Wyo. Code R. 049-0012-1
Effective Date: 02/08/2019 to Current
Rule Type: Current Rules & Regulations
Reference Number: 049.0012.1.02082019
Section 1. Authority. These rules are promulgated pursuant to the Wyoming Administrative Procedure Act, W.S. § 16-3-102, and W.S. § 9-2-2104(a)(vii).
Section 2. Purpose. These rules have been adopted to provide uniform procedures for conducting all contested case hearings pursuant to the Wyoming Administrative Procedure Act, W.S. § 16-3-101 through § 16-3-115 unless specifically provided otherwise by statute or these rules would conflict with federal regulation. The Office of Administrative Hearing Rules, Chapter 2, Contested Case Proceedings are incorporated in these rules.
Section 3. Applicability. These rules apply to a proceeding, including but not restricted to, rate making, price fixing, licensing, and determination of benefit eligibility, level of benefits, Adult Protective Services, or Child Protective Services, in which legal rights, duties or privileges of a party are required by law or regulation to be determined by the Department after an opportunity for hearing. These proceedings include fair hearings and administrative hearings.
(a) Any code, standard, rule or regulation incorporated by reference does not include any later amendments or editions of the incorporated matter beyond the applicable date identified in subsection (b) of this section.
(b) Each rule incorporated by reference is further identified as follows:
(i) Chapter 2, Uniform Rules for Contested Case Practice and Procedure, adopted by the Office of Administrative Hearings and effective on October 17, 2014, found at: http://soswy.state.wy.us/Rules/RULES/9644.pdf, with the exception of the following sections: 2, 4(b) & (c), 9(a) & (c), 14(e), 15, 16(d), 19, 21, and 26.
(a) 'Department' - the Department of Family Services (Department).
(b) 'Director' - the Director of the Department of Family Services.
(c) 'Informal Conference' - the conference conducted at the Department local level by a Regional Manager, District Manager or Supervisor to review case information concerning local Department action regarding a contested case.
(d) 'Petitioner' - agency or individual as designated by the Office of Administrative Hearings.
(e) 'Respondent' - agency or individual as designated by the Office of Administrative Hearings.
(a) Any person or his/her formally designated representative may make a request to the Department for a hearing in a contested case. All requests may be made within local offices and forwarded to the Department.
(b) Requests for a hearing on issues pertaining to Personal Opportunities with Employment Responsibilities (POWER), Supplemental Nutrition Assistance Program (SNAP), Child Care Eligibility Program, Low Income Energy Assistance (LIEAP) Program, Adult Protective Services or Child Protective Services should be in writing; however, oral requests made to Department staff shall be accepted and reduced to writing by the Department..
(a) The request shall contain at least:
(i) Name, address, and telephone number of the person requesting the hearing, and on whose behalf the hearing is being requested;
(ii) The reason for the request, including the nature of the departmental action, order or determination being contested; and
(iii) Name and address of the requesting party's legal counsel or representative, if the requesting party has retained counsel or a representative at the time the request for hearing is made.
(a) Requests for a hearing on issues pertaining to POWER shall be made within 30 days from the date of mailing of the agency action.
(b) Requests for a hearing on issues pertaining to SNAP shall be made within 90 days from the date of mailing of any agency action.
(c) Requests for a hearing on issues pertaining to LIEAP shall be made within 10 days from the date of mailing of the agency action.
(d) Requests for a hearing on issues pertaining to Child Care Eligibility shall be made within 30 days from the date of mailing of the agency action.
(e) Requests for a hearing on issues pertaining to Child Protective Services, including substantiations of child abuse or neglect, shall be made within 20 days from the date of mailing by first class mail to last known address, of the agency action.
(f) Requests for a hearing on issues pertaining to Adult Protective Services, including substantiations of abuse or neglect, shall be made within 20 days from the date of mailing of the agency action.
(g) Requests for a hearing on issues pertaining to the Burial Program, shall be made within 20 days from the date of the denial of benefits.
(h) The Director or designee shall evaluate the request, and within 20 days of receipt of the request:
(i) Notify the requesting party a hearing has been approved and will be held in accordance with these rules; or
(ii) Notify the requesting party of the denial of a hearing as requested and the reasons for the denial.
(A) A hearing may be denied if the request for a hearing does not meet the definition of a contested case.
(a) For all hearing requests except a hearing request regarding expedited SNAP, the Department local office which took action adverse to an individual shall schedule and conduct an informal conference with that individual within 7 days of receiving a request for a hearing. For a hearing request regarding expedited SNAP, the DFS local office which took adverse action shall schedule and conduct an informal conference within 2 days of receiving a request for a hearing.
(b) The purpose of the informal conference shall be to review facts and legal authority upon which the Department relied in making the determination to take adverse action. The party requesting hearing may present facts and legal authority to refute the Department's determination to take action.
(c) The informal conference shall be conducted by the Regional Manager, District Manager or Supervisor of the local Department office which determined adverse action should be taken. The individual requesting a hearing and any Department employee the District Manager designates as important to an adequate review of Department's action shall attend the conference.
(d) The informal conference may be waived by the party whose interests have been adversely affected.
(e) The Department Regional or District Manager shall immediately provide a letter to the affected individual when results of an informal conference have been successful. The letter shall document successful resolution and a copy shall be provided to the Department.
(f) When successful resolution is not achieved through an informal conference, the Department Regional or District Manager shall immediately provide a letter to the Department. The letter shall document unsuccessful resolution and shall request a contested case hearing be scheduled. A copy of the letter shall immediately be provided to the Respondent.
(a) In any contested case, the hearing officer shall afford reasonable notice of the hearing to all parties.
(i) Reasonable notice, as used in this section, shall be not less than 20 days prior to the hearing date.
(A) The time period specified herein may be waived by an individual upon written or oral notification to the hearing officer.
(B) Where notification of waiver is made orally it shall be reduced to writing by the hearing officer and entered in the individual's record and forwarded with written notice to all parties.
(b) Upon request for a continuance by either party served, the hearing officer shall, upon a showing of good cause, allow the party an alternative time and place for the hearing, provided such request is made within 10 days from the date of mailing of the notice of hearing.
(i) When a request for a continuance is granted, the hearing officer shall reissue the notice in accordance with these rules except reasonable notice as used in this subsection shall be 5 days prior to the hearing date.
(ii) Only one (1) request for rescheduling of a hearing shall be honored unless, in the hearing officer's judgment, additional changes must be allowed to avoid manifest injustice. Notice shall be issued as provided by Subsection (a) above.
(iii) The party may request and is entitled to receive a continuance of the scheduled hearing. The continuance shall not exceed 30 days and the time limit for action on the decision may be extended for as many days as the hearing is postponed.
(c) For all cases other than SNAP, a hearing shall be held within 90 days of the Department action which gives rise to the complaint, unless otherwise provided by law.
(d) For SNAP cases, a hearing shall be held within 30 days of the Department action which gives rise to the complaint.
If a party requesting a hearing fails to appear at the place, date, and time specified in a notice, the hearing officer may dismiss the hearing and send notice to all parties the hearing was dismissed for the requesting party's failure to appear. The party requesting the hearing shall have 20 days from the mailing of the dismissal notice, to request, in writing, the hearing be recalculated and that good cause existed for the requesting party to have failed to appear at the originally scheduled hearing.
Settlement of a contested case by any informal means shall be allowed at any time unless precluded by law. Such settlements shall be in writing by both parties and included as a part of the record. The hearing officer shall enter an order dismissing the contested case proceeding upon such settlement, and such order shall be considered a final order of the Department.
(a) The hearing officer in Child Protective Services cases shall be the Office of Administrative Hearings. In all other cases, the Director shall appoint a hearing officer to preside over contested case hearings.
(b) In all cases other than Child Protective Services, any party may request in writing the Director remove and replace the hearing officer in a contested case. This request shall be accompanied by a statement and affidavits, if appropriate, setting forth the alleged grounds for disqualification. The Director or designee may deny a party's request for removal and shall issue a written statement explaining the grounds for denial which shall be made a part of the record. If the request is granted, the Director or designee shall appoint a new hearing officer as soon as is practicable. In Child Protective Services cases, the rules of the Office of Administrative Hearings and the Wyoming Administrative Procedures Act shall apply to the recusal of a hearing officer.
(a) The burden of proof is as follows:
(i) In benefit cases involving initial application for eligibility, the burden of proof is on the applicant. In benefit cases involving an overpayment, revocation or reduction of benefits, the burden of proof is on the Department.
(ii) In Child Protective Services and Adult Protective Services cases, the burden of proof is on the Department.
(b) Privileged and confidential information
(i) Any privilege at law shall be recognized by the hearing officer in considering evidence.
(ii) No employee of the Department shall be compelled to testify or to divulge information which is confidential or privileged at law and which is contained within the records of the Department or acquired within the scope of employment except as provided in W.S. § 16-3-107.
(c) Child Protective Services and Adult Protective Services hearings shall be conducted in person in the county of origination.
(d) At the discretion of the hearing officer, telephone calls may be used to conduct other hearings or proceedings. At the discretion of the hearing officer, parties or their witnesses may be allowed to participate in hearings by telephone.
(a) All parties have a right to represent themselves, to be represented by an attorney licensed to practice law in Wyoming or any other person chosen by the party to appear on their behalf. Individuals requesting a hearing may be eligible for legal services available through a legal services program, if available, and if the applicable guidelines of that program are met.
(i) If the individual requesting a hearing has a representative or is represented by an attorney, payment of attorney's fees and costs are the responsibility of the individual requesting a hearing.
(b) Department employees may request the Attorney General to assist in contested case hearings to the extent required by W.S. § 16-3-112(c).
The hearing officer shall make findings of fact and conclusions of law within 20 working days of the close of the hearing for final determination. This time may be extended if the parties or other interested persons are to submit briefs; but, in no event may this time be extended by more than 10 working days, unless a later date is stipulated, in writing, by Petitioner and Respondent. The decision shall be made on the basis of a preponderance of evidence contained in the record.
(a) The hearing officer shall make proposed findings of fact and conclusions of law within 10 calendar days of the close of the hearing and forward them to the Director or designee for final determination. This time may be extended if the parties or other interested persons are to submit briefs; but, in no event may this time be extended by more than 10 calendar days, unless a later date is stipulated, in writing, by Petitioner and Respondent.
(b) Within 10 calendar days of the date of the hearing officer's recommended decision, each party shall be allowed to file with the Department exceptions to the recommended decision with or without a supporting brief. Such exceptions and briefs shall be served on all other parties.
(c) Within 10 calendar days of receipt of the hearing officer's recommended decision, the Director or designee shall make and enter in the record the final decision in the case and the party shall receive notification of the final decision.
(a) The hearing officer shall make proposed findings of fact and conclusions of law within 20 calendar days of the close of the hearing and forward them to the Director or designee for final determination. This time may be extended if the parties or other interested persons are to submit briefs; but, in no event may this time be extended by more than 10 working days, unless a later date is stipulated, in writing, by Petitioner and Respondent.
(i) Within 10 calendar days of the date of the hearing officer's recommended decision, each party shall be allowed to file with the Department exceptions to the recommended decision with or without a supporting brief. Such exceptions and briefs shall be served on all other parties.
(b) Within 15 calendar days of receipt of the hearing officer's recommended decision, the Director or designee shall make and enter in the record the final decision in the case. This decision shall be made and served on all parties to the proceeding.
(c) The decision shall be made on the basis of a preponderance of evidence contained in the record.
(a) Upon receipt of the final order, if adverse to the party, the party may submit a petition to the District Court in the county where the administrative action or inaction was taken, or the District Court in the county in which the party adversely affected by the administrative action or inaction resides or has its principle place of business, and in compliance with W.S. § 16-3-114(a).
(b) Appeals from a final decision of the Department shall be taken in accordance with W.S. § 16-3-114 and Rule 12 of the Wyoming Rules of Appellate Procedure. The Department may appeal a final decision of the Office of Administrative Hearings in accordance with W.S. § 14-3-204(b) and the Wyoming Rules of Appellate Procedure.
The hearing officer shall record all contested case proceedings electronically, through the use of a qualified court reporter or any other appropriate means determined by the Department, or hearing officer, as approved by the Department. Transcriptions of oral proceedings or written transcripts of a witness’s testimony may be obtained upon payment of the cost. Costs may include costs of transcription, pro-rated time of a Department employee to duplicate tapes for transcription, cost of tapes and any other cost associated with transcription of the hearing tapes.
If any portion of these rules is found to be invalid or unenforceable, the remainder shall continue in effect.