Vol. 76, No. 7, July
A Primer on Administrative Hearings
Disputes with state agencies often require an administrative hearing
before the disputes can be appealed to court. Because the hearing result
can be critical to the final outcome of a case, this primer informs
Wisconsin attorneys about the division of hearings and appeals and the
administrative hearing process.
by Sean P. Maloney
When informal methods fail to resolve a dispute with a state
government agency, the public, and probably most attorneys, think to
turn to the courts. However, many disputes with state agencies cannot be
brought to court unless a decision first is rendered through an
administrative hearing.1 The Wisconsin
Division of Hearings and Appeals (DHA or "the division") conducts
administrative hearings for many state agencies,2 but the DHA is not well known to most attorneys.
This article provides a general overview of the DHA and administrative
hearings. It also addresses DHFS chapter 227 administrative hearings
conducted by the division's Work and Family Services (WFS) unit.
The executive branch of state government, not the judicial branch,
conducts administrative hearings and makes the hearing decisions.
Administrative hearings may concern government licensing or permits,
government payments of various sorts, or government action or inaction
that injures or threatens to injure a "substantial interest" of a person
when certain other criteria are satisfied.3
Specific examples are hearings concerning the recovery from medical
providers of overpaid Medical Assistance benefits;4 orders suspending or revoking certificates,
licenses, or permits for motor vehicle carriers;5 probation and parole revocation hearings;6 worker's compensation hearings;7 and unemployment compensation hearings.8 Wisconsin Statutes chapter 227 is the
Administrative Procedure Act for the state of Wisconsin and governs
many, but not all, administrative hearings. Specific types of hearings
that chapter 227 does not govern include probation and parole
revocation hearings, worker's compensation hearings, and unemployment
The chapter 227 administrative hearing process is designed and
intended to be accessible, inexpensive, and much less formal and time
consuming than court proceedings. For instance, there is no filing fee
for chapter 227 administrative hearings, no particular form or manner of
pleading is required, most formal rules of evidence do not apply, and
the conduct of the hearing itself is not bound by rigid rules of
Although chapter 227 administrative hearing decisions can be appealed
to circuit court,11 the administrative
hearing process itself is extremely important to the final outcome of a
case for at least four reasons.
1) As a practical matter, the administrative hearing decision is most
often the de facto end of the case, because most administrative hearing
decisions are not appealed to court.
2) Even if the hearing decision is appealed to court, under chapter
227 the court's review of the matter is without a jury and is, with one
exception, confined to the record created in the administrative
hearing.12 An application may be made to
the court for leave to present additional evidence, but it must be shown
that the additional evidence is material and that there was good reason
for failure to present the evidence in the administrative hearing. Even
then, the court's remedy is limited to remanding the matter to the
administrative hearing process for further fact finding.13
3) The court cannot substitute its judgment for that of the
government agency as to the weight of the evidence on any disputed
finding of fact.14
4) When reviewing an administrative hearing decision under chapter
227, the court will accord a certain level of deference to conclusions
of law contained in the hearing decision. The court will first determine
what agency the administrative decision belongs to. The level of
deference granted will depend upon the agency's experience, technical
competence, and specialized knowledge.15
The Division of Hearings and Appeals
Administrative hearings are conducted by, or for, numerous government
agencies. Some agencies, such as the Public Service Commission,16 conduct their own hearings. In many instances,
however, the DHA conducts the hearings for the agency. The DHA is
neutral and independent. It is "attached" to the Department of
Administration (DOA).17 This means that the
DHA is a distinct unit of the DOA and that the DHA exercises its powers,
duties, and functions, including rule making, regulation, and
operational planning, independently of the head of the DOA. However,
budgeting, program coordination, and related management functions are
performed under the direction and supervision of the head of the
DOA.18 DHA administrative hearings are
conducted by, and written decisions are made by, administrative law
judges (ALJs) employed by the division.19
ALJs perform their functions in an impartial manner.20 The division administrator, as well as all
division ALJs, enjoy civil service protection.21 All division ALJs are members of the State Bar
of Wisconsin and most, but not all, work full-time for the DHA. The DHA
has three offices, in Madison, Milwaukee, and Eau Claire. Most of the
division's ALJs are located in the Madison office.
The DHA conducts many different types of administrative hearings for
numerous agencies. In 2002, agencies referred more than 13,000 cases to
the division for hearing. The vast majority were referred by just three
agencies: the Department of Corrections (DOC), the Department of Health
and Family Services (DHFS), and the Department of Workforce Development
(DWD). Other agencies for which DHA conducts hearings include: the DOA
itself, the Department of Public Instruction (DPI),22 the Department of Transportation (DOT), the
Department of Natural Resources (DNR),23
Employee Trust Funds (ETF), the Department of Justice (DOJ), and the
State Historical Society (SHS).24 The
reorganization of state government prompted by the recent budget deficit
may result in the division assuming responsibility for additional
hearings from other state agencies. However, the division does not
conduct worker's compensation hearings or unemployment compensation
The DHA is divided into three units: Corrections; Work and Family
Services (WFS); and General Government (Gen Gov). The Corrections unit
conducts probation and parole revocation hearings for the DOC. The WFS
unit conducts hearings for the DHFS, DWD, and DOA. The Gen Gov unit
conducts hearings for the DOA, DPI, DOT, ETF, DNR, DOJ, and SHS. The
accompanying chart shows the agencies that refer cases to the DHA, the
number of cases referred, the types of hearings involved, and the DHA
unit responsible for each hearing type. The division's Web site provides general DHA
procedural and other information.
Although chapter 227 does not govern hearings conducted by the DHA
for the DOC,25 it does govern most other
hearings conducted by the division, including hearings for the DHFS,
DWD, DOA, DOT, and DNR.26 The second part
of this article concerns only hearings conducted by the division's WFS
unit. These hearings are governed by chapter 227 and are of two types:
categorical hearings and miscellaneous hearings.
WFS Unit Categorical Hearings
The vast majority of the chapter 227 administrative hearings
conducted each year by the DHA concern eligibility and other issues
relating to specific Medical Assistance (MA) or Food Stamp (FS)
recipients. The division's WFS unit conducts these hearings for the DHFS
and DWD. The issue typically is the correctness of a reduction,
discontinuance, or denial of MA or FS benefits for a particular
person.27 These are known as "categorical
hearings," because they involve categorical entitlement public benefit
programs; that is, public benefits to which persons are legally entitled
if they fall into certain categories based on criteria such as income
and assets. Categorical hearings also are referred to as "fair
hearings."28 In addition, the WFS unit
provides a quasi-appellate type of review for fact-finding decisions in
the Wisconsin Works (W2) program.29
Wisconsin Administrative Code chapter HA 3 and Wis. Stat. chapter 227
govern the proceedings in categorical hearings. Categorical hearings
also are subject to the procedural requirements of federal law.30
Each WFS unit ALJ typically schedules scores of categorical hearings
every month (although some of the hearings will be cancelled or
rescheduled).31 In most of these hearings
neither party (the government agency or the public benefit recipient) is
represented by an attorney. Typically, the only persons attending the
hearing are the public aid recipient, a nonattorney representative of
the local county human or social services department that administers
the program for the state, and the ALJ. These hearings are held at the
local county human or social service agency - usually located in the
county seat of the county in which the person who requests the hearing
lives.32 The hearings usually are brief -
20 to 60 minutes - and almost never include any prehearing or
posthearing activities. Most categorical hearing decisions are issued as
final decisions. Some are issued as proposed decisions.33
WFS Unit Miscellaneous Hearings
If categorical hearings are excluded, most DHA chapter 227
administrative hearings are conducted for the DHFS. These hearings are
known within the division as "miscellaneous" hearings. The WFS unit is
responsible for conducting DHFS miscellaneous hearings (with the
exception of some nursing home issues, which go to the Gen Gov unit).
Miscellaneous cases make up only a small part of the caseload of each
WFS unit ALJ - most of their time is spent on categorical hearings.
Miscellaneous hearings often involve attorneys and prehearing and
posthearing activities (such as telephone conferences and motions).
Prehearing or posthearing legal briefs may be filed. Miscellaneous
hearings can last from one hour to several days. Examples of
miscellaneous hearings conducted for the DHFS include the recovery from
medical providers of allegedly overpaid MA benefits;34 MA payment withholding;35 actions such as license denials, license
revocations, statements of deficiency, and forfeitures affecting various
types of facilities, including day care centers,36 community- based residential facilities,37 and hospices;38
Wisconsin Caregiver Misconduct Registry appeals;39 and Women, Infants, and Children (WIC) program
appeals.40 Wisconsin Administrative Code
chapter HA 1 and Wis. Stat. chapter 227 govern DHFS miscellaneous
hearings.41 DHFS miscellaneous hearings
will be addressed in detail in a future Wisconsin Lawyer
Many disputes with state government agencies are subject to the
administrative hearing process before they can be appealed to court. The
DHA conducts the administrative hearing process for many state agencies.
The result of the administrative hearing is extremely important to the
final outcome of a case for many reasons. Thus, Wisconsin attorneys
should have at least a general familiarity with the DHA and the
administrative hearing process.
P. Maloney, Stanford 1987, has been an administrative law judge
for the State of Wisconsin since 1995. He is admitted to practice law in
California, Hawaii, Washington, D.C., Wisconsin, and various federal
courts. He holds an MA in philosophy from U.W.-Madison.
1Wis. Stat. § 227.52
(2001-02). 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 December 2002. All citations to
chapter HA 2 and chapter HA 3 of the Wisconsin Administrative Code are
to the versions published September 2001.
2Wis. Stat. §§ 227.43,
302.335, 973.10; Wis. Admin. Code chapters HA 1, 2, 3.
3Wis. Stat. §§ 227.01(3),
4Wis. Stat. § 49.45(2)(a)10a;
Wis. Admin. Code § HFS 108.02(9)(e) (February 2002). MA is the
Medicaid program, funded partly by federal money, as it has been
implemented in Wisconsin. See Wis. Stat. §§ 49.43(8),
.45(1); Wis. Admin. Code § HFS 101.03(95) (February 2002).
5Wis. Stat. § 194.46.
6Wis. Stat. §§ 302.335,
7Wis. Stat. § 102.17.
8Wis. Stat. § 108.09.
9Wis. Stat. § 227.03.
10Wis. Stat. §§ 227.44,
.45, .46; Wis. Admin. Code §§ HA 1.12, 1.13.
11Wis. Stat. § 227.52.
12Wis. Stat. §§ 227.55,
.57(1). The one exception is "in cases of alleged irregularities" in the
administrative hearing. Wis. Stat. § 227.57(1).
13Wis. Stat. § 227.56(1);
State Public Intervenor v. DNR, 171 Wis. 2d 243, 490 N.W.2d 770
(Ct. App. 1992).
14Wis. Stat. §
15Wis. Stat. § 227.57(10);
Artac v. DHFS, 2000 WI App 88, 234 Wis. 2d 480, 610 N.W.2d 115;
Roehl Transport v. Division of Hearings & Appeals, 231 Wis.
2d 452, 570 N.W.2d 864 (Ct. App. 1997).
16Only certain sections of
chapter 227 apply to administrative hearings conducted by the PSC.
See Wis. Stat. ch. 196; Wis. Admin. Code ch. PSC 1, 2 (June
17Wis. Stat. § 15.103.
18Wis. Stat. § 15.03.
19Wis. Stat. § 227.43(1),
(2); Wis. Admin. Code §§ HA 1.02(1), 2.02(1), 3.02(1).
20Wis. Stat. §
21Wis. Stat. §
22Wis. Stat. § 115.80(10).
DHA conducts DPI hearings pursuant to a contract between DHA and DPI.
Wis. Stat. § 227.43(1m).
23For an article specifically
concerning administrative hearings conducted by DHA for DNR, see Jeffrey
D. Boldt, Administrative Review of DNR Decisions: A Guide to
Hearings Before the Division of Hearings and Appeals, 66 Wis. Law.
22 (July 1993).
24Wis. Stat. § 227.43; Wis.
Admin. Code § HA 1.01(2).
25DHA DOC hearings are subject to
Wis. Admin. Code ch. HA 2.
26For the most part, DPI hearings
also are not governed by chapter 227. Wis. Stat. § 115.80(10).
27Wis. Admin. Code § HA
28Wis. Admin. Code §§
HA 1.01(3), 3.02(8); 42 C.F.R. § 431.200 et. seq. (2002); 7 C.F.R.
§ 273.15 (2002).
29Wis. Stat. § 49.152(2)(b),
(c); Wis. Admin. Code § DWD 12.22(2)(b), (c) (January 2003); Wis.
Admin. Code § HA 3.12.
3042 C.F.R. § 431.200 et.
seq. (2002); 7 C.F.R. § 273.15 (2002).
31Wis. Admin. Code § HA
3.05(4)(b), (d); 7 C.F.R. § 273.15(c)(4), (j) (2002); 42 C.F.R.
§ 431.223 (2002).
32Wis. Admin. Code § HA
3.06(1); 42 C.F.R. § 431.240(a)(1) (2002); 7 C.F.R. §
33Wis. Admin. Code § HA
3442 C.F.R. §§
433.300-.322 (2002); Wis. Stat. § 49.45(2)(a)10.; Wis. Admin. Code
§ 108.02(9)(e) (February 2002).
3542 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).
36Wis. Stat. § 48.72; Wis.
Admin. Code § HFS 45.08(6) (February 1999).
37Wis. Stat. § 50.03(5g)(f);
Wis. Admin. Code § HFS 83.07(13) (July 2001).
38Wis. Stat. §§
50.93(4), .98(4); Wis. Admin. Code § HFS 131.14(11) (August
39Wis. Stat. § 146.40(4r);
Wis. Admin. Code § HFS 13.05(7) (August 1999).
407 C.F.R. § 246.18 (2002);
Wis. Admin. Code § HFS 149.08 (July 1998).
41Wis. Admin. Code § HA