Section 122.08. Hearing process.

 

(1)   Right to a hearing. An applicant whose application is rejected may request a public hearing to review the department's initial finding.

(2)   Request for a hearing.

(a) An applicant desiring a public hearing shall file a written request for a public hearing, no later than 10 days after the issuance of the initial finding, to both the department's division of health care financing and the department of administration's division of hearings and appeals.

(b) The applicant requesting the hearing shall identify the criteria at issue no later than 20 days after the issuance of the finding.

(3)   Public hearing.

(a) Start of hearing process. The department shall commence the hearing process within 30 days after receiving a request under sub. (2) , or 30 days following the last request in the event of a concurrent review, unless all parties to the hearing consent to an extension of this period. The hearing process shall begin upon appearance of the parties before the hearing examiner as part of a prehearing conference.

(b) Applications undergoing concurrent review. All applications undergoing concurrent review shall be considered at one hearing.

(c) Location. All public hearings and prehearing conferences shall be held in the city of Madison unless any party demonstrates that this would impose an undue hardship on that party.

(d) Legal issues. A public hearing under this subsection shall consist of a review of the department's initial finding to approve or reject the project. The only issues in the hearing are whether the department's initial finding was:

1. Contrary to the weight of the evidence on the record when considered as a whole;

2. Arbitrary and capricious; or

3. Contrary to law.

(e) Prehearing conference.

1. At least 14 days prior to the public hearing, a prehearing conference shall be held. The purpose of the prehearing conference shall be to consider:

a. The possibility of obtaining admissions of fact and documents which will avoid unnecessary proof; and

b. The scheduling of the submission of names of witnesses to be called and the subject matter of testimony to be presented at the hearing.

2. The hearing examiner may issue prehearing orders:

a. Directing the order of presentation;

b. Limiting evidence and the number of witnesses;

c. Requiring that evidence be presented in written form and exchanged among parties prior to the hearing; and

d. Determining whether a party as defined under s. 227.01 (6) , Stats., has standing to participate in the hearing.

3. The hearing examiner shall prepare a memorandum summarizing the actions taken at the conference.

(f) Procedures for conducting the hearing.

1. Issues raised at the hearing shall be limited to the review criteria cited as grounds for disapproval in the initial finding. Criteria not identified in the initial finding are deemed met or not applicable. Evidence may be received which relates to noncontested criteria only to the extent the evidence is relevant to contested criteria.

2. Except as provided in subd. 3. , evidence admitted at the hearing shall be limited to:

a. The application, supporting documents which were submitted with the application, and additional information submitted in response to the department's requests;

b. The staff analysis, initial finding and supporting documents relied upon in making the initial finding;

c. The record of the public meeting under s. 150.35 (2) , Stats., and s. DHS 122.06 (6) , if any; and

d. Cross-examination of persons preparing or making statements contained in the documents under subpars. a to c.

3. Parties may be allowed to present additional evidence only to the extent the additional evidence is directly responsive to and made necessary by the evidence presented by any other party to the proceedings.

4. Persons preparing or making statements contained in the application, staff analysis, initial finding, recommendation or supporting documents shall be available for cross-examination, unless cross-examination is waived by opposing parties, and may give rebuttal testimony. Witnesses giving direct oral testimony shall be subject to cross-examination in the same manner as other witnesses.

5. Any party for the proceeding may be represented by counsel and present evidence and conduct cross-examinations subject to the provisions of subd. 2.

6. The examiner conducting the hearing may question all witnesses and take administrative notice of all judicially cognizable facts.

7. Evidence shall be duly offered and made part of the case record.

8. Any party adversely affected by a ruling may make an offer of proof which shall be made part of the record.

9. An applicant whose project is rejected has the burden of going forward.

(g) Hearing examiner duties. The hearing examiner shall:

1. Make all ruling as to evidence, testimony and official notice;

2. Set the order for examination and cross-examination of witnesses;

3. Administer oaths and affirmations;

4. Prepare written and oral summaries of cases heard;

5. Prepare a recommendation for the secretary, consisting of findings of fact, conclusions of law and a recommended course of action; and

6. Adjourn the hearing to a specific time, date and place, if appropriate.

(h) Hearing record. A stenographic record shall be made in all public hearings. If any party, including the department, wants a transcript or a portion of the transcript, that party shall make arrangements with the court reporter and shall pay whatever costs are agreed upon for making the transcript.

(i) Posthearing oral arguments and briefs.

1. Following presentation of the testimony, posthearing briefs may be filed by the applicant, the department and any interested party. Parties submitting briefs shall file copies within a reasonable time specified by the hearing officer.

2. The examiner may permit oral arguments in lieu of posthearing briefs. Any party that wishes to file a written brief shall be permitted to do so.

(j) Close of hearing. A hearing is closed when the evidentiary record is closed and any period established by the hearing officer for filing of briefs has elapsed. If the briefing period has expired and no brief of any party has been filed, the department may proceed to its final decision.

(k) Ex parte communication. The ex parte communication restriction is set forth in s. 227.50 (2) , Stats., including s. s. 227.50 (1) (am) 2. , Stats., shall apply to projects for which a public hearing has been requested.

(L) Proposed decision. Unless designated by the secretary as the final decision maker, the examiner shall issue a proposed decision containing findings of fact, conclusions of law, and a recommendation for action to be taken. A copy of the proposed decision shall be served on each party. In any hearing under this section, the examiner shall establish a comment period during which the parties may submit comments pertaining to the proposed decision. At the close of the comment period, the parties' submissions shall be forwarded to the secretary or a designee of the secretary along with the proposed decision.

(4)   Final decision.

(a) The final decision shall then be made by the secretary or the secretary's designee. In the event a designee is chosen, all parties shall be notified.

(b) A final decision may be issued to either approve or deny the application or to approve the application with conditions. If the proposed decision is deemed incomplete on any issue identified in the initial finding, the case may be remanded back to the examiner for the taking of further testimony.

(c) The secretary or designee of the secretary may ask all parties to the proceedings to present oral arguments before he or she makes a final decision.

(5)   Burden of proof. Each applicant at any hearing under this section has the burden of proving, by clear and convincing evidence, that the department's initial finding was contrary to the weight of evidence on the record when considered as a whole, arbitrary and capricious, or contrary to law.

(6)   Rehearing.

(a) A petition for rehearings shall meet the requirements set forth under s. 227.49 , Stats. The department shall review a petition for rehearing as provided in s. 227.49 , Stats.

(b) A petition for rehearing shall set forth the particular grounds for the relief sought. Copies of the petition shall be served on all parties of record.

(7)   Requirements for judicial review. Petitions for judicial review shall be filed in the circuit court as specified in s. 227.53 (1) (a) , Stats., within 30 days after the department issues its final decision, and shall be served on the department and other parties to the proceeding.

History: Cr. Register, March, 1985, No. 351 , eff. 4-1-85; am. (1), (2), (3) (f) 1., 2. c. and 9. (5), Register, January, 1991, No. 421 , eff. 2-1-91; corrections in (3) (k), (6) and (7) made under s. 13.93 (2m) (b) 1. and 7., Stats., Register, May, 1996, No. 485 ; correction in (3) (k) made under s. 13.92 (4) (b) 7., Stats., Register January 2009 No. 637 ; correction in (3) (k) made under s. 13.92 (4) (b) 7., Stats., Register July 2015 No. 715 ; correction in (3) (k) made under s. 13.92 (4) (b) 7., Stats., Register September 2015 No. 717 .

Note

The Division of Health Care Financing has been renamed the Division of Health Care Access and Accountability. The mailing address of the Department's Division of Health Care Access and Accountability is P.O. Box 309, Madison, Wisconsin 53701 and the mailing address of the Division of Hearings and Appeals P.O. Box 7875, Madison, Wisconsin 53707. Microsoft Windows NT 6.1.7601 Service Pack 1 The scope of judicial review is as provided in s. 227.57 , Stats., and the record consists of the material specified in s. 150.43 , Stats. Microsoft Windows NT 6.1.7601 Service Pack 1