Wyo. Code R. 049-0012-2
Contested Case Hearing
Chapter 2: Substitute Care and Child Care Licensing
Effective Date: 02/08/2019 to Current
Rule Type: Current Rules & Regulations
Reference Number: 049.0012.2.02082019
These rules are promulgated pursuant to W.S. § 16-3-101, et. seq., W.S. § 9-2-2104(a)(vii) and W.S. § 14-4-101 through 14-4-116.
These rules have been adopted to provide uniform procedures for the conduct of contested case hearings before the Child Care Certification Board pursuant to the Wyoming Administrative Procedure Act, W.S. § 16-3-101 through §16-3-115, and the statutes related to Child Care Facilities Certification, W.S. § 14-4-101 through 14-4-116.
Contested case hearings before the Child Care Certification Board shall be conducted according to these rules.
(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) 'Board' – the Child Care Certification Board acting as the board of review.
(b) 'Chairman' – the chairman of the Child Care Certification Board.
(c) 'Department' - the Department of Family Services.
(d) 'Director' - the Director of the Department of Family Services.
(e) 'Ex parte matter' - matters heard by the Hearing Officer in the absence of and without notice to the adverse party.
(f) 'Hearing Officer' shall be any designee of the Chairman to serve as the presiding officer at a hearing held under these rules. The Chairman may appoint such persons as necessary to assist in the conduct of a hearing.
(g) 'Informal Conference' - the conference conducted at the Department local level by the Licensing Program Manager or Supervisor to review case information concerning local Department action regarding a contested case.
(h) 'Person' - any individual, partnership, corporation, association, municipality, governmental subdivision, public or private organization of any character, other than an agency.
(i) 'Petitioner' - Department or individual as designated by the Hearing Officer.
(j) 'Respondent' - Department or individual as designated by the Hearing Officer.
Any person or his/her formally designated representative may make a written request to the Department for a hearing in a contested case. Requests may be provided to the local Department offices and shall then be forwarded to the Department State office.
(a) The request shall contain at least:
(i) Name, address, and telephone number of the person requesting the hearing; and identification of the person 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 child care facility licensing or certification shall be made within 10 days of receipt of notice of the Department action.
(b) The Chairman of the Child Care Certification Board, 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 shall 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 or if no adverse action has been taken by the Department, against a person requesting the hearing.
(B) A denial of a request for a hearing is a final decision of the Board which may be appealed to the district court pursuant to the Wyoming Administrative Procedures Act.
In all contested case hearings, the parties shall file all original documents, pleadings and motions with the Board with true and complete copies of the particular documents, pleadings or motions properly served on all of the parties or their attorneys and the Hearing Officer.
(a) In any contested case, all parties shall be afforded no less than 20 days advance notice of the hearing. The time period specified herein may be waived by an individual upon written notification filed pursuant to Section 9.
(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 at least five (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 shall be allowed to avoid manifest injustice.
(c) A hearing shall be held within 90 days of the Department action which gives rise to the complaint, unless otherwise provided by law.
If a party requesting a hearing fails to appear at the place, date, and time specified in a notice, the hearing officer may:
(a) Continue the hearing to a later date and provide notice as prescribed by these rules; or
(b) 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 submit a written request that the hearing be re-calendared, accompanied by a showing that good cause existed for the requesting party to have failed to appear at the originally scheduled hearing.
Within 10 days of receipt at the state office of the hearing request, the program manager, shall arrange an informal conference with the party requesting the hearing and the supervisor of the licensor, to discuss potential settlement of the case. If the parties arrange settlement, informal disposition shall be followed.
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 Board.
(a) The Chairman or designee shall appoint a hearing officer to preside over contested case hearings on a case-by-case basis or for a scheduled period of time, as deemed appropriate.
(b) Any party may request in writing the Chairman recuse 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
Chairman or designee may deny a party's request for recusal 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 Chairman or designee shall appoint a new hearing officer as soon as is practicable.
(a) A Hearing Panel shall be selected from the Child Care Certification Board to hear a case and make a recommendation for the Child Care Certification Board to make the final decision.
(b) A Hearing Panel shall consist of a committee of three (3) or more Board members designated by the Chairman of the Child Care Certification Board to hear a case and recommend a decision on behalf of the Board.
(a) The Department bears the burden of proof in cases where an existing license was suspended, revoked, or denied a renewal. The Petitioner shall bear the burden of proof in instances where an initial license was denied. The burden of proof shall be by a preponderance of the evidence.
(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) At the discretion of the hearing officer, telephone calls may be used to conduct any hearing or other proceeding. 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).
(c) If a Board member needs counsel regarding the hearing, he/she shall contact the Attorney General's office.
(a) The hearing officer shall make proposed findings of fact and conclusions of law within 20 working days of the close of the hearing and forward them to members of the Hearing Panel for approval as a recommended decision. 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 working days of the hearing officer's recommended decision, the Hearing Panel shall issue its recommended decision to the Board.
(ii) Within 10 working days of the date of the Hearing Panel's recommended decision, each party shall be allowed to file with the Board 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 working days of receipt of the Hearing Panel's recommended decision, the Board 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.
(i) The decision shall include:
(A) A statement of the findings of fact and conclusions of law, stated separately, with a concise and explicit statement of the underlying facts supporting the findings; and
(B) The appropriate rule, order, relief or denial thereof. The decision shall be based upon a consideration of the whole contested case record or any portion stipulated to by the parties.
(ii) The decision shall state all facts administratively noticed and relied upon as provided by W.S. §16-3-108(d).
(c) Final decisions of the Board shall be approved by a majority of members present at a meeting where a quorum exists, signed by the Chairman and be effective immediately after being entered in the record and served upon all parties. Service shall be accomplished either personally or by mailing a copy of any decision or order to each party or to their attorney of record within a reasonable time following the entry of the decision into the record.
Appeals from a final decision of the Board shall be taken in accordance with W.S. §16-3-114 and Rule 12 of the Wyoming Rules of Appellate Procedure.
(a) When a contested case is set for hearing, the Chairman or designee shall assign a docket number to each case and enter the case with its number and date of filing in a docket book maintained by the Chairman or designee. The Chairman or designee shall maintain a separate file for each docketed case in which all pleadings, transcripts, correspondence, papers, and exhibits for that case shall be maintained. All such items shall have noted thereon the assigned docket number and the date of filing.
(b) The Chairman or designee 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 the 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.
(i) In a nonpublic investigation proceeding, requests for copies or transcripts may be limited to testimony of the requesting party.
(ii) Where individuals can demonstrate indigence and cannot effectively perfect appeal without such transcription, the Department may waive the payment of the fee.
(c) The record of the hearing shall contain:
(i) All formal or informal notices, pleadings, motions, intermediate rulings;
(ii) Evidence received or considered, including matters administratively noticed;
(iii) Questions and offers of proof, objections and rulings;
(iv) Any proposed findings of fact and conclusions of law and exceptions thereto; and
(v) The recommended decision of the Hearing Panel to the Child Care Certification Board and the final decision of the Board.
If any portion of these rules is found to be invalid or unenforceable, the remainder shall continue in effect.