Vol. 76, No. 9, September 2003

A Primer on Miscellaneous Hearings

by Sean P. Maloney

A July Wisconsin Lawyer article provided a general overview of the Division of Hearings and Appeals (DHA or "the division") and administrative hearings.¹ That article discussed the three DHA units - Corrections, Work and Family Services (WFS), and General Government - and the type of administrative hearings they conduct. That article also discussed WFS unit categorical hearings and Department of Health and Family Services (DHFS) miscellaneous hearings.

This article addresses in detail the process for DHFS miscellaneous hearings conducted by the WFS unit and includes practice tips for lawyers representing clients before the DHA. DHFS miscellaneous hearings cover matters including the recovery from medical providers of allegedly overpaid Medical Assistance (MA) benefits;² MA payment withholding;³ actions such as license denials, license revocations, statements of deficiency (SOD), and forfeitures affecting various types of facilities, including day care centers,⁴ community-based residential facilities (CBRFs),⁵ and hospices;⁶ Wisconsin Caregiver Misconduct Registry appeals;⁷ and Women, Infants, and Children (WIC) program appeals.⁸

Governing Statutes, Administrative Code Provisions, and Prior DHA Decisions

Wisconsin Administrative Code chapter HA 1 and Wis. Stat. chapter 227 govern DHFS miscellaneous hearings.⁹ Chapter HA 1 was recently repealed and the recreated chapter HA 1 was published in December 2002 and became effective Jan. 1, 2003. Chapter HA 1 specifically provides: "In the event of a conflict between this chapter and an agency administrative code provision or administrative decision, the agency administrative code provision or administrative decision is controlling."¹⁰ Thus, one must be familiar with both chapter HA 1 and the specific DHFS administrative code provisions and administrative decisions that govern a particular case.

The DHFS promulgates its own administrative code provisions, which are published and widely available. DHFS administrative decisions almost always originate with the DHA since the division conducts DHFS miscellaneous hearings. The division provides copies of decisions upon request and, if necessary, payment of a copying fee (the DHA may redact personally identifiable information). Some DHA decisions can be found on the division's Web site, http://dha.state.wi.us.

DHA decisions are not considered binding precedent; however, division administrative law judges (ALJs) usually are aware of prior decisions and will consider them when appropriate. Moreover, except in specifically delineated areas, the DHA issues miscellaneous decisions as proposed decisions and sends them to the DHFS department head for final decision making.¹¹ As a matter of policy, division ALJs are bound to follow prior final decisions of department heads.¹² Consequently, attorneys appearing before an ALJ should bring prior, relevant DHA decisions to the ALJ's attention.

Requesting a Miscellaneous Hearing

Miscellaneous hearings begin with a mandatory written request for a hearing,¹³ which most often is made by a simple letter to the DHA. No particular form is required, but the request must at least contain the following specific information: a request for a hearing; the name and address of the person or entity requesting the hearing; the name and address of the attorney or other representative (if any); a description of the action being contested, including the agency that took the action and when, and the action's effective date; the reasons for contesting the action; and the relief being requested.¹⁴

The DHA receives requests for hearings on many diverse issues concerning many different state agencies; therefore, hearing requests should make the hearing issue straightforward and obvious. Although not required, it is enormously helpful to the DHA to include with the written hearing request a photocopy of the written notice of action that was received from the state agency. This written notice is usually in the form of a letter from the state agency stating what action is being taken, when the action will be effective, and what appeal rights apply. The notice serves to precisely identify the agency involved, the action being appealed, and the substantive law that applies. For instance, in a matter concerning the recovery of allegedly overpaid MA benefits, enclose a copy of the "notice of intent to recover" letter that was received from the DHFS. Likewise, in a licensing matter, enclose a copy of the DHFS letter giving notice of the action taken: denial, nonrenewal, suspension, revocation, and so on.

Absent special client circumstances it is wise, for at least two reasons, to file the request for a hearing as soon as possible. First, there are strict jurisdictional time limits for requesting a hearing. A late request for a hearing may result in dismissal for lack of jurisdiction. Second, a timely filed request for a hearing might stay the effective date of the action being appealed.

Jurisdictional time limits. Chapter HA 1 provides that, when no other time limit is specified, a request for a hearing must be made "within 30 days of the date of the order or decision to be reviewed."¹⁵ Beware! Relevant state statutes and administrative code provisions often contain their own jurisdictional times limits, some shorter than 30 days. A request for a hearing concerning an MA overpayment claim, for example, must be made within 20 days of receipt of the DHFS "notice of intent to recover" letter.¹⁶ A request for a hearing concerning the revocation of a family day care license, as another example, must be sent to the DHA within 10 days.¹⁷ On the other hand, 30 calendar days are allowed in which to file a request for a hearing concerning Wisconsin Caregiver Misconduct Registry actions.¹⁸

Another potential trap for the unaware practitioner is the date a hearing request is considered to have been filed with the DHA. Unless there is a specific law to the contrary, under chapter HA 1, the date of filing depends on how the request is submitted to the DHA: if submitted by mail, the date of filing is the date of the postmark; if submitted by personal service or interdepartmental mail, the date of filing is the date of actual receipt by the DHA; if submitted by fax, in most cases the date of filing is the date imprinted by the DHA's fax machine.¹⁹ The DHA does not currently accept electronic filings. The DHA sometimes receives items via U.S. mail that have no postmark, that have more than one postmark, or that have postmarks that are not legible. If there is no legible postmark, the date of actual receipt by the DHA is used as the filing date. A hearing request submitted via a private delivery service, such as United Parcel Service or Federal Express, is considered filed on actual receipt by the DHA.

To further complicate matters, some laws supercede chapter HA 1 and provide for a different filing date. The law concerning MA overpayment claims, for example, states: "The date of service of a provider's request for a hearing shall be the date on which [DHA] receives the request."²⁰ The law concerning Wisconsin Caregiver Misconduct Registry actions, as another example, specifically states that a request for a hearing "is considered filed when received by [DHA]."²¹ Thus, the filing date is often the date of actual receipt by the DHA regardless of the submission method - even though chapter HA 1 provides for the postmark date.

Stay of action. The second reason to file the hearing request as soon as possible is that a timely filed hearing request might stay the effective date of the action being appealed. This is the case, for example, for both MA overpayment claim appeals²² and Wisconsin Caregiver Misconduct Registry appeals.²³ This also may be true for other types of appeals.²⁴

DHA Procedure After a Hearing Request Is Made

After the DHA receives a hearing request in a miscellaneous case, nonattorney support staff affix a date stamp and assign an appeal number of the form "ML-03-0123." The "ML" denotes "Miscellaneous Litigation." In this example, the "03" denotes the last two digits of the year in which the request is received, and the "0123" denotes that it is the 123rd miscellaneous litigation matter processed by the DHA that year.

How quickly a matter is assigned to an ALJ depends on several factors, including the urgency of the matter and the DHA's current workload. Some matters are, by law, extremely urgent. For instance, a preliminary hearing concerning an order to close a day care center must be conducted within 10 working days after the date of the order to close.²⁵ Unless the aggrieved person consents to an extension, a hearing must be held within 30 days after the receipt of the hearing request for many licensing matters.²⁶ Likewise, a hearing concerning a CBRF statement of deficiency or forfeiture must be held within 30 days after the hearing request is received.²⁷ A hearing must be held within 90 days for Wisconsin Caregiver Misconduct Registry matters.²⁸ Other types of hearings, such as for the recovery of alleged MA overpayments, have no time limits. In practice, the parties frequently waive time limits to allow time to develop the case and to explore settlement. Nevertheless, the ALJ must be cognizant of such time limits until and unless they are waived by the parties. The DHA assigns urgent matters to an ALJ as quickly as possible. Conversely, the DHA holds some matters and does not assign them to an ALJ, usually because some further development is expected or because the DHA expects that the matter will be resolved without the need to assign an ALJ.

When a matter is assigned to an ALJ, DHA support staff send a simple letter - typically only two or three sentences long - to the person requesting the hearing and to the DHFS Office of Legal Counsel. The letter states that the request was received by the DHA, the date it was received, that the matter has been assigned to an ALJ, the name of the ALJ, and the DHA appeal number. Neither the person nor entity requesting the hearing nor the DHFS can select the assigned ALJ. However, once an ALJ is assigned either party may request that the ALJ disqualify himself or herself.²⁹ Such requests are rare. In most cases, the ALJ will rule on his or her own disqualification. Depending on circumstances, it may be best to simply bring facts that might warrant disqualification to the ALJ's attention in an informal manner, such as orally during a telephone conference, and await the ALJ's response. A direct oral request for disqualification may be made if the ALJ's response is not acceptable. Of course, a formal written motion for disqualification may be filed. Whatever form a disqualification request takes, it is important to be specific and objective in describing the facts that justify the request.

Proceedings After Assignment to an ALJ

Proceedings after a matter has been assigned to an ALJ may vary depending on the particular ALJ involved. Sometimes the ALJ will immediately issue a notice setting a hearing date, time, and location. This usually is done only when the law requires a hearing to be held within a very short time. The ALJ may set a telephone conference date prior to the hearing date, partly to ascertain whether the parties wish to waive the time limit for holding a hearing and to postpone the hearing date.

In most cases the ALJ's first action is to mail written notice to the parties requiring their attendance at a conference to clarify the issues involved, inquire about the possibility of settlement without the need of a hearing, entertain any prehearing motions and set briefing schedules (if needed), and, if necessary, set a hearing date, time, and location. Such conferences usually are held by telephone. A party can be found in default for failing to provide a telephone number at which the party can be reached, for failing to answer the telephone, or for failing to be ready to proceed.³⁰

At the time of the first conference the ALJ has little information about the case and usually only has the hearing request itself, which often is not detailed. The parties should not assume that the ALJ has any knowledge of the facts or law specific to the case. After the conference the ALJ will mail a memorandum for the record summarizing the action taken at the conference and any stipulations. This memorandum will control the subsequent course of action, unless modified at the hearing to prevent manifest injustice.³¹

Many cases settle after a series of telephone conferences without the need for a hearing. However, the ALJ may set a hearing date at any time and, absent special circumstances, is likely to insist on setting a hearing date if a substantial period of time has elapsed since the hearing request was filed with the DHA. The ALJ has discretion to pick the hearing location, but often the hearing is held at the DHA offices.³² A party that desires the hearing to be held elsewhere should secure an appropriate facility and consult with the other party before making the request of the ALJ. The ALJ does not have immediate and ready access to appropriate hearing facilities other than DHA offices (although hearings can be held at county government offices, state offices, courthouses, and the like). The DHA has offices in Madison, Milwaukee, and Eau Claire.

Formal discovery is not required in chapter 227 administrative hearings except for class 2 proceedings.³³ However, before the time of the hearing the parties typically will have cooperated in informal discovery by exchanging documents and sharing information. Additionally, the ALJ usually will order that the parties exchange documents and witness lists before the hearing.³⁴

The Hearing

A hearing is less formal than a court trial. The hearing is electronically recorded³⁵ and has relaxed rules of procedure.³⁶ The ALJ has the power to regulate the course of the hearing, including excluding persons whose conduct is contemptuous or unreasonably impedes the hearing's orderly progress.³⁷ With only a few limited exceptions, the ALJ is not bound by common law or statutory rules of evidence and will admit all testimony having reasonable probative value; however, immaterial, irrelevant, or unduly repetitious testimony will be excluded and the rules of privilege recognized by law will be given effect.³⁸ The hearsay rules do have some application in administrative hearings, but the extent of the rules' application is not at all clear. The Wisconsin Supreme Court has not decided to what extent hearsay evidence may be admissible before an administrative agency, but it has held that administrative bodies should never ground administrative findings on uncorroborated hearsay.³⁹

Evidence submitted at the hearing need not be limited to matters set forth in the appeal; if variances occur, the appeal will be considered amended by the record.⁴⁰ Objections to evidence can be made,⁴¹ but such objections are not likely to be sustained unless the evidence is clearly immaterial, irrelevant, or unduly repetitious. After the close of the hearing briefs may be allowed if requested by the parties.⁴² The factual basis of the ALJ's decision must be solely the evidence and matters officially noticed.⁴³ The standard of proof is a preponderance of the evidence, unless the law provides for a different standard.⁴⁴

Conclusion

Many disputes with state government agencies are subject to the administrative hearing process before they can be appealed to court. The DHA conducts many types of administrative hearings for numerous state agencies, including miscellaneous hearings for the DHFS. DHFS miscellaneous hearings are conducted by the DHA's WFS unit and are subject to interlacing requirements found in statutes, administrative code provisions, and prior DHA decisions. In order to competently represent their clients before the DHA, practitioners must be familiar with these various requirements and how they interact. Practical tips for administrative hearings will be provided in a future Wisconsin Lawyer article.

Endnotes

¹Sean P. Maloney, A Primer on Administrative Hearings, 76 Wis. Law. 28 (July 2003), www.wisbar.org/wislawmag/2003/07.

²42 C.F.R. §§ 433.300-.322 (2002); Wis. Stat. § 49.45(2)(a)10.; Wis. Admin. Code § HFS 108.02(9)(e) (February 2002). All citations to the Wisconsin Statutes are to the 2001-02 edition. All citations to chapter HA 1 of the Wisconsin Administrative Code are to the version published in December 2002.

³42 C.F.R. § 455.23 (2002); Wis. Stat. § 49.45(2)(a)14.; Wis. Admin. Code §§ HFS 106.12, 108.09(d)1. (February 2002).

⁴Wis. Stat. § 48.72; Wis. Admin. Code § HFS 45.08(6) (February 1999).

⁵Wis. Stat. § 50.03(5g)(f); Wis. Admin. Code § HFS 83.07(13) (July 2001).

⁶Wis. Stat. §§ 50.93(4), .98(4); Wis. Admin. Code § HFS 131.14(11) (August 2000).

⁷Wis. Stat. § 146.40(4r); Wis. Admin. Code § HFS 13.05(7) (August 1999).

⁸7 C.F.R. § 246.18 (2002); Wis. Admin. Code § HFS 149.08 (July 1998).

⁹Wis. Admin. Code § HA 1.01(2), (3).

¹⁰Wis. Admin. Code § HA 1.01(2).

¹¹Wis. Admin. Code § HA 1.17(4); see also Wis. Stat. §§ 227.46(2), (2m), (4), .47.

¹²Wis. Admin. Code § HA 1.01(2).

¹³Wis. Stat. § 227.42(1); Wis. Admin. Code § HA 1.04(1).

¹⁴Wis. Admin. Code § HA 1.04(2).

¹⁵Wis. Admin. Code § HA 1.04(3).

¹⁶Wis. Admin. Code § HFS 108.02(9)(e) (February 2002).

¹⁷Wis. Stat. § 48.72; Wis. Admin. Code § HFS 45.08(6) (February 1999).

¹⁸Wis. Stat. § 146.40(4r)(b), (c); Wis. Admin. Code § HFS 13.05(7)(b)1. (August 1999)

¹⁹Wis. Admin. Code § HA 1.03(3).

²⁰Wis. Admin. Code § 108.02(9)(e) (February 2002).

²¹Wis. Admin. Code § HFS 13.05(7)(b)1. (August 1999).

²²Wis. Admin. Code § HFS 108.02(9)(e) (February 2002).

²³Wis. Stat. § 146.40(4r)(b); Wis. Admin. Code § HFS 13.05(7)(c)1. (August 1999).

²⁴See, e.g., Wis. Stat. § 227.51(2).

²⁵Wis. Admin. Code § HFS 45.08(7)(b) (February 1999).

²⁶Wis. Stat. § 48.72.

²⁷Wis. Stat. § 50.03(5g)(f).

²⁸Wis. Admin. Code § HFS 13.05(7)(d)3. (August 1999).

²⁹Wis. Stat. § 227.46(6).

³⁰Wis. Admin. Code § HA 1.07(3)(c).

³¹Wis. Stat. § 227.44(4), (5); Wis. Admin. Code §§ HA 1.11, 1.07(3)(c).

³²Wis. Admin. Code § HA 1.06.

³³Wis. Stat. § 227.45(7); Wis. Admin. Code § HA 1.10(1).

³⁴Wis. Admin. Code § HA 1.13(5)(a).

³⁵Wis. Stat. § 227.44(8); Wis. Admin. Code § HA 1.15(1).

³⁶Wis. Admin. Code § HA 1.12.

³⁷Wis. Stat. § 227.46(1)(e); Wis. Admin. Code § HA 1.12(6).

³⁸Wis. Stat. § 227.45(1); Wis. Admin. Code § HA 1.13(1).

³⁹See Village of Menomonee Falls v. DNR, 140 Wis. 2d 579, 610, 412 N.W.2d 505 (Ct. App. 1987); City of Superior v. DILHR, 84 Wis. 2d 663, 672 n.6, 267 N.W.2d 637, 643 (1978); Outagamie County v. Town of Brooklyn, 18 Wis. 2d 303, 312 & n.3, 118 N.W.2d 201, 206 (1962).

⁴⁰Wis. Admin. Code § HA 1.13(2).

⁴¹Wis. Stat. § 227.45(1); Wis. Admin. Code § HA 1.12(5).

⁴²Wis. Admin. Code §§ HA 1.14(1), 1.16.

⁴³Wis. Stat. § 227.44(9).

⁴⁴Wis. Admin. Code §§ HA 1.02(9), 1.17(2).

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