Place Where Written Comments May be Submitted

Written comments may be submitted at the public hearing or submitted to the contact person listed below. Comments may also be made using the Wisconsin Administrative Rule Website at http://adminrules.wisconsin.gov.

Deadline for Comment Submission

The deadline for submitting comments to the Department is 4:30 p.m. on August 8, 2006.

The Department proposes to create ch. HFS 43 to address training requirements for child protective caseworkers and supervisors involved in the access, initial assessment, and ongoing services delivered to children and families in child abuse and neglect cases.

The Department proposes to establish statewide minimum standards for pre-service training, foundation training, ongoing training, and supervisory training of child protective services staff. This training will include recognizing and responding to domestic violence. In addition proposed ch. HFS 43 creates a monitoring process that allows the Department to review and approve training plans submitted by affected agencies and monitor compliance by individual staff. The proposed rule will apply to the Department's Bureau of Milwaukee Child Welfare (BMCW), county human or social service departments that provide child protective services, and private child welfare agencies licensed under s. 48.60, Stats., and ch. HFS 54 which contract with the Department or county human or social services departments to provide child protective services.

The proposed creation of ch. HFS 43 will not have an affect on the Memorandum of Understanding between the Department and the Department of Corrections that allows the intake training required under s. 48.06 (1), Stats., for intake caseworkers to be provided by the Department of Corrections and the Wisconsin Juvenile Court Intake Association under Ch. DOC 399.

Section 48.981 (8) (d) 2., Stats., requires the Department to make training programs available for child protective services caseworkers and supervisors to complete training in child abuse and neglect protective services, unborn child abuse protective services, and on recognizing and appropriately responding to domestic abuse. Section 48.981 (8) (d) 2., Stats., further requires that the Department promulgate rules to monitor compliance with the training requirement. To implement the requirements under s. 48.981 (8) (d) 2., Stats., and to promote statewide consistency, the Department proposes rule requirements for pre-service, foundation, and in-service training for those individuals required under s. 48.981 (8) (d) 1., Stats.

Pre-service training is a web-based curriculum developed by the Training Partnerships that may be delivered by an alternative method. Pre-service training is required for child protective services caseworkers and, in certain circumstances, supervisors who begin employment after the effective date of the proposed rule. Foundation training is a curriculum approved by the Department and identified as essential skills and applications training for child protective services caseworkers and supervisors. It is required to be completed within two years after employment as a child protective services caseworker. In-service training consists of continuing education in child welfare and is taken after the completion of pre-service training. This training requirement is ongoing during the term of employment of child protective services caseworkers and supervisors.

Except in Milwaukee County, child protective services are the legislated responsibility of county human services or social services departments (county department). In Milwaukee County, child protective services are the responsibility of the Department. The proposed rule will apply to child protective services staff of the Department and county human services or social services departments and to child welfare agencies that contract with the Department or county department to provide child protective services. Child placing agencies that are not under contract with the Department or a county department do not provide child protective services. Currently, there are 56 licensed child welfare agencies in Wisconsin. To date, the proposed rules will affect only the 2 agencies that are under currently under contract with the Department to provide child protective services. There are no child placing agencies under contract with a county department to perform child protective services.

In the event that child placing agencies meeting the definition of small businesses under s. 227.114 (1), Stats., contract with either the Department or a county department, the child placing agency will incur training costs for staff who perform child protective services. The costs incurred are a result of the agencies' and staff responsibilities to comply with s. 48.891 (8) (d) 1., Stats., not the proposed rules. The only cost to the agency is for staff time to participate in training. Agencies are not required to develop or conduct training under the proposed rules or s. 48.981 (d) 1., Stats.; however, under the proposed rule, agencies have that option as it is related to pre-service training; otherwise pre-service training is available as web-based training. If an agency decides to conduct its own pre-service training, the costs will extend beyond opportunity costs to possibly include facility rental, trainer fees, and training materials.

Pursuant to the forgoing analysis, the proposed rule will affect any licensed child placing agency that is under contract with the Department or a county department, including those that are small businesses, to provide child protective services. However, the proposed rule will not have a significant economic impact on any of those businesses. In addition, the Department does not believe that the proposed rules will increase costs implicitly imposed under s. 48.981(8) (d) 1., Stats.

Small Business Regulatory Coordinator

Rosie Greer

Greerrj@dhfs.state.wi.us

608-266-1279

Proposed rule HFS 43 was developed with significant involvement of the Department, the Child Welfare Training Partnerships, county human services and social services departments, and private agencies. Child protective services agencies are required under s. 48.981(8)(d), Stat., to provide training, which is approved by the Department, on the investigation and treatment of child abuse and neglect. Most agencies currently provide and pay for that training. The Department, under s. 48.981(8)(d), Stat., is required to develop rules to monitor compliance with the training requirement.

The costs arising from proposed HFS 43 for monitoring compliance with the statutory requirement for training may be minimal, and can be absorbed by the affected agencies. The Department believes that the information which agencies will be required to enter into e-WiSACWIS or into personal or other records and make available to the Department for monitoring will require minimal time or effort.

A copy of the full text of the rules and the fiscal estimate can be obtained at no charge from the Wisconsin Administrative Rules Website at http://adminrules.wisconsin.gov or by contacting the person listed below.

Christopher Sieck
Statewide Training Coordinator
Division of Children and Family Services
DHFS/DCFS
P.O. Box 8916
Madison, WI 53708-8916
crsieck@wisc.edu

NOTICE IS HEREBY GIVEN that pursuant to Sections 49.45 (10), 51.03 (4) (f), (g), and (h) and (5), 51.04, 51.42 (7) (a) and (b), and 227.11 (2) (a), Stats., and interpreting 49.45 (10), 51.04, 51.03 (4) (f), (g), and (h) and (5), 51.42 (7) (a) and (b), and 632.89, (2) Stats., Stats., to repeal HFS 105.22 (1) (d) ; to amend HFS 105.22 (1) (c), 105.22 (2) (title), (a) and (b), and (3), 107.13 (2) (a) (intro.) and 1. (intro.), 107.13 (2) (a) 3. a. and b, 4. a. to f., 6., 7. , (b) 1., 4. a. to d., (c) 4. and 6., and (d) 2.; and to create ch. HFS 35, 105.22 (1) (bm), 107.13 (2) (a) 1. a. to g. and (2m) rules relating to outpatient mental health clinics and affecting small businesses.

Monday, July 31, 2006 10:00 a.m. to 12:00 p.m. & 1:00 p.m. to 3:00 p.m.

Mendota Mental Health Institute- Conference Center

301 Troy Drive

Madison, WI

Tuesday, August 1, 2006 10:00 a.m. to 12:00 p.m. & 1:00 p.m. to 3:00 p.m.

North Central Health Care Facilities- Lakeview Center

1000 Lakeview Drive

Wausau, WI

Thursday, August 3, 2006 10:00 a.m. to 12:00 p.m. & 1:00 p.m. to 3:00 p.m.

Waukesha Regional Office, Room 151

141 NW Barstow St.

Waukesha, WI

The hearing site is fully accessible to people with disabilities. If you are hearing impaired, do not speak English or have circumstances that might make communication at a hearing difficult; you require an interpreter or a non-English large print or taped version of the proposed rules, contact the person at the address or telephone number given below at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.

Place Where Written Comments May be Submitted

Written comments may be submitted at the public hearing or submitted to the contact person listed below. Comments may also be made using the Wisconsin Administrative Rule Website at http://adminrules.wisconsin.gov.

Deadline for Comment Submission

The deadline for submitting comments to the Department is 4:30 p.m. on August 10, 2006.

The current rules for outpatient mental health clinics are under ss. HFS 61.91 to 61.98. These regulations address procedures for certification; required personnel; service requirements; and denial, involuntary termination or suspension of certification for outpatient mental health clinics; clinical supervision, clinical collaboration, and clinical consultation; written authorization of psychotherapy by a physician; initial assessments of clients and development of treatment plans; progress notes; discharge summaries; and record keeping. In addition to these requirements, these rules require clinics to ensure continuity of care for persons with mental disorders or alcohol and drug abuse problems by rendering or arranging for the provision of specified services, including but not limited to, residential facility placement; aftercare for continuing treatment in the community to help the patient maintain and improve adjustment following a period of treatment in a facility; and emergency care. Sections HFS 61.91 to 61.98 have not been comprehensively reviewed and rewritten since May 1981.

Section HFS 105.22 provides the requirements for medical assistance certification of psychotherapy providers, staffing of outpatient facilities, and medical assistance reimbursement for outpatient psychotherapy services. Section HFS 107.13 (2) details the medical assistance requirements for covered services for outpatient psychotherapy services, prior authorization and other limits and procedures, and non-covered services under the medical assistance program.

Section HFS 105.22, was last revised in 1991 and s. HFS 107.13 (2) has not been comprehensively reviewed and rewritten since March 1986. For outpatient mental health services, Medicaid reimburses psychiatrists, Ph.D. psychologists, advanced practice nurse prescribers with a psychiatric specialty, and outpatient mental health clinics that meet the requirements under proposed s. HFS 35.04 (2) (c). Proposed s. HFS 35.04 (2) (c) requires at least one mental health professional to be available to provide outpatient mental health services at least 37.5 hours per week and at least one mental health professional who is a psychiatrist, psychologist or advanced practice nurse prescriber who provides outpatient mental health services to consumers of the clinic at least 4 hours per month. This is not a change from current rules.

The Department proposes to repeal ss. HFS 61.91 to 61.98 and create ch. HFS 35 to do all the following:

Eliminate burdensome provisions that do not help to lead to the desired outcomes for persons who receive outpatient mental health services treatment.

Codify, in rule, the statewide variances that have been issued by the Department to outpatient mental health providers.

Increase flexibility for clinic operations including allowing certified clinics to alternatively meet the standards of one of several national accrediting bodies when applying for renewal certification; permitting clinics to provide either clinical supervision, clinical collaboration or clinical consultation as part of the clinic's quality improvement process; allowing mental health professionals to provide the recommendation for psychotherapy for consumers who are not medical assistance recipients; allow persons other than a physician or psychiatrist to provide mental health services; and allow clinics to provide psychotherapy services in the clinic, a branch office, or alternate location.

Establish certification and enforcement processes that are similar in both organization and content to the certification and enforcement processes set out in rules for other certified community mental health programs.

Clarify the minimum staff requirements for a clinic; and the role of professional staff of a clinic, including for persons who prescribe medication within a clinic.

Clarify record keeping requirements for psychotherapy notes.

Establish training requirements for clinic staff.

Add or expand language on admission, assessment, consent for treatment, treatment planning and medication administration; standards for electronic records, and consumer rights.

Incorporate the provisions under s. 50.065, Stats., and chs. HFS 12 and 13 that require caregiver background checks on clinic staff and reporting of clinic staff misconduct.

Increase consumers' participation in treatment planning resulting in treatment that is recovery-based and consumer-directed.

The Department proposes to revise ss. HFS 105.22 and 107.13 (2), to ensure that the language in these rules are consistent with the language in the proposed ch. HFS 35 and that these rules current practices and needs, such as, indexing the number of visits and dollar amounts before a prior authorization is required. Covered services are not proposed to change.

The Department is required under s. 51.42 (7) (b), Stats., to promulgate rules which govern the administrative structure deemed necessary to administer community mental health services; prescribe standards for qualifications personnel; prescribe standards for quality of professional services; govern eligibility of patients to the end that no person is denied service on the basis of age, race, color, creed, location or inability to pay; and to establish medication procedures to be used in the delivery of mental health services. Section 51.04, Stats., allows treatment facilities to apply to the Department for certification of the facility for the receipt of funds for services provided as a benefit to medical assistance recipients under s. 49.46 (2) (b) 6. f., Stats., or to a community aids funding recipient under s. 51.423 (2), Stats., or provided as mandated private insurance coverage under s. 632.89 (2), Stats. Section 51.42 (7) (a), Stats., requires the Department to review and certify county departments of community programs and community mental health programs to assure that the county department and programs are in compliance with the purpose and intent of s. 51.42 Stats., to enable and encourage counties to develop a comprehensive range of services offering continuity of care; to utilize and expand existing governmental, voluntary and private community resources for provision of services to prevent or ameliorate mental disabilities, including mental illness, developmental disabilities, and alcoholism and drug abuse; to provide for the integration of administration of those services and facilities organized under s. 51.42, Stats., through a county department of community programs; and to authorize state consultative services, review and establishment of standards and grants-in aids for such program of services and facilities.

The rules promulgated under s. 51.42 (7) (b), Stats., are currently codified under ss. HFS 61.91 through 61.98. These rules initially were effective on January 1, 1980 with the most recent revisions effective on May 1, 1981. The rules were written primarily for public mental health clinics, which were assumed to have access to an interdisciplinary team (e.g., psychiatrist, nurse, psychotherapists, etc.). During the past 25 years, many private providers have sought to become a certified outpatient mental health clinic in order to bill insurance companies for services provided under s. 632.89 (2), Stats.

Under the current regulations, a certified clinic must include a psychiatrist or a licensed psychologist, as well as a master's level social worker or a registered nurse with a master's degree with a psychiatric specialty. Other mental health professionals with training and experience in mental health may be employed as necessary, including persons with master's degrees and course work in clinical psychology, psychology, school psychology, counseling and guidance, or counseling psychology. The clinic is required to ensure continuity of care for persons with mental disorders or alcohol and drug abuse problems by rendering or arranging for the provision of and documentation of services such as evaluation to determine the extent to which the patient's problem interferes with normal functioning; residential facility placement for patients in need of a supervised living environment; partial hospitalization to provide a therapeutic milieu or other care for non–residential patients for only part of a 24–hour day; pre–care prior to hospitalization to prepare the patient for admission; aftercare for continuing treatment in the community to help the patient maintain and improve adjustment following a period of treatment in a facility; emergency care for assisting patients believed to be in danger of injuring themselves or others; rehabilitation services to achieve maximal functioning, optimal adjustment, and prevention of the patient's condition from relapsing; habilitation services to achieve adjustment and functioning of a patient in spite of continuing existence of problems; supportive transitional services to provide a residential treatment milieu for adjustment to community living; professional consultation to render written advice and services to a program or another professional on request. The current rule also requires the clinic to provide a minimum of 2 hours each of clinical treatment by a psychiatrist or psychologist and a social worker for each 40 hours of psychotherapy provided by the clinic. Specified personnel employed by a clinic are required to be under the supervision of a physician or licensed psychologist who meets the requirements of s. HFS 61.96 (1) (a) for a specified time relating to the number of hours of psychotherapy provided and frequency of a consumer's treatment sessions. The current rule further requires that each consumer receive an initial assessment and have a treatment record that contains a treatment plan, progress notes and discharge summary.

Through this order, the Department proposes to repeal ss. HFS 61.91 through 61.98 and create ch. HFS 35. Private and public clinics have reported difficulty in meeting the requirement of having a psychiatrist or psychologist to work in the clinic or to accept referrals from the clinic. To address this issue, the Department is adding 2 options for minimum staffing requirements that do not require a psychiatrist or psychologist to be a staff member of the clinic. The proposed rule also will respond to the issue of clinical supervision by a psychiatrist or psychologist. Many clinics report that this oversight model is costly, and that the process does not yield meaningful feedback to staff. To address this issue, the proposed rules will permit clinical collaboration, which is a process by which staff within the clinic review the treatment effectiveness and together identify possible changes in treatment approaches, staff training, policy changes, etc., as an alternative to clinical supervision.

The private sector outpatient mental health clinics that will be affected by the proposed rules are those that contract with county departments under s. 46.23, s. 51.42 or 51.437, Stats., to implement its community mental health services programs or to receive reimbursement for outpatient mental health services from the Wisconsin medical assistance program or private insurance under s. 632.89, (2) Stats. As of June 2006, there are 837 certified outpatient mental clinics located throughout Wisconsin with the largest concentrations in the metropolitan areas of the central and southeastern parts of the state. The majority, 92 percent (772 clinics) are privately owned non-profit or for-profit entities. The remaining 8 percent are government owned. The privately owned clinics (as represented in the WABHS survey and assumed by the Department to be representative of the “average" clinic) are staffed primarily by licensed clinical social workers, licensed marriage and family therapists, or licensed professional counselors and support staff who provide approximately 788 hours of mental health services (and 237 hours of psychotherapy services) per week to children, adolescent, adults, and senior adults of various degrees of mental health issues and diagnoses, such as disorders relating to legal and illicit drug use; eating and sleeping disorders; depressive, bipolar, anxiety disorders; and personality disorders. Staff of these clinics also may include medical doctors, psychiatrists, psychologists, advanced practice nurse prescribers, persons with a master's in social work, persons with a master's of science, and substance abuse counselors. The current and proposed rules do not apply to or individual practitioners licensed by the Department of Regulation and Licensing to provide psychotherapy; these individuals can apply their trade as permitted by their license without being certified as an outpatient mental health clinic.

More than 10% of the certified outpatient clinics that will be affected by the proposed rules may be small businesses as defined under s. 227.11 (2) (a), Stats., as the average private clinic may be independently owned and operated and employs less than 25 employees or has gross annual revenues under $5,000,000. As discussed below, the Department believes that the proposed rules will decrease costs to the average outpatient mental health clinic. The cost elements discussed in this analysis are staffing; documentation and reporting; recordkeeping; and the certification process. Any costs other than those specified in this analysis appear to be negligible and are inherent in the conduct of clinic business or are the result of required compliance with ch. 51, Stats, as a mental health provider.

The requirements in the proposed rule relating to reporting, record keeping, and the certification process and the associated costs are unchanged compared to the current rule, except that under the renewal certification process clinics that are accredited by nationally recognized bodies may request a waiver of part of the bi-annual process. In addition clinics, under specified conditions, may also be certified as exceptional clinics. Certification for exceptional clinics renews every three years. A grant of a waiver of certification requirements or receipt of exceptional certification may reduce a clinic's costs. Although the rules require additional specificity in regard to documentation in the content of assessment and treatment plan records, the costs of documentation are not expected to increase. There is no data or basis that indicates that the time involved completing the documentation of the assessment and treatment plan will increase. There are no capital costs imposed by the proposed rules.

The proposed rules are minimum requirements that give maximum flexibility under regulations that are required by statute and the intent and purpose of s. 51.42, Stats. The Department believes that the benefits of the proposed rules will outweigh any costs that they may impose because the proposed rules will benefit both consumers and clinics by improving access, protection, and quality of care and quality of life to consumers receiving or seeking mental health services and will reduce costs and the burden of regulation on outpatient mental health clinics that choose to be certified. For example, under the existing rule, services must be provided at the clinic office or a branch office identified in the certificate issued by the Department unless it is demonstrated to the Department that there are specific barriers to care if services are not delivered outside the clinic. In addition, there currently are limitations in the use of a branch office, such as branch offices must be located within 30 miles of the main office and all treatment records must be stored in the main office. In the proposed rule, service delivery will be more flexible as clinics will be allowed to offer services where needed without having to seek additional certification and other limitations on the use of branch offices are also removed. This should increase the profitability of the clinic or reduce the costs of clinics by increasing the numbers of consumers that may be served and eliminating any costs that may be incurred in certifying and maintaining a branch office. The existing rules were written for comprehensive, publicly operated clinics. The proposed rules have eliminated the requirements that clinics provide, or provide access to residential facilities, partial hospitalization, pre-care for hospitalization, rehabilitation services, habilitation services, and supportive transitional services. The services under the proposed rule allow for services to be provided, contracted or provided by agreement. It is assumed that the therapist would expedite services as required for individual clients. The time and cost of procuring these services or agreements has been eliminated. The existing rule requires that every consumer have a referral from a physician for psychotherapy services. The proposed rule allows a licensed therapist to make the recommendation for therapy if the consumer is a non-Medicaid recipient, which reduces cost to the consumer and increases accessibility to services. This would be an estimated cost savings to the consumers (who are not Medicaid recipients) of $100. However, recommendations for psychotherapy for Medicaid recipients must be by a physician as required under s. 49.46 (2) (b) 6. f., Stats.

Personnel requirements have been changed to allow alternatives to the existing rule and to recognize and reduce a clinic's staffing costs and the difficulty clinics reportedly have in obtaining staff. Existing rules require a minimum of two hours of clinical treatment by a psychiatrist or psychologist for each 40 hours of psychotherapy provided in a clinic. The proposed rule eliminates this requirement with an estimated minimum savings of $19,000 per year for the small clinic. Larger clinics likely will save proportionally increased amounts. As reported in the WABHS survey, the average clinic already meets the minimum staffing requirements under the proposed rules. These clinics have sufficient numbers of staff working sufficient number of hours to meet the current and proposed minimum staff requirements. Although the Department estimates that approximately 150 currently certified clinics may not currently meet the minimum staff requirements or the proposed regulations, the Department believes that these and all other clinics will be able meet one of the options for minimum staffing without difficulty and without increased costs. The proposed rules provide two options for minimum staffing that do not require a psychiatrist or psychologist to be a staff member of the clinic, which acknowledges the shortage of psychiatrists and psychologists. A third option for minimum staffing is similar to the current regulations, but is more stringent in that it requires staff to be available to provide psychotherapy at least 37.5 hours per week, but is less stringent in that it requires only four hours of direct services from a psychiatrist, psychologist or advanced practice nurse prescriber. The proposed rule permits existing clinics to be “grandfathered" for a two-year period of time, to comply with the minimum staffing requirements in the proposed rules. If a clinic submits data regarding its reasonable, bona fide efforts to comply with the minimum staffing requirements, then the Department may grant a waiver request regarding the minimum staffing requirements for the clinic. The proposed staffing requirements may be met either through contract or employment. Also, under the existing rule clinics are required to provide supervision by a psychiatrist or psychologist at the rate of 30 minutes for every 40 hours of therapy provided. The current rules require clinics to have clinical supervision from a psychiatrist or psychologist. As reported in the WABHS survey the oversight model type most used by clinics is clinical supervision from a psychiatrist or psychologist which costs the average clinic approximately $701 per month and $593 per month, respectively. The proposed rules will allow clinical collaboration, which is a process by which staff within the clinic review the treatment effectiveness and together identify possible changes in treatment approaches, staff training, policy changes, etc., as an alternative to clinical supervision. Clinics that already use clinical collaboration (which is currently allowed under a statewide waiver) have an average reported cost of $551 per month. Based on the average costs for clinical supervision versus clinical collaboration, the cost-savings for using clinical collaboration is estimated to be approximately $500 to $1800 per year. The average clinic has annual gross revenues of $593,000 per year (based on the revenue information reported in the WABHS survey). For the average clinic, the estimated cost savings of $19,000 plus $1,800 per year represent a 3.5 percent potential decrease in costs for a clinic if the clinic chooses clinical collaboration as an oversight model.

The proposed rules include waiver and variance provisions to allow clinics to use alternatives to rules when compliance is difficult because of availability of staff or remote geographic locations or strict enforcement of the requirement would result in unreasonable hardship on the outpatient clinic or consumer. A waiver or variance can also be used if there are more creative ways to meet a requirement or if “deemed status" from a national accrediting organization is recognized, which would eliminate duplicate costs to the agency for staff time to prepare for survey by both the national accrediting organization and Department staff. A waiver or variance would not be allowed if quality of care is adversely affected. The proposed rules allow for a provisional certification for a clinic that has no major deficiencies but has one or more minor deficiencies for up to one year, a regular certification for a clinic that has no major or minor deficiencies for up to two years, and an exceptional certification for a clinic that has no major or minor deficiencies and meets additional standards for up to three years.

Pursuant to the foregoing analysis, the proposed rules may decrease costs to the small businesses affected by the proposed rules. The proposed rules will affect a substantial number of small businesses, but will not have a significant economic impact on those businesses. Further, any increase in operating costs or decreases in revenues that may be caused by the proposed rules are expected to be less than the 2005 Consumer Price Index of 3.4%.

Small Business Regulatory Coordinator

Rosie Greer

608-266-1279

State fiscal effect - The rule does not mandate any changes to fees charged to outpatient mental health clinics, increase the number of State surveyors, or otherwise create new or different requirements for the department. The rule does not change the provider requirements for who may bill Medicaid for outpatient services. In addition, the rule does not propose to change the services that are Medicaid reimbursable as an outpatient mental health service. Therefore, no increases or decreases are anticipated in the Medicaid budget as a result of the rule changes.

Summarized below is the analysis of the potential fiscal impact the rule may have on county and private sector outpatient mental health clinics:

1. The proposed rule has no specific space, design, or organizational requirements for outpatient mental health clinics. The capital costs for the clinic are based on individual preferences, such as the number of staff, staff service time, and location of offices. The number of support staff would also be related to the size of the operation.