or any person who, with intent to defraud the department, aids or abets in the buying or in any way disposing of the real property of a recipient of public assistance shall be guilty of a misdemeanor unless the total amount of the value of public assistance, food stamps, and medical assistance (Medicaid) so obtained exceeds $1,500.00, in which event such person shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years. In determining the amount of value of public assistance, food stamps, and medical assistance (Medicaid) obtained by false statement, failure to disclose information, or impersonation, or other fraudulent device, the total amount obtained during any uninterrupted period of time shall be treated as one continuing offense.
(Ga. L. 1965, p. 385, § 13; Ga. L. 1973, p. 183, § 1; Ga. L. 1975, p. 477, § 1; Ga. L. 1976, p. 1490, § 1; Ga. L. 1978, p. 994, § 1; Ga. L. 1978, p. 1964, § 1; Ga. L. 1989, p. 466, § 1; Ga. L. 1996, p. 1517, §§ 1, 1.2; Ga. L. 1997, p. 1021, § 3; Ga. L. 2015, p. 519, § 4-1/HB 328.)
The 2015 amendment, effective July 1, 2015, in subsection (a), substituted "he or she" for "he" in paragraphs (1) and (2), and, in the undesignated language at the end of subsection (a), substituted "$1,500.00" for "$500.00" and inserted the second occurrence of "(Medicaid)".
Cross references.- Fraud and related offenses, T. 16, C. 9, A. 4.
Code Commission notes.- Ga. L. 1996, p. 1517, §§ 1 and 1.2 both enacted a subsection (d). Pursuant to Code Section 28-9-5, the subsection (d) enacted by § 1.2 was redesignated as subsection (f). See the Editor's notes.
Editor's notes.- Ga. L. 1996, p. 1517, § 1.1, not codified by the General Assembly, provided: "Section 1.2 [subsection (f)] of this Act shall be known and may be cited as the 'Two Strikes and You're Off Act.'" and § 2, not codified by the General Assembly, provided for severability.
Ga. L. 1996, p. 1517, § 3, not codified by the General Assembly, provided: "No later than July 1, 1996, the Department of Human Resources shall request from the appropriate federal agencies any waivers necessary to implement any part of this Act. Each portion of this Act for which such waiver is required shall become effective only if the waiver is obtained, and in that event shall become effective upon the ninetieth day following the receipt of such waiver. The remainder of this Act shall become effective July 1, 1996."
Pursuant to Ga. L. 1996, p. 1517, § 3, waivers were applied for regarding those provisions of subsection (f) relating to public assistance. However, passage of the federal "Personal Responsibility and Work Opportunity Reconciliation Act of 1996" eliminated the need for such waivers, effective July 1, 1997. The provisions of subsection (f) enacted by Ga. L. 1996, p. 1517, § 1.2 regarding medical assistance and food stamps did not become effective because the requisite federal waivers were not obtained.
Ga. L. 1997, p. 1021, § 10, not codified by the General Assembly, provides for severability.
U.S. Code.- The federal Social Security Act, referred to in paragraph (c)(4) of this Code section, is codified at 42 U.S.C. § 301 et seq.
Law reviews.- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 284 (1997). For review of 1996 social services legislation, see 13 Ga. U. L. Rev. 310 (1996).
JUDICIAL DECISIONS
Constitutionality.
- This section is not unconstitutionally vague in that the statute makes it a crime to receive public assistance to which a person is "not entitled" without defining "entitlement" or referring to statutes, rules, or regulations pursuant to which entitlement is determined. Stewart v. State, 246 Ga. 70, 268 S.E.2d 906 (1980).
Construction of "may" in waiver clause.- Word "may" in this section's waiver clause affects the rights of needy dependent children to receive financial assistance under the Georgia Aid to Families with Dependent Children; therefore, it is clear that the word "may" must be construed as mandatory rather than permissive. Holloway v. Parham, 340 F. Supp. 336 (N.D. Ga. 1972).
Commissioner required to exercise discretion before recouping overpayments.- This section requires the director of the Department of Family and Children Services (now Commissioner of Human Resources) to exercise discretion by considering the need of dependent children before recouping overpayments in Aid to Families with Dependent Children. Holloway v. Parham, 340 F. Supp. 336 (N.D. Ga. 1972).
Effect of state's failure to offer certified copy of regulations.
- State fell short of the required proof for felony conviction by failing to offer in evidence a certified copy of the regulations of the Department of Human Resources. Dix v. State, 156 Ga. App. 868, 275 S.E.2d 807 (1981).
Guilty plea not bar to prosecution for subsequent fraud.
- Defendant's plea of guilty to fraudulently obtaining $3,796 in public assistance payments between March 1985 and March 1986, would not bar the state from prosecuting defendant for the subsequent fraudulent obtaining of $1,585 in public assistance payments between August 1987 and January 1988. Neal v. State, 198 Ga. App. 13, 400 S.E.2d 375 (1990).
Repayment by custodial parent excuses non-custodial's non-payment.
- Noncustodial father was held to be not liable for child support overpayments when the evidence demonstrated that the custodial parent, the mother, was in the process of making repayment. Johnson v. Department of Human Resources, 204 Ga. App. 23, 418 S.E.2d 401 (1992).
Sufficiency of evidence.
- Although the evidence was sufficient to prove that the defendant committed fraud that resulted in the defendant obtaining more public assistance than the defendant was entitled to receive under O.C.G.A. § 49-4-15(a), the state failed to prove that the amount exceeded $500. Ousley v. State, 296 Ga. App. 486, 675 S.E.2d 226 (2009).
Cited in Anderson v. Department of Family & Children Servs., 118 Ga. App. 318, 163 S.E.2d 328 (1968); Gill v. State, 141 Ga. App. 823, 234 S.E.2d 665 (1977); Moore v. State, 148 Ga. App. 14, 251 S.E.2d 17 (1978); State v. Germany, 245 Ga. 326, 265 S.E.2d 13 (1980); Graham v. State, 154 Ga. App. 198, 267 S.E.2d 842 (1980); In re Judge No. 491, 249 Ga. 30, 287 S.E.2d 2 (1982).
OPINIONS OF THE ATTORNEY GENERAL
Liability provided for in Ga. L. 1965, p. 385, § 13 (see O.C.G.A. § 49-4-15) survives the death of a recipient and constitutes a claim against the recipient's estate even if considered as a cause of action in tort rather than a cause of action in contract inasmuch as Ga. L. 1952, p. 224, § 1 (see O.C.G.A. § 9-2-41) provides that a cause of action in tort shall survive the death of the tortfeasor when the tortfeasor received a benefit from the tort. 1965-66 Op. Att'y Gen. No. 66-250.
RESEARCH REFERENCES
ALR.
- Reimbursement of public for financial assistance to aged persons, 29 A.L.R.2d 731.
Criminal liability for wrongfully obtaining unemployment benefits, 80 A.L.R.3d 1280.
Criminal liability in connection with application for, or receipt of, public relief or welfare payments, 22 A.L.R.4th 534.
Imposition of civil penalties, under state statute, upon medical practitioner for fraud in connection with claims under medicaid, medicare, or similar welfare programs for providing medical services, 32 A.L.R.4th 671.
Criminal liability of pharmacy or pharmacist for welfare fraud in connection with supplying prescription drugs, 16 A.L.R.5th 390.
Liability of state or federal government for losses associated with distribution of food stamps, 116 A.L.R. Fed. 457.