WISCONSIN DEPARTMENT OF HEALTH SERVICES
PROPOSED ORDER TO ADOPT EMERGENCY RULE
The Wisconsin Department of Health Services proposes an order to create ch. DHS 50, relating to Youth Crisis Stabilization Facilities.
FINDING OF EMERGENCY
Pursuant to 2017 Wis. Act 59, Section 9120, the Department is not required to provide a finding of emergency to create rules implementing certification of Youth Crisis Stabilization Facilities, under s. 51.042, Stats.
Explanation of agency authority
Section 51.042 (4) authorizes the Department to promulgate rules to develop a certification for youth crisis stabilization facilities. In addition, s. 51.42 (7) (b), Stats., directs the Department to promulgate rules relating to a number of different facets of community mental health services, including administrative structure, requirements for certification, medication procedures, and standards for quality of professional services. Within certain parameters, s. 227.11 (2) (a), Stats., also authorizes the Department to promulgate rules interpreting provisions of any statues it enforces or administers, if the Department considers it necessary to effectuate the purposes of the statute. Finally, a nonstatutory provision in 2017 Wis. Act 59, Section 9120 authorizes the Department to promulgate emergency rules to implement certification of youth crisis stabilization facilities, without providing evidence that promulgating an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare.
Related statutes or rules
Plain language analysis
The objective of ch. DHS 50 is to create a certification for youth crisis stabilization facilities (YCSFs), a new type of facility which will serve youths ages 18 and under who are experiencing a mental health crisis. As such, the rule will cover certification requirements, program requirements, physical plant requirements, and other policy that will ensure safe and effective treatment of this population.
YCSFs are a new type of treatment that will serve youths ages 18 and under, in facilities of eight beds or fewer, to prevent or treat a mental health crisis. In Wisconsin, there is a vast shortage of community-based services for youths who are experiencing a mental health crisis. Many of these youths are sent to Winnebago Mental Health Institute (WMHI) on a Ch. 51.15, Stats., emergency detention to de-escalate the crisis and stabilize the youth. However, this level of treatment exceeds the clinical needs of many youth, and often is used because of a lack of more appropriate types of treatment options in the youth’s community. County emergency mental health services programs, along with other stakeholders, support the development of YCSFs as a clinically appropriate treatment option to address this existing mental health services need. This need is for short term (1- 5 days average) residential placements where professionals assist youths to de-escalate from a mental health crisis, as well as reduce the likelihood of future crises. YCSFs will collaborate with families, schools, providers, and other professionals to deliver and plan effective treatment with the youth.
There are no existing rules for YCSFs. YCSFs are a new type of mental health treatment for youth in WI. The expected outcome of ch. DHS 50 is that it will create a certification and regulation mechanism for YCSFs. The Department has the authority to limit the number of YCSF certifications. The Department initially expects it will certify 1-3 YCSFs across the state. It is expected that YCSFs will be located statewide in a number limited to the needs in the state. YCSFs will provide professional resources in a short term residential setting to a youth and their family to prevent further mental health crises with the youth. YCSFs will collaborate with the youth and other partners to address the mental health needs of each youth.
Section 51.42 (7) (b), Stats., authorizes the Department to create certification for YCSFs, and therefore there are no policy alternatives. Entities affected by this rule may include: youths participating in services and their families, county emergency mental health services programs which may be involved with the youth, and other providers of mental health treatment and other services. YCSFs will be part of a continuum of youth mental health services across the state.
Summary of, and comparison with, existing or proposed federal statutes and regulations
There appear to be no existing or proposed federal regulations that address the activities to be regulated by the proposed rules.
Comparison with rules in adjacent states (Illinois, Iowa, Michigan, Minnesota)
Summary of factual data and analytical methodologies
Data used in the creation of DHS 50 was largely qualitative and based on input from numerous stakeholders and subject experts. In addition, several existing statutes and administrative rules were referenced for guidance. Data used in the creation of this rule was sourced from the following:
1. Information was provided by Department subject experts in the Division of Quality Assurance (DQA), Division of Medicaid Services (DMS), and the Division of Care and Treatment Services (DCTS). DQA provided information on the certification process, and certification and facility policies based on other small residential treatment facilities licensed by the Department. DMS provided information on crisis intervention policy, eligibility for crisis intervention services, and other subjects related to Medicaid rules relating to YCSF services. DCTS provided expertise in clinical issues facing youth experiencing mental health crises, as well as expertise in ch. DHS 34, the Emergency Mental Health Services rule which covers crisis intervention and crisis stabilization services. DHS 50 was aligns with certain requirements in ch. DHS 34, such as staffing and supervision.
2. Subject experts at Winnebago Mental Health Institute advised on the population, treatment needs, and program design.
3. The Department of Children and Families staff advised on the population needs and facility design.
4. Providers who work with youth in crisis, including various county crisis intervention staff and private providers. These experts provided data on clinical and facility issues to consider in DHS 50.
5. Site visit to Homme Home, a residential care center for youth, which provided data on residential treatment needs for youth experiencing a mental health crisis.
6. Two listening sessions with the public in the fall 2018, attended by 40-50 stakeholders each. These sessions allowed stakeholders to provide feedback on aspects of the prospective administrative rule such as length of stay, authorizations for treatment, liaisons with schools, community partners, and many more subject areas.
7. The DHS 50 Advisory committee, which included representatives from five counties, several consumer advocates, several provider representatives, and several state agencies. This committee met four times in the fall of 2018 and provided extensive feedback on the draft language of DHS 50. The final rule language reflects data gathered from the expertise of the advisory committee.
8. The Office of Children’s Mental Health served on the Advisory Committee and also provided data regarding youth crisis stabilization needs, utilization of services, and the statewide continuum of care.
Analysis and supporting documents used to determine effect on small business
The Department published a solicitation in the Administrative Register, requesting comments on the economic impact of the proposed rule, from April 22nd to May 6th, 2019.
Effect on small business
The proposed rule will not affect existing small businesses, but will created new business opportunities.
Agency contact person
Statement on quality of agency data
The data sources referenced and used to draft the rules and analyses are accurate, reliable, and objective and are discussed in the “Summary of factual data and analytical methodologies.”
Place where comments are to be submitted and deadline for submission
SECTION 1. Chapter DHS 50 is created to read:
Youth Crisis Stabilization Facilities
Subchapter I – General Provisions and Requirements
DHS 50.01 Authority and purpose.
This chapter is promulgated under the authority of ss. 51.042 (4), 51.42 (7) (b), and 227.11 (2) (a), Stats., for the purpose of creating certification to operate youth crisis stabilization facilities.
DHS 50.02 Definitions.
(1) “Chemical restraint” means any drug, drug dosage, or drug regimen that may decrease a youth’s independent functioning, that is administered to control a youth’s behavior, and that is not prescribed to the youth for the treatment of a medical or psychiatric condition.
(2) “Clinical staff” means any of the following:
(a) A psychiatrist with the qualifications stated in s. DHS 34.21 (3) (b) 1.
(b) A psychologist with the qualifications stated in s. DHS 34.21 (3) (b) 2.
(c) A psychology resident with the qualifications stated in s. DHS 34.21 (3) (b) 3.
(d) A psychiatric resident with the qualifications stated in s. DHS 34.21 (3) (b) 4.
(e) A certified independent clinical social worker with the qualifications stated in s. DHS 34.21 (3) (b) 5.
(f) A psychiatric nurse with the qualifications stated in s. DHS 34.21 (3) (b) (6).
(g) A professional counselor and marriage and family therapist with the qualifications stated in s. DHS 34.21 (3) (b)
(h). A Master's level clinician who has a master's degree and coursework in areas directly related to providing mental health services, including clinical psychology, psychology, school or educational psychology, rehabilitation psychology, counseling and guidance or counseling psychology.
(3) “Crisis” has the meaning given in s. 51.042 (1) (a), Stats.
(4) “Crisis stabilization” means a stabilization service that complies with the
requirements stated in s. DHS 34.22 (4) (a) to (c).
(5) “Culturally responsive” means a service, or the provision of a service, in a manner that demonstrates an understanding of, and is attentive to, a youth’s cultural history and background and how those impact the youth’s treatment needs.
(6) “Deficiency" means a failure to meet a requirement of this chapter.
(7) “Department” means the department of health services.
(8) “Division” means the division of care and treatment services.
(9) “Facility” means the physical site where the YCSF program is located. Facility is limited to the space used by the program.
(10) “Family” means a youth’s relatives and others who are considered family by the youth and the youth’s culture.
(11) “Group services” means services delivered in a group setting of two or more youth.
(12) “Individual services” are services delivered by staff to a youth or family.
(13) “Legal representative” means any of the following:
(a) A guardian of the person as defined under s. 54.01 (12), Stats.
(b) A health care agent as defined in s. 155.01 (4), Stats., if the youth has a finding of incapacity pursuant to s. 155.05 (2), Stats., and if the power to make decisions regarding outpatient mental health services is included in the scope of the agency.
(c) A parent of a minor as defined in s. 48.02 (13), Stats., a guardian of a minor as defined in s. 48.02 (8), Stats., or a legal custodian of a minor as defined in s. 48.02 (11), Stats.
(14) “Licensed treatment professional" means any of the following, who is practicing under a currently valid training or temporary license or certificate granted under applicable provisions of ch. 457, Stats., except an individual whose license or certificate is suspended, revoked, or voluntarily surrendered, or whose license or certificate is limited or restricted, when practicing in areas prohibited by the limitation or restriction:
(a) An individual licensed as a physician under s. 448.03, Stats., who has completed a residency in psychiatry.
(b) A psychologist or a private practice school psychologist licensed under ch. 455, Stats.
(c) A marriage and family therapist licensed under s. 457.10 or 457.11, Stats.
(d) A professional counselor licensed under s. 457.12 or 457.13, Stats.
(e) An advanced practice social worker granted a certificate under s. 457.08 (2), Stats.
(f) An independent social worker licensed under s. 457.08 (3), Stats.
(g) A clinical social worker licensed under s. 457.08 (4), Stats.
(15) “Major deficiency” means a determination made by the department that any of the following have occurred:
(a) A YCSF has repeatedly or substantially failed to meet one or more requirements of this chapter.
(b) An action, condition, policy, or practice of the YCSF or the conduct of its staff created a risk of harm to a youth or violates a youth’s right created by this chapter or other state or federal statutes or rules, including any of the following:
DHS 35.03(9m)(a)1.1. A YCSF staff member had sexual contact as defined in s. 940.225 (5) (b) or sexual intercourse as defined in s. 940.225 (c), Stats., with a youth.
DHS 35.03(9m)(a)2.2. A YCSF staff member was convicted of abuse under s. 940.285, 940.29 or 940.295, Stats.
DHS 35.03(9m)(a)3.3. The health or safety of a youth is in imminent danger because of any act or omission by the YCSF or a staff member.
DHS 35.03(9m)(b)(c) A YCSF submits or causes to be submitted one or more false statements for purposes of obtaining certification under this chapter.
DHS 35.03(9m)(d)(d) Fraud or willful misrepresentation within the meaning of s. DHS 108.02 (9) (d). Willful misrepresentation under this paragraph does not include the signing of a claim for reimbursement by an authorized representative of a YCSF who did not perform the service for which reimbursement is claimed, if the individual who performed the service was qualified to do so under this chapter and was on the YCSF's staff when the services were performed.
DHS 35.03 Note(Note) The department may withhold Medical Assistance (MA) payments, in whole or in part, as provided in s. DHS 108.02 (9) (d) 1. A provider is entitled to a hearing under s. DHS 106.12.
DHS 35.03(9m)(e)(e) A YCSF staff member has a substantiated finding of caregiver misconduct as identified in ch. DHS 13.
(16) “Mechanical restraint” means any physical device, used for the purpose of limiting or controlling a youth’s movement, except that the procedures in s. DHS 50.12 (4) (e) 1. to 2. are not mechanical restraints.
(17) “Parent” means biological, foster, or adoptive parents legally recognized as a youth’s parent.
(18) “Physical restraint” means any manual method, such as a basket hold or prone or supine containment, or a mechanical device that the individual cannot remove easily and that is intended to restrict the freedom of movement or normal range of motion of one or more limbs or the entire body, but not including any of the following:
DHS 40.03(18)(a)(a) Mechanical supports used to achieve proper body position, balance or alignment, such as arm splints to reduce contractures or leg braces to support the legs while standing or walking. Mechanical supports are used to enhance independent functioning whereas physical restraints are used to limit independent functioning.
(b) Physical guidance and prompting techniques of brief duration.
(19) “Program” means a YCSF’s treatment and services component.
(20) “Trauma-informed” are services which recognize the impact of trauma on a youth’s behavior. Trauma-informed care prioritizes addressing and minimizing the impact of trauma in a youth’s life. Trauma-informed means a service, or the provision of a service, in a manner that demonstrates an understanding of, and is attentive to, a youth’s trauma history and background and how those impact the youth’s treatment needs.
(21) “Youth” means an individual under the age of 18 who is being treated at, or seeking treatment from, a YCSF.
(22) “Youth crisis stabilization facility” or “YCSF” has the meaning given in s. 51.042 (2), Stats.
DHS 50.03 Certification.
(1) GENERAL. No person or entity may operate a YCSF without successfully completing a background check verified by the Office of Caregiver quality and obtaining a certification from the department. A YCSF that has a certification from the department under this section is not subject to facility regulation under ch. 48, Stats.
(Note) Information about obtaining a background check is available at: https://www.dhs.wisconsin.gov/caregiver/cbcprocess.htm.