Rule-Making Notices (Hearing Notices)

•   Recoup payments made to the child care provider.

•   Withhold payments to be made to the child care provider.

•   Impose a forfeiture on the child care provider.

Section 49.195 (3m) and (3n), Stats., provide for collection of overpayments under s. 49.155, Stats., by warrant and execution and levy. Subsection (3s) provides that the department shall specify by rule when requests for reviews, hearings and appeals under s. 49.195, Stats., may be made and the process to be used for the reviews, hearings and appeals. In promulgating the rules, the department shall provide for a hearing or review after a warrant under sub. (3m) has been issued and before the warrant has been executed, before property is levied under sub. (3m) or (3n) and after levied property is seized and before it is sold. The department shall specify by rule the time limit for a request for review or hearing. The department shall also specify by rule a minimum amount that must be due before collection proceedings under s. 49.195, Stats., may be commenced.

Summary of proposed rules

The rules will establish policies and procedures specifying when a child care provider is responsible for an overpayment under the child care subsidy program, techniques for collecting overpayments, and penalties that may be imposed on a provider who fails to comply with the terms of the program. Promulgation of these rules will also allow the department to implement s. 49.155 (7m) (b), Stats., as created by 2009 Wisconsin Act 77, regarding personal liability for overpayments and penalties for certain representatives of a child care business that is a corporation or limited liability company if the business is unable to pay.

A provider is responsible for an overpayment if any of the following conditions are met:

•   The provider's attendance records indicate more hours than a child actually attended. If attended hours were misrepresented by the provider, the provider is responsible for an overpayment of the difference between the reimbursed hours and the actual hours of attendance regardless of the type of authorization.

•   Care was provided at a location other than the location for which the authorization for care was issued, except for field trips.

•   Care for children during time when the provider was in violation of limits on the maximum number of children in care or the required provider-to-child ratios for children of various ages.

•   Care for children during time when the provider was in violation of the terms of the provider's license, including the age of the children served by the center and hours, days, and months of operation of the center.

•   The provider benefited by receiving more child care reimbursement than otherwise would have been paid on the family's behalf under child care assistance program requirements, the parent is not responsible for the overpayment, and the reimbursement did not benefit the parent by causing the parent to pay less for child care expenses than the family otherwise would have been required to pay under child care assistance program requirements.

A provider and parent are jointly and severally liable for an overpayment if the provider and parent collude to violate a requirement of the Wisconsin Shares program.

If a child care provider submits false, misleading, or irregular information to a child care administrative agency or the department or if a child care provider fails to comply with the terms of the child care subsidy program and the provider fails to provide to the satisfaction of the department an explanation for the noncompliance, the child care administrative agency or department may refuse to issue payments to the provider, in addition to the authority granted the department under s. 49.155 (7) (b) 4., Stats.; recoup payments made to the provider; and impose a forfeiture on the provider. The existing rule also allows a child care administrative agency or the department to refuse to issue new child care authorizations to a provider for a period of time not to exceed 6 months and to revoke existing child care authorizations to the provider.

A child care administrative agency or the department may impose a forfeiture of $100 to $10,000 on a child care provider if the provider violates a provision of the Wisconsin Shares program. In determining the amount of the forfeiture, the child care administrative agency or department shall identify a specific date relating to a specific child and may consider the following factors:

•   Seriousness of the violation.

•   Extent of the violation.

•   History of prior violations.

•   Prior imposition of penalties.

•   Provider willingness to obey program rules.

If the department or a certification agency has given notice to a provider that the provider is in violation of applicable licensing or certification rules and the provider has not corrected the violation, the department or child care administrative agency may refuse to issue new child care authorizations, revoke existing child care authorizations, or refuse to issue payments until the provider has corrected the violation and demonstrated sufficient controls to ensure that the violation or comparable violations are unlikely to occur again.

If a provider has not repaid an overpayment, the child care administrative agency or department may recover the overpayment by making an offset from current or future funds under its control that are payable to the provider of no more than 50% of each payment if the provider is expected to continue to care for children whose care is subsidized under s. 49.155, Stats. If a provider or former provider has not repaid an overpayment and the provider or former provider is not expected to continue to care for children whose care is subsidized under s. 49.155, Stats, the child care administrative agency or department may recover the overpayment by making an offset from 100% of funds under its control that are payable to the provider or former provider.

If a debt for repayment of an overpayment is delinquent and no appeal rights are pending, Section 49.195 (3m), Stats., authorizes the department to issue a warrant that is considered in all respects a final judgment constituting a perfected lien upon the debtor's right, title, and interest in all real and personal property located in the county in which the warrant is entered. The department shall provide the debtor with notice and an opportunity for a hearing under ch. 227, Stats, when a warrant has been issued, before property is seized, and before seized property is sold. The debtor may request a hearing under ch. 227, Stats., within 20 days from the date on the notice. The appeal shall be limited to questions of prior payment of the debt that the department is proceeding against and mistaken identity of the debtor. The department may not withdraw the warrant based on a hearing request when a warrant is issued or cease enforcement before property is seized based on a hearing request. If a hearing is requested after property is seized, the seized property may not be sold before the hearing decision is issued or the hearing request is withdrawn. When the amount set forth in the warrant and all costs due the department have been paid, the department shall issue a satisfaction of the warrant. Statutory exemption rights in ss. 815.18 (3) and 815.20, Stats., apply to this administrative warrant and execution procedure.

If a debt for repayment of an overpayment is delinquent and no appeal rights are pending, Section 49.195 (3n), Stats., authorizes the department to levy on personal property belonging to the debtor, including wages due and deposits in a financial institution account. The department shall first send a notice of intent to levy at least 10 days prior to the levy, personally or by any type of mail service that requires a signature of acceptance. Notice prior to levy is not required for a subsequent levy on any debt of the same debtor within one year of the date of service of the original levy. Next, the department shall serve the levy upon the debtor and 3rd party in possession of property to which the debtor has rights. The debtor may appeal the levy proceeding under ch. 227, Stats., within 20 days from the date on the service of levy. The appeal shall be limited to questions of prior payment and mistaken identity of the debtor. The levy is not stayed pending an appeal where property is secured through the levy.

Within 20 days from the service of the levy upon a 3rd party, the 3rd party shall file an answer with the department stating whether the 3rd party is in possession of or obligated with respect to property or rights to property of the debtor, including a description of the property or the rights to property and the nature and dollar amount of any such obligation. The 3rd party shall, upon demand of the department, surrender the personal property or rights or discharge the obligation to the department, except that part of the personal property or rights which is, at the time of the demand, subject to any prior attachment or execution under any judicial process.

If levied personal property that has been surrendered to the department is not a liquid asset in the form of cash, check, or an equivalent that can be applied to the debt without a sale of the asset, the department shall provide the debtor with notice and an opportunity for a hearing under ch. 227, Stats., before surrendered property is sold. The debtor may request a hearing under ch. 227, Stats., within 20 days from the date on the notice. The appeal shall be limited to questions of prior payment of the debt that the department is proceeding against and mistaken identity of the debtor. If a hearing is requested, surrendered property may not be sold before the hearing decision is issued or the hearing request is withdrawn.

The debtor is entitled to an exemption from levy of the greater of a subsistence allowance of 75% of the debtor's disposable earnings then due and owing or an amount equal to 30 times the federal minimum hourly wage for each full week of the of the debtor's pay period, an amount equal to 60 times the federal minimum hourly wage for a two-week pay period, or an amount equal to 130 times the federal minimum hourly wage for a monthly pay period. The debtor is entitled to an exemption of the first $1,000 of an account in a depository institution.

Any appeal based on a notice received in a warrant and execution or levy proceeding or a notice of intent to certify a debt for set-off against a state tax refund shall be limited to questions of prior payment of the debt that the department is proceeding against and mistaken identity of the debtor. The minimum amount that must be due before warrant and execution and levy procedures may be commenced is $300. The department may waive recovery of an overpayment if the department has made reasonable efforts to recover the overpayment from the debtor and determines it is no longer cost effective to continue overpayment recovery efforts.

Summary of factual data and analytical methodologies

Section 201.04 (5) (b) 1. of this rule refers to s. DCF 201.04 (2g) (a). Section DCF 201.04 (2) (d) was renumbered s. DCF 201.04 (2g) (a) in EmR10-056/CR10-056, relating to authorized hours of subsidized child care.

Comparison with federal regulations

States are required to implement strategies to prevent, measure, identify, reduce, and collect improper payments for funding received under the Child Care and Development Fund.

Comparison with rules in adjacent states

Minnesota:

Overpayments that benefit a provider and not a family are recouped from future payments to the provider if the provider continues to care for subsidized children.

Illinois:

Overpayments are recovered from providers who do not comply with program policies by tax intercept, reductions in future payments, or other means determined to be effective.

Iowa:

Iowa uses factors to be considered in determining penalties against providers who violate the terms of the child care program.

Michigan:

Michigan has proposed rules on overpayment recovery and revocation if a provider's attendance records are not accurate.

Analysis used to determine effect on small businesses

The rules are primarily implementing statutory direction.

Small Business Impact

The proposed rules will affect small businesses as defined in s. 227.114 (1), Stats., but will not have a significant economic impact on a substantial number of businesses.

The Department's Small Business Regulatory Coordinator is: Elaine Pridgen, Phone: [phone], Email: [e-mail].

Fiscal Estimate

Assumptions used in arriving at fiscal estimate

Section 49.155 (7m), Stats., as created by 2009 Wisconsin Act 28, and s. 49.195 (3m) and (3n), Stats., allow the Department to pursue collection of overpayments to child care providers receiving payments from the Wisconsin Shares program through use of warrants, execution of liens, and levies. State staff and IT systems for applying these administrative collection tools have been in place since 2007 for levies and longer for the warrant and lien execution processes. Up to this time these collection options have been applied to participants only. This rule establishes procedures for extending the use of these tools to collection of overpayments from providers.

Because staff and IT systems are already in place for administration of these collection tools, it is anticipated that the additional workload for initiating provider overpayment collections will be minimal, and will be able to be covered within existing resources. Annual revenues from collections and fees associated with initiating warrants, liens and levies will be available to cover administrative costs for provider overpayment collections. While annual costs for collections will increase, they will be covered by annual increases in revenues.

As of June 2010 over $7.1 million of child care provider overpayments have been identified for possible collection action. While child care providers who are subject to overpayment collections will have appeal rights, there is no reliable basis to estimate how many will appeal. Costs associated with appeals are anticipated to increase, but revenues from collections will be available to cover those costs also.

State fiscal effect

Increase existing revenue.

Increase costs - may be possible to absorb within agency's budget.

Long-range fiscal implications

None.

Agency Contact Person

Jim Bates, Section Chief

Fraud Detection and Investigation Unit

Division of Early Care and Education

Phone: [phone]

Email: [e-mail]

Notice of Hearing

Commerce

Wis. Commercial Building Code, Chs. Comm 60-66

rulemaking_notices EmR1022 EmR1022

NOTICE IS HEREBY GIVEN that pursuant to ss. 101.02 (1) and 101.123 (6) Stats., the Department of Commerce will hold a public hearing on emergency rules to revise section Comm 62.0400, relating to no smoking signs.

Hearing Information

Date:   July 26, 2010

Time:   10:00 a.m.

Location:   Conference Room 3C
  Thompson Commerce Center
  201 West Washington Avenue
  Madison, WI

This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call [phone] or [phone] (TTY) at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.

Submittal of Written Comments

Interested persons are invited to appear at the hearing and present comments on the emergency rules. Persons making oral presentations are requested to submit their comments in writing. Persons submitting comments will not receive individual responses. The hearing record on the emergency rules will remain open until July 30, 2010, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. Written comments should be submitted to James Quast, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email jim.quast@wisconsin. gov.

Copies of Emergency Rules

The emergency rules and an analysis of the rules are available on the Internet at the Safety and Buildings Division Web site at www.commerce.wi.gov/SB/. Paper copies may be obtained without cost from the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or telephone [phone] or TDD Relay dial 711 in Wisconsin or [phone]. Copies will also be available at the public hearing.

Analysis Prepared by Department of Commerce

Statutes interpreted

Section 101.123 (6), Stats.

Statutory authority

Sections 101.02 (1) and 101.123 (6), Stats.

Related statute or rule

Statutes: 101.123 (2m)

Explanation of agency authority

2009 Wisconsin Act 12, s. 101.123, Stats., which is to take effect on July 5, 2010, basically prohibits smoking in enclosed places of public buildings and places of employment. The Act directs the department to establish characteristics for no smoking signs which persons in charge are to utilize aboard public conveyances and in public buildings and places of employment.

Summary of proposed rules

The rules dictate that minimally no smoking signs include the international “No Smoking" symbol consisting of a pictorial burning cigarette enclosed in a red circle with a red bar across the cigarette.

Comparison with federal regulations

An internet search on U.S. federal regulations and U.S. federal register yielded no results regarding a general national prohibition of smoking in places of employment and public buildings.