Title of Regulation: 22VAC30-70. The Virginia Public Guardian and Conservator Program (amending 22VAC30-70-10 through 22VAC30-70-60).

Statutory Authority: § 51.5-131 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: June 9, 2021.

Effective Date: June 25, 2021.

Agency Contact: Charlotte Arbogast, Policy Advisor, Department for Aging and Rehabilitative Services, 8004 Franklin Farms Drive, Richmond, VA 23229, telephone (804) 662-7093, FAX (804) 662-7663, TDD (800) 464-9950, or email charlotte.arbogast@dars.virginia.gov.

Basis: The Virginia Public Guardian and Conservator Program is established under Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia. Section 51.5-149 gives the Department for Aging and Rehabilitative Services (DARS) the oversight for the provision of the program. In accordance with § 51.5-150 B 3 of the Code of Virginia, the department is authorized to adopt reasonable regulations to implement, administer, and manage the program, including the adoption of minimum training and experience requirements for staff and volunteers, client-to-staff ratios, and person-centered practices.

Purpose: The purpose of this action is to improve consistency, transparency, clarity, and enforcement of program requirements. The program serves some of the Commonwealth's most vulnerable citizens: individuals who are incapacitated, unbefriended, and indigent. Clear regulatory requirements are vital to protecting their health, welfare, and safety.

Rationale for Using Fast-Track Rulemaking Process: Upon review of the Code of Virginia and the requirements in the department's contract with public guardian program contractors, the department decided to pursue regulatory revisions. As the program has grown in size and scope over the last decade, an update to the chapter for these reasons is needed. Most revisions made through this regulatory action align with the Code of Virginia or requirements of public guardian program contractors under contracts with the department and are intended to clarify or improve the logic and flow of the chapter.

The department shared the potential revisions with the Virginia Public Guardian and Conservator Advisory Board and the department's 13 public guardian program contractors. The department received no objections from the entities for these revisions, and therefore the amendments are deemed noncontroversial.

Substance: New substantive provisions in the regulation include:

Technical changes that update Code of Virginia references in various places to align with Code of Virginia requirements and remove unnecessary and duplicative terminology.

Definitions are added for "face-to-face" and "volunteer", and the definition of "public guardian program" is differentiated from the "public guardian program contractor", which is the legal entity that operates the public guardian program under contract with the department. The terms are clarified throughout the chapter in various places. The term "indigent" is updated, and the definition revised to reflect criteria found in the Code of Virginia.

Definitions for "local program" and "regional program" are removed. As the program has evolved, the terms no longer apply, and the requirements are equivalent for both. The public guardian program staffing and volunteer requirements are restructured for improved logic and flow. A new requirement for a face-to-face meeting with the client once per month is added. This is best practice and a longstanding contract requirement for public guardian program contractors. This inclusion will not change the current practices of programs. Requirement for coordination on clients receiving case management services through the Department of Behavioral Health and Developmental Services (DBHDS) is clarified. The current requirement was unclear and referenced the client's court order, which generally does not discuss planning goals in specificity.

The multidisciplinary panel requirements are restructured to improve logic and flow. A requirement for representatives on the panel from each jurisdiction when public guardian programs are regional is removed. This requirement was overly burdensome to some programs and did not add specific value to the multidisciplinary panel. Referral screening considerations are updated so that the current requirements reflect the department's expectations and current panel practices. The requirement that panels consider if a limited guardianship or conservatorship is appropriate is moved. In such cases, specific instructions for how to make recommendations to that effect are added. This reflects best practice and the department's expectation of programs.

Volunteers are added to the requirement to report suspected abuse, neglect, and exploitation. This was likely an omission, and adding volunteers is in keeping with best practice and ethical obligations.

The requirements for new staff hires and training and orientation for staff upon hire and for volunteers is updated. The requirements for staff criminal record checks and drug testing are clarified. The Virginia-specific requirement for a diploma or GED from an accredited program for staff qualification is removed. A diploma or GED from outside Virginia should be acceptable. The requirement for knowledge and course work on guardianship prior to hire is removed. For non-program director staff, this is best covered upon hire during training and orientation, and it is not realistic to expect all new staff to have that knowledge upon hire. A new requirement that volunteers receive a drug screening is added. This is a new requirement. However, many contractors have already been doing this as a standard practice.

That the client's Uniform Assessment Instrument (UAI) or other assessment instrument should be a current version and that the care plan required should be the guardian program care plan and be current are all clarified. This is consistent with the intent of § 51.5-150 B 6 of the Code of Virginia. Values history report must be current, and guardian report to the court should be the most recent one filed. Conservator report to the court should be the most recent one filed.

Requirements for the department for evaluating and monitoring public guardian programs and for public guardian programs to maintain compliance and provide reports to the department are restructured.

Issues: With ever increasing attention on both public and private guardianships in the Commonwealth, the primary advantage of the regulatory action is the increased protection and clarity it provides to clients and public guardian programs. The action is needed to protect the health, safety, and welfare of the vulnerable clients served by the program. The new regulation also provides clear and consistent requirements for public guardian program contractors and public guardian programs and for department staff to use in monitoring compliance with standards.

In the proposed regulatory action, a fair and reasonable balance has been attempted to ensure adequate protection of clients while considering the impact on public guardian program contractors. While requirements have been added to the regulation, including volunteer drug screening, volunteer reporting of abuse, neglect, and exploitation, face-to-face meetings with clients, and instructions for how to make recommendations for limited guardianship or conservatorships, these requirements are either already in place with contract provisions or are standard practices for the public guardian programs. Further, some requirements for public guardian programs that were deemed unnecessary, outdated, or burdensome have been removed, including distinctions between local and regional programs, local jurisdiction membership on the multidisciplinary panels of regional programs, and initial knowledge requirements for staff upon hire.

There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Department for Aging and Rehabilitative Services (DARS) proposes to: 1) align the regulation with current Code of Virginia requirements and with requirements already in place in contracts between the public guardian program contractors and DARS, and 2) clarify and improve the logic and flow of the regulation.

Background. The Virginia Public Guardian and Conservator Program provides public guardian and conservator services for adults who are incapacitated, indigent, and for whom no other proper or suitable person can be identified who is willing and able to serve as the individual's guardian, or conservator, or both. The program reports it has capacity to provide public guardianship services, public conservatorship services, or both to 1,049 incapacitated adult residents of Virginia who are found by a Virginia circuit court to be (i) incapacitated, and (ii) meet the criteria for public guardianship as set forth in § 64.2-2010 of the Code of Virginia. These services are provided by 13 local public guardian programs, which are operated by local public guardian program contractors under contract with DARS.

Estimated Benefits and Costs. The proposed changes align the regulation with the current Code of Virginia requirements and with requirements already in place in contracts between the public guardian program contractors and DARS and clarify or improve the logic and flow of the regulation. None of the proposed changes appear likely to alter the current practices followed in the operation of the program. Thus, no significant economic effect is expected other than improving the clarity of the regulatory language.

Businesses and Other Entities Affected. This regulation applies to 13 local public guardian programs which are operated by local public guardian program contractors under contract with DARS. The number of individuals the program can serve is currently capped at 1,049 incapacitated adult residents.¹ No adverse or disproportional impact is indicated for any of the affected entities.²

Small Businesses³ Affected. The proposed amendments do not appear to adversely affect small businesses.

Localities⁴ Affected.⁵ The proposed amendments do not appear to adversely or particularly affect any localities.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments do not appear to affect the use and value of private property or the real estate development costs.

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¹Data source: DARS

²Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined.

³Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

^4"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁵§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Department for Aging and Rehabilitative Services concurs with the economic impact analysis performed by the Department of Planning and Budget.

Summary:

The amendments, which reflect current practices of the department and the public guardian program, (i) align the regulation with the Code of Virginia and requirements already in place in contracts between the public guardian program contractors and the department and (ii) clarify or improve the logic and flow of the chapter.

22VAC30-70-10. Definitions.

The following words and terms when used in this regulation shall have the following meaning unless the context clearly indicates otherwise:

"Advisory board" means the Virginia Public Guardian and Conservator Advisory Board as authorized by §§ 2.2-2411 51.5-149.1 and 2.2-2412 51.5-149.2 of the Code of Virginia.

"Client" means a person who has been adjudicated incapacitated and who is receiving public guardian or conservator services from a public guardian program.

"Conservator" means a person appointed by the a court who is responsible for managing the estate and financial affairs of an incapacitated person and, where the context plainly indicates, includes a "limited conservator" or a "temporary conservator." The term includes (i) a local or regional program designated by the Department for Aging and Rehabilitative Services as a public conservator pursuant to §§ Article 6 (§ 51.5-149, 51.5-150, and 51.5-151 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia or (ii) any local or regional tax-exempt charitable organization established pursuant to § 501(c)(3) of the Internal Revenue Code to provide conservatorial services to incapacitated persons. Such tax-exempt charitable organization shall not be a provider of direct services to the incapacitated person. If a tax-exempt charitable organization has been designated by the Virginia Department for Aging and Rehabilitative Services as a public conservator, it may also serve as a conservator for other individuals. Incorporated by reference to this definition is the definition of "conservator" found in § 37.2-1000 of the Code of Virginia and any successor language thereof.

"Department" means the Department for Aging and Rehabilitative Services.

"Face-to-face" means an in-person meeting with the client.

"Guardian" means a person appointed by the a court who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person's support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of involuntary admission, residence. Where the context plainly indicates, the term includes a "limited guardian" or a "temporary guardian." The term includes (i) a local or regional program designated by the department as a public guardian pursuant to §§ Article 6 (§ 51.5-149, 51.5-150, and 51.5-151 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia or (ii) any local or regional tax-exempt charitable organization established pursuant to § 501(c)(3) of the Internal Revenue Code to provide guardian services to incapacitated persons. Such tax-exempt charitable organization shall not be a provider of direct services to the incapacitated person. If a tax-exempt charitable organization has been designated by the department as a public guardian, it may also serve as a guardian for other individuals. Incorporated by reference to this definition is the definition of "guardian" found in § 37.2-1000 of the Code of Virginia and any successor language thereof.

"Incapacitated person" means an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition. A finding that a person is incapacitated shall be construed as a finding that the person is "mentally incompetent" as that term is used in Article II, Section 1 of the Constitution of Virginia and Title 24.2 of the Code of Virginia unless the court order entered pursuant to this chapter Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2 of the Code of Virginia specifically provides otherwise. Incorporated by reference to this definition is the definition of "incapacitated person" found in § 37.2-1000 of the Code of Virginia and any successor language thereof.

"Indigency" "Indigent" means the client is a current recipient of a state-funded a person who (i) is eligible for or receiving state-funded or federally funded federally-funded public assistance program for the indigent or as otherwise defined in § 19.2-159 of the Code of Virginia benefits whose eligibility for such benefits is based in whole or part upon an evaluation of their income against federal poverty guidelines, (ii) as otherwise defined in § 19.2-159 of the Code of Virginia, or (iii) whose resources have been determined by a Virginia circuit court to be so limited as to satisfy the criteria for appointment of a public guardian, public conservator, or both set forth in § 64.2-2010 of the Code of Virginia.

"Least restrictive alternatives" means, but is not limited to money management services including bill payer and representative payee services, care management, and services provided pursuant to a financial or health care power of attorney.

"Minimal fee" means allowable fees collected or payable from government sources and shall not include any funds from an incapacitated person's estate.

"Public guardian program" means the program operated by the public guardian program contractor pursuant to a contract with the department to provide public guardianship services, public conservatorship services, or both pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia. For the purposes of this chapter, a regional public guardian program shall be equivalent to a local public guardian program.

"Public guardian program contractor" means a local or regional public or private nonprofit legal entity or program designated by with whom the department as a public guardian, a public conservator or both, pursuant to §§ 51.5-150 and 51.5-151 of the Code of Virginia, and operating under has entered into a contract entered into with the department to operate a public guardian program.

"Virginia Public Guardian and Conservator Program" means the statewide program administered by the department pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia and operationalized through a network of public guardian program contractors under contract with the department.

"Volunteer" means a person, including an unpaid intern, who works with the public guardian program and:

1. Is not paid for services provided to the public guardian program; and

2. Is not counted in the client-to-staff ratio.

22VAC30-70-20. Introduction and purpose.

A. Introduction. Pursuant to § 51.5-149 of the Code of Virginia, the General Assembly declared that the policy of the Commonwealth is to ensure the appointment of a guardian or conservator to that persons who cannot adequately care for themselves because of incapacity are able to meet essential living requirements for physical and emotional health and management of financial resources with the assistance of a guardian or conservator, as appropriate, in circumstances where (i) the incapacitated person is indigent person's financial resources are insufficient to fully compensate a private guardian or conservator and pay court costs and fees associated with the appointment proceeding, and (ii) there is no other proper and suitable person willing and able to serve in such capacity or there is no guardian or conservator appointed within one month of adjudication pursuant to § 64.2-2015 of the Code of Virginia.

B. Purpose. This regulation sets forth requirements for the statewide program of local and regional public guardian programs Virginia Public Guardian and Conservator Program and establishes the requirements for local and regional entities public guardian program contractors to operate a designated public guardian program.

22VAC30-70-30. Public guardian programs.

A. Designation. The department shall select public guardian programs program contractors in accordance with the requirements of the Virginia Public Procurement Act. Only those programs that operations of the public guardian program contractor governed by and funded pursuant to the department's contract with the department shall be designated as public guardian programs. Funding for public guardian programs is provided by the appropriation of general funds.

B. Authority. A public guardian program appointed as a guardian, a conservator, or both as a guardian and conservator, shall have all the powers and duties specified in Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2 of the Code of Virginia, except as otherwise specifically limited by a court.

C. Structure Staff.

1. Program director. Each public guardian program shall have a program director who supervises and is responsible for providing public guardianship and public conservatorship services to any incapacitated persons assigned by the court and to provide overall administration for the public guardian program. The program director shall be a full-time employee of the program and have experience as a service provider or administrator in one or more of the following areas: social work, case management, mental health, nursing or other human service programs. The program director shall also demonstrate, by objective criteria, a knowledge and understanding of Virginia's guardianship laws, alternatives to guardianship, and surrogate decision making activities. The program director shall attend all training and activities required by the department.

2. Each public guardian program shall establish a multidisciplinary panel to (i) screen cases for the purpose of ensuring that appointment of a guardian or conservator is appropriate under the circumstances and is the least restrictive alternative available to assist the incapacitated person. This screening shall include a duty to recommend the most appropriate limitations on the power of the guardian or conservator, if any, to ensure that the powers and duties assigned are the least restrictive, and (ii) annually review cases being handled by the program to ensure that a guardian or conservator appointment remains appropriate. Composition of a multidisciplinary panel should include representatives from various human services agencies serving the city, county, or region where the public guardian program accepts referrals. If serving a region, the multidisciplinary panel shall have at least one representative from each local jurisdiction within the region. To the extent appropriate disciplines are available, this panel should include but is not limited to representation from:

a. Local departments of social services, adult protective services;

b. Community services boards or behavioral health authorities;

c. Attorneys licensed by the Virginia State Bar;

d. Area agencies on aging;

e. Local health departments;

f. Nursing home, assisted living, and group home administrators; and

g. Physicians and community representatives.

D. Client ratio to paid staff ratio.

1. a. Each public guardian program shall maintain a direct service ratio of clients to paid staff that does not exceed the department's established ideal ratio of 20 incapacitated persons clients to every one paid full-time staff person 20:1 20 to one.

2. b. Each public guardian program shall have in place a plan to immediately provide notice to the circuit court or courts and sheriffs in its jurisdiction, where appropriate, and to the department when the public guardian program determines that it may exceed its the ideal ratio of clients to paid staff.

3. c. In an emergency or unusual circumstance, each public guardian program, in its discretion, may exceed the department's established ideal ratio by no more than five additional incapacitated persons clients. Each public guardian program shall have in place a policy to immediately provide notice to the department when such an emergency or unusual circumstance occurs and when the emergency or unusual circumstance ends and the ideal ratio has returned to 20:1 20 to one. The notice to the department shall comply with policy established by the department. Other than an emergency or unusual circumstance as described in the preceding sentence, a waiver must be requested to exceed the department's established ideal ratio. The department, in consultation with the advisory board, shall establish written procedures for public guardian programs to obtain appropriate waivers regarding deviations in the ideal ratio of clients to paid staff. Procedures shall comply with §§ 51.5-150 and 51.5-151 of the Code of Virginia. The department shall report waiver requests and status of granted waivers to the advisory board at its regularly scheduled meetings. The department shall review such waivers every six months to ensure that there is no immediate threat to the person or property of any incapacitated person nor client and that exceeding the department's established ideal ratio is not having or will not have a material and adverse effect on the ability of the public guardian program to properly serve all of the incapacitated persons clients it has been designated to serve.

3. Volunteers.

a. Volunteers may be recruited and used to supplement paid staff. However, volunteers shall not be counted in the client to staff ratio.

b. Volunteers may not exercise the authority of a public guardian or conservator.

c. Each public guardian program that uses volunteers shall develop and implement written procedures for volunteer management and supervision.

E. Appointments D. Multidisciplinary panel.

1. Each public guardian program shall establish a multidisciplinary panel to (i) screen cases, consistent with subdivision 3 of this subsection, for the purpose of ensuring that appointment of a public guardian or public conservator is appropriate under the circumstances and is the least restrictive alternative available to assist the incapacitated person, and (ii) annually review cases being handled by the program to ensure that a public guardian or conservator appointment remains appropriate.

2. Composition of a multidisciplinary panel shall include representatives from various human services agencies serving the city, county, or region where the public guardian program accepts referrals. To the extent appropriate disciplines are available, this panel may include representation from:

a. Local departments of social services, including adult protective services;

b. Community services boards or behavioral health authorities;

c. Attorneys licensed by the Virginia State Bar;

d. Area agencies on aging;

e. Local health departments;

f. Nursing home, assisted living, and group home administrators;

g. Physicians; and

h. Other community representatives.

1. 3. Prior to the public guardian program accepting an individual for services, the multidisciplinary panel described in subdivision C 2 of this section shall screen referrals to ensure that:

a. The public guardian program is appointed as guardian, or conservator, or both only in those cases where public guardianship or public conservatorship is the least restrictive alternative available to assist the individual;

b. The appointment The public guardian program has the resources to serve the individual, and the appointment of the public guardian program is consistent with serving the type of client identified by the established priorities of the public guardian program;

c. The individual cannot adequately care for himself;

d. The individual is indigent; and

e. There is no other proper or suitable person or entity to serve as guardian.

f. In the case of an individual who receives case management services from a community services board (CSB) or behavioral health authority (BHA), the multidisciplinary panel may also request the results of the "determination of capacity" as authorized by 12VAC35-115-145 (Determination of capacity to give consent or authorization) and verification that no other person is available or willing to serve as guardian pursuant to 12VAC35-115-146 E (Authorized representatives).

2. 4. In the event the multidisciplinary panel determines that the referred individual should be accepted as a client, the panel shall further consider what, if any, limitations should be imposed on the powers of the public guardian or public conservator to ensure that the powers and duties assigned are the least restrictive necessary. Any such limitations recommended by the multidisciplinary panel shall be communicated to the person or entity that made the referral and to the guardian ad litem appointed in any court proceeding pursuant to Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2 of the Code of Virginia in which the public guardian program has been recommended as the guardian, conservator, or both.

5. The multidisciplinary panel shall review active cases at least once every 12 months to determine that:

a. The client continues to be incapacitated;

b. The client continues to be indigent; and

c. There is no other proper or suitable person or entity to serve as guardian, conservator, or both.

E. Appointments.

1. Appointments by a circuit court shall name the public guardian program, rather than an individual person, as the public guardian, the public conservator or both guardian and conservator, as applicable.

3. 2. A public guardian program shall only accept appointments as public guardian, public conservator, or both guardian and conservator that generate no fee or that generate a minimal fee.

F. Services.

1. A public guardian program shall have a continuing duty to seek a proper and suitable person who is willing and able to serve as guardian, conservator, or both guardian and conservator for the incapacitated person client.

2. The public guardian program shall, at a minimum, have one face-to-face meeting with every client each calendar month.

3. The public guardian or conservator program shall encourage the incapacitated person client to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage his personal affairs to the extent feasible.

3. 4. The public guardian or conservator program shall be guided by person-centered planning that:

a. Focuses on the expressed preferences, personal values, and needs of the individual receiving public guardian program services client; and

b. Empowers and supports the individual receiving public guardian program services client, to the extent feasible, in defining the direction for his life and promoting self-determination and community involvement.

4. 5. To the maximum extent feasible, the person-centered planning process shall:

a. Include people chosen by the individual client;

b. Provide necessary information and support to enable the individual client to direct the process and to make informed choices and decisions;

c. Be timely and occur at times and locations convenient for the individual client;

d. Require participation and collaboration, in In the case of an individual receiving case management services licensed or funded by the Department of Behavioral Health and Developmental Services, require participation and collaboration among the public guardian or conservator program, case managers, and service providers in meeting the individual's client's planning goals, in conformity with the guardian or conservator's court order;

e. Reflect the individual's client's cultural values;

f. Offer choices to the individual client regarding the services the individual client receives and from whom the individual client receives those services; and

g. Include documentation of processes employed in and the outcomes of person-centered planning.

5. The multidisciplinary panel described in subdivision C 2 of this section shall review active cases at least once every 12 months to determine that:

a. The client continues to be incapacitated;

b. The client continues to be indigent; and

c. There is no other proper or suitable person or entity to serve as guardian, conservator, or both guardian and conservator.

6. Each public guardian program shall set priorities with regard to services to be provided to incapacitated persons clients in accordance with its contract with the department.

7. Each public guardian program shall develop written procedures and standards to make end-of-life decisions or other health-related interventions in accordance with the expressed desires and personal values of the incapacitated person client to the extent known. If expressed desires or personal values are unknown, then written procedures, including an ethical decision-making process, shall be used to ensure that the public guardian or conservator program acts in the incapacitated person's client's best interest and exercises reasonable care, diligence and prudence on behalf of the client.

8. The public guardian program shall avoid even the appearance of a conflict of interest or impropriety when dealing with the needs of the incapacitated person client. Impropriety or conflict of interest arises where the public guardian program has some personal or agency interest that might be perceived as self-serving or adverse to the position or the best interest of the incapacitated person client. Examples include, but are not limited to, situations where the public guardian program provides services such as housing, hospice or medical care directly to the client. The department reserves the right to monitor all administrative, programmatic, and financial activities related to the public guardian program to ensure compliance with the terms of the contract between the department and the public guardian program.

9. Each public guardian program and its employees paid staff and volunteers are required to report any suspected abuse, neglect, or exploitation in accordance with § 63.2-1606 of the Code of Virginia, which provides for the protection of aged or incapacitated adults, mandates reporting, and provides for a penalty for failure to report.

10. Each public guardian program shall submit data and reports as required by the department and maintain compliance with the department's program guidelines. The department shall periodically monitor administrative, programmatic, and financial activities related to the public guardian program, including person-centered planning utilization and documentation, to ensure compliance with the terms of the contract between the public guardian program and the department.

22VAC30-70-40. Personnel standards.

A. Each paid staff who is working in the public guardian program and has direct contact with clients or client estates shall:

1. Complete an orientation program concerning guardian and conservator duties to include the following subjects:

a. Privacy and confidentiality requirements;

b. Recordkeeping;

c. Services provided, and standards for these services;

d. A historical and factual review about the needs of the elderly and people with disabilities; and

e. Indications of and actions to be taken where adult abuse, neglect, or exploitation is suspected.

2. Have a satisfactory work record and be a person of good character; demonstrate a concern for the well-being of others to the extent that the individual person is considered suitable to be entrusted with the care, guidance, and protection of an incapacitated person; and shall not have not been convicted of any criminal offense involving any physical attack, neglect or abuse of a person, lying, cheating, or stealing, nor convicted of any felony. A criminal record check will shall be conducted on each person hired on or after January 1, 2009.

3. 2. Be free of illegal drug use as confirmed by a drug screening test conducted prior to the assumption of any duties with an incapacitated person for. For each person hired on or after January 1, 2009, a drug screening test shall be conducted.

4. Demonstrate, by objective criteria, knowledge of Virginia's guardianship laws and alternatives to guardianship. For each 3. Each person hired on or after January 1, 2009, shall have, at a minimum education requirements apply and include, a high school diploma or a general education diploma (GED) from a Virginia an accredited program and training or course work on (i) the duties and powers of guardians and conservators in Virginia, including an understanding of surrogate decision making and how it differs from substituted judgment decision-making standards, (ii) mandatory reporting requirements to the Department of Social Services and Commissioner of Accounts where applicable, and (iii) working with special needs populations including individuals with physical and mental disabilities. Program directors have additional requirements as specified in 22VAC30-70-30 C 1.

5. 4. Participate in mandatory training programs required by the department.

5. In addition, each program director shall:

a. Be a full-time employee of the public guardian program;

b. Have experience as a service provider or administrator in one or more of the following areas: (i) social work, (ii) case management, (iii) mental health, (iv) nursing, (v) or other human service program; and

c. Demonstrate, by objective criteria, a knowledge and understanding of Virginia's guardianship laws, alternatives to guardianship, and surrogate decisionmaking activities.

B. Volunteers.

1. Volunteers may be recruited and used to supplement paid staff. However, volunteers shall not be included in the public guardian program direct service ratio of 20 incapacitated persons to every one paid staff person as required under 22VAC30-70-30 D 1.

2. Volunteers may not exercise the authority of a guardian or conservator.

3. Each public guardian program that uses volunteers shall develop and implement written procedures for volunteer management and supervision including requirements that each volunteer shall:

a. Complete an orientation program that provides an overview of the

Prior to having direct contact with any clients or client estates, each paid staff of the public guardian program shall complete a training and orientation program. The training and orientation program shall include instruction on the following topics:

1. Virginia's guardianship laws and alternatives to guardianship, including the duties and powers of guardians and conservators in Virginia;

2. Surrogate decision-making and how it differs from substituted judgment decisionmaking standards;

3. The reporting requirements to the local department of social services and Commissioner of Accounts where applicable, mandated in §§ 64.2-1305 and 64.2-2020 of the Code of Virginia;

4. Working with special needs populations including individuals with physical and mental disabilities;

5. The provisions governing the operations of the Virginia Public Guardian and Conservator Program set forth in Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia and all ensuing applicable regulations and related policies and procedures issued by the department;

6. The policies and procedures of the public guardian program including:

a. Privacy and confidentiality requirements;

b. Recordkeeping;

c. Services provided and the standards for services; and

d. Indications of and actions to be taken when adult abuse, neglect, or exploitation is suspected.

C. Each person serving as a public guardian program volunteer with direct contact with any client or client estates shall comply with the provisions of subdivisions A 1 and A 2 of this section. In addition, prior to having direct contact with any client or client estates, each volunteer shall complete an orientation program that provides an overview of:

1. The Virginia Public Guardian and Conservator Program (§§ 51.5-149, 51.5-150, and 51.5-151 of the Code of Virginia).; and

b. Complete an orientation program that provides an overview of the 2. The local public guardian program for which the person intends to serve as a volunteer, including (i) services provided by the local public guardian program, (ii) specific duties of the volunteer, (iii) privacy and confidentially requirements, (iv) recordkeeping and documentation requirements, and (v) indications of and action to be taken where adult abuse, neglect, or exploitation is suspected.

c. Have a satisfactory work record and personal record and be a person of good character and have not been convicted of any criminal offense involving any physical attack, neglect or abuse of a person, lying, cheating, or stealing nor convicted of any felony. A criminal record check will be conducted on each volunteer accepted by the local program on or after January 1, 2009.

22VAC30-70-50. Recordkeeping.

A. Each public guardian program shall maintain an accurate and complete client record for each incapacitated person. Records shall be kept confidential. Access to client records shall be limited to (i) the client's legal representative public guardian or conservator as designated by a Virginia circuit court; (ii) as otherwise directed by court order; (iii) as directed by duly authorized government authorities or; and (iv) as specifically authorized by the Code of Virginia or federal statutes, including by written consent of the client's legal representative public guardian or conservator. Provision shall be made for the safe storage of client records or accurate and legible reproductions for a minimum of five years following termination of the guardian or conservator court order.

B. The Each client's record shall contain a current Virginia Uniform Assessment Instrument (UAI) or a similar comprehensive assessment instrument, a current public guardian program care plan, a current values history, the most recent annual report by guardians of the guardian submitted to the Department of Social Services as required by § 64.2-2020 of the Code of Virginia, the most recent annual accounting by the conservator to the Commissioner of Accounts as required by § 64.2-1305 of the Code of Virginia, and all applicable court orders and petitions. A client's record shall be completed and on file within 60 days of the public guardian program's appointment as public guardian, public conservator, or both.

C. Each public guardian program contractor shall maintain all records, provide reports, including audit information and documents in accordance with its contract with the department.

22VAC30-70-60. Evaluation and monitoring of public guardian programs.

A. Each public guardian program shall submit data and reports as required by the department and maintain compliance with the department's program guidelines.

B. The department reserves the right to monitor all administrative, programmatic, and financial activities related to the public guardian program, including person-centered planning utilization and documentation, to ensure compliance with the terms of the contract between the department and the public guardian program contractor.

C. The department shall periodically administer, monitor, evaluate, provide technical assistance and expertise, and shall ensure fiscal accountability and quality of service of public guardian programs.