DHS 40: Section 51.42 (7) (b), Stats., directs the Department to promulgate rules governing the provision of community mental health services. The Department determines and monitors standards and requirements to administer services for community mental health, developmental disabilities, alcoholism, and drug abuse. DHS 60: Sections 46.03(1) and (2), Stats., directs the Department to “maintain and govern” state treatment institution property, and to “[s]upervise, manage, preserve and care for the buildings, grounds and other property pertaining to said institutions.” In accordance with 227.11 (2), Stats., the Department determined that rules regarding traffic and conduct on statement institution property were necessary to effectuate ss. 46.03 (1) and (2), Stats. DHS 61: Section 51.437 (16), Stats., provides that rules promulgated under s. 51.42 (7) (b) apply to services provided through by boards established under s. 51.42, 51.437, or 46.23, Stats, and services provided by agencies under contract with the boards. In accordance with s. 227.11 (2), Stats., the department interpreted ss. 51.42, 51.437, and 51.45 to require rules to establish a basis to assure adequate services were provided. DHS 62: Sections 343.30 (1q) (c) 2. and 343.305 (10) (c) 2., Stats., direct the Department to establish rules containing standards for assessment and driver safety plans for persons who operate a motor vehicle while under the influence of intoxicants or other drugs and who voluntarily, or by court order or by order of the Wisconsin department of transportation undergo an intoxicated driver assessment and complete a driver safety plan. DHS 63: Sections 51.42 (7) (b) and 51.421 (3) (a) and (c) authorize the Department to establish rules for community support programs under s. 51.421, Stats., that are for chronically mentally ill persons living in the community. DHS 75: Section 51.42 (7) (b), Stats., directs the Department to promulgate rules which govern the structure and procedures to administer community alcoholism, substance use disorder, and mental health services, and to “prescribe any such other standards and requirements as may be necessary to carry out the purposes of this section,” and provide “a continuum of treatment” to Wisconsin residents in accordance with s. 51.45 (1) and (3), Stats. Section 51.4224, Stats., requires that the Department, through the state methadone authority, approve and certify opioid treatment facilities, and the Department determined that rules were necessary to effectuate that section. Section 51.45 (8) and (9), Stats., require the Department to establish minimum health and modes of treatment standards for treatment facilities to be approved as a public or private treatment facility, and to “promulgate rules for acceptance of persons into the treatment program, considering available treatment resources and facilities, for the purpose of early and effective treatment of alcoholics, persons who are drug dependent, and intoxicated persons.” The Department interpreted s. 46.973 (2) (c), Stats., which directs the Department to develop “standards and provision of consultation for local drug dependence and drug abuse programs” to require rules. DHS 90: Section 51.44 (5), Stats., requires that the Department promulgate rules to implement a statewide birth-to-3 program for children with significant delays in physical development, cognition, communication, social and emotional development, adaptive behavior and self-help skills. DHS 92: Section 51.30 (12), Stats., directs the Department to promulgate rules to implement s. 51.30, Stats., relating to records of persons who are receiving, or have received, treatment at any time r for mental illness, developmental disabilities, or behavioral health from the Department, a board established under s. 46.23, 51.42 or 51.437, Stats., or treatment facilities and persons providing services under contract with the Department. DHS 94: Section 51.61 (5) (b) and (9), Stats., direct the Department to establish, by rule, standards for grievances and rights for individuals receiving services for mental illness, developmental disabilities, behavioral health, including any individual who is: (1) admitted to a treatment facility in accordance with ch. 48, 51 or 55, Stats.; (2) detained, committed or placed under ch. 48, 51, 55, 971, 975 or 980, Stats.; (3) transferred to a treatment facility under s. 51.35 (3) or 51.37; or (4) receiving care or treatment for those conditions through the department or a county department under s. 51.42 or 51.437, Stats., or in a private treatment facility. DHS 96: Section 302.11 (8), Stats., authorizes the Department to promulgate rules establishing guidelines and criteria relating to waiver by forensic patients of good time or entitlement to mandatory release for individuals committed under ch. 975, Stats. DHS 97: Section 46.056 Stats., authorizes the Department to establish the Wisconsin Resource Center (“WRC”) and to administer WRC as a correctional institution. In accordance with s. 227.11 (2) (a), Stats., the Department promulgated rules for complaint procedures for inmates at WRC in order to effectuate the purpose of a statute. DHS 101–108: Section 49.45 (10) Stats., permits the Department to establish rules for the purpose of administering medical assistance in Wisconsin. Eligibility for BadgerCare under s. 49.665, Stats., was superseded by BadgerCare Plus under s. 49.471(3) (a), Stats. Section 49.471, Stats., includes requirements for implementing BadgerCare Plus, and s. (12) (a) 1., Stats., permits the Department to “promulgate any rules necessary for and consistent with its administrative responsibilities under this section, including additional eligibility criteria.” DHS 109: Section 49.688, Stats., directs the Department to implement the SeniorCare program that is designed to provide prescription drug assistance for Wisconsinites aged 65 years or older. Subsections (3m), (4), and (9) direct the Department to create rules for administering the SeniorCare program. Subsections (7) and (10m) allow the Department to apply the same utilization and cost control procedures that apply under rules promulgated by the department for MA under subch. IV of ch. 49, Stats. DHS 118: Section 256.25 (2), Stats., directs the Department to promulgate rules to develop and implement a statewide trauma care system. DHS 124: Section 50.36 (1), Stats., requires that the Department use and enforce the conditions for Medicare participation for hospitals as the minimum standards that apply to hospitals, and permits the Department to promulgate, adopt, amend, and enforce additional rules and standards for the construction, maintenance, and operation of hospitals that are necessary to provide safe and adequate care and treatment of hospital patients and to protect the health and safety of patients and employees. DHS 127: Section 50.51 (2), Stats., directs the Department to establish rules for the construction, maintenance, and operation of rural medical centers. DHS 129: Section 146.40 (3m) and (5) (a) and (b), Stats., direct the Department to provide conditions of approval for training programs and competency evaluation programs for persons who work as nurse aides, medication aides, or feeding assistants in hospitals, nursing homes, facilities for the developmentally disabled, home health agencies, or hospices. The Department is also required to promulgate rules for including person in the Department’s registry of nurse aides. DHS 133: Section 50.49 (2), Stats., permits the Department to promulgate rules establishing minimum standards for the care, treatment, health, safety, welfare, and comfort of patients by home health agencies and for the maintenance and operation of home health agencies. DHS 134: Sections 50.02 (2) and (3), Stats., direct the Department to promulgate rules to provide conditions of licensure for facilities that primarily serve people with developmental disabilities who require active treatment. DHS 163: Section 254.15 (1) directs the Department to develop “a comprehensive statewide lead poisoning or lead exposure prevention and treatment program that includes . . . any lead investigation requirements under rules promulgated under ss. 254.167 . . . ; any lead hazard reduction requirements under rules promulgated under s. 254.172; certification, accreditation and approval requirements under ss. 254.176 and 254.178; [and] any certification requirements and procedures under rules promulgated under s. 254.179 . . . .” Section 254.167, Stats., allows the Department to promulgate rules specifying procedures for conducting lead investigations of dwellings and premises. Section 254.172, Stats., permits the Department to promulgate rules governing lead hazard reduction that the Department determines are consistent with federal law. Section 254.176, Stats., allows the Department to establish by rule certification requirements for any person who performs lead hazard reduction or lead management activity or who supervises the performance of any lead hazard reduction or lead management activity. Section 254.178, Stats., requires that the Department promulgate rules establishing requirements for the accreditation of lead training courses and approval of lead instructors. Section 254.179, Stats., requires the Department to promulgate rules for certifying dwellings as lead-safe. DHS 252: Section 49.797 (7), Stats., directs the Department to promulgate rules for administering an electronic benefit system for delivery of food stamp benefits. DHS 254: Section 49.78 (3), Stats., directs the department to promulgate rules establishing standards of competency, including training requirements, for income maintenance workers employed by a county or tribal agency. Related statute or rule
Sections 227.11 (2) and 227.29, Stats. Related state and federal statutes or rules are cited, as applicable, in the plan language analysis for each rule chapter. Plain language analysis
_Hlk126752969The Department has identified needed administrative rule changes under s. 227.29, Stats., and based on information provided to the Department by the Legislative Reference Bureau. The Department proposes to make all of the following changes: DHS 10 – relating to family care: DHS 10.32 (1) (b) 2. and 10.36 (1) (c) cite to s. DHS 10.33(3), which was repealed by Clearinghouse Rule CR 22-026. These cross-references should be removed. _Hlk201928041DHS 34 – relating to emergency mental health service programs: •• DHS 34.02 (14), which includes references an out-of-date edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) and should be amended to refer to the most recent edition of the DSM. •• DHS 34.21 (3) (b) 18., which conflicts with MA rules because it does not include peer specialists, parent peer specialists, and recovery coaches in the list of program staff qualified to provide mental health crisis services. This provision should be updated for consistency with MA rules. DHS 35 – relating to outpatient mental health clinics:
•• DHS 35.03 (1m) refers to the “the Wisconsin Uniform Placement Criteria,” which the Department no longer uses. This reference is obsolete and should be removed from the subsection. •• DHS 35.03 (5) (a) is obsolete because it includes clinical supervision requirements which are inconsistent with the Department of Safety and Professional Services (“DSPS”) rules for clinical supervision.
DHS 36 – relating to comprehensive community services for persons with mental disorders and substance-use disorders.
•• Various provisions in DHS 36.03 reference an out-of-date edition of the DSM and should be amended to refer to the most recent edition of the DSM. •• DHS 36.03 (30) uses the phrase “substance abuse professional,” which is inconsistent with recently amended DHS 75, which uses the phrase “substance use professional.” Citations to DHS 75 are also outdated. This subsection should be amended for consistency with DHS 75. •• DHS 36.10 (2) (g) 7. is obsolete because it refers to outdated accrediting bodies and standards for nurse practitioners. This subdivision should be revised to refer to statute and national accrediting bodies. •• DHS 36.10 (2) (g) 8. a. is obsolete because it refers to outdated accrediting bodies and standards for advanced practice nurse prescribers. The subdivision paragraph needs to be revised to refer to statute, DSPS code, and national accrediting bodies. •• DHS 36.10 (2) (g) 9. conflicts with ss. 457.11 and 457.13, Stats., and Medicaid Policy (Topic #17237) because it does not include licensed professional counselors in-training or licensed marriage and family therapists in-training as personnel who may work at comprehensive community services programs. This subdivision should be updated accordingly. •• DHS 36.10 (2) (g) 20. is outdated because it only includes certified peer specialists. The Department also certifies parent peer specialists, who may also work in comprehensive community services programs. This provision should be amended to include parent peer specialists. •• DHS 36.14 is obsolete and needs to be amended to reflect the requirement for initial and annual functional screens. Comprehensive community service programs are Medicaid-funded and functional screens are necessary to determine eligibility for the program and that individuals in the program remain eligible. The current rule does not expressly require initial or annual functional screes. •• DHS 36.16 contains assessment procedures that are outdated and inconsistent with best practices—namely that assessments and service plans be reviewed and updated at least every six months. This section should be updated to reflect best practices. •• DHS 36.17 (5) (am) and 36.19 (1) contain provisions that are obsolete and in conflict because they refer to fair hearings that are inconsistent with DHS 104.01 (5). These references appear to apply to clinical decisions to discharge an individual from comprehensive community service programs, but the fair hearing process is not intended for recipients who wish to lodge complaints against providers concerning quality of services received or discharge from a program. See s. DHS 104.01 (5) (b). These provisions should be updated accordingly. •• DHS 36.18 (3) (f) 7m. is obsolete because it refers to a Department approved drug administration course, and there is no Department-approved training. DHS 40 – relating to mental health day treatment services for children:
•• DHS 40.03 (38) needs to be amended because it cites to a repealed statute, s. 448.01(6), when defining “physician assistant.” This subsection should be amended to cite to s. 448.971 (2), Stats. DHS 60 – relating to traffic and conduct on state treatment institution property:
•• DHS 60.01 (10), conduct on institution grounds, lacks a requirement that individuals comply with all posted signs on the property. The current rule is therefore obsolete as posted signs are approved by the administration and enforced by security staff. The rule should be amended to include this requirement. DHS 61 – relating to community mental health and developmental disabilities:
•• DHS 61.021 (5) (a) and 61.79 (2) (a) are obsolete. Section 61.021 (5) (a) provides that children may be placed in adult inpatient mental health services for limited periods of time, conflicts with other rules and best practices.. This conflicts with best practices from the American Academy of Children and Adolescent Psychiatry, which state that children and adolescents should only be admitted to programs designed for children and adolescents. DHS 61.79 (2) (a) includes a requirement that “[n]o child or adolescent shall be admitted to any inpatient facility more than 60 miles from home without permission of the department.” Stakeholders reported that obtaining permission for an inpatient admission in these circumstances places unnecessary administrative strain on clinicians seeking to arrange timely inpatient psychiatric care, and it unnecessarily delays placement, thereby impacting patients seeking those services. These obsolete rules should be repealed. •• DHS 61.11 and 61.12 are obsolete and in conflict with client rights provisions in DHS 94. These sections should be updated for consistency with ch. DHS 94. DHS 62 – relating to assessment of drivers with alcohol or controlled substance problems:
•• Various provision in this chapter contain are outdated in one or both of the following ways: •o They contain incorrect citations to Ch. DHS 75, which was repealed and recreated by CR 20-047 and took effect on October 1, 2022. •o They use the phrase "substance abuse," which has been replaced with "substance use" in in federal regulations and ch. DHS 75. These citations need to be amended to include accurate citations to the new version of Ch. DHS 75 and revise outdated language •• DHS 62.07 (5) (d) 1. provides that a driver safety plan may recommend involvement in a victim impact panel (“VIP”). This component of the driver safety plan is obsolete and economically burdensome. Only 15 to 20 percent of counties require attendance at VIPs, and VIPs add costs to a conviction that already includes significant costs and fees. Additionally, courts can still order VIPs. This subsection should be repealed. •• DHS 62.07 (5) (d) 3. contains an obsolete reference to “intensive supervision under s. DHS 75.16 (7).” CR 20-047 repealed and recreated Ch. DHS 75, and s. DHS 75.16 (7) no longer exists. There are no other provisions in statutes or rules that provide for intensive supervision for non-incarcerated adults, and this subsection should be repealed. DHS 63 – relating to community support programs (“CSP”) for chronically mentally ill persons:
•• DHS 63.06 (2) (c) conflicts with DSPS rules. Specifically, s. DHS 63.06 (2) (c) needs to be amended to include that a clinical coordinator shall be a psychiatrist, or a licensed mental health professional authorized to practice psychology, marriage and family therapy, professional counseling, or clinical social work, pursuant to ch. 455 or 457, Stats. •• DHS 63.06 (4) (a) 9. is obsolete and needs to be amended to include peer specialists or recovery coaches as qualified CSP staff. Peer specialists and recovery coaches are promoted as best practice by the Substance Abuse and Mental Health Services Administration and shown to help people become and stay engaged in the recovery process and reduce the likelihood of relapse, and current exclusion in the rule doesn’t reflect agency standards. Peer support is already a covered service in the state’s other psychosocial rehabilitation programs of Community Support Programs and Comprehensive Recovery Services and in Crisis Services. DHS 75 – relating to community substance use service standards:
•• DHS 75.03 (33) references an out-of-date edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). This provision should be amended to refer to the most recent edition of the DSM. •• DHS 75.07 (2) (e) needs to be amended to correct a typographical error. Specifically, it should say a “client,” and not “clients.” •• DHS 75.14 (4) (b), 75.15 (5) (b), and 75.60 (6) (b) include citations to DHS 12 Appendix A, which was repealed by CR 10-091. These references should be removed. •• DHS 75.14 (6) (a) and (b) are economically burdensome and should be amended. As currently written, the rule appears to require that a prevention service implement all seven of the best practice strategies listed in par. (6) (b). The intention of rule was to require use at least one of the best practices, and it did not intend to require a provider to utilize all the best practices listed. Requiring all seven strategies increases costs for providers and creates a barrier to providing prevention services. These paragraphs should be amended and modified to require use of at least one, but not all, of the practices listed. •• DHS 75.24 (11) (d) 6. needs to be amended to correct a typo. Specifically, “of” should be replaced with “or.” •• DHS 75.48 (2) (j) (table) contains language that conflicts with other rules. In row (j) of the table, it provides that a physician in a DHS 75.54 medically monitored residential treatment service and a prescriber in a DHS 75.55 medically managed inpatient treatment service must co-sign assessments. However, the plan language of ss. DHS 75.54 and 75.55 only require a single signature, and the table should be amended to strike “co-” from the requirements. DHS 90 – relating to early intervention services for children from birth to age 3 with developmental needs:
•• DHS 90.11 (6) (a) 7. refers to s. 448.05 (5), which was repealed and replaced with ch. 448, subch. IX, Stats. This subdivision should be amended to remove outdated language, and to update the statutory citation. DHS 92 – relating to confidentiality of treatment records:
•• DHS 92.01 (1), 92.02 (7), (13), (15) and (16), 92.03 (1) (g), 92.04 (11) (b) and (d), (15) (b) 1., 92.05 (1) (c), 92.06 (2) and (Note), and 96.07 (Note) conflict with other rules and regulations. These provisions use outdated phrases like “alcohol and drug addiction/dependency/abuse” which have been replaced by “substance use” or “substance use disorder” in federal regulations and ch. DHS 75. These provisions should be amended to replace the outdated terminology. DHS 94 – relating to patient rights and resolution of patient grievances:
•• DHS 94.01 (1), (2) (a), 94.02 (24) and (45), 94.03 (1) (intro.), 94.04 (5) (Note), 94.05 (4) (b) (Note), 94.40 (1), 94.42 (5) (a), 94.43 (1) (b), and 94.44 (6) (b) 1. a. and b. contain obsolete terminology (such as “alcohol and drug addiction/dependency/abuse”) and outdated facility or division names. These provisions should be amended to include updated terminology and facility or division names. DHS 96 – relating to waiver by forensic patients of good time or entitlement to mandatory release for individuals committed under ch. 975, Stats.:
