State of West Virginia DEPARTMENT OF HEALTH AND HUMAN RESOURCES Office of Inspector General Board of Review P. O. Box 970 Danville, WV 25053

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1 Joe Manchin III Governor State of West Virginia DEPARTMENT OF HEALTH AND HUMAN RESOURCES Office of Inspector General Board of Review P. O. Box 970 Danville, WV May 21, 2008 Martha Yeager Walker Secretary Dear Mr. : Attached is a copy of the findings of fact and conclusions of law on your hearing held May 7, Your hearing request was based on the Department of Health and Human Resources action to terminate your Food Stamp benefits based on their belief you are a fleeing felon. In arriving at a decision, the State Hearings Officer is governed by the Public Welfare Laws of West Virginia and the rules and regulations established by the Department of Health and Human Resources. These same laws and regulations are used in all cases to assure that all persons are treated alike. Eligibility and benefit levels for the Food Stamp Program are based on current policy and regulations. One of these regulations states a person fleeing to avoid prosecution, custody/confinement after conviction, for a crime or attempt to commit a crime that is a felony under the law of the place from which the individual is fleeing, is ineligible for food stamps while identified in this category. (WV Income Maintenance Manual Section 9.1.A.2.g) The information submitted at your hearing does not show that you are a fleeing felon. It is the decision of the State Hearings Officer to reverse the action of the Department in terminating your food stamps. Sincerely, Cheryl Henson State Hearing Officer Member, State Board of Review cc: Erika H. Young, Chairman, Board of Review Susan Cook, Putnam DHHR

2 WEST VIRGINIA DEPARTMENT OF HEALTH & HUMAN RESOURCES BOARD OF REVIEW, Claimant, v. Action Number: 08-BOR-1276 West Virginia Department of Health and Human Resources, Respondent. DECISION OF STATE HEARING OFFICER I. INTRODUCTION: This is a report of the State Hearing Officer resulting from a fair hearing concluded on May 21, 2008 for. This hearing was held in accordance with the provisions found in the Common Chapters Manual, Chapter 700 of the West Virginia Department of Health and Human Resources. This fair hearing was convened on May on a timely appeal filed December 10, It should be noted that the record was left open for submission of supporting evidence from both parties until May 21, On May 22, 2008, I received additional documents from the Department. These documents are not being considered in my decision. II. PROGRAM PURPOSE: The Program entitled Food Stamp Program is set up cooperatively between the Federal and State governments and administered by the West Virginia Department of Health & Human Resources. The purpose of the Food Stamp Program is to provide an effective means of utilizing the nation's abundance of food to safeguard the health and well-being of the nation's population and raise levels of nutrition among low-income households. This is accomplished through the issuance of EBT benefits to households who meet the eligibility criteria established by the Food and Nutrition Service of the U.S. Department of Agriculture III. PARTICIPANTS:, Claimant, Claimant s friend 1

3 Susan Cook, Income Maintenance Supervisor, Department Representative Jill Stover, Income Maintenance Worker Presiding at the Hearing was Cheryl Henson, State Hearing Officer and a member of the State Board of Review. IV. QUESTIONS TO BE DECIDED: The question to be decided is whether the Department was correct in its action to terminate the Claimant s food stamp benefits due to fleeing felon policy. V. APPLICABLE POLICY: West Virginia Income Maintenance Manual, Chapter 9.1.A.2.g VI. LISTING OF DOCUMENTARY EVIDENCE ADMITTED: Department s Exhibit(s): D-1 WV Income Maintenance Manual Section 9.1.A.2.g D-2 Copy of IGBR29 and appointment notice D-3 Notification letter date November 30, 2007 D-4 Case Comments from Rapids D-5 Commonwealth of Kentucky Franklin Circuit and District Court documents Claimant s Exhibit(s): C-1 Commonwealth of Kentucky Franklin County Court System documents VII. FINDINGS OF FACT: 1) The Claimant was actively receiving food stamps as a one person household, when on or about November 30, 2007 he was notified via a Notice of Decision (D-3) that his food stamp benefits were being terminated. The notice included the following pertinent information: ACTION: Your Food Stamps will stop. You will not receive this benefit after December REASON: Your shelter and/or utility costs are less. Each individual has failed for the reasons stated below. 2

4 Disqualified for Fleeing Felon Violation. 2) The Department presented testimony that indicates the Claimant was in the office one day and asked them to contact Kentucky to verify his circumstances in regard to his standing with the court. The Department representative testified that she called the Kentucky Court and was told that the Claimant was a fleeing felon and she should contact police. She indicates that she contacted police immediately and they arrested the Claimant. However, later she was told that they released the Claimant as Kentucky refused to pay the cost of extradition. 3) The Department contends that the Claimant is a fleeing felon. They presented evidence (D-5) they say corroborates this claim. The Department contends that the evidence shows that the Claimant was charged with a felony driving DUI suspended license, second offense in five years on November 13, 2005 and is currently fleeing those charges. No other evidence was provided to support this claim. 4) The Claimant contends that the evidence (D-5) (C-1) shows that he was originally charged with a felony, however, that the felony was amended to a misdemeanor driving DUI, suspended license, first offense on November 22, 2005 when he first appeared on the charge. Notes at the bottom of the first page appear to corroborate his testimony. The Claimant states he did miss a hearing December 22, due to having a broken arm on December 16, 2005 and having recent surgery. He was unable to attend that hearing. The evidence does show that he eventually appeared on March 8, 2007 and was fined and ordered to enroll in AOE treatment. The Claimant admits that he has not paid the fines and states he was unaware that he was to attend DUI classes. He states he is going to take the classes now, but has no money to pay the fines. He states that he is not charged with a felony and should not be considered a fleeing felon. 5) The Department contends that although his felony was changed to a misdemeanor on November 22, 2005, when the Claimant failed to comply with the courts orders from March 8, 2007 the charge was changed back to a felony. 6) The WV Income Maintenance Manual Section 9.1.A.2.g states in pertinent part: Individuals Excluded by Law Persons who are excluded by law as found below are ineligible and may not be a separate AG. The periods of ineligibility are as follows: REASON FOR EXCLUSION Fleeing to avoid prosecution or custody/confinement after conviction, for a crime or attempt to commit a crime that is a felony under the law of the place from which the individual is fleeing. LENGTH OF EXCLUSION Ineligible while identified in this category 3

5 VIII. CONCLUSIONS OF LAW: 1) The policy and regulations that govern the Food Stamp Program state that individuals fleeing to avoid prosecution or custody/confinement after conviction, for a crime or attempt to commit a crime that is a felony under the law of the place from which the individual is fleeing, are ineligible while identified in this category. 2) The evidence reveals that the Claimant was charged on November 13, 2005 with a felony offense of Driving DUI suspended license, Second offense in five years, Aggravator (F). However, the evidence also reveals that the charge was amended to driving DUI suspended license, First offense, on November 22, Testimony from the Claimant supports that this amended charge is considered a misdemeanor. The evidence shows the Claimant appeared for sentencing on March 8, 2007 at which time he was ordered to pay fines and attend classes. The Claimant failed to pay the fines or attend the classes, however, no evidence has been provided to show the Claimant is currently a fleeing felon. 3) Based on the evidence, the Department s action to terminate the Claimant s food stamps due to being a fleeing felon is incorrect. IX. DECISION: It is the decision of the State Hearings Officer to reverse the action of the Department terminating the Claimant s food stamps. X. RIGHT OF APPEAL: See Attachment XI. ATTACHMENTS: The Claimant s Recourse to Hearing Decision Form IG-BR-29 ENTERED this 22 nd Day of May, Cheryl Henson State Hearing Officer 4