State of Wisconsin
Department of Children and Families
Substance Abuse Screening, Testing, and Treatment for the
Children First Program
The Wisconsin Department of Children and Families proposes an order to create chapter DCF 154, relating to substance abuse screening, testing, and treatment for the Children First program.
(See PDF for image)This emergency rule was approved by the governor on February 23, 2016.
The statement of scope for this rule, ss. 141-15, was approved by the governor on December 18, 2015, published in Register 720B, on December 28, 2015, and approved by Secretary Eloise Anderson on January 7, 2016.
Finding of Emergency
Section 9106(2c) of 2015 Wisconsin Act 55 permits the department to promulgate an emergency rule to implement the requirement for individuals in certain public assistance programs to participate in drug screening, drug testing, and drug treatment, without providing “evidence that promulgating a rule under this paragraph as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare” and providing “a finding of emergency for a rule promulgated under this paragraph.”
Analysis Prepared by the Department of Children and Families
Statutory authority: Section 49.162 (7), Stats., as created by 2015 Wisconsin Act 55 Statutes interpreted: Section 49.162, Stats., as created by 2015 Wisconsin Act 55 Related statute or rule: Section 49.36 (3m), as created by 2015 Wisconsin Act 55
Explanation of Agency Authority
Section 49.162 (7), Stats., as created by 2015 Wisconsin Act 55, provides that “the department shall promulgate rules to implement the substance abuse screening, testing, and treatment requirements” under s. 49.162, Stats. Section 49.162, Stats., as created by 2015 Wisconsin Act 55, requires substance abuse screening, testing, and treatment as a condition of eligibility for all of the following: • Persons who apply to participate in the Transform Milwaukee program or the Transitional Jobs program under s. 49.163, Stats. • Persons who apply to participate in W-2 services and benefits for noncustodial parents under s. 49.159 (1) (b), Stats.
• Persons who are ordered by a court to register for Children First because they are not meeting their child support obligations.
The ch. DCF 154 applies to the Children First program. Rules for the other 3 programs were promulgated separately in ch. DCF 105. A specific rule for the Children First program is required due to unique and substantial differences in how that program is administered. Section 49.36 (3m), Stats., provides that “a person is not eligible to participate in a program under this section unless the person satisfies all of the requirements related to substance abuse screening, testing, and treatment under s. 49.162, Stats., that apply to the individual.” Section 49.162 (2), Stats., requires an individual who registers for the Children First program to complete a questionnaire that screens for the abuse of a controlled substance. If the administering agency determines that there is a reasonable suspicion that an individual who is otherwise eligible for a work experience program is abusing a controlled substance based on the individual’s answers to the questionnaire, the individual must undergo a test for the use of a controlled substance to be eligible to participate in the Children First program. If the individual refuses to answer the questionnaire or submit to a drug test, the individual is not eligible to participate in the program until the individual complies with the requirement to complete the questionnaire and undergo a test for the use of a controlled substance. An individual who undergoes a test for the use of a controlled substance and tests negative will have satisfactorily completed the substance abuse testing requirements. An individual who tests positive but presents evidence of a valid prescription that explains any metabolite detected by the test will also have satisfactorily completed the substance abuse testing requirements. An individual who tests positive without presenting evidence of a valid prescription is required under s. 49.162 (4) (a), Stats., to participate in substance abuse treatment in order to remain eligible for the Children First program. During the time an individual is participating in required controlled substance abuse treatment, the individual is required under s. 49.162 (4) (b), Stats., to undergo one or more random substance abuse tests. An individual who tests positive during treatment without presenting evidence of a valid prescription that explains any metabolite detected by the test will have one opportunity to begin treatment again. The individual re-entering treatment after an unexplained positive test remains eligible for the program only if the individual does not have another unexplained positive test before successfully completing treatment. Upon completion of the treatment program, the individual must undergo a test for substance abuse under s. 49.162 (4) (c), Stats. If the test result is negative or if it is positive only for metabolites associated with a valid prescription, the individual will have satisfactorily completed the substance abuse testing requirements under s. 49.162 (4) (c), Stats.
Summary of the Rule
The purpose of this chapter is to establish a process to screen for, and, if appropriate, test for the use of controlled substances, as defined in this chapter, by individuals registered for the Children First program administered by the Department of Children and Families under s. 49.36, Stats., and to refer individuals determined to be abusing a controlled substance to a treatment provider for a substance abuse assessment and evaluation and appropriate treatment. The rule permits the department to approve one or more screening questionnaires that may be used to determine whether there is reasonable suspicion that an individual who is otherwise eligible for a work experience program under s. 49.36, Stats., is abusing a controlled substance, standards for concluding a reasonable suspicion of controlled substance abuse exists, and procedures for determining when an individual has refused to comply with the screening requirement. The rule defines how individuals reasonably suspected of abusing a controlled substance will be tested for use of a controlled substance, what alternative test results may be accepted to satisfy the testing requirement, what confirmation testing may be required, how test result records will be stored to assure confidentiality and compliance with federal regulations relating to diagnosis and treatment records for drug abuse, how applicants may consent to sharing test result information, and how refusal to submit to a test will be determined.
For applicants who test positive for use of a controlled substance without evidence of a valid prescription that explains all controlled substances identified in the test, the rule defines how the individual will be assessed to determine the need for treatment, how random drug tests during treatment and at the completion of treatment will be carried out, what standards will be used to determine if an individual with a positive test result during or after treatment can continue or re-start treatment, and who has access to and maintains records of treatment. Finally, the rule determines whether an individual who is ineligible for a work experience program may reapply for the same program or apply for other department programs covered by the substance abuse screening, testing, and treatment requirement.
If a person registered for the work experience program under s. 49.36, Stats., fails to complete a screening questionnaire under s. DCF 154.04, fails to submit to a test under s. DCF 154.05, or fails to participate in treatment under s. DCF 154.06, the administering agency is required to notify the clerk of court for the court that ordered the individual to register for the program by submitting an affidavit. This notification requirement assures the court is aware the person is ineligible for the program under s. 49.36 (3m), Stats., and that the court will not receive an affidavit of completion under s. 49.36 (4), Stats.
Summary of Factual Data and Analytical Methodologies
The rule was developed with the assistance of agencies administering the Children First program under the department’s 2015-2016 contracts and child support enforcement agencies. The department shared ch. DCF 105 with these stakeholders and asked them to identify changes that would be required to accommodate the unique features of the Children First program.
Summary of Related Federal Requirements