Chapter DHS 40

DHS 40.03(15) (15) “Department” means the Wisconsin department of health services.

DHS 40.03(16) (16) “Educational service” means a program provided by a local education agency that has a unique identification code assigned by the Wisconsin department of public instruction and that provides or directly supervises PK-12 services.

DHS 40.03(17) (17) “Evidence-based practice” means a practice, such as a systemic decision-making process or a service that has been shown, through available scientific evidence, to consistently improve measurable client outcomes.

DHS 40.03(18) (18) “Family-driven care” means care that facilitates involvement by family and legal representatives in a youth’s care, in order to improve outcomes.

DHS 40.03(18m) (18m) “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 40.03(19) (19) “Gender-sensitive service” means a service that comprehensively addresses gender-related needs and fosters positive gender identity development.

DHS 40.03(20) (20) “Intensive hospital-based program” means a program providing mental health day treatment services for youth with an acute level of need. This setting is meant to support youth with severe symptomology who need closer supervision.

DHS 40.03(21) (21) “Legal representative” means any of the following:

DHS 40.03(21)(a) (a) A guardian of the person, as defined under s. 54.01 (12), Stats.

DHS 40.03(21)(b) (b) An adult client’s health care agent, as defined in s. 155.01 (4), Stats.

DHS 40.03(21)(c) (c) A parent of a minor, as defined in s. 48.02 (13), Stats., a guardian, as defined in s. 48.02 (8), Stats., or a legal custodian, as defined in s. 48.02 (11), Stats.

DHS 40.03(21)(d) (d) Any other individual or entity with legal authority to represent the client.

DHS 40.03(22) (22) “Licensed treatment professional” means any of the following, whose license is in good standing at the time of practice:

DHS 40.03(22)(a) (a) A physician licensed under s. 448.03 (1) (a), Stats., who has completed a residency in psychiatry.

DHS 40.03(22)(b) (b) A psychologist or a private practice school psychologist licensed under ch. 455, Stats.

DHS 40.03(22)(c) (c) A marriage and family therapist licensed under s. 457.10 or 457.11, Stats.

DHS 40.03(22)(d) (d) A professional counselor licensed under s. 457.12 or 457.13, Stats.

DHS 40.03(22)(e) (e) A clinical social worker licensed under s. 457.08 (4), Stats.

DHS 40.03(23) (23) “Local educational agency” means a school district, as provided in s. 115.01 (3), Stats., a cooperative educational services agency (CESA) established under ch. 116, Stats., or a board established under s. 115.817, Stats.

DHS 40.03(24) (24) “Major deficiency” means a determination by the department that any of the following occurred:

DHS 40.03(24)(a) (a) The program or a staff member created a risk of harm to a client or violated a client right created by this chapter.

DHS 40.03(24)(b) (b) A staff member had sexual contact, as defined in s. 940.225 (5) (b), Stats., with a client.

DHS 40.03(24)(c) (c) A staff member was convicted of abuse under s. 940.285, 940.29, or 940.295, Stats.

DHS 40.03(24)(d) (d) A staff member was included on the Caregiver Misconduct Registry under ch. DHS 13 and did not receive a rehabilitation determination from the department for all instances of substantiated misconduct.

DHS 40.03(24)(e) (e) The program or a staff member submitted or caused to be submitted a false statement for purposes of obtaining certification under this chapter.

DHS 40.03(24)(f) (f) A license, certification, or required approval of the program expired, was revoked, or was suspended by any local, state, or federal authority, or the program’s Medicaid or Medicare provider certification was suspended or terminated for any basis under s. DHS 106.06 or federal law, or by any local, state, or federal authority.

DHS 40.03(25) (25) “Measurable objective” means a clear statement of the behavioral changes that are to be made, the conditions under which the behaviors are to occur, and a criterion for success.

DHS 40.03(26) (26) “Mechanical restraint” means any physical device, used for the purpose of limiting or controlling a youth’s movement.

DHS 40.03(27) (27) “Mental health day treatment service” means non-residential care that is prescribed by a physician and that is provided in a clinically supervised therapeutic milieu that provides an integrated system of individual, family, and group psychotherapy, care coordination, and support services pursuant to a treatment plan.

DHS 40.03(28) (28) “Mental health professional” means a licensed treatment professional, a qualified treatment trainee, or a recognized psychotherapy practitioner that practices within the scope of their practice.

DHS 40.03(29) (29) “Mental health support worker” means an individual who has a bachelor’s or master’s degree and provides services to implement the treatment plan.

DHS 40.03(30) (30) “Mental health technician” means an individual who assists mental health support workers and mental health professionals with implementation of support services.

DHS 40.03(31) (31) “Mental illness” means a mental health disorder that a mental health professional determines substantially diminishes a youth’s ability to carry out age-appropriate activities of daily living, except that “mental illness” does not include dementia or a developmental disability.

DHS 40.03(32) (32) “Occupational therapist” has the meaning given in s. 448.96 (4), Stats.

DHS 40.03(33) (33) “Occupational therapy assistant” has the meaning given in s. 448.96 (6), Stats.

DHS 40.03(34) (34) “Parent peer specialist” means a person with knowledge gained from parenting youth with social, emotional, behavioral, mental health or substance use challenges and who has training to increase their skills to guide and support other parents or those in a parenting role.

DHS 40.03(35) (35) “Physical restraint” means use of physical force for the purpose of interfering with the movement of a youth, which includes forcibly moving or transporting a youth from one location to a seclusion room or area. “Physical restraint” does not include briefly holding a youth, without force, to calm or comfort her or him, or holding a youth’s hand to safely escort him or her from one area to another and similar physical guidance and prompting techniques of brief duration.

DHS 40.03(36) (36) “Positive behavior support” means specific proactive strategies, documented in the treatment plan, intended to replace challenging behaviors with positive and functional alternatives.

DHS 40.03(37) (37) “Physician” has the meaning given in s. 448.01 (5), Stats.

DHS 40.03(38) (38) “Physician assistant” has the meaning given in s. 448.01 (6), Stats.

DHS 40.03(39) (39) “Prescriber” means a physician, a physician assistant acting within the conditions and limitations set forth in ch. Med 8, or an advanced practice nurse prescriber acting within the conditions and limitations set forth in s. N 8.06.

DHS 40.03(40) (40) “Program” means a community-based program or a hospital-based program.

DHS 40.03(41) (41) “Psychotherapy” has the meaning given in s. 457.01 (8m), Stats., for marriage and family therapy, professional counseling, and social workers or s. 455.01 (6), Stats for psychologists.

DHS 40.03(42) (42) “Psychotropic medication” means a prescription drug, as defined in s. 450.01 (20), Stats., that is prescribed by a prescriber to treat or manage mental illness.

DHS 40.03(43) (43) “Qualified treatment trainee” means either of the following:

DHS 40.03(43)(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 and is doing a supervised practicum for their graduate degree program.

DHS 40.03(43)(b) (b) A person who has been awarded a graduate degree by an accredited institution and has completed coursework 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 s. MPSW 4.01, 12.01, or 16.04, or s. Psy 2.10.

DHS 40.03(44) (44) “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 40.03(45) (45) “Registered nurse” means a person licensed under s. 441.06, Stats. as a registered nurse.

DHS 40.03(46) (46) “Seclusion” means the involuntary confinement and isolation in a room or area from which the youth is prevented from leaving.

DHS 40.03(47) (47) “Sensory interventions” means a treatment or therapy that makes use of, or aims to improve, sensitivity to one or more of the senses.

DHS 40.03(48) (48) “Service” means a crisis response service, a mental health day treatment service, a support service, transition service, trauma-informed service, or minimum required service under s. DHS 40.07 (4).

DHS 40.03(49) (49) “Severe emotional disturbance” means an emotional or behavioral problem for a youth that currently meets, or at any time during the past year met, criteria for a mental disorder specified within a recognized diagnostic classification, and that produces a functional impairment which substantially interferes with or limits functioning in family, school, employment, relationships, or community activities.

DHS 40.03(49m) (49m) “Signature” or “signed” means a signature that meets the requirements in s. 990.01 (38), Stats.

DHS 40.03(50) (50) “Staff member” means a person employed or contracted through the program who provides treatment services to a youth or legal representative.

DHS 40.03(51) (51) “Support service” means individualized advice, guidance, or assistance with planning, designed to facilitate positive alternatives to challenging behaviors, and to assist a youth with developing adaptive and functional restoration. “Support service” does not include psychotherapy or time spent in educational services, meals, or recreation.

DHS 40.03(51m) (51m) 

DHS 40.03(51m)(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 40.03(51m)(b) (b) “Telehealth” may include real-time interactive audio-only communication.

DHS 40.03(51m)(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 40.03(52) (52) “Therapeutic milieu” means the combination of physical and interpersonal environments established and maintained in the mental health day treatment program to provide safety, trust, and consistency of care, and to model, teach, and reinforce positive and supportive behaviors and interactions among youth and staff.

DHS 40.03(53) (53) “Therapeutic specialists” means experiential therapists, art therapists, and music therapists who have complied with the appropriate certification procedures for their profession as required by state statute or administrative rule or the governing body regulating their profession.

DHS 40.03(54) (54) “Transition services” means services provided to a youth to ensure continuity of care and management of the youth’s needs to ensure gradual reintegration back into school and the community as appropriate.

DHS 40.03(55) (55) “Treatment plan” means the document required under s. DHS 40.14.

DHS 40.03(56) (56) “Trauma” means significant distress or impairment in a person’s social, coping, or other important areas of functioning, resulting from experiences or events.

DHS 40.03(57) (57) “Trauma-informed service” means a service that is attentive to the role that trauma plays in the lives of youth and family members, including recognition of the traumatic effect of misdiagnosis, coercive treatment, and inadvertent re-traumatization.

DHS 40.03(58) (58) “Variance” means a modification to a requirement of this chapter.

DHS 40.03(59) (59) “Voluntary time out” means an intervention intended to accomplish any of the following:

DHS 40.03(59)(a) (a) Encourage youth to voluntarily use a calming or safe place that does not physically confine the youth, and that permits program staff members to visually monitor the youth when they are experiencing agitation or anxiety.

DHS 40.03(59)(b) (b) Protect a client from another client who is posing a risk of harm or serious disruption.

DHS 40.03(60) (60) “Waiver” means an exemption from a specific requirement of this chapter.

DHS 40.03(61) (61) “Youth” means a person under 21 years of age.

DHS 40.03 History History: CR 19-018: cr. Register June 2020 No. 774, eff. 7-1-20; correction in (5), (21) (c), (23), (27), (31), (35), (41), (42), (43) (b), (49), (51) made under s. 35.17, Stats., and correction in (39) made under s. 13.92 (4) (b) 7., Stats., Register June 2020 No. 774; CR 23-053: cr. (18m), (49m), (51m) Register September 2023 No. 813, eff. 10-1-23.

DHS 40.04 DHS 40.04 Certification.

DHS 40.04(1) (1) Initial certification requirements.

DHS 40.04(1)(a) (a) General. A program that provides mental health day treatment services may not be established without certification from the department.

DHS 40.04(1)(b) (b) Application.

DHS 40.04(1)(b)1. 1. Certification may be granted to establish any of the following:

DHS 40.04(1)(b)1.a. a. A community-based program.

DHS 40.04(1)(b)1.b. b. An intensive hospital-based program.

DHS 40.04 Note Note: Application materials may be obtained from the Behavioral Health Certification Section, Division of Quality Assurance, PO Box 2969, Madison, WI 53701-2969 or online at [e-mail]. Completed application materials may be submitted by mail to the Behavioral Health Certification Section, Division of Quality Assurance, PO Box 2969, Madison, WI 53701-2969.

DHS 40.04(1)(b)2. 2. A program may apply for certification by submitting the following application materials to the department:

DHS 40.04(1)(b)2.a. a. A completed application form.

DHS 40.04(1)(b)2.b. b. Payment for the certification fee required under s. 51.04, Stats.

DHS 40.04 Note Note: Fee amounts are found at https://www.dhs.wisconsin.gov/regulations/index.htm.

DHS 40.04(1)(b)2.c. c. A program description, containing all of the following information:

1) The age range and characteristics of youth the program proposes to admit and if the program proposes to offer services based on age, the age range and client characteristics for each service.

2) The maximum number of youth that the program proposes to serve at any given time.

3) The hours and days of the year when the program will operate, and the proposed times during the day and week when youth will receive services from the program.