Administrative Law — overpayments

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Wisconsin Court of Appeals

Civil

Administrative Law — overpayments

Where payments were made pursuant to department policy, the department is not entitled t reimbursement.

“[W]e reverse the ALJ’s determination that Mata was not entitled to a $541.42 reduction in overpayment for the first two weeks of April, 2011, and remand the case with instructions to reduce Mata’s overpayment total by $541.42. Not only did Terrella, the Department’s representative, testify that it is common practice to authorize child care subsidies while the Department’s investigation into an employer’s legitimacy is pending, but the Grannies Day Care case also supports this conclusion. Moreover, we do not find the ALJ’s contention that Mata’s case is different from Grannies Day Care because there was no clear short-term authorization here persuasive. The circumstances are in fact nearly identical; in each case, the Department provided payment during the time that the petitioner’s ‘qualified’ employment status was in question. It does not matter that in Grannies Day Care, the short-term authorization was clearly announced because the case is substantively the same as Mata’s case. Also, it does not matter that Mata reported her employment late because the $541.42 reduction amount factors Mata’s delayed reporting into the total. Thus, a decision reversing the ALJ will not encourage late reporting for Wisconsin Shares recipients. Additionally, we are not persuaded by the ALJ’s contention that the policy of allowing short-term authorizations is merely a ‘suggestion,’ even if the policy does in fact include such language. Terrella’s testimony and the Grannies Day Care decision make clear that this is a policy that the Department follows, and, absent a satisfactory reason, it should have been followed in Mata’s case. See Stoughton Trailers, 295 Wis. 2d 750, ¶27 (requiring a ‘satisfactory explanation’ to deviate from prior agency policy). Finally, we note that the Department has not supplied any authority to counter the Grannies Day Care decision.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2013AP2013 Mata v. Wisconsin Department of Children and Families

Dist. I, Milwaukee County, Van Grunsven, J., Curley, J.

Attorneys: For Appellant: Delessio, Patricia, Milwaukee; For Respondent: Remington, Debra L., Madison; Paulson, Rebecca, Madison