effective January 8, 2014.
• General Authority: SDCL 28-6-23, 28-6-24.
• Law Implemented: SDCL 28-6-23, 28-6-24.

ARSD 67:48:02:03 Lien filed for medical assistance

A lien created under the provisions of SDCL 28-6-24 may be filed against an individual's home and other real property in which the individual has a legal interest.

Real property includes home property, real property held in trust, and other real property.

Home property is the shelter which the individual owns and which is used by the individual as the individual's principal place of residence. Home property includes the buildings and contiguous property.

Real property held in trust is that property to which the federal government has the legal title but which is being held for the benefit of citizens.

Other real property is any real property other than that having the characteristics of home property or real property held in trust. Other real property includes property owned by the individual but separated from the individual's home property by property belonging to another.

The amount of the lien is the amount of the medical assistance provided by the department on behalf of the individual after June 30, 1994. The lien is limited to the cost of those services specified in SDCL 28-6-23.

History

• Source: 21 SDR 119, effective January 4, 1995.
• General Authority: SDCL 28-6-23, 28-6-24.
• Law Implemented: SDCL 28-6-23, 28-6-24.

ARSD 67:48:02:04 Lien on home prohibited under certain circumstances

The department may not place a lien on an individual's home if there is a reasonable expectation, based on the individual's medical, nursing, and social needs, that the individual will return home or if any of the following persons are lawfully residing in the home:

(1) The individual's spouse;

(2) The individual's adult child if the adult child has resided in and used the home as his principal place of residence for a continuous period of at least two years immediately prior to the date the individual was admitted to any of the facilities listed in SDCL 28-6-24 and can establish to the department that the adult child had been providing care which permitted the individual to reside at home rather than in an institution;

(3) The individual's child who is under age 21 or is blind or disabled;

(4) The individual's sibling who has an equity interest in the home and who has resided in and used the home as his principal place of residence for a continuous period of at least one year immediately prior to the date the individual was admitted to any of the facilities listed in SDCL 28-6-24.

A person is considered to be lawfully residing in the home if the person is residing in the home with the permission of the owner or, if the owner is under guardianship or conservatorship, with the permission of the guardian or conservator.

Cross-References: Determination of disability, § 67:46:03:18; Determination of blindness, § 67:46:03:19.

History

• Source: 21 SDR 119, effective January 4, 1995.
• General Authority: SDCL 28-6-23, 28-6-24.
• Law Implemented: SDCL 28-6-23, 28-6-24.

ARSD 67:48:02:05 Recovery against an individual's estate

If the department provided any of the services specified in SDCL 28-6-23, and the individual has since died, the department shall seek to recover from the individual's estate the benefits paid on behalf of the individual.

If the individual had a long-term care partnership insurance policy that paid for services, the department shall reduce the amount of recovery from the individual's estate by the amount of the assets disregarded at the time Medicaid eligibility was determined less the amount of disregarded assets disposed of before the individual's death. The benefits paid by insurance must be from a long-term care partnership policy approved by the Division of Insurance. In no case may the amount of the reduction exceed the amount paid under the long-term care partnership insurance policy.

The department may not seek recovery from the individual's estate if the individual's spouse is still living or if the individual has a surviving child who is under age 21 or is blind or disabled.

Cross-References:

Determination of disability, § 67:46:03:18.

Determination of blindness, § 67:46:03:19.

Long-term care insurance, ch 20:06:21.

History

• Source: 21 SDR 119, effective January 4, 1995; 34 SDR 180, effective December 26, 2007.
• General Authority: SDCL 28-6-23.
• Law Implemented: SDCL 28-6-23.

ARSD 67:48:02:06 Recovery when individual would have been ineligible for assistance

If the department finds that the individual owned property or other assets which would have made the individual ineligible for medical assistance, the department shall seek to recover the amount of benefits paid and the prohibitions for the placement of liens and the recovery from estates contained in §§ 67:48:02:04 and 67:48:02:05 do not apply.

History

• Source: 21 SDR 119, effective January 4, 1995.
• General Authority: SDCL 28-6-23, 28-6-24.
• Law Implemented: SDCL 28-6-23, 28-6-24.

ARSD 67:48:02:07 Fair hearing

A surviving spouse who is dissatisfied with the determination made under § 67:48:02:08 may request a fair hearing.

If a fair hearing is requested because of the imposition of a lien, the only issue which may be raised at the hearing is whether the requirements for the imposition of the lien have been met. Fair hearings are conducted under the provisions of chapter 67:17:02.

History

• Source: 21 SDR 119, effective January 4, 1995; 24 SDR 19, effective August 21, 1997.
• General Authority: SDCL 28-6-23, 28-6-24.
• Law Implemented: SDCL 1-26-16, 28-6-23, 28-6-24.

ARSD 67:48:02:08 Recovery against estate of surviving spouse -- Petition to limit financial responsibility -- Determination of value of estate

For purposes of SDCL 28-6-23.1, the surviving spouse must petition the department on a form available from the department. The surviving spouse or the surviving spouse's authorized representative or legal guardian must complete, sign, and return the form to the department.

If a medical recipient's death occurred after June 30, 1994, but before July 1, 1997, the department shall consider a petition to limit the financial responsibility of the estate of a surviving spouse if the petition is submitted and received by the department by January 1, 1998.

The department shall use the completed form and §§ 67:46:05:08 and 67:46:05:36 to determine the amount of the surviving spouse's resources which are available for recovery.

For purposes of this rule, the fair market value of property is determined by using 100 percent of the county's tax valuation for the property.

History

• Source: 24 SDR 19, effective August 21, 1997.
• General Authority: SDCL 28-6-23.
• Law Implemented: SDCL 28-6-23.

Chapter 67:48:03 Recoveries from providers

ARSD 67:48:03:01 Reserved

ARSD 67:48:03:02 Provider to reimburse department for services paid by both the department and another payment source -- Time limit for reimbursing department

If the department pays a provider for services provided on behalf of a Medicaid recipient and the provider has received or subsequently receives payment for the same service from a source other than the Medicaid recipient or the county, the provider must reimburse the department. The provider must reimburse the department within 45 days after receiving payment from the other source. If the payment is for a service provided within the last 12 months, the provider's reimbursement must be accomplished by submitting an adjustment/void claim form to the department. Failure to reimburse the department within the time limit shall result in an action against the provider to recover the payment.

Cross-Reference: Claims, ch 67:16:35.

History

• Source: 26 SDR 162, effective June 14, 2000.
• General Authority: SDCL 28-6-1.
• Law Implemented: SDCL 28-6-1.

Chapter 67:48:04 Recoveries from policyholders

ARSD 67:48:04:01 Reserved

ARSD 67:48:04:02 Policyholder to reimburse department for services paid by both Medicaid and insurance -- Time limit for reimbursing department

A policyholder must reimburse the department if the policyholder receives reimbursement from the policyholder's insurance company for medical services paid by the department on behalf of an individual who is Medicaid-eligible and covered under the policyholder's insurance. The policyholder must reimburse the department within 45 days after receiving the payment from the insurance company. Failure to reimburse the department within the time limit shall result in an action against the policyholder to recover the payment.

History

• Source: 26 SDR 162, effective June 14, 2000.
• General Authority: SDCL 28-6-1.
• Law Implemented: SDCL 28-6-1.

ARSD 67:48:04:03 Limit on attorney fees

For purposes of SDCL 28-6-7.1, attorney fees payable by the department are limited to the following:

(1) If the department has agreed to the terms of a settlement which the individual's attorney has negotiated, 25 percent of the settlement that relates to the Medicaid expenditures recovered;

(2) If the amount of the award is determined through a third-party mediation, an administrative hearing, or by a circuit court, 33 1/3 percent of the award that relates to the Medicaid expenditures recovered;

(3) If the amount of the award determined under subdivision (2) is appealed to and successful in a higher court, 40 percent of the award that relates to the Medicaid expenditures recovered;

(4) If the third-party mediation, administrative hearing, or court action referred to in subdivision (2) or (3) of this section is for the purpose of either reducing the amount of the award payable to the department or increasing the attorney fees payable by the department, 25 percent of the original award that relates to the Medicaid expenditures recovered; or

(5) If the award includes a workers' compensation claim, the limits established in SDCL 62-7-36.

When the attorney acting on behalf of the individual receives the award, the attorney shall immediately deduct the applicable fee from the Medicaid expenditures recovered and send the remainder to the department. The attorney must deduct the fee in one lump sum and may not deduct amounts that represent taxes on the attorney fees.

Nothing in this section prohibits the department from negotiating with the individual's attorney for a rate lower than the fees specified in this section.

History

• Source: 26 SDR 162, effective June 14, 2000.
• General Authority: SDCL 28-6-1.
• Law Implemented: SDCL 28-6-7.1.

Chapter 67:48:05 Recoveries -- Child care services

ARSD 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.

History

• Source: 28 SDR 111, effective February 20, 2002.
• General Authority: SDCL 28-1-61.
• Law Implemented: SDCL 28-1-61.

ARSD 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.

History

• Source: 28 SDR 111, effective February 20, 2002.
• General Authority: SDCL 28-1-61.
• Law Implemented: SDCL 28-1-61.

ARSD 67:48:05:03 Benefit paid in error as a result of intentional program violation

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.

History

• Source: 28 SDR 111, effective February 20, 2002.
• General Authority: SDCL 28-1-61.
• Law Implemented: SDCL 28-1-61.

ARSD 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.

History

• Source: 28 SDR 111, effective February 20, 2002.
• General Authority: SDCL 28-1-61.
• Law Implemented: SDCL 28-1-61.

ARSD 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.

History

• Source: 28 SDR 111, effective February 20, 2002.
• General Authority: SDCL 28-1-61.
• Law Implemented: SDCL 28-1-61.

ARSD 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.

History

• Source: 28 SDR 111, effective February 20, 2002.
• General Authority: SDCL 28-1-61.
• Law Implemented: SDCL 28-1-61.

ARSD 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.

History

• Source: 28 SDR 111, effective February 20, 2002.
• General Authority: SDCL 28-1-61.
• Law Implemented: SDCL 28-1-61.

ARSD 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.

History

• Source: 28 SDR 111, effective February 20, 2002.
• General Authority: SDCL 28-1-61.
• Law Implemented: SDCL 28-1-61.

ARSD 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.

History

• Source: 28 SDR 111, effective February 20, 2002.
• General Authority: SDCL 28-1-61.
• Law Implemented: SDCL 28-1-61.

ARSD 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.

History

• Source: 28 SDR 111, effective February 20, 2002.
• General Authority: SDCL 28-1-61.
• Law Implemented: SDCL 28-1-61.

ARSD 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.

History

• Source: 28 SDR 111, effective February 20, 2002.
• General Authority: SDCL 28-1-61.
• Law Implemented: SDCL 28-1-61.

ARSD 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.

History

• Source: 28 SDR 111, effective February 20, 2002.
• General Authority: SDCL 28-1-61.
• Law Implemented: SDCL 28-1-61.