New York Codes, Rules and Regulations
Title 18 - DEPARTMENT OF SOCIAL SERVICES
Chapter II - Regulations of the Department of Social Services
Subchapter C - Social Services
Article 5 - Adult and Family Services
Part 457 - Protective Services For Adults
Section 457.12 - Community guardianship

Universal Citation: 18 NY Comp Codes Rules and Regs ยง 457.12

Current through Register Vol. 46, No. 39, September 25, 2024

(a) General. Pursuant to the provisions of section 473-c of the Social Services Law, a social services district may contract with a community guardian program for the purposes of acting as a guardian on behalf of persons who meet the requirements of subdivision (c) of this section and for whom the district has commenced a special proceeding for the appointment of a guardian pursuant to article 81 of the Mental Hygiene Law.

(b) Definitions. When used in this section, unless otherwise expressly stated or unless the subject matter requires a different interpretation:

(1) Community guardian program means a not-for-profit corporation incorporated under the laws of the State of New York or a local governmental agency which has contracted with or has an agreement with a local social services official to provide guardianship services to adults who are eligible for such services, in accordance with the provisions of article 81 of the Mental Hygiene Law.

(2) Hospital means an inpatient medical facility as defined in subdivision one of section 2801 of the Public Health Law, or the inpatient services of a psychiatric center under the jurisdiction of the Office of Mental Health or any other psychiatric inpatient facility as defined in subdivision 10 of section 1.03 of the Mental Hygiene Law.

(3) Residential facility means any of the following:
(i) a skilled nursing facility or health-related facility operated pursuant to article 28 of the Public Health Law; or

(ii) an alcoholism or substance abuse treatment facility operated pursuant to article 19 or 23 of the Mental Hygiene Law; or

(iii) a community residence, family care home, or other community care facility for the mentally disabled operated pursuant to article 31 of the Mental Hygiene Law; or

(iv) an adult care facility operated pursuant to article 7 of the Social Services Law.

(c) Eligibility requirements. A social services official may bring a petition to appoint a community guardian as guardian for a person only if the person is:

(1) eligible for and in receipt of PSA, as defined in section 457.1(b) of this Part at the time of the petition; and

(2) without a capable friend or relative or responsible agency willing and able to serve as guardian; and

(3) living outside of a hospital or residential facility, or living in a hospital or residential facility and appointment of a community guardian is part of a discharge plan to return such person to the community.

(d) Contract requirements. A contract between a local social services official and a community guardian program must comply with the requirements of Part 405 of this Title pertaining to the purchase of services by social services districts. In addition, each contract must provide that:

(1) the community guardian program will make diligent efforts to maintain each person for whom the community guardian program is appointed as guardian in the community;

(2) the community guardian program will petition the court to relinquish its duties as guardian if a person for whom it is appointed as guardian is no longer in need of a guardian, or a capable friend or relative becomes available to serve as guardian, or the person enters a hospital or residential facility with the expectation of a long-term stay which will exceed six months and there is no anticipation of a return to the community, or the person remains in a hospital for more than six months with no expectation of a return to the community;

(3) whenever a community guardian program intends to petition the court to relinquish its responsibilities as guardian, the community guardian program will notify the social services district in writing, for its reviewed approval, of the reasons for the proposed relinquishment of responsibility and the community guardian program's proposed plan to meet the adult's continuing services needs. Upon receiving such approval from the social services district, the community guardian program must present such proposed plan to the court along with its petition to relinquish its responsibilities as guardian;

(4) the community guardian program will act on behalf of each person for whom it is appointed as guardian to obtain such medical, social, mental health, legal and other services and all entitlements and public benefits that are available and to which the person is entitled or qualifies and which are required for the person's safety and well-being;

(5) all remuneration awarded to the community guardian program by the court from the estate of a person for whom the community guardian program is appointed as guardian will be the lesser of the cost incurred by the community guardian program in serving such person or the fee that would otherwise be awarded by the court. Such remuneration must be paid over to the social services district;

(6) the community guardian program shall obtain annually a statement prepared by an independent physician, psychologist, nurse clinician, social worker or other person evaluating the condition and functional level for each person for whom it serves as guardian;

(7) the community guardian program will promptly inform the appointing court and the social services district of the results of the evaluation or examination required by paragraph (6) of this subdivision;

(8) the files and records of the community guardian program will be open to inspection by the local social services officials and the department;

(9) a case record must be established for each recipient of services from a community guardian program. At a minimum, the case record must contain:
(i) copies of the PSA assessment/services plan and updates prepared by the district in accordance with the provisions of section 457.2 of this Part;

(ii) semiannual assessments which must contain a description of the person's current mental and physical condition, housing conditions, availability of family members and friends and their willingness and capacity to assist the individual, the involvement of other agencies in the delivery of services to the client and the continuing services needs of the client and the plan for addressing these needs;

(iii) copies of the annual evaluation or examination required by paragraph (6) of this subdivision;

(iv) a separate financial management folder containing an individual financial management plan, a record of all financial transactions made on behalf of the adult by the community guardian program, copies of receipts for all expenditures made by the program on behalf of an individual, and copies of all other documents pertaining to the adult's financial situation as required by the department;

(v) itemized statements of costs incurred in the provision of services for which the community guardian program received court-authorized reimbursement directly from the individual's estate; and

(vi) other information as required by the department;

(10) a community guardian program must advise the persons served by such program of their right to review their case record in accordance with the provisions of section 357.2(c) of this Title; and

(11) in the event a conflict exists or develops between the stated wishes of a client, or the known customs, values, preferences, or beliefs of a client, and the values, standards, mission, or principles of a community guardian program, or an employee of such program, and if, under such circumstances, the community guardian program or the employee intends to substitute its own judgment in contravention of the client's stated wishes or known customs, values, preferences or beliefs, such program will immediately notify the local social services official and the appointing court of the conflict. Under such circumstances, the local social services official must investigate the circumstances of the conflict and must either take action to resolve the conflict and notify the court of the action taken to resolve the conflict; seek the advice of the court for resolution of the conflict; or petition for a substitute guardian.

(e) Department review and approval of contracts. Social services districts choosing to establish a community guardian program must submit a copy of the proposed contract between the district and a community guardian program to the department for its review and approval prior to the execution of the contract. The proposed contract must contain the following information:

(1) the name of the social services district;

(2) the name of the community guardian agency with whom the district plans to contract;

(3) documentation of the agency's status as a not-for-profit corporation or a local governmental organization;

(4) a description of the particular population or area to be served if not all PSA recipients served by the district who require guardianship are to be served by the community guardian agency, and a justification for utilizing a community guardian program in such a limited application;

(5) the projected number of persons for whom the community guardian agency will be appointed guardian;

(6) the projected budget of the program;

(7) a description of the relationship between the community guardian program and the district's PSA program, including a description of each agency's service delivery responsibility for persons receiving community guardianship services; and

(8) any other information required to be included in a purchase of services agreement pursuant to Part 405 of this Title.

(f) Contract monitoring responsibilities of the social services district.

(1) A social services district must conduct semiannual reviews of each case record maintained by a community guardian program to assure that the needs of the persons served by the program are adequately met and that continued services by the community guardian program are necessary.

(2) Each social services district must assure that no director, officer, or employee of a community guardian program will have a substantial interest in any corporation, organization or entity which contracts with such program to provide services to any person for whom the community guardian program is guardian. For the purpose of this paragraph, a person is determined to have a substantial interest in a corporation, organization or entity if such person receives financial remuneration from such corporation, organization or entity. A social services district may impose a more restrictive conflict of interest standard subject to the prior approval of the department.

(3) Each social services district must assure that persons hired by the community guardian program to provide services to a person for whom the community guardian program has been named guardian will be able to provide evidence of successful paid or volunteer experience in providing direct services to frail elderly or mentally disabled persons. Such experience may have been obtained in one or more of the following settings: a mental health facility or agency, a protective services agency, other human services agency, a home care services agency, a hospital or other health care agency. Documentation of such employee's experience must be maintained by the district and must be available for review by the department upon request. For the purposes of this paragraph, evidence of successful paid or volunteer experience means a demonstrated capability by the person that he or she is able to effectively serve the frail elderly or the mentally disabled population.

(g) Service delivery responsibilities of the district.

(1) A social services district must continue to provide PSA for three months following the appointment of a community guardian program as a guardian for a PSA client to assure that the client's situation is stabilized and that the services needs of the client will continue to be met. In those situations in which the client's situation is not stabilized after three months, the district must continue to provide PSA until the client's situation is stabilized.

(2) A local social services official will not be relieved of any duty to provide services to eligible persons because of the operation of a community guardian program in the locality or by cessation of such program in the locality. Eligibility determinations for services available from social services officials must be based on an individual assessment of need which must not be determined solely on the basis of the presence of the services of a community guardian program.

(h) Reimbursement to community guardian programs. Expenditures made by a social services district, pursuant to an approved contract for community guardianship services in accordance with the provisions of this section, will be subject to reimbursement by the State, in the amount of 50 percent of such expenditures, after first deducting therefrom any Federal funds properly received or to be received and any amounts received pursuant to paragraph (d)(5) of this section.

(i) Reporting requirements. Each social services district must submit reports on the implementation of section 473-c of the Social Services Law as may be required by the department. Such reports must be in a manner and in a format prescribed by the department.

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