Register July 2012 No. 679
Chapter ETF 11
Purpose and scope.
Process and proceedings.
Evidence at hearing.
Final disposition by hearing examiner.
Ex parte communications.
Board member conflict of interest.
Counsel for the board.
Petition for rehearing.
The purpose of this chapter is to establish a regular and uniform system of procedures and rules governing the review of appealable department determinations by the board responsible for the subject matter. This chapter interprets the provisions of ss. 227.44
, Stats., concerning the conduct of proceedings, as those provisions apply to the deferred compensation board, group insurance board, teachers retirement board and Wisconsin retirement board and establishes rules for appeals to the employee trust funds board and its designees. Any appeal to a board of a determination made by the department shall be conducted in accordance with this chapter.
The deferred compensation board shall hear the timely appeal of a determination made by the department with respect to a right or benefit under the deferred compensation plan provided by ss. 40.80
, Stats. This authority is delegated from the employee trust funds board under s. 40.03 (1) (L)
The group insurance board shall hear the timely appeal of a determination made by the department affecting any right or benefit under any group insurance plan provided under ch. 40, Stats.
The teachers retirement board shall hear the timely appeal of a determination made by the department regarding a disability annuity for a teachers participant, pursuant to s. 40.63 (5)
and (9) (d)
The Wisconsin retirement board shall hear the timely appeal of a determination made by the department regarding a disability annuity for a participant other than a teacher, in accordance with s. 40.63 (5)
and (9) (d)
, Stats. In addition, the department shall make the initial determination of the amount of a duty disability benefit and whether to terminate or reduce a benefit under s. 40.65 (3)
, Stats., and the Wisconsin retirement board shall hear the timely appeal of these determinations.
The employee trust funds board shall hear the timely appeal of any other determination made by the department.
Nothing in this section shall prevent the board responsible for hearing the subject matter of an appeal from delegating that responsibility to a hearing examiner.
ETF 11.01 History
Cr. Register, June, 1992, No. 438
, eff. 7-1-92.
Words, phrases and terms used in this chapter have the same meanings as set forth in s. 40.02
, Stats., and s. ETF 10.01
, except as defined in this chapter or where the context clearly indicates a different meaning. In this chapter:
"Administrative agent" means a person who has entered a contract with a board or the department to provide administrative services to a program administered by that board or the department under ch. 40, Stats.
The term includes the administrative agent of the group insurance board or department who assists in the administration of a group insurance plan under ch. 40, Stats.
, for which the public employee trust fund is the insurer.
"Appeal" means the review of a written finding, notification or decision specifically set forth in a determination made by the department conducted by a board under s. 40.03 (1) (j)
, (6) (i)
, (7) (f)
, or (8) (f)
"Appeals coordinator" means the department staff responsible for receiving appeals, forwarding appeals to the hearing examiner, and working directly with the hearing examiner and board on administrative matters regarding an appeal.
"Appellant" means the person, including a participant, annuitant, beneficiary, employer, insured, insurer or deferrer who initiates an appeal to the board. "Appellant" also includes a person appealing an adverse determination of participating employee status.
"Board" means the employee trust funds board, deferred compensation board, group insurance board, teachers retirement board or Wisconsin retirement board according to the context of its application.
"Board staff" means the department employees assigned by the secretary to perform tasks in support of the board.
"Deferrer" means an employee who participates in the deferred compensation program under ch. 40, Stats.
"Determination made by the department" means a written finding, notification or decision of the department, which includes a notice of appeal rights and applies law or contract terms to actual facts to determine a benefit, right, obligation or interest under ch. 40, Stats.
, including contracts authorized by ch. 40, Stats.
, of a person who is, or claims the status of, a participant, annuitant, beneficiary, employer, insured, insurer or deferrer.
"E-mail" means to send via electronic mail over a computer network.
"Hearing examiner" means the person who presides over each appeal of a determination made by the department of employee trust funds including an administrative law judge employed by the division of hearings and appeals.
"Insured" means a person covered under a group insurance plan provided under ch. 40, Stats.
"Insurer" means the person bearing the financial risk and liability for payment of claims under a group insurance plan provided under ch. 40, Stats.
, including where applicable the public employee trust fund.
"Mail" means to send via the U.S. mails as at least first class mail, and includes sending by express mail, special or overnight delivery, certified or registered mail.
"Respondent" with respect to an appeal means the department of employee trust funds. In addition:
The employer is a respondent in the appeal of a department determination which was based on the employer's determination that a person is not a participating employee or protective occupation participant or based on the employer's certification, or failure to certify, under s. 40.63 (1) (c)
The insurer and administrative agent are respondents in the appeal of a department determination affecting any right or benefit under any group insurance plan provided under ch. 40, Stats.
, except that the department shall represent the interests of the public employee trust fund as insurer.
"Substantial interest" means, with respect to an appeal under this chapter, a direct and material interest in the particular determination made by the department, which interest is specially and adversely affected, either by the particular determination itself or by the result sought by the appellant of that determination, beyond the effect common to other similarly situated persons. The term does not include a derivative, indirect or mere nominal interest.
ETF 11.02 History
Cr. Register, June, 1992, No. 438
, eff. 7-1-92; renum. (1) to be ETF 10.01 (1h), Register, July, 1999, No. 523
, eff. 8-1-99; CR 11-040: renum. (9), (10), (11), (12), (13) to be (11), (12), (13), (14), (15), cr. (9), (10) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (3), cr. (3m), am. (8) Register July 2012 No. 679, eff. 8-1-12.
Limitations on appeals.
In addition to the requirements under sub. (3)
, the following time limitations apply to appeals:
An appeal seeking correction of an alleged error with respect to service credits or contribution, premium or benefit payments is barred unless commenced within 7 years after the date of the alleged error, except as some other limitation is specifically provided by statute or this chapter. Where an alleged error has been incorporated in department records and relied upon in subsequent administration of ch. 40, Stats.
, benefits, the date of the alleged error for the purposes of this section and s. 40.08 (10)
, Stats., is the earliest date on which the aggrieved person discovered, or should reasonably have discovered, the alleged error.
Example: If an alleged error involves creditable service for a given year, and the amount of service credited was first reported to the participant on an annual statement the following year, the date of the alleged error is the date of the report to the participant, not a subsequent date on which the alleged error in creditable service is used to calculate retirement benefits or repurchase of forfeited service
Notwithstanding par. (a)
, an appeal seeking correction of an alleged error with respect to service credits or contribution, premium or benefit payments, based on a claim of fraud, is barred unless commenced within 6 years from the date of the discovery by the aggrieved person of the facts constituting the fraud.
All other appeals are barred unless commenced within the appropriate statutory limitation period, including but not limited to those provided by ss. 893.43
and 893.93 (1) (a)
An appeal barred by operation of s. 41.04 (2) (c)
, 1979 Stats., or similar predecessor statute, is barred regardless of longer time limits set by s. 40.08 (10)
, Stats., or this section.