Chapter DHS 94

DHS 94.03(2) (2) An informed consent document is not valid unless the subject patient who has signed it is competent, that is, is substantially able to understand all significant information which has been explained in easily understandable language, or the consent form has been signed by the legal guardian of an incompetent patient or the parent of a minor, except that the patient’s informed consent is always required for the patient’s participation in experimental research, subjection to drastic treatment procedures or receipt of electroconvulsive therapy.

DHS 94.03(2m) (2m) In emergency situations or where time and distance requirements preclude obtaining written consent before beginning treatment and a determination is made that harm will come to the patient if treatment is not initiated before written consent is obtained, informed consent for treatment may be temporarily obtained by telephone from the parent of a minor patient or the guardian of a patient. Oral consent shall be documented in the patient’s record, along with details of the information verbally explained to the parent or guardian about the proposed treatment. Verbal consent shall be valid for a period of 10 days, during which time informed consent shall be obtained in writing.

DHS 94.03(3) (3) The patient, or the person acting on the patient’s behalf, shall be given a copy of the completed informed consent form, upon request.

DHS 94.03(4) (4) When informed consent is refused or withdrawn, no retaliation may be threatened or carried out.

DHS 94.03 Note Note: Additional requirements relating to refusal to participate in prescribed treatment are addressed under s. DHS 94.09.

DHS 94.03 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (1) (intro.), (a), (b), (d), (e), (f), cr. (2m), Register, June, 1996, No. 486, eff. 7-1-96.

DHS 94.04 DHS 94.04 Notification of rights.

DHS 94.04(1) (1) Before or upon admission or, in the case of an outpatient, before treatment is begun, the patient shall be notified orally and given a written copy of his or her rights in accordance with s. 51.61 (1) (a), Stats., and this chapter. Oral notification may be accomplished by showing the patient a video about patient rights under s. 51.61, Stats., and this chapter. The guardian of a patient who is incompetent and the parent of a minor patient shall also be notified, if they are available. Notification is not required before admission or treatment when there is an emergency.

DHS 94.04 Note Note: The statute does not make distinctions among types of treatment facilities when it comes to protecting patients’ rights. Some rights may be more applicable to patients in inpatient facilities than to patients in less restrictive facilities such as sheltered workshops or outpatient clinics. When informing patients of their rights, facility directors may emphasize those rights that are most applicable to the particular facility, program or services but s. 51.61, Stats., requires notification that other rights exist and may, under some circumstances, apply in a given situation.

DHS 94.04(2) (2) Before, upon or at a reasonable time after admission, a patient shall be informed in writing, as required by s. 51.61 (1) (w), Stats., of any liability that the patient or any of the patient’s relatives may have for the cost of the patient’s care and treatment and of the right to receive information about charges for care and treatment services.

DHS 94.04(3) (3) Patients who receive services for an extended period of time shall be orally re-notified of their rights at least annually and be given another copy of their rights in writing if they request a copy or if there has been a statutory change in any of their rights since the time of their admission.

DHS 94.04(4) (4) If a patient is unable to understand the notification of rights, written and oral notification shall be made to the parent or guardian, if available, at the time of the patient’s admission or, in the case of an outpatient, before treatment is begun, and to the patient when the patient is able to understand.

DHS 94.04(5) (5) All notification of rights, both oral and written, shall be in language understood by the patient, including sign language, foreign language or simplified language when that is necessary. A simplified, printed version of patients rights shall be conspicuously posted in each patient area.

DHS 94.04 Note Note: A simplified version of patient rights in poster form is available from the Division of Mental Health and Substance Abuse Services, P.O. Box 7851, Madison, WI 53707 or at www.dhs.wisconsin.gov/clientrights.

DHS 94.04 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (1), renum. (2), (3) to be (4), (5), cr. (2), (3), Register, June, 1996, No. 486, eff. 7-1-96.

subch. II of ch. DHS 94 Subchapter II — Patient Rights

DHS 94.05 DHS 94.05 Limitation or denial of rights.

DHS 94.05(1) (1) No patient right may be denied except as provided under s. 51.61 (2), Stats., and as otherwise specified in this chapter.

DHS 94.05(2) (2) 

DHS 94.05(2)(a) (a) Good cause for denial or limitation of a right exists only when the director or designee of the treatment facility has reason to believe the exercise of the right would create a security problem, adversely affect the patient’s treatment or seriously interfere with the rights or safety of others.

DHS 94.05(2)(b) (b) Denial of a right may only be made when there are documented reasons to believe there is not a less restrictive way of protecting the threatened security, treatment or management interests.

DHS 94.05(2)(c) (c) No right may be denied when a limitation can accomplish the stated purpose and no limitation may be more stringent than necessary to accomplish the purpose.

DHS 94.05(3) (3) At the time of the denial or limitation, written notice shall be provided to the patient and the guardian, if any, and a copy of that notice shall be placed in the patient’s treatment record. The written notice shall:

DHS 94.05(3)(a) (a) Inform the patient and the guardian, if any, of the right to an informal hearing or a meeting with the person who made the decision to limit or deny the right.

DHS 94.05(3)(b) (b) State the specific conditions required for restoring or granting the right at issue;

DHS 94.05(3)(c) (c) State the expected duration of denial or limitation; and

DHS 94.05(3)(d) (d) State the specific reason for the denial or limitation.

DHS 94.05(4) (4) Within 2 calendar days following the denial, written notice shall be sent as follows:

DHS 94.05(4)(a) (a) If the patient is a county department patient, to the county department’s client rights specialist and, in addition, if the patient is in a department-operated facility, to the department’s division of care and treatment facilities; and

DHS 94.05(4)(b) (b) If the patient is not a county department patient, to the treatment facility’s client rights specialist and, in addition, if the patient is in a department-operated facility, to the department’s division of care and treatment facilities.

DHS 94.05 Note Note: Copies of the rights-denial form may be requested from the Department’s website at www.dhs.wisconsin.gov/clientrights or by writing to the Division of Mental Health and Substance Abuse Services, P.O. Box 7851, Madison, WI 53707-7851.

DHS 94.05(5) (5) The treatment facility director or that person’s designee shall hold an informal hearing or arrange for the person who made the decision to limit or deny the right to hold a meeting within 3 days after receiving a hearing request or a request for a meeting with the person who made the decision from a patient whose rights have been denied or limited. The treatment facility director or designee, in the case of a hearing, or the person who made the decision to limit or deny the right, in the case of a meeting, shall consider all relevant information submitted by or on behalf of the patient when rendering a decision.

DHS 94.05(6) (6) The service provider shall inform a patient whose rights are limited or denied in accordance with this subsection that the patient may file a grievance concerning the limitation or denial.

DHS 94.05 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (3) (a), (4) (a), (5), r. and recr. (6), Register, June, 1996, No. 486, eff. 7-1-96.

DHS 94.06 DHS 94.06 Assistance in the exercise of rights.

DHS 94.06(1) (1) Each service provider shall assist patients in the exercise of all rights specified under ch. 51, Stats., and this chapter.

DHS 94.06(2) (2) No patient may be required to waive any of his or her rights under ch. 51, Stats., or this chapter as a condition of admission or receipt of treatment and services.

DHS 94.06 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; renum and am., cr. (2), Register, June, 1996, No. 486, eff. 7-1-96.

DHS 94.07 DHS 94.07 Least restrictive treatment and conditions.

DHS 94.07(1) (1) Except in the case of a patient who is admitted or transferred under s. 51.35 (3) or 51.37, Stats., or under ch. 971 or 975, Stats., each patient shall be provided the least restrictive treatment and conditions which allow the maximum amount of personal and physical freedom in accordance with s. 51.61 (1) (e), Stats., and this section.

DHS 94.07(2) (2) No patient may be transferred to a setting which increases personal or physical restrictions unless the transfer is justified by documented treatment or security reasons or by a court order.

DHS 94.07 Note Note: Refer to ss. 51.35 (1) and 55.15, Stats., for transfer requirements in cases that are different from those covered under s. 51.61 (1) (e), Stats.

DHS 94.07(3) (3) Inpatient and residential treatment facilities shall identify all patients ready for placement in less restrictive settings and shall, for each of these patients, notify the county department or the county social services department of the identified county of responsibility, as determined in accordance with s. 51.40, Stats., and shall also notify the patient’s guardian and guardian ad litem, if any, and the court with jurisdiction over the patient’s ch. 51 or 55, Stats., placement, if any, that the patient is ready for placement in a less restrictive setting. The county department or the county social services department shall then act in accordance with s. 51.61 (1) (e), Stats., to place the patient in a less restrictive setting.

DHS 94.07(4) (4) Inpatient and residential treatment facilities shall identify security measures in their policies and procedures and shall specify criteria for the use of each security-related procedure.

DHS 94.07 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (1), (3), renum. (5) to be HFS 94.24 (3) (i), Register, June, 1996, No. 486, eff. 7-1-96.

DHS 94.08 DHS 94.08 Prompt and adequate treatment. All patients shall be provided prompt and adequate treatment, habilitation or rehabilitation, supports, community services and educational services as required under s. 51.61 (1) (f), Stats., and copies of applicable licensing and certification rules and program manuals and guidelines.

DHS 94.08 Note Note: Educational requirements for school-age patients in inpatient facilities can be found under chs. 115 and 118, Stats.

DHS 94.08 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. Register, June, 1996, No. 486, eff. 7-1-96.

DHS 94.09 DHS 94.09 Medications and other treatment.

DHS 94.09(1) (1) Each patient shall be informed of his or her treatment and care and shall be permitted and encouraged to participate in the planning of his or her treatment and care.

DHS 94.09(2) (2) A patient may refuse medications and any other treatment except as provided under s. 51.61 (1) (g) and (h), Stats., and this section.

DHS 94.09(3) (3) Any patient who does not agree with all or any part of his or her treatment plan shall be permitted a second consultation for review of the treatment plan as follows:

DHS 94.09(3)(a) (a) An involuntary patient may request a second consultation from another staff member who is not directly providing treatment to the patient, and the treatment facility shall make the designated staff member available at no charge to the patient; and

DHS 94.09(3)(b) (b) Any patient may, at his or her own expense, arrange for a second consultation from a person who is not employed by the treatment facility to review the patient’s treatment record.

DHS 94.09(3)(c) (c) Service providers may pay for some or all of the costs of any second consultation allowed under par. (b). Service providers may also enter into agreements with other service providers to furnish consultations for each other’s clients.

DHS 94.09(4) (4) Except in an emergency when it is necessary to prevent serious physical harm to self or others, no medication may be given to any patient or treatment performed on any patient without the prior informed consent of the patient, unless the patient has been found not competent to refuse medication and treatment under s. 51.61 (1) (g), Stats., and the court orders medication or treatment. In the case of a patient found incompetent under ch. 54, Stats., the informed consent of the guardian is required. In the case of a minor, the informed consent of the parent or guardian is required. Except as provided under an order issued under s. 51.14 (3) (h) or (4) (g), Stats., if a minor is 14 years of age or older, the informed consent of the minor and the minor’s parent or guardian is required. Informed consent for treatment from a patient’s parent or guardian may be temporarily obtained by telephone in accordance with s. DHS 94.03 (2m).

DHS 94.09(5) (5) A voluntary patient may refuse any treatment, including medications, at any time and for any reason, except in an emergency, under the following conditions:

DHS 94.09(5)(a) (a) If the prescribed treatment is refused and no alternative treatment services are available within the treatment facility, it is not considered coercion if the facility indicates that the patient has a choice of either participating in the prescribed treatment or being discharged from the facility; and

DHS 94.09(5)(b) (b) The treatment facility shall counsel the patient and, when possible, refer the patient to another treatment resource prior to discharge.

DHS 94.09(6) (6) The treatment facility shall maintain a patient treatment record for each patient which shall include:

DHS 94.09(6)(a) (a) A specific statement of the diagnosis and an explicit description of the behaviors and other signs or symptoms exhibited by the patient;

DHS 94.09(6)(b) (b) Documentation of the emergency when emergency treatment is provided to the patient;

DHS 94.09(6)(c) (c) Clear documentation of the reasons and justifications for the initial use of medications and for any changes in the prescribed medication regimen; and

DHS 94.09(6)(d) (d) Documentation that is specific and objective and that adequately explains the reasons for any conclusions or decisions made regarding the patient.

DHS 94.09(7) (7) A physician ordering or changing a patient’s medication shall ensure that other members of the patient’s treatment staff are informed about the new medication prescribed for the patient and the expected benefits and potential adverse side effects which may affect the patient’s overall treatment.

DHS 94.09(8) (8) A physician ordering or changing a patient’s medication shall routinely review the patient’s prescription medication, including the beneficial or adverse effects of the medication and the need to continue or discontinue the medication, and shall document that review in the patient’s treatment record.

DHS 94.09(9) (9) Each inpatient and residential treatment facility that administers medications shall have a peer review committee or other medical oversight mechanism reporting to the facility’s governing body to ensure proper utilization of medications.

DHS 94.09 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; renum. (1) to (8) to be (2) to (9) and am. (4); cr. (1), (3) (c), (6) (d), Register, June, 1996, No. 486, eff. 7-1-96; correction in (4) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.

DHS 94.10 DHS 94.10 Isolation, seclusion and physical restraints. Any service provider using isolation, seclusion or physical restraint shall have written policies that meet the requirements specified under s. 51.61 (1) (i), Stats., and this chapter. Isolation, seclusion or physical restraint may be used only in an emergency, when part of a treatment program or as provided in s. 51.61 (1) (i) 2., Stats. For a community placement, the use of isolation, seclusion or physical restraint shall be specifically approved by the department on a case-by-case basis and by the county department if the county department has authorized the community placement. In granting approval, a determination shall be made that use is necessary for continued community placement of the individual and that supports and safeguards necessary for the individual are in place.

DHS 94.10 Note Note: The use of isolation, seclusion or physical restraint may be further limited or prohibited by licensing or certification standards for that service provider.

DHS 94.10 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; r. and recr. Register, June, 1996, No. 486, eff. 7-1-96.

DHS 94.11 DHS 94.11 Electroconvulsive therapy.

DHS 94.11(1) (1) No patient may be administered electroconvulsive therapy except as specified under s. 51.61 (1) (k), Stats., and this section.

DHS 94.11(2) (2) The patient shall be informed that he or she has a right to consult with legal counsel, legal guardian, if any, and independent specialists prior to giving informed consent for electroconvulsive therapy.

DHS 94.11(3) (3) A treatment facility shall notify the program director prior to the planned use of electroconvulsive therapy on a county department patient.

DHS 94.11(4) (4) Electroconvulsive therapy may only be administered under the direct supervision of a physician.

DHS 94.11(5) (5) A service provider performing electroconvulsive therapy shall develop and implement written policies and procedures for obtaining and monitoring informed consent.

DHS 94.11 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; cr. (5), Register, June, 1996, No. 486, eff. 7-1-96.

DHS 94.12 DHS 94.12 Drastic treatment procedures.

DHS 94.12(1) (1) Drastic treatment procedures may only be used in an inpatient treatment facility or a center for the developmentally disabled as defined in s. 51.01 (3), Stats. No patient may be subjected to drastic treatment procedures except as specified under s. 51.61 (1) (k), Stats., and this section.

DHS 94.12(2) (2) The patient shall be informed that he or she has a right to consult with legal counsel, legal guardian, if any, and independent specialists prior to giving informed consent for drastic treatment procedures.

DHS 94.12(3) (3) The treatment facility shall notify the program director prior to the planned use of drastic treatment procedures on county department patients.

DHS 94.12(4) (4) Each county department shall report monthly to the department the type and number of drastic treatment procedures used on county department patients.

DHS 94.12 Note Note: Reports required under sub. (4) should be sent to the area administrator in the appropriate Department regional office. The addresses of all regional offices are available from the Office of Policy Initiatives and Budget, P.O. Box 7850, Madison, WI 53707.

DHS 94.12 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87.

DHS 94.13 DHS 94.13 Research and human rights committee.

DHS 94.13(1) (1) An inpatient or residential treatment facility conducting or permitting research or drastic treatment procedures involving human subjects shall establish a research and human rights committee in accordance with 45 CFR 46, s. 51.61 (4), Stats., and this section.

DHS 94.13(2) (2) The committee shall include 2 members who are consumers or who represent either an agency or organization which advocates rights of patients covered by this chapter.

DHS 94.13(3) (3) The inpatient or residential treatment facility research and human rights committee shall designate a person to act as consent monitor who shall be authorized to validate informed consent and terminate a patient’s participation in a research project or a drastic treatment procedure immediately upon violation of any requirement under this chapter or upon the patient’s withdrawal of consent.