The state Department of Children and Families (DCF) enacted an emergency rule on July 9 that gives the department new powers to collect alleged overpayments fromand seize the property ofday care providers in the Wisconsin Shares program.
But two months later, DCF has not communicated that news to day care providers who could lose their homes and other property when DCF acts on its new powers.
Nor did it warn the providers’ union, AFSCME District Councils 40 and 48, of the new rule, in violation of the department’s agreement with the union.
Representatives from AFSCME Council 40, which represents providers around the state except for Milwaukee County, say that DCF did not inform them of the emergency rule when they met on July 8, one day before the emergency rule was submitted to the state.
“We are allowed to give feedback and input to rule changes,” said Genniene Lovelace-Michel of AFSCME Council 40.
DCF spokeswoman Stephanie Hayden, who did not respond to the Shepherd’sspecific questions about the emergency rule, said merely that the department is “talking with AFSCME regarding their concerns.”
Too latethe emergency rule is in effect until Dec. 5. A similarly worded permanent rule has been proposed and will be sent to the relevant legislative committees for comment.
New Penalties for Mistakes
So what is the fuss over the emergency rule about?
First, it expands the definition of an “overpayment.” Previously, an overpayment could be alleged if the provider was responsible for the overpayment and if the provider earned more money because of it.
Now, however, DCF can accuse a provider of receiving an overpayment even if the provider makes a clerical error and the filing doesn’t result in increased pay for the provider. The provider is also held liable for errors made by DCF.
The emergency rule also allows DCF to refuse payments to providers for an indefinite period of time based on “reasonable suspicion,” a very low burden of proof. Until now, payment refusals were limited to six months.
The rule also grants DCF an almost unlimited right to recoup overpaymentsincluding seizing and auctioning off a provider’s assets.
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In addition to DCF’s expanded powers to recoup alleged overpayments, fines and forfeitures have spiked in the rule change, from $1,000 maximum to $10,000 for a single violation of Wisconsin Shares rules. Yet the emergency rule does not delineate the fines associated with various violations and DCF is not required to adhere to any objective standards, which means that DCF can set the fine amount as it chooses.
Legal Action of Wisconsin, which submitted written comments to DCF on Sept. 3, blasted the new rule for being too harsh on providerseven those who simply made a clerical mistake that did not even result in increased payments. The group argues that the emergency rule and proposed permanent rule go far beyond the Legislature’s intent when it enacted Wisconsin Shares reforms in 2009.
“These new rules do not respond to any emergency,” Legal Action’s comments state. “They have been implemented in order to significantly expand the definition of an overpayment and greatly increase the arsenal of penalties that can be used against child care providers who violate program rules.”
The rule changes come on the heels of a year of witch-hunt-like actions by DCF, spurred on by sensationalized reporting in the Milwaukee Journal Sentinel about alleged fraud in the Shares program.
Instead of targeting intentional fraud in the program and improving training and oversight, the state Legislature has given DCF free rein to shut down day care providers in the state based on “reasonable suspicion” of fraud.
And when individual day care providers appealed their cases in the administrative law systemand wonDCF Secretary Reggie Bicha ordered that all Wisconsin Shares decisions made by an administrative law judge be returned to DCF as proposed, not final.
Bicha now has the final word and DCF serves as prosecutor, judge and jury in these cases. Indeed, a review of Shares appeals shows that Bicha’s DCF routinely overturns decisions that are in the provider’s favor.
