Overview of disqualification consent agreements or waivers
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 a waiver of one’s right to an “administrative disqualification hearing,” better known as an IPV fraud hearing. (See the section 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 intentional program violation (IPV) penalty may be imposed. [MPP § 20-300.22(b).] The person can check either box.
The CalFresh 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 SNAP program rules. [7 C.F.R. § 273.16(a)(1); MPP §§ 20-300.21, 20-300.22] 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 Investigations Unit (SIU) — has reviewed the evidence and has decided that the evidence is strong enough for the CalFresh office to schedule a disqualification hearing. [7 C.F.R. § 273.16(f)(1)(i); MPP §§ 20-300.21, 20-007.3.] The CalFresh 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 CalFresh office has the burden of proving its case at a hearing, which includes proving the element of intent. Once a CalFresh 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.]
Disqualification consent agreements include provisions allowing allotment reduction or other collection methods to repay the overissuance that occurred. They do not stop the CalFresh 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. App. 1992) (withholding adjudication until recipient signed disqualification consent agreement).]
It is much better, however, not to make any statement at all without the advice of an attorney. Should the person sign the option admitting his guilt, such a waiver may make it easier for the prosecutor to convict the person and send them to jail for CalFresh fraud. (For related information, see the section about being taken to court on a fraud claim.)
When is a “waiver” valid?
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. Among the factual questions to consider are whether: (1) there is clear and positive evidence the consent was unequivocal and specific, and freely and intelligently given; and (2) the consent was given without duress or coercion, express or implied.