RD76 - Biennial Report - Virginia Public Guardian and Conservator Program – 2022

Executive Summary:

*This report was replaced in its entirety by the Department for Aging and Rehabilitative Services on March 15, 2022.

The Virginia Public Guardian and Conservator Program (the “Program"), operated within the Department for Aging and Rehabilitative Services (“DARS"), provides guardian and conservator services for adults who are incapacitated and indigent and for whom no other proper or suitable person can be identified who is willing and able to serve as the individual’s guardian, or conservator, or both, as applicable.

Program Overview

The Program has capacity to provide public guardianship services, public conservatorship services, or both to 1,049 incapacitated adult residents of Virginia who are found by a Virginia circuit court to be (i) incapacitated and (ii) who meet the criteria for public guardianship as set forth in Virginia Code § 64.2-2010, which include indigency and a finding that there is no other proper and suitable person willing and able to serve as guardian. These services are provided by 13 local providers who have contracted with DARS (“PGP Providers"). Slots are allocated among four eligibility categories: Unrestricted; DBHDS-ID/DD; DBHDS-MI; and MI/ID. The body of the report provides information regarding the services provided by PGP Providers required by law or contract.

Information Regarding Clients

The report includes demographic information regarding the public guardianship clients receiving services as of June 30, 2021, including the number of clients being served in each eligibility category, the age distribution of the Program’s clients, the type of residences where they were then living, and the number of new clients added and the number of existing clients removed from the Program in State Fiscal Years (“SFYs") 2020 and 2021.

Program Growth through SFY 2021

The Program has grown from a pilot project funded by the General Assembly in SFY 1997 to its current operational structure of 13 PGP Providers offering public guardianship services to 1,049 individuals throughout the state. The most recent increase in funding for public guardianship slots was provided in the SFY 2017-2018 biennial budget, which increased the number of slots from 706 to 1,049, primarily to accommodate new public guardianship clients referred by the Virginia Department of Behavioral Health and Developmental Services (“DBHDS"). Currently, funding for DBHDS-referred clients accounts for 59 percent of the Program’s funding for Program slots. Fifty-three percent of the Program slots are reserved for individuals referred by DBHDS.

The Need for More Program Slots

As of June 30, 2021, there were 663 individuals on waitlists for slots in the Program. These waitlists indicate that there is more demand for public guardianship services than slots available, although waitlists offer only a rough approximation of the unmet need. Virginia Code § 51.1-150 B 9 requires that every four years DARS engage a research entity to undertake a study of the need for public guardians and conservators, and other types of surrogate decisions makers, provided the General Assembly appropriates funds for that purpose. The General Assembly last provided funding for this purpose in SFY 2006 and the last study was conducted in 2007.

Budget Considerations

DARS has requested the Governor’s SFY 2023-2024 biennial budget include an additional $2,487,731 each year for Program slots, increasing the funding for Program slots from $4,508,833 to $6,996,564 annually. A portion of this requested increase ($1,500,000) would be used to create 300 new Program slots and the remainder of the requested increase ($987,731) would be used to address a funding imbalance in the payment to providers for individual slots. In addition, DARS has requested that the Governor’s biennial budget include an additional $129,495 annually to cover the administrative expenses of overseeing a large program and $75,000 in SFY2023 for the purpose of funding the study to evaluate the anticipated need for public guardianship services required by Virginia Code § 51.1-150 B 9.

Recent Regulatory Activity

The regulations governing the Program appear in 22VAC30-70 (“PGP Regulations"). The PGP Regulations were revised effective June 25, 2021 through a fast-track administrative process to make non-controversial changes needed to better align the regulations with the Code of Virginia and the requirements of DARS’ contracts with PGP Providers; clarify the existing regulations; and improve the logic and flow of the chapter. In 2020, DARS also undertook a periodic review of the PGP Regulations as required by Virginia Code §§ 2.2-4007.1 and 2.2-4017 and Executive Order 14 (as amended July 16, 2018). DARS determined that regulatory changes are needed to better define Program requirements; protect the health, safety, and welfare of the individuals served by the Program; and bring conformity to the operations of PGP Providers. DARS submitted a Notice of Intended Regulatory Action (“NOIRA") on April 1, 2021. That NOIRA has been reviewed by the Department of Planning and Budget and is under review by the Secretary of Health and Human Resources.

Common Misconceptions

The Program is an important part of the social safety net for many of Virginia’s most vulnerable adults; however, the role of the guardian is not commonly well-understood and there are many misconceptions. Many of the most common misconceptions are discussed in the report.

COVID-19; The Pandemic

A significant percentage of the Program’s clients live in congregate residential settings, placing them, and the staff of PGP Providers who oversee their care and conduct regular visits, at a heightened risk of contracting and transmitting COVID-19. In response, DARS has revised visitation policies as necessary throughout the pandemic, provided personal protective equipment to PGP Providers, and provided training to PGP Providers to help them respond appropriately to the pandemic. PGP Providers have diligently maintained contact with their public guardianship clients throughout the pandemic. As of June 30, 2021, 223 Program clients had been positively diagnosed with COVID-19. Of these 20 had died as a result of the infection.

Joint Legislative Audit and Review Commission Report and Recommendations

The Joint Legislative Audit and Review Commission (“JLARC") conducted a review of Virginia’s guardianship system in SFYs 2021 and 2022. DARS assisted JLARC by providing information regarding the operation of the Program, as well as responding to questions regarding the operation of guardianship in Virginia generally. JLARC’s draft report made public on October 18, 2021 was complimentary of the Program and recommended that the General Assembly consider including additional funding in the Appropriations Act to pay for 700 new public guardianship slots. JLARC made several other suggestions for Program improvements. These are (i) that at least one of the required face-to-face visits with each client be unannounced each year; (ii) periodic reevaluation of the 20:1 client-to-staff ratio to ensure that PGP Providers can effectively carry out their work, with changes made to the ratio as warranted; (iii) PGP Providers maintain a reportable record of formal complaints received with respect to performance of their guardianship duties that is shared with DARS annually; (iv) the General Assembly consider providing one-time funding to DARS for the purpose of hiring a third-party to study the need for expanding the capacity of the Program; to assess the cost of providing expanded public guardianship services; and to assess the costs of providing equal funding to all provider organizations for the same types of public guardianship slots; and (v) DARS issue a request for information for public guardianship services as soon as practicable to assess the availability of organizations interested in providing public guardianship services.

The Virginia Public Guardian and Conservator Advisory Board

The 15 member Virginia Public Guardian and Conservator Advisory Board serves as a technical resource and advisor to the Commissioner for the Program. Members are appointed by the Governor and, as required by Virginia Code § 51.1-149.1 B, include a representative of the Virginia Association of Area Agencies on Aging; a representative of the Virginia State Bar; a circuit court judge recommended by the Chief Justice of the Supreme Court; a representative of ARC of Virginia; a representative of the National Alliance on Mental Illness of Virginia; a representative of the Virginia League of Social Service Executives; a representative of the Virginia Association of Community Services Boards; the Commissioner of Social Services or his designee; the Commissioner of Behavioral Health and Developmental Services or his designee; one person who is a member of the Commonwealth Council on Aging: and other individuals who serve as at-large members.