United Council on Welfare Fraud
Strengthening Integrity in our Public Assistance Programs
FNS Program Development Division
SNAP, FNS, USDA
3101 Park Center Drive
Alexandria, VA 22302
Dear Ms. Kline:
This letter is in response to the public call for comments on USDA/FNS Proposed Rule “Clarification of Eligibility of Fleeing Felons” (RIN 0584-AE01, 7 CFR Parts 272 and 273).
The United Council on Welfare Fraud (UCOWF), an international organization of fraud investigators, administrators, prosecutors and collection agents, and the National Association of State Welfare Fraud Directors (NASWFD) have many concerns with this proposed rule for the following reasons:
This proposed rule is not written to address the majority of SNAP fleeing felons and probation/parole violator situations but, rather, a minority of both. The majority of fleeing felons have failed to appear in court and/or have fled their jurisdiction to avoid arrest. The intent of the original provision contained in USDA regulation 7 CFR 273.11(n) is clear:
(n) Fleeing felons and probation or parole violators. Individuals who are fleeing to avoid prosecution or custody for a crime, or an attempt to commit a crime, that would be classified as a felony (or in the State of New Jersey, a high misdemeanor) or who are violating a condition of probation or parole under a Federal or State law shall not be considered eligible household members. The income and resources of the ineligible member shall be handled in accordance with (c)(1) of this section.
This provision was intended to prevent taxpayers’ dollars from supporting unlawful actions. USDA/FNS recognized a felony as a serious enough offense that was required to be resolved before federal benefits could be issued. The proposed rule, in its modification of this regulation, is unrealistic in its assumptions about these populations, and places extreme burden not only on the agency but on law enforcement. Yet, at the same time, the proposed rule removes individual responsibility and accountability.
We would like to address comments quoted in the justification for these changes. Those made by Representative Baca and Senator Harkin suggested that agencies often pursue individuals with “minor infractions” that are “years old” that law enforcement has “no interest in pursuing”. State agencies take great care to determine all levels of eligibility prior to removing individuals or taking adverse action in a case. Even when an agency has reason to believe that there is a felony warrant for a person, every step is taken to ascertain any and all information about the individual and the warrant. Speaking to the term “minor infractions”, felony offenses are crimes against people and property, such as assault, kidnapping, rape, robbery and arson. These are hardly minor offenses.
ISSUE - “ACTIVELY SEEKING”
First and foremost, we do not believe that fleeing felons should be allowed access to public benefits simply because law enforcement agencies are not provided the manpower and monetary budgets to cross counties and states to chase and capture fleeing felons and probation/parole violators.
- The determination of a statute of limitations on crimes in order for applicants/recipients to receive SNAP benefits is not up to USDA/FNS. This is the jurisdiction of state and federal courts.
- The requirement that law enforcement agencies be mandated a 20- and 30-day time limit to act on their warrant is an undue and unjustified burden on law enforcement agencies.
- Fleeing felons and probation/parole violators made the informed decision to leave the jurisdiction in question and found the means to relocate. It is not unreasonable to expect them to return to that jurisdiction and let the courts determine their guilt for the criminal action.
We therefore believe the definition of “actively seeking” suffices at the existence of an outstanding warrant that is confirmed by oral or written contact with law enforcement in the wanting jurisdiction.
ISSUE - DISCOVERING THE WARRANT
There are numerous ways of discovering that there is a warrant: a) data matching; b) law enforcement request for information; c) self-declaration and d) citizen reports that an applicant/recipient has indicated to the citizen that there is a felony warrant for the applicant/recipient’s arrest. If the law enforcement agency “had no interest in the individual”, the wanting agency would not have filed a complaint for the warrant or documented the violation in the first place.
Discovery through Data Matching
Agencies run data matches between their SNAP populations and the NCIC database, as well as with their own state felon databases.
Comment is made in the proposed rule that data match information “may be unreliable”, and that applicants/recipients with similar names or those who have been the victim of identity theft “may lead to erroneous denials or terminations”. This remote possibility of error seems insufficient justification for the proposed rule changes. Indeed, 7 CFR 273.6(f) requires that agencies use SSN data matching to “determine the accuracy and/or reliability of information given by households”.
When implementing any SNAP provisions and/or running data matches, there is always a possibility of error, whether it be client error or agency error. That is why SNAP regulations require the applicant/recipient to have two avenues to resolve errors: the Notice of Adverse Action (NOAA) that provides a ten day time period to contact the agency before any adverse action is taken, and the right to request a fair hearing with an administrative law judge for any adverse action that is taken (USDA regulation 7 CFR 273.13 and 273.15). The fact that isolated errors may occur is not a reason to completely modify current procedure and justify the proposed burdensome approach.
Discovery through Law Enforcement Request
In lieu of the data match providing the warrant information, an agency contact such as a documented phone call should suffice as both confirmation of the warrant and that the agency is actively seeking. This oral confirmation procedure is supported by the USDA Collateral Contacts regulation 7 CFR 273.2(f)(3)(ii).
Discovery through Self-Declaration
Concerning household self-declaration of their fleeing felon or probation or parole violator status, information in the proposed rules implies there are many situations in which the applicant/recipient checks the fleeing felon/probation or parole violator status box on the application or recertification. More realistically, very few individuals check these boxes, opting instead to attest that they are not a fleeing felon or probation or parole violator. Thus, the household has filed a false instrument and possibly committed an Intentional Program Violation (IPV).
ISSUE - VERIFYING THE WARRANT
We do not support the proposal to ignore 7 CFR 273.2(f)(5), the USDA regulation that requires an applicant/recipient to have primary responsibility for verification. We see no reason for USDA to bypass its own regulation in these situations. Fleeing felons and probation/parole violators are likely the best people to resolve the warrant because they are the individuals who committed the crime and, therefore, possess the information needed by the law enforcement agency. In addition, law enforcement agencies may not be capable of managing numerous contacts with separate, possibly out-of-state, agencies--they are accustomed to dealing with the individuals directly. And it must be reiterated that, although we believe that these situations are a matter of personal responsibility, per USDA regulation 7 CFR 273.2(f)(5)(i), the agency would readily help any applicant/recipient requesting assistance.
ISSUE - CASE ACTION
The information may or may not affect the SNAP case. It is implied that agencies take negative action on offenses that are not clearly labeled as felonies is incorrect at best. Agencies work very hard to comply with the numerous SNAP requirements and are well aware that negative action must not be taken on any offense other than a felony as defined herein. The concern expressed that there is no “uniform administration” is naïve – each state and each agency must implement each SNAP regulation as best it can. The diversity of the states, their sizes, their staffing levels and their budgets greatly affect the administration of each USDA requirement. However, all agencies strive to fulfill their mission of compliance with these rules.
If the SSN of a SNAP applicant/recipient matches the SSN of an individual with a felony offense: 1) the agency mails a Request for Contact (RFC) to the household providing the warrant information on the match.; 2) if the applicant/recipient does not contact the agency, the agency must deny/terminate, as is required in any instance there is no RFC response, per USDA’s RFC regulation 7 CFR 273.12(c)(2). As stated in this regulation, the purpose of the RFC is to resolve “unclear information from a third party or from the household itself”. UCOWF/NASWFD anticipates a high number of no-contacts due to the fact that the majority of the population will likely flee again once the RFC notifies them that they have been identified as having an outstanding warrant or are in violation of probation/parole. So, contact should not be made if it would hinder law enforcement’s ability to apprehend a wanted felon.
Regarding simplified reporting, we emphatically state that if fleeing felon/probation or parole violator status is determined, then the single person fleeing felon/probation or parole violator case must close, and the fleeing felon/probation or parole violator in a multi-person case must be removed, even if this will cause a decrease in benefits. Simplified reporting is designed to prevent a household from having to report changes while its members are at work—it is not designed to harbor a fugitive or violator.
Likewise with Transitional Benefit Assistance, we firmly state that once fleeing felon/probation or parole violator status is determined, the single person fleeing felon/probation or parole violator case must close, and the fleeing felon/probation or parole violator in a multi-person case must be removed, even if this results in decreased benefits. The Transitional Benefit Alternative was designed to assist households who have obtained a job to transition to self-sufficiency, rather than aid fugitives and violators.
UCOWF/NASWFD urges USDA/FNS to understand that correct benefit issuances rely heavily on obtaining information and resolving issues and inconsistencies. Agencies must be allowed to exchange data and work together so that application and case determinations are correct.
The UCOWF and the NASWFD are not in favor of the proposed changes, specifically the proposed definition of a “fleeing felon”, the definition of “actively seeking”, and the elimination of personal responsibility. We believe the requirement to meet all four criteria in the definition of ‘fleeing felon” is too restrictive and the definition of “actively seeking” imposes a workload burden on law enforcement. We are unsure if law enforcement agencies were consulted prior to the draft of the proposed regulations. We believe a simplified regulation to require an individual with an outstanding felony warrant to clear the warrant before benefits are issued is appropriate.
We thank you for the opportunity to comment. Please do not hesitate to contact us if you have further questions.
Kathy Dolan, President, UCOWF
cc: Paula Hisle, Co-chairperson, UCOWF Intergovernmental Committee
Sandy Smith, Co-chairperson, UCOWF Intergovernmental Committee