Effect on small business
None. The proposed rules impose no compliance or reporting requirements on small businesses.
Agency contact person
Al Matano, Medicaid State Plan Coordinator and Administrative Rules Coordinator
Wisconsin Medicaid Program, Department of Health Services
Statement on quality of agency data
See “Summary of Factual Data and Analytical Methodologies.”
Place where comments are to be submitted and deadline for submission
Comments may be submitted to the agency contact person that is listed above until the deadline given in the upcoming notice of public hearing. The deadline for submitting comments and the notice of public hearing will be posted on the Wisconsin Administrative Rules Website at http://adminrules.wisconsin.gov after the hearing is scheduled. RULE TEXT
SECTION 1. Chapter DHS 38 is created to read: SUBSTANCE ABUSE SCREENING, TESTING AND TREATMENT FOR CERTAIN DEPARTMENT EMPLOYMENT AND TRAINING PROGRAMS
DHS 38.01 Purpose. The purpose of this chapter is to establish a process to screen for, and, if appropriate, test for the use of controlled substances by applicants for certain employment and training programs administered by the department, and to refer individuals determined to be abusing a controlled substance to a treatment provider for a substance abuse assessment and evaluation and appropriate treatment as required by s. 49.79 (9) (d), Stats. DHS 38.02 Definitions. In this chapter:
(1) “Able-bodied adult” or “able-bodied adult without dependents” has the meaning given in s. 49.79 (1) (am), Stats. (2) “Administering agency” means single county consortia under s. 49.78 (1r), Stats.; multicounty consortia under s. 49.78 (1) (br), Stats.; tribal governing body under s. 49.78 (cr), Stats. (3) “Confirmation test” or “confirmed test” means an analytical procedure used to quantify a specific controlled substance or its metabolite in a specimen through a test that is different in scientific principle from that of the initial test procedure and capable of providing requisite specificity, sensitivity, and quantitative accuracy to positively confirm use of a controlled substance.
(4) “Controlled substance” or “substance” has the meaning given for “controlled substance” in s. 49.79 (1) (b), Stats., and 21 USC 802 (6). (5) “Department” means the department of health services.
(6) “Employment and training program” or “food stamp employment and training program” or “program” in this chapter has the meaning given in s. 49.79 (9), Stats. (7) “Food stamp program” has the meaning under s. 49.49 (1) (c), Stats. (8) “Individual” means a person who is an able-bodied adult and who has been referred to participate in an employment and training program.
(9) “Medical review officer” means a licensed medical provider employed by or providing services under contract to a drug testing vendor who has knowledge of substance abuse disorders and laboratory testing procedures and who has the necessary training and experience to interpret and evaluate an individual’s positive test result in relation to the individual’s medical history and current, valid prescriptions.
(10) “Metabolite” means a chemical present in the body when a controlled substance is being broken down through natural metabolic processes that can be detected or measured as a positive indicator that a controlled substance associated with the metabolite has been used.
(11) “Screening” means completion of a questionnaire regarding the individual’s current and prior use of controlled substances.
(12) “Specimen” means tissue, fluid, or a product of the human body capable of revealing the presence of controlled substances or their metabolites.
(13) “Treatment” means services that are conducted under clinical supervision to assist an individual through the process of recovery from controlled substance abuse and may include screening, application of approved placement criteria, intake, orientation, assessment, individualized treatment planning, intervention, individual or group and family counseling, referral, discharge planning, after care or continuing care, recordkeeping, consultation with other professionals regarding the patient’s treatment services, recovery and case management, crisis intervention, client education, employment, and problem resolution in life skills functioning.
(14) “Treatment program” means a program certified to provide treatment for controlled substance abuse as a medically managed inpatient service under s. DHS 75.10, a medically monitored treatment service under s. DHS 75.11, a day treatment service under s. DHS 75.12, an outpatient treatment service under s. DHS 75.13, a transitional residential treatment service under s. DHS 75.14, or a narcotic treatment service for opiate addiction under s. DHS 75.15. (15) “Treatment provider” or “provider” means a provider of treatment services for controlled substance abuse certified by the department under the provisions of ch. DHS 75, a provider certified under s. 440.88, Stats, or other licensed professional who meets the requirements of SPS 163. DHS 38.03 Information about the requirement for controlled substance abuse screening, testing, and treatment. An administering agency shall provide information in a format approved by the department to any individual who expresses interest in or is referred to participate in an employment and training program to explain the requirement for participants in certain employment and training programs to undergo screening, testing, and treatment for abuse of controlled substances.
DHS 38.04 Administering a controlled substance abuse screening questionnaire to determine possible substance abuse. (1) WHO MUST COMPLETE A SCREENING QUESTIONNAIRE. An administering agency shall administer a controlled substance abuse screening questionnaire approved by the department to any individual who is referred to participate in an employment and training program.
(2) EFFECT OF FAILING TO COMPLETE SCREENING QUESTIONNAIRE. The applicant is required to answer all questions on the screening questionnaire, sign and date the questionnaire, and submit it to the administering agency for his or her application for an employment and training program to be complete. An individual who fails to submit a completed screening questionnaire is not eligible to participate in the employment and training program, and the administering agency shall not refer the individual to participate in the program. An individual denied eligibility for an employment and training program for failure to complete a screening questionnaire may complete a screening questionnaire at any time to become eligible for the program subject to this chapter.
(3) EFFECT OF SUCCESSFULLY PASSING THE SCREENING QUESTIONNAIRE. An individual whose answers to the screening questionnaire do not indicate possible substance abuse of a controlled substance has fully satisfied the requirements of this chapter and may participate in an employment and training program subject to this chapter without further screening, testing, or treatment.
DHS 38.05 Requiring a test for the use of a controlled substance. (1) WHO MAY BE REQUIRED TO UNDERGO DRUG TESTING. An individual whose answers on the screening questionnaire indicate possible abuse of a controlled substance shall be required to undergo a test for the use of a controlled substance.
(2) NATURE OF TESTING REQUIRED. Testing shall consist of laboratory analysis of a specimen collected from an individual by a drug testing vendor. The department shall provide to each administering agency a list of all controlled substances or metabolites of controlled substances that must be included in the test and cutoff levels for the initial test and cutoff levels for a confirmation test that may be used. The department may add or delete controlled substances or metabolites that must be included in the laboratory test to reflect changes in pre-employment drug testing practices of Wisconsin employers. A positive test result on the initial test shall be confirmed through a confirmation test from the original specimen collected from the individual.
(3) CONTRACT FOR TESTING SERVICES. Subject to the department’s approval, the administering agency may contract with a qualified drug testing vendor to collect a specimen, carry out laboratory analysis of the specimen, store the specimen for confirmatory testing if required, complete confirmatory testing, and provide review by a medical review officer. The department may require the administering agency to use a specific testing service procured through state contracting if the department determines that volume discounts or other preferential pricing terms can be achieved through a statewide contract.
(4) REFUSAL TO SUBMIT TO A TEST. An individual refuses to submit to a test if the individual does any of the following:
(a) Fails or refuses to provide a specimen during a scheduled drug testing appointment.
(b) Fails or refuses to appear for a scheduled drug test without good cause.
(c) Fails or refuses to complete a form or release of information required for testing, including those required by the drug-testing vendor that permit the drug-testing vendor to report test results to the department or administering agency.
(d) Fails or refuses to provide a valid specimen for testing.
(e) Fails or refuses to provide verification of identity to the testing vendor.
(f) Fails or refuses to cooperate with the medical review officer, including refusal to complete an interview or answer questions or refusal to provide records necessary to demonstrate possession of a valid prescription.
(5) EFFECT OF REFUSAL TO SUBMIT TO A TEST. An individual who refuses to submit to a test under sub. (4) is ineligible to participate in the employment and training program until the individual submits to a test. The administering agency may direct an individual who has refused to submit to a test under sub. (4) and subsequently agrees to submit to a test to undergo drug testing on a random basis at any time within 10 business days after the individual agrees to submit to a test. The individual may not participate in an employment and training program until the individual undergoes a test for the use of a controlled substance and test results have been reported to the administering agency.
(6) REQUIREMENT FOR A CONFIRMATION TEST. If an individual tests positive for the use of a controlled substance, the drug testing vendor shall perform a confirmation test using the same specimen obtained for the initial positive drug test. All test results that are non-negative shall be interpreted as positive or negative by a drug testing vendor’s medical review officer who shall be responsible for determining the presence of a controlled substance.
(7) ACCEPTING TEST RESULTS FROM ANOTHER PROGRAM. Results of a drug test performed by another state program, including a work experience program under ss. 49.162, 49.36, or 108.133, Stats., an income and maintenance program under 49.45 (23) (g), Stats., or a drug test carried out by the Wisconsin department of corrections, can be used by an administering agency to determine whether to refer an individual to treatment if the prior test results are provided directly to the administering agency, all the controlled substances and metabolites required by the department to be tested under this chapter are included in the prior test results, and the test occurred within the previous 90 days. (8) EFFECT OF A NEGATIVE TEST. An individual who undergoes a test for the use of a controlled substance under s. DHS 38.05 and tests negative for use of a controlled substance or tests positive for use of a controlled substance but provides evidence of a valid prescription for each controlled substance for which the individual tests positive will have fully satisfied the requirements of this chapter and may participate in an employment and training program without further screening, testing, or treatment. (9) EFFECT OF A POSITIVE TEST. An individual whose test results are positive for a controlled substance or metabolite tested and fails to present evidence of a valid prescription for the controlled substance shall be required to participate in treatment under s. DHS 38.06.
