(a) Administrative food stamp fraud is fraud as defined in section 399.1(a) of this Part.

(b) Upon discovery that an overpayment in food stamps has occurred based upon the act or omission to act of a recipient or former recipient which occurred prior to August 1, 1983, in the absence of the written authorization set forth in section 399.2(b) of this Part, the local social services district shall initiate collection action by sending a written demand letter, approved by the department, to the household characterizing the act or acts as inadvertent household error.

(c) The local district shall continue with its investigation of the act or acts to reach a determination as to whether or not the act or acts constitute fraud within the meaning of section 399.1(a) of this Part.

(d) The local social services district shall refer all cases in which it believes the facts of the individual case warrant civil or criminal prosecution through the appropriate court system to the local district attorney (DA) (or other local equivalent) in the initial instance and not to the department for an administrative food stamp fraud hearing. This subdivision shall not apply in instances in which the local social services district has received prior notification from the district attorney (or other local equivalent) that the amount of the overpayment determined by the district is less than the amount which the local official has deemed sufficient for prosecution. The department shall not reverse a determination following an administrative food stamp fraud hearing for lack of compliance with the provisions of this subdivision.

(e) Should the district attorney (or other local equivalent) either decline prosecution following receipt of a referral occasioned by this section or fail to proceed with prosecution within a reasonable time, then the local social services district may formally withdraw the referral in writing.

(f) Subsequent to formal withdrawal the local services district may make an election to proceed with an administrative food stamp fraud hearing pursuant to section 399.6 of this Part. Should the district elect not to do so, its collection of the claim will continue to proceed as an inadvertent household error pursuant to the provisions of subdivision (b) of this section.

(g) Should the local social services district elect to initiate procedures for an administrative food stamp fraud hearing pursuant to section 399.6 of this Part, it must formally withdraw the referral in writing to the local official before referring the case to the department. Failure to present evidence of such formal written withdrawal either in its evidentiary transmittal to the department or at the hearing may result in an administrative food stamp fraud hearing decision adverse to the district.

(h) Should the local social services district elect to process a case for an administrative food stamp fraud hearing, it shall assemble documentary evidence which the district believes is sufficient on its face to support its determination of fraud and forward the evidence in the form of an evidentiary packet to the Office of Administrative Hearings, New York State Department of Social Services.

(i) The evidentiary packet forwarded by the local district to the department accompanying the local social services district's request for a administrative food stamp fraud hearing shall have consecutively numbered pages, shall be submitted in three copies and shall include, but not be limited to the following: