by Alison Kuznitz
Gov. Maura Healey wants to alleviate hospital discharge bottlenecks that are contributing to hefty healthcare spending, but
a recent report
found Massachusetts has a shortage of guardians who are empowered to
make medical decisions on behalf of incapacitated patients.
Patients
may be medically stable enough to leave an acute care hospital and
transition to other settings, such as a skilled nursing facility, but
that process can face significant roadblocks if they're unable to make
medical decisions for themselves and also lack a surrogate decision
maker, guardian or advance directive.
These
"unrepresented individuals" are at "high risk for inappropriate medical
care, including overtreatment, undertreatment, and delayed discharges
from hospital facilities," according to the report from the Department
of Public Health and Eastern Research Group, Inc. This vulnerable cohort
typically involves people who are experiencing homelessness or serious
mental illness, lack a "willing or appropriate" healthcare surrogate,
and have outlived their loved ones and friends.
Without a
decision maker assigned, unrepresented patients cannot be discharged
until a court appoints a guardian — creating a complicated, lengthy
logjam that can prevent other sick Bay Staters from accessing hospital
beds. People interviewed for the study, including those representing
patients, hospitals and the legal system, said they believe that
"Massachusetts relies on a limited and shrinking pool of professional or
pro bono Guardians, usually attorneys or retired attorneys, to fill
this gap."
"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," the report said.
The core factor driving the guardianship shortage for
indigent patients is that compensation is "inadequate or nonexistent."
The cases are also "often complex and require a considerable investment
of time on the Guardian's behalf to be executed appropriately and
ethically, a fact that further discourages Guardians from taking on
these cases," the report said.
Attorneys searching for
pro bono guardians on behalf of acute care hospitals can end up
contacting four to 13 guardians before finding someone willing to take
on the case, according to the report. State agencies including the
Department of Developmental Services, Department of Mental Health, and
the Executive Office of Aging and Independence help their clients find
guardianship services. AGE pays the largest public amount — about $893
monthly per client— for adult protective services, the report said.
Many
guardians are family members, but they can also be social workers,
therapists, psychiatrists, medical professionals, attorneys and retired
judges, said Wynn Gerhard, elder justice fellow at the Massachusetts
Guardianship Policy Institute.
Backed by private funding,
the institute has a pilot project for public guardians in Suffolk,
Norfolk and Plymouth counties. The pilot's four social workers can take
up to 20 cases, and they regularly visit their clients and accompany
them to doctor's appointments, Gerhard said.
"The
cases that we get are very complex," Gerhard said. "People have
multiple medical and psychological and mental health issues, and they
have nobody else in their life. You don't know them when you get the
nomination or the appointment, and you have to figure out who they are,
where they came from."
She added, "Our goal is to keep
people in the least restrictive setting — not a nursing home as the
first instance, but community placements, group homes. And we have been
very successful."
Guardians of MassHealth members in
nursing facilities can earn $50 an hour, with their annual payments
capped at $1,200. The report said the payments were established in 1999
and would need to be increased to $94 per hour and $2,256 annually to
keep up with inflation. Gerhard said the payments are a "bureaucratic
nightmare" to secure and are therefore "pretty useless."
Mandated
under a 2024 long-term care oversight law, the report was supposed to
be due by July 31, 2025. But the report was filed with the Legislature a
year late, meaning its recommendations to boost pay for guardians,
ensure training and monitoring of guardians, and enact a default
surrogate statute will likely need to wait until next session for
potential action.
Meanwhile, the governor's Health Care
Affordability Work Group released initial recommendations this month
that put new scrutiny on "transitions of care." Solutions would ease the
more than 2,000 patients on any given day who are stuck in acute care
hospitals.
The Healey administration said it will "explore action to
modernize surrogate decision-making and health care proxy laws."
Healthcare proxies are legal documents that allow individuals to
specifically designate people to make medical decisions on their behalf
once a physician decides they're unable to make or communicate their own
choices.
Spokespeople for Healey and the Executive
Office of Health and Human Services did not answer State House News
Service questions about potential actions and changes that are under
consideration.
At Cape Cod Hospital last Monday, Healey
said the goal is to get patients out of the hospital as "quickly as
possible" once they've received care. The governor also mentioned
implementing a standardized discharge form and eliminating "needless
paperwork."
The report said Massachusetts is one of four
states without a default surrogate statute, which enable close family
members and friends to make healthcare decisions for an incapacitated
patient without needing to seek a court-appointed guardian. Adopting the
statute here could reduce demand for guardianships and free up court
time for cases involving unrepresented individuals.
Bills
(H 1692 / S 1047) from Rep. Carole Fiola and Sen. Cindy Creem to allow
surrogates to make certain medical determinations — such as patient
transfers to nursing homes — are stalled in the House and Senate Ways
and Means committees. In a summary, Creem's office said the existing
legal process to appoint a guardian and then seek judicial approval for
patient transfers can translate into weeks of delayed care that
"generate unnecessary health care costs and necessitate an inefficient
allocation of hospital resources."
The Massachusetts
Medical Society supports the bills, saying the "need for reform has
become even clearer in recent years." Lawmakers wrapped scheduled formal
sessions on July 31, making it unlikely the legislation would advance
for floor action.
"During the COVID-19
pandemic, many younger patients presented to the hospital unexpectedly
and without a health care proxy," the society said in written testimony
last year. "In the worst cases, those patients quickly became
incapacitated. In urgent scenarios, the lack of surrogate consent delays
care decisions and strains already overburdened hospital resources."
The
DPH report estimates there's roughly 3,100 to 4,950 unrepresented
individuals who could require public guardianship services every year.
Services can cost on average $10,000 to $11,000 per client annually,
which the report extrapolates would have a potential fiscal impact of
between $31 million and $54.5 million on MassHealth.
"Spending
this money would save the state money because it would keep people out
of expensive long-term care and also be much better for patients to get
out of hospitals quicker, and would save money as well and free up the
bed," Gerhard said.
The report does not specify a funding source to bolster
payments for public guardians. MassHealth already dominates the state
budget, and health officials are looking to trim spending on certain
long-term care services that are not required by the federal government
ahead of major funding losses.
Gerhard called for a state
agency to monitor and run a public guardian program, plus the creation
of a trust fund seeded with payments from hospitals and other state
funding streams. Beyond expanding the guardianship pool, she emphasized
the importance of tracking quality-of-life outcomes, such as whether
patients were ultimately connected to housing and other services and
avoided multiple return trips to the emergency department.
While
the report says no federal revenue would be available to cover
MassHealth fee-for-service guardians, Gerhard said she thinks that
conclusion is wrong.
"I mean, other states
do have much more robust Medicaid payment for guardians, despite what
the report says," Gerhard said. "I think Washington state does and New
Mexico — they do get much more robust funding for guardians directly."
Full Article & Source:
Medical guardian shortage contributing to hospital patient bottlenecks