–Advocates push for reform of adult guardianship system in Texas

Wednesday, June 25, 2014

By Julie Chang– American-Statesman Staff

It all started when Denise Tighe passed out at a restaurant in her North Texas hometown. The 85-year-old was taken to the hospital, deemed incapable of properly caring for herself and became a ward of the state against her will.

After she was assigned a guardian in 2011, she was taken to a nursing home 20 miles from her hometown near Fort Worth, which she adamantly protested, and her home and a lifetime of jewelry and antiques were put up for sale. She died in January with friends and family questioning whether the state did her more harm than good.

Now one of Tighe’s friends, Virginia Pritchett, is pointing to what happened to Tighe as an example of a broken adult guardianship system in Texas.

Pritchett is one of about two dozen advocates who gave testimony to the state Sunset Advisory Commission on Wednesday hoping to spur change. They say the guardianship process is stripping the rights from competent people and dragging them through a court system that requires them to spend thousands to protect their independence.

The push has gained momentum since the last legislative session when only a handful of critics lobbied with little success. Since then, a coalition of disability and elderly groups from across the state has banded together to develop and refine a set of proposals for the next session — calling for guardianships to be the last option and for more independence for wards of the state.

“These elderly people are being warehoused in nursing homes, and these court-appointed attorneys are going through all their money in court hearings that the elderly people don’t even know is occurring,” said Debby Valdez with the San-Antonio based Guardianship Reform Advocates For The Disabled & Elderly.

Adult guardianship cases are lawsuits designed to ensure vulnerable seniors and people with disabilities are not abused, neglected or exploited. A probate court must determine whether people are competent enough to keep themselves safe and healthy. If the answer is no, the judge can appoint a guardian to make medical, financial and other decisions for them.

Lawyers and judges have said that the system is protecting people and that proposed changes would leave people more vulnerable and throw unnecessary roadblocks into the process.

Texas has about 46,000 people in guardianship, according to the state. Between September 2011 and August 2012, more than 4,500 adult guardianship petitions were filed in probate courts across the state. Of those, 206 were filed in Travis County.

Advocates say that guardianship should be the last option for proposed wards and supported decision-making should be the alternative. This means allowing people with limited disabilities to hire supporters whose jobs are strictly to give information so they can make decisions for themselves.

“Even though it seems counterintuitive, not all people under guardianship are totally unable to make decisions,” said Bob Kafka with the Austin-based group Guardianship Reform and Supported Decision Making.

Supported decision-making has also garnered the support of former Texas Health and Human Services Commissioner Tom Suehs.

A few years ago, the Travis County probate court appointed Suehs’ mother-in-law a guardian ad litem, whom she paid about $300 an hour. She also hired her own attorney to fight the process.

After $30,000 in court fees, Suehs’ mother-in-law settled the dispute in mediation and she got her independence back.

“Some people have started using guardianship as an easy way out, to try to attack and resolve family disputes when they don’t need to,” Suehs said. “My own personal belief is that over the last five or six years, lawyers are creating an industry here.”

Suehs worked with lawmakers in the last legislative session for guardianship reform, but some laws passed that did more harm than good, according to advocates. The law that has garnered the most criticism gives guardians the authority to decide where a ward can live and peace officers must enforce it.

“It gives the guardian the authority to call the police and say, ‘I’ve got a court order and I can remove the little old lady from her house,’” Valdez said.

Advocates want people under guardianship to have the ability to decide where to live. And guardians should be forced to visit with their wards monthly and submit reports that are reviewed by the court, advocates say.

“Every alternative must be explored before even thinking about taking away someone’s civil rights,” Kafka said.

Yesterday, Amy Kantoff, TACIL Executive Director, attended a House of Representatives Human Services Committee hearing regarding Senate Bill 7.  Its implementation will have a direct impact on the well-being of nearly 100,000 Texans with disabilities, their families, and providers — so the hearing provided a great opportunity to hear about the intent of the legislation, the plan for how it will be carried out, and how stakeholder concerns are being addressed.

About SB 7.

SB 7 changes how medical and long-term services and supports will be provided through Medicaid and Medicaid waivers.  Medicaid managed care (STAR, STAR+PLUS) is being expanded.  The idea is to provide better services to more people, improve information and access and enhance person-centered planning and self-direction.  You can find a summary of all HHSC Medicaid Managed Care Initiatives here.

Agency Testimony.

First, HHSC and DADS (HHSC Deputy Commissioner Chris Traylor and DADS Commissioner Jon Weisenbaum) provided testimony regarding details about the bill and its implementation.

Gary Jessee (HHSC Deputy Director, Medicaid / CHIP) also spoke to questions regarding enrollment and ensuring consumer awareness of upcoming changes.

Committee members asked questions with regard to network adequacy and consumer access, particularly RE: consumers with intellectual / developmental disabilities.  They shared concerns the public expressed (below) about the aggressive timeline for implementation.

Public Testimony.

The hearing room was standing-room-only for most of the day – testimony was provided by a wide array of individuals and organizations that shared support for the initiative as well as concerns about its implementation.

• Organizations such as TCDD, CTD, ADAPT (including the Personal Attendant Coalition, an ADAPT project), DRT, the ARC of Texas
• Associations such as the Texas Healthcare Association, Private Providers Association of Texas, the Texas Chapter of the National Association of Social Workers
• Providers, such as nursing home and intermediate care facilities, and attendants
• Parents, grandparents, and other citizens

Testimony included comments regarding:

• Support for the initiative as it is intended to provide better services, information and access to more people while reducing costs and waiting lists
• Support for functional assessments based on the needs of the consumer
• The importance of the attendant!  We all know about issues with low attendant rates / wages – need to raise the minimum rates for attendants.  They are the providers who spot decubiti, nutrition issues, hygiene issues…they provide services that help keep the consumer from requiring services such as acute care, hospitalization
• People don’t know these changes are coming, or if they have received information, they are confused. The messages need to be made more clear.  (Dennis Borel of CTD suggested HHSC consider doing something like the Between Two Ferns comedy episode featuring President Obama.  Personally, I think this is a great idea.)
• Consider a less-aggressive timeline, and phasing, to ensure successful, not-rushed-into implementation and communication about changes.  (This was echoed by many.)  Develop an outreach and education strategy involving stakeholders
• Transportation.  How will transportation issues be managed?  This was also echoed by many. (Judy Telge travelled from Corpus to Austin to speak to this concern; she shared information about CILs with the Committee and the audience, as well as concerns about secondary providers: those who provide transportation and housing services.)
• Judy also spoke to nursing home relocation services: let’s dialog to ensure that those people who don’t want to be in nursing homes can get out.  There are tensions between managed-care-organization and relo staff (medical vs. consumer control model)
• Mental health needs of the I/DD population.  Few people who work with I/DD consumers are familiar with mental health issues, and few people who work in mental health are familiar with I/DD needs.  Behavioral services are typically ordered for compliance.  Often, mental health conditions are not diagnosed but instead symptoms are attributed to the disability.  Trauma-informed care is needed
• Availability of providers overall for the I/DD population

Next Steps:

• Committee Chairman Rep. Raymond asked that HHSC organize a meeting in mid-May for stakeholders.
• A hearing regarding I/DD redesign will be held in Austin April 15.  I plan to be there.
• Information sessions are being held in Houston, Beaumont, Laredo, McAllen, and Brownsville in the coming weeks.  Presentations are also available online that DADS and HHSC created to provide information for consumers as well as providers.

I encourage you to share this information with your staff.  I hope that you will take advantage of the opportunity to become more acquainted and involved.  Feel free to provide your input or ask questions at any time.

Amy Kantoff

Executive Director

TACIL | Texas Association of Centers for Independent Living

7101 Easy Wind Drive # 3114 | Austin, TX 78752
512.374.0730

www.taciltexas.org