Public Policy News
The MGA follows important legislative or administrative initiatives effecting incapacitated persons, their families and their guardians or conservators and educates and informs our members and the public of developments. Members and the public are encouraged to share information on any topic important to our constituents to magnify our educational efforts.
Some of the legislation we are presently following includes:
1. The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) (H 2181)
The UAGPPJA will bring clarity and predictability to guardianship cases where multiple states are involved in the legal matter. It would establish a uniform set of rules for determining jurisdiction and supply a framework that would allow state courts to communicate with each other. This very important bill remains lodged in the Joint Committee on the Judiciary, and members are encouraged to contact their own elected officials to determine whether they support the bill, and how they can help. The MGA Newsletter, the Guardian, has an article describing the significant values of this important proposed law, which is a priority of all national advocacy groups, such as the National Guardianship Association, the AARP, the national Academy of Elder Law Attorneys, and the National Senior Citizens Law Center. Read more at the MGA Newsletter, Volume I, Issue1, www.massguardianshipassociation.org/newsletter/
2. Technical Corrections to the Mass. Uniform Probate Code –MUPC (Senate 704)
The Technical Corrections bill amends the guardianship/conservatorship provisions of Article V of the MUPC, Massachusetts General Laws c. 190B sections 501 and following. It is the product of a work group of interested stakeholders who wanted to make technical corrections and other substantive improvements to the statute. For example, in light of the difficulty in obtaining medical certificates, and the delays and expenses resulting, the bill expands the authority to execute certificates to qualified nurse practitioners. You can read the bill in its entirety on the Legislative website www.state.ma.us, click on Legislature, click on bills, and select. Click on bill history for a status report.
Update: PASSED. To read more about the technical corrections regarding Guardianship, see the MGA 2012 Winter Newsletter. Section 54 of the bill establishes the Mass. Uniform Trust Code, but Sections 25 through 49 contain technical and substantive corrections to Article V of the MUPC – amending M.G .L. c. 190B, sections 5-105 through 5-504. For example, Section 31 expands the authority to sign a medical certificate to a “certified psychiatric nurse clinical specialist, nurse practitioner”.
3. Public Guardianship Commission (PGC)- (S 755)
This bill would establish an independent Public Guardianship Commission. The Commission would help provide services as guardian and conservator to indigent incapacitated individuals with no involved family or friends. The PGC bill remains in the Judiciary Committee, and, while it will entail some expense, we would encourage all to advocate for its enactment. Massachusetts is one of only a handful of states having no public guardianship function, with often disastrous consequences to incapacitated persons who are indigent and have no family or friends. The Courts need an effective PGC in order to bring resources to bear to protect such persons. Read more on the MGA Newsletter, Volume I, Issue Two, www.massguardianshipassociation.org/newsletter/
Public Policy Issues
The MGA also works to address problems with current laws that are either insufficient or that could be implemented differently in order to best protect those the laws are intended to protect.
The Rudow Reinbursement
The reimbursement of guardianship fees through a deduction from a MassHealth recipient’s Patient Paid Amount (PPA), is known as Rudow reimbursement. In Rudow v. Commissioner of the Division of Medical Assistance, 429 Mass. 218 (1999), the SJC instructed MassHealth to develop a reasonable mechanism for reimbursing such costs since a medical guardian was a condition precedent to providing care for a resident who lacked the capacity to consent to such care. Following the Rudow decision, MassHealth promulgated regulations implementing that court order that provided such a mechanism – a guardian’s incurred costs were allowed by the Probate Court, in line with the limits set out in the regulation, and the expenses were recouped by diverting future income of the resident from payments to the nursing home (as part of the calculation of the so-called Paid Amount PPA) to payment of the guardian’s expenses. Such expenses are subject to limits set in the regulations and must be approved by the Probate Court. Our Public Policy Committee is working to address issues that this decision did not address (such as what happens if a person does not have a monthly income from which to make the Rudow deduction), as well as some issues in its implementation.