Can Day Care Providers Get a Fair Shake?

In a typical legal proceeding, there’s a plaintiff, a defendant and an independent judge who makes the final decision.

But the appeals process for day care providers who have been suspended from the Wisconsin Shares program isn’t quite following that format.

In these cases, 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 unjust and unconstitutional,” said Genniene Lovelace-Michel of AFSCME Council 40, which represents child-care providers outside of Milwaukee County.

In these cases, the DCF can overrule any proposed decision with which it disagrees.

It works this way: First, DCF suspends Wisconsin Shares payments to a provider it “reasonably suspects” has violated program rules.

Then, the suspended provider is allowed to appeal that suspension in the state Division of Hearings and Appeals.

An appeals hearing takes place where the day care provider (“the petitioner”) and the state (“the respondent”) provide testimony to make their case before an administrative law judge.

Then, the administrative law judge delivers a “proposed decision,” explaining the facts in the case and his or her legal reasoning and conclusions.

That “proposed decision” then goes to the day care provider and DCF. Both sides are given 15 days to respond.

But instead of the administrative law judge acting as an independent, impartial decision-maker and making the final determination based on the facts of the case, 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 provider is then forced to appeal Bicha’s decision in circuit court within 30 days of the final decision if she disagrees with DCF’s decision.

As the proposed 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 of Children and Families for final decision-making.”

“It Makes No Sense”

DCF spokeswoman Erika Monroe-Kane confirmed that process.

“[After the proposed decision] DCF would then make a decision and the petitioner, the child-care provider, could decide if they wanted to take it to court,” Monroe-Kane said.

One final decision has been issued and six proposed decisions are awaiting final action, DCF said.

“This is extremely unjust,” AFSCME’s Lovelace-Michel said. “It makes no sense.”

Yet DCF maintains that the process is fair.

“I think that there’s an appeal possible at the different steps for the defendant [the provider]. There are many opportunities for that person to make their case and the process has due process,” Monroe-Kane said.

Making matters worse, the fallout from a license revocation will cling to the provider for years to come.

“[Secretary] Bicha can overturn [a proposed decision] and say DCF wins and then the provider has 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 circuit court, which is extremely costly, then that revocation stands permanently on her record for the rest of her life. Anytime she fills out a background form she will be required to state that she has a revocation of a license.”

Even if the provider is exonerated, the temporary revocation will affect her in the future.

“The question [on a background check] is, have you ever been denied or revoked or had your license limited—and they will have to say yes,” said Silke O’Donnell, also of AFSCME Council 40.

Lovelace-Michel said that an unwarranted suspension can ruin a provider’s business.

“No matter what, these providers will continue to have that blemish on their record and their business, their reputation, will have been destroyed both in the media and by the state,” she said.

The result, she said, is that fewer day care providers are willing to take a risk and care for children in the Wisconsin Shares program.

“Providers are too scared to take care of children who are most in need of high-quality child care—children from low-income families,” Lovelace-Michel said.

A Slow Process

Wisconsin Shares cases have been slowly working their way through the appeals process. Statutes require that appeals hearings of license revocations be scheduled and conducted within 30 days of being requested. But those statutes are being disregarded, O’Donnell said.

“The first thing they ask is if you waive your 30-days right to a hearing,” O’Donnell said. “In many of our cases we were already past that.”

There is no such deadline for appeals of payment suspensions, however.

A wave of suspensions began in September 2009, fueled by the Milwaukee Journal Sentinel’s “Cashing in on Kids” series, which has made a scapegoat of Wisconsin Shares providers.

That series led to reactionary legislation enacted last year that allows DCF to immediately and indefinitely suspend providers that it “reasonably suspects” have violated program rules. The legislation passed by both houses of the state Legislature was more reasonable and balanced until Gov. Jim Doyle selectively vetoed words to significantly alter the legislation.

About 140 providers have been suspended; few cases have been resolved, either through the appeals process or by negotiating a settlement.

The most high-profile suspension was that of Latasha Jackson, who became the poster child for fraud after the Journal Sentinel targeted her day care and million-dollar suburban home.

Yet Jackson was cleared by Administrative Law Judge Brian Schneider in January; he recommended that her license be reinstated and determined that her overpayment was $400, not the half-million dollars alleged by DCF.

But that decision was only a proposed decision. Jackson’s attorney Rodney Cubbie has argued that DCF Secretary Bicha should not be involved in reviewing the case because Bicha had made derogatory statements about Jackson in the press.

“Neither Mr. Bicha, nor anyone answerable to him, is competent to fairly review any matter involving Latasha Jackson or Kiddie Springs [Jackson’s day care center],” Cubbie wrote in his response to the proposed decision.

Or, as Cubbie told the Shepherd after the proposed decision was released, “This guy Bicha has absolutely no business—zero—being involved in anything reviewing a decision about Latasha Jackson.”

In its response, DCF’s attorney, Nancy Wettersten, wrote: “While the division believes there is sufficient evidence to reverse the Proposed Decision and revoke the petitioner’s child care license, the division would accept the alternative of remanding the case back to the ALJ for further consideration and testimony.”

DCF has not issued a final decision in this case.