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DMHSAS – DQA Numbered Memo 2009-08
Variance response plan DHS-34

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 State of Wisconsin
Department of Health and Family Services
Division of Mental Health and Substance Abuse Services

DMHSAS – DQA Numbered Memo 2009-08
Date: November 2, 2009
Index Title: Variance response plan DHS-34

To: Listserv

Area Administrators / Assistant Administrators
Bureau Directors
County Departments of Human Services Directors
Tribal Chairpersons / Human Service Coordinators
Community Mental Health Providers

John Easterday, Ph.D., Administrator
Division of Mental Health and Substance Abuse Services

Otis Woods, Administrator
Division of Quality Assurance

Subject: Variance for response plan and crisis plan approval in Certified Emergency Mental Services Programs Chapter DHS 34

Document Summary

1. Purpose

The purpose of this memo is to provide variances for regulatory relief that will allow for greater flexibility in meeting the needs of consumers without sacrificing the quality of services provided under Wisconsin Administrative Code Chapter HFS 34 (hereafter DHS 34).  This is in regards to response plans and crisis plans as described in DHS 34.

 DHS 34 governs Wisconsin certified Emergency Mental Health Service Programs.  Currently, DHS 34.23 (5) (b) states, “The response plan shall be approved as medically necessary by a mental health professional qualified under DHS 34.21 (3) (b) 1. or 2. either before services are delivered or within 5 days after delivery of services, not including Saturdays, Sundays or legal holidays.”

DHS 34.23 (7) also requires a program to prepare a crisis plan for a person who is found to be at high risk for recurrent mental health crisis.  DHS 34.23 (7) (d) also requires crisis plan approval by a mental health professional qualified under DHS 34.21 (3) (b) 1. or 2.

2. Background

2001 Wisconsin Act 80 (WI Act 80) was published May 1, 2002 and enacted April 17, 2002.  The Wisconsin Legislature passed WI Act 80, granting independent, non-supervised license status to individuals practicing psychotherapy who possessed the appropriate credentials.  These included: Master’s level Social Workers, Professional Counselors, Marriage and Family Therapists, and select Music, Art and Dance Therapists.

For the purpose of the variances, “licensed treatment professionals” means an individual licensed as a physician under s. 448.03, Stats., who has completed a residency in psychiatry; a psychologist or a private practice school psychologist licensed under ch. 455, Stats., a marriage and family therapist licensed under s. 457.10 or 457.11, Stats., a professional counselor licensed under s. 457.12 or 457.13, Stats., an advanced practice social worker granted a certificate under s. 457.08 (2), Stats., an independent social worker licensed under s. 457.08 (3), Stats., or a clinical social worker licensed under s. 457.08 (4), Stats.; and includes any of these individuals practicing under a currently valid training or temporary license or certificate granted under applicable provisions of ch. 457, Stats.  An advanced practice nurse licensed under ch. 441, who holds a certificate as an adult psychiatric and mental health nurse practitioner or a family psychiatric and mental health nurse practitioner from the American Nurses Credentialing Center.  “Licensed treatment professional” does not include an individual whose license or certificate is suspended, revoked, or voluntarily surrendered, or whose license or certificate is limited or restricted, when practicing in areas prohibited by the limitation or restriction.

The “Crisis Network,” which consists of crisis intervention specialists from all 72 counties, has met quarterly since 1996, and has supported a change in the rule that permits these licensed professionals to have a greater role in crisis and response plans.  The Crisis Network has advocated the opinion that psychiatrists and psychologists would better serve the individuals with severe mental illness if they were freed up to actually see clients who need and want their services instead of spending valuable time reviewing the work of highly trained, competent and independent professionals.  Also, psychiatrists and psychologists would be available for consultation as needed.  Clients of the Crisis Response Program would see very little change, if at all, because the “review” of response plans and crisis plans is most commonly done without the client being present.  In some cases this change would actually provide more time for the psychiatrist or psychologist to be part of the planning and review process as indicated.

3. Variance Conditions

DHS 34.04 (1) (a) authorizes the Department to grant a variance under certain circumstances and requires the Department to determine that “granting the waiver would not diminish the effectiveness of the services provided by the program, violate the purposes of the program or adversely affect the clients’ health, safety and welfare, and [at least] one of the following apply:

  1. Strict enforcement of a requirement would result in unreasonable hardship of the provider or on a participant.
  2. An alternative to the rule, including a new concept, method, procedure or technique, new equipment, new personnel qualifications or the implementation of a pilot project is in the interests of better participant care or program management.

The variances described in this memo will not adversely affect clients served because in practice response plans and crisis plans are formulated and reviewed by a licensed treatment professional with a masters’ degree, operating within the scope of their experience and practice area.  The variances are also very clear that it is essential to have the necessary backup and consultation available to make the best decisions regarding emergency treatment and a safe disposition.

Variance # 1

  • This variance permits “licensed treatment professionals” to approve response plans under DHS 34.23 (5) (b).  Therefore the list of mental health professionals qualified under DHS 34.21 (3) (b) that may approve response plans expands to include (b) 1., 2., 3., 4., 5., 6., and 7.
  • The time frame for response plan approval will expand from 5 days after the delivery of services required in DHS 34.23 (5) (b), to 14 days after the delivery of services.

Variance # 2

This variance permits “licensed treatment professionals” to approve crisis plans as required in DHS 34.23 (7) (d).  The list of mental health professionals qualified under DHS 34.21 (3) (b) that may approve crisis plans expands to include (b) 1., 2., 3., 4., 5., 6., and 7.


DHS 34.21 (4) (b) states that the program shall have on staff a clinical director or similarly titled person qualified under sub. (3) (b) 1. or 2. who shall have responsibility for the mental health services provided by the program.  DHS 34.21 (2) states that each employee shall have the ability and emotional stability to carry out his or her assigned duties.  DHS 34.21 (4) (b) 2. states either the clinical director or another person qualified under sub. (3) (b) 1. to 8 who has been given the authority to act on the director’s behalf shall be available for consultation in person or by phone at all times the program is in operation.

It is important that the clinical staff have access to the backup and consultation that is necessary to help make the best decisions with regard to a safe disposition.  The clinical director is responsible for choosing competent designees, and establishing decision guidelines and protocols for licensed clinicians to make best practice judgments.  These designees must possess demonstrated competence, training, experience and judgment to provide consultation to crisis responders and other agencies providing direct crisis services.  These guidelines and protocols must stress the importance that licensed professionals must operate within the scope of their “practice” and have demonstrated clinical education and clinical experience in their practice area.  It is also important to establish guidelines for when it is reasonable to access consultation from the psychiatrist or psychologist.  Guidelines need to establish the identification of clinical issues, including incidents that pose a significant risk of an adverse outcome for the consumer.  If this level of consultation is not available by phone or on site, then it may be necessary to seek medical/psychiatric consultation at an ER/hospital, which may result in admitting the consumer.

When reviewing Response Plans and Crisis Plans, after service provision to the consumer, it is important to determine if proper protocols, guidelines and procedures were followed.  These reviews should inform supervision, training topics and policy changes.

Note: The two variances that deal with  DHS 34.21 (3) (b) 1-7 add these licensed clinical staff to the list of qualified staff who may approve response plans and crisis plans.  DHS 34.21 (3) (b) 8. are master’s level clinicians that do not meet the licensure requirements to be a “licensed treatment professional”, and therefore are not included in the group that may approve response and crisis plans.  However, they are still included in the group that can provide on site or phone consultation as indicated above.

The Department has the authority to revoke any variance if, for example, the Department determines that the needs of the consumers are not being met with continued approval of this variance; or, if the health, safety, or welfare of any client is jeopardized.

Note: The granting of this variance does not constitute granting of an exception of a Medical Assistance (Title XIX) requirement.  The Division of Mental Health and Substance Abuse Services and the Division of Quality Assurance do not have authority to grant exceptions of federal requirements under Medical Assistance.  The Division of Health Care Access and Accountability will be issuing a Medicaid Update which will coincide with these variances of DHS 34.

Regional Office Contact:
Area Administration
DQA Behavioral Health Certification Surveyor

Central Office Contact:
George Hulick, LCSW
Telephone: (608) 266-0907
Fax: (608)261-7800

Mark Hale, Section Chief
Behavioral Health Certification Section
Telephone: (608) 264-9894

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Last Revised:  January 29, 2014