Chapter DWD 75

DWD 75.07 DWD 75.07 Time limit for hearing. A hearing shall be held within 60 calendar days of the receipt of the hearing request by the hearing coordinator unless the parties agree to a specific extension of time.

DWD 75.07 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16.

DWD 75.08 DWD 75.08 Motions relative to a hearing. Motions shall be in writing and may be filed at any time prior to a scheduled hearing. A motion shall state the grounds of the motion and the relief or order requested. Briefs, affidavits, documentary evidence and other papers in support of a motion shall be filed with the motion and the hearing officer. Motions relative to a hearing may include any of the following:

DWD 75.08(1) (1) Motion to extend time limits. A motion to extend any time limit, including the 60-day time limit for holding a hearing.

DWD 75.08(2) (2) Motion to dismiss a hearing request for lack of subject matter jurisdiction. A motion to dismiss a hearing request on the grounds that the department does not have subject matter jurisdiction may be filed at any time.

DWD 75.08(3) (3) Motion to amend a hearing request. A motion to expand or restrict the nature or scope of the hearing.

DWD 75.08(4) (4) Motion to withdraw a hearing request. An applicant, eligible individual, or their representative may withdraw from the appeal process at any time.

DWD 75.08(5) (5) Motion for a substitute hearing officer. Either party may file a motion for a substitute hearing officer for reasons of conflict of interest, bias, or qualifications.

DWD 75.08 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (intro.), (4) Register June 2022 No. 798, eff. 7-1-22.

DWD 75.09 DWD 75.09 Identification of a representative.

DWD 75.09(1) (1) Administrator’s representative. An administrator’s representative shall be designated for each hearing.

DWD 75.09(2) (2) Representative of applicant or eligible individual. An applicant or eligible individual may designate a representative for a hearing. As provided under 34 CFR 370.4, upon the request of an applicant or eligible individual, the Wisconsin client assistance program may provide assistance and advocacy services for the applicant or eligible individual and may be the designated representative of an applicant or eligible individual.

DWD 75.09(3) (3) Notice of representation. Notice of representation shall be filed with the hearing officer as part of the prehearing conference under s. DWD 75.14, or within 5 working days in advance of the scheduled hearing. If the representative of the applicant or eligible individual has been properly designated in writing prior to a hearing request, that designation shall be valid for a hearing unless revoked by the applicant or eligible individual. If the applicant or eligible individual is not present at a hearing to introduce a representative, the hearing officer may require the representative to present identification before the hearing may proceed.

DWD 75.09 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16.

DWD 75.10 DWD 75.10 Filing documents.

DWD 75.10(1) (1) Documents filed with representative. If the applicant or eligible individual has designated a representative in writing, all correspondence and other documents related to the hearing shall be sent by mail or electronic mail to the representative of the applicant or eligible individual. For documents sent by mail or electronic mail, the date the document is received by the applicant, eligible individual, or their representative determines the date of filing.

DWD 75.10(2) (2) Filing in person. For papers filed in person, the date the applicant, eligible individual, or their representative receives the document determines the filing date.

DWD 75.10(3) (3) Document exchange. Filing of any document with the hearing officer or the hearing coordinator constitutes a certification that a copy of the document has been served on the other parties.

DWD 75.10 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. (1), (2) Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (1), (2) Register June 2022 No. 798, eff. 7-1-22.

DWD 75.11 DWD 75.11 Services while a hearing officer’s decision is pending. Pending the decision of a hearing officer, the department may not suspend, reduce, or terminate vocational rehabilitation services including evaluation and assessment services and IPE development unless any of the following apply:

DWD 75.11(1) (1) The services were obtained through misrepresentation, fraud, collusion, or criminal conduct.

DWD 75.11(2) (2) The applicant, eligible individual, or, in appropriate cases, the applicant’s or eligible individual’s representative requests a suspension, reduction, or termination of services.

DWD 75.11 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: renum. 75.11 to 75.11 (intro.) and (1) and am., cr. (2) Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (2) Register June 2022 No. 798, eff. 7-1-22.

DWD 75.12 DWD 75.12 Hearing officer qualifications. A hearing officer shall be impartial and have knowledge of the delivery of vocational rehabilitation services, the requirements of the state plan for services under the act, federal regulations and state regulations and policy governing the provision of the services and the procedures for conducting an impartial hearing. The hearing officer shall not:

DWD 75.12(1) (1) Be an employee of the department or other public agency except as an administrative law judge, a hearing examiner or an employee of an institution of higher education. An individual is not considered an employee of the department solely because the individual is paid by the department to serve as a hearing officer.

DWD 75.12(2) (2) Be a member of the state rehabilitation planning advisory council.

DWD 75.12(3) (3) Have been previously involved in the vocational rehabilitation of the applicant or eligible individual.

DWD 75.12(4) (4) Have any personal or financial interest that may conflict with the hearing officer’s obligation to be objective.

DWD 75.12 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. (intro.), (1), (3) Register May 2016 No. 725, eff. 6-1-16.

DWD 75.13 DWD 75.13 Authority of the hearing officer.

DWD 75.13(1) (1) The hearing officer shall conduct a prehearing conference with the parties as specified under s. DWD 75.14. The hearing officer may receive and act on motions under s. DWD 75.08, use the power of subpoena under s. 885.01, Stats., and contact any party prior to a scheduled hearing to obtain needed information or suggest mediation if the parties agree that agreement is possible prior to the hearing. The parties retain all rights under this chapter regardless of their participation or nonparticipation in mediation.

DWD 75.13(2) (2) The hearing officer shall control the course and conduct of the hearing to ensure that all required procedures are followed, that the parties are fairly represented and that the issues are presented clearly and briefly.

DWD 75.13(3) (3) Except as provided under s. DWD 75.19, the decision of the hearing officer is final.

DWD 75.13 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. (1), (3) Register May 2016 No. 725, eff. 6-1-16.

DWD 75.14 DWD 75.14 Prehearing conference.

DWD 75.14(1) (1) Purpose. The hearing officer shall ask the parties to participate in a prehearing conference to do one or more of the following:

DWD 75.14(1)(a) (a) Formulate a statement of the issue or issues presented by an appeal.

DWD 75.14(1)(b) (b) Identify potential witnesses and receive motions.

DWD 75.14(1)(c) (c) Confirm the scheduled hearing.

DWD 75.14(1)(d) (d) Clarify any other issues to be considered or excluded from a hearing.

DWD 75.14(2) (2) Participation. The administrator’s representative shall participate in the prehearing conference. If the applicant, eligible individual, or their representative fails to participate in a prehearing conference without prior notice, the hearing officer shall continue the prehearing conference period for 5 working days. During this period the applicant, eligible individual, or their representative may file a good cause explanation, including the need for reasonable and specific disability accommodations, and request that the prehearing conference be rescheduled. If a good cause explanation is not filed within 5 working days, the hearing officer shall schedule the hearing within the 60-day limit and notify the parties and the hearing coordinator of this decision. The department may review this decision as provided in s. DWD 75.19.

DWD 75.14(3) (3) Hearing not delayed by participation in a prehearing conference. Participation in a prehearing conference shall not delay a hearing and does not affect time limits under this chapter. The parties shall not forfeit any rights under this chapter by participating in a prehearing conference or meeting to reach agreement prior to a hearing.

DWD 75.14 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. (title), (1) (intro.), (2), (3) Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (2) Register June 2022 No. 798, eff. 7-1-22.

DWD 75.15 DWD 75.15 Agreement prior to a hearing.

DWD 75.15(1) (1) Notice of agreement. If the parties reach agreement prior to a hearing, the hearing officer shall notify the parties by certified mail that the issue has been resolved by mutual agreement and is dismissed without prejudice. The dismissal notice shall include a brief summary of the agreement between the parties and advise the parties that failure to meet the conditions of the agreement shall be grounds for a new hearing request.

DWD 75.15(2) (2) If proposed settlement rejected. If either party rejects a proposal prior to a scheduled hearing, the scheduled hearing shall be held without additional notice.

DWD 75.15 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97.

DWD 75.16 DWD 75.16 Hearing procedures.

DWD 75.16(1) (1) Hearing is closed. A hearing shall be closed to the public as a confidential matter unless the applicant, eligible individual, or their representative files a motion to open the hearing within 5 working days in advance of the scheduled hearing.

DWD 75.16(2) (2) Hearing not a court. The hearing officer is not bound by the rules of evidence and customary procedures of a court of law. However, the hearing officer shall adhere to the hearing procedures in this section unless there is good cause and shall document, on the record of the hearing, the reasons for deviation from any procedure required under this chapter.

DWD 75.16(3) (3) Attendance at a hearing. Parties and witnesses shall attend a scheduled hearing unless a motion has been filed with the hearing officer within 5 working days prior to a scheduled hearing stating reasonable cause for an individual to participate in the hearing, including the need for reasonable and specific disability accommodations, by a live, real time electronic means as an alternative to appearing in person. The hearing officer may grant the request if the other party has no objection.

DWD 75.16(4) (4) Testimony by witnesses. Witnesses may testify in person by answering questions posed to them, in narrative form, or by deposition provided that the witness agrees in advance, as part of the deposition, to permit the recording of the testimony and any subsequent cross-examination and the witness understands a subpoena to appear may be issued by the hearing officer based on the information in the deposition. For reasonable and specific disability accommodations or to provide testimony by deposition or electronic means, witnesses shall file a request with the hearing officer within 5 working days prior to a scheduled hearing. The hearing officer may grant the request if the other party does not object provided that the witness agrees in advance and on the record to permit the recording of the witness’s telephone testimony and any subsequent cross-examination.

DWD 75.16(5) (5) Identification of witnesses and exhibits. Each party shall file a list of witnesses and submit a copy of exhibits not previously identified in the prehearing conference with the hearing officer and the other party within 5 working days prior to a scheduled hearing.

DWD 75.16(6) (6) Record of the hearing.

DWD 75.16(6)(a) (a) Recording. The hearing officer shall record each hearing. The applicant, eligible individual, or their representative may obtain one free copy of the recording by contacting the hearing coordinator. No other recording of the hearing is permitted.

DWD 75.16 Note Note: To obtain a copy of the recorded hearing, contact the Hearing Coordinator, Division of Vocational Rehabilitation, P.O. Box 7852, Madison, Wisconsin 53707 or telephone [phone].

DWD 75.16(6)(b) (b) Transcript. Transcripts of the hearing record may be provided at the expense of the requestor. However, a party who cannot, due to a disability, use the free copy of the recording provided in par. (a) may file a written request with the hearing coordinator for a copy of the record in an alternate format as a reasonable accommodation.

DWD 75.16 Note Note: To file a written request for a transcript of the hearing record, contact the Hearing Coordinator, Division of Vocational Rehabilitation, P.O. Box 7852, Madison, Wisconsin 53707 or telephone [phone].

DWD 75.16(7) (7) Opening statement by hearing officer. The hearing officer shall open the hearing with a brief statement of the date, the location of the hearing, the issues, the parties directly involved in the hearing and the standard procedures and shall remind all parties and witnesses present that all personally identifiable information made available for the hearing is confidential.

DWD 75.16(8) (8) Roll call.

DWD 75.16(8)(a) (a) The hearing officer shall determine if the parties and announced witnesses are present. The hearing officer may admit other individuals to the hearing for good cause at the request of either party.

DWD 75.16(8)(b) (b) If either party fails to appear at a hearing without prior notice, the hearing officer shall immediately reschedule the hearing to a date within 5 working days after the current date to allow the absent party to explain the absence. The hearing officer shall notify the parties and the hearing coordinator by certified mail or electronic mail of the new hearing date and the reason for rescheduling the hearing. If the applicant, eligible individual, or their representative fails to appear at the rescheduled hearing, the hearing officer shall dismiss the appeal. This dismissal shall not be construed as violation of the 60-day limit for holding a hearing since the hearing was scheduled and held but the applicant, eligible individual, or their representative did not appear to present testimony or evidence. The department may review this decision as provided in s. DWD 75.19.

DWD 75.16(9) (9) Admissibility of evidence or testimony. At the request of either party, the hearing officer may exclude testimony or evidence. The hearing officer may also exclude immaterial, irrelevant or unduly repetitious testimony. A decision to exclude evidence or testimony shall be made on the record and shall include the rationale and arguments used by the hearing officer to exclude the material. The hearing officer may issue reserved rulings on evidence and determine, before the close of the hearing, if the material will be considered in the decision.

DWD 75.16(10) (10) Administering oath. The hearing officer shall swear in the parties and all witnesses. After the roll call, witnesses shall be present in the hearing room only while giving testimony.

DWD 75.16(11) (11) Cross-examination. Cross-examination is not limited to matters to which a party or witness testified on direct examination.

DWD 75.16(12) (12) Preliminary statements by the parties. The hearing officer shall ask the parties to state their names for the record.

DWD 75.16(13) (13) Request for direct testimony, evidence and arguments.

DWD 75.16(13)(a) (a) The hearing officer shall ask the parties to present written and oral statements regarding the facts, issues and desired outcome of the hearing. This includes new information which may not have been available when the original request for a hearing was filed.

DWD 75.16(13)(b) (b) Witnesses may testify either by answering questions posed to them or in narrative form. Written or electronic depositions may also be used with the understanding that a witness may be asked or subpoenaed to appear by the hearing officer based on the information in the deposition.

DWD 75.16(13)(c) (c) Cross-examination is not limited to matters to which a party or witness testified on direct examination.

DWD 75.16(13)(d) (d) The hearing officer shall ensure that the parties have an opportunity to review and comment on all evidence.

DWD 75.16(13)(e) (e) At the request of either party, the hearing officer may exclude the testimony of a witness.

DWD 75.16(14) (14) Direct testimony.

DWD 75.16(14)(a) (a) The hearing officer shall ask the administrator’s representative and witnesses to make the first presentation and to question the applicant, eligible individual, or their representative.

DWD 75.16(14)(b) (b) The hearing officer shall ask the applicant, eligible individual, or their representative to make the second presentation and to question the administrator’s representative and witnesses.

DWD 75.16(15) (15) Rebuttal and questions. The hearing officer shall give the administrator’s representative and witnesses the opportunity to make a rebuttal of evidence presented at the hearing and to question the applicant, eligible individual, or their representative and then give the same opportunity to the applicant, eligible individual, or their representative.

DWD 75.16(16) (16) Closing arguments. The hearing officer shall ask the administrator’s representative to present closing arguments and then ask the applicant, eligible individual, or their representative to present closing arguments. Closing arguments may be submitted both as verbal arguments and as written briefs.

DWD 75.16(17) (17) Ending the hearing. The hearing officer shall issue a written decision within 10 calendar days of a written motion under s. DWD 75.08 and within 30 calendar days of a hearing. The hearing officer shall provide a report of the hearing including the findings and the grounds for the decision. The decision shall state that the decision is final unless the administrator’s representative or the applicant, eligible individual, or their representative requests a review of the decision of the hearing officer within 20 calendar days after the decision is issued, under s. DWD 75.19, or the applicant, eligible individual, or their representative chooses to petition the circuit court under s. 227.53, Stats. The notice shall specify the procedures for seeking judicial review in circuit court. The hearing officer shall send the original to the applicant, eligible individual, or their representative and send a copy of the notice to the administrator’s representative and to the hearing coordinator for placement in the applicant’s or eligible individual’s case record.

DWD 75.16 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. (1), (3) to (5), (6) (a), (b), (7), (8) (b), (9), (14) (a), (b), (15) to (17) Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (1), (6) (a), (7), (8) (b), (14) to (17) Register June 2022 No. 798, eff. 7-1-22; correction in (14) (a) made under s. 35.17, Stats., Register June 2022 No. 798.

DWD 75.17 DWD 75.17 Decision of the hearing officer. The hearing officer shall issue a written decision within 10 calendar days of a written motion under s. DWD 75.08 and within 30 calendar days of a hearing. The hearing officer shall provide a report of the hearing including the findings and the grounds for the decision. The decision shall state that the decision is final unless the administrator’s representative or the applicant, eligible individual, or their representative requests a review of the decision of the hearing officer within 20 calendar days after the decision is issued, under s. DWD 75.19, or the applicant, eligible individual, or their representative chooses to petition the circuit court under s. 227.53, Stats. The notice shall specify the procedures for seeking judicial review in circuit court. The hearing officer shall send the original to the applicant, eligible individual, or their representative and send a copy of the notice to the administrator’s representative and to the hearing coordinator for placement in the applicant’s or eligible individual’s case record.

DWD 75.17 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

DWD 75.18 DWD 75.18 Hearing officer’s report. The hearing officer shall forward the recording of the hearing, a written summary of the hearing and any other items specified by contract to the hearing coordinator. The hearing coordinator shall ensure that all required materials have been received and shall forward the materials to the department for a decision as to whether a formal review of the hearing officer’s decision is needed.

DWD 75.18 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16.

DWD 75.19 DWD 75.19 Review of hearing officer’s decision.

DWD 75.19(1) (1) Notice of intent to review. The department, or the applicant or eligible individual, may initiate a review of the hearing officer’s decision issued under s. DWD 75.17. If the department decides to initiate a review of the hearing officer’s decision, written notice of this decision shall be filed with the parties by certified mail within 20 calendar days of the date that the decision of the hearing officer was mailed. The intent to review notice shall advise the parties that additional evidence and information relevant to the final decision may be filed with the department within 30 calendar days following the date of the intent to review notice and that the department may also collect new evidence from other sources during that period.

DWD 75.19(2) (2) Review authority. Authority for modifying the decision of a hearing officer under this chapter is reserved to the department secretary and may not be otherwise delegated.

DWD 75.19(3) (3) Basis for changing hearing officer decision. The department may not modify a decision of a hearing officer which supports the position of the applicant or eligible individual unless, based on clear and convincing evidence, the decision is clearly contrary to law or federal policy issuances.

DWD 75.19(5) (5) Notice of outcome of the department’s review. The department shall notify the parties in writing by certified mail of the outcome of the review within 30 calendar days after the date of the intent to review notice. The notice shall state the findings, the grounds for the final decision, that it is the final decision unless modified by a court and information on how to file a request for circuit court review. The department shall send copies of the letter and any attachments to the hearing coordinator for placement in the applicant’s or eligible individual’s case record, to the hearing officer and to the contract administrator.

DWD 75.19 History History: Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. (title), (1), (2) (title), renum. (2) to (2) (a) and am., cr. (2) (b), (c), am. (3) to (5) Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (2) (title), renum. (2) (a) to (2) and am., r. (2) (b), (c), (4) Register June 2022 No. 798, eff. 7-1-22.