22VAC30-70 The Virginia Public Guardian and Conservator Program

REGULATIONS

Vol. 32 Iss. 7 - November 30, 2015

TITLE 22. SOCIAL SERVICES

DEPARTMENT FOR AGING AND REHABILITATIVE SERVICES

Chapter 70

Proposed Regulation

Title of Regulation: 22VAC30-70. The Virginia Public Guardian and Conservator Program (amending 22VAC30-70-30).

Statutory Authority: §§ 51.5-131 and 51.5-150 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 29, 2016.

Agency Contact: Vanessa S. Rakestraw, Ph.D., CRC, Policy Analyst, Department for Aging and Rehabilitative Services, 8004 Franklin Farms Drive, Richmond, VA 23229, telephone [phone], FAX [phone], TTY [phone], or email [e-mail].

Basis: This regulatory action of the Department for Aging and Rehabilitative Services (DARS) will conform regulations to changes to the Code of Virginia due to Chapter 322 of the 2012 Acts of Assembly. The Commissioner of DARS has authority to promulgate regulations pursuant to § 51.5-131 of the Code of Virginia.

Purpose: The 2011 General Assembly passed Senate Joint Resolution 397, which requested the Secretary of Health and Human Resources and human services agencies to adopt and implement person-centered practices in providing services to citizens. This resolution noted that every individual is unique and no two individuals have the exact same preferences and needs. Person-centered planning supports individuals in making choices and decisions about the supports that best meet their preferences and needs. DARS adopts these statutorily mandated person-centered regulations for its Public Guardian and Conservator Program to implement person-centered planning procedures for the public guardian program serving the Commonwealth's most vulnerable citizens, protecting their safety and welfare.

Substance: The regulation requires, to the maximum extent feasible, the person-centered planning process to (i) include people chosen by the individual; (ii) provide necessary information and support to enable the individual to direct the process and to make informed choices and decisions; (iii) be timely and occur at times and locations convenient for the individual; (iv) reflect the individual's cultural values; (v) offer choices to the individual regarding the services the individual receives and from whom the individual receives them; (vi) include documentation of the processes employed in and the outcome of person-centered planning.

Issues: The regulation demonstrates that DARS and the Commonwealth are committed to building a strong community infrastructure of person-centered long-term community supports and services. The local and regional public guardian programs, public and private service providers, and community stakeholders, including the Public Guardian and Conservator Advisory Board, likewise share the commitment to person-centered planning. The amended regulations pose no known disadvantage to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Regulation. As mandated by Chapter 322 of the 2012 Acts of the Assembly, the Department for Aging and Rehabilitative Services (DARS) proposes to amend regulations that govern the Virginia Guardianship and Conservator Program to allow individuals served under this program more input into how and by whom services are provided.

Result of Analysis. Benefits likely exceed costs for all proposed regulatory changes.

Estimated Economic Impact. In 2011, the General Assembly passed a joint resolution that requested human services agencies to adopt and implement "person-centered practices" that supported individuals receiving services in expressing preferences and making choices about who provided their services and how those services are provided. In 2012, the General Assembly passed a law mandating such person-centered practices. DARS now proposes to conform these regulations to that mandate by adding language requiring guardians and conservators, to the extent feasible, to be guided by principles that: 1) focus on the expressed preferences, personal values and needs of individuals that are under guardianship, 2) allow individuals to have a say in the planning of their lives and 3) provide individuals with information and support to help them in making plans.

No guardian program in the Commonwealth is likely to incur costs on account of these proposed regulations because they do not mandate any additional actions or paperwork; instead they just require that guardians consider, and when possible support, the preferences of their clients. Individuals who are subject to guardianship will likely benefit from policies that allow them more control over how decisions affecting them are made.

Businesses and Entities Affected. DARS staff reports that there are 14 public programs that hold guardianship of approximately 600 individuals in the Commonwealth. All of these programs and individuals will be affected by these proposed changes.

Localities Particularly Affected. No locality will be particularly affected by these proposed regulations.

Projected Impact on Employment. These proposed regulations are unlikely to have any impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulations are unlikely to have any effect on the use and value of any private property.

Small Businesses: Costs and Other Effects. No small businesses will be affected by these proposed regulations.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small businesses will be affected by these proposed regulations.

Agency's Response to Economic Impact Analysis: The Department for Aging and Rehabilitative Services agrees that the information provided by the Department of Planning and Budget in the December 18, 2013, economic impact analysis of the proposed amendments to 22VAC30-70, The Virginia Guardianship and Conservator Program was accurate at the time the analysis was completed. Businesses and entities affected have fluctuated slightly on an annual basis since this analysis was initially submitted; however, this should not have a substantial impact on the economic impact analysis.

Summary:

As mandated by Chapter 322 of the 2012 Acts of the Assembly, the proposed amendments to the Virginia Guardianship and Conservator Program require person-centered planning, which (i) focuses on the preferences, personal values, and needs of the individual receiving public guardianship services and (ii) directs public guardianship services to empower and support the individual receiving services in defining the direction for his life and promoting self-determination and community involvement.

22VAC30-70-30. Public guardian programs.

A. Designation. The department shall select public guardian programs in accordance with the requirements of the Virginia Public Procurement Act. Only those programs that contract with the department will shall be designated as public guardian programs. Funding for public guardian programs is provided by the appropriation of general funds.

B. Authority. A public guardian program appointed as a guardian, a conservator, or both as a guardian and conservator, shall have all the powers and duties specified in Article 1 (§ 37.2-1000 et seq.) of Chapter 10 of Title 37.2 Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2 of the Code of Virginia, except as otherwise specifically limited by a court.

C. Structure.

1. Each public guardian program shall have a program director who supervises and is responsible for providing guardianship services to any incapacitated persons assigned by the court and to provide overall administration for the public guardian program. The program director must shall be a full-time employee of the program and have experience as a service provider or administrator in one or more of the following areas: social work, case management, mental health, nursing or other human service programs. The program director must shall also demonstrate, by objective criteria, a knowledge and understanding of Virginia's guardianship laws, alternatives to guardianship, and surrogate decision making activities. The program director shall attend all training and activities required by the department.

2. Each public guardian program shall establish a multidisciplinary panel to (i) screen cases for the purpose of ensuring that appointment of a guardian or conservator is appropriate under the circumstances and is the least restrictive alternative available to assist the incapacitated person. This screening shall include a duty to recommend the most appropriate limitations on the power of the guardian or conservator, if any, to ensure that the powers and duties assigned are the least restrictive, and (ii) annually review cases being handled by the program to ensure that a guardian or conservator appointment remains appropriate. Composition of a multidisciplinary panel should include representatives from various human services agencies serving the city, county, or region where the public guardian program accepts referrals. If serving a region, the multidisciplinary panel shall have at least one representative from each local jurisdiction within the region. To the extent appropriate disciplines are available, this panel should include but is not limited to representation from:

a. Local departments of social services, adult protective services;

b. Community services boards or behavioral health authorities;

c. An attorney Attorneys licensed by the Virginia State Bar;

d. Area agencies on aging;

e. Local health departments;

f. Nursing home, assisted living, and group home administrators; and

g. Physicians and community representatives.

D. Client ratio to paid staff.

1. Each public guardian program shall maintain a direct service ratio of clients to paid staff that does not exceed the department's established ideal ratio of 20 incapacitated persons to every one paid full-time staff person 20:1.

2. Each public guardian program shall have in place a plan to immediately provide notice to the circuit court(s) court or courts in its jurisdiction and to the department when the program determines that it may exceed its ideal ratio of clients to paid staff.

3. In an emergency or unusual circumstance, each program, in its discretion, may exceed the department's established ideal ratio by no more than five additional incapacitated persons. Each program shall have in place a policy to immediately provide notice to the department when such an emergency or unusual circumstance occurs and when the emergency or unusual circumstance ends and the ideal ratio has returned to 20:1. The notice to the department shall comply with policy established by the department. Other than an emergency or unusual circumstance as described in the preceding sentence, a waiver must be requested to exceed the department's established ideal ratio. The department, in consultation with the advisory board, shall establish written procedures for public guardian programs to obtain appropriate waivers regarding deviations in the ideal ratio of clients to paid staff. Procedures shall comply with §§ 51.5-150 and 51.5-151 of the Code of Virginia. The department shall report waiver requests and status of granted waivers to the advisory board at its regularly scheduled meetings. The department shall review such waivers every six months to ensure that there is no immediate threat to the person or property of any incapacitated person nor that exceeding the department's established ideal ratio is having or will have a material and adverse effect on the ability of the program to properly serve all of the incapacitated persons it has been designated to serve.

E. Appointments.

1. Prior to the public guardian program accepting an individual for services, the multidisciplinary panel described in 22VAC30-70-30 subdivision C 2 of this section shall screen referrals to ensure that:

a. The public guardian program is appointed as guardian, or conservator, or both only in those cases where guardianship or conservatorship is the least restrictive alternative available to assist the individual;

b. The appointment is consistent with serving the type of client identified by the established priorities of the public guardian program;

c. The individual cannot adequately care for himself;

d. The individual is indigent; and

e. There is no other proper or suitable person or entity to serve as guardian.

f. In the case of an individual who receives case management services from a community services board (CSB) or behavioral health authority (BHA), the multidisciplinary panel may also request the results of the "determination of capacity" as authorized by 12VAC35-115-145 (Determination of capacity to give consent or authorization) and verification that no other person is available or willing to serve as guardian pursuant to 12VAC35-115-146 E (Authorized representatives).

2. Appointments by a circuit court shall name the public guardian program, rather than an individual person, as the guardian, the conservator or both guardian and conservator.

3. A public guardian program shall only accept appointments as guardian, conservator, or both guardian and conservator that generate no fee or that generate a minimal fee.

F. Services.

1. A public guardian program shall have a continuing duty to seek a proper and suitable person who is willing and able to serve as guardian, conservator, or both guardian and conservator for the incapacitated person.

2. The guardian or conservator shall encourage the incapacitated person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage his personal affairs to the extent feasible.

3. The guardian or conservator shall be guided by person-centered planning that:

a. Focuses on the expressed preferences, personal values, and needs of the individual receiving public guardian program services; and

b. Empowers and supports the individual receiving public guardian program services, to the extent feasible, in defining the direction for his life and promoting self-determination and community involvement.

4. To the maximum extent feasible, the person-centered planning process shall:

a. Include people chosen by the individual;

b. Provide necessary information and support to enable the individual to direct the process and to make informed choices and decisions;

c. Be timely and occur at times and locations convenient for the individual;

d. Reflect the individual's cultural values;

e. Offer choices to the individual regarding the services the individual receives and from whom the individual receives those services; and

f. Include documentation of processes employed in and the outcomes of person-centered planning.

3. 5. The multidisciplinary panel described in 22VAC30-70-30 subdivision C 2 of this section shall review active cases at least once every 12 months to determine that:

a. The client continues to be incapacitated;

b. The client continues to be indigent; and

c. There is no other proper or suitable person or entity to serve as guardian, conservator, or both guardian and conservator.

4. 6. Each public guardian program shall set priorities with regard to services to be provided to incapacitated persons in accordance with its contract with the department.

5. 7. Each public guardian program shall develop written procedures and standards to make end-of-life decisions or other health-related interventions in accordance with the expressed desires and personal values of the incapacitated person to the extent known. If expressed desires or personal values are unknown, then written procedures, including an ethical decision-making process, shall be used to ensure that the guardian or conservator acts in the incapacitated person's best interest and exercises reasonable care, diligence and prudence on behalf of the client.

6. 8. The public guardian program shall avoid even the appearance of a conflict of interest or impropriety when dealing with the needs of the incapacitated person. Impropriety or conflict of interest arises where the public guardian program has some personal or agency interest that might be perceived as self-serving or adverse to the position or the best interest of the incapacitated person. Examples include, but are not limited to, situations where the public guardian program provides services such as housing, hospice or medical care directly to the client. The department reserves the right to monitor all administrative, programmatic, and financial activities related to the public guardian program to ensure compliance with the terms of the contract between the department and the public guardian program.

7. 9. Each public guardian program and its employees are required to report any suspected abuse, neglect, or exploitation in accordance with § 63.2-1606 of the Code of Virginia, that which provides for the protection of aged or incapacitated adults, mandates reporting, and provides for a penalty for failure to report.

8. 10. Each public guardian program shall submit data and reports as required by the department and maintain compliance with the department's program guidelines. The department shall periodically monitor administrative, programmatic, and financial activities related to the public guardian program, including person-centered planning utilization and documentation, to ensure compliance with the terms of the contract between the public guardian program and the department.

VA.R. Doc. No. R13-3565; Filed November 5, 2015, 2:10 p.m.