APS IH / August 2010
APS and HHSC Office of Guardianship Services (OGS) work together on guardianship referrals and participate in the joint staffing process to promote positive outcomes for mutual clients.
APS determines the validity of allegations of abuse, neglect, and financial exploitation, and arranges for protective services. HHSC OGS determines if guardianship services are appropriate and arranges for those services.
Denial of Guardianship Referral
When HHSC OGS declines to seek guardianship based on a CME that finds the person has capacity or when the attorney responsible for filing the guardianship believes legal sufficiency is lacking to proceed, APS cannot request a review of decision. If an attorney responsible for filing determines the application lacks legal sufficiency to proceed, HHSC conducts an internal legal review of the case.
If HHSC OGS determines that guardianship is not an appropriate remedy for the client, the written notification to APS regarding the outcome of the assessment explains the issues that guardianship would not resolve.
If the outcome of the assessment is that HHSC OGS does not believe guardianship is appropriate, the APS supervisor coordinates with the HHSC OGS supervisor to schedule a joint staffing meeting to review alternatives.
APS IH / May 2011
The joint staffing meeting is conducted within five business days of the conclusion of the assessment or as agreed upon by the supervisors and with the participation of the:
• HHSC OGS supervisor;
• HHSC OGS guardianship specialist;
• APS supervisor;
• APS specialist; and
• APS subject matter expert, if appropriate.
The meeting may be held face-to-face, if possible, or alternatively by conference call.
The APS specialist, APS supervisor, and APS subject matter expert share relevant information and try to reach agreement with HHSC OGS staff regarding the best interest of the client.
Outcome of Joint Staffing With HHSC
After discussion, APS and HHSC OGS staff may agree that:
• HHSC OGS will not file for guardianship and that APS will pursue less restrictive alternatives consistent with APS guidelines;
• HHSC OGS may re-evaluate the case and issue instructions to HHSC staff for a re-assessment to be performed or other information to be obtained;
• HHSC OGS will identify and examine the appropriateness of a suitable alternate guardian;
• APS changes its position or accepts the HHSC OGS decision;
• HHSC OGS changes its position and files for guardianship; or
• APS and HHSC OGS are unable to reach agreement.
When HHSC and APS Do Not Agree on Alternatives
If HHSC OGS and APS do not reach an agreement regarding the best alternative for the client, the APS supervisor or subject matter expert forwards the case, including notes outlining the discussion and points of disagreement, to the APS program administrator.
Role of the APS Program Administrator
The APS program administrator:
• e-mails the HHSC OGS regional operations manager (ROM), requesting to appeal the guardianship decision;
• conducts an independent review of the information contained within the referral and the assessment before discussion with the HHSC OGS ROM; and
• within seven calendar days, discusses relevant issues with the HHSC Guardianship Services ROM or designee during the conference call, and tries to reach an agreement on the pending referral and the needs of the client.
The HHSC OGS ROM notifies the APS program administrator in writing within five calendar days after the joint staffing whether HHSC OGS will seek guardianship.
If the HHSC OGS ROM and the APS program administrator do not agree on the best approach for the client, the APS program administrator consults with the APS district director. Within three calendar days of receiving the HHSC OGS ROM’s decision, the program administrator may send the Request for Guardianship Review to the APS state office Director of Performance and Policy Development for consideration on whether to request a meeting of the Guardianship Review Committee.
See Appendix V: Guardianship Memorandum of Understanding
APS IH / August 2010
The GRC is a state office joint committee of HHSC OGS and DFPS representatives. The GRC is established to reach understanding and agreement when resolution is not reached at the regional level regarding whether HHSC OGS will pursue guardianship or another alternative will be sought.
The GRC meets and reviews cases as quickly as possible to reach resolution that is:
• in the best interest of the client;
• compliant with MOU requirements; and
• satisfactory to both HHSC OGS and DFPS.
APS state office program specialist ;
Unit manager of Policy and Program Development (UMPPD)
* CPS representative must have authority to make decisions for program. He or she may invite an additional CPS staff resource to committee meetings, if desired.
Other staff may be requested to attend or provide information on a case-by-case basis as determined by DFPS and HHSC OGS.
Once information is received from the APS program administrator, the DPPD has three calendar days to ask for a GRC meeting.
• If a meeting is desired, the APS DPPD contacts the HHSC UMPPD and requests a meeting be scheduled.
• The HHSC UMPPD schedules a GRC meeting within seven calendar days of receiving a meeting request.
• If representatives of HHSC OGS and DFPS cannot agree on a time to meet within the seven-day period, the section director of HHSC OGS and the APS DPPD are notified of the delay. Scheduling problems are expected to be resolved to ensure the meeting takes place expeditiously.
• Following the meeting of the GRC, the HHSC OGS section director (GPSD) notifies DFPS and HHSC in writing of the decision within seven calendar days, unless further consultation with the assistant commissioner of Access and Intake or other appropriate parties is required. Any delays in rendering the decision are communicated to DFPS within the same seven-calendar-day period.
• If the review of decision results in HHSC pursuing guardianship, HHSC OGS expedites the filing to the extent possible.
Appendix V: Guardianship Memorandum of Understanding
APS IH September 2014
Cooperation between APS and HHSC OGS is necessary to protect and serve mutual clients who are determined appropriate for consideration of HHSC guardianship services. APS staff also participate in ongoing joint staffings and provide assistance and consultation as needed.
The Memorandum of Understanding between DFPS and HHSC OGS outlines the specific duties and responsibilities of both departments, with the goal of ensuring positive outcomes for mutual clients.
4782 Standard Referrals to HHSC Office of Guardianship Services
4783 Emergency Referrals to HHSC Office of Guardianship Services
HHSC OGS does not refuse a referral based upon a lack of information. However, an incomplete referral form may:
• delay the guardianship assessment by HHSC OGS;
• delay the filing of the guardianship application; and
• ultimately result in the referral being closed.
HHSC OGS does not close a referral based upon failure by the APS specialist to provide information that is not related to the current APS investigation. For example, if the allegation is medical neglect, HHSC OGS does not close the referral because APS does not provide extensive financial information.
If the referral is found to be significantly incomplete because of the absence of a validated allegation of abuse, neglect, or financial exploitation, or client’s address or contact or locating information, then the HHSC supervisor notifies the APS specialist and the APS supervisor in writing via email regarding the need to provide the missing information within five calendar days of the referral.
If the information cannot be located or provided, the APS supervisor or APS specialist contacts the HHSC OGS supervisor to discuss the situation and develop a solution for the deficiency. The HHSC OGS regional operations manager and the APS district director are notified of a proposed solution, and coordinate a final decision, if necessary.
Medicaid and the Guardianship Process
HHSC OGS seeks guardianship of the person and estate, if appropriate, while the Medicaid application is pending. APS guarantees payment for cost of the client’s care during the guardianship process until HHSC is qualified as guardian, and accesses the ward’s income and resources or the Medicaid application is processed.
If the client is denied Medicaid coverage because of excess income or resources and lacks sufficient liquid assets to pay the cost of care, APS supplements the client’s income to pay for the cost of care to the extent not covered by the person’s accessible income or resources while HHSC OGS makes a reasonable good faith effort to resolve the issues.
If the client remains ineligible and HHSC OGS is not able to access the income or resources of the proposed ward or ward, and following consultation with APS, HHSC OGS may withdraw its guardianship application or resign as guardian.
If HHSC OGS is granted guardianship with a Medicaid application pending, the APS specialist must maintain an open Intensive Case Services or Maintenance stage in order to supplement the client’s cost of care until HHSC OGS resolves the Medicaid eligibility. The APS specialist is not required to conduct monthly status visits or any other case actions beyond documenting service authorizations and other procurement methods to supplement the client’s cost of care.
See 3600 Purchased Client Services
Certified Medical Examination
HHSC OGS is responsible for obtaining the Certificate of Medical Examination (CME), which is a fundamental element of guardianship assessment. While assessing the client for guardianship, if HHSC OGS believes there are indications that the client’s capacity issues may have resolved, the HHSC OGS guardianship specialist consults with the physician or other professional who provided the medical or professional evaluation to APS.
If, after consulting the physician or other professional, the HHSC guardianship specialist still believes the client has capacity to consent, he or she may obtain a CME for the purpose of guardianship assessment. The HHSC OGS guardianship specialist provides the physician with all information provided by APS, including:
• all APS case information, including the referral form;
• any medical or psychological information; and
• contact information for the APS specialist.
The APS specialist authorizes payment for the initial CME when it is arranged by the HHSC OGS guardianship specialist. Payment for all subsequent CMEs is the responsibility of HHSC OGS. In the event a subsequent CME is sought, HHSC OGS ensures that the physician receives the information listed above. HHSC OGS provides the APS specialist with a copy of the CME within five calendar days of receipt.
Determination of Intellectual Disability
When the primary reason for seeking a guardianship is a diagnosis of intellectual disability, HHSC OGS obtains a Determination of Intellectual Disability (DID), its update, or endorsement that complies with the requirements of Health and Safety Code §593.005. If it is dated more than 24 months before the guardianship application, then an update must be obtained. If APS has located an existing DID, the APS specialist provides HHSC OGS with a copy of the document.
Communication of Status
HHSC OGS provides APS with an update on the status of a referral every 30 days by email until a final decision is made about the guardianship referral, the Letters of Guardianship are established, or the case is closed.
Request for Extension on Filing Guardianship Application
If HHSC OGS determines the application for guardianship cannot be filed by the 70 calendar day from the date of referral, then HHSC OGS state office may, by the 60 day following the referral, request an extension. HHSC OGS makes the request in writing to the APS Director of Performance and Policy Development (DPPD) or designee with an explanation of why the extension is needed.
Within 48 hours or the next business day of receiving the request from HHSC OGS, the APS DPPD or designee provides the HHSC OGS section director or designee written notice when the 30 day extension is approved or denied.
The HHSC OGS section director or designee has 48 hours or the next business day to request a review of a denial. This request is sent to the APS associate commissioner or designee by either the HHSC OGS section director or the HHSC assistant commissioner of Access and Intake. The request is reviewed by either the APS associate commissioner or designee within 48 hours.
If the extension is not granted and the applicant cannot file by the 70 day time frame, HHSC OGS immediately files for guardianship.
If a 30 day extension is approved by DFPS, but the applicant fails to file during the 30 day extension, HHSC OGS immediately files for guardianship.
Less Restrictive Alternatives and Subsequent Referral Within Six Months
If a less restrictive alternative is put in place after a guardianship referral, and within six months APS receives a new intake and validates abuse, neglect, or financial exploitation of the client, a new referral to and assessment by HHSC OGS is required.
APS makes a new referral to HHSC OGS that includes any new information concerning the intervening events. HHSC OGS uses the previous assessment information and any new information that APS provides in the new referral.
Both HHSC OGS and DFPS expedite the referral and assessment process, except in situations where:
• the client does not have financial resources or the likelihood of achieving eligibility for benefits to pay for care; or
• guardianship does not provide protection from abuse, neglect, or financial exploitation because of lack of cooperation from the client.