Chapter DHS 94

DHS 94.07 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (1), (3), renum. (5) to be HFS 94.24 (3) (i), Register, June, 1996, No. 486, eff. 7-1-96.

DHS 94.08 DHS 94.08 Prompt and adequate treatment. All patients shall be provided prompt and adequate treatment, habilitation or rehabilitation, supports, community services and educational services as required under s. 51.61 (1) (f), Stats., and copies of applicable licensing and certification rules and program manuals and guidelines.

DHS 94.08 Note Note: Educational requirements for school-age patients in inpatient facilities can be found under chs. 115 and 118, Stats.

DHS 94.08 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. Register, June, 1996, No. 486, eff. 7-1-96.

DHS 94.09 DHS 94.09 Medications and other treatment.

DHS 94.09(1) (1) Each patient shall be informed of his or her treatment and care and shall be permitted and encouraged to participate in the planning of his or her treatment and care.

DHS 94.09(2) (2) A patient may refuse medications and any other treatment except as provided under s. 51.61 (1) (g) and (h), Stats., and this section.

DHS 94.09(3) (3) Any patient who does not agree with all or any part of his or her treatment plan shall be permitted a second consultation for review of the treatment plan as follows:

DHS 94.09(3)(a) (a) An involuntary patient may request a second consultation from another staff member who is not directly providing treatment to the patient, and the treatment facility shall make the designated staff member available at no charge to the patient; and

DHS 94.09(3)(b) (b) Any patient may, at his or her own expense, arrange for a second consultation from a person who is not employed by the treatment facility to review the patient’s treatment record.

DHS 94.09(3)(c) (c) Service providers may pay for some or all of the costs of any second consultation allowed under par. (b). Service providers may also enter into agreements with other service providers to furnish consultations for each other’s clients.

DHS 94.09(4) (4) Except in an emergency when it is necessary to prevent serious physical harm to self or others, no medication may be given to any patient or treatment performed on any patient without the prior informed consent of the patient, unless the patient has been found not competent to refuse medication and treatment under s. 51.61 (1) (g), Stats., and the court orders medication or treatment. In the case of a patient found incompetent under ch. 54, Stats., the informed consent of the guardian is required. In the case of a minor, the informed consent of the parent or guardian is required. Except as provided under an order issued under s. 51.14 (3) (h) or (4) (g), Stats., if a minor is 14 years of age or older, the informed consent of the minor and the minor’s parent or guardian is required. Informed consent for treatment from a patient’s parent or guardian may be temporarily obtained by telephone in accordance with s. DHS 94.03 (2m).

DHS 94.09(5) (5) A voluntary patient may refuse any treatment, including medications, at any time and for any reason, except in an emergency, under the following conditions:

DHS 94.09(5)(a) (a) If the prescribed treatment is refused and no alternative treatment services are available within the treatment facility, it is not considered coercion if the facility indicates that the patient has a choice of either participating in the prescribed treatment or being discharged from the facility; and

DHS 94.09(5)(b) (b) The treatment facility shall counsel the patient and, when possible, refer the patient to another treatment resource prior to discharge.

DHS 94.09(6) (6) The treatment facility shall maintain a patient treatment record for each patient which shall include:

DHS 94.09(6)(a) (a) A specific statement of the diagnosis and an explicit description of the behaviors and other signs or symptoms exhibited by the patient;

DHS 94.09(6)(b) (b) Documentation of the emergency when emergency treatment is provided to the patient;

DHS 94.09(6)(c) (c) Clear documentation of the reasons and justifications for the initial use of medications and for any changes in the prescribed medication regimen; and

DHS 94.09(6)(d) (d) Documentation that is specific and objective and that adequately explains the reasons for any conclusions or decisions made regarding the patient.

DHS 94.09(7) (7) A physician ordering or changing a patient’s medication shall ensure that other members of the patient’s treatment staff are informed about the new medication prescribed for the patient and the expected benefits and potential adverse side effects which may affect the patient’s overall treatment.

DHS 94.09(8) (8) A physician ordering or changing a patient’s medication shall routinely review the patient’s prescription medication, including the beneficial or adverse effects of the medication and the need to continue or discontinue the medication, and shall document that review in the patient’s treatment record.

DHS 94.09(9) (9) Each inpatient and residential treatment facility that administers medications shall have a peer review committee or other medical oversight mechanism reporting to the facility’s governing body to ensure proper utilization of medications.

DHS 94.09 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; renum. (1) to (8) to be (2) to (9) and am. (4); cr. (1), (3) (c), (6) (d), Register, June, 1996, No. 486, eff. 7-1-96; correction in (4) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.

DHS 94.10 DHS 94.10 Isolation, seclusion and physical restraints. Any service provider using isolation, seclusion or physical restraint shall have written policies that meet the requirements specified under s. 51.61 (1) (i), Stats., and this chapter. Isolation, seclusion or physical restraint may be used only in an emergency, when part of a treatment program or as provided in s. 51.61 (1) (i) 2., Stats. For a community placement, the use of isolation, seclusion or physical restraint shall be specifically approved by the department on a case-by-case basis and by the county department if the county department has authorized the community placement. In granting approval, a determination shall be made that use is necessary for continued community placement of the individual and that supports and safeguards necessary for the individual are in place.

DHS 94.10 Note Note: The use of isolation, seclusion or physical restraint may be further limited or prohibited by licensing or certification standards for that service provider.

DHS 94.10 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; r. and recr. Register, June, 1996, No. 486, eff. 7-1-96.

DHS 94.11 DHS 94.11 Electroconvulsive therapy.

DHS 94.11(1) (1) No patient may be administered electroconvulsive therapy except as specified under s. 51.61 (1) (k), Stats., and this section.

DHS 94.11(2) (2) The patient shall be informed that he or she has a right to consult with legal counsel, legal guardian, if any, and independent specialists prior to giving informed consent for electroconvulsive therapy.

DHS 94.11(3) (3) A treatment facility shall notify the program director prior to the planned use of electroconvulsive therapy on a county department patient.

DHS 94.11(4) (4) Electroconvulsive therapy may only be administered under the direct supervision of a physician.

DHS 94.11(5) (5) A service provider performing electroconvulsive therapy shall develop and implement written policies and procedures for obtaining and monitoring informed consent.

DHS 94.11 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; cr. (5), Register, June, 1996, No. 486, eff. 7-1-96.

DHS 94.12 DHS 94.12 Drastic treatment procedures.

DHS 94.12(1) (1) Drastic treatment procedures may only be used in an inpatient treatment facility or a center for the developmentally disabled as defined in s. 51.01 (3), Stats. No patient may be subjected to drastic treatment procedures except as specified under s. 51.61 (1) (k), Stats., and this section.

DHS 94.12(2) (2) The patient shall be informed that he or she has a right to consult with legal counsel, legal guardian, if any, and independent specialists prior to giving informed consent for drastic treatment procedures.

DHS 94.12(3) (3) The treatment facility shall notify the program director prior to the planned use of drastic treatment procedures on county department patients.

DHS 94.12(4) (4) Each county department shall report monthly to the department the type and number of drastic treatment procedures used on county department patients.

DHS 94.12 Note Note: Reports required under sub. (4) should be sent to the area administrator in the appropriate Department regional office. The addresses of all regional offices are available from the Office of Policy Initiatives and Budget, P.O. Box 7850, Madison, WI 53707.

DHS 94.12 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87.

DHS 94.13 DHS 94.13 Research and human rights committee.

DHS 94.13(1) (1) An inpatient or residential treatment facility conducting or permitting research or drastic treatment procedures involving human subjects shall establish a research and human rights committee in accordance with 45 CFR 46, s. 51.61 (4), Stats., and this section.

DHS 94.13(2) (2) The committee shall include 2 members who are consumers or who represent either an agency or organization which advocates rights of patients covered by this chapter.

DHS 94.13(3) (3) The inpatient or residential treatment facility research and human rights committee shall designate a person to act as consent monitor who shall be authorized to validate informed consent and terminate a patient’s participation in a research project or a drastic treatment procedure immediately upon violation of any requirement under this chapter or upon the patient’s withdrawal of consent.

DHS 94.13 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87.

DHS 94.14 DHS 94.14 Research.

DHS 94.14(1) (1) All proposed research involving patients shall meet the requirements of s. 51.61 (1) (j), Stats., 45 CFR 46, and this section.

DHS 94.14(2) (2) No patient may be subjected to any experimental diagnostic or treatment technique or to any other experimental intervention unless the patient gives informed consent, the patient’s informed consent is confirmed by the consent monitor and the research and human rights committee has determined that adequate provisions are made to:

DHS 94.14(2)(a) (a) Protect the privacy of the patient;

DHS 94.14(2)(b) (b) Protect the confidentiality of treatment records in accordance with s. 51.30, Stats., and ch. DHS 92;

DHS 94.14(2)(c) (c) Ensure that no patient may be approached to participate in the research unless the patient’s participation is approved by the person who is responsible for the treatment plan of the patient; and

DHS 94.14(2)(d) (d) Ensure that the conditions of this section and other requirements under this chapter are met.

DHS 94.14 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; correction in (2) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2000, No. 532; correction in (2) (b) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.

DHS 94.15 DHS 94.15 Labor performed by patients.

DHS 94.15(1) (1) Any labor performed by a patient which is of financial benefit to the treatment facility shall be conducted within the requirements under s. 51.61 (1) (b), Stats., and this section.

DHS 94.15(2) (2) Patients may only be required to perform tasks that are equivalent to personal housekeeping chores performed in common or private living areas of an ordinary home. Personal housekeeping tasks may include light cleaning of shared living quarters if all patients sharing those quarters participate as equally as possible in the cleaning chores.

DHS 94.15(3) (3) Payment for therapeutic labor authorized under s. 51.61 (1) (b), Stats., shall be made in accordance with wage guidelines established under state and federal law.

DHS 94.15(4) (4) Documentation shall be made in the treatment record of any compensated, uncompensated, voluntary or involuntary labor performed by any patient.

DHS 94.15(5) (5) The document used to obtain informed consent for application of a patient’s wages toward the cost of treatment shall conspicuously state that the patient has the right to refuse consent without suffering any adverse consequences.

DHS 94.15 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; am. (2), (3), Register, June, 1996, No. 486, eff. 7-1-96.

DHS 94.16 DHS 94.16 Religious worship.

DHS 94.16(1) (1) All inpatients shall be allowed to exercise their right to religious worship as specified under s. 51.61 (1) (L), Stats., and this section.

DHS 94.16(2) (2) The director of each treatment facility serving inpatients shall seek clergy to be available to meet the religious needs of the inpatients.

DHS 94.16(3) (3) The director or designee shall make reasonable provision for inpatients to attend religious services either inside or outside the facility, except for documented security reasons, and shall honor any reasonable request for religious visitation by the representative of any faith or religion.

DHS 94.16(4) (4) Visiting clergy shall have the same access to inpatients as staff clergy except that visiting clergy may be required to work with and be accompanied by staff clergy.

DHS 94.16(5) (5) A patient whose disruptive behavior interferes with other patients’ right to worship shall be removed from worship services.

DHS 94.16 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87.

DHS 94.17 DHS 94.17 Confidentiality of records. All treatment records are confidential. A patient or guardian may inspect, copy and challenge the patient’s records as authorized under s. 51.30, Stats., and ch. DHS 92.

DHS 94.17 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; correction made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2000, No. 532; correction made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.

DHS 94.18 DHS 94.18 Filming and taping.

DHS 94.18(1) (1) No patient may be recorded, photographed, or filmed for any purpose except as allowed under s. 51.61 (1) (o), Stats., and this section.

DHS 94.18(2) (2) A photograph may be taken of a patient without the patient’s informed consent only for the purpose of including the photograph in the patient’s treatment record.

DHS 94.18(3) (3) The informed consent document shall specify that the subject patient may view the photograph or film or hear the recording prior to any release and that the patient may withdraw informed consent after viewing or hearing the material.

DHS 94.18 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87.

DHS 94.19 DHS 94.19 Mail.

DHS 94.19(1) (1) Each inpatient shall be allowed to send and receive sealed mail in accordance with s. 51.61 (1) (cm) 1., Stats., and this section.

DHS 94.19(2) (2) Any inpatient who has been determined indigent under the facility’s operating policies shall, upon request, be provided with up to 2 stamped non-letterhead envelopes each week and with non-letterhead stationery and other letter-writing materials.

DHS 94.19(3) (3) Mail shall be delivered to inpatients promptly by the facility’s normal distribution procedures.

DHS 94.19(4) (4) Upon request of an inpatient or his or her guardian, mail shall be opened by a facility staff member and read to him or her. The initial request shall be documented in the treatment record.

DHS 94.19 History History: Cr. Register, January, 1987, No. 373, eff. 2-1-87; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register December 2003 No. 576.

DHS 94.20 DHS 94.20 Telephone calls.

DHS 94.20(1) (1) Inpatients shall be allowed reasonable access to a telephone to make and receive a reasonable number of telephone calls as authorized by s. 51.61 (1) (p), Stats., and this section.

DHS 94.20(2) (2) Patients shall be permitted to make an unlimited number of private telephone calls to legal counsel and to receive an unlimited number of private telephone calls from legal counsel.

DHS 94.20(3) (3) 

DHS 94.20(3)(a) (a) Except as provided in par. (b), each inpatient shall be permitted to make a reasonable number of private, personal calls. The number and duration of the calls may be limited for legitimate management reasons, but the facility shall provide every patient the opportunity to make at least one private, personal telephone call per day.

DHS 94.20(3)(b) (b) This subsection does not prohibit a facility under s. 980.065, Stats., from recording patients’ personal telephone calls or monitoring the resulting recordings.

DHS 94.20(4) (4) Inpatients who have been determined indigent under a facility’s operating policies shall be permitted to make telephone calls under sub. (2), and at least one private, personal call per day free of charge.

DHS 94.20(5) (5) Treatment facilities shall provide the number of regular or pay telephones necessary to meet requirements of this section, subject to restrictions imposed by local telephone companies regarding installation of pay telephones.