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A Seat at the Table

Justice for SNAP Recipients Accused of Fraud in Georgia

By Cole Thaler and Patrick Cates

Georgia has traditionally been one of the most aggressive states in the country in the investigation of intentional program violations in the Food Stamp Program, now called the Supplemental Nutrition Assistance Program (SNAP). In 2005 Georgia disqualified more SNAP recipients than any other state (Food and Nutrition Service, U.S. Department of Agriculture, Food Stamp Program State Activity Report: Federal Fiscal Year 2005, at 32 (May 2007)). In 2006 Georgia led the nation in the amount of dollars recovered due to alleged SNAP fraud (Food and Nutrition Service, U.S. Department of Agriculture, Food Stamp Program State Activity Report: Federal Fiscal Year 2006, at 43 (Feb. 2008)). This zealous pursuit of fraud has often resulted in a “disqualification at all costs” mentality. Georgia would use questionable means to disqualify thousands of its residents from receiving benefits, while draining significant federal dollars from the local economy.

Through the administrative advocacy of attorneys at the Georgia Legal Services Program and the Atlanta Legal Aid Society, and of David Super, professor of law, Georgetown University Law Center, positive changes are occurring. But to appreciate where we are now, we must first ramble through rural Georgia to revisit some of the worst abuses that our clients endured at the hands of SNAP fraud investigators.

Civil Rights and Due Process Violations in Georgia's SNAP Fraud Investigations

Place settingThe U.S. Department of Agriculture (USDA) administers SNAP nationally and is responsible for setting and enforcing policies on behalf of the federal government. On behalf of USDA, each state's human services agency administers SNAP--takes applications, issues benefits, and makes administrative and policy choices within the terms of federal law. In Georgia the Department of Human Services administers SNAP and investigates potential SNAP fraud.

The SNAP fraud investigations of the Georgia Department of Human Services violated the civil rights of our clients at every procedural turn (see Letter from Patrick Cates, Senior Staff Attorney, Georgia Legal Services Program, et al. to Roberto Salazar, Administrator, and Don Arnette, Regional Administrator, Food and Nutrition Service (April 14, 2008) (in Georgia Legal Services Program's files)). After initially identifying fraud suspects, the department notified the recipients that they were being investigated but omitted all but a vague explanation of the grounds. The notices, many of which lacked critical details such as the dollar amount at issue, summoned the recipients to a face-to-face meeting with a fraud investigator from the department's Office of the Inspector General. The meetings often took place in small rooms where confidential conversations were easily overheard, and many recipients had to await their turn for hours. Investigators often would pressure the recipients to sign repayment agreements waiving their hearing rights, commonly threatened them with jail time, and asked them questions such as, “If you go to jail, who will take care of your children?” Actual evidence of fraud was typically scant. Investigators routinely ignored information about recipients' disabilities and did not provide reasonable accommodations.

SNAP recipients who withstood the pressure to waive their hearing rights at the initial meeting would receive a second letter, this time on District Attorney letterhead, summoning them to a second meeting. An assistant district attorney would begin this meeting with a brief speech informing the assembled recipients that they were subject to criminal punishment for fraud but that they could avoid it if they met with an investigator and signed a consent agreement. These “roundups” were the product of a contract between the Department of Human Services and the Prosecuting Attorneys' Council of Georgia, an organization representing district attorneys across the state. Attorneys from participating district attorney offices helped the investigators obtain consent agreements and, in turn, received a portion of the recouped overpayment. Subsequent reviews revealed that the Prosecuting Attorneys' Council charged fees that were out of proportion to the work it performed, such as billing for half an hour of attorney time for delivering a speech of less than a minute.

Presented at the Prosecuting Attorneys' Council meetings, the consent agreements, which are recognized by federal SNAP regulations, allowed a SNAP recipient to accept a disqualification and agree to repay the overpaid benefits without the state having to prove its case at an administrative disqualification hearing or through criminal prosecution. But while these agreements, such as the waivers of a recipient's right to a hearing, are efficient for the state, the SNAP recipient receives nothing whatsoever by signing. The only relief is for the state.

In some cases the Office of the Inspector General dropped its pursuit of those SNAP recipients who withstood the pressure to sign waivers of their rights and consent agreements, despite the federal mandate that states not seek waivers without sufficient evidence to schedule hearings (7 C.F.R. § 273.16(f)(1)(i) (2012)). Other cases proceeded to administrative disqualification hearings before Georgia's Office of State Administrative Hearings. While the Office of the Inspector General was required to prove intentional fraud at these hearings, the Office of State Administrative Hearings sometimes posted recipients' full names on its online hearing calendar, a violation of 7 C.F.R. § 272.1(c), and repeatedly scheduled massive numbers of administrative disqualification hearings on the same day before a single judge.

The May 2005 experience of one of our clients, Jeri Glasco, illustrates Georgia's procedural abuses and mobilized the Georgia Legal Services Program and the Atlanta Legal Aid Society to confront systematic problems in Georgia's fraud investigations. During her meeting with an investigator, Glasco, who was unrepresented at the time, had a seizure as a result of a medical condition diagnosed as tardive dystonia. The muscles in her torso, arms, and face contracted and spasmed uncontrollably. Glasco suffered as her shoulders tensed up and her head cocked backward. Nonetheless, the investigator slid a consent agreement in front of her and demanded that she decide right then whether to sign the form. Glasco signed the agreement without reading it so that she could leave and go to the emergency room.

The next day Glasco contacted the Office of the Inspector General to request that the agreement be rescinded. The office called her back two weeks later and informed her that a judge had already signed the document and filed it with the clerk of court. The agency stated that there was nothing further that it could do. At that point Glasco retained a Georgia Legal Services Program attorney, who filed a motion to set aside the agreement and supporting affidavits. On the day of the motion hearing, an assistant district attorney consented to an order setting aside the consent agreement (Order, State v. Glasco, No. 05-CR-434-DB (Ga. Super. Ct. Lumpkin Cnty. July 17, 2008)). Most accused recipients who lack counsel are not so fortunate.

The consent agreements used by the Office of the Inspector General purported to allow a SNAP recipient accused of fraud to avoid criminal prosecution. In practice, however, district attorneys rarely prosecute for alleged intentional program violations in the SNAP program (see Food and Nutrition Service, U.S. Department of Agriculture, Supplemental Nutrition Assistance Program (SNAP) State Activity Report: Federal Fiscal Year 2010, at 24, 27 (Dec. 2011)). We heard from one client who, believing that she was avoiding all criminal prosecution, signed a consent agreement only to find that she had a criminal record on her background check when she applied for a new job.

What is more, the agreements occupy a vague area between civil and criminal law. If they are akin to a plea agreement, then the constitutional requirements of criminal procedure should apply, one such requirement being the right to appointed representation. If pursuing alleged SNAP fraud is a civil matter, the legality of the Prosecuting Attorneys' Council involving itself in the procurement of civil repayment agreements is questionable. In fact, many court clerks are unsure whether to put the documents in a civil or criminal file.

Based on our experience, the ambiguity inherent in these investigations is not inadvertent. Our observation has been that the state has refrained from labeling these investigations as criminal matters to avoid triggering the right to counsel. At the same time, the state has periodically maintained that civil legal services should not be involved due to the supposedly criminal nature of SNAP fraud.

In 2008 we filed the first of many administrative complaints with the USDA's Food and Nutrition Service regarding the manner in which Georgia pursued SNAP fraud (see Letter from Cates et al., supra). We argued that, when investigating and adjudicating cases of fraud, both the Office of the Inspector General and the Office of State Administrative Hearings failed to comply with federal SNAP regulations. Our greatest concerns were the state's disregard of SNAP recipients' due process rights and the lack of investigation into whether the alleged violation was intentional. The southeast regional office of the Food and Nutrition Service responded that the procedures were adequate to ensure the “fairness and integrity” of the antifraud program. The Food and Nutrition Service did not remark on the overlapping of criminal and civil procedure inherent in the investigative agency's contract with the prosecutors.

In 2010 the Georgia Department of Human Services began a fresh round of fraud investigations, this time accusing more than eight hundred SNAP recipients of trafficking their benefits at Healthy Life, a small grocery store located in a largely African American area next to a public housing development in Griffin, Georgia. Once again, SNAP recipients were summoned en masse to meetings with investigators and threatened with incarceration if they did not give up their hearing rights in waivers or consent agreements. On one occasion, an attorney from the Georgia Legal Services Program accompanied her client to the Prosecuting Attorneys' Council meeting and explained that she was there to review the evidence against her client. The investigator summoned the assistant district attorney, who told the legal services attorney that she was interrupting interviews and preventing justice. On another occasion, an assistant district attorney accused a Georgia Legal Services Program attorney of soliciting new clients and threatened to throw him out of the building; the program attorney was in the building to represent a client of his own. The trafficking accusations seemed to be based on nothing more than lists of purchases. Nearly all of the accused were African American women. We observed recipients with patent mental disabilities and frightened and confused by the investigation. We spoke with others who could clearly explain their so-called suspicious purchases but who waived their hearing rights because they could not afford to miss more work to attend investigation meetings. Others signed waivers because they were afraid that indigent criminal defense in their county was so poor that the filing of criminal charges against them all but guaranteed a conviction. The magnitude of these abuses and violations prompted us to launch a new series of administrative complaints and other strategies to resolve the problems.

Our Series of Administrative Complaints to USDA

In response to the Office of the Inspector General's illegal investigations of Healthy Life patrons, we sent a letter to the Coordination and Review Section of the U.S. Department of Justice (see Letter from Lisa Krisher, Director of Litigation, Georgia Legal Services Program, et al. to Paul M. Uyehara, U.S. Department of Justice (Aug. 30, 2010) (in Georgia Legal Services Program's files)). The letter catalogued the Georgia Department of Human Services' failure to comply with SNAP laws and regulations, along with its violations of disability and race discrimination laws and due process guarantees. The letter noted specifically that the department's Healthy Life sweep systematically violated the civil rights of the accused patrons by denying them due process of law and subjecting them to unfair treatment on the basis of their disabilities. We listed these violations: threatened criminal prosecution in civil proceedings, interfered with attorney-client communications, attempted to penalize SNAP recipients for having attorneys, failed to accommodate disabled SNAP recipients in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, and failed to give legally sufficient notices or to gather sufficient evidence in violation of federal regulations and due process protections. Our letter told the stories of four clients.

Four days after we submitted our initial complaint, Super sent a lengthy complaint concerning Georgia's financial improprieties and violations of federal law in its pursuit of SNAP intentional program violations under contracts between the Georgia Department of Human Services and the Prosecuting Attorneys' Council (see Letter from David Super, Professor of Law, University of Maryland Law School, to Kevin W. Concannon, Undersecretary of Agriculture for Food and Consumer Services, USDA (Sept. 3, 2010) (when he wrote the letter, Super was with the University of Maryland Law School) (in Georgia Legal Services Program's files)). In April 2011 Super met with Undersecretary Kevin W. Concannon and his staff to discuss his and our complaints. The Food and Nutrition Service took formal written action on Super's complaint on May 13, 2011.

The Justice Department's Coordination and Review Section responded to our August 30, 2010, complaint by forwarding it to federal agencies and departments. We received a letter from USDA's Food and Nutrition Service Southeast Regional Office of Civil Rights, requesting consent, which our clients willingly granted, to investigate our complaint (see Letter from Sherry Daigre, Regional Civil Rights Director, Food and Nutrition Service, to Lisa Krisher, Litigation Director, Georgia Legal Services Program, et al. (Dec. 3, 2010) (in Georgia Legal Services Program's files)). We then sent to the Food and Nutrition Service another letter supplementing our August 30, 2010, letter and highlighting privacy violations and disability discrimination (see Letter from Cole Thaler, Supervising Staff Attorney, Georgia Legal Services Program, et al. to Deborah K. Minor, Director, Food and Nutrition Service Office of Civil Rights (Dec. 29, 2010) (in Georgia Legal Services Program's files)).

While we waited for the Office of Civil Rights to investigate and resolve our complaints, we continued to send a steady stream of letters and complaints to the Food and Nutrition Service as we observed various problematic facets of the Georgia Department of Human Services' practices and procedures. For example, we alerted the Food and Nutrition Service to the Georgia Department of Human Services having scheduled 177 administrative disqualification hearings on a single day before a single judge (see Letter from Wingo F. Smith, Staff Attorney, Georgia Legal Services Program, et al. to Julie Paradis, Administrator, Food and Nutrition Service (Nov. 19, 2010) (in Georgia Legal Services Program's files)). Our letter to the Food and Nutrition Service resulted in a second judge attending. Similarly, a few months later we notified the Food and Nutrition Service that the Department of Human Services had scheduled 149 administrative disqualification hearings on a single day (see Letter from Wingo Smith, Staff Attorney, Georgia Legal Services Program, et al. to Julie Paradis, Administrator, Food and Nutrition Service (Feb. 10, 2011) (in Georgia Legal Services Program's files)). The Food and Nutrition Service confirmed that an investigation was ongoing and sent observers to the hearings (see E-mail from Julie Paradis, Administrator, Food and Nutrition Service, to Wingo Smith, Staff Attorney, Georgia Legal Services Program (Feb. 11, 2011) (in Georgia Legal Services Program's files)).

We submitted a complaint of discrimination on behalf of limited-English-proficient SNAP recipients to USDA's Office of Civil Rights on behalf of three named clients (see Letter from Andrea Guttin & Jana Edmondson, Staff Attorneys, Georgia Legal Services Program, to Sherry Diagre, Regional Civil Rights Director, Food and Nutrition Service, & Deborah K. Minor, Director, Food and Nutrition Service Office of Civil Rights (Jan. 7, 2011) (in Georgia Legal Services Program's files)). That same day we sent the Office of Civil Rights a complaint regarding an administrative “default judgment” in an administrative disqualification case that was unfairly entered against a disabled client (see Letter from Wingo Smith & Sarah Morris, Staff Attorneys, Georgia Legal Services Program, to Deborah K. Minor, Director, Food and Nutrition Service Office of Civil Rights (Jan. 7, 2011) (in Georgia Legal Services Program's files)). Federal regulations require the state to prove its case even if the recipient does not appear (7 C.F.R. § 273.16(e)(4)). We then filed individual disability discrimination complaints with the Office of Civil Rights on behalf of two named clients, both of whom were included under pseudonyms in our original August 2010 complaint (see Letters from Cole Thaler, Supervising Staff Attorney, Georgia Legal Services Program, to Deborah K. Minor, Director, Food and Nutrition Service Office of Civil Rights (Jan. 21, 2011) (in Georgia Legal Services Program's files)). In the latter half of 2011 the Office of Civil Rights interviewed our clients by phone as part of its investigation.

The Food and Nutrition Service's responses to our steady series of complaints revealed that the agency bifurcated our complaints into discrimination allegations, which were investigated by the civil rights offices of both the Food and Nutrition Service and its southeast regional office, and procedural program violations, which were investigated by other officials at the southeast regional office. The southeast regional office sent the Georgia Department of Human Services a report detailing the results of its review of the program improprieties that we and Super brought to the attention of the Food and Nutrition Service (see Letter from Donald E. Arnette, Regional Administrator, Food and Nutrition Service, to Clyde L. Reese III, Commissioner, Georgia Department of Human Services (May 13, 2011) (in Georgia Legal Services Program's files)). The report set forth nine separate findings of improprieties and required corrective actions. The report mandated changes in wording in notices; insisted that the Department of Human Services protect clients' privacy; and--perhaps most significant--required that the Department of Human Services stop blurring civil and criminal procedures in the Prosecuting Attorneys' Council's pursuit of alleged SNAP fraud. The Food and Nutrition Service also asked the department to explain the fee structure of the Prosecuting Attorneys' Council.

After the Food and Nutrition Service sent the report, the Georgia Department of Human Services and the Food and Nutrition Service engaged in months of correspondence on the implementation of the corrective actions. In the meantime we wrote to the southeast regional office of the Food and Nutrition Service to point out that its May 13 report failed to respond to issues that we and Super had raised in our August 2010 and September 2010 complaints.

On October 19, 2011, Super and an attorney from the Georgia Legal Services Program met with national Food and Nutrition Service administrators to discuss concerns that the corrective actions taken by the agency's southeast regional office were insufficient to resolve the fundamental illegality of the Georgia Department of Human Services' pursuing alleged SNAP fraud with the Prosecuting Attorneys' Council. However, the federal administrators believed that the May 13 report and subsequent clarification to the Georgia Department of Human Services adequately dealt with the problems. Georgia Legal Services Program and Atlanta Legal Aid Society attorneys met with Georgia Department of Human Services Commissioner Clyde Reese and his staff to discuss the ongoing problems with the department's fraud investigations. Reese was receptive to our concerns, particularly with the treatment of disabled SNAP recipients.

Nearly two years after our August 30, 2010, complaint, the Food and Nutrition Service's Office of Civil Rights sent us a letter on the results of its investigation into four separate disability and race discrimination complaints (see Letter from Deborah K. Minor, Director, Food and Nutrition Service Office of Civil Rights, to Julia Fisher, Senior Staff Attorney, Georgia Legal Services Program (May 25, 2012) (in Georgia Legal Services Program's files)). The Office of Civil Rights reported that it found no violations of discrimination laws in the four individuals' cases but that “we have not addressed whether the DHS policies have a disparate impact on SNAP individual beneficiaries. Accordingly, our office will schedule a comprehensive civil rights compliance review of the Georgia DHS investigative process later this year” (id.). We anticipate taking every opportunity to assist the Food and Nutrition Service in its comprehensive review.

Continued Advocacy Pending Federal Complaints

While we were drafting and filing administrative complaints and letters, we continued to represent individual clients accused of SNAP trafficking. We accompanied clients to the meetings with investigators and advocated on their behalf by questioning investigators about the basis for the fraud allegations. Our observations of the Office of the Inspector General's continuing abuses and failures shaped our understanding of the scope of the problem and continually informed our administrative complaints.

We represented multiple clients in administrative disqualification hearings. Through limited discovery, we obtained from the Georgia Department of Human Services records revealing the wafer-thin basis for its trafficking accusations against hundreds of SNAP recipients: a list of so-called fraud-prone purchase profiles, including purchases for dollar amounts arbitrarily deemed excessive; repeated purchases; and purchases for even dollar amounts (ending in “00”). With few exceptions, we prevailed for our clients in these hearings, with the administrative law judges from the Office of State Administrative Hearings repeatedly ruling that the Department of Human Services did not meet its burden of proving intentional trafficking.

New Emphasis on SNAP Recipients' Due Process Rights

Since fall 2011, our regional offices have noticed a decrease in the number of clients seeking representation in SNAP fraud investigations. What is more, our efforts have sharpened the blurry line between Georgia's civil and criminal SNAP fraud investigations. After we filed our complaints, we learned that, while the Food and Nutrition Service continued its investigation, Georgia suspended its mass interviews by local district attorneys in the Office of the Inspector General. At writing, the mass interviews have not resumed. Recently the Department of Human Services announced that it was considering a proposal to limit referrals of fraud cases for criminal prosecution to those involving over $15,000.

State investigators meeting with recipients accused of fraud now present them with a “Respondent's Statement of Rights” advising them of the right to retain legal counsel and the right of disabled recipients to reasonable accommodations (Georgia Department of Human Services, Office of the Inspector General, Respondent's Statement of Rights (n.d.) (in Georgia Legal Services Program's files)). The notice also states that recipients should expect any interview with an investigator to be conducted in private and in a professional and respectful manner--a marked contrast to the very public settings at prior “roundups.” The notice tells recipients how to report staff members' discrimination or unprofessional or disrespectful acts to the agency. Investigators have lately been displaying less hostility toward both attorneys and clients.

For every client we represent in a meeting or hearing with the Office of the Inspector General, many other SNAP recipients go unrepresented. We expect our efforts to benefit the hundreds of SNAP recipients whom we are unable to serve each year due to insufficient resources. In the past, unrepresented individuals would give up their benefits and take on a hefty debt under threats of jail time and for lack of awareness of their rights and available resources. Georgia SNAP recipients now have stronger procedural safeguards, clearer information about their rights, and a greater chance of keeping the SNAP benefits critical to their survival.

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