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Wednesday, April 6, 2011

Day Care Provider Wins Big in Court

Judge questions the state's prosecution of Wisconsin Shares providers

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A Milwaukee-based Wisconsin Shares day care provider, suspended from the program almost two years ago, had her name cleared by a Milwaukee County circuit court judge in a case that may affect all suspended Shares providers.

In a March 11 decision, Judge Timothy Witkowiak found that Shanquil Merriwether, owner of From Dusk Til Dawn Child Care Center, should not have been suspended from the program in September 2009.

Merriwether, along with more than 200 other providers, was dropped from the program as part of the state Department of Children and Family's (DCF) attempt to crack down on alleged fraud.

Widespread Wisconsin Shares fraud had been alleged by the Milwaukee Journal Sentinel, which won a Pulitzer Prize for its nonstop coverage of supposed abuses in the taxpayer-funded child care program for low-income working parents. State legislators and attorneys who are knowledgeable about the program were appalled by the Journal Sentinel's coverage and the DCF secretary's actions.

Then-Gov. Jim Doyle and DCF responded to the Journal Sentinel's inflammatory coverage with hard-hitting reforms and mass suspensions of day care providers.

One of those providers was Merriwether, who received a letter from DCF dated Sept. 25, 2009, stating that she had violated Wisconsin Shares rules, had been overpaid and would be suspended from the program. DCF had sent out similar letters to roughly 100 providers in September and October 2009 to show that it was serious about combating fraud. The Journal Sentinel responded with favorable coverage of DCF's actions.

Violations Not Detailed or Proven

Merriwether's violations were not detailed in the letter, nor did DCF provide her with a written notification of the statutes or regulations that she had violated, although it did inform her of some "red flags signifying Shares violations" in 2008 and 2009.

Merriwether appealed her suspension and overpayment before an administrative law judge, who found that DCF had erroneously suspended her from the program.

But then-DCF Secretary Reggie Bicha had declared that all Wisconsin Shares-related appeals be returned to him for final approval. DCF overturned Merriwether's decision, just as the agency had overturned almost all of the proposed decisions that favored day care providers.

Merriwether then appealed her case in the Milwaukee County Circuit Court, which in March affirmed the original decision favoring Merriwether.

Judge Witkowiak found that DCF should not have punished Merriwether for alleged violations of rules that had occurred before those rules went into effect on July 1, 2009. Nor did DCF correctly suspend Merriwether for actions that are not violations of any applicable program rule or statute, Witkowiak wrote.

But Witkowiak also wrote that he was "extremely troubled" by the suspension letter provided to Merriwether, which "failed not only to inform [Merriwether] of the statutes or regulations violated, but it also failed to even allege what [Merriwether's] offending conduct was." He noted that "the fundamentals of due process require that a defendant or respondent have sufficient opportunity to defend herself."

Similar letters were sent to other Wisconsin Shares providers, which calls into question whether the state properly informed them of their violations.

DCF did not return the Shepherd's request to comment on Witkowiak's decision.

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