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87. What is a “disqualification consent agreement” or “waiver” of the IPV hearing?

Sometimes, before holding a hearing, the county will try to get the person to sign a waiver of the hearing and possibly admit their guilt. This form is called a “Disqualification Consent Agreement.”

Signing such an agreement has two results: (1) an automatic disqualification for one year or more; and (2) a waiver of the right to a fair hearing before an Administrative Law Judge (ALJ). In addition, individuals may sign an “administrative disqualification hearing” waiver. (See the note below for more information about when a “waiver” is valid.) The problem, of course, is that signing the agreement removes the possibility that an ALJ, a neutral third party, will review the evidence and decide if fraud actually occurred. A person who signs a waiver may only seek relief from it in court. [MPP § 20-352.213(b), § 22-202.43.]

Advance written notice must be provided which informs the household member of the consequences of signing the Disqualification Consent Agreement or other hearing waiver). [MPP § 20-300.22(a).]  The agreement includes two options or statements for the person to check-off. The first statement includes an admission of guilt; the second while not admitting guilt, includes an agreement that the IPV penalty may be imposed. [MPP § 20-300.22(b).]  The person can check either box.

See also Fraud Policy: 7 C.F.R. § 273.16 (February 4, 2004), stating: “[T]he State agency [is required] to make a determination as to which procedure, administrative or judicial, it believes appropriate for a given case and to pursue that procedure to its conclusion. The State agency must not offer an ADH waiver if it intends to refer the case for prosecution nor suggest prosecution if the waiver is not signed.” Unfortunately, the latter situation occurs all the time, and if a waiver is signed under coercion, the advocate will have to try to have it set aside through court action. [MPP § 20-300.221(c).]

The food stamp office may not ask a person to sign the Disqualification Consent Agreement or schedule a disqualification hearing unless it has evidence on paper (“documentary evidence”) that the household deliberately broke Food Stamp Program rules. [7 C.F.R. § 273.16(a)(1). MPP § 20-300.21, 300.22.]  The office may not send a waiver form, or ask a person to sign it, unless a person other than the regular caseworker — usually the special investigative unit (SIU) — has reviewed the evidence and has decided that the evidence is strong enough for the food stamp office to schedule a disqualification hearing. [7 C.F.R. § 273.16(f)(1)(i); MPP § 20-300.21, 20-007.3.]  The food stamp office should have made the decision whether to prosecute criminally before it offers the person the form; it should not threaten prosecution to get a person to sign the form. [7 C.F.R. §§ 273.16(a)(1); MPP § 20-300.22.]

A person should always take a lawyer to any interview with the special investigative or fraud unit (SIU) because the fraud office will try to force the person to sign a disqualification consent agreement. It usually is better to have an administrative hearing, because the food stamp office has the burden of proving its case at a hearing, which includes proving the element of intent. Once a food stamp recipient waives her right to a hearing on the merits of an alleged violation, and a disqualification decision has been issued, no further administrative appeal procedure exists. [7 C.F.R. § 273.16(f)(2)(ii); MPP § 22-202.42; see also, Bourne v. Department of Soc. Welfare, 591 A.2d 79 (Vt. 1991).]

Debts stemming from fraud may not be discharged in bankruptcy. See 11 U.S.C. § 523(a)(1). If a person signs an administrative disqualification waiver but does not admit to the facts, a person might be able to litigate in bankruptcy court the question whether food stamp fraud occurred. Trafficking should not be considered “fraud” because it does not involve any false statements, so claims resulting from trafficking accusations should be dischargeable in bankruptcy.

Disqualification Consent Agreements include provisions allowing allotment reduction or other collection methods to repay the overissuance that occurred. More importantly, they do not stop the food stamp office or the prosecutor from filing criminal fraud charges for the same acts. A court might decide that the authorities cannot use waivers or statements that they obtained through illegal means. [[See, e.g., Williamson v. Department of Health and Rehab. Servs., 603 So. 2d 592 (Fla. Dist. Ct. App. 1992) (withholding adjudication until recipient signed disqualification consent agreement); see also "waiver" cases described, below.]  It is much better, however, not to make any statement at all without the advice of an attorney. In fact, waivers may make it easier for the prosecutor to convict the person and send them to jail for food stamp fraud, if the person sign the option admitting their guilt. (See the section of this guide about being taken to court on a fraud claim for related information.)

When is a “waiver” valid? A waiver is not valid unless the recipient signs knowingly and willingly. Mere consent to an investigation is insufficient to validate a waiver. The recipient must voluntarily consent to the waiver. The voluntary nature of the consent is a factual question determined from the totality of the circumstances. A three-part test is used to determine if consent is voluntary. First, there must be clear and positive testimony that consent was “unequivocal and specific” and “freely and intelligently” given. Second, the government must prove consent was given without duress or coercion, express or implied. Third, the courts indulge every reasonable presumption against the waiver of fundamental constitutional rights and there must be convincing evidence that such rights were waived. See United States v. Massey, 550 F.2d 300 (5th Cir. 1977); Proctor v. United States, 404 F.2d 819 (D.C. Cir. 1968) (coercive atmosphere); Milton v. Wainwright, 396 F.2d 214 (5th Cir. 1968) (finding that confession gained by trickery not voluntary); Virgin Islands v. Kirnon, 377 F.Supp. 601 (D.V.I. 1974), aff’d, 513 F.2d 625 (3rd Cir. 1975) (capacity to understand).