MacIver News Service | May 7, 2013
[Madison, Wisc…] In the first floor speech of her career, on April 16th, Rep. LaTonya Johnson (D-Milwaukee) might have admitted to participating in a federal crime.The Assembly was debating a bill proposed by Rep. Samantha Kerkman (R-Powers Lake), which would make trafficking Food Shares a state crime. When Johnson got the floor she drew on her personal experiences to argue against such a law.
Before she was elected to the Assembly in 2012, Johnson ran a day care out of her home for low-income families called Anointed Child Care. The state pays a portion of the tuition for low-income children, but the families are expected to come up with the rest.
The state paid Johnson $273,727 for tuition reimbursement from 2008 to 2012, according to the Department of Children and Families. Johnson said many families still could not afford to pay the remaining portion of their children’s tuition.
“This woman received Wisconsin food shares, and her copay was her portion left of her bill to pay what Wisconsin shares didn’t cover. And in my daycare we had so many parents that couldn’t afford to pay their copays that we made a rule that they could donate whatever they could afford. That could be food. That could be time. That could be supplies. Whatever they had, we accepted,” Johnson said. “This was really, really hard for me, because I hear so many conversations about Wisconsin shares fraud, food share fraud, and the reality is that there are circumstances behind all these situations.”
Johnson defended those parents under the belief what they did was not illegal.
“My parent wasn’t a hardened criminal, but according to AB 82 she could be prosecuted for donating food to the daycare. Because it says you cannot use your snap benefits for other considerations. I believe the exact wording is that it is illegal to resell food purchased benefits for other considerations. So giving the daycare food in exchange for a copayment would technically be illegal,” Johnson said.
Although it was not state crime at that time, it might have been a federal offense. Prior to the debate, Rep. Kerkman explained, “We’re just now putting into state statute what the federal government’s put into federal law.”
The USDA was not able to comment on Kerkman’s bill specifically, but a spokesman said, “Federal law defines SNAP trafficking as a felony and stipulate criminal penalties based on the amount involved, with the minimum threshold set at $100.” He referred to Title 7, USC Section 2024.
Whoever presents, or causes to be presented, benefits for payment or redemption of the value of $100 or more, knowing the same to have been received, transferred, or used in any manner in violation of the provisions of this chapter or the regulations issued pursuant to this chapter, shall be guilty of a felony and, upon the first conviction thereof, shall be fined not more than $20,000 or imprisoned for not more than five years…
It’s not clear that accepting products purchased with benefits would be in violation of the federal statute. However, Rep. Johnson did not respond to a request from the MacIver News Service for an explanation.
Rick Essenberg, president of the Wisconsin Institute for Law and Liberty, told MNS “the problem is that you can’t exchange SNAP benefits for non-eligible items – even if they are things that someone needs. So, if a day care provider accepts these benefits in return for care, it appears that the law would be broken.”
Legal questions remain, he said, if the benefits are exchanged for eligible food knowing that the food will be exchanged for a non-eligible benefit.
“The substance of the transaction is the same,” he said, “and it is akin to using benefits to purchase food for someone other than a member of the household.”
“There may be legal exposure for a provider, if the provided knowingly induced a recipient to do this. While criminal statutes are strictly construed in favor of the accused a regular practice of using SNAP benefits for something other than feeding one’s family certainly raises questions,” he said.
Kerkman’s bill passed that Assembly on a 73-24 vote. The Senate will debate its version of AB 82 on Tuesday.