Chapter DHS 34

DHS 34.03(2)(b) (b) The department’s designated representative shall do all of the following:

DHS 34.03(2)(b)1. 1. Interview a representative sample of present or former participants in the program, if any, provided that the participants indicate a willingness to be contacted.

DHS 34.03(2)(b)2. 2. Review the results of any grievances filed against the program pursuant to s. DHS 94.27 during the preceding period of certification.

DHS 34.03(2)(b)3. 3. Review a randomly selected, representative sample of client service records.

DHS 34.03(2)(b)4. 4. Review program policies and operational records, including the coordinated community services plan developed under s. DHS 34.22 (1) (a) or amended under s. DHS 34.22 (1) (c), and interview program staff to a degree sufficient to ensure that staff have knowledge of the statutes, administrative rules and standards of practice that may apply to the program and its participants.

DHS 34.03(2)(c) (c) The certification survey under par. (b) shall be used to determine the extent of the program’s compliance with the standards specified in this chapter. Certification decisions shall be based on a reasonable assessment of the program. The indicators by which compliance with the standards is determined shall include all of the following:

DHS 34.03(2)(c)1. 1. Statements made by the applicant or the applicant’s designated agent, administrative personnel and staff members.

DHS 34.03(2)(c)2. 2. Documentary evidence provided by the applicant.

DHS 34.03(2)(c)3. 3. Answers to questions concerning the implementation of program policies and procedures, as well as examples of implementation provided to assist the department in making a judgment regarding the applicant’s compliance with the standards in this chapter.

DHS 34.03(2)(c)4. 4. On-site observations by surveyors from the department.

DHS 34.03(2)(c)5. 5. Reports by participants regarding the program’s operations.

DHS 34.03(2)(c)6. 6. Information from grievances filed by persons served by the program.

DHS 34.03(2)(d) (d) The applicant shall make available for review by the designated representative of the department all documentation necessary to establish whether the program is in compliance with the standards in this chapter, including the written policies and procedures of the program, work schedules of staff, program appointment records, credentials of staff and treatment records.

DHS 34.03(2)(e) (e) The designated representative of the department who reviews the documents under pars. (a) to (d) and interviews participants under par. (b) 1. shall preserve the confidentiality of all participant information contained in records reviewed during the certification process, in compliance with ch. DHS 92.

DHS 34.03(3) (3) Issuance of certification.

DHS 34.03(3)(a) (a) Within 60 days after receiving a completed application for initial certification, the department shall do one of the following:

DHS 34.03(3)(a)1. 1. Certify the program if all requirements for certification are met.

DHS 34.03(3)(a)2. 2. Provisionally certify the program under sub. (10) if only minor deficiencies are found.

DHS 34.03(3)(a)3. 3. Deny certification if one or more major deficiencies are found.

DHS 34.03(3)(b) (b)

DHS 34.03(3)(b)1. 1. If an application for certification is denied, the department shall provide the applicant reasons in writing for the denial and identify the requirements for certification which the program has not met.

DHS 34.03(3)(b)2. 2. A notice of denial shall state that the applicant has a right to request a hearing on that decision under sub. (12) and a right to submit a plan under par. (c) to correct program deficiencies in order to begin or continue operation of the program.

DHS 34.03(3)(c) (c)

DHS 34.03(3)(c)1. 1. Within 10 days after receiving a notice of denial under par. (a), an applicant may submit to the department a plan to correct program deficiencies.

DHS 34.03(3)(c)2. 2. The plan of correction shall indicate the date on which the applicant will have remedied the deficiencies of the program. Within 60 days after that date, the department shall determine whether the corrections have been made. If the corrections have been made, the department shall certify the program.

DHS 34.03(3)(d) (d) The department may limit the initial certification of a program to a period of one year.

DHS 34.03(4) (4) Content of certification. Certification shall be issued only for the specific program named in the application and may not be transferred to another entity. An applicant shall notify the department of all changes of administration, location, program name, services offered or any other change that may affect compliance with this section, no later than the effective date of the change.

DHS 34.03(5) (5) Date of certification.

DHS 34.03(5)(a) (a) The date of certification shall be the date that the department determines, by means of an on-site survey, that an applicant is in compliance with this section.

DHS 34.03(5)(b) (b) The department may change the date of certification if the department has made an error in the certification process. A date of certification which is adjusted under this paragraph may not be earlier than the date the written application under sub. (1) was submitted to the department.

DHS 34.03(6) (6) Duration of certification.

DHS 34.03(6)(a) (a) Certification remains valid until it is suspended or terminated by the department in accordance with sub. (8), (9) (c), (10) (f), or (11).

DHS 34.03(6)(b) (b) Certification becomes invalid due to non-submission of the biennial report or non-payment of biennial fees in accordance with sub. (7) (c).

DHS 34.03(7) (7) Biennial report and fees.

DHS 34.03(7)(a) (a) Every 24 months, on a date determined by the department, the program shall submit a biennial report on the form provided by the department and shall submit payment of the certification continuation fees under s. 51.04, Stats.

DHS 34.03(7)(b) (b) The department shall send the certification continuation materials to the provider, which the provider is expected to complete and submit to the department according to the instructions provided.

DHS 34.03(7)(c) (c) A certification shall be suspended or terminated if biennial reports and fees are not submitted prior to the end of the biennial cycle.

DHS 34.03(8) (8) Actions against a certified program. The department may terminate or suspend a program’s certification after providing the program with prior written notice of the proposed action which shall include the reason for the proposed action and notice of opportunity for a hearing under sub. (12), whenever the department finds that any of the following has occurred:

DHS 34.03(8)(a) (a) A program staff member has had sexual contact, as defined in s. 940.225 (5) (b), Stats., or sexual intercourse, as defined in s. 940.225 (5) (c), Stats., with a client.

DHS 34.03(8)(b) (b) A staff member of the program requiring a professional license or certificate claimed to be licensed or certified when he or she was not, has had his or her license or certificate suspended or revoked, or has allowed his or her license or certificate to expire.

DHS 34.03(8)(c) (c) A program staff member has been convicted of a criminal offense related to the provision of or claiming reimbursement for services under the medicare program under 42 CFR 430 to 456, or under this state’s or any other state’s medical assistance program or any other third party payer. In this paragraph, “convicted” means that a judgment of conviction has been entered by a federal, state or local court, regardless of whether an appeal from that judgment is pending.

DHS 34.03(8)(d) (d) A staff member has been convicted of a criminal offense related to the provision of care, treatment or services to a person who is mentally ill, developmentally disabled, alcoholic or drug dependent; or has been convicted of a crime against a child under ch. 948, Stats.

DHS 34.03(8)(e) (e) The program has submitted, or caused to be submitted, statements for purposes of obtaining certification under this chapter which it knew or should have known to be false.

DHS 34.03(8)(f) (f) The program failed to maintain compliance with or is in substantial non-compliance with one or more of the requirements set forth in this section.

DHS 34.03(8)(g) (g) A program staff member signed billing or other documents as the provider of service when the service was not provided by the program staff member.

DHS 34.03(8)(h) (h) There is no documentary evidence in a client’s services file that the client received services for which bills had been submitted to a third party payer.

DHS 34.03(9) (9) Inspections.

DHS 34.03(9)(a) (a) The department may make announced and unannounced inspections of the program to verify continuing compliance with this chapter or to investigate complaints received regarding the services provided by the program.

DHS 34.03(9)(b) (b) Inspections shall minimize any disruption to the normal functioning of the program.

DHS 34.03(9)(c) (c) If the department determines during an inspection that the program has one or more major deficiencies, or it finds that any of the conditions stated in sub. (8) or (11) exist, it may suspend or terminate the program’s certification.

DHS 34.03(9)(d) (d) If the department determines during an inspection that the program has one or more minor deficiencies, it may issue a notice of deficiency to the program and offer the program provisional certification pursuant to sub. (10).

DHS 34.03(9)(e) (e) If the department terminates or suspends the certification of a program, the department shall provide the program with a written notice of the reasons for the suspension or termination and inform the program of its right to a hearing on the suspension or termination as provided under sub. (12).

DHS 34.03(10) (10) Provisional certification pending implementation of a plan of correction.

DHS 34.03(10)(a) (a) If, during an inspection, the department determines that minor deficiencies exist, the department shall issue a notice of deficiency to the program and offer the program a provisional certificate pending correction of the identified deficiencies.

DHS 34.03(10)(b) (b) If a program wishes to continue operation after the issuance of a notice of deficiency under an offer for provisional certification, it shall, within 30 days of the receipt of the notice of deficiency, submit a plan of correction to the department identifying the specific steps which will be taken to remedy the deficiencies and the timeline in which these steps will be taken.

DHS 34.03(10)(c) (c) If the department approves the plan of correction, it shall issue the program a provisional certificate for up to 60 days of operation, pending the accomplishment of the goals of the plan of correction.

DHS 34.03(10)(d) (d) Prior to the expiration of the provisional certification, the department shall conduct an on-site inspection of the program to determine whether the proposed corrections have occurred.

DHS 34.03(10)(e) (e) Following the on-site inspection, if the department determines that the goals of the approved plan of correction have been accomplished, it shall restore the program to full certification and withdraw the notice of deficiency.

DHS 34.03(10)(f) (f) If the goals of the plan of correction have not been accomplished, the department may suspend or terminate the program’s certification or allow the program one extension of no more than 30 additional days to complete the plan of correction. If after this extension the program has still not remedied the identified deficiencies, the department shall suspend or terminate the certification.

DHS 34.03(10)(g) (g) If the department denies, suspends, or terminates the certification, the department shall provide the program with a written notice of the reasons for the action and inform the program of its right to a hearing under sub. (12).

DHS 34.03(11) (11) Immediate suspension.

DHS 34.03(11)(a) (a) The department may immediately suspend the certification of a program or bar from practice in a certified program any program staff member, pending a hearing on the matter, if any of the following has occurred:

DHS 34.03(11)(a)1. 1. Any of the licenses, certificates or required local, state or federal approvals of the program or program staff member have been revoked, suspended or expired.

DHS 34.03(11)(a)2. 2. The health or safety of a client is in imminent danger because of knowing failure of the program or a program staff member to comply with requirements of this chapter or any other applicable local, state or federal statute or regulation.

DHS 34.03(11)(a)3. 3. A staff member of the program has had sexual contact as defined in s. 940.225 (5) (b), Stats., or sexual intercourse, as defined in s. 940.225 (5) (c), Stats., with a client.

DHS 34.03(11)(a)4. 4. A staff member of the program has been convicted of client abuse under s. 940.285, 940.29 or 940.295, Stats.

DHS 34.03(11)(b) (b) The department shall provide written notice to the program or program staff member of the nature of the immediate suspension, the acts or conditions on which the suspension is based, any additional remedies which the department will be seeking and information regarding the right of the program or the person under the suspension to a hearing pursuant to sub. (12).

DHS 34.03(12) (12) Right to a hearing.

DHS 34.03(12)(a) (a) In the event that the department denies, terminates, or suspends certification, or gives prior notice of its intent to do so, an applicant or program may request a hearing under ch. 227, Stats.

DHS 34.03(12)(b) (b) The request for a hearing shall be submitted in writing to and received by the department of administration’s division of hearings and appeals within 30 days after the date on the notice required under sub. (3), (8), (9), (10) or (11).

DHS 34.03 Note Note: The mailing address of the Division of Hearings and Appeals is P.O. Box 7875, Madison, WI 53707.

DHS 34.03(13) (13) Dissemination of results. Upon completing action on an application for certification, staff of the department responsible for certification shall provide a summary of the results of the process to the applicant program, to the subunit within the department responsible for monitoring community mental health programs and to the county department in the county in which the program is located.

DHS 34.03(14) (14) Violation and future certification. A person with direct management responsibility for a program and all practitioners of a program who were knowingly involved in an act or acts which served as a basis for immediate termination shall be barred from providing service in a certified program for a period not to exceed 5 years. This applies to the following acts:

DHS 34.03(14)(a) (a) Acts which result in termination of certification under s. DHS 106.06.

DHS 34.03(14)(b) (b) Acts which result in conviction for a criminal offense related to services provided under s. 632.89, Stats.

DHS 34.03(14)(c) (c) Acts involving an individual staff member who has terminated affiliation with a program and who removes or destroys participant records.

DHS 34.03 History History: Cr. Register, September, 1996, No. 489, eff. 10-1-96; correction in (12) (b) made under s. 13.93 (2m) (b) 6., Stats., Register, September, 1996, No. 489; correction in (2) (e) and (14) (a) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2000, No. 532; correction in (11) (a) 3. made under s. 13.93 (2m) (b) 7., Stats., Register October 2004 No. 586; corrections in (2) (b) 2., (e) and (14) (a) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635; CR 22-078: am. (2) (title), (a) (intro.), (3) (a) (intro.), r. and recr. (6), (7), am. (8) (intro.), (10) (a), (f), (g), (12) (a) Register July 2023 No. 811, eff. 8-1-23.

DHS 34.04 DHS 34.04 Waivers.

DHS 34.04(1) (1) Policy.

DHS 34.04(1)(a) (a) Except as provided in par. (b), the department may grant a waiver of any requirement in this chapter when the department determines that granting the waiver would not diminish the effectiveness of the services provided by the program, violate the purposes of the program or adversely affect clients’ health, safety or welfare, and one of the following applies:

DHS 34.04(1)(a)1. 1. Strict enforcement of a requirement would result in unreasonable hardship on the provider or on a participant.

DHS 34.04(1)(a)2. 2. An alternative to a rule, including a new concept, method, procedure or technique, new equipment, new personnel qualifications or the implementation of a pilot project is in the interests of better participant care or program management.

DHS 34.04(1)(b) (b) The department may not grant a waiver of client confidentiality or rights under this chapter, ch. DHS 92 or 94 or under other administrative rules, state statutes or federal regulations.

DHS 34.04(2) (2) Application. An application for a waiver under this section shall be made in writing to the department and shall specify all of the following:

DHS 34.04(2)(a) (a) The requirement to be waived.

DHS 34.04(2)(b) (b) The time period for which the waiver is requested.

DHS 34.04(2)(c) (c) Any alternative action which the program proposes.

DHS 34.04(2)(d) (d) The reason for the request.

DHS 34.04(2)(e) (e) Assurances that the requested waiver would meet the requirements of sub. (1).