Restitution Due to Loss, Theft or Wrongful Withholding

The mismanagement of personal allowance carries civil and criminal punishments. 

Personal allowance must be managed in accordance with both OPWDD regulations, New York State Social Services Law and the Code of Federal Regulations. In addition, an agency acting as the payee for any of a person’s benefits is responsible for following the program rules of the benefit paying  organization.

In any case, where an agency is suspected of losing, misappropriating, or wrongfully withholding personal allowance, OPWDD or its designee may:

• Investigate any loss, suspected misappropriation, or wrongful withholding 
• Start and/or maintain an action on behalf of any individual or group of individuals to recover any funds lost, misappropriated, or wrongfully withheld

The missing, stolen, or wrongfully withheld funds must be returned to the person’s personal allowance account as early as possible; this means that funds must be returned to the account immediately upon discovery of the loss and the exact amount of the loss. The agency cannot hold off repayment to the person until the investigation has been completed.

Any thefts of funds belonging to a person must be reported to OPWDD’s Incident Management Unit (see 14 NYCRR 624.4(c)(5)).  If any amount of personal allowance is derived from Social Security benefits or SSI), any theft or misuse of funds must also be reported to the Social Security Administration  (see CFR § 404.2041 and CFR § 416.641). A minor notable occurrence is theft of personal allowance or personal property valued between $15 and $100. A significant incident is theft of personal allowance or personal property valued more than $100 or any amount of theft involving credit, debit or public benefit cards. The benefit- paying agency must be informed of all thefts in accordance with the rules and regulations of the benefit paying agency.

When funds are discovered to be missing, the agency must audit all personal allowance accounts for persons residing in the same home for at least 1 year immediately prior to the identification of the missing funds. The agency must audit all personal allowance accounts for all residences accessed by agency staff alleged to have committed a theft.

The Social Security Administration provides information on how representative payees can protect beneficiaries from identity theft at https://www.ssa.gov/payee/NewGuide/toc.htm#Protecting_Beneficiaries_Identity_Theft.

The Federal Trade Commission (FTC) provides resources on credit scores, consumer rights, and the Equal Credit Opportunity Act at https://www.consumer.ftc.gov/topics/credit-and-loans. 

To order a free annual credit report at https://www.consumer.ftc.gov/articles/0155-free-credit-reports from one or all of the national credit reporting companies, and to purchase your credit score, visit www.annualcreditreport.com at https://www.annualcreditreport.com/index.action call toll-free 877-322-8228, or complete the Annual Credit Report Request Form and mail it to Annual Credit Report Request Service, P. O. Box 105281 Atlanta, GA 30348-5283.