7.6.2 Wisconsin's ETPL Appeals Procedures
Effective date: February 3, 2020
Grounds for Appeal
Institutions may appeal an adverse determination relating to an ETPL eligibility denial or termination. The purpose of an appeal is to determine:
- whether DWD-DET wrongly denied or terminated an institution's eligibility for failing to meet the institution minimum requirements or institution-level information requirements;
- whether DWD-DET wrongly denied or terminated an institution's program eligibility for failing to meet the standard or alternate eligibility criteria or program-level information requirements;
- whether DWD-DET wrongly denied or terminated an institution's eligibility for a substantial violation;
- whether DWD-DET inaccurately determined the period of noncompliance for a substantial violation;
- whether DWD-DET inaccurately determined the fund reclamation amount for a substantial violation.1
Levels of Appeal
Wisconsin's appeal procedure consists of two levels:
First Level: The Director for DWD-DET's Bureau of Workforce Training, or DWD-DET's Deputy Administrator in the Director's absence, performs an internal review by examining the adverse determination in light of the federal authority, DWD-DET's ETPL policies, and the existing record for the institution and program at issue. The Director or Deputy Administrator may also perform additional fact gathering as deemed appropriate, including communicating with institution staff. A first level appeal must occur before the matter can be appealed to the second level.
Second Level: The matter is assigned to an impartial Administrative Law Judge (ALJ) with DWD's Equal Rights Division (ERD) for a hearing. The ALJ issues an administrative decision that is final; the matter is not appealable to the Secretary of the Department of Labor.2
Note: DWD-DET's determinations relating to a period of noncompliance and fund reclamation amount may be appealed to the first level only; these determinations may not be appealed to the second level.3
Arrangement with ERD for Hearing Services
If the training institution is dissatisfied with the decision from the first level of appeal, it may file a second level appeal with DWD-DET to have a hearing on the matter. The grounds for ERD to hear ETPL matters on appeal is established through a Memorandum of Agreement (MOA) between DWD-DET and ERD. The MOA specifies the following:
- DWD-DET must certify issues for hearing to ERD within five business days of receipt of the training institution's second level appeal. The certification must state the date the second level appeal was received.
- The ALJ shall conclude the hearing within 60 days of the date the second level appeal was received by DWD-DET and issue a decision within 30 days from the conclusion of the hearing.
- DWD-DET may attempt to informally resolve the matter at any time, up to a final decision from the ALJ.
- The hearing may be conducted in-person or via telephone or video conferencing, or through a combination of approaches as deemed appropriate by the ALJ.
- For purposes of conducting the hearings, ERD will adopt the procedures provided by Wis. Stat. § 227.46 to set hearing procedures and to examine evidence.
- The ALJ's decision shall be in writing and include the findings of fact, conclusions of law, opinion and order.
- ERD will ensure that a copy of the decision is served, by either mail or personal service, or, at the election of the respective parties, by email.
- Within five business days from the date of the decision, ERD will return the complete record to DWD-DET, including any files and records generated by ERD as part of the proceeding. ERD will not serve as the custodian for these records.
Notification of Right to Appeal
DWD-DET is responsible for notifying the training institution of its right to appeal an adverse determination relating to an ETPL eligibility denial or termination. To accomplish this, DWD-DET must provide the institution with a plain language statement that outlines the procedure, including timelines, the institution must follow to request a first level review of the matter. This is to be included in the email that identifies the reason(s) for the denial or termination. See 7.5.2 Wisconsin's Procedures for Eligibility Denials and Terminations.
If the result of the first level appeal affirms the adverse determination and the institution has the right to a hearing, DWD-DET must provide the institution with a plain language statement that outlines the procedure, including timelines, the institution must follow to file a second level appeal. If the institution does not have the right to a hearing, DWD-DET must notify the institution that the determination from the first level appeal is final.
Procedure and Timeline for Filing Appeals
- Upon receiving email notification from DWD-DET of an adverse determination, the institution may file a first level appeal by sending an email from the Officer's email address to DETETPL@dwd.wisconsin.gov. The email must clearly state the institution's desire to appeal the adverse determination and the reason(s) the institution believes the determination was incorrect or inaccurate. The email must be sent no later than ten business days after the date of DWD-DET's email notification.
- If the institution timely files a first level appeal, the Director for DWD-DET's Bureau of Workforce Training, or DWD-DET's Deputy Administrator in the Director's absence, will perform an internal review of the matter and either affirm or reverse the adverse determination. DWD-DET will send the Officer an email notification containing the outcome of the first level appeal. This email notification must be sent no later than ten business days after the date DWD-DET received the institution's first level appeal.
- Upon receiving the email notification from DWD-DET following the first level appeal, the institution may file a second level appeal, if allowed, by sending an email from the Officer's email address to DETETPL@dwd.wisconsin.gov. The email must clearly state the institution's desire to appeal the matter to a hearing and the reason(s) the institution believes the outcome of the first level appeal was incorrect or inaccurate. The email must be sent no later than ten business days after the date of DWD-DET's email notification containing the outcome of the first level appeal.
- If the institution timely files a second level appeal, DWD-DET will certify the issues for hearing to ERD.
The institution's failure to comply with this procedure, including timelines, results in the institution waiving its right to appeal.
For purposes of this procedure:
- "business days" means all days other than weekends and legal holidays observed by Wisconsin state government offices.
- "the institution" means the institution's Officer, except for instances where DWD-DET denies ETPL eligibility because it was unable to identify an Officer for the institution through sources other than Institution Application. See 7.4.6 Institution Minimum Requirements. For this exception only, the individual who submitted the Institution Application is considered "the institution."
Note: Any Officer of the institution may appeal a denial or termination of eligibility. If the individual appealing is not the Officer that DWD-DET has on record for the institution, DWD-DET must confirm that the individual appealing meets the definition of an Officer before the appeal may proceed. This, however, may result in a delay of the aforementioned timeline. This delay will not affect the institution's right to have the matter reviewed on appeal.
Requirement to Appear at the Hearing
DWD-DET requires that the individual who files the second level appeal, or a designee, appear at the hearing to represent the institution. For the purposes of this procedure, to "appear" means that the representative participates in the hearing using the method of communication chosen by the ALJ.
If no representative(s) for the institution appear at the scheduled hearing, the institution loses its right to the hearing.
ETPL Institution and Program Status During Appeal
If eligibility for a program on the ETPL website is terminated, DWD-DET will remove the program from the ETPL website for the duration of the appeals process.
ETPL Institution and Program Status After Appeal
If a training program's ETPL eligibility had been terminated but, following the appeals process, eligibility is reinstated, DWD-DET will republish the program to the ETPL website within three business days from the final determination.
If a training institution or one of its training programs had been denied eligibility and, following the appeals process, the denial is affirmed, the institution may reapply to the ETPL as soon as it can address the reason(s) that had originally resulted in the denial.
If, following the appeals process, it is affirmed that an institution committed a substantial violation, the institution must wait two years from the date of the final determination before reapplying to the ETPL.4
For purposes of this procedure, "the final determination" means the date the email notification is sent following the first level appeal or the date the ALJ's decision is served following a second level appeal.
For a first level appeal, the individual performing the internal review cannot have a potential or perceived conflict of interest. Examples of potential or perceived conflict of interest include:
- having had a business relationship with the institution that predated the individual's tenure at DWD;
- having a personal relationship with an Officer of the institution;
- having a family member work for the institution;
- being a former student of the training institution.
If there is a potential or perceived conflict of interest, the individual performing the internal review must recuse her/himself from the appeal proceeding. Should the situation arise where both the Director for DWD-DET's Bureau of Workforce Training and DWD-DET's Deputy Administrator must recuse themselves, another director within DWD-DET will be asked to perform the internal review.
- 1 20 CFR § 680.480(b) mandates fund reclamation for substantial violations. The reclamation amount is the amount of WIOA training funds an institution received during the period of noncompliance. An institution that has committed a substantial violation is liable to repay the reclamation amount. DWD-DET determines the reclamation amount; this amount must be supported by documentation showing payment (e.g., a receipt, cleared check, or electronic funds transfer).
- 2 20 CFR § 683.630(b)(3)
- 3 While 20 CFR § 683.630(b) only requires that a hearing be made available for denial or termination of ETPL eligibility, DWD-DET allows a first level appeal for determinations relating to a period of noncompliance and/or fund reclamation amount.
- 4 20 CFR §§ 680.470(c) and 680.480(b)