Vol. 76, No. 9, September
A Primer on Miscellaneous Hearings
This second of three articles on administrative hearings focuses on
the process for Department of Health and Family Services miscellaneous
hearings conducted by the DHA's Work and Family Services Unit. Practice
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
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
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HA 1 was recently repealed and the recreated chapter HA 1 was published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
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
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
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
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
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
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
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
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
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
10Wis. Admin. Code § HA
11Wis. Admin. Code § HA
1.17(4); see also Wis. Stat. §§ 227.46(2), (2m), (4),
12Wis. Admin. Code § HA
13Wis. Stat. § 227.42(1);
Wis. Admin. Code § HA 1.04(1).
14Wis. Admin. Code § HA
15Wis. Admin. Code § HA
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
19Wis. Admin. Code § HA
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
24See, e.g., Wis. Stat.
25Wis. Admin. Code § HFS
45.08(7)(b) (February 1999).
26Wis. Stat. § 48.72.
27Wis. Stat. §
28Wis. Admin. Code § HFS
13.05(7)(d)3. (August 1999).
29Wis. Stat. §
30Wis. Admin. Code § HA
31Wis. Stat. § 227.44(4),
(5); Wis. Admin. Code §§ HA 1.11, 1.07(3)(c).
32Wis. Admin. Code § HA
33Wis. Stat. § 227.45(7);
Wis. Admin. Code § HA 1.10(1).
34Wis. Admin. Code § HA
35Wis. Stat. § 227.44(8);
Wis. Admin. Code § HA 1.15(1).
36Wis. Admin. Code § HA
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
40Wis. Admin. Code § HA
41Wis. Stat. § 227.45(1);
Wis. Admin. Code § HA 1.12(5).
42Wis. Admin. Code §§
HA 1.14(1), 1.16.
43Wis. Stat. §
44Wis. Admin. Code §§
HA 1.02(9), 1.17(2).