Below are some key sections from the report. Download the complete Study and Report on the Need and Feasibility of Qualified Professional Guardians (pdf).
Executive Summary
The Massachusetts Department of Public Health’s (DPH) Bureau of Health Care Safety and Quality contracted with Eastern Research Group, Inc. (ERG) to conduct a study to evaluate the need for and feasibility of establishing access to Qualified Professional Guardians within the Commonwealth. This Executive Summary provides a high-level overview of issues and findings of the research conducted under this project, with details provided in the body of this Study and Report on the Need and Feasibility of Qualified Professional Guardians (“The Report”).
In the context of this Report, Unrepresented Individuals are those who lack the capacity to make their own medical decisions but do not have a surrogate decision maker. These Unrepresented Individuals were either admitted to an acute care hospital without a surrogate decision maker (e.g., because of a medical emergency) or lost their surrogate decision maker while in the hospital (e.g., the family member acting as surrogate decision maker died). When an Unrepresented Individual no longer needs to be in an acute care hospital setting to receive appropriate care, they cannot be discharged from the acute care hospital to a more appropriate healthcare setting until a surrogate decision maker, such as a family member or friend, is found to consent. In the absence of an appropriate surrogate decision maker, the Unrepresented Individual cannot be discharged until a Guardian is appointed by the court to consent.
Research in the Commonwealth of Massachusetts (“Massachusetts” or “Commonwealth”) and other states suggest that the shortage of Guardians available to take on Unrepresented Individuals can lead to discharge delays resulting in significant burdens on Unrepresented Individuals as well as healthcare systems and stakeholders.
Key Findings
The legislation that necessitated this study and report directed DPH to
“study and report on the need and feasibility of qualified professional guardians to give informed medical consent for indigent persons and whether such guardians would reduce hospital discharge issues and increase access to long-term care and preventive care” and specifically required DPH to include five key elements in the report: (i) The need for qualified professional guardians to assist indigent persons with accessing appropriate medical care, including preventive care; (ii) data on the current number of Rogers guardians and similar guardians and the financial impact of reimbursing such guardians; (iii) the fiscal impact of establishing MassHealth fee-for-service guardians; (iv) consideration of the benefits to an individual and cost to the Commonwealth of deducting from an applicant for MassHealth or a MassHealth member’s income for guardianship fees and related expenses when the appointment of a guardian is essential to enable an applicant or member to gain access or consent to medical treatment and an estimation of reasonable costs for such a deduction; and (v) other recommendations deemed necessary by the department.
As a result of the study, DPH finds there is a significant need for qualified professional guardians to give informed medical consent for persons who are unable to afford these services otherwise and that increasing payment to Qualified Professional Guardians, coupled with other recommended legislative changes, could substantially reduce delays in hospital discharges and expedite access to long-term and preventative care. With respect to the five requirements set forth in the legislation for this study and report, key takeaways include:
- (i) The need for qualified professional guardians to assist indigent persons with accessing appropriate medical care, including preventive care. Multiple interviewees representing patients, acute-care hospitals, and the legal system indicated that they believe Massachusetts relies on a limited and shrinking pool of professional or pro bono Guardians, usually attorneys or retired attorneys, to fill this gap. We were not able to identify an independent data source to confirm this assertion. However, respondents report that acute-care hospitals often struggle to identify a suitable Guardian in a timely manner. According to several interviewees, attorneys seeking a pro bono Guardian on behalf of acute-care hospitals for indigent Unrepresented Individuals might contact anywhere from four to thirteen Guardians before finding one willing to accept the case. The consensus from interviewees and literature is that a primary factor impacting the lack of availability of qualified Guardians for Unrepresented Individuals is inadequate compensation. There are insufficient individuals willing to provide guardianship services. Providing compensation to Guardians may potentially increase the number of qualified Guardians.
- (ii) Data on the current number of Rogers guardians and similar guardians and the financial impact of reimbursing such guardians. We are not able to provide an estimate of the number of Rogers guardians or similar guardians with currently available data. Available data does not distinguish the circumstances under which Guardianship is appointed, and therefore the number of Rogers guardians cannot be estimated. Guardianship in Massachusetts operates through a combination of limited state-funded services and an informal network of unpaid or pro bono Guardians rather than a centralized or Public Guardians program. Massachusetts court records show that since 2017, a total of 3,500 to 4,000 guardianship petitions have been filed each year for incapacitated individuals. These court records do not provide data on reimbursement to Guardians. Summary data of the annual petitions filed are available through the Massachusetts Trial Court, Department of Research and Planning. There is no way to summarize the demographic characteristics of the guardians assigned to these individuals or determine how many of these are Rogers guardians.
- (iii) The fiscal impact of establishing MassHealth fee-for-service guardians. There is no pathway to federal approval to provide MassHealth fee-for-service reimbursement for Public Guardianship services, therefore, no federal revenue would be available to support these costs. All guardianship services would need to be paid for at the cost of the state.
- (iv) Consideration of the benefits to an individual and cost to the Commonwealth of deducting from an applicant for MassHealth or a MassHealth member’s income for guardianship fees and related expenses when the appointment of a guardian is essential to enable an applicant or member to gain access or consent to medical treatment and an estimation of reasonable costs for such a deduction.
The Massachusetts statute on MassHealth eligibility includes certain long-term care general income deductions. These include a personal-needs allowance, spousal-maintenance-needs-deduction, family-maintenance needs, maintenance of a former home, and health-care coverage and other incurred expenses. The deductions for health-care coverage and other incurred expenses contain guardianship expenses that are allowable with the specified maximum amounts. There is no pathway currently available to increase the number of allowable deductions from a MassHealth member’s income. To increase the number of allowable deductions would require statutory changes at the state level as well as federal approval. - (v) Other recommendations deemed necessary by the Department. The following actions are recommended: enhance the pool of qualified Guardians to reduce acute-care hospital discharge delays by providing sufficient compensation and reduce the need for guardianship by enacting a default surrogate statute and promoting programs that increase completion of Health Care Proxies.
Introduction
Section 30 of Chapter 197 of the Acts of 2024 (the Act) required DPH to:
“[S]tudy and report on the need and feasibility of qualified professional guardians to give informed medical consent for indigent persons and whether such guardians would reduce hospital discharge issues and increase access to long-term care and preventive care: provided, however, that the report shall include: (i) the need for qualified professional guardians to assist indigent persons with accessing appropriate medical care, including preventive care; (ii) data on the current number of Rogers guardians and similar guardians and the financial impact of reimbursing such guardians; (iii) the fiscal impact of establishing MassHealth fee-for-service guardians; (iv) consideration of the benefits to an individual and cost to the commonwealth of deducting from an applicant for MassHealth or a MassHealth member’s income for guardianship fees and related expenses when the appointment of a guardian is essential to enable an applicant or member to gain access or consent to medical treatment and an estimation of reasonable costs for such a deduction; and (v) other recommendations deemed necessary by the department.”
In response to the requirements in the Act, the DPH Bureau of Health Care Safety and Quality contracted with Eastern Research Group, Inc. (ERG) to conduct a study to evaluate the need for and feasibility of establishing access to Qualified Professional Guardians within the Commonwealth, with input from subject matter experts at the Center for Guardianship Excellence (CGE), and issue the Report.
The Report must be submitted by DPH, along with any proposed legislation necessary to carry out DPH’s recommendations to the clerks of the Senate and House of Representatives, the Senate and House Committees on Ways and Means, and the Joint Committee on Elder Affairs.
Pursuant to the Act, this Report reviews the role of Qualified Professional Guardians in assisting Unrepresented Individuals to access appropriate medical care and reducing hospital discharge delays. Massachusetts acute-care hospitals are experiencing delays in discharging due, in part, to the inability to safely discharge Unrepresented Individuals who often remain hospitalized for extended periods in part due to the absence of legal Guardians authorized to make decisions on their behalf. The delay in acute-care hospital discharge of Unrepresented Individuals constrains patient beds and impacts hospital throughput. Guardianship Appointments often require prolonged legal processes to secure, which may lead to medically unnecessary and costly acute-care hospital stays for Unrepresented Individuals. These delays may impact the well-being of Unrepresented Individuals and contribute to backlogs within acute care settings, limiting acute-care hospital throughput and straining resources within the broader healthcare system.
Additionally, to meet the requirements of the Act, this Report seeks to establish the following:
- A definition of “Qualified Professional Guardian”
- A baseline of the use of Guardians in Massachusetts
- Guardian usage and practices in other key states
- Guardian usage and practices in hospitals, including why delayed hospital discharge of Unrepresented Individuals requiring guardianship occurs
- The cost of delayed hospital discharge for Unrepresented Individuals
- How delayed hospital discharges for Unrepresented Individuals can be reduced
- The impact of Qualified Professional Guardian use on timely hospital discharge, placement in long-term care facilities, and access to medical and preventive care in the community.
Research to help answer these questions included a review of relevant literature, interviews with practitioners and experts in guardianship within and outside of Massachusetts, and an analysis of data pertaining to guardianship filings and acute-care hospital discharges within the Commonwealth.
The primary objective of this Report is to develop insights and recommendations to inform policy regarding professional guardianship services, particularly as they relate to decreasing acute-care hospital discharge delays.
Recommendations
The following proposed recommendations are grounded in available literature, interviews, and policy analysis. As described in the preceding sections, many factors contribute to delayed acute-care hospital discharge, and multiple initiatives are likely necessary to reduce delays but it is clear from the study that there is a significant need for qualified professional guardians to give informed medical consent for persons who are unable to afford these services otherwise. Increasing the number of Qualified Professional Guardians, coupled with the additional recommendations below, could substantially reduce delays in hospital discharges and expedite access to long-term and preventative care. Given the complexity of guardianship and the wide range of invested parties, further research and stakeholder engagement will be important to refine any significant decisions.
- Increase the Number and Quality of Guardians Through Payment. Based on the research performed for this study, the single most important policy recommendation is to increase the availability of Guardians by paying them an adequate amount consistent with inflation and indicative of the time necessary for Guardians to effectively perform their required duties. The optimal solution for reducing acute-care hospital discharge delays is to increase the pool of qualified Guardians, and to do this, interviewees and literature indicate that it will be necessary to pay them. With the exception of one individual, those interviewed all described a lack of pay as the single largest barrier to having sufficient Guardians available. The single exception worked in a state where Guardians are paid, and the interviewee stated that they receive well-qualified applicants every time they advertise an opening.
- Enact a Default Surrogate Statute. Massachusetts is one of four states that does not have a Default Surrogate Statute. Enacting this statute would allow a close family member or friend to assume healthcare decisional authority for an incapacitated individual without requiring formal appointment through the judicial system. By enacting a Default Surrogate Statute, the Commonwealth may reduce the need for guardianship among acute-care hospital patients with friends or family willing to step into this role, thereby freeing court time for Unrepresented Individual guardianship cases. One expert suggested that this would reduce the backlog of guardianship cases by about 50 percent. The majority of interviewees expressed support for enacting a Default Surrogate Statute.
There are limitations to default surrogate statutes that must be considered when contemplating enactment. Some states place restrictions on default surrogates making certain decisions, such as withholding life-sustaining treatment and some require a strict hierarchy for the designated surrogate, usually starting with an individual’s spouse, which may ignore personal dynamics and relationships. Additionally, there are differences among states with default surrogate statutes about if consensus is needed when multiple individuals are considered as the surrogate. - Ensure the paid Guardians are qualified to provide the necessary services. Pay will attract Guardians, but the Commonwealth must ensure it attracts high quality candidates to the pool of Guardians. Guardians should be trained, certified, and monitored. Interviewees and the literature alike indicate that without these additional requirements, paying Guardians may increase the size of the pool of Guardians, but result in less-than-optimal client outcomes.
Based on the review of other states’ best practices, Massachusetts should consider required training and monitoring of Qualified Professional Guardians as follows:- Requiring training and certification for Qualified Professional Guardians. For example, the nationally-recognized Center for Guardianship Certification (CGC) requires that a Guardian completes coursework, pass a background check, and successfully pass an examination. CGC certification must be maintained through ongoing continued education and renewal every two years.61 Training should align with the foundational topics in the NGA’s Standards of Practice, which are regularly updated by experts in guardianship, aging, disability advocacy, and law, and may be tailored as appropriate by the Commonwealth.
- Placing minimal training requirements on nonprofessional Guardians. Patients with guardianship provided by family members and friends are significantly more common than those cared for by Qualified Professional Guardians. Ties of kinship or friendship alone are not adequate to ensure vulnerable patients will receive appropriate care, and, therefore, the need for training in the fundamentals of guardianship is recommended. Training should educate Guardians who are family members or friends about their responsibilities and the resources available to assist them in fulfilling those responsibilities.
- Ensure Guardians and patients are adequately monitored. Both interviews and published research illustrated that guardianship monitoring is key to providing the information needed to help manage guardianship efforts, provide patients the care that they need, investigate and adjudicate complaints, and collect data that can help inform statewide guardianship decision-making and funding requests. As evidenced by the tracking system implemented by Pennsylvania (see Section 5.4), the type of system implemented there may help foster the development of critical information and also help create efficiencies within the state’s guardianship structure by reducing documentation and monitoring issues for all parties involved. Finally, monitoring might help fill significant data gaps for understanding the nature of guardianship for unrepresented individuals.
- Promote Health Care Proxy education and execution. Scale and promote programs designed to encourage people to designate healthcare proxies, such as the MHA/DPH/Honoring Choices Massachusetts Simple Steps Campaign.