Guardianship - H.B. 2885 Talking points

Posted: February 4, 2011

A very important issue that should be of concern to anyone who relies on MR/DD Title XIX Waiver Home and Community Based services has arisen in recent months. WV has a law that does not allow guardians to derive profit or benefit from serving the person for whom they are guardian. This has become a problem for family members, particularly parents, who are guardians living in the same household as the person on MR/DD Waiver and provide Community Res-Hab services. In order to continue to be allowed to provide those services the law must be changed. About one third of families receiving Waiver services are affected. If the law is not changed they will no longer be able to do this and the consumer using the services will probably not be able to obtain enough additional agency service hours to replace what the family member has been providing, especially in very rural areas. We strongly recommend that you contact your legislators to discuss your concerns. The Developmental Disabilities Council has provided the talking points below for you to use to help you talk with your legislators.

The issue:

Since the beginning of the MR/DD Waiver program in WV, family members have been able to be the provider of Residential Habilitation services to their family member receiving MR/DD Waiver services. Agencies have typically not been able to hire other staff in most areas of the state to meet the need. This was not a problem when agencies contracted with family members to be the service provider. However, agencies have now determined that the Department of Labor regulations prohibit them from contracting for services and are in the process of making family members employees of the agency, rather than contractors.

The guardianship statute, as written, prohibits guardians/conservators being paid to provide services to the individual for whom they are the guardian/conservator.

  • Approximately 4,482 people are currently served by the MR/DD Waiver program
  • Of those, at least 1,375 families will be affected by the Guardianship issue because they are a guardian/conservator of the individual for whom they have been providing service
  • Agencies have always had trouble hiring enough direct care staff to serve Waiver recipients, and do not have enough staff to fill the need that will exist if the language in the statute is not changed
  • H.B. 2885 would make two exceptions to this prohibition: When a family member seeks to be appointed guardian/conservator they could make written disclosure of the employment arrangement to the court and get the court’s approval; or
  • If the family member has already been appointed guardian/conservator of the Waiver recipient, the court would be made aware of the employment in writing

Contact Pages for WV State Legislators:

Locate your District on the State Map and the Name provided for that District and Click on that Legislator’s name to bring up their contact information.