Hacker v. Wisconsin Department of Health & Social Services

SHIRLEY S. ABRAHAMSON, J.

{concurring). I write separately to emphasize my concern that the factual allegations contained in DHSS' October 30 revocation letter did not provide Hacker with adequate notice of her alleged violation of Wis. Admin. Code § HSS 3.23(4)(b).

*482As the majority notes, majority op. at 462, a notice of revocation under Wis. Stat. § 50.03(5)(b) must contain "a clear and concise statement of the violations on which the nonrenewal or revocation is based, the statute or rule violated and notice of the opportunity for an evidentiary hearing." Section 50.03(5)(b) was not part of § 3, ch. 413, Laws of 1975, which created chapter 50. However, Wis. Stat. § 50.03(5)(b) was added during the next legislative session as part of an effort both "to provide for the due process and other rights of facility residents and operators"1 and "[t]o relieve procedural confusion."2

The notice provided to Hacker in this case raises due process concerns and compounds the procedural confusion which Wis. Stat. § 50.03(5)(b) was designed to alleviate. Although she was informed that she had violated Wis. Stat. § 50.09(1)(L) (1993-94) by failing to provide "adequate and appropriate care" to all facility residents, Hacker was given no clue that she had thereby violated Wis. Admin. Code § HSS 3.23(4)(b), which required her to procure "a written order for any prescription medications, treatments, physical therapy or medically modified diets provided or arranged" for the residents of her facility.

As the majority correctly observes, Wis. Stat. § 50.03(5)(b) "does not require DHSS to cite every section to which an examiner may refer in reaching a conclusion." Majority op. at 464. But it does not thereby follow that citing a general statutory provision giving no indication of the particular infractions alleged *483against a licensee constitutes sufficient notice to that licensee under Wis. Stat. § 50.03(5)(b).

Because DHSS gave Hacker no indication that she had violated Wis. Admin. Code § HSS 3.23(4)(b), it failed to comply with the plain language and thwarted the stated purpose of Wis. Stat. § 50.03(5)(b). A letter announcing that one has broken a general law cannot substitute for specific notice of which laws one has broken.

For the reasons set forth, I concur in the mandate.

Section 1, ch. 170, Laws of 1977 (stating the legislative intent and creating Wis. Stat. § 50.03(5)(b)).

Drafter's Comment, Legislative Reference Bureau drafting file to ch. 170, Laws of 1977.