Chapter DHS 35

DHS 35.03(6) (6) “Consumer” means an individual who receives or requests outpatient mental health services from a clinic.

DHS 35.03(6m) (6m) “Deficiency” means a failure to meet a requirement of this chapter.

DHS 35.03(7) (7) “Department” means the Wisconsin department of health services.

DHS 35.03(8) (8) “Discharge” has the meaning given in s. 51.01 (7), Stats.

DHS 35.03 Note Note: Section 51.01 (7) Stats., defines “discharge” for a patient who is under involuntary commitment orders as meaning termination of custody and treatment obligations of the patient to the authority to which the patient was committed by court action. For voluntary admissions to a treatment program or facility, s. 51.01 (7), Stats., defines “discharge” as meaning termination of treatment obligations between the patient and the treatment program or facility.

DHS 35.03(8m) (8m) “Functionally equivalent” means a service provided via telehealth where the transmission of information is of sufficient quality as to be the same level of service as an in-person visit. Transmission of voices, images, data, or video must be clear and understandable.

DHS 35.03(9) (9) “Legal representative” means any of the following:

DHS 35.03(9)(a) (a) A guardian of the person as defined under s. 54.01 (12), Stats.

DHS 35.03(9)(b) (b) A health care agent as defined in s. 155.01 (4), Stats., if the principal 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.

DHS 35.03(9)(c) (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.

DHS 35.03(9g) (9g) “Licensed treatment professional” means an individual licensed as a physician under s. 448.03, Stats., who has completed a residency in psychiatry; a psychologist or a private practice school psychologist licensed under ch. 455, Stats., a marriage and family therapist licensed under s. 457.10 or 457.11, Stats., a professional counselor licensed under s. 457.12 or 457.13, Stats., an advanced practice social worker granted a certificate under s. 457.08 (2), Stats., an independent social worker licensed under s. 457.08 (3), Stats., or a clinical social worker licensed under s. 457.08 (4), Stats.; and includes any of these individuals practicing under a currently valid training or temporary license or certificate granted under applicable provisions of ch. 457, Stats. “Licensed treatment professional” does not include 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.

DHS 35.03(9m) (9m) “Major deficiency” means the clinic has repeatedly or substantially failed to meet one or more requirements of this chapter or the department determines that an action, condition, policy or practice of the clinic or the conduct of its staff does any of the following:

DHS 35.03(9m)(a) (a) Creates a risk of harm to a consumer or violates a consumer 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 staff member has had sexual contact or intercourse, as defined in s. 940.225 (5) (b) or (c), Stats., with a consumer.

DHS 35.03(9m)(a)2. 2. A staff member has been 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 consumer is in imminent danger because of any act or omission by the clinic or a staff member.

DHS 35.03(9m)(b) (b) Submits or causes to be submitted one or more statements for purposes of obtaining certification under this chapter that were false.

DHS 35.03(9m)(c) (c) A license, certification or required local, state or federal approval of the clinic has been revoked or suspended or has expired, including termination of a provider’s Medicaid or Medicare certification for any basis under s. DHS 106.06 or federal law.

DHS 35.03(9m)(d) (d) Constitutes fraud or willful misrepresentation within the meaning of s. DHS 108.02 (9) (d).

DHS 35.03 Note Note: Under s. DHS 108.02 (9) (d) 1., the department may withhold MA payments, in whole or in part, to a provider upon receipt of reliable evidence that the circumstances giving rise to the need for withholding of payments involve fraud or willful misrepresentation under the MA program. Reliable evidence of fraud or willful misrepresentation includes, but is not limited to, the filing of criminal charges for those activities against the provider or one of its agents or employees by a prosecuting attorney. The department may withhold payments without first notifying the provider of its intention to withhold the payments. A provider is entitled to a hearing under s. DHS 106.12.

DHS 35.03 Note Note: Willful misrepresentation under this paragraph does not include the signing of a claim for reimbursement by an authorized representative of a clinic 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 applicable professional licensure or certification law and was on the clinic’s staff when the services were performed.

DHS 35.03(9m)(e) (e) A staff member has a substantiated finding of caregiver misconduct as identified in chs. DHS 12 and 13.

DHS 35.03(10) (10) “Mental health practitioner” means a person who before January 1, 2012, holds a graduate degree from an accredited college or university in psychology, counseling, marriage and family therapy, social work, nursing or a closely related field, and either has completed the applicable supervised practice requirements under ch. MPSW 4, 12, or 16, or Psy 2 or has 3,000 hours of supervised clinical post-graduate degree experience including at least 1,000 hours of face-to-face contact with consumers, and who commences work at a clinic required to be certified under this chapter no later than January 1, 2013. “Mental health practitioner” does not include an individual whose professional license is suspended, revoked, or voluntarily surrendered, or whose professional license or certificate is limited or restricted, when practicing in areas prohibited by the limitation or restriction, irrespective of whether that individual otherwise meets the terms of this definition. Whether a person’s graduate degree is in a “closely related” field will be determined by the department on a case-by-case basis upon application by a clinic.

DHS 35.03(11) (11) “Mental health professional” means a licensed treatment professional, a mental health practitioner, a qualified treatment trainee, or a recognized psychotherapy practitioner.

DHS 35.03(12) (12) “Minor” means an individual who is 17 years old or younger.

DHS 35.03(13) (13) “Outpatient mental health clinic” or “clinic” means an entity that is required to be certified under this chapter to receive reimbursement for outpatient mental health services to consumers.

DHS 35.03(14) (14) “Outpatient mental health services” means the services offered or provided to a consumer, including intake, assessment, evaluation, diagnosis, treatment planning, psychotherapy and medication management.

DHS 35.03(15) (15) “Physician” means an individual licensed under ch. 448, Stats., as a physician.

DHS 35.03(15m) (15m) “Physician assistant” means an individual licensed under ch. 448, Stats., as a physician assistant.

DHS 35.03(16) (16) “Prescriber” means a physician, a physician assistant acting within the conditions and limitations set forth in s. Med 8.07, or an advanced practice nurse prescriber acting within the conditions and limitations set forth in s. N 8.06.

DHS 35.03(17) (17) “Psychotherapy” means any activity that falls within the definitions set forth at s. 457.01 (8m) or 455.01 (6), Stats.

DHS 35.03(17m) (17m) “Qualified treatment trainee” means either of the following:

DHS 35.03(17m)(a) (a) A graduate student who is enrolled in an accredited institution in psychology, counseling, marriage and family therapy, social work, nursing or a closely related field.

DHS 35.03(17m)(b) (b) A person with a graduate degree from an accredited institution and course work in psychology, counseling, marriage and family therapy, social work, nursing or a closely related field who has not yet completed the applicable supervised practice requirements described under ch. MPSW 4, 12, or 16, or Psy 2 as applicable.

DHS 35.03(17r) (17r) “Recognized psychotherapy practitioner” means an individual who may lawfully practice psychotherapy within the scope of a license, permit, registration or certificate granted by this state other than under ch. 455 or 457, Stats.

DHS 35.03 Note Note: Section 457.02 (6) (a), Stats., provides that a license or certificate under ch. 457, Stats., is not required for a person to “lawfully practice within the scope of a license, permit, registration, or certificate granted by this state or the federal government.” The department will recognize as a “recognized psychotherapy practitioner” for purposes of this chapter any person legally recognized as permitted to provide psychotherapy within the scope of his or her professional credential issued by a state agency.

DHS 35.03(18) (18) “Recovery” means the process of a consumer’s growth and improvement, despite a history of a mental or substance use disorder, in attitudes, values, feelings, goals, skills and behavior measured by a decrease in dysfunctional symptoms and an increase in maintaining the person’s highest level of health, wellness, stability, self-determination and self-sufficiency.

DHS 35.03(18m) (18m) “Signature” or “signed” means a signature that meets the requirements in s. 990.01 (38), Stats.

DHS 35.03(19) (19) “Staff” or “staff member” means an owner of a clinic or an individual employed by or under contract with an outpatient mental health clinic.

DHS 35.03(20) (20) “Substance” has the meaning given under s. SPS 160.02 (25).

DHS 35.03(21) (21) “Substance abuse counselor” has the meaning given under s. SPS 160.02 (26).

DHS 35.03(22) (22) “Substance use disorder” has the meaning given under s. SPS 160.02 (28).

DHS 35.03(22hm) (22hm) 

DHS 35.03(22hm)(a) (a) “Telehealth” means the use of telecommunications technology by a certified provider to deliver services allowable under this chapter, s. DHS 107.02 (5), and ss. 49.45 (61) and 49.46 (2) (b) 21. to 23., Stats., including assessment, diagnosis, consultation, treatment or transfer of medically relevant data in a functionally equivalent manner as that of an in-person contact.

DHS 35.03(22hm)(b) (b) “Telehealth” may include real-time interactive audio-only communication.

DHS 35.03(22hm)(c) (c) “Telehealth” does not include communication between a certified provider and a recipient that consists solely of an electronic mail, text, or facsimile transmission.

DHS 35.03(22m) (22m) “Treatment records” has the meaning given in s. 51.30 (1) (b), Stats., namely, all records created in the course of providing services to individuals for mental illness, which are maintained by the department, by boards and their staffs, and by treatment facilities. “Treatment records” do not include notes or records maintained for personal use by an individual providing treatment services for the department, a board, or a treatment facility if the notes or records are not available to others.

DHS 35.03(23) (23) “Trauma” means a single experience, or an enduring or repeating event or events that results in significant distress or impairment in social, occupational, or other important areas of functioning for a person.

DHS 35.03(24) (24) “Variance” means an alternate requirement in place of a non-statutory requirement of this chapter by the department.

DHS 35.03(25) (25) “Waiver” means an exemption from a non-statutory requirement of this chapter by the department.

DHS 35.03 History History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09; correction in (5) (b), (20), (21), (22) made under s. 13.92 (4) (b) 7., Stats., Register November 2011 No. 671; correction in (16) made under s. 13.92 (4) (b) 7., Stats., Register February 2014 No. 698; CR 23-053: am. (2), cr. (8m), (18m), (22hm) Register September 2023 No. 813, eff. 10-1-23.

subch. II of ch. DHS 35 Subchapter II — Certification

DHS 35.06 DHS 35.06 Effect of certification.

DHS 35.06(1) (1) Public funding. Unless certified under this chapter, an outpatient mental health clinic is not eligible to receive funding from the Wisconsin medical assistance or BadgerCare Plus programs under ss. 49.45 and 49.471, Stats., federal community mental health services block grant funds under 42 USC section 300x, et. seq., or state community aids funds under s. 51.423 (2), Stats., in connection with the provision of outpatient mental health services.

DHS 35.06(2) (2) Private insurance. An outpatient mental health clinic certified under this chapter is certified by the department within the meaning of s. 632.89 (1) (e) 1., Stats., for purposes of the provisions of s. 632.89 (2), Stats., relating to required coverage of treatment for certain conditions under certain policies issued by private insurers.

DHS 35.06 History History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09.

DHS 35.07 DHS 35.07 Location of service delivery.

DHS 35.07(1) (1) A clinic may provide outpatient mental health services at one or more offices. If a clinic provides outpatient mental health services at more than one office, all of the following apply:

DHS 35.07(1)(a) (a) The clinic shall designate one office as its main office.

DHS 35.07(1)(b) (b) All notices under this chapter will be sent to the main office.

DHS 35.07(1)(c) (c) The clinic administrator shall be primarily located at the main office.

DHS 35.07(1)(d) (d) Both the clinic as a whole and the main office shall comply with the staffing requirements of s. DHS 35.123 (2).

DHS 35.07(1)(e) (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.

DHS 35.07(2) (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.

DHS 35.07 History 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 DHS 35.08 Certification process.

DHS 35.08(1) (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.

DHS 35.08 Note 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.

DHS 35.08 Note 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

DHS 35.08(2) (2) Compliance review.

DHS 35.08(2)(a) (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:

DHS 35.08(2)(a)1. 1. Statements made by the applicant or a staff member.

DHS 35.08(2)(a)2. 2. Documentary evidence.

DHS 35.08(2)(a)3. 3. On-site observations by a representative of the department.

DHS 35.08(2)(a)4. 4. Reports by consumers regarding the clinic’s operations.

DHS 35.08(2)(b) (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.

DHS 35.08(2)(c) (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.

DHS 35.08(3) (3) Issuance of certification.

DHS 35.08(3)(a) (a) Action on application.

DHS 35.08(3)(a)1. 1. Within 60 days after receiving a complete application for initial certification, the department shall grant the clinic initial certification or deny certification.

DHS 35.08(3)(a)2. 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).

DHS 35.08(3)(a)3. 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.

DHS 35.08(3)(b) (b) Duration of certification.

DHS 35.08(3)(b)1. 1. Certification remains valid until it is suspended or terminated by the department in accordance with s. DHS 35.11 (2)

DHS 35.08(3)(b)2. 2. Certification becomes invalid due to non-submission of the biennial report or non-payment of biennial fees in accordance with sub. (4).

DHS 35.08(4) (4) Biennial report and fees.

DHS 35.08(4)(a) (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.

DHS 35.08(4)(b) (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

DHS 35.08(4)(c) (c) A certification shall be suspended or terminated if biennial reports and fees are not submitted prior to the end of the biennial cycle.