But theappeals process for day care providers who have been suspended from theWisconsin Shares program isn’t quite following that format.
In thesecases, the Department of Children and Families (DCF) issues the final decision,not the independent administrative law judge who hears all of the evidence.
“It’s unjustand unconstitutional,” said Genniene Lovelace-Michel of AFSCME Council 40,which represents child-care providers outside of Milwaukee County.
In thesecases, the DCF can overrule any proposed decision with which it disagrees.
It worksthis way: First, DCF suspends Wisconsin Shares payments to a provider it“reasonably suspects” has violated program rules.
Then, thesuspended provider is allowed to appeal that suspension in the state Divisionof Hearings and Appeals.
An appealshearing takes place where the day care provider (“the petitioner”) and thestate (“the respondent”) provide testimony to make their case before anadministrative law judge.
Then, theadministrative law judge delivers a “proposed decision,” explaining the factsin the case and his or her legal reasoning and conclusions.
That“proposed decision” then goes to the day care provider and DCF. Both sides aregiven 15 days to respond.
But insteadof the administrative law judge acting as an independent, impartialdecision-maker and making the final determination based on the facts of thecase, DCF (or DCF Secretary Reggie Bicha’s designee) makes the final decision.DCF is not given a time frame in which it must make its decision.
The provideris then forced to appeal Bicha’s decision in circuit court within 30 days ofthe final decision if she disagrees with DCF’s decision.
As theproposed decisions state: “Following completion of the 15-day comment period,the entire hearing record together with the proposed decision and the parties’objections and argument will be referred to the secretary of the Department ofChildren and Families for final decision-making.”
“ItMakes No Sense”
DCFspokeswoman Erika Monroe-Kane confirmed that process.
“[After theproposed decision] DCF would then make a decision and the petitioner, thechild-care provider, could decide if they wanted to take it to court,”Monroe-Kane said.
One finaldecision has been issued and six proposed decisions are awaiting final action,DCF said.
“This isextremely unjust,” AFSCME’s Lovelace-Michel said. “It makes no sense.”
Yet DCFmaintains that the process is fair.
“I thinkthat there’s an appeal possible at the different steps for the defendant [theprovider]. There are many opportunities for that person to make their case andthe process has due process,” Monroe-Kane said.
Makingmatters worse, the fallout from a license revocation will cling to the providerfor years to come.
“[Secretary]Bicha can overturn [a proposed decision] and say DCF wins and then the providerhas a choice to either take the revocation or take it to circuit court,”Lovelace-Michel said. “If she doesn’t have the funds to fight it in circuitcourt, which is extremely costly, then that revocation stands permanently onher record for the rest of her life. Anytime she fills out a background formshe will be required to state that she has a revocation of a license.”
Even if theprovider is exonerated, the temporary revocation will affect her in the future.
“Thequestion [on a background check] is, have you ever been denied or revoked orhad your license limitedand they will have to say yes,” said Silke O’Donnell,also of AFSCME Council 40.
Lovelace-Michelsaid that an unwarranted suspension can ruin a provider’s business.
“No matterwhat, these providers will continue to have that blemish on their record andtheir business, their reputation, will have been destroyed both in the mediaand by the state,” she said.
The result,she said, is that fewer day care providers are willing to take a risk and carefor children in the Wisconsin Shares program.
“Providersare too scared to take care of children who are most in need of high-qualitychild carechildren from low-income families,” Lovelace-Michel said.
ASlow Process
WisconsinShares cases have been slowly working their way through the appeals process.Statutes require that appeals hearings of license revocations be scheduled andconducted within 30 days of being requested. But those statutes are beingdisregarded, O’Donnell said.
“The firstthing they ask is if you waive your 30-days right to a hearing,” O’Donnellsaid. “In many of our cases we were already past that.”
There is nosuch deadline for appeals of payment suspensions, however.
A wave ofsuspensions began in September 2009, fueled by the Milwaukee Journal Sentinel’s “Cashing in on Kids” series, which hasmade a scapegoat of Wisconsin Shares providers.
That seriesled to reactionary legislation enacted last year that allows DCF to immediatelyand indefinitely suspend providers that it “reasonably suspects” have violatedprogram rules. The legislation passed by both houses of the stateLegislature was more reasonable and balanced until Gov. Jim Doyle selectivelyvetoed words to significantly alter the legislation.
About 140providers have been suspended; few cases have been resolved, either through theappeals process or by negotiating a settlement.
The mosthigh-profile suspension was that of Latasha Jackson, who became the posterchild for fraud after the JournalSentinel targeted her day care and million-dollar suburban home.
Yet Jackson was cleared byAdministrative Law Judge Brian Schneider in January; he recommended that herlicense be reinstated and determined that her overpayment was $400, not thehalf-million dollars alleged by DCF.
But thatdecision was only a proposed decision. Jackson’sattorney Rodney Cubbie has argued that DCF Secretary Bicha should not beinvolved in reviewing the case because Bicha had made derogatory statementsabout Jacksonin the press.
“Neither Mr.Bicha, nor anyone answerable to him, is competent to fairly review any matterinvolving Latasha Jackson or Kiddie Springs [Jackson’s day care center],” Cubbie wrote inhis response to the proposed decision.
Or, asCubbie told the Shepherd after theproposed decision was released, “This guy Bicha hasabsolutely no businesszerobeing involved in anything reviewing a decisionabout Latasha Jackson.”
In itsresponse, DCF’s attorney, Nancy Wettersten, wrote: “While the division believesthere is sufficient evidence to reverse the Proposed Decision and revoke thepetitioner’s child care license, the division would accept the alternative ofremanding the case back to the ALJ for further consideration and testimony.”
DCF has notissued a final decision in this case.
