Chapter DHS 94

DHS 94.40 DHS 94.40 System requirements.

DHS 94.40(1) (1) Grievance resolution system required. All programs providing services or residential care to persons who need the services or residential care because of mental illness, a developmental disability, alcoholism or drug dependency, as those terms are defined in s. 51.01, Stats., shall have a grievance resolution system which complies with the requirements of this subchapter.

DHS 94.40(2) (2) Written policies. A program shall have written policies which provide that:

DHS 94.40(2)(a) (a) Staff of the program know and understand the rights of the clients they serve;

DHS 94.40(2)(b) (b) Fair, responsive and respectful procedures are available which permit clients to obtain resolution of their grievances within the time frames provided in this subchapter;

DHS 94.40(2)(c) (c) Staff and clients are instructed in both the formal procedures by which clients may seek resolution of grievances, and informal methods for resolving client concerns; and

DHS 94.40(2)(d) (d) Staff who act as client rights specialists, or private individuals with whom the program contracts for this service, are trained in the procedures required by this subchapter, techniques for resolution of concerns and grievances and the applicable provisions of ch. 51, Stats., ch. DHS 92 and this chapter.

DHS 94.40(3) (3) Client rights specialist.

DHS 94.40(3)(a) (a) Each program or coalition of programs shall designate one or more persons to act as client rights specialists.

DHS 94.40(3)(b) (b) The client rights specialist may be an employee of the program or of one of the programs in a coalition or may be a person under contract to a program or to a coalition of programs.

DHS 94.40(3)(c) (c) The client rights specialist assigned to conduct a program level review under s. DHS 94.41 shall not have any involvement in the conditions or activities forming the basis of the client’s grievance, or have any other substantial interest in those matters arising from his or her relationship to the program or the client, other than employment.

DHS 94.40(3)(d) (d) If at any time during the formal resolution process a grievant wishes to switch to the informal resolution process, and the other parties agree to the switch, the client rights specialist may suspend the formal resolution process and attempt to facilitate a resolution of the matter between the parties without prejudice to positions of the grievant or the program.

DHS 94.40(3)(e) (e) If the client chooses to use the informal resolution process and the matter is resolved, the client rights specialist shall prepare a brief report indicating the nature of the resolution and file it with the program manager, with copies to the client, any person acting on behalf of the client pursuant to s. DHS 94.49, and the parent or guardian of a client if that person’s consent is required for treatment.

DHS 94.40(4) (4) Informal resolution process.

DHS 94.40(4)(a) (a) Each program shall have available a process which offers clients and persons acting on behalf of clients the option of seeking informal resolution of their concerns.

DHS 94.40(4)(b) (b) Use of the informal resolution process shall not be a prerequisite for seeking formal relief.

DHS 94.40(4)(c) (c) The informal resolution process may be used pending initiation of the formal resolution process or as an adjunct during the formal resolution process.

DHS 94.40(4)(d) (d) The informal resolution process shall be adapted to the particular needs and strengths of the clients being served by the program in order to assist them and any persons acting on their behalf to participate in and understand the process as much as possible.

DHS 94.40(4)(e) (e) Any applicable time limits of the formal resolution process shall be suspended during the use of the informal resolution process until a grievant indicates that he or she wishes the formal resolution process to begin or until any party requests that the formal resolution process resume.

DHS 94.40(5) (5) Formal resolution process. Each program shall have a formal resolution process for program level review of grievances under s. DHS 94.41 which includes:

DHS 94.40(5)(a) (a) A process for training client rights specialists and for protecting their neutrality while conducting grievance reviews by establishing conditions which allow them to be objective in their actions, such as not allowing retribution against them for unpopular decisions;

DHS 94.40(5)(b) (b) Procedures for:

DHS 94.40(5)(b)1. 1. Conducting program level inquiries;

DHS 94.40(5)(b)2. 2. Preparing reports that include factual findings, determinations of merit and recommendations for resolving grievances;

DHS 94.40(5)(b)3. 3. Completing the review process within the time limits of this subchapter;

DHS 94.40(5)(b)4. 4. Maintaining impartiality in the conduct of the inquiry; and

DHS 94.40(5)(b)5. 5. Permitting both clients and staff an equal opportunity to be heard during the process;

DHS 94.40(5)(c) (c) A method for informing clients and their guardians, parents and advocates about the way grievances are presented and the process by which reviews of grievances are conducted which takes into account any special limitations clients of the program may have and adapts the system to allow clients to participate in the process to the fullest extent possible;

DHS 94.40(5)(d) (d) A process for responding to decisions on grievance reviews at any level that provides for rapid and accurate compliance with final determinations as well as orders for interim relief under s. DHS 94.50;

DHS 94.40(5)(e) (e) A provision that, at any time, if all parties agree, the formal resolution process and any applicable time limits may be suspended to allow the parties to attempt an informal resolution of the matter under sub. (4), facilitated by the individual conducting the review at that level of the process. If time limits are suspended, they shall begin running again upon request of any party that the formal process be resumed.

DHS 94.40(6) (6) Protections for clients and advocates. A program shall have policies and procedures in place which provide that no sanctions will be threatened or imposed against any client who files a grievance, or any person, including an employee of the department, a county department or a service provider, who assists a client in filing a grievance.

DHS 94.40 Note Note: See s.51.61(5) (d) and (7m), Stats., for the civil and criminal penalties that are available to deal with anyone who threatens action or takes action against a client who files a grievance or against a person who assists a client in filing a grievance.

DHS 94.40(7) (7) Client instruction. As part of the notification of rights required under s. DHS 94.04, each program shall establish specific methods of instruction to help clients and their parents or guardians, if consent by a parent or guardian is required for treatment, understand and use the grievance system.

DHS 94.40 History History: Cr. Register, June, 1996, No. 486, eff. 7-1-96; correction in (2) (d) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2000, No. 532; correction in (2) (d) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.

DHS 94.41 DHS 94.41 Program level review.

DHS 94.41(1) (1) Presentation of grievance.

DHS 94.41(1)(a) (a) A program shall establish a flexible and open process through which clients and those acting on behalf of clients can present grievances.

DHS 94.41 Note Note: See DHS 94.49 for grievances presented on behalf of clients, including clients under guardianship.

DHS 94.41(1)(b) (b) A grievance may be presented to the program manager or any staff person in writing, orally or by any alternative method through which the client or other person ordinarily communicates.

DHS 94.41(1)(c) (c) Whenever possible, a program shall attempt to resolve a grievance at the time it is presented by listening to the nature of the complaint and by making adjustments in operations or conditions that respond to the individual needs of the client.

DHS 94.41(1)(d) (d) If a grievance cannot be immediately resolved, the person presenting the issue shall be given the option of using the program’s formal or informal resolution process.

DHS 94.41(1)(e) (e) If the informal resolution process under s. DHS 94.40 (4) is chosen, any time limits in sub. (5) shall be suspended while the parties work out their differences.

DHS 94.41(1)(f) (f) If the formal resolution process under s. DHS 94.40 (5) is chosen, the program shall refer the grievance to a client rights specialist who shall conduct an inquiry and file a report as provided in subs. (2) and (3).

DHS 94.41(2) (2) Inquiry by client rights specialist.

DHS 94.41(2)(a) (a) Upon receiving a referral, the client rights specialist shall meet with the grievant and the client, if different, and any staff member who may be named in the complaint, identify the matters at issue and explain the process for seeking formal resolution of grievances.

DHS 94.41(2)(b) (b) If the grievance was presented orally or through an alternative form of communication, the client rights specialist shall assist the grievant in putting the grievance into writing for use in the ongoing process. A copy of the written grievance shall be given to the grievant and the client, and included in the report.

DHS 94.41(2)(c) (c)

DHS 94.41(2)(c)1. 1. If there are facts in dispute, the client rights specialist shall conduct an inquiry into the incidents or conditions which are the focus of the grievance.

DHS 94.41(2)(c)2. 2. The program manager shall provide the client rights specialist with full access to all information needed to investigate the grievance, all relevant areas of the program facility named in the grievance and all records pertaining to the matters raised in the grievance.

DHS 94.41(2)(c)3. 3. The inquiry of the client rights specialist may include questioning staff, the client or clients on whose behalf the grievance was presented, other clients, reviewing applicable records and charts, examining equipment and materials and any other activity necessary in order to form an accurate factual basis for the resolution of the grievance.

DHS 94.41(2)(d) (d) When an inquiry requires access to confidential information protected under s. 51.30, Stats., and the client rights specialist conducting the inquiry does not otherwise have access to the information under an exception found in s. 51.30 (4) (b), Stats., the client, or the guardian or parent of the client, if the guardian or parent’s consent is required, may be asked to consent in writing to the release of that information to the client rights specialist and other persons involved in the grievance resolution process. The client rights specialist may proceed with the inquiry only if written consent is obtained. If consent for access is not granted, the program shall attempt to resolve the matter through the informal resolution process. The program may include in forms used for presenting written grievances a corresponding provision relating to consent for release of confidential information.

DHS 94.41(2)(e) (e) The client rights specialist shall maintain the confidentiality of any information about any program client gained during the inquiry, unless specific releases for that information are granted.

DHS 94.41(2)(f) (f) With the consent of the grievant, the client rights specialist may suspend the formal resolution process and attempt an informal resolution of the grievance as provided in s. DHS 94.40 (4).

DHS 94.41(3) (3) Report of client rights specialist.

DHS 94.41(3)(a) (a) In this subsection:

DHS 94.41(3)(a)1. 1. “Founded” means that there has been a violation of a specific right guaranteed to the client under ch. DHS 92 or this chapter or ch. 51, Stats.

DHS 94.41(3)(a)2. 2. “Unfounded” means that the grievance is without merit or not a matter within the jurisdiction of ch. DHS 92 or this chapter or s. 51.61, Stats.

DHS 94.41(3)(b) (b) When the inquiry under sub. (2) (c) is complete, the client rights specialist shall prepare a written report with a description of the relevant facts agreed upon by the parties or gathered during the inquiry, the application of the appropriate laws and rules to those facts, a determination as to whether the grievance was founded or unfounded, and the basis for the determination.

DHS 94.41(3)(c) (c) If the grievance is determined to be founded, the report shall describe the specific actions or adjustments recommended by the client rights specialist for resolving the issues presented. Where appropriate, the recommendation may include a timeline for carrying out the proposed acts and adjustments.

DHS 94.41(3)(d) (d) If the grievance is determined to be unfounded, but through the process of the inquiry the client rights specialist has identified issues which appear to affect the quality of services in the program or to result in significant interpersonal conflicts, the report may include informal suggestions for improving the situation.

DHS 94.41(3)(e) (e) Copies of the report shall be given to the program manager, the client and the grievant, if other than the client, the parent or guardian of a client if that person’s consent is required for treatment, and all relevant staff.

DHS 94.41(3)(f) (f) The client rights specialist shall purge the names or other client identifying information of any client involved in the grievance, other than the client directly involved, when providing copies of the report to persons other than the staff directly involved, the program manager or other staff who have a need to know the information.

DHS 94.41(4) (4) Program manager’s decision.

DHS 94.41(4)(a) (a) If the program manager, the client, the grievant, if other than the client, and the guardian or parent, if that person’s consent is required for treatment, agree with the report of the client rights specialist, and if the report contains recommendations for resolution, those recommendations shall be put into effect within an agreed upon timeframe.

DHS 94.41(4)(b) (b) If there is disagreement over the report, the client rights specialist may confer with the client, the grievant, if other than the client, the parent or guardian of the client, if that person’s consent is required for treatment, and the program manager or his or her designee to establish a mutually acceptable plan for resolving the grievance.

DHS 94.41(4)(c) (c) If the disagreement cannot be resolved through the discussions under par. (b), the program manager or designee shall prepare a written decision describing the matters which remain in dispute and stating the findings and determinations or recommendations which form the official position of the program.

DHS 94.41(4)(d) (d) The decision may affirm, modify or reverse the findings and recommendations proposed by the client rights specialist. However, the program manager shall state the basis for any modifications which are made.

DHS 94.41(4)(e) (e) The program manager’s decision shall be given personally or sent by first class mail to the client and the grievant, if other than the client, the parent or guardian of a client, if that person’s consent is required for treatment, and all staff who received a copy of the report of the client rights specialist. The decision shall include a notice which explains how, where and by whom a request for administrative review of the decision under s. DHS 94.42 (2) may be filed and states the time limit for filing a request for administrative review.

DHS 94.41(5) (5) Time limits.

DHS 94.41(5)(a) (a) Filing a grievance.

DHS 94.41(5)(a)1. 1. A client or a person acting on the client’s behalf shall present a grievance to the client rights specialist, a staff person or the program manager within 45 days of the occurrence of the event or circumstance in the grievance or of the time when the event or circumstance was actually discovered or should reasonably have been discovered, or of the client’s gaining or regaining the ability to report the matter, whichever comes last.

DHS 94.41(5)(a)2. 2. The program manager may grant an extension of the 45 day time limit for filing a grievance for good cause. In this subdivision, “good cause” may include but is not limited to circumstances in which there is a reasonable likelihood that despite the delay:

DHS 94.41(5)(a)2.a. a. Investigating the grievance will result in an improvement in care for or prevention of harm to the client in question or other clients in the program; or

DHS 94.41(5)(a)2.b. b. Failing to investigate the grievance would result in a substantial injustice.

DHS 94.41(5)(b) (b) Processing grievances in non-emergency situations. In situations in which there is not an emergency, the following time limits apply:

DHS 94.41(5)(b)1. 1. A staff person receiving a request for formal resolution of a grievance shall present the request to the program manager or his or her designee as soon as possible but not later than the end of the staff person’s shift;

DHS 94.41(5)(b)2. 2. The program manager or his or her designee shall assign a client rights specialist to the grievance within 3 business days after the request for formal process has been made;

DHS 94.41(5)(b)3. 3. The client rights specialist shall complete his or her inquiries and submit the report under sub. (4) within 30 days from the date the grievance was presented to a program staff person; and

DHS 94.41(5)(b)4. 4. A written decision under sub. (4) (e) shall be issued within 10 days of the receipt of the report, unless the client, the grievant, if other than the client, and the parent or guardian of the client, if that person’s consent is necessary for treatment, agree to extend this period of time while further attempts are made to resolve the matters still in dispute.

DHS 94.41(5)(c) (c) Processing grievances in emergency situations.

DHS 94.41(5)(c)1. 1. In emergency situations, the following time limits apply:

DHS 94.41(5)(c)1.a. a. A staff person receiving the request shall immediately present the matter to the program manager or his or her designee;

DHS 94.41(5)(c)1.b. b. The program manager or designee shall assign a client rights specialist as soon as possible but no later than 24 hours after the request is received;

DHS 94.41(5)(c)1.c. c. The client rights specialist shall complete the inquiry and submit the report identified in sub. (4) within 5 days from the date the grievance was presented; and

DHS 94.41(5)(c)1.d. d. A written decision under sub. (4) (e) shall be issued within 5 days of the receipt of the report, unless the client, the grievant, if other than the client, and the guardian or parent of the client, if that person’s consent is necessary for treatment, agree to extend this period of time while further attempts are made to resolve the matters still in dispute.

DHS 94.41(5)(c)2. 2. If after a preliminary investigation it appears that there is no emergency, the client rights specialist may treat the situation as a non-emergency for the remainder of the process.

DHS 94.41(6) (6) Protection of clients. If the client rights specialist determines that a client or a group of clients is at risk of harm, and the program has not yet acted to eliminate this risk, he or she shall immediately inform the program manager, the county department operating or contracting for the operation of the program, if any, and the office of the department with designated responsibility for investigating client grievances under s. DHS 94.42 (1) (b) 2. of the situation. If the situation continues to place the client or the group of clients at risk, the office designated under s. DHS 94.42 (1) (b) 2. shall take immediate action to protect the client or clients, pending further investigation.

DHS 94.41 History History: Cr. Register, June, 1996, No. 486, eff. 7-1-96; corrections in (3) (a) 1. and 2. made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2000, No. 532; corrections in (3) (a) 1. and 2. made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.

DHS 94.42 DHS 94.42 Administrative review by county or state.