Current through Register Vol. XLI, No. 36, September 6, 2024
Section 64-38-7 - Management of Guardianship of the Person of a Ward7.1. Services Generally 7.1.1 The corporation shall maintain an effective and direct role in the execution of its guardianship responsibilities. To this end, the corporation shall through its membership, employees, officers and directors be directly responsible for certain requirements as specified herein. The corporation may effectuate other responsibilities as specified in Section 5.17 of this rule. 7.1.2. Although the corporation shall not provide the educational, vocational, residential and medical services required by law and these rules, it shall be responsible for assuring that its wards are receiving these services as appropriate and in the setting least restrictive of the ward's personal liberty as required by law and as provided in these rules.7.1.3. Services shall be provided to each ward according to the needs, characteristics and capabilities of the individual ward.7.1.4. In the event that the ward is a resident of a health department inpatient facility, the corporation shall be required to represent the ward and to participate actively with health department staff in the planning of care and in other activities in which family members are generally expected to participate. The corporation shall also be required to represent the interests of the ward with state and county departments of education.7.1.5. In the event that a ward is not enrolled in a program or a resident in a facility which provides care and supervision of the ward twenty-four hours a day, the corporation shall provide or shall make arrangements for the availability of emergency support outside of the normal business day suitable to the needs, characteristics, capabilities and circumstances of the ward and as might be expected to be provided by a responsible concerned family member. Such support availability requirements shall be satisfied by the following: (a) the existence of a twenty-four hour a day community crisis intervention service with liaison to the corporation or caretaker of the ward; (b) the availability of corporation staff, directors, members or volunteers through telephone or other form of direct contact during weekends and evenings; (c) enrollment of the ward in case management or care programs with weekend and evening availability; (d) any other arrangements or combination of arrangements which the department determines to be reasonably adequate to ensure the health and safety of the ward: Provided,however, That the corporation shall document that it has: (a) informed the ward of the availability of the emergency support service; (b) provided any training or practice needed by the ward; (c) documents that it has met the information and training requirements; and (d) documents the capability of the ward to make use of the emergency service.7.1.6. The corporation shall provide or make arrangements for each ward to be provided an emergency identification information card unless the ward is resident in a twenty-four hour a day residential facility and shall encourage the ward to carry the card when not in his place of residence. The emergency identification card shall specify at least: (a) the name, address and telephone number of persons to be notified in case of emergency or accident; (b) any special conditions of the ward which might interfere with normal communication, such as but not limited to deafness; and (c) identification of any medical conditions or treatments of note in an emergency medical situation, such as, but not limited to, medications being taken, medication allergies, or potential for seizures.7.1.7. There shall be documented regular contact between the corporation and its wards as frequently as indicated by the needs, characteristics, capabilities, living circumstances and any other pertinent conditions of the ward and as feasible to the fiscal resources of the ward and the corporation: Provided,however, That there shall be no less than one person-to-person contact between the corporation membership or staff and the ward per year.7.1.8. The corporation shall develop and keep on file a guardianship plan for the person of any ward for which it has such responsibilities which shall include at a minimum: (a) a statement in detail of the particular characteristics, needs, abilities, disabilities and developmental potential of the ward; (b) a statement in detail of the resources necessary to foster, to the fullest extent possible, his development and maintenance as a human being; (c) a plan of specific actions to be undertaken by the corporation to protect the health, welfare and safety of the ward by securing for him services as required by law and this rule and other necessary and desirable social, habilitative, and other services as feasible.7.1.9. The guardianship plan shall be reviewed and updated as indicated by the characteristics, needs, abilities, disabilities and living circumstances of the ward but not less than annually at a minimum. Such review and update shall be documented in writing.7.1.10. The corporation shall encourage its wards to participate to the maximum of their abilities in all decisions affecting them.7.1.11. The corporation shall encourage wards to act on their own behalf in all matters in which they are able to do so.7.1.12. The corporation shall assist the ward in increasing his capabilities for self-help, independent living and adjustment to his residential and other community circumstances.7.1.13. The corporation shall allow the ward freedom of choice in living circumstances and life styles unless there shall be documented evidence that such freedom of choice would be detrimental to the individual's health, safety and general welfare.7.2. Staffing 7.2.1. Each ward of the corporation shall have a specific guardian representative. This responsibility shall not be satisfied through contract or arrangement with another entity.7.2.2. Guardian representatives shall have the responsibility for: (a) assuring the development of guardianship plans as required herein and by the county commission; (b) assuring the implementation of such guardianship plans. Development and implementation of the plan may be satisfied through arrangement with another agency as specified herein: Provided,however, That guardian representative shall be responsible for reviewing activities and progress relevant for the development and implementation of the plan.7.2.3. The guardian representative shall be responsible for maintaining continuity of the corporation's relationship to the individual and shall be personally familiar with the ward and his circumstances. This responsibility shall be maintained within the corporate structure unless the ward is a client of a case management system recognized and approved by the health department.7.2.4. Guardian representatives shall be qualified for their jobs by virtue of training, experience or a combination of both. The corporation shall develop detailed statements of the experience and training requirements for guardian representatives and shall document through detailed statements of experience and training, references and any other relevant materials how the individual's training and experience relate to his capability and competence to effectuate the responsibilities of the guardian representative. Either personal experience with a family member of the same general characteristics and service needs as wards for whom the individual may be designated as the guardian representative, or employment experience shall be acceptable. The corporation may provide or arrange for training where needed to supplement deficiencies in the individual's capabilities to perform the job, if an individual is not fully qualified at the time employment begins. The individual shall be given supervision or consultation by an individual who is appropriately qualified until training is sufficient.7.2.5. The ratio of staff to wards shall be adequate to meet ward needs. In determining the adequacy of staff, the department shall take into account at least the following: (a) the number of and intensity of services provided by the corporation; (b) the number of and intensity of services required by the wards; (c) the experience and efficiency of the corporation; (d) documentation in records that the corporation has fulfilled its obligations under law and this rule; and (e) documentation regarding the implementation of the guardianship plan.7.2.6. Volunteer workers may be utilized provided that such volunteers are qualified for the work they perform by virtue of professional training or by experience or are oriented and trained to perform those activities for which they will be responsible.7.2.7. The corporation shall maintain an employee and volunteer training program which shall provide at a minimum: (a) orientation and training for new employees and volunteers to acquaint them with the philosophy, organization, programs, practices and goals of the corporation;(b) orientation to talking competently with wards for purposes of a routine contact basis; and(c) additional initial and continued training needed specific to the duties, the responsibilities and the competency of the employee or volunteer.7.3. Health Services 7.3.1. The corporation shall implement activities and procedures to ensure that the ward receives necessary physical, dental, behavioral and other health services needed as determined by such characteristics as, but not limited to age, general physical condition, and special physical and mental problems.7.3.2. Each ward shall have a complete physical examination and evaluation within one month prior to or subsequent to the initiation of the guardianship or limited guardianship and an annual reevaluation thereafter, or more frequently if indicated by the physician, as determined by the individual's age, general health and any other relevant considerations.7.3.3. Each ward shall have a comprehensive preventive dentistry program.7.3.4. Health services shall be provided by individuals with valid current West Virginia licenses.7.4. Residential and Partial Care Services 7.4.1. The corporation shall screen and evaluate proposed and existing client residences, considering ward capabilities for self-care and management and shall evidence consideration of a continuum of both existing and desirable residential circumstances.7.4.2. Residential settings shall comply with any applicable health department licensure requirements and, in the absence of any applicable licensure standards, shall meet reasonable standards of sanitation, habitability and fire safety. Residential facilities shall also be in compliance with rules and regulations of the West Virginia fire commission and any other applicable local, state and federal laws, standards and rules and regulations.7.4.3. Whenever in the judgment of the department a ward is housed in an unsuitable residence, the department shall direct the corporation, upon written notice from the department, to place the ward in an alternate residential setting within ten days of receipt of the notice: Provided, however, That the department shall have the authority to effectuate immediate removal and alternate placement of a ward when the residence jeopardizes the health or safety of the ward.7.4.4. When existing residential facilities are determined to be unsuitable the corporation shall make alternative placements.7.4.5. The corporation shall encourage friends and relatives to visit the place of residence.7.4.6. When the ward is capable of some degree of independent living circumstances, but is in need of day, evening or recreational and social activities or supervision, the corporation shall make arrangements for the individual to participate in such partial care programs.7.4.7. Suitability of a residential setting or of a day, evening or other partial care program as required herein shall be evaluated considering factors such as but not limited to the ward's capability for self-care and management as related to the degree of supervision and care provided by the residence or partial care program and the habitability and safety of the residence or partial care facility.7.5. Educational Services 7.5.1. The guardianship plan shall provide for the placement of wards in the most suitable educational setting available, in accordance with the needs and capabilities of the ward as determined by an individual trained and experienced in special education.7.5.2. The corporation shall receive and have on file reports from the ward's educational program no less frequently than reports are issued by the public school system.7.5.3. Based on reports, interviews with the education program staff and with the ward and any other relevant information available, the corporation shall evaluate the effectiveness of the educational program.7.5.4. If necessary, the corporation shall place the ward in an alternate educational program.7.6. Vocational and Employment Services7.6.1. The corporation shall make reasonable efforts to assist the ward in obtaining employment suitable to his capabilities by locating and contacting prospective employers.7.6.2. The corporation shall arrange for programs to prepare the ward for an employment setting if there is potential for employment.7.6.3. The corporation shall implement procedures to prevent the exploitation of its wards by employers. Such procedures shall be directed toward accomplishing that wards receive training, compensation and privileges commensurate with their duties and comparable to other employees in similar circumstances.7.6.4. The corporation shall assess the adequacy and appropriateness of the job placement annually.7.6.5. The corporation shall attempt to arrange for alternative employment if the existing employment is unsuitable.7.7. Protection and Advocacy 7.7.1. The corporation shall inform and train the ward and any family and friends concerning the exercise of his civil and other legal rights.7.7.2. The corporation shall investigate and document alleged violations of ward's rights.7.7.3. The corporation shall document such investigation and actions taken to intervene in such alleged violations.7.7.4. The corporation shall define procedures for the procuring or provision of legal counsel to represent the interests of the ward and shall procure such legal counsel when it is in the best interests of the ward.7.7.5. The corporation shall inform the ward and friends and family regarding the procedures for terminating or changing the type of guardianship or the guardian.7.7.6. The corporation shall assure that those persons who provide services to the ward respect the rights and dignity of its wards. Statements of service provider policies regarding client or patient rights shall be on file with the corporation and shall be provided to the ward and, upon request, to family and friends of the ward.7.7.7. The corporation shall not perform any guardianship function for any individual in the absence of lawful proceedings appointing the corporation as guardian, limited guardian or standby guardian.7.7.8. The corporation may advise and assist families in implementing procedures to initiate guardianship.7.7.9. Each nonprofit corporation shall establish a guardianship review committee to perform the following duties:(a) review and otherwise pass upon all applications for guardianship;(b) oversee the administration of those guardianships accepted; and(c) review each case on a periodic basis to determine that guardianship is in the best interest of each client and, if not, to petition for termination of the guardianship.