Liens, Overpayments And Ipvs

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_400/oar_461/461_195.html
Published: 2015

The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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DEPARTMENT OF HUMAN SERVICES, SELF-SUFFICIENCY PROGRAMS









 

DIVISION 195
LIENS, OVERPAYMENTS AND IPVs

461-195-0301
Definitions
For purposes of OAR 461-195-0301 to
461-195-0350, the following definitions apply:
(1) "Action" means an action,
suit, or proceeding.
(2) "Applicant" means an
applicant for assistance (see section (3) of this rule).
(3) "Assistance" means moneys
for the needs of a recipient (see section (12) of this rule) and for the needs of
other individuals living with the recipient whom the recipient has an obligation
to support which are paid by the Department (see section (7) of this rule), CCO
(see section (4) of this rule), or prepaid managed care health services organization
(see section (11) of this rule) either directly to the recipient or to others for
the benefit of the recipient. "Assistance" includes both cash and medical assistance
programs. "Assistance" does not include SNAP benefits. The "assistance" must be
directly related to the personal injury (see section (10) of this rule). "Assistance"
is received by the recipient on the date of issuance of a check for cash assistance
and the date of service for medical assistance, regardless of the actual payment
date by the Department, CCO, or prepaid managed care health services organization.
(4) "CCO" means a Coordinated
Care Organization as defined in OAR 410-141-0000.
(5) "Claim" means a legal
action or a demand by, or on behalf of, a recipient for damages for or arising out
of a personal injury which is against any person or public body, agency or commission
other than the State Accident Insurance Fund Corporation or Workers' Compensation
Board.
(6) "Compromise" means a
compromise between a recipient and any person or public body, agency or commission
against whom the recipient has a claim (see section (5) of this rule).
(7) "Department" means the
Department of Human Services, the Oregon Health Authority, or both.
(8) "Judgment" means a judgment
in any action (see section (1) of this rule) or proceeding brought by a recipient
to enforce the claim of the recipient.
(9) "Loan receipts" means
an arrangement in which a CCO or prepaid managed care health services organization
pays medical costs for or to the recipient, and the recipient agrees to repay the
CCO or prepaid managed care health services organization from a recovery the recipient
receives from a third party that injured the recipient, or any similar arrangement.
(10) "Personal injury" means
a physical or emotional injury to an individual, for which the individual has a
claim including, but not limited to, injuries arising from assault, battery, or
medical malpractice.
(11) "Prepaid managed care
health services organization" means a managed health, dental, or mental health care
organization that contracts with the Department on a prepaid basis under the Oregon
Health Plan (OHP) (see OAR 410-200-0015). A "prepaid managed care health services
organization" may be a dental care organization, fully capitated health plan, mental
health organization, physician care organization, chemical dependency organization,
or CCO.
(12) "Recipient" means an
individual who receives or received assistance or whose needs are or were included
in a public assistance grant.
(13) "Settlement" means a
settlement between a recipient and any person or public body, agency or commission
against whom the recipient has a claim, and includes any agreement to pay, or payment
of or compensation received by a recipient under Oregon Laws 2013, chapter 5.
(14) "Trust agreements" means
an arrangement in which a CCO or prepaid managed care health services organization
pays medical expenses for or to the recipient, and the recipient agrees to hold
in trust for the prepaid managed care health services organization money from a
recovery the recipient receives from a third party that injured the recipient, or
any similar arrangement.
Stat. Auth.: ORS 409.050, 410.070, 411.060,
411.070, 412.049, 413.033, 413.042, OLs 2013 Ch 14 sec. 10
Stats. Implemented: ORS 409.010,
411.060, 411.070, 412.049, 413.033, 413.042, 416.510 - 416.610
Hist.: AFS 62-1989, f. 10-5-89,
cert. ef. 10-15-89; AFS 26-1993, f. 10-29-93, cert. ef. 11-1-93; Renumbered from
461-010-0100; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06; SSP 15-2006, f. 12-29-06,
cert. ef. 1-1-07; SSP 37-2013, f. 12-31-13, cert. ef. 1-1-14; SSP 15-2015, f. 3-30-15,
cert. ef. 4-1-15
461-195-0303
Personal Injury Claim
(1) The Personal Injury Liens Unit is
designated and authorized to administer the personal injury lien program for the
Oregon Heath Authority (the Authority) and the Department of Human Services (the
Department) (see OAR 461-195-0301). To administer the program, the Personal Injury
Liens Unit is also authorized to:
(a) Prepare and file liens;
(b) Assign lien authority
to a CCO (see OAR 461-195-0301) or a prepaid managed care health services organization
(see 461-195-0301) for medical costs paid by a CCO or prepaid managed care health
services organization to or on behalf of an applicant (see 461-195-0301) or recipient
(see 461-195-0301) arising from any personal injury (see 461-195-0301);
(c) Assert any rights or
remedies, including filing a complaint in court, arising from an assignment of right
to payment acquired by the Authority in accordance with ORS 659.830 and 743.847,
from an applicant or recipient; and
(d) Assert any rights or
remedies granted in ORS 416.580 or 416.610.
(2) An applicant or recipient
of medical assistance, as a condition of eligibility, must assign to the Authority
any rights to payment from any third party liable for medical costs paid by medical
assistance to or on behalf of an applicant or recipient arising from any personal
injury.
(3) An applicant or recipient
of assistance (see OAR 461-195-0301), except OCCS Medical Programs (see 410-200-0015),
must pursue a personal injury claim (see 461-195-0301) in accordance with 461-120-0330
(Requirement to Pursue Assets).
(4) An applicant or recipient
of OCCS Medical Programs assistance must pursue a personal injury claim in accordance
with OAR 410-200-0220 (Requirement to Pursue Assets).
(5) An applicant or recipient
must cooperate with the Personal Injury Liens Unit, CCO, or prepaid managed care
health services organization to:
(a) Identify any third party
liable or potentially liable for medical costs paid by the Department, the Authority,
CCO, or prepaid managed care health services organization to or on behalf of an
applicant or recipient arising from any personal injury;
(b) Provide information about
liability or other insurance that may cover or pay for medical costs paid by the
Department, the Authority, CCO, or prepaid managed care health services organization
to or on behalf of an applicant or recipient arising from any personal injury;
(c) Complete a MSC 0451,
MSC 0451NV, or similar online form as required by the Personal Injury Liens Unit,
CCO, or prepaid managed care health services organization;
(d) Provide other information
as required by the Personal Injury Liens Unit, CCO, or prepaid managed care health
services organization to assist in pursuing payment from any third party who may
be liable for medical costs paid by the Department, the Authority, CCO, or prepaid
managed care health services organization to or on behalf of an applicant or recipient
arising from any personal injury;
(e) Appear as a witness in
court, administrative hearing, or other proceeding arising from any personal injury;
and
(f) Pay to the Department
any medical damages received by the recipient that are subject to the Department’s
lien or assignment of rights to payments.
(6) An applicant or recipient
of OCCS Medical Programs assistance who fails to comply with section (5) of this
rule is ineligible for benefits until the individual meets the requirements of section
(5) of this rule, or has good cause (see OAR 410-200-0220) not to comply.
(7) An applicant or recipient
of assistance, other than OCCS Medical Programs, who fails to comply with section
(5) of this rule is ineligible for benefits until the individual meets the requirements
of section (5) of this rule, or has good cause (see OAR 461-120-0330) not to comply.
(8) For all programs, the
existence of a claim for damages for a personal injury does not make an applicant
or recipient ineligible for program benefits.
Stat. Auth.: ORS 409.050, 411.060 &
416.510 - 416.610
Stats. Implemented: ORS 411.620,
411.630, 411.632, 411.635 & 411.640
Hist.: AFS 80-1989, f. 12-21-89,
cert. ef. 2-1-90; AFS 26-1993, f. 10-29-93, cert. ef. 11-1-93; Renumbered from 461-195-0300;
SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06; SSP 15-2015, f. 3-30-15, cert. ef. 4-1-15
461-195-0305
Lien of the Department
(1) Whenever a recipient has a claim for damages for a personal injury, the Department shall have a lien upon the amount of any judgment in favor of a recipient or amount payable to the recipient under a settlement or compromise as a result of that claim for all assistance received from the date of the injury to:
(a) The date of satisfaction of the judgment favorable to the recipient; or
(b) The date of the payment under the settlement or compromise.
(2) The person or public body, agency or commission bound by the judgment, settlement, or compromise shall be responsible for immediately informing the Department's Personal Injury Liens Unit when a judgment has been issued or a settlement or compromise has been reached so that the exact amount of the Department's lien may be determined. For the purposes of this rule, immediately means within ten calendar days. If the Department is not timely notified, the 180 day limitation in ORS 416.580(1) does not begin to run until the Department's Personal Injury Liens Unit has actual notice of a settlement, compromise, or judgment.
(3) The lien will not attach to the amount of any judgment, settlement, or compromise to the extent of the attorney fees, costs and expenses which the Recipient incurred in order to obtain that judgment, settlement, or compromise.
(4) The lien will not attach to the amount of any judgment, settlement, or compromise to the extent of medical, surgical and hospital expenses personally incurred by such recipient on account of the personal injury giving rise to the claim, for which assistance was not provided or paid. For purposes of OAR 461-195-0301 to 461-195-0350, personally incurred expenses are limited to those expenses not covered by the Department, and for which the client is personally liable at the time of judgment, settlement, or compromise.
(5) The Department's lien must be satisfied or specific approval must be given by the Department's Personal Injury Liens Unit's staff before any portion of the claim judgment, settlement, or compromise is released to the recipient. There is a rebuttable presumption that the entire proceeds from any judgment, settlement, or compromise, are, unless otherwise identified, in payment for medical services. The Department shall have a cause of action against any person, public body, agency, or commission bound by the judgment, settlement, or compromise who releases any portion of the claim judgment, settlement, or compromise to the recipient before meeting this obligation.
Stat. Auth.: ORS 409.050, 411.060 & 416.510 - 416.610

Stats. Implemented: ORS 25.020, 25.080, 409.020, 411.060, 416.510-416.610

Hist.: AFS 62-1989, f. 10-5-89, cert. ef. 10-15-89; AFS 26-1993, f. 10-29-93, cert. ef. 11-1-93; Renumbered from 461-010-0105; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06; SSP 15-2006, f. 12-29-06, cert. ef. 1-1-07
461-195-0310
Notice of Claim or Action by Applicant or Recipient
(1) An applicant (see OAR 461-195-0301)
for or recipient (see OAR 461-195-0301) of assistance (see OAR 461-195-0301) who
has a claim (see OAR 461-195-0301) for a personal injury (see OAR 461-195-0301)
or begins an action (see OAR 461-195-0301) to enforce such claim — or the
attorney, personal representative (see OAR 407-014-0000), or authorized representative
(see OAR 410-200-0015 and 461-115-0090) for the applicant or recipient — must
notify the Department (see OAR 461-195-0301) and the CCO (see OAR 461-195-0301)
of the recipient, if the recipient is receiving services from the CCO, within ten
days of initiating that claim or action, unless the action was initiated prior to
the application for assistance.
(a) If the action was initiated
prior to the application for assistance, the applicant must notify the Department
at the time of application.
(b) The notification must
include:
(A) The names and addresses
of all parties against whom the action is brought or claim is made;
(B) A copy of each claim
demand; and
(C) If an action is brought,
the case number and the county where the action is filed.
(c) A parent, guardian, foster
parent, caretaker relative, attorney, personal representative, or authorized representative
must make the notification on behalf of an individual under the age of 18 or an
incompetent adult.
(2) Notification required
under section (1) of this rule must be sent to the Personal Injury Liens Unit, Office
of Payment Accuracy and Recovery, Department of Human Services, by mail or facsimile
(see sections (4) and (5) of this rule).
(3) Notices required by ORS
416.530 to be sent to the Oregon Health Authority (Authority) may be consolidated
with similar notices to the Department and sent to the Personal Injury Liens Unit.
A consolidated notice is considered notice to the Authority if the Authority’s
interest or claim in the matter is identified in the notice consistent with requirements
in the applicable statute. (See also OAR 943-001-0020(2)(e).)
(4) The mailing address for
the Personal Injury Liens Unit is: Personal Injury Liens Unit, PO Box 14512, Salem
OR 97309-0416.
(5) The facsimile number
for the Personal Injury Liens Unit is (503) 378-2577 and the telephone number is
(503) 378-4514.
(6) If an applicant for or
recipient of assistance— or the attorney, personal representative, or authorized
representative for the applicant or recipient — fails to give the notification
as required by this rule, the Department or the CCO of the recipient, if the recipient
is receiving services from the CCO, has a cause of action under ORS 416.610 against
the recipient for amounts received by the recipient pursuant to a judgment (see
OAR 461-195-0301), settlement (see OAR 461-195-0301), or compromise (see OAR 461-195-0301)
to the extent that the Department or the CCO could have had a lien against such
amounts had such notice been given. At least 30 days prior to commencing an action
under ORS 416.610, the Personal Injury Liens Unit and the CCO, if any, must consult
with each other.
Stat. Auth.: ORS 409.050, 410.070, 411.060,
411.070, 412.049, 413.033, 413.042, 413.085, 414.685
Stats. Implemented: ORS 409.050,
410.070, 411.060, 411.070, 412.049, 413.033, 413.042, 413.085, 414.685, 416.510,
416.530, 416.610
Hist.: AFS 62-1989, f. 10-5-89,
cert. ef. 10-15-89; AFS 26-1993, f. 10-29-93, cert. ef. 11-1-93; Renumbered from
461-010-0110; AFS 5-2002, f. & cert. ef. 4-1-02; AFS 13-2002, f. & cert.
ef. 10-1-02; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06; SSP 15-2006, f. 12-29-06,
cert. ef. 1-1-07; SSP 37-2013, f. 12-31-13, cert. ef. 1-1-14; SSP 25-2015, f. 9-29-15,
cert. ef. 10-1-15
461-195-0315
Notice of Determination of Lien by Department
Where the Department determines that it has a lien pursuant to OAR 461-195-0305, the Department shall:
(1) Notify the recipient of the Department's determination;
(2) File a notice of lien with the county recording officer as provided in ORS 416.550(a); and
(3) Send, by registered or certified mail, a certified copy of the Notice of Lien filed pursuant to section (2) of this rule to each person or public body, agency or commission against whom the claim is made or action is brought by or on behalf of the recipient.
Stat. Auth.: ORS 409.050, 411.060 & 416.510 - 416.610

Stats. Implemented: ORS 25.020, 25.080, 409.020 & 411.060

Hist.: AFS 62-1989, f. 10-5-89, cert. ef. 10-15-89; AFS 26-1993, f. 10-29-93, cert. ef. 11-1-93; Renumbered from 461-010-0115; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06
461-195-0320
Release of Lien for Future Medicals
(1) To qualify for consideration of a full or partial release of the State's share of the Department's lien (including the amount of an assigned lien) pursuant to ORS 416.600, the recipient must demonstrate, through documentation satisfactory to the Department, that:
(a) As a result of the personal injury for which the recipient has a claim, the recipient has a medical condition which will require future medical treatment;
(b) The nature of future medical treatment;
(c) The date on which the future medical treatment can reasonably be expected to occur;
(d) The anticipated cost of the future medical treatment;
(e) The amount of the settlement, compromise, or judgment awarded the recipient;
(f) Timely compliance by the recipient with the notification requirements; and
(g) Any other documentation requested by the Department.
(2) In considering a request for a full or partial release of a lien pursuant to ORS 416.600, the Department may take into account:
(a) Whether the recipient has provided the documentation required by section (1) of this rule;
(b) Whether the future medical treatment is likely to occur in the near future. The Department will evaluate this factor in light of the nature and certainty of the type of medical treatment anticipated;
(c) Whether the amount of the settlement, compromise, or judgment is sufficient to pay the future medicals and all or part of the Department's lien;
(d) Whether the recipient has or is likely to have another source for payment of the future medical expenses;
(e) The effect, if any, of the requested release on the continuing eligibility for future medical or public assistance of the recipient;
(f) Any other factor deemed relevant by the Department, including information received from a prepaid managed health care services organization;
(g) In the event the recipient is a minor, the provisions of OAR 461-195-0350 may apply.
(3) In no case will the Department consider a request for a partial or full lien release pursuant to ORS 416.600 unless the recipient and the liable third party have entered into a final, binding settlement or compromise agreement or the recipient has received a final judgment. In every case, the lien amount that represents the federal share of Title XIX or Title XXI payments must be repaid to the federal government and shall not be subject to partial or full lien release.
Stat. Auth.: ORS 416.510 - 416.600

Stats. Implemented: ORS 25.020, 25.080, 409.020 & 411.060

Hist.: AFS 14-1995, f. 6-30-95, cert. ef. 7-1-95; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06
461-195-0321
Assigning a Lien
(1) The Personal Injury Liens Unit may
assign a lien to a CCO (see OAR 461-195-0301) or prepaid managed care health services
organization (see 461-195-0301) for the amount of covered health services (as defined
in Oregon Health Plan Rules, OAR Division 410-141 and the General Rules, OAR Division
410-120, or other Department (see 461-195-0301) rules establishing covered medical
assistance) for a recipient (see 461-195-0301) arising from a personal injury (see
461-195-0301) during the period the Department paid a CCO or prepaid managed care
health services organization to provide covered health services to a recipient.
(2) A CCO or prepaid managed
care health services organization, within 30 days of receiving notice that an applicant
(see OAR 461-195-0301) or recipient has a claim (see 461-195-0301) or action (see
461-195-0301), must give notice to the Personal Injury Liens Unit, and provide additional
information as requested by the Personal Injury Liens Unit.
(3) A CCO or prepaid managed
care health services organization shall not use loan receipts (see OAR 461-195-0301),
trust agreements (see 461-195-0301), or similar arrangements to seek reimbursement
from an applicant, recipient, or third party.
(4) The assignment described
in section (1) of this rule is made only if the CCO or prepaid managed care health
services organization makes a request for an assignment from the Personal Injury
Liens Unit, after giving the notice required in section (2) of this rule.
(5) The amount of the lien
that may be assigned does not include amounts excluded from a lien according to
OAR 461-195-0305(3) and (4), 461-195-0320, or 461-195-0350.
(6) For purposes of ORS 416.510
to 416.610, assignment of the lien establishes the CCO or prepaid managed care health
services organization as a designee of the Department in relation to the lien, pursuant
to ORS 416.540(5), which designation shall include the following:
(a) As the Department’s
designee, the CCO or prepaid managed care health services organization is subject
to these rules in the pursuit of the assigned lien and any actions taken by the
CCO or prepaid managed care health services organization to settle, compromise (see
OAR 461-195-0301), or release the assigned lien.
(b) The CCO or prepaid managed
care health services organization shall copy the Personal Injury Liens Unit on all
documentation related to the assigned lien, including communications with the person
or public body, agency or commission against whom a claim is made or an action is
brought in relation to settlement (see OAR 461-195-0301), compromise, or release
of the assigned lien. This requirement may be met by listing the Personal Injury
Liens Unit on the "cc" portion of the documentation or certificate of service, and
sending a copy to the Personal Injury Liens Unit when the document is sent or filed.
(c) The Personal Injury Liens
Unit may require the use of forms and procedures related to the assignment of liens
and notices and the efficient administration of these rules to minimize redundancy
in communications with a recipient and the parties to a claim or action.
(7) The form of notice of
lien that may be assigned to a CCO or prepaid managed care health services organization
shall comply with ORS 416.560, with the CCO or prepaid managed care health services
organization assigned as the designee. Upon receiving assignment of a lien from
the Personal Injury Liens Unit, the CCO or prepaid managed care health services
organization shall perfect the lien as required by ORS 416.550. A CCO or prepaid
managed care health services organization with an assigned lien shall notify the
Personal Injury Liens Unit no later than 10 calendar days after filing the notice
of the lien.
(8) A CCO or prepaid managed
care health services organization with an assigned lien shall perfect the lien and
document actions taken to recover under the lien. Consequences for failure to comply
with requirements for perfecting the lien and recovering under the lien are the
responsibility of the CCO or prepaid managed care health services organization and
shall not prevent the Personal Injury Liens Unit from recovering amounts due the
Department pursuant to the lien or from the statutory assignment of right to payment
from the recipient.
(9) Immediately after a judgment
(see OAR 461-195-0301) has been rendered in favor of a recipient or a settlement
or compromise has been agreed upon, the person or public body, agency or commission
bound by such judgment, settlement, or compromise shall notify the Personal Injury
Liens Unit. If a CCO or prepaid managed care health services organization perfected
a lien, the person or public body, agency or commission shall notify the CCO or
prepaid managed care health services organization.
(a) If the CCO or prepaid
managed care health services organization receives such notification on an assigned
lien, the CCO or prepaid managed care health services organization shall provide
a copy to the Personal Injury Liens Unit within 10 calendar days of receipt.
(b) After notification, the
Personal Injury Liens Unit shall send a statement of the amount of the lien to the
person or public body, agency or commission by certified mail with return receipt.
(c) After notification, if
a CCO or prepaid managed care health services organization filed a notice of lien,
the CCO or prepaid managed care health services organization shall send a statement
of the amount of the lien to the person or public body, agency or commission.
(10) A lien assigned by the
Department to a CCO or prepaid managed care health services organization is subject
to release or compromise as described in OAR 461-195-0325.
Stat. Auth.: ORS 409.050, 411.060, 411.070,
413.033, 413.042, 416.350, 416.351, Or Laws 2013, ch 14, sec. 10
Stats. Implemented: ORS 409.050,
411.060, 411.070, 413.033, 413.042, 416.350, 416.351, 416.510, 416.540, 416.560,
416.570, Or Laws 2013, ch 14, sec. 10
Hist.: AFS 27-2001, f. 12-21-01,
cert. ef. 1-1-02; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06; SSP 15-2015, f. 3-30-15,
cert. ef. 4-1-15
461-195-0325
Release or Compromise of Lien
(1) If the Department has not assigned a lien to a prepaid managed care health services organization (organization) or if the organization failed to perfect its assigned lien, the Department may release or compromise its lien -- for the amount of the settlement, compromise, or judgment that is subject to the lien -- and distribute collections under its lien as follows:
(a) To the Department, an amount equal to the State share of Department's assistance expenditures for the amount of the settlement, compromise, or judgment that is subject to the lien.
(b) To the federal government, the federal share of the Department's assistance expenditures for the amount of the settlement, compromise, or judgment that is subject to the lien, pursuant to applicable law.
(c) To the recipient, any remaining amount after distributions provided for in subsections (a) and (b) of this section. The amount distributed to the recipient must be treated as income or resources consistent with applicable law.
(2) If the Department has assigned a lien to a prepaid managed care health services organization (organization) and the organization properly perfected its lien, the Department and the organization may release or compromise and distribute collections under the liens for the amount of the settlement, compromise, or judgment that is subject to the lien, consistent with OAR 461-195-0305(5), as follows:
(a) To the Department, an amount equal to the State share of assistance and the federal share of medical assistance expenditures for the amount of the settlement, compromise, or judgment that is subject to the lien.
(b) The Department will reimburse to the federal government, the federal share of the State assistance expenditures for the amount of the settlement, compromise, or judgment that is subject to the lien for which federal match was claimed by the Department.
(c) To the organization, the assistance expenditures subject to the lien by the organization except as otherwise provided in subsections (a) and (b) of this section.
(d) To the recipient, the amount remaining after the distributions provided for in subsections (a), (b), and (c) of this section. The amount distributed to the recipient must be treated as income or resources consistent with applicable law.
(e) As between the Department and the organization after the distributions provided for in subsections (a), (b), (c) and (d) of this rule, ORS 416.540(6) requires that the Department's lien must be satisfied first.
Stat. Auth.: ORS 409.050, 411.060 & 416.510 - 416.610

Stats. Implemented: ORS 25.020, 25.080, 409.020, 411.060, 416.510-416.610

Hist.: AFS 18-1991, f. 9-30-91, cert. ef. 10-1-91; AFS 27-2001, f. 12-21-01, cert. ef. 1-1-02; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06; SSP 15-2006, f. 12-29-06, cert. ef. 1-1-07
461-195-0350
Procedure Where Injured Recipient is a Minor
(1) Where the injured recipient is a minor, the Department may petition the court having probate jurisdiction in the county in which the minor lives to determine the sum that will be needed for the minor's complete physical rehabilitation. Except to the extent that of the federal share of the amount of a lien, the lien of the Department, including any lien assigned to a prepaid managed care health services organization, shall not attach to the amount of any sum needed for the rehabilitation.
(2) If the recipient is a minor, no payments to the Department in satisfaction of its lien and no payments to the recipient under a judgment, settlement, or compromise may be made until a hearing has taken place and the court has issued its order under ORS 416.590.
Stat. Auth.: ORS 409.050, 411.060 & 416.510 - 416.610

Stats. Implemented: ORS 25.020, 25.080, 409.020 & 411.060

Hist.: AFS 62-1989, f. 10-5-89, cert. ef. 10-15-89; AFS 26-1993, f. 10-29-93, cert. ef. 11-1-93; Renumbered from 461-010-0150; SSP 19-2005, f. 12-30-05, cert. ef. 1-1-06
461-195-0501
Definitions and Categories of Overpayments
This rule applies to benefits and services
delivered under chapters 410, 411, and 461 of the Oregon Administrative Rules.
(1) "Overpayment" means:
(a) A benefit or service
received by or on behalf of a client, or a payment made by the Department on behalf
of a client, that exceeds the amount for which the client is eligible.
(b) A payment made by the
Department and designated for a specific purpose which is spent by a person on an
expense not approved by the Department.
(A) In the REF program, there
is a rebuttable presumption that the full amount of cash benefits was improperly
spent in violation of OAR 461-165-0010(8)(a) when cash benefits are used or accessed
in:
(i) Any liquor store;
(ii) Any casino, gambling
casino, or gaming establishment; or
(iii) Any retail establishment
that provides adult-oriented entertainment in which performers disrobe or perform
in an unclothed state for entertainment.
(B) In the SFPSS and TANF
programs, there is a rebuttable presumption that the full amount of cash benefits
was improperly spent in violation of OAR 461-165-0010(9)(a) when cash benefits are
used or accessed in:
(i) Any liquor store;
(ii) Any casino, gambling
casino, or gaming establishment; or
(iii) Any retail establishment
that provides adult-oriented entertainment in which performers disrobe or perform
in an unclothed state for entertainment.
(c) A payment for child care
made by the Department to, or on behalf of, a client that:
(A) Is paid to an ineligible
provider;
(B) Exceeds the amount for
which a provider is eligible;
(C) Is paid when the client
was not engaged in an activity that made the client eligible for child care, such
as an activity of the JOBS program (see OAR 461-001-0025 and 461-190-0151 to 461-190-0401);
(D) Is paid when the client
was not eligible for child care benefits; or
(E) Has given an electronic
benefit transfer (EBT) card, card number, or personal identification number (PIN)
to a provider for the purpose of checking a child (see OAR 461-001-0000) in or out
from the provider's child care.
(d) A misappropriated payment
when a person cashes and retains the proceeds of a check from the Department on
which that person is not the payee and the check has not been lawfully endorsed
or assigned to the person.
(e) A benefit or service
provided for a need when that person is compensated by another source for the same
need and the person fails to reimburse the Department when required to do so by
law.
(f) A cash benefit received
by an individual in the GA or SFPSS programs for each month for which the client
receives a retroactive SSI lump sum payment.
(g) In the TA-DVS program,
a payment made by the Department to an individual or on behalf of an individual
when the individual intentionally and without intimidation or coercion by an abuser:
(A) Makes a false or misleading
statement or misrepresents, conceals, or withholds information for the purpose of
establishing eligibility (see OAR 461-001-0000) for or receiving a benefit from
the TA-DVS program; or
(B) Commits any act intended
to mislead or misrepresent, conceal, or withhold information for the purpose of
establishing eligibility for or receiving a benefit from the TA-DVS program.
(2) The Department may establish
an overpayment for the initial month (see OAR 461-001-0000) of eligibility under
circumstances including, but not limited to:
(a) The filing group (see
OAR 461-110-0310), ineligible student, or authorized representative (see OAR 461-115-0090)
withheld information;
(b) The filing group, ineligible
student, or authorized representative provided inaccurate information;
(c) The Department failed
to use income reported as received or anticipated in determining the benefits of
the filing group; or
(d) The error was due to
an error in computation or processing by the Department.
(3) In the OCCS Medical programs,
the Department may establish an overpayment for the budget month (see OAR 410-200-0015)
when the OCCS medical program household group (see OAR 410-200-0015) or authorized
representative (see OAR 410-200-0015) withheld or provided inaccurate information.
(4) Overpayments are categorized
as follows:
(a) An administrative error
overpayment is an overpayment caused by any of the following circumstances:
(A) The Department fails
to reduce, suspend, or end benefits after timely reporting by the filing group,
OCCS medical program household group, ineligible student, or authorized representative
(see OAR 461-115-0090 and 410-200-0015) of a change covered under OAR 461-170-0011
or 410-200-0235 and that reported change requires the Department to reduce, suspend,
or end benefits;
(B) The Department fails
to use the correct benefit standard;
(C) The Department fails
to compute or process a payment correctly based on accurate information timely provided
by the filing group, OCCS medical program household group, ineligible student, or
authorized representative;
(D) In the GA and SFPSS programs,
the Department fails to require a client to complete an interim assistance agreement;
or
(E) The Department commits
a procedural error that was no fault of the filing group, OCCS medical program household
group, ineligible student, or authorized representative.
(b) A client error overpayment
is any of the following:
(A) An overpayment caused
by the failure of a filing group, OCCS medical program household group, ineligible
student, or authorized representative to declare or report information or a change
in circumstances as required under OAR 461-170-0011 or 410-200-0235, including information
available to the Department, that affects the client's eligibility to receive benefits
or the amount of benefits.
(B) A client's unreduced
liability or receipt of unreduced benefits pending a contested case hearing decision
or other final order favorable to the Department.
(C) A client's failure to
return a benefit known by the client to exceed the correct amount.
(D) A client's use of a JOBS
or SFPSS program support payment (see OAR 461-190-0211) for other than the intended
purpose.
(E) A payment for child care
when the client was not engaged in an activity that made the client eligible for
child care, such as an activity of the JOBS program (see OAR 461-001-0025 and 461-190-0151
to 461-190-0401).
(F) A payment for child care
when the client was not eligible for child care benefits.
(G) The failure of a client
to pay his or her entire share of the cost of services or the participant fee (see
OAR 461-160-0610 and 461-160-0800) in the month in which it is due.
(H) An overpayment caused
by a client giving an electronic benefit transfer (EBT) card, card number, or personal
identification number (PIN) to a provider for the purpose of checking a child in
or out from the provider's child care.
(I) In the REF, SFPSS, and
TANF programs, an overpayment caused by the client using or accessing cash benefits
in any electronic benefit transaction in any liquor store; casino, gambling, or
gaming establishment; or retail establishment that provides adult-oriented entertainment
in which performers disrobe or perform in an unclothed state for entertainment (see
OAR 461-165-0010).
(c) A fraud overpayment is
an overpayment determined to be an intentional program violation (see OAR 461-195-0601
and 461-195-0611) or substantiated through a criminal prosecution.
(d) In the SNAP program,
a provider error overpayment is an overpayment made to a drug or alcohol treatment
center or residential care facility that acted as a client's authorized representative.
(e) In the child care program,
a provider error overpayment is a payment made by the Department on behalf of a
client to a child care provider when:
(A) Paid to an ineligible
provider; or
(B) The payment exceeds the
amount for which a provider is eligible.
(5) When an overpayment is
caused by both an administrative and client error in the same month, the Department
determines the primary cause of the overpayment and assigns as either an administrative
or client error overpayment.
(6) In the TANF and TA-DVS
programs, when an overpayment puts the client at greater risk of domestic violence
(see OAR 461-001-0000), the overpayment is waived (see OAR 461-135-1200).
(7) Except as provided in
section (8) of this rule, the Department establishes an overpayment when the following
thresholds are exceeded:
(a) Administrative error
overpayments concerning:
(A) Cash and child care programs,
when the amount is greater than $200;
(B) SNAP open case, when
the amount is greater than $100; and
(C) SNAP closed case, when
the amount is greater than $200.
(b) Client error overpayments
in:
(A) Cash and child care programs,
when the amount is greater than $200;
(B) SNAP open case, when
the amount is greater than $100;
(C) SNAP closed case, when
the amount is greater than $200;
(D) Medical programs, when
the amount is greater than $750.
(c) Provider error overpayments
in:
(A) Cash and child care programs,
when the amount is greater than $200;
(B) SNAP open case, when
the amount is greater than $100;
(C) SNAP closed case, when
the amount is greater than $200.
(8) There are no overpayment
thresholds in all of the following situations:
(a) In SNAP program, if the
overpayment was identified in a quality control review.
(b) In all programs, if the
overpayment was caused by a client's receipt of continuing benefits in a contested
case.
(c) In all programs, if the
overpayment was caused by possible fraud by a client or provider.
Stat. Auth.: ORS 409.050, 411.060, 411.070,
411.081, 411.404, 411.816, 412.001, 412.014, 412.049, HB 2089 (2013, Section 10)
Stats. Implemented: ORS 409.010,
411.060, 411.070, 411.081, 411.117, 411.404, 411.620, 411.640, 411.690, 411.816,
411.892, 412.001, 412.014, 412.049, 414.025, 416.350
Hist.: AFS 3-2000, f. 1-31-00,
cert. ef. 2-1-00; AFS 7-2001(Temp), f. & cert. ef. 4-4-01 thru 6-30-01; AFS
12-2001, f. 6-29-01, cert. ef. 7-1-01; SSP 33-2003, f. 12-31-03, cert. ef. 1-4-04;
SSP 14-2005, f. 9-30-05, cert. ef. 10-1-05; SSP 11-2007(Temp), f. & cert. ef.
10-1-07 thru 3-29-08; SSP 14-2007, f. 12-31-07, cert. ef. 1-1-08; SSP 15-2007(Temp),
f. 12-31-07, cert. ef. 1-1-08 thru 3-29-08; SSP 5-2008, f. 2-29-08, cert. ef. 3-1-08;
SSP 13-2009, f. & cert. ef. 7-1-09; SSP 38-2009, f. 12-31-09, cert. ef. 1-1-10;
SSP 25-2011, f. 9-30-11, cert. ef. 10-1-11; SSP 7-2013(Temp), f. & cert. ef.
3-25-13 thru 9-21-13; SSP 23-2013, f. & cert. ef. 9-20-13; SSP 36-2013(Temp),
f. & cert. ef. 11-1-13 thru 4-30-14; SSP 9-2014, f. & cert. ef. 4-1-14;
SSP 19-2015, f. & cert. ef. 7-1-15
461-195-0521
Calculation of Overpayments
This rule specifies how the Department
calculates an overpayment (see OAR 461-195-0501).
(1) The Department calculates
an overpayment by determining the amount the client received or the payment made
by the Department on behalf of the client that exceeds the amount for which the
client was eligible.
(2) When a filing group,
OCCS Medical programs household group (see OAR 410-200-0015), ineligible student,
or authorized representative (see OAR 461-115-0090 and 410-200-0015) fails to report
income, the Department calculates and determines the overpayment by assigning unreported
income to the applicable budget month without averaging the unreported income, except:
(a) A client's earned income
reported quarterly from the Employment Department is considered received by the
client in equal amounts during the months identified in the report.
(b) In the ERDC, MAA, MAF,
REF, SNAP, and TANF programs, a client's actual self-employment income is annualized
retrospectively to calculate the overpayment.
(c) In the OCCS Medical programs,
if actual income is not available for the months in which an overpayment occurred,
a client's actual self-employment income (see OAR 410-200-0015) received during
the year when an overpayment occurred is annualized to calculate an overpayment.
(3) When using prospective
budgeting (see OAR division 461-150) and the actual income differs from the amount
determined under OAR 461-150-0020(2), there may be a client error overpayment (see
OAR 461-195-0501) only when the filing group, ineligible student, or authorized
representative withheld information, failed to report a change, or provided inaccurate
information. In such a case, the Department uses the actual income to determine
the amount of an overpayment.
(4) When using anticipated
income for the OCCS Medical programs and the actual income differs from the amount
determined under OAR 410-200-0310, there may be a client error overpayment only
when the OCCS Medical programs household group (see OAR 410-200-0015) or authorized
representative (see OAR 410-200-0015) withheld information, failed to report a change,
or provided inaccurate information. In such a case, the Department uses the actual
income to determine the amount of an overpayment.
(5) When a filing group,
ineligible student, or authorized representative fails to report all earned income
within the reporting time frame, the earned income deduction (see OAR 461-160-0160,
461-160-0190, 461-160-0430, 461-160-0550, and 461-160-0552) is applied as follows:
(a) In the OSIP, OSIPM, QMB,
and REFM programs, the Department allows the earned income deduction.
(b) In the MAA, MAF, REF,
and TANF programs, the Department allows the earned income deduction when good cause
(see section (6) of this rule) exists.
(c) In the SNAP program,
no deduction is applied to earned income if the amount or source of income was not
timely reported.
(6) For the purposes of OAR
461-195-0501 to 461-195-0561, "good cause" means circumstances beyond the client's
reasonable control that caused the client to be unable to report income timely and
accurately.
(7) When support is retained:
(a) In the TANF program,
the amount of support (other than cash medical support) the Department of Justice
retains as a current reimbursement each month is added to other income to determine
eligibility (see OAR 461-001-0000). When a client is not eligible for TANF program
benefits, the overpayment is offset by the support the Department of Justice retains
as a current reimbursement.
(b) In the medical programs,
the amount of the cash medical support the Department retains each month is excluded
income and not used to determine eligibility for medical program benefits. When
a client has incurred a medical program overpayment, the overpayment is offset by
the amount of the cash medical support the Department retains during each month
of the overpayment.
(8) In the REF and TANF programs,
when a client directly receives support used to determine eligibility or calculate
benefits, the overpayment is:
(a) If still eligible for
REF or TANF program benefits, the amount of support the client received directly;
or
(b) If no longer eligible
for REF or TANF program benefits, the amount of program benefits the client received.
(9) When an overpayment occurs
due to the failure of an individual to reimburse the Department, when required by
law to do so, for benefits or services (including cash medical support) provided
for a need for which that individual is compensated by another source, the overpayment
is limited to the lesser of the following:
(a) The amount of the payment
from the Department;
(b) Cash medical support;
or
(c) The amount by which the
total of all payments exceeds the amount payable for such a need under the Department's
rules.
(10) Benefits paid during
a required notice period (see OAR 461-175-0050, 410-200-0120) are included in the
calculation of the overpayment when:
(a) The filing group, OCCS
Medical programs household group (see OAR 410-200-0015), ineligible student, or
authorized representative (see OAR 461-115-0090 and 410-200-0015) failed to report
a change within the reporting time frame under OAR 461-170-0011 or 410-200-0235;
and
(b) Sufficient time existed
for the Department to adjust the benefits to prevent the overpayment if the filing
group, OCCS Medical program household group (see OAR 410-200-0015), ineligible student,
or authorized representative (see OAR 461-115-0090 and OAR 410-200-0015) had reported
the change at any time within the reporting time frame.
(11) In the SNAP program:
(a) If the benefit group
(see OAR 461-110-0750) was categorically eligible, there is no overpayment based
on resources.
(b) For a filing group (see
OAR 461-110-0370) found eligible for SNAP program benefits under OAR 461-135-0505(1)(a)
to (c), and the actual income made the group ineligible for the related program,
the group remains categorically eligible for SNAP program benefits as long as the
eligibility requirement under OAR 461-135-0505(1)(d) is met. A benefit group of
one or two individuals would be entitled to at least the minimum SNAP program benefit
allotment under OAR 461-165-0060.
(c) For a filing group found
eligible for SNAP program benefits only under OAR 461-135-0505(1)(d), and the actual
income equals or exceeds 185 percent of the Federal Poverty Level, the filing group
is no longer categorically eligible. The overpayment is the amount of SNAP program
benefits incorrectly received.
(12) In the OSIP and OSIPM
programs, when a client does not pay his or her share of the cost of services (see
OAR 461-160-0610) or the OSIP-EPD or OSIPM-EPD program participant fee (see OAR
461-160-0800) in the month in which it is due, an overpayment is calculated as follows:
(a) All payments made by
the Department on behalf of the client during the month in question are totaled,
including but not limited to any payment for:
(A) Capitation;
(B) Long term care services;
(C) Medical expenses for
the month in question;
(D) Medicare buy-in (when
not concurrently eligible for an MSP);
(E) Medicare Part D;
(F) Mileage reimbursement;
(G) Special needs under OAR
461-155-0500 to 461-155-0710; and
(H) Home and community-based
care (see OAR 461-001-0030), including home delivered meals and non-medical transportation.
(b) Any partial or late liability
payment made by a client receiving home and community-based care in-home services
or participant fee paid by an OSIP-EPD or OSIPM-EPD program client is subtracted
from the total calculated under subsection (a) of this section. The remainder, if
any, is the amount of the overpayment.
(13) When a client's liability
is unreduced pending the outcome of a contested case hearing about that liability
the overpayment is the difference between the liability amount determined in the
final order and the amount, if any, the client has repaid.
(14) In the OCCS Medical
programs, OSIPM, QMB, and REFM programs if the client was not eligible for one program,
but during the period in question was eligible for another program:
(a) With the same benefit
level, there is no overpayment.
(b) With a lesser benefit
level, the overpayment is the amount of medical program benefit payments made on
behalf of the client exceeding the amount for which the client was eligible.
(15) When an overpayment
is caused by administrative error (see OAR 461-195-0501), any overpayment of GA,
OSIP, REF, SFPSS, or TANF program benefits is not counted as income when determining
eligibility for the GAM, OCCS Medical programs, OSIPM, and REFM programs.
(16) Credit against an overpayment
is allowed as follows:
(a) In the GA, REF, and TANF
programs, a credit is allowed for a client's payment for medical services made during
the period covered by the overpayment, in an amount not to exceed the Department
fee schedule for the service, but credit is not allowed for an elective procedure
unless the Department authorized the procedure prior to its completion.
(b) In the SNAP program,
if the overpayment was caused by unreported earned income, verified child care costs
are allowed as a credit to the extent the costs would have been deductible under
OAR 461-160-0040 and 461-160-0430.
(c) In the SFPSS and TANF
programs, if the overpayment is caused by reported earned income, a credit is allowed
for the Post-TANF grant if the client meets eligibility under OAR 461-135-1250 and
the client has received less than 12 months of Post-TANF program benefits.
(d) In all programs, for
an underpayment of benefits.
(17) In the SNAP program,
in compliance with the American Recovery and Reinvestment Act of 2009, effective
April 1, 2009 through September 30, 2009, the amount between the normal Thrifty
Food Plan (TFP) benefit amount under this section and the increased TFP benefit
amount under OAR 461-155-0190 is not counted in the overpayment amount unless the
filing group was ineligible for SNAP program benefits. [Table not included. See
ED. NOTE.]
(18) In the REF program,
when an individual used or accessed cash benefits in violation of OAR 461-165-0010(8)(a),
the amount of the overpayment is the amount of cash benefits the client used or
accessed.
(19) In the SFPSS and TANF
programs, when an individual used or accessed cash benefits in violation of OAR
461-165-0010(9)(a), the amount of the overpayment is the amount of cash benefits
the client used or accessed.
[ED. NOTE: Tables referenced are not included in rule text. Click here for PDF copy of table(s).]
Stat. Auth.: ORS 409.050,
411.060, 411.070, 411.404, 411.660, 411.706, 411.816, 412.014, 412.049, 412.124,
414.231, HB 2089 (2013, Section 10)
Stats. Implemented: ORS 409.010,
411.060, 411.070, 411.404, 411.620, 411.630, 411.635, 411.640, 411.660, 411.690,
411.706, 411.816, 412.014, 412.049, 412.124, 414.231, 416.350
Hist.: AFS 3-2000, f. 1-31-00,
cert. ef. 2-1-00; AFS 25-2000, f. 9-29-00, cert. ef. 10-1-00; AFS 6-2001, f. 3-30-01,
cert. ef. 4-1-01; AFS 27-2001, f. 12-21-01, cert. ef. 1-1-02; AFS 22-2002, f. 12-31-02,
cert ef. 1-1-03; SSP 23-2003, f. & cert. ef. 10-1-03; SSP 4-2005, f. & cert.
ef. 4-1-05; SSP 10-2006, f. 6-30-06, cert. ef. 7-1-06; SSP 20-2003, f. & cert.
ef. 8-15-03; SSP 7-2007, f. 6-29-07, cert. ef. 7-1-07; SSP 14-2007, f. 12-31-07,
cert. ef. 1-1-08; SSP 8-2008, f. & cert. ef. 4-1-08; SSP 6-2009(Temp), f. &
cert. ef. 4-1-09 thru 9-28-09; SSP 13-2009, f. & cert. ef. 7-1-09; SSP 28-2009,
f. & cert. ef. 10-1-09; SSP 38-2009, f. 12-31-09, cert. ef. 1-1-10; SSP 17-2011,
f. & cert. ef. 7-1-11; SSP 25-2011, f. 9-30-11, cert. ef. 10-1-11; SSP 13-2013,
f. & cert. ef. 7-1-13; SSP 17-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13;
SSP 26-2013, f. & cert. ef. 10-1-13; SSP 36-2013(Temp), f. & cert. ef. 11-1-13
thru 4-30-14; SSP 9-2014, f. & cert. ef. 4-1-14; SSP 19-2015, f. & cert.
ef. 7-1-15
461-195-0541
Liability for Overpayments
(1) In all programs except the OCCS
Medical, OSIP, OSIPM, QMB, REFM, and SNAP programs or a child care program, the
following persons are liable for repayment of an overpayment (see OAR 461-195-0501):
(a) Each individual in the
filing group or required to be in the filing group and the payee when the overpayment
was incurred, except an individual who did not reside with and did not know he or
she was included in the filing group.
(b) A caretaker relative
(see OAR 461-001-0000) and his or her spouse (see 461-001-0000) who were not part
of, but resided with, the filing group when the overpayment was incurred.
(c) A parent (see OAR 461-001-0000)
or caretaker relative of a child (see 461-001-0000) in the benefit group (see 461-110-0750)
and the spouse of the parent or caretaker relative if the parent, caretaker relative,
or spouse was a member of or resided with the filing group when the overpayment
was incurred.
(d) An individual determined
liable for an overpayment remains liable when the individual becomes a member of
a new filing group.
(e) An authorized representative
(see OAR 461-115-0090) when the authorized representative gave incorrect or incomplete
information or withheld information resulting in the overpayment.
(2) In the OCCS Medical and
REFM programs, the following persons are liable for repayment of an overpayment:
(a) Each individual in the
filing group, the OCCS Medical programs household group (see OAR 410-200-0015),
or required to be in the filing group and the payee when the overpayment was incurred,
except an individual who:
(A) Was a child or dependent
child (see OAR 461-001-0000) at the time of the overpayment; or
(B) Did not reside with and
did not know he or she was included in the filing group.
(b) A caretaker relative
and his or her spouse who were not part of, but resided with, the filing group or
OCCS Medical programs household group (see OAR 410-200-0015) when the overpayment
was incurred.
(c) A parent or caretaker
relative of a child in the filing group or OCCS Medical programs household group
(see OAR 410-200-0015) and the spouse of the parent or caretaker relative if the
parent, caretaker relative, or spouse was a member of or resided with the filing
group or OCCS Medical programs household group when the overpayment was incurred.
(d) An authorized representative
(see OAR 461-001-0000 and 410-200-0015) when the authorized representative gave
incorrect or incomplete information or withheld information that resulted in the
overpayment.
(3) In a child care program:
(a) An overpayment caused
by administrative error is collectible as follows:
(A) The provider is liable
for a provider overpayment made on behalf of a client eligible for child care payments.
(B) Each adult in the filing
group or required to be in the filing group is liable for an overpayment if the
client was not eligible for the payment.
(b) Each adult in the filing
group or required to be in the filing group is liable for a client overpayment,
and a provider is liable for an overpayment caused by the provider. The client and
provider are jointly and severally liable for an overpayment caused by both. In
the case of an alleged provider overpayment, a provider's failure to provide contemporaneous
records of care provided creates a rebuttable presumption that the care was not
provided.
(c) An adult who cosigned
an application with a minor provider applicant is liable for an overpayment incurred
by the minor provider.
(4) In the GA, GAM, OSIP,
OSIPM, and QMB programs, the following persons are liable for repayment of an overpayment:
(a) Each individual in the
filing group or required to be in the filing group and the payee when the overpayment
was incurred, except an individual who:
(A) Was a child or dependent
child at the time of the overpayment; or
(B) Did not reside with and
did not know he or she was included in the filing group.
(b) A caretaker relative
and his or her spouse who were not part of, but resided with, the filing group when
the overpayment was incurred.
(c) A parent or caretaker
relative of a child in the filing group and the spouse of the parent or caretaker
relative if the parent, caretaker relative, or spouse was a member of or resided
with the filing group when the overpayment was incurred.
(d) An authorized representative
when the authorized representative knowingly gave incorrect or incomplete information
or intentionally withheld information that resulted in the overpayment.
(5) In the SNAP program,
the following persons are liable for repayment of an overpayment or a claim that
results from trafficking (see OAR 461-195-0601(2)) of SNAP benefits:
(a) The primary person (see
OAR 461-001-0015) of any age, an ineligible student in the household, and all adults
(see OAR 461-001-0015) who were members of or required to be in the filing group
(see 461-110-0370) when excess benefits were issued.
(b) A sponsor of a non-citizen
household member if the sponsor is at fault, for payments prior to November 21,
2000.
(c) A drug or alcohol treatment
center or residential care facility that acted as the authorized representative
of the client.
(6) Except as provided otherwise
in section (7) of this rule, in all programs, both a non-citizen and the sponsor
of the non-citizen are liable for an overpayment incurred if the overpayment results
from the failure of the sponsor to provide correct information (see OAR 461-145-0820
to 461-145-0840). If the sponsor had good cause (see 461-195-0521(5)) for withholding
the information, the sponsor is not liable for the overpayment.
(7) In the SNAP program,
the sponsor of a non-citizen is not liable under section (6) of this rule for payments
on or after November 21, 2000.
(8) In the OCCS medical programs,
the November 2013 amendments to OAR 461-195-0501, 461-195-0521, 461-195-0541, and
461-195-0561 apply as of October 1, 2013.
Stat. Auth.: ORS 409.050, 411.060, 411.404,
411.816, 412.014, 412.049, 2013 HB 2089 Sec. 10
Stats. Implemented: ORS 409.010,
411.060, 411.087, 411.404, 411.630, 411.635, 411.640, 411.690, 411.816, 412.014,
412.049, 416.350
Hist.: AFS 3-2000, f. 1-31-00,
cert. ef. 2-1-00; AFS 17-2000, f. 6-28-00, cert. ef. 7-1-00; SSP 23-2003, f. &
cert. ef. 10-1-03; SSP 4-2005, f. & cert. ef. 4-1-05; SSP 14-2005, f. 9-30-05,
cert. ef. 10-1-05; SSP 15-2006, f. 12-29-06, cert. ef. 1-1-07; SSP 4-2007, f. 3-30-07,
cert. ef. 4-1-07; SSP 38-2009, f. 12-31-09, cert. ef. 1-1-10; SSP 25-2011, f. 9-30-11,
cert. ef. 10-1-11; SSP 7-2013(Temp), f. & cert. ef. 3-25-13 thru 9-21-13; SSP
13-2013, f. & cert. ef. 7-1-13; SSP 14-2013(Temp), f. & cert. ef. 7-1-13
thru 12-28-13; SSP 23-2013, f. & cert. ef. 9-20-13; SSP 36-2013(Temp), f. &
cert. ef. 11-1-13 thru 4-30-14; SSP 9-2014, f. & cert. ef. 4-1-14
461-195-0551
Methods of Recovering Overpayments
(1) In addition to judicial process,
the Department may recover an overpayment (see OAR 461-195-0501) through an agreed
repayment plan, reduction in benefits, voluntary payment from the client or authorized
representative (see OAR 461-115-0090), and offset of the debt.
(2) The Department reduces
current benefits to collect an overpayment only as follows:
(a) In the GA and OSIP programs,
the Department may recover an overpayment by reducing cash benefit payments by the
lesser of the following:
(A) The total overpayment
amount;
(B) The total benefit amount;
or
(C) Ten percent of the client's
total benefit requirement at the standard of need.
(b) In the REF, SFPSS, and
TANF programs, the Department:
(A) Allows only half of the
50 percent earned income deduction described in OAR 461-160-0160.
(B) Reduces the benefit payment
by 10 percent of the total benefit requirement of the benefit group (see OAR 461-110-0750)
at the adjusted income payment standard. The reduced benefit payment after such
reduction, when combined with all other income may not be less than 90 percent of
the benefit group's adjusted income payment standard for a family with no income.
In the TANF program, the cooperation incentive (see OAR 461-135-0210) is not included
in the calculations prescribed by this paragraph.
(c) In the SNAP program,
unless the Department and the client agree to a repayment plan and the filing group
(see OAR 461-110-0370) meets the terms of the plan, the Department collects an overpayment
from a liable member of a filing group participating in the SNAP program by reducing
the SNAP program benefit allotment of the benefit group each month as follows:
(A) For an overpayment caused
by client error (see OAR 461-195-0501) or administrative error (see OAR 461-195-0501),
10 percent of the group's monthly allotment or $10 a month, whichever is greater.
(B) For an overpayment caused
by an IPV (see OAR 461-195-0601), 20 percent of the group's monthly entitlement
or $20 a month, whichever is greater.
(3) In the child care programs:
(a) The Department may not
recover an overpayment through reduction of a client's child care program benefits.
(b) When a child care program
provider is liable for a child care overpayment (see OAR 461-195-0501) the Department
may recover the child care overpayment by reducing up to 100 percent any future
child care payment for which the provider bills the Department.
(4) The Department may recover
an overpayment by offset as follows:
(a) Using the collection
services provided by the Department of Revenue and any other state or federal agency
to collect a liquidated claim established by:
(A) A court judgment.
(B) A confession of judgment.
(C) A document signed or
acknowledged by the debtor that acknowledges the debt, such as:
(i) The Department-designated
form to acknowledge an IPV.
(ii) A plea bargain agreement.
(iii) Any other document
acknowledging the overpayment.
(D) A written notification
of overpayment from the Department to the debtor, advising the debtor of the basis
and amount of the overpayment and the right to request a hearing, if the debtor
has exhausted his or her rights of administrative appeal.
(E) A written communication
from the debtor acknowledging the debt.
(b) The amount of any retroactive
payment or restoration of lost benefits otherwise payable to the client, when the
retroactive payment corrects a prior underpayment of benefits in the program in
which the overpayment occurred.
(c) Through use of a warrant
authorized by ORS 411.703. Upon issuance of the warrant, the Department may issue
a notice of garnishment in accordance with ORS 18.854.
(d) In the SNAP program,
by offsetting the full amount of the overpayment against restored benefits owed
to the benefit group or to another benefit group that a liable member of the overpaid
group has joined.
(5) A confession of judgment
is used in the case of a client error (see OAR 461-195-0501) overpayment. The Department
may not file a confession of judgment while the client receives public assistance
or medical assistance, and may file one only if the client has refused to agree
to or has defaulted on a repayment plan.
(6) The Department may not
take collection action against a filing group while a member of the filing group
is working under a JOBS Plus agreement.
Stat. Auth.: ORS 411.060, 411.660, 411.816,
412.049
Stats. Implemented: ORS 18.854,
18.900, 411.630, 411.635, 411.660, 411.703, 411.816, 412.049 & 416.350
Hist.: AFS 3-2000, f. 1-31-00,
cert. ef. 2-1-00; AFS 25-2001, f. & cert. ef. 11-1-01 thru 12-31-01; AFS 27-2001,
f. 12-21-01, cert. ef. 1-1-02; SSP 8-2004, f. & cert. ef. 4-1-04; SSP 11-2007(Temp),
f. & cert. ef. 10-1-07 thru 3-29-08; SSP 14-2007, f. 12-31-07, cert. ef. 1-1-08;
SSP 15-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 3-29-08; SSP 5-2008, f. 2-29-08,
cert. ef. 3-1-08; SSP 38-2009, f. 12-31-09, cert. ef. 1-1-10; SSP 37-2013, f. 12-31-13,
cert. ef. 1-1-14
461-195-0561
Compromise of Overpayment Claim
This rule specifies when and how the
Department may compromise an overpayment (see OAR 461-195-0501) claim.
(1) The Department may consider
a request to compromise an overpayment claim only if the estimated administration
and collection costs necessary to collect the account in full likely exceed the
current balance of the overpayment.
(2) The following limitations
apply to the compromise of an overpayment claim:
(a) The authority of the
Department to compromise may be limited by federal or state law.
(b) The Department may compromise
a claim only once it is a liquidated claim (see OAR 461-195-0551).
(c) The Department may compromise
a claim only if the requester has made a good faith effort to repay the overpayment.
(d) The Department may not
compromise:
(A) A fraud overpayment claim;
(B) Any overpayment claim,
unless 36 months have passed since the requester initially was notified of the overpayment;
(C) An overpayment claim
if the debtor has the ability to repay the overpayment in full within 36 months
of the request date.
(D) An overpayment claim
for less than 75 percent of the total amount of the claim.
(E) An overpayment claim
if the debtor is a member, currently or in the previous 12 months, of a filing group
or OCCS medical program household group (see OAR 410-200-0015) that received benefits
under the program in which the overpayment occurred.
(F) A child care provider
overpayment claim if the provider, currently or in the previous 12 months, received
a direct provider payment for child care under division 165 of this chapter of rules.
(3) The Department may allow
a compromised claim to be paid in installments over a period not to exceed 90 days.
(4) During the 12 months
following the date of the compromise agreement, the Department reserves the right
to collect the original unmitigated claim through benefit reduction under OAR 461-195-0551.
Stat. Auth.: ORS 409.050, 411.060, 411.404,
411.816, 412.014, 412.049, 2013 HB 2089 Sect. 10
Stats. Implemented: ORS 409.010,
411.060, 411.404, 411.635, 411.816, 412.014, 412.049, 416.350
Hist.: AFS 34-2000, f. 12-22-00,
cert. ef. 1-1-01; SSP 33-2003, f. 12-31-03, cert. ef. 1-4-04; SSP 10-2006, f. 6-30-06,
cert. ef. 7-1-06; SSP 11-2007(Temp), f. & cert. ef. 10-1-07 thru 3-29-08; SSP
5-2008, f. 2-29-08, cert. ef. 3-1-08; SSP 38-2009, f. 12-31-09, cert. ef. 1-1-10;
SSP 36-2013(Temp), f. & cert. ef. 11-1-13 thru 4-30-14; SSP 9-2014, f. &
cert. ef. 4-1-14
461-195-0601
Intentional Program Violations; Defined
(1) In the child care programs, a provider
commits an intentional program violation (IPV) by intentionally making a false or
misleading statement or misrepresenting, concealing, or withholding information
related to his or her request to be eligible for a child care payment under OAR
461-165-0180 or a claim for a child care payment.
(2) In the SNAP program:
(a) An individual commits
an intentional program violation by:
(A) Making a false or misleading
statement or misrepresenting, concealing or withholding a fact relating to the use,
presentation, transfer, acquisition, receipt, possession, or trafficking (see OAR
461-195-0601(2)(b)) of SNAP benefits; or
(B) Committing any act that
constitutes a violation of the Food Stamp Act, the SNAP program regulations, or
any state statute relating to the use, presentation, transfer, acquisition, receipt,
possession, or trafficking of SNAP benefits.
(b) "Trafficking" means any
of the following:
(A) The buying, selling,
stealing, or other exchange of SNAP benefits for cash or consideration other than
eligible food, either directly or indirectly, in complicity or collusion with others
or acting alone.
(B) The exchange of firearms,
ammunition, explosives, or controlled substances (as defined in section 802 of title
21, United States Code), for SNAP benefits.
(C) Purchasing a product
with SNAP benefits that has a container return deposit with the intent of obtaining
cash by intentionally discarding the product and returning the container for the
deposit amount.
(D) Purchasing a product
with SNAP benefits with the intent of obtaining cash or consideration other than
eligible food by intentionally reselling the product purchased with SNAP benefits.
(E) Intentionally purchasing
products originally purchased with SNAP benefits in exchange for cash or consideration
other than eligible food.
(3) In the SFPSS program,
an individual commits an intentional program violation by intentionally:
(a) Making a false or misleading
statement or misrepresenting, concealing, or withholding a fact for the purpose
of establishing or maintaining eligibility (see OAR 461-001-0000) for SFPSS or increasing,
or preventing a reduction in, the amount of the SFPSS grant; or
(b) Committing any act intended
to mislead or to conceal or withhold information for the purpose of establishing
or maintaining eligibility for SFPSS or increasing, or preventing a reduction in,
the amount of the SFPSS grant.
(4) In the TANF program,
an individual commits an intentional program violation by intentionally:
(a) Making a false or misleading
statement or misrepresenting, concealing, or withholding a fact for the purpose
of establishing or maintaining eligibility for TANF or increasing, or preventing
a reduction in, the amount of the TANF grant; or
(b) Committing any act intended
to mislead or to conceal or withhold information for the purpose of establishing
or maintaining eligibility for TANF or increasing, or preventing a reduction in,
the amount of the TANF grant.
Stat. Auth.: ORS 411.060, 411.660, 411.816,
412.014, 412.049
Stats. Implemented: ORS 411.060,
411.630, 411.635, 411.660, 411.816, 412.014, 412.049
Hist.: AFS 3-2000, f. 1-31-00,
cert. ef. 2-1-00; SSP 8-2004, f. & cert. ef. 4-1-04; SSP 11-2007(Temp), f. &
cert. ef. 10-1-07 thru 3-29-08; SSP 5-2008, f. 2-29-08, cert. ef. 3-1-08; SSP 7-2013(Temp),
f. & cert. ef. 3-25-13 thru 9-21-13; SSP 23-2013, f. & cert. ef. 9-20-13;
SSP 19-2015, f. & cert. ef. 7-1-15
461-195-0611
Intentional Program Violations; Establishment and Appeal
(1) In the ERDC, SNAP, and TANF programs, an IPV is established by a state or federal court, by an administrative agency in a contested case, or by a person signing the designated form acknowledging the IPV and waiving the right to an administrative hearing. If the IPV will be established in a contested case, the Department initiates the IPV hearing.
(2) Except as provided in section (3) of this rule, there is no administrative appeal after a person waives the right to an IPV hearing and the penalty may not be changed by subsequent administrative action.
(3) A person who waives the right to an IPV hearing may seek relief in court or request a contested case hearing on the sole issue of whether the waiver was signed under duress (see OAR 461-025-0310). If there is a determination that the waiver was signed under duress, the initial IPV penalty is void, and:
(a) If a court determines that a waiver was signed under duress, the court may determine whether an IPV occurred and the amount of the penalty.
(b) If an administrative law judge determines that a waiver was signed under duress, the Department may initiate an IPV hearing to determine whether an IPV occurred and the amount of the penalty.
Stat. Auth.: ORS 411.060, 411.095, 411.816, 412.049

Stats. Implemented: ORS 411.060, 411.095, 411.816, 412.049

Hist.: AFS 3-2000, f. 1-31-00, cert. ef. 2-1-00; AFS 6-2001, f. 3-30-01, cert. ef. 4-1-01; SSP 14-2005, f. 9-30-05, cert. ef. 10-1-05; SSP 14-2006, f. 9-29-06, cert. ef. 10-1-06; SSP 15-2006, f. 12-29-06, cert. ef. 1-1-07
461-195-0621
Intentional Program Violations; Penalties and Liability for Overpayments
(1) Disqualification penalties resulting
from intentional program violations and other violations of law are listed in this
rule. An individual may be subject to disqualification for an intentional program
violation (IPV) (see OAR 461-195-0601) only if the individual was advised of the
disqualification penalties prior to committing the IPV. A disqualification established
in another state or established in the Food Distribution Program on Indian Reservations
continues in effect in Oregon.
(2) In the ERDC program,
if an IPV is established against an individual through a contested case hearing,
a waiver of the right to hearing, or by a state or federal court, that individual
is liable for repayment to the Department of the full amount of overpayment (see
OAR 461-195-0501) the Department has established. The amount of restitution to the
Department ordered by a court as part of a criminal proceeding does not lower the
amount owed to the Department. Payments of restitution to the Department are credited
against the amount owed. A client is not subject to an IPV disqualification but
is still required to repay overpayment amounts.
(3) A child care provider
found to have committed an IPV is ineligible for payment for child care as follows:
(a) A child care provider
with an IPV established between April 1, 2001 and September 30, 2005 is permanently
disqualified to receive payment.
(b) A child care provider
who has incurred an overpayment established as an IPV claim after September 30,
2005 is ineligible for payment:
(A) For six months and until
the full amount of the overpayment is paid; or
(B) Permanently, if the Child
Care Program Manager finds that such ineligibility is in the public interest. The
following is a non-exclusive list of reasons that support a determination of permanent
ineligibility: safety concerns; or, the likelihood of future violations; or, the
degree of egregiousness of any of the established IPVs; or, the degree of primary
involvement in the violation by the provider.
(4) In the SNAP and TANF
programs, when an IPV is established against an individual through a contested case
hearing, a waiver of the right to hearing, or by a state or federal court:
(a) That individual is liable
for repayment to the Department of the full amount of overpayment the Department
has established, regardless of any restitution ordered by a court.
(b) Except as otherwise set
forth in this section, the individual is disqualified from receiving benefits in
the program in which the IPV was committed for a period of 12 calendar months for
the first IPV, 24 calendar months for the second IPV, and permanently for the third
IPV.
(c) An individual found by
a federal, state, or local court to have traded a controlled substance for SNAP
benefits is disqualified from participation in the SNAP program as follows:
(A) For a period of two years
upon the first occasion.
(B) Permanently upon the
second occasion.
(d) An individual found by
a federal, state, or local court to have traded firearms, ammunition, or explosives
for SNAP benefits is permanently disqualified from participation in the SNAP program.
(e) An individual convicted
of trafficking (see OAR 461-195-0601) benefits for a value of $500 or more is permanently
disqualified from participation in the SNAP program.
(f) An individual is disqualified
for a 10-year period, except if permanently disqualified under subsection (b) of
this section, from receiving benefits in the program in which the individual committed
fraud if the individual:
(A) In TANF program:
(i) Is convicted in state
or federal court of having made a fraudulent statement or representation with respect
to the place of residence of the individual in order to receive assistance simultaneously
from two or more states under programs that are funded under Title IV or XIX of
the Social Security Act; or
(ii) Is found in an IPV hearing
or admits, in a written waiver of the right to an IPV hearing, to having made a
fraudulent statement or representation with respect to the identity or place of
residence of the individual in order to receive benefits simultaneously from two
or more states.
(B) In the SNAP program,
is found to have or admits to having made a fraudulent statement or representation
with respect to the identity or place of residence of the individual in order to
receive multiple SNAP benefits simultaneously.
(5) If the TANF grant is
affected by the IPV penalty imposed under this rule, eligibility (see OAR 461-001-0000)
for and the level of SNAP benefits are determined in accordance with OAR 461-145-0105.
(6) The Department issues
notice of disqualification in accordance with OAR 461-175-0220. The disqualification
provided for in this rule begins the first of the month following the month in which
the notice period ends.
(7) Once a disqualification
period begins, it continues uninterrupted until completed, regardless of the eligibility
of the filing group (see OAR 461-110-0310) of the disqualified individual.
Stat. Auth.: ORS 409.050, 411.060, 411.816,
412.049
Stats. Implemented: ORS 409.010,
411.060, 411.816, 412.049
Hist.: AFS 3-2000, f. 1-31-00,
cert. ef. 2-1-00; AFS 6-2001, f. 3-30-01, cert. ef. 4-1-01; SSP 8-2004, f. &
cert. ef. 4-1-04; SSP 17-2004, f. & cert. ef. 7-1-04; SSP 14-2005, f. 9-30-05,
cert. ef. 10-1-05; SSP 6-2006, f. 3-31-06, cert. ef. 4-1-06; SSP 14-2006, f. 9-29-06,
cert. ef. 10-1-06; SSP 13-2009, f. & cert. ef. 7-1-09; SSP 25-2011, f. 9-30-11,
cert. ef. 10-1-11; SSP 7-2013(Temp), f. & cert. ef. 3-25-13 thru 9-21-13; SSP
23-2013, f. & cert. ef. 9-20-13; SSP 19-2015, f. & cert. ef. 7-1-15

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