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Overpayments and Fraud
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What if I was overpaid SNAP benefits?
If you get more SNAP benefits than you are eligible for, DTA can recover
the overpayment. 106 C.M.R. § 367.490. An overpayment can happen
because of a DTA mistake, your mistake, or because you got SNAP
benefits while you were waiting for a hearing and you then lost the hearing.
These mistakes are considered unintentional program violations (UPVs).
106 C.M.R. § 367.495. If DTA thinks the overpayment happened because
of your mistake or because you committed fraud, it may consider the
overpayment an Intentional Program Violation (IPV) or refer your case to
the Bureau of Special Investigations (BSI). 106 C.M.R. § 706.240.
If you will be unable to repay the overpayment within three years without
financial hardship, DTA can “compromise” the claim and reduce it to an
amount that you can pay off within three years. Although DTA’s
regulations say that only unintentional program violations can be
compromised, 106 C.M.R. § 367.495(F), federal regulations say that all
overpayments, including intentional program violations, can be
compromised. 7 C.F.R. § 271.4(b). You should ask DTA to compromise
your claim if you cannot pay it without hardship.
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102
Do I have to repay an “unintentional”
overpayment?
First, DTA will decide if the overpayment was “intentional” (e.g. fraud) or
“unintentional” or was the result of a DTA mistake, called an “agency
error.” 106 C.M.R. § 367.495
If the overpayment happened because of your mistake or a DTA mistake
and DTA agrees it is an “unintentional overpayment,” DTA does not seek
recovery when:
„ the overpayment occurred 12 or more months before DTA discovered
the problem,
„ the overpayment is less than $125 and you are not a current recipient,
If you cannot repay the overpayment within three years without financial
hardship, DTA has the authority to reduce the claim to the amount that can
be recovered in three years ($10 per month or 10% of the SNAP you are
getting, whichever is greater). This is called “compromising the claim.”
106 C.M.R. § 367.495(F).
Contact Legal Services if you need help trying to compromise a SNAP
overpayment.
How is the overpayment calculated?
For an overpayment that happened by mistake (unintentional program
violation), DTA calculates the difference between what you got and what
you should have gotten after allowing all applicable deductions and
exclusions. 106 C.M.R. § 367.495(D). If you are no longer receiving
benefits, DTA will not try to recover a UPV overpayment unless it is $125
or more. 106 C.M.R. § 364.870.
For both intentional and unintentional program violations, the first month
of an overpayment is the month the change would have been effective if it
had been reported on time. 106 C.M.R. §§ 367.495(D), 367.500(A).
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Example: Jane Smith is self-employed and subject to simplified or
interim reporting, ever six months. She gets her SNAP on the 8th of
the month because her SSN ends in “5.” She gets a new client that
will pay her much more than she had been getting paid before. On
March 7 she gets her first check, which bumps her above the gross
income test. She loses track of time and doesn’t report the change
until March 20, more than ten days after the change. However, even
if Jane had reported on or before March 17th, Jane was not overpaid
in benefits for March because DTA would not have reduced her
March benefits. Her SNAP would have been closed effective April
instead.
Advocacy Reminders:
— If DTA says you were overpaid, you can appeal. See Question 94. You
can also ask DTA to send you a copy of the overpayment packet
(overpayment information) in your case. If you think DTA made a
mistake in the overpayment amount you should tell them.
— DTA may suspend collection for an unintentional overpayment if you
are no longer a recipient or DTA determines that collecting the claim
will cost more than the amount it will be able to get from you.
— If you failed to report a change, but it would not have affected your
SNAP benefits, then there is no overpayment (for example, if you
failed to report a marriage to someone already in your household, or
failed to report income considered non-countable).
— There is no overpayment if you did not report a change that you were
not required to report. For example, there is no overpayment if you
were on simplified reporting and you did not report an increase in
income, unless the increase put your household over the gross income
limit. See Question 89.
Additional Guidance:
●The date of discovery is the date the overpayment is verified or the date the
household fails to respond to an overpayment inquiry from DTA. Ops Memo
2014-35 (May 15, 2015)
● DTA can offset an underpayment (money DTA owes) by an established
overpayment (money the client owes). Ops Memo 2011-54 (Nov 17, 2011).
● No overpayment for changes not reported during semi-annual reporting period
unless household exceeds gross income test. Transitions Hotline p.4 (June 2006)
● Increase in threshold for overpayment recoveries from $35 to $125. F.O. Memo
2006-24 (May 19, 2006)
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103
What if DTA says I committed fraud or an
“IPV”?
An IPV is an intentional program violation. That is when a court or
hearings officer determines that you gave DTA false or misleading
information on purpose, willfully hid information in order to get benefits
you are not eligible for, or intentionally did not report a change that you
were required to report and would have reduced your benefits. 106 C.M.R.
§ 367.525. Purposely giving false or misleading information or willfully
hiding information in order to get benefits is fraud.
How is the intentional overpayment calculated?
For an overpayment that was due to purposely misleading DTA
(intentional program violation), DTA calculates the difference between
what you got and what you should have gotten after allowing all applicable
deductions and exclusions except for the earned income (20 percent)
deduction. 106 C.M.R. § 367.500(A).
For both intentional and unintentional program violations, the first month
of an overpayment is the month the change would have been effective if it
had been reported on time. 106 C.M.R. §§ 367.495(D), 367.500(A).
DTA cannot claim any benefits issued more than six years before it became
aware of the overpayment. 106 C.M.R. §§ 367.495, 367.500(A). DTA is
supposed to establish the claim no later than the quarter after the quarter it
discovered the overpayment. 7 C.F.R. § 273.18(d)(1).
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What is DTA required to do to show I
committed fraud?
DTA must give you written notice of the SNAP intentional program
violation (IPV) penalties each time you apply. The notice must be in
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English, Spanish or other languages spoken by 100 or more households in
the area served by the DTA office. 106 C.M.R. § 367.550. Question 21.
To establish an IPV, DTA has to prove that you knew the SNAP rules and
your responsibilities and that you purposely violated the rules. DTA must
prove with “clear and convincing evidence” that you “willfully, knowingly
and with deceitful intent committed an IPV.” 106 C.M.R. § 367.750.
Simple mistakes and misunderstandings between you and your worker that
result in an overpayment are not IPVs. In calculating the amount of the
overpayment, DTA must give you all the deductions you would otherwise
receive, with the exception of the 20% earned income deduction. 106
C.M.R. § 367.500(A).
Be sure to contact an advocate if you are notified of an IPV or
administrative disqualification hearing. An advocate can help you prepare
your argument against the DTA’s finding of an IPV.
You might consider arguing any of the following, if they are relevant to
your situation, to help show that DTA did not meet its burden of proving
that the household committed an IPV:
x
x
x
x
DTA failed to give written notice about reporting requirements in
the household’s own language as required under DTA’s obligations
to serve limited English proficient households;
you to report a change to the DTA office but the DTA office failed
to record the change or lost the documents;
DTA relied on information from its computer system that you can
show is not accurate
You have a mental impairment which prevented you from willfully
and knowingly acting to defraud DTA. A statement from a health
provider, such as a psychologist, may be useful in showing that the
individual did not act knowingly or willfully.
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105
When can my benefits be stopped for an IPV
or fraud?
If you are found guilty of an IPV by a court of law or by a DTA hearing
officer – or you waived your right to an IPV hearing or signed a consent
agreement in court – you will not be eligible for SNAP benefits for
yourself for
x
x
x
one year for the first violation,
two years for the second violation, and
permanently for the third violation. 106 C.M.R. § 367.800(A).
DTA has to follow special notice and hearing rules if it has charged you
with an IPV. Be sure to check the rules. 106 C.M.R. §§ 367.600-367.750.
— The disqualification period must start the month following the date that
you received written notification of a hearing decision where the
hearings officer made an IPV determination. 106 C.M.R. § 367.625. If
DTA misses that date, or starts the disqualification late, you should not
be disqualified for additional months that DTA missed.
— Even if you are no longer getting SNAP at the point of the notification
or during the disqualification, the SNAP disqualification period still
starts the month following the month of the hearing decision. DTA
cannot initiate a disqualification at some later date or suspend the
disqualification until you reapply.
Example: A hearings officer found that Rachel committed an IPV on
July15, 2014 and disqualified her for 12 months. DTA then sent her a
notice of the disqualification on July 17th. Rachel was not getting
SNAP at the time of the IPV disqualification. Her 12 months starts
August 2014. She can reapply in September of 2015. If Rachel has
another family member, such as a child, she can still get SNAP for that
child during the disqualification period, even though she is ineligible.
The disqualification penalties are more severe for people found guilty, in
court, of trading SNAP benefits for drugs or firearms, trading more than
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$500 in benefits, or getting multiple benefits with a fake identity or
address. 106 C.M.R. § 367.800(B), (C).
Advocacy Reminders:
9 An IPV is a very serious matter. Contact legal services right away if
you get notice of an IPV. See Appendix E.
9 DTA can stop SNAP benefits only for the person who committed the
intentional program violation. The IPV disqualification does not affect
children or other people who are in the same household with the person
who committed the IPV. 106 C.M.R. § 367.800(F).
9 If you received SNAP in another state and you were found to have
committed an IPV in that state, DTA can continue that disqualification
in Massachusetts. The length of the disqualification period starts with
the date you were notified of the original IPV.
Example: Philip was disqualified from SNAP in Montana on
January 2016 for 1 year. His SNAP disqualification ends January
2017, even if he is now in Massachusetts.
Additional Guidance:
● Description of the “electronic disqualified recipient system” or eDRS under
USDA to track individuals under IPV SNAP sanctions in other states. Households
have the right to dispute the e-DRS finding and confirms an IPV disqualification
does not affect other household members not disqualified (e.g. children). Ops
Memo 2013-39A, August 26, 2013
● Individuals in SNAP households subject to an IPV or other sanction should
receive notice from DTA of when the sanction period ends and be re-evaluated for
benefits with the rest of the household. Transitions FYI (Sept. 2005).
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106
What should I do if contacted by the Bureau of
Special Investigations?
If DTA thinks you were overpaid because of your mistake or because you
committed fraud, it may refer your case to the Bureau of Special
Investigations (BSI). 106 C.M.R. § 706.240. DTA may also refer
applications to BSI if the worker thinks you are lying about something.
BSI may tell you to come in for an interview. You do not have to go to the
interview. Your benefits won’t stop just because you do not go to the
interview. But if you don’t go, BSI can decide to send the case back to
DTA to collect the overpayment or BSI may decide to refer the case for a
criminal prosecution of SNAP fraud.
If you do go to a BSI interview, you have the right to remain silent.
Anything you say can be used against you. It may be best to remain
silent even if you have not done anything wrong. You do not have to give
BSI names of people to talk to. Try to consult with an advocate before you
meet with BSI or say anything.
Do not sign anything unless BSI has shown you how it figured the
overpayment, you are sure that all the calculations are correct, and you
agree with everything in the statement you are signing. Do not agree to a
repayment schedule that you will not be able to keep or that will cause your
family hardship. If you are unsure, consult an advocate first.
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Can I go to jail? Will I have a criminal record?
If BSI decides that you committed SNAP fraud and that the overpayment
was not just a mistake, you can be prosecuted. 106 C.M.R. § 367.850. If
you get notice of a criminal complaint, you should plead “not guilty” and
ask the court to appoint a lawyer for you. Legal services programs do not
represent people in criminal matters but they may help you and your lawyer
figure out whether BSI has correctly computed what you owe.
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If you plead guilty or you are found guilty, you will probably not have to
go to jail, but the criminal record may make it harder for you to get a job,
get credit, or get housing. A criminal record may also cause immigration
problems. You may have to pay back the money the court decides you owe.
Sometimes the court will delay a final decision as long as you pay back the
money according to the schedule set by the court. This is called “continued
without a finding.” Be careful not to agree to a repayment schedule you
will not be able to keep.
The federal SNAP rules permit you to ask the court to let you pay back the
money through public service. 7 C.F.R. § 273.18(g)(7). If you pay the
money back or pay the claim through public service, you may be able to get
the case dismissed so you don’t have a criminal record.
If the court finds that you committed an IPV, your benefits can be stopped
under the SNAP IPV sanction rules. See Question 103. 106 C.M.R. §§
367.900, 367.925.
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How does DTA collect an overpayment if I am
getting SNAP?
If you are receiving SNAP benefits, in general DTA must collect the
overpayment by reducing your benefits. 7 C.F.R. § 273.18(g)(1). See
Question 102. DTA can cut your current SNAP benefits to recover benefits
that you got by mistake or because you committed an intentional program
violation. 106 C.M.R. § 367.510. This includes recovery of benefits that
you got while you were waiting for a hearing decision and you lost the
appeal. 106 C.M.R. § 367.275.
Before reducing your benefits, DTA will send you a letter asking you to the
pay the claim, and may try to get you to sign an agreement. You do not
have to pay or sign an agreement to pay more than DTA could recover by
automatically recouping some of your SNAP.
You have the right to advance notice and an opportunity for a hearing
before your benefits are reduced. 106 C.M.R. §§ 364.870, 364.880,
366.200. DTA may say you cannot challenge the overpayment at this point,
so if you think the overpayment did not happen or the amount is not
correct, you should request a hearing when you first get notice of the
overpayment and should not wait to receive notice of the reduction before
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asking for a hearing. You have 90 days from date of the DTA action to
request a fair hearing. See Question 94. A fair hearing request should stop
collection of the overpayment until the hearing officer makes a decision. 7
C.F.R. § 273.18(e)(6). Contact an advocate if DTA tries to collect the
overpayment while your hearing request is pending.
If you are getting SNAP, DTA can pay itself back by:
x
x
x
not paying you for an underpayment you are owed. See Question
86. This is called “offsetting.”
for unintentional overpayments, recouping 10% or $10 of your
monthly SNAP, whichever is greater. 106 C.M.R. § 367.495(G)
for intentional program violation overpayments, recouping 20% or
$20 of your monthly SNAP, whichever is greater. 106 C.M.R. §
367.500(B)(2)
DTA cannot take money for a SNAP overpayment out of your TAFDC or
EAEDC. See M.G.L. c. 118, § 10, 7 C.F.R. § 273.18(g)(1)(v).
Advocacy Reminders:
9 Check with an advocate if DTA uses any means other than
reducing current benefits to collect an overpayment. Also check
with an advocate if collection will cause your family hardship. Do
not agree to repayment terms that you will not be able to meet or
that will cause your family hardship.
Additional Guidance:
x
DTA can offset an underpayment (benefits owed to a household) by an
established overpayment. Ops Memo 2011-54 (Nov 17, 2011).
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109
How does DTA collect overpayments if I am
not receiving benefits?
DTA has several ways of collecting overpayments from former SNAP and
cash recipients.
If you are no longer receiving SNAP, DTA will ask you to sign a
repayment agreement and agree to pay a certain amount of money each
month. If you do not agree to do this, DTA can refer your claim to the U.S.
Treasury, which can reduce Social Security and other federal benefits
payable to you, attach federal wages, and intercept a federal tax refund. See
7 C.F.R. § 273.18(n) and 106 C.M.R. § 367.510(E). However, needs-based
benefits including SSI, TAFDC, EAEDC and veterans’ benefits cannot be
reduced to repay SNAP overpayments. Federal rules say that DTA can
intercept your unemployment compensation only if you agree or if a court
orders interception. 7 C.F.R. § 273.18(g)(6).
In addition, DTA says it can collect by civil court action, intercepting your
unemployment compensation, attaching your wages, or using other
“reasonable” means. 106 C.M.R. § 367.510. A criminal court can order
you to pay back the SNAP benefits you received if it finds you committed
fraud.
If you have a payment plan with DTA, DTA has said they will not intercept
your taxes if you are regularly making payments. However, if you miss
payments, DTA may take additional action to collect money. DTA can also
turn over the debt to a collection agency, which may add an additional
collection fee on top of what you owe. A collection agency is not permitted
under state law to harass you, and cannot threaten to take the first $500 per
week you earn in gross wages. And a collection agency can only take
money from your bank account if you have more than $2,500 in the
account, and they can only take the excess above $2,500. For additional
protections, see G.L. c. 235, § 34; 940 C.M.R. § 7.07(18).
If the full amount of the claim cannot be collected in three years without
causing you financial hardship, DTA has the authority to “compromise” the
amount of the overpayment by reducing the overpayment to an amount that
can be collected from you within three years. 106 C.M.R. § 367.510.
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If the claim is for an unintentional program violation, DTA can also
suspend collection if your household is not currently receiving SNAP and
DTA determines that the cost of collection will be more than DTA is likely
to recover. 106 C.M.R. § 367.495(H).
Advocacy Reminders:
9 If you are a SNAP recipient, or very low income, and paying back the
overpayment will cause you financial hardship, make a written request
to DTA to request that they “compromise the overpayment claim” to an
amount that you could pay over three years. Be sure to put this in
writing. If DTA refuses, you can also file an appeal and ask a hearings
officer to consider your request to compromise the claim. This is an
option only when the SNAP overpayment is caused by an unintentional
error or agency error. If DTA or a court finds you have committed
fraud, this is not an option.
9 See the MA Attorney General’s Guide on Debt Collection, here:
http://www.mass.gov/ago/consumer-resources/consumerinformation/credit-and-financial-literacy/consumer-credit/fair-debtcollection.html
9 See resources on our MassLegalHelp webpage, “I have debt. Help!
http://www.masslegalhelp.org/consumer/debt
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