Chapter DHS 38

DHS 38.02(9) (9) “Medical review officer” means a licensed medical provider employed by or providing services under contract to a drug testing vendor who has knowledge of substance abuse disorders and laboratory testing procedures and who has the necessary training and experience to interpret and evaluate an individual’s positive test result in relation to the individual’s medical history and valid prescriptions.

DHS 38.02(10) (10) “Metabolite” means a chemical present in the body when a controlled substance is being broken down through natural metabolic processes that can be detected or measured as a positive indicator that a controlled substance associated with the metabolite has been used.

DHS 38.02(11) (11) “Prescription” means a current order for a controlled substance that indicates the specific regimen and duration of the order, and that is transmitted electronically or in writing by an individual authorized in this state to order the controlled substance.

DHS 38.02(12) (12) “Qualified drug testing vendor” means a laboratory certified by the centers for medicare & medicaid services under the Clinical Laboratory Improvement Amendments of 1988 (CLIA) to collect a specimen, carry out laboratory analysis of the specimen, store the specimen for confirmatory testing if required, complete confirmatory testing, and provide review by a medical review officer.

DHS 38.02 Note Note: For information about CLIA, see: https://www.cms.gov/Regulations-and-Guidance/Legislation/CLIA/. To obtain an application for CLIA certification contact the Wisconsin Department of Health Services Division of Quality Assurance at: https://www.dhs.wisconsin.gov/regulations/index.htm

DHS 38.02(13) (13) “Screening” means completion of a questionnaire specified by the department, regarding the individual’s current and prior use of controlled substances.

DHS 38.02(14) (14) “Specimen” means tissue, fluid, or a product of the human body required to be submitted by an individual for testing under this chapter.

DHS 38.02(15) (15) “Trauma-informed” means operationalizing the understanding of the science of Adverse Childhood Experiences (ACEs), toxic stress, trauma, and resilience into organizational culture, policies, programs and practices. Operationalizing TIC means an adherence to trauma-informed principles such as safety, trustworthiness and transparency, peer support, collaboration and mutuality, empowerment, and cultural, historical, and gender issues.

DHS 38.02 Note Note: “TIC” refers to trauma-informed care.

DHS 38.02(16) (16) “Treatment” means services that are conducted under clinical supervision to assist an individual through the process of recovery from controlled substance abuse and may include screening, application of approved placement criteria, intake, orientation, assessment, individualized treatment planning, intervention, individual or group and family counseling, referral, discharge planning, after care or continuing care, recordkeeping, consultation with other professionals regarding treatment services, recovery and case management, crisis intervention, education, employment, and problem resolution in life skills functioning.

DHS 38.02(17) (17) “Treatment program” means a program certified to provide treatment for controlled substance abuse as a medically managed inpatient service under s. DHS 75.10, a medically monitored treatment service under s. DHS 75.11, a day treatment service under s. DHS 75.12, an outpatient treatment service under s. DHS 75.13, a transitional residential treatment service under s. DHS 75.14, a narcotic treatment service for opiate addiction under s. DHS 75.15, or psychosocial rehabilitation services as approved by the department.

DHS 38.02(18) (18) “Treatment provider” or “provider” means a provider of treatment services for controlled substance abuse certified by the department under the provisions of ch. DHS 75, a provider certified under s. 440.88, Stats., or other licensed professional who meets the requirements of ch. SPS 161.

DHS 38.02 History History: CR 17-005: cr. Register May 2018 No. 749, eff. 6-1-18; correction in (15) under s. 35.17, Stats., Register May 2018 No. 749, eff. 6-1-18.

DHS 38.03 DHS 38.03 Information about the requirement for controlled substance abuse screening, testing, and treatment. An administering agency shall provide information in a format approved by the department to any individual who expresses interest in or is referred to participate in an employment and training program to explain the requirement for participants in certain employment and training programs to undergo screening, testing, and treatment for abuse of controlled substances.

DHS 38.03 History History: CR 17-005: cr. Register May 2018 No. 749, eff. 6-1-18.

DHS 38.04 DHS 38.04 Administering and evaluating a controlled substance abuse screening questionnaire to determine possible substance abuse.

DHS 38.04(1) (1) Who must complete a screening questionnaire. At the time of application and at annual redetermination, an administering agency shall administer to any individual, as defined in s. DHS 38.02 (8), a controlled substance abuse screening questionnaire approved by the department, which may include questions related to controlled substance abuse as well as related criminal background. An administering agency shall determine whether answers to the controlled substance abuse-screening questionnaire indicate possible use of a controlled substance without a valid prescription by the individual.

DHS 38.04(2) (2) Application requirements.

DHS 38.04(2)(a) (a) An individual shall answer all questions on the screening questionnaire, sign and date the questionnaire, and submit the questionnaire to the administering agency.

DHS 38.04(2)(b) (b) If answers to the questionnaire indicate the prescribed use of controlled substance by an individual, in addition to the requirements stated in par. (a), the individual shall provide a valid prescription to the administering agency.

DHS 38.04(3) (3) Effect of failing to complete screening questionnaire. An individual who fails to comply with the application requirements stated in sub. (2) is not eligible to participate in the employment and training program, and the administering agency shall not refer the individual to participate in the program. An individual denied eligibility for participation in an employment and training program for failure to complete a screening questionnaire may complete a screening questionnaire at any time while FoodShare eligible.

DHS 38.04(4) (4) Effect of successfully passing the screening questionnaire. An individual whose answers to the screening questionnaire do not indicate possible substance abuse of a controlled substance has satisfied the requirements of this chapter and may participate in an employment and training program, subject to this chapter.

DHS 38.04 History History: CR 17-005: cr. Register May 2018 No. 749, eff. 6-1-18 correction in (1), (3) under s. 35.17, Stats., Register May 2018 No. 749, eff. 6-1-18.

DHS 38.05 DHS 38.05 Requiring a test for the use of a controlled substance.

DHS 38.05(1) (1) Who may be required to undergo drug testing. An individual whose answers on the screening questionnaire indicate possible use of a controlled substance without a prescription order shall be required to undergo a test for the use of a controlled substance.

DHS 38.05(2) (2) Nature of testing required. Testing shall consist of laboratory analysis of a specimen collected from an individual, by a qualified drug testing vendor or provider approved by the department, in a manner specified by the department that is consistent with guidelines from the U.S. department of health and human services. A qualified drug testing vendor shall analyze the specimen for the presence of controlled substances specified by the department.

DHS 38.05(3) (3) Contract for testing services. Subject to the department’s approval, the administering agency may contract with a qualified trauma-informed drug testing vendor to collect a specimen, carry out laboratory analysis of the specimen, store the specimen for confirmatory testing if required, complete confirmatory testing, provide review by a medical review officer, and document and report test results to the administering agency. The department may require the use of a specific testing service procured through state contracting if the department determines that volume discounts or other preferential pricing terms can be achieved through a statewide contract.

DHS 38.05(4) (4) Refusal to submit to a test. The following shall constitute a refusal to submit to a test by an individual:

DHS 38.05(4)(a) (a) Failure or refusal to appear for a scheduled drug test without good cause.

DHS 38.05(4)(b) (b) Failure or refusal to complete a form or release of information required for testing, including those required by the drug-testing vendor that permit the drug-testing vendor to report test results to the department or administering agency.

DHS 38.05(4)(c) (c) Failure or refusal to provide a valid specimen for testing.

DHS 38.05(4)(d) (d) Failure or refusal to provide verification of identity to the testing vendor.

DHS 38.05(5) (5) Effect of refusal to submit to a test. An individual who refuses to submit to a drug test, as provided in sub. (4), shall be ineligible to participate in the employment and training program until the individual agrees to be tested under sub. (2) for the use of a controlled substance, and test results have been reported. The administering agency may direct an individual who has refused to submit to a test and subsequently agrees to submit to a test to undergo drug testing on a random basis at any time within 10 business days after the individual agrees to submit to a test. The individual may not participate in an employment and training program until the individual undergoes a test for the use of a controlled substance and test results have been reported to the administering agency.

DHS 38.05(6) (6) Requirement for a confirmation test. If an individual tests positive for the use of a controlled substance, the drug testing vendor shall perform a confirmation test using the same specimen obtained for the initial positive drug test. All test results that are non-negative shall be interpreted by a drug testing vendor’s medical review officer who shall be responsible for determining the presence of a controlled substance, as provided in sub. (2).

DHS 38.05(7) (7) Accepting test results from another program. Results of a drug test performed by administering agency for the purpose of FoodShare eligibility or another state program, including a work experience program under ss. 49.162, 49.36, or 108.133, Stats., an income and maintenance program under s. 49.45 (23) (g), Stats., or a drug test carried out by the Wisconsin department of corrections, or other drug testing providers as approved by the department can be used by an administering agency to determine whether to refer an individual to treatment if the prior test results are provided directly to the administering agency, all the controlled substances required by the department to be tested under this chapter are included in the prior test results, and the test occurred within the previous 90 days.

DHS 38.05(8) (8) Effect of a negative test. An individual who undergoes a test for the use of a controlled substance under s. DHS 38.05 and tests negative for use of a controlled substance, or tests positive for use of a controlled substance but upon request provides to the administering agency a prescription for each controlled substance for which the individual tested positive, may participate in an employment and training program.

DHS 38.05(9) (9) Effect of a positive test. An individual whose test results are positive for a controlled substance and who fails to provide a valid prescription for the controlled substance shall be required to participate in treatment under s. DHS 38.06.

DHS 38.05(10) (10) Exception of testing requirements. Individuals may forego initial drug testing requirements under this chapter if they indicate in their drug screening questionnaire that they are ready to enter treatment.

DHS 38.05 History History: CR 17-005: cr. Register May 2018 No. 749, eff. 6-1-18.

DHS 38.06 DHS 38.06 Requiring participation in treatment.

DHS 38.06(1) (1) Who may be required to participate in controlled substance abuse treatment. Every individual who undergoes a test under s. DHS 38.05 and tests positive for the use of a controlled substance without presenting a valid prescription, and as determined by the medical review officer for the drug testing vendor, shall be required to participate in trauma-informed controlled substance abuse treatment to remain eligible to participate in an employment and training program.

DHS 38.06(2) (2) Referral for treatment. The administering agency shall provide information to every individual required to participate in substance abuse treatment about treatment program providers and county-specific assessment and enrollment activities required for entry into treatment. The administering agency shall monitor the individual’s progress in entering and completing treatment and the results of a random testing for the use of a controlled substance carried out during and at the conclusion of treatment.

DHS 38.06(3) (3) Substance abuse evaluation and assessment. A treatment provider will conduct a trauma-informed substance abuse evaluation and assessment and take any of the following actions based on the evaluation and assessment:

DHS 38.06(3)(a) (a) If a treatment provider determines an individual does not need substance abuse treatment, the provider shall notify the administering agency of its determination.

DHS 38.06(3)(b) (b) If a treatment provider determines an individual is in need of substance abuse treatment, the provider shall refer the individual to an appropriate treatment program to begin treatment and shall notify the administering agency of the referral and the expected begin date and duration of treatment.

DHS 38.06(3)(c) (c) If a treatment provider determines an individual is in need of treatment but is unable to refer the individual because there is a waiting list for enrollment in appropriate treatment programs, the provider shall notify the administering agency when the individual is expected to be enrolled.

DHS 38.06(4) (4) Eligibility of individual to participate in an employment and training program when treatment is not needed or the individual is placed on a waiting list.

DHS 38.06(4)(a) (a) An individual who has been determined by a treatment program after assessment not to need treatment will have satisfied the requirements of this chapter and may participate in an employment and training program.

DHS 38.06(4)(b) (b) An individual who is on a waiting list for enrollment in an appropriate treatment program shall continue to take all necessary steps to continue seeking enrollment in an appropriate treatment program. The individual is eligible to participate in an employment and training program during the waiting list period, provided the individual is not eligible for immediate enrollment in another appropriate treatment program.

DHS 38.06(5) (5) Satisfying the requirement to participate in treatment through participation in another program. An administering agency shall accept current participation in any treatment program to satisfy the requirements of this section. The individual participating in another program shall execute a release of information to allow the administering agency to obtain verification of successful participation in that treatment program.

DHS 38.06(6) (6) Refusal to participate in treatment. An individual refuses to participate in treatment if he or she does any of the following:

DHS 38.06(6)(a) (a) Fails or refuses to complete a form or releases required for treatment program administration, including those required by the treatment provider in order to share information with the administering agency about the individual’s participation in treatment.

DHS 38.06(6)(b) (b) Fails or refuses to participate in a controlled substance test required by the treatment provider or the administering agency during the course of required treatment, including random controlled substance testing directed by the treatment provider or administering agency.

DHS 38.06(6)(c) (c) Fails or refuses to meet attendance or participation requirements established by the treatment provider.

DHS 38.06(6)(d) (d) Fails or refuses to complete a substance abuse assessment.

DHS 38.06(7) (7) Effect of refusal to participate in treatment. Refusal to participate in a substance abuse treatment program will lead to ineligibility to participate in the employment and training program; however, an individual subject to this section may reapply for enrollment at any time if the individual agrees to participate in treatment and remains eligible for FoodShare benefits.

DHS 38.06(8) (8) Completion of required treatment. Individuals subject to this section will be considered to be successfully completing treatment if all components of the treatment program identified under the evaluation assessment as described in s. DHS 38.06 (3) are met.

DHS 38.06(9) (9) Participation in employment and training program work requirements while in treatment. An individual who is participating in an employment and training program shall be exempt from compliance with the work requirements under s. 49.79 (9), Stats., while participating in treatment.

DHS 38.06 History History: CR 17-005: cr. Register May 2018 No. 749, eff. 6-1-18.

DHS 38.07 DHS 38.07 Effect of completing, voluntarily withdrawing, or being terminated from an employment and training program. An individual who completes or voluntarily withdraws from an employment and training program is no longer subject to s. 49.79 (9) (d), Stats., or this chapter. An individual who is terminated from a program for reasons unrelated to substance abuse screening, testing, and treatment is no longer subject to s. 49.79 (9) (d), Stats., or this chapter. An individual who is no longer subject to the requirements of s. 49.79 (10) (a) is not subject to s. 49.79 (9) (d), Stats., or this chapter.

DHS 38.07 History History: CR 17-005: cr. Register May 2018 No. 749, eff. 6-1-18.

DHS 38.08 DHS 38.08 Confidentiality of records. Completed screening questionnaires, prescriptions, testing results, and treatment records relating to this chapter shall not be disclosed unless for purposes connected with the administration of an employment and training program, unless disclosure is otherwise authorized by law or by written consent from the individual who is the subject of the record. The department may establish administrative, physical, and technical safeguard procedures administering agencies may be required to follow to assure compliance with state and federal laws relating to public assistance program records, drug testing and treatment records, and medical records.

DHS 38.08 History History: CR 17-005: cr. Register May 2018 No. 749, eff. 6-1-18.

DHS 38.09 DHS 38.09 Appeals. An adverse decision under this chapter may be appealed following the procedure under 7 CFR 273.15 and s. HA 3.03.

DHS 38.09 History History: CR 17-005: cr. Register May 2018 No. 749, eff. 6-1-18.

DHS 38.10 DHS 38.10 Payment of costs related to screening, testing and treatment.

DHS 38.10(1) (1) The department shall pay for all costs related to screening individuals for controlled substance abuse, including the costs of producing, administering, and reviewing screening questionnaires.

DHS 38.10(2) (2) The department shall pay for all costs related to testing individuals for controlled substance abuse, including any costs related to contracting with qualified drug testing vendors sunder s. DHS 38.05 (3).

DHS 38.10(3) (3) The department shall fund treatment costs not otherwise covered by Medicaid or other private insurance at rates no higher than Medicaid rates.

DHS 38.10 History History: CR 17-005: cr. Register May 2018 No. 749, eff. 6-1-18.