State of Wisconsin Department of Health Services

Release 24-02 August 22, 2024

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4.7 Fair Hearing

CTSCaretaker Supplement - An additional amount of monthly cash benefit provided to certain SSI recipients in Wisconsin who reside with their dependent children. Wisconsin funds this benefit with a combination of state dollars and its federal Temporary Assistance for Needy Families (TANF) grant. applicants and recipients may appeal any of the following actions of the Department of Health Services (DHS) or an Income Maintenance (IM) agency and request a fair hearing:

• Denial of an application for CTS or the overt denial of the right to apply
• Failure to act on an application with reasonable promptness
• Reduction or termination of CTS benefits
• The determination of the amount or initial eligibility date of CTS benefits
• The determination of an overpayment of CTS benefits
• The determination to recover an overpayment of CTS benefits by means of certification to the Wisconsin Department of Revenue and the determination of the amount of such an overpayment as including an amount they believe has already been repaid or discharged in bankruptcy

The right to a fair hearing and hearing procedures are specified in State Statutes, Chapter 227, Subchapter III, Administrative Actions and Judicial Review, and in the Wisconsin Administrative Code, Chapter HA 3, Procedure and Practice for Fair Hearings. 

Hearings are conducted by the Wisconsin Department of Administration, Division of Hearings and Appeals (DHA) for the Caretaker Supplement (CTS) program. In addition, DHA conducts hearings for the BadgerCare Plus, Medicaid, and FoodShare programs.

Hearings serve to:

1. Interpret the program to applicants and members who disagree with the agency’s action.
2. Bring the applicant or member, the agency, and state authorities into discussion for a better understanding of problems.
3. Resolve factual disputes.
4. Clarify policies and their application in relation to laws and regulations.
5. Review policies in program administration and reveal those which require clarification or revision.
6. Promptly remedy unfair treatment, mistaken or arbitrary action, and negligence.

Hearings are conducted by an Administrative Law Judge (ALJ). The ALJ is an impartial official who:

• Is familiar with relevant federal and state policies and procedures.
• Was not involved in the action being contested.
• Was not the immediate supervisor of the worker who took the action.
• Does not have a personal stake or involvement in the case.

ALJs are duly appointed and qualified agents of DHA.

The ALJ’s powers and duties are to:

• Administer oaths or affirmations.
• Ensure all relevant issues are considered.
• Request, receive, and place in the record all evidence necessary to decide the issue.
• Regulate the hearing’s conduct and course consistent with due process to ensure an orderly hearing.
• Provide a hearing record and decision.

The ALJ conducts the hearing and issues its decision on CTS cases usually within 60 to 90 days of the date DHA receives the hearing request. 

The ALJ will issue a final decision for most hearings. The IM agency must carry out the decision within 10 days.

The ALJ will sometimes issue a proposed decision if there are questions about CTS policy or if the policy conforms to state and federal law. All parties may send written comments to DHA within 15 days of receipt of the proposed decision. After the 15-day comment period, DHA will send the proposed decision and all comments received to the Secretary of the Department of Health Services. The Secretary will review the proposed decision and make the final decision. The final decision will then be communicated to all parties.

If the applicant, member, or representative fails to appear at the hearing without good cause, the hearing request will be dismissed. This type of dismissal is called an Abandoned Hearing. DHA will notify the applicant, member, or representative and the agency when a hearing is dismissed.

If an applicant or member disagrees with a hearing decision, they may request a rehearing or appeal the hearing decision to the Circuit Court (see Section 4.7.7 Rehearing and Section 4.7.8 Judicial Appeals).

An applicant or member who wins a decision may also ask for reimbursement of any attorney fees (see Section 4.7.6 Cost Motion).

The hearing record is available for copying and inspection by the applicant, member, representative, or agency at any reasonable time. All hearing records and decisions are available for public inspection and copying, so long as applicant and member identity is safeguarded.

4.7.1 Resolution Prior to Hearing

When an applicant or member disagrees with an agency's action, the applicant or member may contact their agency to attempt to resolve the issue. This may be done through the normal modes of communication between the applicant or member and the agency, such as a phone call or in-person visit. It also may be done through an agency conference where the applicant or member meets with the worker responsible for the agency's action or other agency representatives. 

Contact with the agency does not affect the applicant or member’s right to a fair hearing or the time limit for requesting a fair hearing. The agency must advise the applicant or member that an agency conference is the applicant or member’s choice and doesn't delay or replace a fair hearing. The applicant or member may request a hearing without first contacting the agency. 

Note	If the applicant or member requests a fair hearing, the fair hearing process will continue unless the applicant or member voluntarily withdraws the hearing request in writing to DHA (see Section 4.7.4 Withdrawal of Fair Hearing Request).

4.7.2 Fair Hearing Request

A request for a fair hearing may be made by the applicant, member or former member, representative, immediate family member or someone with legal authority to act on their behalf. A request for a hearing may be made in writing by filling out the Request for Fair Hearing form (DHA-28) or writing a letter with the request and sending it to the Division of Hearings and Appeals (DHA). 
 
Division of Hearings and Appeals
P.O. Box 7875
Madison, WI 53707-7875
 
Fax: (608) 264-9885
 
Email: DHAMail@wisconsin.gov

DHA will schedule a hearing upon receipt of the hearing request. DHA has jurisdiction to conduct hearings for CTS if the request is received by DHA within 45 days of any of the following: 

• The date on a denial notice, a notice of overpayment, or recoupment of benefits
• The effective date of a reduction or termination of benefits
• The date of other actions

DHA may dismiss a request if the action being appealed is a result of a change in federal or state law or policy affecting a significant number of members, unless the member questions its application specific to their case. When a hearing request is dismissed, DHA will notify the applicant or member.

A hearing request from an applicant or member who plans to move from Wisconsin before a decision would normally be issued, such as a migrant worker, will be expedited so the applicant or member can receive a decision and any restored benefits before they leave the state.

A group of people may request a group hearing if individual issues of fact are not disputed, and the sole issue being appealed is a federal or state law or policy. DHA may also consolidate several hearings on the same topic into one but only on questions of policy. Procedures for group hearings are the same as in individual hearings. Each applicant or member must be notified of the right to withdraw from a group hearing and pursue an individual hearing.

4.7.3 Continued Benefits

DHA may order a member’s CTS benefits to continue while a decision on the hearing is pending. The IM and Fiscal Services agencies must comply with DHA's initial order until otherwise notified or the member waives this continuation of benefits. The IM agency must inform members of their right to waive continued benefits and that they may have to pay back any continued benefits received if they lose the hearing decision.

DHA can reverse its continuance order only when the hearing was not requested prior to the action's effective date. If DHA does not order benefits reinstated and the agency believes that the member is entitled to them, the agency must notify DHA.

Once benefit continuation has begun, the IM and Fiscal Services agencies must maintain those benefits until DHA orders a change or some other change in eligibility occurs.

4.7.4 Withdrawal of Fair Hearing Request

Only the applicant, member, or their representative may withdraw a fair hearing request for CTS. Applicants, members, and representatives can fill out the Voluntary Withdrawal form (DHA-17) or send a written and signed letter to DHA (see Section 4.7.2 Fair Hearing Request for DHA contact information).

Only DHA has the authority to grant or deny a withdrawal request. DHA will notify the agency if a fair hearing request is withdrawn.

4.7.5 Hearing Assignments

A hearing shall be:

• Held at a time reasonably convenient to the applicant or member or their representative, department, or agency staff, and the ALJ.
• Easily accessible to the applicant or member.
• Held on agency premises, whenever possible.  

An applicant or member may be represented by an attorney or anyone of their choosing.

An applicant or member must notify DHA at least five days prior to the hearing if they need special arrangements for the hearing, such as an interpreter or a hearing site other than the county agency.

DHA shall provide written notice to the applicant or member and their representative, if any, of the time, date, and place of the hearing at least 10 days before the hearing.

DHA may postpone a hearing for good cause. 

The parties may be directed by the ALJ to appear at a conference or to participate in a telephone conference to consider how issues might be clarified or simplified, whether facts or documents which may be admitted which will avoid unnecessary proof, or any other matter that may aid in the disposition of the appeal.

The applicant, member, or their representative shall have an opportunity to do any or all of the following:

• Examine all documents and records to be used or that are used at the hearing, and the content of the applicant’s or member’s case file, at a reasonable time before the date of the hearing and during the hearing.
• Present the case or have it presented by a representative.
• Bring witnesses.
• Question or refute any testimony or evidence and confront and cross−examine adverse witnesses.
• Submit relevant evidence to establish all pertinent facts and circumstances in the case.
• Advance relevant arguments without undue interference.

A hearing shall be recorded by the ALJ.

If individual issues of fact are not in material dispute and related issues of state or federal law are the sole issues being raised, DHA may respond to a series of individual requests for a hearing by conducting one group hearing.

4.7.6 Cost Motion

When the applicant or member wins a hearing, their attorney may file a cost motion with DHA. A cost motion is a request for payment of attorney fees and other costs associated with the hearing.

The ALJ will review the cost motion and agency response to DHA and decide if:

• The agency's position at the hearing was not "substantially justified" and costs associated with the cost motion must be paid from state funds.
• The agency was "substantially justified" or special circumstances exist which would make the award of the cost motion unjust.
• The cost motion was frivolous (that is, submitted in bad faith) for the purpose of harassing or maliciously injuring the state agency. The agency should include facts relating to harassment in its response to DHA if such conduct occurred. In this case, the hearing officer may award costs to the state agency.

4.7.7 Rehearing

An applicant or member may request a rehearing by DHA. The request must be made within 20 days of the date of the decision. DHA may grant or refuse the request. A rehearing will be held only when there has been one or more of the following:

1. An error of law
2. An error of important fact
3. New evidence discovered which could not have been presented at the first hearing

DHA will usually not grant a rehearing unless the error or new evidence is sufficiently important to change the decision. If DHA neither grants nor denies a rehearing request within 30 days, the request is deemed denied.

4.7.8 Judicial Appeals

An applicant or member that disagrees with the final decision may appeal to the Circuit Court of their residence within 30 days of the date of the decision or rehearing denial, whichever is later.

Note	An applicant or member may appeal to the court without first requesting a rehearing.

The applicant or member’s petition for review to the Court must include:

1. The issue being appealed.
2. How they are aggrieved by the decision.
3. The request for relief they desire.

A copy of the petition will be served on DHS with notice to the Wisconsin Attorney General's Office.

4.7.9 IM Agency Responsibilities for Fair Hearings

4.7.9.1 Prior to the Hearing

The agency must prepare for the hearing by reviewing the appropriate case records and determine the cause of the contested action. The agency must submit a detailed summary to DHA and the applicant, member, or their representative that explains the action(s) under appeal within 10 days of receiving notification of the hearing request. 

The agency must also gather relevant testimonies, exhibits, and materials from the case record and other sources. This information must be submitted to DHA and the applicant, member, or their representative prior to the hearing. 

At least 10 days prior to the hearing, DHA sends a Notice of Scheduled Hearing to the applicant, member, and/or representative, as well as the agency. This allows the applicant or member and agency 10 days to prepare for the hearing. The applicant or member may request less advance notice to expedite scheduling the hearing.

The notice states:

1. DHA will dismiss the request if the applicant, member, or any representative fails to appear without good cause.
2. The name, address, and phone number of whom to notify if the applicant, member, or representative cannot attend.
3. The applicant or member and any representative may examine the case record prior to the hearing. Agencies must allow the applicant, member, or representative access to their case record and the opportunity to photocopy, free of charge and at a reasonable time before the hearing, all documents they would like to introduce as an exhibit at the hearing. Questions relating to the examination of sensitive information can be directed to DHA.

4.7.9.2 After the Hearing

Proposed Decisions

Agencies may respond to a Proposed Decision. Written comments must be sent to DHA within 15 days of the date of the proposed decision.

Final Decisions

A final decision is binding upon the department and IM or fiscal services agency involved and may be enforced by appropriate legal and fiscal sanctions.

When a decision is favorable to the applicant or member, the IM agency must carry out the decision’s orders within 10 days of the order. 

When the decision is not favorable to the applicant or member, the decision notice is the final notice for the case, except for overpayment notices. No further timely or adequate notice requirement applies for the issue that was appealed. CTS benefits will be discontinued or reduced immediately.

Cost Motion

The agency has 15 days from the filing of the cost motion to submit a written response to DHA.

Rehearing and Judicial Appeals

If a rehearing is granted or an appeal of the hearing decision is made to the Circuit Court, the agency must continue to comply with the final decision unless and until a decision from the rehearing or the Court reverses it. The agency is not required to assist the client in preparing a rehearing or a judicial appeal.

Recoupment

If an agency's adverse action is upheld or the fair hearing is withdrawn or abandoned, any overpayments caused by benefits having been continued may be subject to recovery based on the overpayment policies (see Section 4.3 Recoupment of Incorrect Benefits).

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The information concerning the Caretaker Supplement program provided in this handbook release is published in accordance with Section 49.775 of the Wisconsin Statutes and Chapters HA 3 and DHS 2 of the Wisconsin Administrative Code.

Notice: The content within this manual is the sole responsibility of the State of Wisconsin's Department of Health Services (DHS). This site will link to sites outside of DHS where appropriate. DHS is in no way responsible for the content of sites outside of DHS.

Publication Number: P-23131