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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 632 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 632

  To amend title XIX of the Social Security Act to require States to 
 adopt and enforce certain guardianship laws providing protection and 
rights to wards and individuals subject to guardianship proceedings as 
   a condition of eligibility for receiving funds under the medicaid 
                    program, and for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                            January 26, 1993

  Ms. Snowe introduced the following bill; which was referred to the 
                    Committee on Energy and Commerce

_______________________________________________________________________

                                 A BILL

 
  To amend title XIX of the Social Security Act to require States to 
 adopt and enforce certain guardianship laws providing protection and 
rights to wards and individuals subject to guardianship proceedings as 
   a condition of eligibility for receiving funds under the medicaid 
                    program, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Guardianship Rights and 
Responsibilities Act of 1993''.

SEC. 2. GUARDIANSHIP REQUIREMENTS FOR STATE MEDICAID PLANS.

    (a) Guardianship Requirements as Condition of Eligibility.--Section 
1902(a) of the Social Security Act (42 U.S.C. 1396a(a)), as amended by 
the Omnibus Budget Reconciliation Act of 1990 (hereafter referred to as 
``OBRA-1990''), is amended--
            (1) by striking ``and'' at the end of paragraph (54);
            (2) in the paragraph (55) inserted by section 4602(a)(3) of 
        OBRA-1990, by striking the period at the end and inserting a 
        semicolon;
            (3) by redesignating the paragraph (55) inserted by section 
        4604(b)(3) of OBRA-1990 as paragraph (56), by transferring and 
        inserting it after the paragraph (55) inserted by section 
        4602(a)(3) of such Act, and by striking the period at the end 
        and inserting a semicolon;
            (4) by placing paragraphs (57) and (58), inserted by 
        section 4751(a)(1)(C) of OBRA-1990, immediately after paragraph 
        (56), as redesignated by subparagraph (C);
            (5) in the paragraph (58) inserted by section 4751(a)(1)(C) 
        of OBRA-1990, by striking the period at the end and inserting a 
        semicolon;
            (6) by redesignating the paragraph (58) inserted by section 
        4752(c)(1)(C) of OBRA-1990 as paragraph (59), by transferring 
        and inserting it after the paragraph (58) inserted by section 
        4751(a)(1)(C) of such Act, and by striking the period at the 
        end and inserting ``; and''; and
            (7) by inserting after paragraph (59), as so redesignated, 
        the following new paragraph:
            ``(60) not later than 2 years after the date of the 
        enactment of this paragraph, include assurances that the State 
        has adopted, and assumed responsibility for enforcing, laws 
        relating to guardianship which meet the requirements of section 
        1931.''.
    (b) Reduction of Payments to States for Failure To Adopt and 
Enforce Certain Laws Relating to Guardianship.--Section 1903 of the 
Social Security Act (42 U.S.C. 1396(b)) is amended by adding at the end 
the following new subsection:
    ``(x)(1) In order to receive payments under paragraphs (2)(A) and 
(7) of subsection (a) without being subject to per centum reductions 
set forth in paragraph (2) of this subsection, a State must provide 
that it has adopted, and assumed responsibility for enforcing, laws 
relating to guardianship which meet the requirements of section 1931 on 
or before the expiration of the 2-year period beginning on the date of 
the enactment of this subsection.
    ``(2) If a State fails to meet the deadline established under 
paragraph (1), the per centums specified in paragraphs (2)(A) and (7) 
of subsection (a) with respect to that State shall each be reduced 5 
percentage points for the first two quarters beginning on or after such 
deadline, and shall be further reduced an additional 5 percentage 
points after each period consisting of two quarters during which the 
Secretary determines the State fails to meet the requirements of 
paragraph (1) of this subsection, except that--
            ``(A) neither such per centum may be reduced more than 25 
        percentage points by reason of this paragraph; and
            ``(B) no reduction shall be made under this paragraph for 
        any quarter following the quarter during which such State meets 
        the requirements of paragraph (1).''.
    (c) Description of Requirements.--Title XIX of the Social Security 
Act (42 U.S.C. 1396 et seq.) is amended by adding at the end the 
following new section:

               ``requirements for state guardianship laws

    ``Sec. 1931. (a) In General.--For purposes of sections 1902(a)(60) 
and 1903(x), a State has adopted laws relating to guardianship which 
meet the requirements of this section if the State has adopted laws or 
issued regulations which include the rights, standards, and duties 
described in subsections (b) through (l) or, in the determination of 
the Secretary, which protect individuals in the State as effectively as 
laws or regulations which include the rights, standards, and duties 
described in such subsections.
    ``(b) Rights of Individuals Subject to Guardianship Petitions.--The 
laws of the State shall provide that--
            ``(1) each individual in the State who is the subject of a 
        guardianship petition shall be provided with an adequate and 
        timely notice, in large print and plain language, of all 
        pending guardianship proceedings, including a copy of the 
        guardianship petition, a clear description of such proceedings 
        and of all rights afforded such individual in the course of 
        such proceedings, and a summary of the possible consequences of 
        a determination of incapacity (or, in the case of a blind or 
        illiterate individual, an oral description of such rights and 
        information);
            ``(2) a copy of the notice provided under paragraph (1) 
        shall be provided to the individual filing a guardianship 
        petition and to the spouse, child, sibling, nearest relative, 
        or custodian of the individual who is the subject of such 
        guardianship petition;
            ``(3) each individual in the State who is the subject of a 
        guardianship petition has the right to counsel who will act as 
        an advocate for such individual with respect to such petition 
        unless such individual knowingly and voluntarily waives such 
        right, and the court shall appoint counsel for such individual 
        at public expense if such individual is indigent or if such 
        individual lacks the capacity to waive the right to counsel;
            ``(4) each individual in the State who is the subject of a 
        guardianship petition has the right to have the question of 
        incapacity heard by a jury upon request; and
            ``(5) each individual in the State against whom a 
        determination of incapacity and guardianship order is issued 
        may file an appeal contesting such determination and order in 
        the appropriate court of appeal not later than 30 days after 
        such determination and order is issued, and may at any time 
        petition the court issuing such determination and order to 
        modify or dismiss such determination or order.
    ``(c) Standards for Determinations of Incapacity.--The laws of the 
State shall provide that--
            ``(1) no determination of incapacity shall be made at a 
        guardianship hearing unless the individual who is the subject 
        of the guardianship petition is present at such hearing, unless 
        the court determines, on the basis of information provided by a 
        physician, social worker, or other person trained to work with 
        the elderly, the developmentally disabled, or the mentally 
        retarded (whichever is appropriate in the case of a particular 
        individual), that such individual has knowingly and voluntarily 
        waived the right to be present at the hearing or cannot be 
        present because of physical incapacity; and
            ``(2) no determination of incapacity shall be made at a 
        guardianship hearing on the basis of the age of the individual 
        who is the subject of the guardianship petition but shall 
        instead be made on the basis of clear and convincing evidence 
        that such individual is incapable of administering his own 
        affairs.
    ``(d) Standards for Personnel Involved in Guardianship Hearings.--
Court personnel in the State involved in guardianship hearings shall be 
trained to work with the elderly, the developmentally disabled, and the 
mentally retarded, and shall be briefed on general issues facing such 
groups, and shall provide necessary visual aids, interpreters, and 
other devices in order to assist these individuals during guardianship 
hearings, and shall make reasonable efforts to schedule each 
guardianship hearing at a time and location convenient for the 
individual who is the subject of the guardianship petition.
    ``(e) Effect of Determination of Incapacity.--A determination of 
incapacity in a guardianship hearing in the State shall not be 
considered prima facie evidence that the individual in question is 
insane or is unable to function in a non-institutionalized setting.
    ``(f) Rights of Wards.--The laws of the State shall provide that--
            ``(1) each ward in the State shall, when feasible, have his 
        personal preferences taken into account by the court in the 
        appointment of a guardian; and
            ``(2) during the period of guardianship, each ward in the 
        State shall be entitled to participate in all decisions 
        affecting such ward to the maximum extent possible commensurate 
        with such ward's functional limitations, and shall retain all 
        rights not ordered by the court to be transferred to the 
        guardian.
    ``(g) Standards for Guardianships.--Each guardianship imposed in 
the State shall be imposed on the ward in the least restrictive manner 
commensurate with the ward's functional limitations.
    ``(h) Standards for Appointment of Guardians.--The laws of the 
State shall provide that--
            ``(1) no person may be appointed to serve as a guardian in 
        the State unless such person certifies that he has completed, 
        or agrees to enroll in and complete, a program of court-
        supervised training, based upon standards developed by the 
        governor of the State or his designee, in the legal, economic, 
        and psychosocial needs of wards, and a guardian shall be 
        removed from his position as guardian if the court determines 
        that he has failed to complete such a program;
            ``(2) no person who has been convicted of a felony may be 
        appointed to serve as a guardian in the State unless the court 
        determines that an exception to such prohibition is appropriate 
        in a particular case; and
            ``(3) no person may be appointed to serve as a guardian in 
        the State unless such person has filed, and the court 
        conducting the guardianship hearing has approved, a 
        guardianship plan which includes at least a description of the 
        ward's proposed living arrangements, a plan for meeting the 
        ward's financial, medical, and other remedial needs, and 
        provisions for maintaining contact between the ward and the 
        ward's family and friends.
    ``(i) Duties of Guardians.--The laws of the State shall provide 
that--
            ``(1) each guardian in the State shall file an annual 
        report with the court which issued the order giving such 
        guardian control over the ward's affairs which includes at 
        least a description of the management of the ward's finances 
        during the previous year, a physician's report on the health 
        and physical well-being of the ward, and a recommendation of 
        whether the guardianship should be continued, modified, or 
        terminated;
            ``(2) each guardian in the State may use funds from the 
        estate of the ward over whose affairs he has control only for 
        the administration of the guardianship and the benefit of the 
        ward, and shall repay to the ward's estate any funds used by 
        such guardian for any purpose determined to be improper by the 
        court which issued the order giving such guardian control over 
        such ward's affairs; and
            ``(3) each guardian in the State shall keep the court which 
        issued the order giving such guardian control over the ward's 
        affairs informed of the whereabouts of such ward, and shall 
        notify such court whenever such ward is moved to a new 
        residence.
    ``(j) Standards Regarding Wards Moving To and From State.--The laws 
of the State shall provide that--
            ``(1) if the court which issued a guardianship order 
        receives notice pursuant to subsection (i)(3) that a ward has 
        been moved to a new residence in another State, the court shall 
        notify the appropriate court in that State of the existence of 
        the guardianship and shall provide that court with necessary 
        files and background information on the guardianship; and
            ``(2) upon receiving notice from a court in another State 
        that a ward subject to a guardianship order has been moved into 
        the State, a court in the State shall assume jurisdiction over 
        such guardianship, and may require the guardian to submit a new 
        petition for guardianship or any other supplementary 
        information to enable the court to exercise such jurisdiction.
    ``(k) Court Review of Guardianship Orders.--Each court in the State 
which issues a guardianship order shall conduct an annual review of the 
guardianship to determine whether the guardian is performing his duties 
in accordance with the appropriate laws and whether the guardianship 
should be continued, modified, or terminated.
    ``(l) Standards for Private Professional Guardians.--Each private 
professional guardian in the State may operate in the State only if 
such guardian is bonded and licensed or certified in accordance with 
requirements consistent with the provisions of this section developed 
by the governor of the State or his designee.
    ``(m) Definitions.--For purposes of this section--
            ``(1) the term `guardian' means a person vested by law with 
        the power and duty of taking care of the person or property of 
        another 18 years or older who is adjudged incapable of 
        administering his own affairs, except that such term does not 
        include a guardian ad litem;
            ``(2) the term `guardianship' means any legal relationship, 
        including a conservatorship, in which a person is vested by law 
        with the power and duty of taking care of the person or 
        property of a ward, except that such term does not include a 
        guardianship ad litem; and
            ``(3) the term `ward' means a person 18 years or older 
        adjudged incapable of administering his own affairs and placed 
        by a court under the care of a guardian.''.

SEC. 3. DEMONSTRATION GRANTS FOR GUARDIANSHIP ADVOCATE PROGRAMS.

    (a) In General.--The Secretary of Health and Human Services (in 
this section referred to as the ``Secretary'') shall award 2-year 
demonstration grants to eligible States for the establishment and 
operation of guardianship advocate programs, including the hiring and 
training of individuals to serve as guardianship advocates and 
investigators in such programs.
    (b) Duties of Advocates and Investigators.--Individuals hired and 
trained to serve as guardianship advocates and investigators with funds 
provided under subsection (a) shall serve as employees of the courts 
within the State which conduct guardianship hearings and issue 
determinations of incapacity and guardianship orders, and shall provide 
information and services to wards and to individuals who are the 
subjects of guardianship petitions, including--
            (1) making reports to the court on individuals who are the 
        subjects of guardianship petitions;
            (2) notifying such individuals of their rights under State 
        guardianship law;
            (3) monitoring wards and guardians and notifying the court 
        of possible violations of State guardianship law;
            (4) investigating complaints of improper conduct made 
        against guardians;
            (5) providing advice and assistance to guardians in 
        carrying out their guardianships;
            (6) evaluating reports from guardians;
            (7) performing other services to assist the courts in 
        conducting and monitoring guardianships; and
            (8) investigating and evaluating the movement of wards to 
        new residences.
    (c) Eligibility.--A State shall be eligible to receive a grant 
under subsection (a) if it submits an application to the Secretary at 
such time, in such form, and containing such information and assurances 
as the Secretary may require, including an assurance that the State 
shall prepare and submit to the Secretary an evaluation of each program 
in such State funded with a grant received under subsection (a).
    (d) Preference to Self-Financing Programs.--In awarding grants 
under subsection (a), the Secretary shall give preference to those 
States which provide assurances to the Secretary that the program 
funded with such a grant will, without Federal financial assistance, 
continue to operate after the expiration of such grant.
    (e) Report to Congress.--Not later than 3 years after the final 
grant is awarded under subsection (a), the Secretary shall submit a 
report to Congress describing the programs funded with such grants, 
evaluating the effect of such programs on the guardianship process and 
on the protection of the rights of wards and individuals subject to 
guardianship petitions, and containing recommendations on the 
desirability of continuing the funding of such programs on a permanent 
basis.
    (f) Authorization of Appropriations.--There are authorized to be 
appropriated for grants under subsection (a) $5,000,000.
    (g) Definition.--In this section, the term ``State'' means each 
State, the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands, and Guam.

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