Rule-Making Notices (Hearing Notices)

Madison, WI

Thursday, May 24, 2007 at 1:30 p.m.

DNR SER HQ, Room 141

2300 N. Martin Luther King Jr. Dr.

Milwaukee, WI

NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please contact Robert Eckdale at [phone] or by e-mail at [e-mail] with specific information on your request at least 10 days before the date of the scheduled hearing.The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. (Search this Web site using the Natural Resources Board Order Number AM-32-05.) If you do not have Internet access, a personal copy of proposed rule and supporting documents, including the fiscal estimate may be obtained from Robert Eckdale by calling [phone] or by writing him at Bureau of Air Management, P.O. Box 7921, Madison, WI 53707.

Written comments on the proposed rule may also be submitted to Robert Eckdale, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707 or by e-mail to [e-mail] no later than June 11, 2007. Written comments will have the same weight and effect as oral statements presented at the public hearings.

Notice of Hearing

Regulation and Licensing

[CR 07-031]

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in s. 227.11 (2), Stats., and subchapter VII of ch. 440, Stats., as created by 2005 Wisconsin Act 25, renumbered by 2005 Wisconsin Act 254, and amended by 2005 Wisconsin Act 407, and interpreting s. 440.88, Stats., the Department of Regulation and Licensing will hold a public hearing at the time and place indicated below to consider an order to create chs. RL 164, 161, 162, 163, 166, 167 and 168, relating to substance abuse professionals.

Hearing Date, Time and Location

Date:   May 22, 2007

Time:   9:15 A.M.

Location:   1400 East Washington Avenue

  (Enter at 55 North Dickinson Street)

  Room 121A

  Madison, Wisconsin

Appearances at the Hearing

Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to the Department of Regulation and Licensing, Office of Legal Counsel, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by June 1, 2007, to be included in the record of rule-making proceedings.

Analysis prepared by the Department of Regulation and Licensing

Statutes interpreted: Section 440.88, Stats.

Statutory authority: Section 227.11 (2), Stats., and Subchapter VII of ch. 440, Stats., as created by 2005 Wisconsin Act 25, renumbered by 2005 Wisconsin Act 254, and amended by 2005 Wisconsin Act 407.

Explanation of agency authority: Subchapter VII of ch 440, Stats., was enacted on July 25, 2005. It was amended by Act 407 which was enacted on May 10, 2006. Under subch. VII of ch. 440, Stats., the Department of Regulation and Licensing is required to promulgate rules relating to the issuance and renewal of credentials, requirements for certification, supervised practice, scope of practice, education approval, grounds for discipline and professional liability insurance.

Related statute or rule: Wisconsin Administrative Code s. MPSW 1.09 which relates to certification of social workers, professional counselors and marriage and family therapists to treat substance use disorder patients as a specialty.

Wisconsin Administrative Code ch. HFS 75 which relates to the certification of substance use disorder treatment clinics and programs.

Plain language analysis: 2005 Wisconsin Act 25 created Subchapter VII of chapter 440, Stats., Substance Abuse Counselors, Clinical Supervisors, and Prevention Specialists. This Act transferred the certification and regulation of Alcohol and Other Drug Abuse (AODA) counselors from the Department of Health and Family Services to the Department of Regulation and Licensing, effective 2006. This proposed rule-making order creates rules relating to definitions, requirements for certification, supervised practice, scope of practice, education approval, and professional liability insurance for substance abuse professionals.

Chapter RL 160 is being created to include definitions of terms that are used in subch. VII of ch. 440, Stats., and in chs. RL 160 to 167. The proposed rules include definitions for “accredited," “assessment," “behavioral science field," “CEH," “clinical substance abuse counselor," “clinical supervision," “clinical supervisor,." “clinical supervisor-in-training," “comprehensive program," “core functions," “credential," “department," “DSM," “hour," “independent clinical supervisor," “intermediate clinical supervisor," “patient," “practice dimensions," “prevention," “prevention domains," “prevention specialist," “prevention specialist-in-training," “substance," “substance abuse counselor," “substance abuse counselor-in-training," “substance use disorder" and “transdisciplinary foundations."

Chapter RL 161 is being created to identify the requirements and procedures for submitting applications for licenses.

Chapter RL 162 is being created to identify the restrictions and minimum requirements for supervision of counselors by clinical supervisors.

Chapter 163 is being created to identify the scope and restrictions on the practice of the credential holders.

Chapter RL 166 is being created to identify the approval process and educational requirements for educational coursework and continuing education opportunities.

Chapter RL 167 is being created to require credential holders to have liability insurance in effect.

Chapter RL 168 is being created to identify the requirements for continuing education.

Summary of, and comparison with, existing or proposed federal regulation:

There is no existing or proposed federal regulation that is intended to address the activities to be regulated by this rule.

Comparison with rules in adjacent states:

Illinois: § 20 ILCS 301/15-5. Applicability. (a) It is unlawful for any person to provide treatment for alcoholism and other drug abuse or dependency or to provide services as specified in subsections (c), (d), (e), and (f) of Section 15-10 of this Act [20 ILCS 301/15-10] unless the person is licensed to do so by the Department. The performance of these activities by any person in violation of this Act is declared to be inimical to the public health and welfare, and to be a public nuisance. The Department may undertake such inspections and investigations as it deems appropriate to determine whether licensable activities are being conducted without the requisite license.

(b) Nothing in this Act shall be construed to require any hospital, as defined by the Hospital Licensing Act [210 ILCS 85/1 et seq.], required to have a license from the Department of Public Health pursuant to the Hospital Licensing Act [210 ILCS 85/1 et seq.] to obtain any license under this Act for any alcoholism and other drug dependency treatment services operated on the licensed premises of the hospital, and operated by the hospital or its designated agent, provided that such services are covered within the scope of the Hospital Licensing Act [210 ILCS 85/1 et seq.]. No person or facility required to be licensed under this Act shall be required to obtain a license pursuant to the Hospital Licensing Act [210 ILCS 85/1 et seq.] or the Child Care Act of 1969 [225 ILCS 10/1 et seq.].

(c) Nothing in this Act shall be construed to require an individual employee of a licensed program to be licensed under this Act.

(d) Nothing in this Act shall be construed to require any private professional practice, whether by an individual practitioner, by a partnership, or by a duly incorporated professional service corporation, that provides outpatient treatment for alcoholism and other drug abuse to be licensed under this Act, provided that the treatment is rendered personally by the professional in his own name and the professional is authorized by individual professional licensure or registration from the Department of Professional Regulation to do such treatment unsupervised. This exemption shall not apply to such private professional practice which specializes primarily or exclusively in the treatment of alcoholism and other drug abuse. This exemption shall also not apply to intervention services, research, or residential treatment services as defined in this Act or by rule. Notwithstanding any other provisions of this subsection to the contrary, persons licensed to practice medicine in all of its branches in Illinois shall not require licensure under this Act unless their private professional practice specializes exclusively in the treatment of alcoholism and other drug abuse.

(e) Nothing in this Act shall be construed to require any employee assistance program operated by an employer or any intervener program operated by a professional association to obtain any license pursuant to this Act to perform services that do not constitute licensable treatment or intervention as defined in this Act

(f) Before any violation of this Act is reported by the Department or any of its agents to any State's Attorney for the institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views before the Department or its designated agent, either orally or in writing, in person or by an attorney, with regard to such contemplated proceeding. Nothing in this Act shall be construed as requiring the Department to report minor violations of this Act whenever the Department believes that the public interest would be adequately served by a suitable written notice or warning.

77 Ill. Adm. Code 2060.201 Types of Licenses. Substance abuse treatment and intervention services as specified in Section 2060.101 of this Part shall be licensed by the Department. An organization may apply for an intervention and a treatment license at the same facility and all services authorized by both an intervention and a treatment license shall be authorized by a single license issued to that facility. Consistent with rules herein, services may be provided to adults as well as adolescents. The license certificate for the facility shall specify all levels of care and a designation of adult and/or adolescent services. Individuals who are 16 and 17 may be admitted as adults and individuals who are 18, 19 and 20 may be admitted as adolescents provided that the assessment of such individuals includes justification based on the person's behavior and life experience.

a) Treatment. A treatment license issued by the Department may authorize substance abuse services as established in the ASAM Patient Placement Criteria. The level of care and category (adolescent/adult) shall be specified on the license application or, after licensure, on any application to add an additional level of care and/or category (adolescent/adult).

b) Intervention. An intervention license issued by the Department may authorize the following services:

1) DUI Evaluation. Substance abuse evaluation services for persons who are charged with driving under the influence (DUI) offenses pursuant to the Illinois Vehicle Code [625 ILCS 5/11-501] or similar local ordinances that determine the offender's risk to public safety and make a subsequent corresponding recommendation for intervention to the Illinois courts or the Office of the Secretary of State.

2) DUI Risk Education. Substance abuse risk education services for persons who are charged with driving under the influence (DUI) offenses pursuant to the Illinois Vehicle Code [625 ILCS 5/11-501] or similar local ordinances.

3) Designated Program. A program designated by the Department to provide screening, assessment, referral and tracking services pursuant to Article 40 of the Act.

4) Recovery Homes. Alcohol and drug free housing with rules, peer-led groups, staff activities and/or other structured operations which are directed toward maintenance of sobriety for persons in early recovery from substance abuse or persons who have completed substance abuse treatment services or who may still be receiving such treatment at another licensed facility.

77 Ill. Adm. Code 2060.205 Unlicensed Practice. (a) Whenever the Department determines that an unlicensed organization or person is engaging in activities that require licensure, pursuant to the specifications in Section 2060.101 of this Part, it shall issue an order to that organization or person to cease and desist from engaging in the activity. The order shall specify the particular services that require licensure, and shall include citation of relevant Sections of the Act and this Part.

(b) The Department's order shall be accompanied by a notice that instructs the recipient that written documentation may be submitted to the Department within 10 calendar days to support a claim that licensure is not required, or that the recipient is properly authorized to conduct the services.

(c) After the expiration of the 10 day period, if the Department believes that the organization or unlicensed person is continuing to provide services that require licensure, the matter shall be referred to the appropriate State's Attorney or to the Office of the Attorney General for prosecution.

77 Ill. Adm. Code s. 2060.221 Change of Ownership/Management. a) Each license issued by the Department shall be valid only for the premises and persons named in the application. Licensure is not transferable. A license shall become null and void when:

1) a change in ownership involving more than 25% of the aggregate ownership interest within a one year period or a significant change in management; or

2) a change of 50% or more in the board of directors of a not-for-profit corporation within a one year period.

b) In order to obtain a new license reflective of the change in ownership the licensee shall submit to the Department:

1) written notification at least ten calendar days prior to any of the above referenced changes in ownership; and

2) an application for initial licensure and the license application fee of $200 per license.

c) Failure to notify the Department within ten calendar days relative to the above referenced changes in ownership will result in the imposition of a license fee of $1000 for each affected license.

77 Ill. Adm. Code § 2060.309 Professional Staff Qualifications. (a) All professional staff providing clinical services (except as set forth in subsection (b)(2)), as defined in this Part, shall:

1) hold clinical certification as a Certified Alcohol and Drug Counselor from the Illinois Alcoholism and Other Drug Abuse Professional Certification Association (IAODAPCA), 1305 Wabash Avenue, Suite L, Springfield, Illinois 62704; or

2) be a licensed professional counselor or licensed clinical professional counselor pursuant to the Professional Counselor and Clinical Professional Counselor Licensing Act [225 ILCS 107]; or

3) be a physician licensed to practice medicine in all its branches pursuant to the Medical Practice Act of 1987; or

4) be licensed as a psychologist pursuant to the Clinical Psychology Practice Act [225 ILCS 15]; or

5) be licensed as a social worker or licensed clinical social worker pursuant to the Clinical Social Work and Social Work Practice Act [225 ILCS 20].

b) All professional staff providing only clinical assessments, DUI evaluations or designated program intervention services, as defined in this Part, shall:

1) meet one of the qualifications specified in subsection (a) above; or

2) hold assessor certification as a Certified Assessment and Referral Specialist (CARS) from IAODAPCA.

c) In any medically managed or monitored detoxification service at least one staff, 24 hours a day, shall:

1) be a registered nurse pursuant to Section 3(k) of the Illinois Nursing and Advanced Practice Nursing Act of 1987 [225 ILCS 65/3(k)];

2) be a licensed practical nurse pursuant to Section 3(i) of the Illinois Nursing and Advanced Practice Nursing Act of 1987 [225 ILCS 65/3(i)] who has completed at least 40 clock hours of formal training in the field of alcoholism or other substance abuse; or

3) be a certified emergency medical technician pursuant to Section 4.12 of the Emergency Medical Services (EMS) Systems Act [210 ILCS 50/4.12] who has completed at least 40 clock hours of formal training in the field of alcoholism or other substance abuse.

d) Any other staff who provide direct patient care that is not defined as a clinical service shall be supervised by an individual who meets the requirements for professional staff as defined in subsection (a), (b) or (c)(1) and (2) as applicable to detoxification.

e) any new professional staff, including interns, who will provide clinical services in a treatment or designated program service and who do not meet the requirements of subsection (a) or (b) when hired shall:

1) meet the requirements specified in subsection (a) or (b) within two years after the date of employment; and

2) not work in any supervisory capacity until such requirements are met; and

3) work under the direct, verifiable supervision of an individual who has staff supervisory responsibility at the facility and who meets the requirements for professional staff specified in subsection (a); and

4) sign, and adhere to, a professional code of ethics developed by the organization.

f) The above referenced supervision shall last until the employee meets at least one of the requirements for professional staff designation specified in subsection (a) or (b) or until the two year period has elapsed. Such supervision is verifiable, at a minimum, by:

1) signature of the supervisor and the affected employee on the treatment plan and all reviews of or any change to the patient's treatment plan; and

2) documentation of face-to-face supervision meetings, at least once monthly. This supervision can occur in a group or individual setting and shall be a distinct activity separate from regularly scheduled patient staffings.

g) Any employee providing clinical services under supervision at one or more organizations who does not meet at least one of the requirements specified in subsection (a) or (b) within the relevant two year period shall not provide any direct clinical services at the end of the two years until such requirement is met.

h) All staff providing DUI risk education services shall:

1) meet one of the qualifications specified in subsection (a); or

2) hold Alcohol and Other Drug Abuse (AODA) certification from IAODAPCA.

i) It is the responsibility of each organization to ensure that all professional staff meet the requirements outlined in this Section.