Chapter SPS 7

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.

SPS 7.08(4) (4) Patient health care records. Patient health care records are confidential under s. 146.82, Stats., and shall not be made available to the public without the informed consent of the patient or of a person authorized by the patient or as provided under s. 146.82 (2), Stats.

SPS 7.08 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 7.09 SPS 7.09 Report. The board liaison or coordinator shall report on the procedure to the board at least twice a year and if requested to do so by a board.

SPS 7.09 History History: Cr. Register, January, 1991, No. 421, eff. 2-1-91; am. Register, July, 1996, No. 487, eff. 8-1-96.

SPS 7.10 SPS 7.10 Applicability of procedures to direct licensing by the department. This procedure may be used by the department in resolving complaints against persons licensed directly by the department if the department has authority to discipline the credential holder. In such cases, the department secretary shall have the authority and responsibility of the “board” as the term is used in the procedure and shall designate an employee to perform the responsibilities of the “board liaison.”

SPS 7.10 History History: Cr. Register, January, 1991, No. 421, eff. 2-1-91; am. Register, July, 1996, No. 487, eff. 8-1-96.

SPS 7.11 SPS 7.11 Approval of drug testing programs. The department shall approve drug testing programs for use by credential holders who participate in drug and alcohol monitoring programs pursuant to agreements between the department or boards and credential holders, or pursuant to disciplinary orders. To be approved as a drug testing program for the department, programs shall satisfactorily meet all of the following standards in the areas of program administration, collection site administration, laboratory requirements and reporting requirements:

SPS 7.11(1) (1) Program administration requirements are:

SPS 7.11(1)(a) (a) The program shall enroll participants by setting up an account, establishing a method of payment and supplying preprinted chain-of-custody forms.

SPS 7.11(1)(b) (b) The program shall provide the participant with the address and phone number of the nearest collection sites and shall assist in locating a qualified collection site when traveling outside the local area.

SPS 7.11(1)(c) (c) Random selection of days when participants shall provide specimens shall begin upon enrollment and the program shall notify designated department staff that selection has begun.

SPS 7.11(1)(d) (d) The program shall maintain a nationwide toll-free access or an internet website that is operational 24 hours per day, 7 days per week to inform participants of when to provide specimens and is able to document the date and time of contacts by credential holders.

SPS 7.11(1)(e) (e) The program shall maintain and make available to the department and treatment providers through an internet website data that are updated on a daily basis verifying the date and time each participant was notified after random selection to provide a specimen, the date, time and location each specimen was collected, the results of drug screen and whether or not the participant complied as directed.

SPS 7.11(1)(f) (f) The program shall maintain internal and external quality of test results and other services.

SPS 7.11(1)(g) (g) The program shall maintain the confidentiality of participants in accordance with s. 146.82, Stats.

SPS 7.11(1)(h) (h) The program shall inform participants of the total cost for each drug screen including the cost for program administration, collection, transportation, analysis, reporting and confirmation. Total cost shall not include the services of a medical review officer.

SPS 7.11(1)(i) (i) The program shall immediately report to the department if the program, laboratory or any collection site fails to comply with this section. The department may remove a program from the approved list if the program fails to comply with this section.

SPS 7.11(1)(j) (j) The program shall make available to the department experts to support a test result for 5 years after the test results are released to the department.

SPS 7.11(1)(k) (k) The program shall not sell or otherwise transfer or transmit names and other personal identification information of the participants to other persons or entities without permission from the department. The program shall not solicit from participants presently or formerly in the monitoring program or otherwise contact participants except for purposes consistent with administering the program and only with permission from the department.

SPS 7.11(1)(L) (L) The program and laboratory shall not disclose to the participant or the public the specific drugs tested.

SPS 7.11(2) (2) Collection site administration requirements are:

SPS 7.11(2)(a) (a) The program shall locate, train and monitor collection sites for compliance with the U.S. department of transportation collection protocol under 49 CFR 40.

SPS 7.11(2)(b) (b) The program shall require delivery of specimens to the laboratory within 24 hours of collection.

SPS 7.11(3) (3) Laboratory requirements are:

SPS 7.11(3)(a) (a) The program shall utilize a laboratory that is certified by the U.S. department of health and human services, substance abuse and mental health services administration under 49 CFR 40. If the laboratory has had adverse or corrective action, the department shall evaluate the laboratory’s compliance on a case by case basis.

SPS 7.11(3)(b) (b) The program shall utilize a laboratory capable of analyzing specimens for drugs specified by the department.

SPS 7.11(3)(c) (c) Testing of specimens shall be initiated within 48 hours of pickup by courier.

SPS 7.11(3)(d) (d) All positive drug screens shall be confirmed utilizing gas chromatography in combination with mass spectrometry, mass spectrometry, or another approved method.

SPS 7.11(3)(e) (e) The laboratory shall allow department personnel to tour facilities where participant specimens are tested.