Chapter HA 3

HA 3.07 HA 3.07 Witnesses and subpoenas. The division or the administrative law judge may issue a subpoena, under the same procedure and in the same form as provided by s. 805.07 (1), Stats., at a party’s request if it appears that the testimony will be relevant and reasonably necessary for a full and fair hearing. The administrative law judge may require the party to provide written justification for the subpoena requested. A subpoena requiring the production of material may be issued if the person requesting the subpoena specifies the documents to be presented by the subpoenaed witness and if the request is found reasonable by the administrative law judge. The party requesting the subpoena is responsible for service and for fees.

HA 3.07 History History: Cr. Register, November, 1999, No. 527, eff. 12-1-99.

HA 3.08 HA 3.08 Administrative law judge.

HA 3.08(1) (1) An administrative law judge may do all of the following:

HA 3.08(1)(a) (a) Administer oaths and affirmations.

HA 3.08(1)(b) (b) Rule on offers of proof, accept relevant evidence and exclude from the record evidence that is irrelevant or repetitious.

HA 3.08(1)(c) (c) Dispose of procedural requests or similar matters.

HA 3.08(1)(d) (d) Regulate the conduct and course of the hearing consistent with due process to ensure an orderly hearing.

HA 3.08(1)(e) (e) Exclude individuals from the hearing, adjourn the hearing or otherwise reasonably respond to contemptuous conduct.

HA 3.08(1)(f) (f) Admit into evidence a deposition as a substitute for testimony, but only when the witness is unavailable as defined in s. 908.04, Stats. Depositions sought by the parties for the purpose of discovery are not authorized by this provision.

HA 3.08(1)(g) (g) Exclude individuals from the hearing to preserve the applicant’s or recipient’s confidentiality or where an individual’s presence is not considered essential, depending on the circumstances of the case including space limitations.

HA 3.08(1)(h) (h) Exercise discretion in excluding cameras from the hearing room.

HA 3.08(2) (2) An administrative law judge may at any time disqualify himself or herself. On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of an administrative law judge, the division or administrative law judge shall determine the matter as part of the record and decision in the case.

HA 3.08(3) (3) The administrative law judge may grant a continuance or additional time to present evidence once a hearing has started when the administrative law judge finds it necessary to the proceeding or to ensure that the petitioner is given a complete and fair hearing.

HA 3.08(4) (4) If the hearing in a medicaid case involves medical issues such as those concerning a diagnosis or an examining physician’s report and if the administrative law judge considers it necessary to have a medical assessment other than the one considered in making the original decision, the administrative law judge may order a new assessment to be obtained at department or agency expense and made a part of the record.

HA 3.08(5) (5) The administrative law judge may access and use information concerning the petitioner’s case history, benefit issuance history, calculations and notice history which is in the departments’ official computer systems, such as, but not limited to, the Client Assistance for Reemployment and Economic Support (CARES) system except that such information may not be used for the determination of substantive fact as to any issue in dispute.

HA 3.08 History History: Cr. Register, November, 1999, No. 527, eff. 12-1-99.

HA 3.09 HA 3.09 Hearing decision.

HA 3.09(1) (1) The tape recording of the hearing, the exhibits, papers and requests filed in the proceeding and matters of which the administrative law judge has taken official notice shall constitute the exclusive record for decision.

HA 3.09(2) (2) The decision shall be in writing in the name of the department by the department secretary or a designee such as an administrative law judge in the division.

HA 3.09(3) (3) The decision shall set forth the names and addresses of all persons who appeared before the division in the proceeding who are considered parties for purposes of judicial review, the issue or issues, the principal relevant facts elicited at the hearing, the reasoning that led to the decision, citation of legal authority, the action taken and the parties’ appeal rights. These elements shall be grouped under appropriate headings such as preliminary recitals, findings of fact, discussion, conclusions of law and the order.

HA 3.09(4) (4) Unless a different standard is provided by law, the standard for decision shall be by a preponderance of the credible evidence.

HA 3.09(5) (5) Where necessary and appropriate, an interim decision may be issued, where a final decision dispositive of the merits of the case is not possible.

HA 3.09(6) (6) A copy of the decision shall be mailed to the petitioner, the petitioner’s representative, if any, and the agency or the department organizational unit charged with the administration of the assistance or services involved. The petitioner’s mailing address shall be the address given for the petitioner on the hearing request, unless the petitioner has notified the division of another address in writing or placed it on the hearing record.

HA 3.09(7) (7) The decision shall include the names and addresses of the petitioner and the department or agency. The division shall serve a copy of the decision on each party. The decision is served on a party as of the date it is mailed by the division.

HA 3.09(8) (8) The petitioner may request a copy of the audio cassette tape recording of the hearing. The division shall furnish the requested recording upon receipt of payment for the cost of duplication and mailing. A written transcript of the hearing shall be prepared only if an appeal is filed with a circuit court pursuant to s. 227.53, Stats. If the petitioner requests a written copy of that transcript following the filing of that appeal, the division may impose a reasonable charge per transcript page.

HA 3.09(9) (9) 

HA 3.09(9)(a) (a) Except for a proposed decision under par. (b), or by order in a specific case, the decision of the administrative law judge shall be the final decision of the department in proceedings under this chapter.

HA 3.09(9)(b) (b) The administrative law judge shall submit a proposed decision to the secretary or designee for decision in any of the following circumstances:

HA 3.09(9)(b)1. 1. The decision holds that a manual or handbook provision, contract provision, state plan provision, numbered memo administrative directive or other official document is invalid or limited under a statute, administrative rule or federal regulation.

HA 3.09(9)(b)2. 2. The department has not delegated final decision making authority to the division.

HA 3.09(10) (10) When a proposed decision rather than a final decision is issued, the petitioner and the agency or department may file written comments with the division within 15 days from the date of service of the decision. This period may be extended for 10 days upon request of either party. At the close of the comment period, the proposed decision and comments shall be forwarded by the division to the secretary for issuance of a final decision.

HA 3.09(11) (11) The division shall ensure that decisions for medicaid are issued in a timely manner so that final administrative action may be taken within 90 days from the date of filing of the hearing request, and that decisions for food stamps are issued within 60 days from the date of filing of the hearing request.

HA 3.09(12) (12) When a petition for review is dismissed in its entirety, final administrative action is taken on the date the division mails the decision to the petitioner.

HA 3.09(13) (13) A final decision is binding upon the department and agency involved and may be enforced by appropriate legal and fiscal sanctions. The agency involved shall implement any food stamp decision within 10 days after the date of the decision.

HA 3.09 History History: Cr. Register, November, 1999, No. 527, eff. 12-1-99.

HA 3.10 HA 3.10 Rehearing and amendment of decision.

HA 3.10(1) (1) When requested by the petitioner or that person’s representative, the department or an agency or, upon its own motion, the division, may, within 30 days of the date of the decision, amend or vacate a decision for the purpose of correcting either plain or administrative errors, or as altered conditions may require.

HA 3.10(2) (2) A petitioner or that person’s representative, an agency or the department may request a rehearing pursuant to s. 227.49, Stats. Such a request shall state what error of law or fact is asserted as the basis for the rehearing or what newly discovered evidence has been found which could not have been found earlier with due diligence. Upon granting a rehearing, the division shall determine whether or not a proceeding to consider additional evidence is required.

HA 3.10(3) (3) After a decision has been issued dismissing a hearing request as abandoned by the petitioner as provided in s. HA 3.05 (4) (d), the division may vacate that decision upon the assertion by petitioner in writing within 30 days of the date of the decision that the matter has not been abandoned.

HA 3.10 History History: Cr. Register, November, 1999, No. 527, eff. 12-1-99.

HA 3.11 HA 3.11 Costs motion.

HA 3.11(1) (1) A petitioner may file a motion for costs under s. 227.485, Stats., with the division and the department or agency within 30 days of service of the final decision if the petitioner was the prevailing party. The petitioner need not be represented by an attorney to file a costs motion.

HA 3.11(2) (2) Although no specific form or format is required, a complete costs motion shall contain an explanation of why the state agency which was the losing party was not substantially justified in taking its position, and an itemized application for fees and other expenses, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the petitioner stating the actual time expended and the rate at which fees and other expenses were computed. A complete motion shall also contain an affidavit or other proof that the petitioner has federal adjusted gross income of less than $150,000 in each of the 3 calendar years or corresponding fiscal years immediately prior to the commencement of the case.

HA 3.11(3) (3) The petitioner’s costs may include attorney’s fees and any of the following items if the item provided evidence relevant to the hearing issue on which the party prevailed:

HA 3.11(3)(a) (a) Expert witness fees.

HA 3.11(3)(b) (b) Any study, analysis, engineering report, test or project determined by the administrative law judge to be necessary for preparation of the case.

HA 3.11(3)(c) (c) Service of process on relevant witnesses.

HA 3.11(3)(d) (d) Certified copies of papers and records in any public office.

HA 3.11(3)(e) (e) Postage.

HA 3.11(3)(f) (f) Telephone, telegraph or FAX expense.

HA 3.11(3)(g) (g) Depositions of unavailable witnesses, including necessary photocopies.

HA 3.11(3)(h) (h) Plats and photographs.

HA 3.11(4) (4) The department or agency may respond in writing to the administrative law judge within 15 days of its receipt of a complete costs motion. If the petitioner’s costs motion contains a request for expert witness fees, the response shall indicate the highest rate of compensation paid by the agency or department to an expert witness in the case.

HA 3.11(5) (5) The administrative law judge may deny a costs motion that is not complete.

HA 3.11(6) (6) The administrative law judge shall prepare a written proposed decision which denies or awards some or all of the requested costs. That proposed decision shall be forwarded by the division to the department for issuance of a final decision.

HA 3.11 History History: Cr. Register, November, 1999, No. 527, eff. 12-1-99.

HA 3.12 HA 3.12 Wisconsin works.

HA 3.12(1) (1) Upon receipt of a timely petition under s. 49.152, Stats., the division shall review the fact-finding decision of the Wisconsin works agency.

HA 3.12(2) (2) The division shall deny a petition or refuse to grant relief if the Wisconsin works applicant or recipient withdraws the petition in writing.

HA 3.12(3) (3) Upon receipt of a petition, the division may make any additional investigation it considers necessary.

HA 3.12(4) (4) The Wisconsin works agency shall forward the fact-finding file to the division within 5 days of notification of the request for review.

HA 3.12(5) (5) If the division or administrative law judge determines that the record provided for review is inadequate or incomplete, the division may conduct a hearing, issue an interim decision directing the Wisconsin works agency to supplement the record, or take further action considered necessary to provide for a meaningful review.

HA 3.12 History History: Cr. Register, November, 1999, No. 527, eff. 12-1-99; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register February 2013 No. 686; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register June 2023 No. 810.