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‘Day care loophole’ allows operation of unlicensed, unchecked child care centers

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WISCONSIN -- Lawmakers call it the "day care loophole." State workers call it a "problem," and parents call it "outrageous."

A FOX6 investigation reveals child care centers in Wisconsin are easily able to avoid state rules and inspections, while parents have difficulties getting answers.

"There's no rules, it seems like," mom Becky Jeske said. "I mean, that's my child."

"They weren't licensed."

Wisconsin law says, with a few exceptions, anyone caring for four or more children younger than seven for fewer than 24 hours per day needs a state license, which comes from the Department of Children and Families.

Licensed child care operations are subject to state inspections, which ensure the centers are meeting requirements for staff background checks, training, staff-to-child ratios, and safety.

Jeske used to work at Living Word Child Development Center in Jackson. She recalls state inspections and expectations that the facility would maintain licensing standards. Jeske eventually changed jobs, but still enrolled her daughter in Living Word's program because she had been happy with the center's care.

At the end of 2018, Jeske said she starting having concerns.

"I called licensing, and they called me back the next day and told me [Living Word wasn't] licensed," Jeske said. "I was very upset."

Living Word Child Development Center does not appear in the Department of Children and Families online child care database. Public records show the center has not been licensed or inspected since 2015. Click here, here, and here to see examples of the state inspections Living Word underwent before it stopped being licensed.

Hidden camera

FOX6 used a hidden camera to record a tour of Living Word Child Development Center.

During that tour, Administrator Kelly Patterson said there are roughly 150 children in the facility, starting as young as 6 weeks old.

Patterson referred to the center's 4-year-old kindergarten program as "its own separate entity --  they just happen to be in our building."

But minutes later, she used the 4K program to explain why Living Word does not appear in the state's child care database.

"We are not state," Patterson said. "We are actually a private school. Because we have 4K, we are actually private school status."

The "day care loophole"

"There's nobody looking after them," former State Representative Penny Bernard Schaber said. "I was very, very concerned for the children that could be put in this situation."

State law says schools don't need child care licenses, but Bernard Schaber says it's too easy for programs that should be licensed to call themselves private schools. She started paying attention to the issue when a center in her district had children sleeping in the basement with no working smoke detectors and no supervision.

The facility used to have a state license, but the inspections stopped after it started calling itself a private school.

Bernard Schaber introduced legislation in 2011 that would require schools caring for children younger than 3 to still go through the licensing process and the accompanying state inspections.

The bill did well in committee, but Bernard Schaber said it "kind of fell apart at the end of the session."

Who's watching?

After months of going back and forth with state departments, FOX6 learned that it only takes a few forms for a child care center to earn recognition as a "school" and avoid state licensing requirements.

In Living Word Child Development Center's case, the at-the-time administrator sent an email turning down state financial assistance, filled out a few short forms with the Department of Public Instruction, and sent the Department of Children and Families a three-sentence letter saying it was a private school.

"If a person who is really a day care center calls herself a school and then avoids the regulations that are required to provide the safest and best care for our kids, that's a problem," Bernard Schaber said, noting the differences between caring for infants and instructing school-aged children.

The FOX6 Investigators wanted to know who ensures programs that identify as private schools meet the legal private school requirements, such as sequentially-progressive curriculum for math and social studies.

A spokesperson for the Department of Public Instruction said the agency does not regulate private schools, directing FOX6 to the Department of Children and Families. A spokesperson for the Department of Children and Families told FOX6 to check with the Department of Public Instruction.

Five sources in both departments described the ability of centers providing infant care to avoid state inspections as a "problem," saying the private school designation wasn't meant to apply to day care programs. However, as long as the right forms get filled out, the law says the state's hands are tied.

"There really is no way to understand how many people are doing this," Bernard Schaber said.

"Why doesn't anyone want to talk to us?"

Living Word Child Development Center asks parents to fill out state paperwork for a child care center, even though it claims private school status. The center submitted forms to the Department of Public Instruction saying its youngest grade is 4K with an enrollment of 18 students, even though FOX6's hidden camera caught staff caring for infants and claiming there were more than 150 children in the facility.

FOX6 called Living Word and spoke with administrator Kelly Patterson. She did not answer questions, but said she would call back with an answer to FOX6's request for an on-camera interview. She never did.

FOX6 called Patterson three more times over the course of two weeks; each time, the person who answered the phone said Patterson was not available. Reporter Amanda St. Hilaire went to Living Word three additional times in an attempt to speak with Patterson. The first two times, the person who answered the door said Patterson was not available. The third time, someone spoke through the buzzer and declined to answer St. Hilaire's questions, responding with phrases like "we're not interested," and "no comment."

After FOX6's investigation aired on television, someone identifying as Kelly Patterson with a Living Word email account sent an email to the newsroom, saying:

"Living Word Lutheran Child Development Center has provided a quality Lutheran Christian childcare and preschool option for 16 years. We are dedicated to building a Christian foundation for families with young children to grow in faith, knowledge, individuality, and socialization. Parents of 125 students have and continue to entrust us with their most precious possession, their child(ren). They choose our center because of the safe, loving, and caring culture that permeates our building. It is regrettable that Fox 6 News and investigative reporter Amanda St. Hilaire would resort to "ambush journalism", hidden cameras, and the opinion of a disgruntled former employee to push a narrative that our center is somehow not qualified to serve students due to a supposed loophole in State law. Our center has and always will operate within the bounds of all applicable State laws including Wisconsin statute 48.65(2)(b). Living Word Lutheran Child Development Center remains committed to providing a safe, loving, and caring environment for our students. We value the partnership we have with our parents and families and will continue to remain open and transparent. Parents are always welcome to call the administrator or their child's teacher at the center during the day if they have any questions or concerns."

Patterson did not deny the facts in FOX6's story, address the public records showing inconsistencies in Living Word's state forms, nor answer questions about why the facility ended its participation with state licensing and inspection procedures.

The Department of Children and Families says centers offering religious-based child care are still legally-bound by state licensing and oversight rules; there are more than 50 child care programs licensed through Wisconsin's Department of Children and Families that have the word "Lutheran" in their names.

"You're taking care of other people's kids," mom Becky Jeske said. "It's outrageous."

Private school perspective

A spokesperson from the Wisconsin Council of Religious and Independent Schools originally told FOX6 that the organization's director would do an on-camera interview to provide the private school perspective on legislation requiring state licenses for schools caring for children younger than 3 years old.

Sharon Schmeling ultimately declined that interview, but said on the phone that she is working with the Department of Children and Families to figure out "solutions." A DCF spokesperson confirmed this effort, but both the spokesperson and Schmeling stopped short of providing specific details.

While there is no way to tell how many unlicensed child care centers are operating in Wisconsin, the facilities that are licensed will be on record with the Department of Children and Families. The YoungStar system allows the public to do quick searches of specific facilities, showing state ratings and past inspections.

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