State Rule Making on Guardian Fees

Some of you may have recently seen the attached rulemaking notice from the Department of Social and Health Resources regarding guardian fees. Here is a brief explanation of the process that DSHS has provided for WAPG members:

 

“The Health Care Authority (HCA) and the Department of Social and Health Services (DSHS) are proposing to amend the rules regarding the long-term care participation deduction allowed for persons subject to a guardianship. In general, these are the rules that allow a Medicaid client, who would otherwise contribute their income towards their cost of care, to contribute their income towards the provision of guardianship services provided to the client. The process of amending these rules follows the steps outlined in the Administrative Procedure Act (APA), which can take up to nine months or more to complete.

 

Under the APA, HCA and DSHS, 1) announces the intent to amend the rule, and invites the public to participate in the rule-making process; 2) works together with the public in a variety of ways to amend the rule, proposes the rule language, and holds a public hearing; and 3) responds to comments (or testimony) provided regarding the rule, and finally adopts the rule as final.

 

HCA and DSHS seek to include stakeholders of the community in this process, which is comprised of (but not limited to):

•         Medicaid clients;

•         Medicaid clients’ attorneys;

•         Medicaid clients’ guardians;

•         The guardians’ attorneys; and

•         Other state agencies.

 

The purpose of the intent to amend the rule is two-fold:

•         First, the rules have not been updated since 2003, and the fee and cost amounts have remained at the same level from even before 2003. HCA and DSHS recognize the current fee and cost amounts may be unsustainable without an amendment.

•         Second, HCA and DSHS recognize several deficiencies in the current rule that impairs the ability to administer the Medicaid program in accordance with state and federal law. HCA and DSHS wish to amend the rule to ensure compliance with state and federal law, and to lower the costs that the Medicaid program and clients (and their guardians) incur complying with the rule”.

 

If you are interested in being informed about opportunities to participate in the rulemaking process or to receive information about the process, contact Melinda.Froud@hca.wa.gov

 

NGA Responds to "Right to Association"

The National Guardianship Association has been advised by several state affiliate guardianship associations of numerous “Right to Association” legislative bills that are being introduced in most, if not all, jurisdictions around the country. These bills are being introduced much as a Uniform Law would be promoted, with virtually the same provisions in each bill. The bills are generally being sponsored by the National Association to Stop Guardianship Abuse, which is identifying sponsors for the bill and promoting passage in each state legislature. NGA members have contacted NGA with concerns about the implications and ramifications of passage of the legislation as conceived upon introduction.

The NGA board of directors has approved this position statement regarding “Right to Association” legislation. NGA requests that its members disseminate the position statement as appropriate, and further requests that members contact NGA to advise its leadership of developments regarding this legislation in other jurisdictions. NGA will assist, to the extent feasible, its members and state affiliate organizations in improving proposed legislation to promote and achieve excellence and integrity in guardianship proceedings.

If you have additional information on introductions of this legislation, or would like to collaborate with NGA on state legislative issues, please contact NGA or Terry W. Hammond, chair of the state affairs committee. 
 

Joel's Law

On July 24, 2015, a new section of Washington State’s involuntary mental health treatment law, Chapter 71.05 Revised Code of Washington (RCW), goes into effect. This new section is called Joel’s Law. This allows a person’s immediate family member, legal guardian, or conservator to petition the superior court for initial detention under certain conditions. 

Download instructions for petitioning here

71.05.201
Decision not to detain—Petition for detention by family member, guardian, or conservator—Court review.

(1) If a designated mental health professional decides not to detain a person for evaluation and treatment under RCW 71.05.150 or 71.05.153 or forty-eight hours have elapsed since a designated mental health professional received a request for investigation and the designated mental health professional has not taken action to have the person detained, an immediate family member or guardian or conservator of the person may petition the superior court for the person's initial detention.

(2)(a) The petition must be submitted on forms developed by the administrative office of the courts for this purpose. The petition must be accompanied by a sworn declaration from the petitioner, and other witnesses if desired, describing why the person should be detained for evaluation and treatment. The description of why the person should be detained may contain, but is not limited to, the information identified in RCW 71.05.212.

(b) The petition must contain:

(i) A description of the relationship between the petitioner and the person; and

(ii) The date on which an investigation was requested from the designated mental health professional.

(3) The court shall, within one judicial day, review the petition to determine whether the petition raises sufficient evidence to support the allegation. If the court so finds, it shall provide a copy of the petition to the designated mental health professional agency with an order for the agency to provide the court, within one judicial day, with a written sworn statement describing the basis for the decision not to seek initial detention and a copy of all information material to the designated mental health professional's current decision.

(4) Following the filing of the petition and before the court reaches a decision, any person, including a mental health professional, may submit a sworn declaration to the court in support of or in opposition to initial detention.

(5) The court shall dismiss the petition at any time if it finds that a designated mental health professional has filed a petition for the person's initial detention under RCW 71.05.150 or 71.05.153 or that the person has voluntarily accepted appropriate treatment.

(6) The court must issue a final ruling on the petition within five judicial days after it is filed. After reviewing all of the information provided to the court, the court may enter an order for initial detention if the court finds that: (a) There is probable cause to support a petition for detention; and (b) the person has refused or failed to accept appropriate evaluation and treatment voluntarily. The court shall transmit its final decision to the petitioner.

(7) If the court enters an order for initial detention, it shall provide the order to the designated mental health professional agency, which shall execute the order without delay. An order for initial detention under this section expires one hundred eighty days from issuance.

(8) Except as otherwise expressly stated in this chapter, all procedures must be followed as if the order had been entered under RCW 71.05.150. RCW 71.05.160 does not apply if detention was initiated under the process set forth in this section.

(9) For purposes of this section, "immediate family member" means a spouse, domestic partner, child, stepchild, parent, stepparent, grandparent, or sibling.

[2015 c 258 § 2.]

Trust Institutions Modernization Act

Many WAPG members who are Professional guardians are asked to act as Trustees for their clients. Many of you may not be aware of the Trusts Institutions Modernization Act (TIMA) that took effect on January 5th, 2015. 

TIMA provides guidance to the Department of Financial Institutions (DFI) on whether a Trustee or Trust Company is required to be registered as a Trust under the new law. Some of you may now be required to undergo Trust Chartering, a process of regular oversight and supervision of your activities by DFI. Other's may be exempt, and still others may be able to obtain a private ruling as to your status. 

The definition of a Trustee under Title is listed above. Below is a list of exemptions:

For more information please review this document developed by the Department of Financial Institutions or contact DFI. Contact info is provided in the document located at https://www.dropbox.com/s/cwtuuuwu5kobcne/Trust%20Institutions%20Modernization%20Act.pdf?dl=0





News from the CPG Board!

·         CPG Continuing Education Reporting Period -  January 1, 2015 to December 31, 2016. All continuing education for the reporting period must be completed by December 31, 2016 and reported by January 31, 2017.

 

·         There will be a new and improved guardianship portal on the AOC website going live soon. A CEU tracking system will be included. CPG’s should verify for accuracy and report to AOC if they discover errors.  

 

·         October 2016, the Board will have two vacancies and will be accepting applications for a CPG and a Senior Advocate.

 

·         The CPG Board will hold its annual planning meeting 9a to 3p on April 11th at the AOC office at SeaTac – There will be an opportunity for public comment.