Providers Seeking Justice sign now

To: All Legislation parties especially, Lena Taylor, Tamara Grisby, Leon Young, Jason Fields, Department of Children and Family services, Reggie Bicha, Stephanie Hayden, Attorney JB Van Hollen, The President of The United States Barack Obama..

WE THE UNDERSIGNED hereby Petition the above Honorable Dignitaries for the immediate discharge of law 49.155 and the Emergency Rule. This rule is a clear violation of all constitution rights and deprives majority of African Americans of their rights to Due process of law and the right to a fair trial.

RELEVANT FACTS: 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 doesnt 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 providers assets. Providers havent been notified by DCF as usual about a major law change that directly affects them. Milwaukee County refused a free Audit 5 years ago, this audit was offered to keep provider informed of rules and laws and to ensure proper training for counties staff. Later the county chooses, at taxpayers expense to have an audit only when they started to run red ink.
1.) In this Audit disguised as a better way to combat fraud, you will find that Milwaukee County estimated time devoted to activities was
Attendance Reviews/Overpayment Calculations 68\%
Systems Data Review 15\%
Fair Hearings Participation 6\%
On-site Provider Visits 5\%
Administrative Activities 2\%
Training 1\%
Other 3\%
Total 100\%
2.) Weak training given to County employees is one of the many reasons that this childcare system is misused. Even when a flag shows in the system to stop authorizing children to licensed or certified providers, they are routinely overridden. According to ESS staff, workers have not been trained properly in what to do when the warning screen appears. There was an understanding that ESS workers could ignore the warning, and that vendor liaison workers would address the problem when
processing payment requests. Proper controls at this point of the system would limit a providers ability to bill for excess authorizations later. Conversely, ignoring these warnings creates opportunities for overpayments. MCDHHS management points out that the state systems excess authorization warning is impractical, because the effort required to ascertain provider operating hours and attendance patterns is not readily available.

In September 2009, a series of Milwaukee Journal Sentinels were about to hit the media with help from Department Of Children and Family Services. After a closer look at Milwaukee Countys Audit, providers were chosen to as scapegoats by the State. DCF leaked non- pubic trumped up charges to Milwaukee Journal Sentinel to ensure that providers were made out to be criminals. 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 Legislatures intent when it enacted Wisconsin Shares reforms in 2009.
These new rules do not respond to any emergency, Legal Actions 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. (By Lisa Kaiser of the Sheppard Express)
STANDARD OF LAW: First: DCF lacks the authority to suspend petitioners Shares Payments
The department relies on Wis. Stat 49.155(7) to support the suspension of payments to the petitioner. Prior to the 2009-2010 legislative sessions that section reads as follows:
Refusal to pay Child Care Providers. (a) The department or county department under s.46.215, 46.22 or 46.23 may refuse to pay a child care provider under this section if any of the following applies to the child care provider, employee or person living on the premises where child care is.
1. The person has been convicted of a felony or misdemeanor that the department or county department determines substantially relates to the care of children.
2. The person is the subject of a pending criminal charge that the department or county department determines substantially relates to the care of children
3. The person has been determine under s. 48.981 to have abuse or neglected a child.
2009 Wisconsin Act 28, sections 1214d and 1214f, amended 49.155(7) by adding the following provisions:
49.155(7) (a). The person has been convicted of a felony or misdemeanor that the department or county department determines substantially relates to the care of children or to the operation of a business.
49.155(7) (d). The department or county department reasonably suspects that the person has violated any provisions under the program under this section or any rule promulgated udder this section
.
4. The department or county department reasonably suspects that the person has violated any provision under the program under this section or any rule promulgated under this section.
The department has developed standards defining or detailing what constitutes reasonable suspicion of a rule violation, but the promulgation of rules to implement the reasonable suspicion provision of 49.155(7)(b)(4) had been discussed but not acted upon.
1. APPLICATION OF LAW AND ARGUMENT: THE UNDERSIGNED RESPECTFULLY REQUEST:
Under Wis. Stat. 227.10 Any statement of general policy or interpretation of a statue adopted to govern enforcement or administration of a statue must be promulgated as a rule. If a rule has not been promulgated under the rule-making procedures set forth in Wis. Stat. Chapter 227 it is invalid. Colvin v. Dept. of Health and Family Services, 2008 WI App 127, 21, 758 N. W. 2d 118, 123 (Wis. App. 2008) A rule is defined as a regulation, standard, statement of general policy or order of general application which has the effect of law and which is issued by an agency to implement, interpret or make specific legislation enforced or administered by the agency to govern the organization or procedure of the agency. Wis. Stat. 227.01(13). Red flags the department has adopted for determining reasonable suspicion is a rule within the above definition. Consequently, before the department can act to suspend Wisconsin Shares payments to providers under Wis. Stat. 49.155(7) (b) (4) it must promulgate rules pursuant to the procedures found in Wis. Stat. Chapter 227.
2. 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 are returned to DCF as proposed, not final.
3. 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 Bichas DCF routinely overturns decisions that are in the providers favor. A whopping 98\% favorable decisions to providers and still no justice.
4. In 2009 Bicha already choose his enemy by saying he knew fraud was on the north side before an audit was done and by making providers guilty before having a chance to be proven innocent. If the choice was wrongly accuse or get rid of the whole program, we rather the program end, than locking up our woman off hearsay and paper mistakes! DCF uses falsitified and fabricated evidence to win the few cases they have won, if providers are so guilty, DCF wouldnt have to resort to criminal activities. The Milwaukee Journal Sentinel is Bias and never really does any investigations, but because of these false reports and all providers being broadly brushed guilty, our community is being targeted and subject to cruel and unusually punishment. We are not asking that you side; we just ask that YOU ALL look beyond the headlines and stop this injustice!

Sincerely,

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Elisabeth GuerreroBy:
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