Guardianship/Substituted Judgement:  Policy for Managing Guardianship and Rogers Orders for Students

Hillcrest Educational Centers, Inc. (“HEC”) coordinates the medical/psychiatric care for students in residential treatment.  Federal and state laws routinely require informed consent for medical care.  Because many students in residential placement are not able to give consent for themselves due to their age and /or competency status, legal custody and/or guardianship must be clear and documented for continued placement of each student.

There are essentially three types of guardianship in the state of MA:  guardianship of a minor, limited guardianship of an incapacitated person, and full guardianship of an incapacitated person.  In an emergency, guardianship can be appointed on a temporary basis.  For more information about MA laws related to guardianship, see the following URL:  http://www.mass.gov/courts/selfhelp/guardians/

Procedure to legally obtain guardianship of incapacitated students residing at HEC: 

The Admissions Department will alert campus Administrators regarding the referral of any student entering their 17^th year. This will result in additional conversation with the referral source and family as to the capacity of the student to make informed decisions regarding their placement and medical care upon their 18^th birthday.  For any student already in placement prior to the age of 17, the treatment team (including HEC, funding sources, and family) will discuss the capacity of the student upon turning 17 years old.  Should these discussions result in a decision that the student will potentially require substituted judgement, the team must then begin the process for identifying a guardian.  The current guardian/custodian of the student bears the responsibility of completing this process in the home state of the student.  Although the treatment team will make every effort to support this process, the current guardian/custodian of the student remains financially responsible for any costs incurred by Hillcrest in its efforts to remedy an incomplete process.  Ultimately, a court will make the determination as to whether the student requires substituted judgment.

In the state of Massachusetts, any adult deemed incompetent to make medical decisions, who requires treatment involving antipsychotic medication, must also have a court order approving the use of the antipsychotic medication.  This is known as a Rogers Order.  In such a case, HEC will work with the court- appointed guardian to obtain the required Rogers Order.

Likewise, Massachusetts requires a Rogers Order for use of an antipsychotic medication with any youth under the age of 18 who has been placed under the guardianship of the Department of Children and Families.  Because HEC would be administering the medication within the state of MA, Hillcrest will also require a Rogers Order for any youth who has an out-of-state social services agency appointed as his/her guardian.   Therefore, the Admissions Department will also alert campus administrators to any youth prescribed an antipsychotic medication and is in the guardianship of an out-of-state social services agency.  HEC must communicate clearly with family and funding agencies around the need for a Rogers Order and begin proceedings to obtain the Rogers Order immediately.

Additionally, a youth under the age of 18 who is already in our care may be identified by HEC psychiatrist as being in need of an antipsychotic medication.  In such cases, nursing staff will identify the youth’s guardian.  If the guardian is an in-state or out-of-state social services agency, nursing staff will work with Nursing and/or Clinical administrators to obtain the necessary Rogers Order.

In some cases, a psychiatric emergency may warrant the need for a Rogers Order.  In such a circumstance, HEC may find the need to petition the court on a temporary basis for a guardian and/or a Rogers Order.  In the case of an incompetent young adult who does not have a guardian from their home state, HEC will ask the court to appoint a guardian only for the duration of the HEC placement.  Once the student is discharged from Hillcrest, the responsibility of continued guardianship falls to the family and funding agencies in the home state of the student.

The recommendation for pursuing guardianship and/or Rogers Order will be mad to the Senior Vice President in order to obtain approval for utilizing legal representation in this matter.  If approval is obtained, the Clinical Director will contact HEC’s attorney to begin the legal process.  HEC will require reimbursement from the funding agency for all expenses incurred in this process.

Determination of type of guardianship needed:

In Massachusetts, guardianship can be appointed for two reasons:  (1) deteriorating medical or mental health (which is viewed as potentially temporary) or (2) a more permanent intellectual /developmental disability.  Each requires specific paperwork/forms to be completed for the courts.  HEC is committed to assisting in the completion of assessments and forms that fit the scope of treatment being provided.  All forms determined to be appropriate for HEC to complete, must be completed and ready for submission in a timely manner.  If there any difficulties with this process, the Directors of Clinical and Nursing should be notified.  All paperwork should be submitted by the Nursing or Clinical Director to the HEC Attorney or other state agencies.

Completion of assessments and forms required in the state of MA:

The Clinical Director and Nursing Director will initiate and track this process.  There must be a coordinated effort with the attorneys involved to schedule the court date in a timely fashion otherwise an updated document may need to be completed.  The court may appoint a temporary guardian or conservator depending on the nature of an illness or the guardianship may be of a longer duration.  In the case of a temporary appointment it is expected that more frequent court hearings with updated documents may occur.  All forms may be located at the following website:  http://www.mass.gov/courts/forms/   Staff are encouraged to utilize the website, to ensure using the most up-to-date version of forms, but the final completed forms will be submitted to the HEC Attorney only after approval by the Nursing Director.

 

• To file guardianship due to intellectual/developmental disabilities:
  1. The following forms are typically completed by the family, state or agency’s attorney coordinating the proceedings:
     1. Petition for appointment of guardian (MPC 120)
     2. Motion for appointment of temporary guardian (MPC 320)

• Bond (MPC 801)

1. Military Affidavit (MPC 470)

 

1. The campus clinical department will coordinate the completion of the following:
   1. Clinical team report (MPC 402) — This must be completed for an intellectually disabled person. The examination of the person to be placed under guardianship must have occurred within 180 days of the date the Petition is filed.  This must be completed and signed by a licensed psychologist, a licensed social worker and a registered physician – here, the treating psychiatrist.  IQ testing scores must be reflected in this report.  If the student does not have a full psychological evaluation, it is the responsibility of the funding agencies to fund such testing, as this is not a service included in the residential contract.
   2. Current Adaptive Functioning Assessment – If the student does not have a current adaptive functioning assessment, Hillcrest will utilize clinical staff and 1 hour of consultation time with the agency psychologist for completion of this assessment.

• Exhibit A: Limitations to Guardianship (MPC 720a) – This may need to be completed if there are types of decisions that the student will be competent to make for themselves.

1. Completed forms will be provided to the HEC Attorney after review by the Nursing Director.

 

1. The campus nursing department will coordinate the completion of the following:

 

1. Clinician’s Affidavit as to Competency and Treatment (MPC 800) – This report provides for petitioning for the initial Rogers Order. Nursing staff will work with the treating psychiatrist to complete this form.
2. Clinician’s Affidavit and Report for Extension/Amendment (MPC 823) – This report is required each time an extension of the Rogers Order is requested. Nursing staff will work with the treating psychiatrist to complete this form as needed.

• Completed forms will be provided to the HEC Attorney after review by the Nursing Director.

 

• To file for guardianship due to student being incapacitated by medical or mental illness:

In the case of a psychiatric emergency, an emergency team meeting should take place, including campus administrator, treating psychiatrist, and representatives for the campus departments and shifts.  Efforts must be made to include family and funding agencies in this meeting.  This meeting will serve as the venue for determining the need for filing for emergency/temporary guardianship and/or a Rogers Order.

 

1. The following forms are typically completed by the family, state or agency’s attorney coordinating the proceedings:
   1. Petition for appointment of guardian (MPC 120)
   2. Motion for appointment of temporary guardian (MPC 320)

• Bond (MPC 801)

1. Military Affidavit (MPC 470)

 

1. The campus clinical department will coordinate the completion of the following:
   1. Medical Certificate: Guardianship or Conservatorship (MPC 400) – Clinical staff will work with the treating psychiatrist to complete this form. The examination of the person to be placed under guardianship must have occurred within 30 days of the date the Petition is filed.
   2. Treatment Plan (MPC 825) – This report is required if treating with antipsychotic medications.

 

 

1. The campus nursing department will coordinate the completion of the following
   1. Clinician’s Affidavit as to Competency and Treatment (MPC 800) – This report provides for petitioning for the initial Rogers Order. Nursing staff will work with the treating psychiatrist to complete this form.
   2. Clinician’s Affidavit and Report for Extension/Amendment (MPC 823) – This report is required each time an extension of the Rogers Order is requested. Nursing staff will work with the treating psychiatrist to complete this form as needed.

 

• Ongoing coordination of guardianship and Rogers Order matters:

Regardless of type of guardianship proceedings, once a court hearing date is established, the campus administrative team will coordinate the student’s appearance.  Should a family experience financial hardship that may prevent their recommended or mandated attendance, the family may apply for Family Fund support.  The Clinical Director, Nursing Director, and campus clinical and nursing administrators will work to coordinate for the timely completion of any ongoing reports, hearings, and medications orders.  Copies of all paperwork and casework efforts must be filed in the student’s chart (in the appropriate sections).