Community Grievance Decision Digest

ACCESS TO GRIEVANCE PROCEDURE

THE LAW:

Each patient shall... "Have the right to present grievances under the procedures established under sub. (5) on his or her own behalf or that of others to the staff or administrator of the treatment facility or community service provider without justifiable fear of reprisal and to communicate, subject to par. (p) [the right to make phone calls], with public officials or with any other person without justifiable fear of reprisal."

§ 51.61(1)(u), Wis. Stats. [Emphasis added.]

"The department shall establish procedures to assure protection of patients' rights guaranteed under this chapter..."

§ 51.61(5)(a), Wis. Stats. [Emphasis added.]

"(1) A patient or a person acting on behalf of a patient may file a grievance under s. HFS 94.29 procedures with the administrator of a facility or other service provider or with a staff member of the facility or other service provider without fear of reprisal and may communicate, subject to s. 51.61(1)(p), Stats., [right to make phone calls] with any public official or any other person without fear of reprisal.

(2) No person may intentionally retaliate or discriminate against any patient, person acting on behalf of a patient or employee for contacting or providing information to any official or to an employee of any state protection and advocacy agency, or for initiating, participating in or testifying in a grievance procedure or in any action for any remedy authorized by law.

(3) No person may deprive a patient of the ability to seek redress for alleged violations of his or her rights by unreasonably precluding the patient from using the grievance procedure established under s. HFS 94.29 or from communicating, subject to any valid telephone or visitor restriction under s. HFS 94.05, with a court, government official, grievance investigator or staff member of a protection and advocacy agency or with legal counsel."

HFS 94.28, Wis. Admin. Code [Emphasis added.]

"Failure of a treatment facility to comply with any provision of right under s.51.61, Stats., and this chapter may be processed as a grievance under s.51.61(5), Stats..."

HFS 94.29, Wis. Admin. Code [Emphasis added.]

"No person who, in good faith, files a report with the appropriate examining board concerning the violation of rights under this section by persons licensed under ch. 441 [nurses], 446 [chiropractors], 450 [pharmacists], 455 [psychologists] or 456 [nursing home administrators], or who participates in an investigation of an allegation by the appropriate examining board, is liable for civil damages for the filing or participation."

§ 51.61(10), Wis. Stats. [Emphasis added.]

DECISIONS

1. [Note from the Client Rights Office: A person under guardianship may still file his or her own patient rights complaints. The guardian's consent is not required. The guardian should, however, be informed of any complaint involving the guardian's ward.]

2. An ex-patient attempted to file a complaint with a county mental health center on behalf of some of their current patients. The center asked the county's Corporation Counsel for advice. They were told that they did not have to accept the complaint since the individual filing it was no longer a patient. However, the law says "A patient or any person acting on behalf of a patient..." so the center was required to accept the complaint. Failure to timely reply to the complaint was a technical violation of the complainant's rights. That failure was remedied by the center's acceptance and investigation of the complaint. (Level III decision in Case No. 04-SGE-001 on 7/2/04.)

3. An individual who had never been in, toured or otherwise had any connection whatsoever with the residents of a nursing home for elderly and developmentally disabled clients tried to file a complaint on their behalf. He claimed they should have been paid wages for the volunteer work they did. This individual was not affiliated with any advocacy group. It was ruled that the individual was not a "person acting on behalf of a patient" under HFS 94.28(1), Wis. Admin. Code, and, therefore the facility did not violate his rights by refusing to accept his grievance filed on behalf of the residents of that facility. (Level IV decision in Case No. 04-SGE-06 on 3/29/05)

4. Where a client did not receive a timely response to her grievance her rights were violated. The service provider was required to establish a policy outlining the required steps that must be taken when a client raises a concern and expresses a desire to file a formal grievance under HFS 94. The State Grievance Examiner also required that a copy of that policy and documentation that staff have been trained in how to respond to grievances be sent to the Client Rights Office in order to resolve this violation. (Level III decision in Case No. 05-SGE-03 on 4/18/05)

5. Where an investigation was conducted into a client complaint, but where the client did not receive a response to the grievance, her right of access to the grievance process was violated. The service provider was required to remedy the violation by establishing a policy outlining the required steps that must be taken when a client files a formal grievance under HFS 94. A copy of that policy and documentation that staff had been trained in how to respond to grievances, was required to be filed with the DHFS Client Rights Office. (Level III Decision in Case No. 05-SGE-003 on 4/18/05)

6. A client complained about lack of access to the HFS 94 grievance procedure at a clinic. The grievance was filed directly at Level III because the State Grievance Examiner has jurisdiction over issues related to access to the grievance procedure. It was determined that the clinic does have a Client Rights brochure, which the client was able to get a copy of. The brochure outlines the HFS 94 grievance procedure. The clinic was reminded that they need to put the name and contact information of the clinic's Client Rights Specialist on all their brochures. (Level IV decision in Case No. 06-SGE-01 on 4/3/06)

7. A client alleged a lack of response to his grievances. The SGE accepted the case under his original jurisdiction over access to the grievance procedure. Investigation revealed that the client had multiple pending complaints that were being individually addressed by the service provider. It was concluded that the client's right of access to the grievance process was not violated. (Level III decision in Case No. 06-SGE-06 on 5/2/06)

8. A complaint was filed about a facility refusing to accept a patient rights grievance on behalf of some unnamed, unspecified clients. The facility's Counsel advised the facility not to accept the grievance unless the complainant could name at least one client of theirs whose rights had been violated. The complainant, himself, was receiving physical health treatment at the facility, not mental health treatment. There is nothing inherently wrong with a facility Client Rights Specialist (CRS) conferring with the facility's attorneys on issues pertaining to patient rights. The patient rights laws and rules are complex. Seeking the advice of counsel is often a good way to ensure that the facility is in full compliance with those rights. The decision of the CRS, even if that decision is not to accept a complaint, is still appealable. The four-stage grievance process ensures due process of law for persons seeking to file complaints. The complainant's rights were not violated. (Level IV decision in Case No. 06-SGE-04 on 8/18/06)

9. A father filed a complaint about restrictions on his visiting with his son, who was in treatment foster care. The county had imposed limitations on his visits with his son as part of the child welfare system. The HFS 94 grievance procedure has no jurisdiction over child welfare matters. After exhausting the county's grievance process regarding child welfare issues, the next step available to the father was to contact the Office of Strategic Finance (OSF) Regional Office. (Level IV decision in Case No. 06-SGE-07 on 9/25/06)

Last Updated: October 30, 2006