Wisconsin Legislature: DHS 35.08(4)(c)

(b) All notices under this chapter will be sent to the main office.

(d) Both the clinic as a whole and the main office shall comply with the staffing requirements of s. DHS 35.123 (2).

(e) The clinic shall adopt policies and procedures that are adequate to ensure that the clinic administrator is able to carry out the oversight and other responsibilities specified under ss. DHS 35.123 (1), 35.14 (1), and 35.15 (1) and (2) with respect to all other offices, given the location of the clinic’s offices and their distance from the main office.

(2) A clinic may provide outpatient mental health services at its offices, except in instances where therapeutic reasons are documented in the consumer file to show that it is appropriate to use an alternative location such as a nursing home, school, medical clinic, the consumer’s home, or other location appropriate to support the consumer’s recovery. The clinic may also deliver services via telehealth.

History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09; CR 23-053: am. (2) Register September 2023 No. 813, eff. 10-1-23.

DHS 35.08 Certification process.

(1) Initial application. Application to the department for initial outpatient mental health clinic certification shall be made to the department on a form provided by the department and shall include applicable fees, proof of malpractice and liability insurance for the clinic and each staff member who provides psychotherapy or who is a prescriber, and all of the information requested in the application. Additional offices do not require separate certification, but the clinic shall identify each office location and respond to any questions regarding each office in the application for initial certification.

Note: Fees are set and periodically revised by the department’s Division of Quality Assurance. Fees may vary based on a number of factors including the number of offices at which the clinic provides services.

Note: Application materials may be obtained from and submitted to the Behavioral Health Certification Section, Division of Quality Assurance, PO Box 2969, Madison, WI 53701-2969

(2) Compliance review.

(a) Upon receipt of a complete initial application, department staff may conduct an on-site inspection of any office identified in the clinic application and may review any of the following information to determine if the clinic is in compliance with this chapter:

1. Statements made by the applicant or a staff member.

2. Documentary evidence.

3. On-site observations by a representative of the department.

4. Reports by consumers regarding the clinic’s operations.

(b) The clinic shall make available for review by the department’s designated representative all documentation necessary to establish whether the applicant and each of the applicant’s offices is in compliance with the standards in this chapter, including written policies and procedures of the clinic, work schedules of staff members, credentials of staff members, consumer files and treatment records, information from grievances filed concerning the clinic, records of consumers who have been discharged, and evidence of contractual staffing.

(c) The designated representative of the department shall preserve the confidentiality of all consumer information obtained during the certification process, to the extent required by ch. DHS 92 and 45 CFR Parts 160, 162 and 164 and other applicable state and federal statutes and regulations.

(3) Issuance of certification.

(a) Action on application.

1. Within 60 days after receiving a complete application for initial certification, the department shall grant the clinic initial certification or deny certification.

2. If the department determines that a clinic applying for initial certification has a deficiency that is not a major deficiency as defined under s. DHS 35.03 (9m), the department may grant or deny certification to the clinic. If the department grants initial certification to a clinic with a deficiency, the department shall issue a notice of deficiency under s. DHS 35.11 (1m) (a).

3. If the department determines that a clinic applying for initial certification has a major deficiency, the department shall issue a notice of deficiency under s. DHS 35.11 (1m) (a) and may deny initial certification, whichever is applicable.

(b) Duration of certification.

1. Certification remains valid until it is suspended or terminated by the department in accordance with s. DHS 35.11 (2)

2. Certification becomes invalid due to non-submission of the biennial report or non-payment of biennial fees in accordance with sub. (4).

(4) Biennial report and fees.

(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.

(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

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

(5) Denial of certification. The department may deny certification based on any major deficiency. A denial of certification shall be in writing and shall contain the reason for the denial and notice of opportunity for a hearing under s. DHS 35.11 (3).

History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09; CR 22-078: renum. (1) (a) to (1) and am., r. (1) (b), am. (2) (a) (intro.), r. (2) (d), am. (3) (a), r. and recr. (3) (b), (4) Register July 2023 No. 811, eff. 8-1-23; correction in (1) (b) made under s. 35.17, Stats., Register July 2023 No. 811.

DHS 35.09 Notification of clinic changes. The clinic shall notify the department of any changes in administration, ownership or control, office location, clinic name, or program, and any change in the clinic’s policies or practices that may affect clinic compliance by no later than the effective date of the change.

History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09.

DHS 35.10 Scope and transferability of certification. Certification is issued only for the offices identified in the application for initial certification and only for the individual or individuals, corporations or other legal entities named in the application for initial certification. Certification may not be transferred or assigned, including by change of ownership or control of a corporation or other legal entity named in the certification. A change in ownership or control includes a majority change in the shares of stock held or in the board of directors of a corporation certified under this chapter, or any other change that results in transfer of control or transfer of a majority share in the control of the operations of a clinic. A change in ownership requires application for new certification. Additional offices at which services are provided do not require separate certification but shall be identified in the application for initial certification.

History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09; CR 22-078: am. Register July 2023 No. 811, eff. 8-1-23.

DHS 35.11 Enforcement actions.

(1) Unannounced visits. The department may make unannounced on-site inspections of any office of a clinic at any time to conduct complaint or death investigations involving the clinic, its staff members, or outpatient mental health services provided by the clinic, or to determine a clinic’s progress toward compliance after citation of a major deficiency.

(1m) Notice of deficiencies.

(a) If the department determines that a clinic has a deficiency, the department shall issue a notice of deficiency to the clinic. The department may place restrictions on the activities of the clinic, or terminate or summarily suspend the clinic’s certification.

(b)

1. If requested by the department, the clinic shall submit a plan of correction to the department within 30 days of the date of the notice of deficiency issued under par. (a), or other time designated by the department in the notice of deficiency. If the plan of correction submitted by the clinic is not acceptable to the department, the department may impose a plan of correction.

2. A plan of correction submitted by a clinic or imposed by the department under subd. 1. shall identify the specific steps the clinic will take to correct the deficiency; the timeline within which the corrections will be made; and the staff members who will implement the plan and monitor for future compliance.

(2) Termination and summary suspension of certification.

(a) The department may terminate certification at any time for any major deficiency upon written notice to the clinic. The notice shall specify the reason for the department action and the appeal information under sub. (3).

(b)

1. The department may summarily suspend a clinic’s certification if the department believes immediate action is required to protect the health, safety, and welfare of consumers. Notice of summary suspension of certification may be written or verbal and shall specify the reason for the department action and the date the action becomes effective. Within 10 working days after the order is issued, the department shall either allow continuance of the clinic’s certification or proceed to terminate the clinic’s certification.

2. Unless waived by the clinic, the division of hearings and appeals shall hold a hearing within 10 working days after the effective date of the order in subd. 1. to determine if certification should remain suspended during termination proceedings. The division of hearings and appeals shall give written notice of the hearing to the clinic and the department.

(3) Appeals.

(a) If the department denies or terminates certification, the clinic may request a contested case hearing under ch. 227, Stats.

(b) A clinic’s request for hearing shall be submitted in writing to the department of administration’s division of hearings and appeals within 30 days after the date of the notice of the department’s action. If the clinic makes a timely request for hearing on the department’s decision to terminate or deny certification, that action is stayed pending a decision on the appeal, unless the certification has been summarily suspended.

Note: A request for hearing may be delivered in person or mailed to the Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53707-7875. An appeal may be sent by fax to the Division’s facsimile transmission number at (608) 264-9885.

History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09; CR 22-078: am. (3) (b) Register July 2023 No. 811, eff. 8-1-23.

DHS 35.12 Waivers and variances.

(1) A clinic may apply to the department for a waiver or a variance at any time. Each request shall be made in writing to the department and shall include all of the following:

(a) Identification of the rule provision from which the waiver or variance is requested.

(b) The time period for which the waiver or variance is requested.

(d) The reasons for the request.

(e) Supporting justification.

(f) Any other information requested by the department.

Note: An application for a waiver or variance should be addressed to the Behavioral Health Certification Section, Division of Quality Assurance, P.O. Box 2969, Madison, WI 53701-2969.

(2) The department may grant a waiver or variance permitting a clinic to use new concepts, methods, procedures, techniques, equipment, personnel qualifications, or the conducting of pilot projects in the interest of better care or management, if the department finds that the waiver or variance will not adversely affect the health, safety, or welfare of any consumer.

(2m) The department may grant a variance to a clinic that is unable to meet the minimum staffing requirements under s. DHS 35.123 (2). To be eligible for a variance under this subsection, the clinic shall establish that it has made and continues to make a good faith effort to recruit and retain a sufficient number of staff with the qualifications specified in s. DHS 35.123 (2). In addition to any other conditions the department may impose on a variance issued under this paragraph, the department shall require that the clinic submit evidence on a continuous basis of the clinic’s good faith efforts to recruit and retain qualified staff.

(3) The department shall provide its determination on a request for a waiver or variance to the clinic in writing. The department may impose restrictions on any waiver or variance it grants, including limiting the duration of any waiver or variance and may withdraw the waiver or variance if a clinic is not in compliance with one or more of the restrictions. The terms or restrictions of a variance may be modified upon agreement between the department and the clinic.

(4)

(a) Within 60 days of the receipt of a request for waiver, the department shall grant or deny the waiver in writing. If the department denies a request for a waiver or variance, or revokes a waiver or variance, the reason for the denial or revocation shall be included in the notice.

(b) The department may revoke a waiver or variance if any of the following occurs:

1. The actions taken as a result of the waiver or variance have or will adversely affect the health, safety or welfare of a consumer.

2. The clinic has failed to comply with the variance as granted.

3. The clinic notifies the department that it wishes to relinquish the waiver or variance.

4. There is a change in applicable law.

5. For any other reason the department finds the revocation is necessary to protect the health, safety, or welfare of a consumer.

History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09.

Subchapter III — Personnel

DHS 35.123 Staffing requirements for clinics.

(1) Each clinic shall have a clinic administrator who is responsible for clinic operations, including ensuring that the clinic is in compliance with this chapter and other applicable state and federal law. A clinic administrator may be a licensed treatment professional or mental health practitioner.

(2) In addition to the clinic administrator, the clinic shall have a sufficient number of qualified staff members available to provide outpatient mental health services to consumers admitted to care. Except as provided in s. DHS 35.12 (2m), the clinic shall implement any one of the following minimum staffing combinations to provide outpatient mental health services:

(a) Two or more licensed treatment professionals who combined are available to provide outpatient mental health services at least 60 hours per week.

(b) One or more licensed treatment professionals who combined are available to provide outpatient mental health services at least 30 hours per week and one or more mental health practitioners or recognized psychotherapy practitioners who combined are available to provide outpatient mental health services at least 30 hours per week.

(c) One or more licensed treatment professionals who combined are available to provide outpatient mental health services at least 37.5 hours per week, and at least one psychiatrist or advanced practice nurse prescriber who provides outpatient mental health services to consumers of the clinic at least 4 hours per month.

(2m) If a clinic has more than one office, both the clinic as a whole and its main office shall comply with the requirements of sub. (2).

(3) If a clinic provides services to persons 13 years old or younger, the clinic shall have staff qualified by training and experience to work with children and adolescents.

(4) A clinic that is certified before June 1, 2009 shall meet the requirements of subs. (1) and (3) upon June 1, 2009, but shall have until January 1, 2012 to meet the minimum staffing requirements under sub. (2).

(5) A person whose professional license is revoked, suspended, or voluntarily surrendered may not be employed or contracted with as a mental health professional, or a prescriber. A person whose professional license is limited or restricted, may not be employed or contracted with to practice in areas prohibited by the limitation or restriction.

History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09; correction to numbering of (4) and (5) made under s. 13.92 (4) (b) 1., Stats., Register May 2009 No. 641.

DHS 35.127 Persons who may provide psychotherapy services through an outpatient mental health clinic.

(1) Any mental health professional may provide psychotherapy to consumers through a clinic required to be certified under this chapter.

(2) A qualified treatment trainee may provide psychotherapy to consumers only under clinical supervision as defined under s. DHS 35.03 (5) (a).