Printable Format39-720. Penalty relating to fraudulent acts; civil actions, evidence. Any person who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled, shall be guilty of the crime of theft, as defined in section K.S.A. 21-5801, and amendments thereto. Such person shall be required to remit to the secretary the amount of any assistance given such person under such fraudulent act. In any civil action for the recovery of assistance on the grounds the assistance was fraudulently obtained, proof that the recipient of the assistance possesses or did possess resources which does or would have rendered such person ineligible to receive such assistance shall be deemed prima facie evidence that such assistance was fraudulently obtained.
History: L. 1937, ch. 327, § 18; L. 1951, ch. 288, § 5; L. 1972, ch. 170, § 1; L. 1973, ch. 186, § 14; L. 2011, ch. 30, § 173; July 1.
Law Review and Bar Journal References:
1953-55 survey of Kansas Law, Spencer A. Gard, 4 K.L.R. 272, 273 (1955).
"Medicaid Eligibility For Nursing Home Care: Understanding The New Eligibility Rules," Patrick H. Donahue, 59 J.K.B.A. No. 4, 26, 27 (1990).
"Medicaid Planning for the Elderly: Using Supplemental Discretionary Trusts to Pay the Costs of Long-Term Care," Brent A. Mitchell, 31 W.L.J. 80, 94 (1991).
Attorney General's Opinions:
Mentally ill, incapacitated, and dependent persons; social welfare; durational requirements. 87-165.
CASE ANNOTATIONS
1. Statute is penal; prior to conviction no basis for civil suit. In re Estate of Butler, 159 Kan. 144, 146, 147, 148, 149, 152 P.2d 815.
2. State welfare department may maintain action to recover fraudulent payment to recipient. State Dep't of Social Welfare v. Leonard, 166 Kan. 630, 632, 203 P.2d 207.
3. Failure to disclose increased income held to be fraudulent device hereunder. State v. Allison, 173 Kan. 107, 108, 109, 111, 112, 244 P.2d 176.
4. Applied; possession of resources; prima facie case of fraud established. In re Estate of Ward, 176 Kan. 614, 615, 272 P.2d 737.
5. Mentioned; class action contesting state welfare department's "value of moderate home" rule as applied to recipients of housing relocation payments. Young v. Harder, 361 F. Supp. 64, 77.
6. Contention section was unconstitutionally vague raised for first time on appeal not properly before court. State v. Ambler, 220 Kan. 560, 562, 552 P.2d 896.
7. Conviction of welfare fraud (this section and K.S.A. 21-3701) affirmed; evidence sufficient. State v. Ambler, 220 Kan. 560, 562, 552 P.2d 896.
8. Cited; in absence of specific statutory authority the S.R.S. cannot maintain action for punitive damages. State ex rel. Secretary of S.R.S. v. Fomby, 11 Kan. App. 2d 138, 139, 144, 715 P.2d 1045 (1986).
9. Conviction hereunder; requirement of written evidence in record regarding right to counsel (K.S.A. 22-3426) examined. State v. Turner, 239 Kan. 360, 721 P.2d 255 (1986).
10. Conviction reversed; necessity of allegation of intent to permanently deprive owner to sustain welfare fraud charge examined. State v. Bryan, 12 Kan. App. 2d 206, 738 P.2d 463 (1987).
11. Conviction affirmed; welfare fraud as independent from crime of theft (K.S.A. 21-3701), sufficiency of charge examined. State v. Micheaux, 242 Kan. 192, 747 P.2d 784 (1987).
12. K.S.A. 39-720 is proper statute for charge of welfare fraud rather than general statute charging false writing (K.S.A. 21-3711). State v. Wilcox, 245 Kan. 76, 79, 775 P.2d 177 (1989).
13. Welfare fraud as continuing offense, statute of limitations barring prosecution, denial of due process by conviction of theft examined. State v. Jones, 13 Kan. App. 2d 520, 775 P.2d 183 (1989).
14. Statute applicable to charges brought under programs administered by SRS; not applicable to programs run by other agencies. State v. Jones, 246 Kan. 180, 181, 787 P.2d 738 (1990).
15. Specific and general statutes compared; K.S.A. 21-3707 as specific statute, K.S.A. 21-3711 as general statute examined. State v. Montgomery, 14 Kan. App. 2d 577, 580, 796 P.2d 559 (1990). 246 Kan. 180, 181, 787 P.2d 738 (1990).
16. Cited in holding court lacked jurisdiction to convict father of rape of 15 year-old daughter where father also convicted of aggravated kidnapping. Carmichael v. State, 18 Kan. App. 2d 435, 442, 856 P.2d 934 (1993).
17. Defendant may be charged with fraud under loan broker's act (K.S.A. 50-1001 et seq.) and criminal theft (K.S.A. 21-3701) for same acts. State v. Fritz, 261 Kan. 294, 301, 933 P.2d 126 (1996).