Chapter SPS 7

SPS 7.05   Agreement for participation.

SPS 7.06   Standards for approval of treatment facilities or individual therapists.

SPS 7.07   Intradepartmental referral.

SPS 7.08   Records.

SPS 7.09   Report.

SPS 7.10   Applicability of procedures to direct licensing by the department.

SPS 7.11   Approval of drug testing programs.

Ch. SPS 7 Note Note: Chapter RL 7 was renumbered chapter SPS 7 under s. 13.92 (4) (b) 1., Stats., Register November 2011 No. 671

SPS 7.01 SPS 7.01 Authority and intent.

SPS 7.01(1) (1) The rules in this chapter are adopted pursuant to authority in ss. 15.08 (5) (b), 51.30, 146.82, 227.11 and 440.03, Stats.

SPS 7.01(2) (2) The intent of the department in adopting rules in this chapter is to protect the public from credential holders who are impaired by reason of their abuse of alcohol or other drugs by promoting early identification of chemically dependent professionals and encouraging rehabilitation. This goal will be advanced by providing an option that may be used in conjunction with the formal disciplinary process for qualified credential holders committed to their own recovery. This procedure is intended to apply when allegations are made that a credential holder has practiced a profession while impaired by alcohol or other drugs or whose ability to practice is impaired by alcohol or other drugs or when a credential holder contacts the department and requests to participate in the procedure. It may be used in conjunction with the formal disciplinary process in situations where allegations exist that a credential holder has committed misconduct, negligence or violations of law, other than practice while impaired by alcohol or other drugs. The procedure may then be utilized to promote early identification of chemically dependent professionals and encourage their rehabilitation. Finally, the department’s procedure does not seek to diminish the prosecution of serious violations but rather it attempts to address the problem of alcohol and other drug abuse within the enforcement jurisdiction of the department.

SPS 7.01(3) (3) In administering this program, the department intends to encourage board members to share professional expertise so that all boards in the department have access to a range of professional expertise to handle problems involving impaired professionals.

SPS 7.01 History History: Cr. Register, January, 1991, No. 421, eff. 2-1-91; am. (2), Register, July, 1996, No. 487, eff. 8-1-96; CR 10-081: am. (2) Register December 2010 No. 660, eff. 1-1-11.

SPS 7.02 SPS 7.02 Definitions. In this chapter:

SPS 7.02(1) (1) “Board” means any board, examining board or affiliated credentialing board attached to the department.

SPS 7.02(2) (2) “Board liaison” means the board member designated by the board or the secretary or the secretary’s designee as responsible for approving credential holders for the professional assistance procedure under s. SPS 7.03, for monitoring compliance with the requirements for participation under s. SPS 7.04, and for performing other responsibilities delegated to the board liaison under these rules.

SPS 7.02(2a) (2a) “Coordinator” means a department employee who coordinates the professional assistance procedure.

SPS 7.02(2b) (2b) “Credential holder” means a person holding any license, permit, certificate or registration granted by the department or any board. For purposes of this chapter, “credential holder” includes a person with a pending application for a credential for a period not to exceed one year from the date the application for the credential was submitted to the department.

SPS 7.02(3) (3) “Department” means the department of safety and professional services.

SPS 7.02(4) (4) “Division” means the division of legal services and compliance in the department.

SPS 7.02(5) (5) “Informal complaint” means any written information submitted by any person to the division, department or any board which requests that a disciplinary proceeding be commenced against a credential holder or which alleges facts, which if true, warrant discipline. “Informal complaint” includes requests for disciplinary proceedings under s. 440.20, Stats.

SPS 7.02(6) (6) “Medical review officer” means a medical doctor or doctor of osteopathy who is a licensed physician and who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual’s confirmed positive test result together with an individual’s medical history and any other relevant biomedical information.

SPS 7.02(7) (7) “Procedure” means the professional assistance procedure.

SPS 7.02(8) (8) “Program” means any entity approved by the department to provide the full scope of drug testing services for the department.

SPS 7.02 History History: Cr. Register, January, 1991, No. 421, eff. 2-1-91; am. (1), (2), (5), cr. (2a), (2b), r. (6), Register, July, 1996, No. 487, eff. 8-1-96; cr. (6) and (8), Register, January, 2001, No. 541, eff. 2-1-01; CR 10-081: am. (1) to (2b), (7) Register December 2010 No. 660, eff. 1-1-11; correction in (2), (3) made under s. 13.92 (4) (b) 6., 7., Register November 2011 No. 671; CR 14-019: am. (4) Register August 2014 No. 704, eff. 9-1-14.

SPS 7.03 SPS 7.03 Referral to and eligibility for the procedure.

SPS 7.03(1) (1) A credential holder who contacts the department and requests to participate in the procedure shall be referred to the board liaison and the coordinator for determination of acceptance into the procedure.

SPS 7.03(2) (2) A credential holder who has been referred to the procedure and considered for eligibility shall be provided with an application for participation.

SPS 7.03(3) (3) All informal complaints involving allegations of impairment due to alcohol or chemical dependency shall be screened and investigated pursuant to s. SPS 2.035. After investigation, informal complaints involving impairment may be referred to the procedure along with a summary of the investigative results in the form of a draft statement of conduct to be used as a basis for the statement of conduct under s. SPS 7.05 (1) (a) and considered for eligibility for the procedure or for formal disciplinary proceedings under ch. SPS 2. The credential holder shall be provided with a written explanation of the credential holder’s options for resolution of the matter through participation in the procedure and of the formal disciplinary process pursuant to ch. SPS 2.

SPS 7.03(4) (4) Eligibility for the procedure shall be determined by the board liaison and coordinator who shall review all relevant materials including investigative results and the credential holder’s application for participation. Eligibility shall be determined upon criteria developed by the coordinator in consultation with the disciplinary authority. The decision on eligibility shall be consistent with the purposes of these procedures as described in s. SPS 7.01 (2). Credential holders who have committed violations of law may be eligible for the procedure. The board liaison shall have responsibility to make the determination of eligibility for the procedure.

SPS 7.03(5) (5) The credential holder shall obtain a comprehensive assessment for chemical dependency from a treatment facility or individual therapist approved under s. SPS 7.06. The credential holder shall arrange for the treatment facility or individual therapist to file a copy of its assessment with the board liaison or coordinator. The board liaison and the credential holder may agree to waive this requirement. The obtaining of the assessment shall not delay admission into the procedure.

SPS 7.03(6) (6) If a credential holder is determined to be ineligible for the procedure, the credential holder may be referred to the division for prosecution.

SPS 7.03(7) (7) A credential holder determined to be ineligible for the procedure by the board liaison or the department may, within 10 days of notice of the determination, request the credentialing authority to review the adverse determination.

SPS 7.03 History History: Cr. Register, January, 1991, No. 421, eff. 2-1-91; am. (2) to (6), Register, July, 1996, No. 487, eff. 8-1-96; CR 10-081: renum. (1) and (3) to (6) to be (3) to (7) and am. (3) to (6), cr. (1), am. (2) Register December 2010 No. 660, eff. 1-1-11; correction in (3), (4), (5) made under s. 13.92 (4) (b) 7., Stats., Register November 2011 No. 671.

SPS 7.04 SPS 7.04 Requirements for participation.

SPS 7.04(1) (1) A credential holder who participates in the procedure shall:

SPS 7.04(1)(a) (a) Sign an agreement for participation under s. SPS 7.05.

SPS 7.04(1)(b) (b) Remain free of alcohol, controlled substances, and prescription drugs, unless prescribed for a valid medical purpose.

SPS 7.04(1)(c) (c) Timely enroll and participate in a program for the treatment of chemical dependency conducted by a facility or individual therapist approved pursuant to s. SPS 7.06.

SPS 7.04(1)(d) (d) Comply with any treatment recommendations and work restrictions or conditions deemed necessary by the board liaison or department.

SPS 7.04(1)(e) (e) Submit random monitored physiological specimens for the purpose of screening for alcohol or controlled substances provided by a drug testing program approved by the department under s. SPS 7.11, as required.

SPS 7.04(1)(f) (f) Execute releases valid under state and federal law to allow access to the credential holder’s counseling, treatment and monitoring records.

SPS 7.04(1)(g) (g) Have the credential holder’s supervising therapist and work supervisors file quarterly reports with the coordinator.

SPS 7.04(1)(h) (h) Notify the coordinator of any changes in the credential holder’s employer within 5 days.

SPS 7.04(1)(i) (i) File quarterly reports documenting the credential holder’s attendance at meetings of self-help groups such as alcoholics anonymous or narcotics anonymous.

SPS 7.04(2) (2) If the board liaison or department determines, based on consultation with the person authorized to provide treatment to the credential holder or monitor the credential holder’s enrollment or participation in the procedure, or monitor any drug screening requirements or restrictions on employment under sub. (1), that a credential holder participating in the procedure has failed to meet any of the requirements set under sub. (1), the board liaison may refer the credential holder to the division. A failure to maintain abstinence is considered a relapse and shall be reviewed by the board liaison to determine whether the credential holder should be referred to the division. The board liaison may review the complete record in making this determination.

SPS 7.04(3) (3) If a credential holder violates the agreement and no referral to the division occurs, then a new admission under s. SPS 7.05 (1) (a) shall be obtained for relapses and for misconduct, negligence or violations of law which are substantial. If a new admission is not obtained, then a referral to the division by the coordinator shall occur.

SPS 7.04 History History: Cr. Register, January, 1991, No. 421, eff. 2-1-91; am. Register, July, 1996, No. 487, eff. 8-1-96; am. (1) (e), Register, January, 2001, No. 541, eff. 2-1-01; CR 10-081: am. (1) (e), (f), (2), (3) Register December 2010 No. 660, eff. 1-1-11; correction in (1) (a), (c), (e), (3) made under s. 13.92 (4) (b) 7., Stats., Register November 2011 No. 671.

SPS 7.05 SPS 7.05 Agreement for participation.

SPS 7.05(1) (1) The agreement for participation in the procedure shall at a minimum include:

SPS 7.05(1)(a) (a) A statement describing conduct the credential holder agrees occurred relating to participation in the procedure and an agreement that the statement may be used as evidence in any disciplinary proceeding under ch. SPS 2.

SPS 7.05(1)(b) (b) An acknowledgement by the credential holder of the need for treatment for chemical dependency;

SPS 7.05(1)(c) (c) An agreement to participate at the credential holder’s expense in an approved treatment regimen.

SPS 7.05(1)(d) (d) An agreement to submit to random monitored drug screens provided by a drug testing program approved by the department under s. SPS 7.11 at the credential holder’s expense, if deemed necessary by the board liaison.

SPS 7.05(1)(e) (e) An agreement to submit to practice restrictions at any time during the treatment regimen as deemed necessary by the board liaison.

SPS 7.05(1)(f) (f) An agreement to furnish the coordinator with signed consents for release of information from treatment providers and employers authorizing the release of information to the coordinator and board liaison for the purpose of monitoring the credential holder’s participation in the procedure.

SPS 7.05(1)(g) (g) An agreement to authorize the board liaison or coordinator to release information described in pars. (a), (c) and (e), the fact that a credential holder has been dismissed under s. SPS 7.07 (3) (a) or violated terms of the agreement in s. SPS 7.04 (1) (b) to (e) and (h) concerning the credential holder’s participation in the procedure to the employer, therapist or treatment facility identified by the credential holder and an agreement to authorize the coordinator to release the results of random monitored drug screens under par. (d) to the therapist identified by the credential holder.

SPS 7.05(1)(h) (h) An agreement to participate in the procedure for a period of time as established by the board.

SPS 7.05(2) (2) The board liaison may include additional requirements for an individual credential holder, if the circumstances of the informal complaint or the credential holder’s condition warrant additional safeguards.

SPS 7.05(3) (3) The board or board liaison may include a promise of confidentiality that all or certain records shall remain closed and not available for public inspection and copying. Any promise is subject to s. SPS 7.08 and ends upon a referral to the division. Information and records may be made available to staff within the department on an as-needed basis, to be determined by the coordinator.

SPS 7.05 History History: Cr. Register, January, 1991, No. 421, eff. 2-1-91; am. (1) (a) to (g) and (2), Register, July, 1996, No. 487, eff. 8-1-96; am. (1) (d), Register, January, 2001, No. 541, eff. 2-1-011; CR 10-081: am. (3) Register December 2010 No. 660, eff. 1-1-11; correction in (1) (a), (d), (g), (3) made under s. 13.92 (4) (b) 7., Stats., Register November 2011 No. 671.

SPS 7.06 SPS 7.06 Standards for approval of treatment facilities or individual therapists.

SPS 7.06(1) (1) The board or board liaison shall approve a treatment facility designated by a credential holder for the purpose of participation in the procedure if:

SPS 7.06(1)(a) (a) The facility is certified by appropriate national or state certification agencies.

SPS 7.06(1)(b) (b) The treatment program focus at the facility is on the individual with drug and alcohol abuse problems.

SPS 7.06(1)(c) (c) Facility treatment plans and protocols are available to the board liaison and coordinator.

SPS 7.06(1)(d) (d) The facility, through the credential holder’s supervising therapist, agrees to file reports as required, including quarterly progress reports and immediate reports if a credential holder withdraws from therapy, relapses, or is believed to be in an unsafe condition to practice.

SPS 7.06(2) (2) As an alternative to participation by means of a treatment facility, a credential holder may designate an individual therapist for the purpose of participation in the procedure. The board liaison shall approve an individual therapist who:

SPS 7.06(2)(a) (a) Has credentials and experience determined by the board liaison to be in the credential holder’s area of need.

SPS 7.06(2)(b) (b) Agrees to perform an appropriate assessment of the credential holder’s therapeutic needs and to establish and implement a comprehensive treatment regimen for the credential holder.

SPS 7.06(2)(c) (c) Forwards copies of the therapist’s treatment regimen and office protocols to the coordinator.

SPS 7.06(2)(d) (d) Agrees to file reports as required to the coordinator, including quarterly progress reports and immediate reports if a credential holder withdraws from therapy, relapses, or is believed to be in an unsafe condition to practice.

SPS 7.06(3) (3) If a board liaison does not approve a treatment facility or therapist as requested by the credential holder, the credential holder may, within 10 days of notice of the determination, request the board to review the board liaison’s adverse determination.

SPS 7.06 History History: Cr. Register, January, 1991, No. 421, eff. 2-1-91; am. Register, July, 1996, No. 487, eff. 8-1-96; r. (1) (d) and (2) (d), renum. (1) (e) and (2) (e) to be (1) (d) and (2) (d) and am., Register, January, 2001, No. 541, eff. 2-1-01.

SPS 7.07 SPS 7.07 Intradepartmental referral.

SPS 7.07(2) (2) The division may refer individuals named in informal complaints to the board liaison for acceptance into the procedure.

SPS 7.07(3) (3) The board liaison may refer cases involving the following to the division for investigation or prosecution:

SPS 7.07(3)(a) (a) Credential holders participating in the procedure who fail to meet the requirements of their rehabilitation program.

SPS 7.07(3)(b) (b) Credential holders who apply and who are determined to be ineligible for the procedure where the board liaison is in possession of information indicating misconduct, negligence or a violation of law.

SPS 7.07(3)(c) (c) Credential holders who do not complete an agreement for participation where the board liaison is in possession of information indicating misconduct, negligence or a violation of law.

SPS 7.07(3)(d) (d) Credential holders initially referred by the division to the board liaison who fail to complete an agreement for participation.

SPS 7.07(3)(e) (e) Credential holders who request early termination of an agreement for participation. In making the decision if a referral should occur, the board liaison shall consider whether the credential holder’s therapist approves the early termination and whether this opinion is supported by a second therapist selected by the department who shall always be consulted and shall concur.

SPS 7.07(4) (4) The board liaison shall refer credential holders who relapse in the context of the work setting to the division for investigation and prosecution. A credential holder referred under this subsection who has not been dismissed from the procedure may continue to participate in the procedure.

SPS 7.07 History History: Cr. Register, January, 1991, No. 421, eff. 2-1-91; am. (1), (3) (a) to (d), Register, July, 1996, No. 487, eff. 8-1-96; CR 10-081: r. (1), am. (3) (a), (b), (c), cr. (3) (e), (4) Register December 2010 No. 660, eff. 1-1-11.

SPS 7.08 SPS 7.08 Records.

SPS 7.08(1) (1) Custodian. All records relating to the procedure including applications for participation, agreements for participation and reports of participation shall be maintained in the custody of the department secretary or the secretary’s designee.

SPS 7.08(2) (2) Availability of procedure records for public inspection. Any requests to inspect procedure records shall be made to the custodian. The custodian shall evaluate each request on a case by case basis using the applicable law relating to open records and giving appropriate weight to relevant factors in order to determine whether public interest in nondisclosure outweighs the public interest in access to the records, including the reputational interests of the credential holder, the importance of confidentiality to the functional integrity of the procedure, the existence of any promise of confidentiality, statutory or common law rules which accord a status of confidentiality to the records and the likelihood that release of the records will impede an investigation. The fact of a credential holder’s participation in the procedure and the status of that participation may be disclosed to credentialing authorities of other jurisdictions.

SPS 7.08(3) (3) Treatment records. Treatment records concerning individuals who are receiving or who at any time have received services for mental illness, developmental disabilities, alcoholism, or drug dependence which are maintained by the department, by county departments under s. 51.42 or 51.437, Stats., and their staffs and by treatment facilities are confidential under s. 51.30, Stats., and shall not be made available for public inspection.