Chapter DHS 35

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.

DHS 35.08(5) (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).

DHS 35.08 History 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 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.

DHS 35.09 History History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09.

DHS 35.10 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.

DHS 35.10 History 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 DHS 35.11 Enforcement actions.

DHS 35.11(1) (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.

DHS 35.11(1m) (1m) Notice of deficiencies.

DHS 35.11(1m)(a) (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.

DHS 35.11(1m)(b) (b)

DHS 35.11(1m)(b)1. 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.

DHS 35.11(1m)(b)2. 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.

DHS 35.11(2) (2) Termination and summary suspension of certification.

DHS 35.11(2)(a) (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).

DHS 35.11(2)(b) (b)

DHS 35.11(2)(b)1. 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.

DHS 35.11(2)(b)2. 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.

DHS 35.11(3) (3) Appeals.

DHS 35.11(3)(a) (a) If the department denies or terminates certification, the clinic may request a contested case hearing under ch. 227, Stats.

DHS 35.11(3)(b) (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.

DHS 35.11 Note 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 [phone].

DHS 35.11 History 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 DHS 35.12 Waivers and variances.

DHS 35.12(1) (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:

DHS 35.12(1)(a) (a) Identification of the rule provision from which the waiver or variance is requested.

DHS 35.12(1)(b) (b) The time period for which the waiver or variance is requested.

DHS 35.12(1)(c) (c) If the request is for a variance, the specific alternative action that the outpatient clinic proposes.

DHS 35.12(1)(d) (d) The reasons for the request.

DHS 35.12(1)(e) (e) Supporting justification.

DHS 35.12(1)(f) (f) Any other information requested by the department.

DHS 35.12 Note 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.

DHS 35.12(2) (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.

DHS 35.12(2m) (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.

DHS 35.12(3) (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.

DHS 35.12(4) (4) 

DHS 35.12(4)(a) (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.

DHS 35.12(4)(b) (b) The department may revoke a waiver or variance if any of the following occurs:

DHS 35.12(4)(b)1. 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.

DHS 35.12(4)(b)2. 2. The clinic has failed to comply with the variance as granted.

DHS 35.12(4)(b)3. 3. The clinic notifies the department that it wishes to relinquish the waiver or variance.

DHS 35.12(4)(b)4. 4. There is a change in applicable law.

DHS 35.12(4)(b)5. 5. For any other reason the department finds the revocation is necessary to protect the health, safety, or welfare of a consumer.

DHS 35.12 History History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09.

subch. III of ch. DHS 35 Subchapter III — Personnel

DHS 35.123 DHS 35.123 Staffing requirements for clinics.

DHS 35.123(1) (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.

DHS 35.123(2) (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:

DHS 35.123(2)(a) (a) Two or more licensed treatment professionals who combined are available to provide outpatient mental health services at least 60 hours per week.

DHS 35.123(2)(b) (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.

DHS 35.123(2)(c) (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.

DHS 35.123(2m) (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).

DHS 35.123(3) (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.

DHS 35.123(4) (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).

DHS 35.123(5) (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.

DHS 35.123 History 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 DHS 35.127 Persons who may provide psychotherapy services through an outpatient mental health clinic.

DHS 35.127(1) (1) Any mental health professional may provide psychotherapy to consumers through a clinic required to be certified under this chapter.

DHS 35.127(2) (2) A qualified treatment trainee may provide psychotherapy to consumers only under clinical supervision as defined under s. DHS 35.03 (5) (a).

DHS 35.127(3) (3) A clinic may choose to require clinical supervision of a mental health practitioner or recognized psychotherapy practitioner.

DHS 35.127(4) (4) A person who has a suspended, revoked, or voluntarily surrendered professional license may not provide psychotherapy to consumers. A person whose license or certificate is limited or restricted, may not provide psychotherapy under circumstances prohibited by the limitation or restriction.

DHS 35.127 History History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09.

DHS 35.13 DHS 35.13 Personnel policies. The clinic shall have and implement written personnel policies and procedures that ensure all of the following:

DHS 35.13(1) (1) Each staff member who provides psychotherapy or who prescribes medications is evaluated to determine if the staff member possesses current qualifications and demonstrated competence, training, experience and judgment for the privileges granted to provide psychotherapy or to prescribe medications for the clinic.

DHS 35.13(2) (2) Compliance with the caregiver background check and misconduct reporting requirements in s. 50.065, Stats., and ch. DHS 12, and the caregiver misconduct reporting and investigation requirements in ch. DHS 13.

DHS 35.13 Note Note: Forms for conducting a caregiver background check including the background information disclosure form may be obtained from the department’s website at http://dhs.wisconsin.gov/caregiver/index.htm or by writing the department at Office of Caregiver Quality, Division of Quality Assurance, P.O. Box 2969, Madison, WI 53701-2969. Phone: [phone], Fax: [phone].

DHS 35.13(3) (3) A record is maintained for each staff member and includes all of the following:

DHS 35.13(3)(a) (a) Confirmation of an applicant’s current training or professional license or certification, if a training or professional license or certification is necessary for the staff member’s prescribed duties or position. All limitations and restrictions on a staff member’s license shall be documented by the clinic.

DHS 35.13(3)(b) (b) The results of the caregiver background check including a completed background information disclosure form for every background check conducted, and the results of any subsequent investigation related to the information obtained from the background check.

DHS 35.13(3)(c) (c) A vita of training, work experience and qualifications for each prescriber and each person who provides psychotherapy.

DHS 35.13 History History: CR 06-080: cr. Register May 2009 No. 641, eff. 6-1-09.

DHS 35.14 DHS 35.14 Clinical supervision and clinical collaboration.

DHS 35.14(1) (1) 

DHS 35.14(1)(a) (a) The clinic administrator shall have responsibility for administrative oversight of the job performance and actions of each staff member and require each staff member to adhere to all laws and regulations governing the care and treatment of consumers and the standards of practice for their individual professions.

DHS 35.14(1)(b) (b) Each clinic shall implement a written policy for clinical supervision as defined under s. DHS 35.03 (5), and clinical collaboration as defined under s. DHS 35.03 (4). Each policy shall address all of the following:

DHS 35.14(1)(b)1. 1. A system to determine the status and achievement of consumer outcomes, which may include a quality improvement system or a peer review system to determine if the treatment provided is effective, and a system to identify any necessary corrective actions.

DHS 35.14(1)(b)2. 2. Identification of clinical issues, including incidents that pose a significant risk of an adverse outcome for one or more consumers of the outpatient mental health clinic that should warrant clinical collaboration, or clinical supervision that is in addition to the supervision specified under ch. MPSW 4, 12, or 16, or Psy 2, or for a recognized psychotherapy practitioner, in accordance with s. DHS 35.03 (5) (a), whichever is applicable.

DHS 35.14(2) (2) Except as provided under sub. (4) (b), the clinic’s policy on clinical supervision shall be in accordance with ch. MPSW 4, 12, or 16, or Psy 2, or for a recognized psychotherapy practitioner, whichever is applicable. The clinic’s policy on clinical collaboration shall require one or more of the following:

DHS 35.14(2)(a) (a) Individual sessions, with staff case review, to assess performance and provide feedback.

DHS 35.14(2)(b) (b) Individual side-by-side session while a staff member provides assessments, service planning meetings or outpatient mental health services and in which other staff member assesses, and gives advice regarding staff performance.