P&A System 2002 Annual Report

From the Executive Director of NAPAS

Curtis L. Decker  

This year’s annual report of the Protection & Advocacy System is straightforward: it is a reflection of the Systems core purposes and its ambitious federal mandates. We comprise a unique nationwide network of disability rights advocates who strive every day to:

Meet the critical needs of people with disabilities, including the need for adequate health care, education, and housing;

Guard against abuse and neglect such as deadly restraint and seclusion of children;

Advocate for basic rights, for instance, the right to vote or live in one’s own home, rather than an institution; and

Ensure accountability through independent oversight of state government agencies that provide housing, treatment, education, and other direct services to people with disabilities.

In the past year, the P&A System has been given several new authorities and responsibilities, which will enhance our role as the nation’s primary non-federal disability rights enforcer:

‘           This year will see the start-up of a new program for people with traumatic brain injury.

‘           In order to address the growing number of deaths resulting from restraint and seclusion among people with mental illness and developmental disabilities - especially vulnerable children - Congress established requirements for hospitals and other health care providers to report on such deaths to P&As for investigation (new standards on restraint use were also created). CSR reporting requirements provide our System, for the first time, a mechanism to learn about potential restraint abuses nationwide and to investigate and seek appropriate corrective action such as reforms in policies or sanctions.

Also, Congress mandated that death, suicides, and serious injury in children’s facilities must be reported to the state P&A agency.

‘           The new program for Social Securities beneficiaries with disabilities is in full swing and coincides with the roll out of the Ticket to Work and Self-Sufficiency Program.

Given the existing great demand for services on the part of the disability community, these new mandates underscore our challenge to protect and advocate in a systematic and strategic manner in order to ensure the greatest positive impact. As illustrated here, we rely on a continuum of strategies tailored to the specific issue at hand. This report provides a wealth of examples of the System’s commitment to this approach.

Thank you for your support of the nation’s disability rights network.

Curtis L. Decker

The P&A System

Each state has a designated federally funded, federally mandated, Protection and Advocacy agency (P&A). In some states, P&A agencies are part of the government; however, typically they are independent not-for-profit organizations.

P&As provide legally-based advocacy services under the following programs: Protection & Advocacy for Persons with Developmental Disabilities (PADD), Protection & Advocacy for Individuals with Mental Illness (PAIMI), Protection & Advocacy for Individual Rights (PAIR), the Client Assistance Program (CAP), Protection & Advocacy for Assistive Technology (PAAT)and Protection & Advocacy for Beneficiaries of Social Security (PABSS).

These six programs may be operated in one or more agency in each of the 57 states and territories. The ability of both PADD and PAIR to serve a particular individual with a disability is limited, however, by its program priorities for case selection, which must be developed on an annual basis due to limited resources, and financial resources.

With 54 out of 57 states reporting, the P&As provided services to 57,856 people over the 2001 fiscal year.

Flow of P&A Services - From Individual to System: Achieving a Balance

The P&A System at Work

Education Is for Everyone

To a child, school is not only a place of learning but also his or her primary social environment outside the home, recreation facility, neighborhood, etc. P&As handle a vast number of education cases each year, serving students with disabilities from birth through their final year of special education entitlement (age 21 in most states, but as late as age 26 in others). The importance that P&As place on this area of casework is fitting in light of the proportion of a lifetime encompassed by this time period, and the importance of education in young peoples lives. The full range of services is available from the P&A network, from information booklets and brief answers to multi-year litigation involving entire states and some of the largest school districts in the nation (e.g. Los Angeles Unified School District). Here are some examples of the types of education work P&As provide:

‘           The Connecticut P&A developed and implemented a 24-hour course to train parents how to attend Individualized Education Program (IEP) meetings with other parents in need of support. This is the plan which specifies the services a student with disabilities will receive in order to allow him or her to benefit from school, as well as where the services will be provided, by whom, etc. In collaboration with a group of Hispanic parents of students with disabilities, the program trained 10 Veteran Parents over a 12-week period last year. The program then matched the Veteran Parents to parents in need of assistance. It is expected to continue in FY 2002.

‘           The South Carolina P&A represented a 13 year-old boy who has autism and mental retardation. He was charged with assaulting a teacher and was transported by school staff to a local detention center in handcuffs. The P&A discovered that the school district had not followed the student's Behavior Intervention Plan, which was developed to prevent him from becoming upset and acting out at school. Immediately, P&A staff contacted the nurse at the detention center and informed her that a vulnerable child had been admitted and that his therapist would be contacting her with instructions and details about his needs, including his medication requirements. The P&A then contacted the Solicitor with background information about the student and his IEP. The Solicitor signed a release order, allowing the student to return to his foster home.

‘           An office of the New York P&A represented a student with learning disabilities who had been homebound a total of four school years due to her behaviors. She had never received a functional behavioral assessment or law requires behavioral intervention plan as. The school district was recommending that she be placed in a residential school. The P&A represented the family at a due process hearing and the parties arrived at a settlement. The District agreed to provide the functional behavioral assessment and behavioral intervention plan and to gradually transition her back to school in the district.

‘           The Alaska P&A filed an administrative complaint regarding systemic violations of discipline regulations in the Anchorage School District. The issues involved complex legal arguments, including the interpretation of new federal regulations on disciplinary exclusions, due process appeal rights, and prior written notice. The complaint resulted in the state department of education ordering corrective actions by the school district, including a revision of the suspension notice, a training plan to address how to conduct a manifestation determination review (a procedure used to determine whether a student's misbehavior resulted from his or her disability), training for all special ed. staff in the district, and policies and procedures for interim educational settings (for student's who behavior requires that they be removed from the school setting).

Under the IDEA (the most influential federal special education law), the state is ultimately responsible for ensuring that the law is implemented:

‘           The Michigan P&A filed a lawsuit against its state's Superintendent of Public Instruction and the Michigan Department of Education for failing to maintain complaint investigation procedures which complied with federal law (such procedures are used to investigate complaints by parents and students that the law is not being followed by school districts), and for failing to provide students with disabilities the services to which they are entitled. The purpose of this action is to compel the state to provide and implement procedures to resolve class or systemic complaints alleging non-compliance at all levels from the state to local school districts. This is very important because if districts know that the state will not enforce the law against them, they have little impetus to comply with it, and if problems are only resolved on a case- by-case basis, resources will be taken from students who do not complain to satisfy those who do. This suit is currently pending.

Similarly, after a year of attempting to resolve problems in the Milwaukee special education system without resorting to litigation, the Wisconsin P&A filed a class action lawsuit against the Wisconsin Department of Public Instruction and the Milwaukee Public Schools. The lawsuit alleges that children with disabilities in the Milwaukee school system are shuffled from school to school without the appropriate provision of services, are placed in improper placements, and are subject to excessive suspensions and expulsions. The lawsuit further alleges that only 33% of children with disabilities in the special education system actually graduate. The lawsuit represents an attempt by the P&A to address all the problems with the Milwaukee special education program systematically, rather than student by student.

There are more important education cases than the P&As could hope to resolve on their own, however, training parents as advocates and litigating systemic cases are two methods P&As use to improve the system as efficiently and effectively as possible.

CAP: Opening the Doors to Employment

Employment has long been recognized as a key to unlock doors to personal growth, enhanced self-esteem, and a more fulfilling life. Yet persons with disabilities continue to represent an underutilized segment of the workforce. Low employment exists despite changing attitudes about the capabilities of persons with disabilities and the passage of legislative initiatives designed to help promote the employment of people with disabilities. Client Assistance Programs (CAPs) work to ensure that persons with disabilities are afforded the opportunity to prepare for and engage in employment opportunities that meet their unique needs in order to obtain real jobs with real wages, creatively using their authority to improve the quality and range of VR and other services to assure that individuals with disabilities are able to work.

The State VR program is based on the premise that increased employment of individuals with disabilities can be achieved through providing individualized training, independent living services and meaningful opportunities for employment through job training . Eligible individuals receive services aimed at lessening the impact of a physical or mental impairment on a person ability to work.

CAP Advocates continue to address complaints regarding access to the vocational rehabilitation services they need in order to prepare for or engage in employment:

‘          North Dakota CAP has successfully reviewed unfavorable eligibility decisions and successfully reversed several enabling the access to the services and supports needed for employment.

‘          Michigan CAP represented a client with a hearing impairment who required real time captioning in order to benefit from his courses at a state university.

‘          New Mexico CAP obtained ASL interpreter services for class, tutoring and other academic related events.

‘          Utah CAP addressed the categorical denial of major medical services such as cochlear implants, resulting in the continued employment of a teacher for the deaf in an oral language program.

‘          Massachusetts and Utah CAP addresses systemic delays in purchasing equipment needed by VR clients pursuing vocational goals, including computers .

Issues around client choice are pervasive and CAPs are constantly assisting clients obtain approval for their chosen vocational goal since the vocational goal forms the basis for development of services:

‘          Michigan CAP assisted a client of the Michigan Commission for the Blind obtain training to become a Massage Therapist., while Arizona CAP insisted that their client be afforded choice in deciding where to obtain this same training, since she was originally told she would have to attend the Hot Springs Rehabilitation Center, which provides services in a segregated setting inconsistent with the integration mandate of the ADA.

‘          Wyoming, Arizona, and Arkansas CAP assisted clients with self employment goals by addressing appropriate interventions to address the clients impairments while keeping the self- employment outcomes focused and encouraging VR agencies to approach these objectives more consistently thorough better business plan development, resource identification and coordination, and counselor training.

Often the processes used to administer the VR programs violate major provisions of the Rehabilitation Act:

‘          Oregon and Massachusetts CAP both addressed the application process and VR attempts to deny applications for services based on some arbitrary conditions set forth in practice but not founded in law or policy.

‘           While assisting a legally blind individual in appealing the VR agencies to deny funding for graduate education, Maryland CAP recognized that a significant number of clients did not receive copies of their IPE (Individualized Plans for Employment) in appropriate alternate formats, therefore were not aware that their vocational goals were being compromised by the VR agency,. In one case, an individuals employment goal of Social Worker (requiring a masters degree) was listed a Social Services Worker thereby enabling VR to deny additional funding for education once the client obtained his bachelor degree.

‘          West Virginia CAP filed an OCR complaint against a the West Virginia Rehabilitation Center which had a practice prohibiting students from bringing their service animals into the facility.

‘          New Hampshire CAP assisted clients in understanding the application of “financial needs” and expected contribution toward the cost of services.

‘          Florida, Maryland, and Massachusetts CAPs resolved issues regarding Case Closure where VR counselors were not properly informing clients of the impending action nor informing them about CAP and their rights to appeal the decision.

For many individuals with disabilities the major barrier to employment, which must be overcome in order to obtain real jobs with real wages is lack of appropriate transportation:

‘           A woman with a spinal cord injury in Hawaii was denied funding for van modifications even though public transportation was neither feasible (4-6 hour round trip) nor affordable at $120.00 a day. When threatened with termination of both transportation and attendant services, the Hawaii CAP filed a motion for a Temporary Restraining Order and Preliminary injunction, enabling her to continue employment during the VR appeal process. Eventually a settlement agreement was reached and the client was provided with the required van modifications.

Similar success was experience by Rhode Island CAP, which negotiated modifications for an individual with long-term mobility impairments so that the individual could attend college.

Enforcing the Ada in the Workplace

The American with Disabilities Act, which was enacted in1990, prohibits discrimination against individuals with disabilities in the work place. Yet, more than 10 years after the enactment of the ADA, employers are still discriminating against persons with disabilities. To open the work place to individuals with disabilities, P&As have challenged many different types of disability-related employment discrimination:

Inaccessible Application Systems

The ADA prohibits employers from having job application procedures that discriminate against individuals with disabilities. The Arizona P&A filed discrimination charges against two major retailers, which have inaccessible application systems. One retailer had application work stations could not be used by individuals who had visual or motor impairments. The other retailer had several hundred automated telephone systems that could not by used by applicants who were deaf or hard of hearing. The EEOC found that the retailer with the inaccessible workstations had violated the ADA and is currently investigating the other charge.

Illegal Pre-Hire Questions

The Maine P&A settled an “illegal pre-employment inquiry” case for a significant amount on behalf of an individual whom the employer regarded as mentally ill. The employer violated the ADA when she asked the applicant what his disabilities were after she learned that his college education was being funded by a veteran’s rehabilitation program. The applicant described his physical disabilities and his veteran’s disability rating. Not believing his answers, she decided that he must have a mental illness and refused to hire him in violation of the ADA.

Failure to Hire because of a Disability

In Arizona, Wal-Mart refused to hire two young men because they were deaf. The EEOC filed suit against Wal-Mart and the Arizona P&A intervened. The case settled and was approved by the judge, but Wal-Mart refused to comply with the settlement. The judge issued a contempt order and approved even stronger sanctions against Wal-Mart, including the payment of $427,000 to the P&A to monitor the settlement and provide statewide legal advocacy to people with disabilities. The judge also required Wal-Mart to hire at least five people who were deaf, conduct better training programs for managers on the ADA and produce and air a television commercial about the case.

Withdrawal of Job Offers after Disclosure of a Disability

Under the ADA, employers may ask disability-related questions examinations after making a job offer, but offers can be withdrawn only for reasons that are job-related and consistent with business necessity. The Illinois P&A sued a car dealership for withdrawing a job offer that had been given to a man with kidney disease. The dealership terminated him on his first day of work after he had disclosed his disease on an insurance application. The P&A was able to reach a satisfactory settlement with the dealership on behalf of the applicant.

Failure to provide reasonable accommodations

The ADA requires employers to provide reasonable accommodations to employees with disabilities. The examples below show how employees were able to perform their job duties once P&As helped them get reasonable accommodations:

‘           The Montana and Virginia P&As got employers to provide qualified interpreter services to employees who were deaf or hard of hearing so that they would not miss important information shared in job meetings.

‘           The Maine P&A persuaded an employer to let an employee with bi-polar disorder bring a service animal to work to relieve his isolation.

‘          The Illinois P&A settled a case against the City of Chicago for $357,000 on behalf of a police officer who was denied a limited duty position as a reasonable accommodation and has filed two more suits to change the city’s limited duty policy.

In an Arkansas case, an employee who was hearing impaired had problems not only with his employer, but also with the local EEOC office, which refused to provide him with a qualified interpreter during an intake interview. The Arkansas P&A convinced the office to provide an interpreter by complaining to the Chair of the EEOC about the office’s refusal to provide a reasonable accommodation.

Disparate treatment

The ADA prohibits employers from treating employees with disabilities differently from non-disabled employees. The Nebraska P&A convinced a jury that an employer had violated the ADA when the employer required an employee with a learning disability (but no other employees) to pass a reading/writing test as a condition of promotion. The case settled on appeal.

Disability-Based Harassment

P&As are part of a growing trend to challenge the failure of employers to eliminate harassment of employees with disabilities. Below are some examples:

‘           The American Samoa P&A successfully stopped students from harassing a school janitor with a developmental disability.

‘           The Alaska P&A settled a harassment charge brought on behalf of a grocery store clerk with epilepsy and developmental disabilities.

‘           The New Hampshire P&A and the EEOC settled a case against the Olive Garden restaurant chain, which agreed to pay $125,000 to a dishwasher with developmental disabilities who had been harassed by his supervisors and co-workers. The Olive Garden also agreed to provide nationwide training to its employees and staff to prevent future disability-related harassment and to ensure that employees with disabilities receive reasonable accommodations. The settlement will affect 60,000 employees in 478 restaurants.

Reassignment/Termination

The ADA prohibits employers from terminating or reassigning employees because they are disabled. P&As have successfully challenged disability-based job actions:

‘           The Nebraska P&A settled a case for $30,000 against a corporation who erroneously believed that its employee could not do his job because of a panic disorder.

‘           The Colorado P&A has filed charges of discrimination on behalf of employees who were transferred or terminated when they disclosed that they were HIV positive.

The P&As will continue challenging employment discrimination in 2002. NAPAS has initiated the following four employment campaigns to serve individuals with disabilities who face particular employment challenges: Segregated Employment Issues; Employment Issues concerning Persons with Traumatic Brain Injuries; Employment Issues concerning Persons Living with HIV/AIDS; and School-to-Work Transition Issues.

Eliminating Barriers to Daily Living

When Congress enacted the ADA, it brought the promise of integration and equality for persons with disabilities. However, after more than 10 years since the act took effect, persons with disabilities continue to encounter many barriers in all aspects of their daily lives. Barriers to access, communication, transportation, and a myriad of other activities continue to hinder individuals with disabilities as they seek to integrate themselves into their communities. As the primary non-federal enforcers of the ADA, P&As continue to lead the fight in eliminating barriers that people with disabilities face. Through education, advocacy and litigation efforts, P&As are working to tear down the barriers that limit persons with disabilities.

Barriers to Access

Physical barriers are observable and obvious limits to persons with physical disabilities. However, the impact that a step or a narrow doorway has is only truly known to the individual for whom the barrier excludes from enjoying the accommodation available to other members of the public. P&As continue to focus on eliminating physical barriers that shut out persons with physical disabilities from basic and critical services.

The Oregon P&A represented an attorney with physical disabilities, to whom the local courthouse was not accessible. Many of the courthouse’s components were inaccessible or grossly out of compliance, including the parking area, entrance ramp, expedited security entrance for members of the bar, elevators, and courtrooms. Through the advocacy efforts of the Oregon P&A this attorney can now access the courthouse to do her job and other citizens with disabilities can now tend to business at the courthouse.

‘           Similar initiatives to make accessible courthouses, state capitol buildings, and other buildings where government businesses is conducted were made by the P&As in California, Texas, and West Virginia.

‘           Additionally, the P&As in Delaware, Guam, Hawaii, Idaho, and Minnesota have made strides in ensuring that individuals with physical impairments are able to access other government sponsored public accommodations, such as city and state parks, and city streets.

Through the litigation efforts of the Kansas P&A, accessibility improvements affecting over 388,000 persons with disabilities will be made to a chain of general stores throughout nine states in the Midwest.

‘           Similarly, the New York P&A recently filed a lawsuit against New York City’s largest pharmacy chain for failure to comply with federal and city accessibility laws in most of its 170 stores in the metropolitan area. The violations affect thousands of individuals with disabilities in the city, which are prohibited from accessing many essential elements of the stores.

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Barriers to Communication

The ADA mandates that public entities and private business remove barriers that hinder them from communicating effectively with persons who have hearing, vision or speech disabilities. Often this simply entails providing sign language interpreters, text telephones (TTY), materials in alternative formats, such as Braille, or making minor modifications in their policies. Still, even when requested, these accommodations are frequently denied. As a result, P&As have had to do much work to ensure that public accommodations remove barriers to communication.

‘           The Florida P&A represented a deaf man who was denied a sign language interpreter by the Florida Commission on Human Rights, a state agency that is charged with assisting persons with disabilities with rights violations. Through the advocacy efforts of the P&A, the individual was provided interpretation services. The P&A continues to work with the agency to revise the agency’s policy to incorporate the requirements of the ADA.

For years the Oregon Department of Human Services failed to provide persons with visual impairments with information and applications for vitals benefits, such as food stamps and medical benefits, in alternative formats. Despite a finding by the Office of Civil Rights that the department needed to take corrective action to come into compliance with the ADA, these accommodations continued to be denied. The Oregon P&A participated in litigation that resulted in the department implementing a policy, which provides that their applications and other written materials be available in alternative formats, such as large print, Braille and audiotapes and that notification of this policy of accommodation be made known to consumers.

‘           In Louisiana, a man who is deaf was held in jail for 22 days without ever being provided an interpreter, not even when he was taken to court, or access to a TTY. The individual was later released and all charges were dropped. The P&A negotiated a court ordered settlement that requires the sheriff to provide interpreters, access to TTYs and inform the relevant courts of deaf inmates’ need for interpreters when they go to court.

‘           Similar policies were adopted by a sheriffs office and bail commission in Maine, after the P&A there settled a matter on behalf of a deaf individual who was arrested and provided no sign language interpreter when he was read his Miranda rights, booked or during his bail hearing.

Additional advocacy and education efforts to provide effective communication in the criminal justice system, whether it be for those accused of a crime, trying to protect or enforce their rights before a court or simply trying to serve as jurors, have also been made by the P&As in Minnesota and South Carolina.

Other Barriers to Integration

Often the barriers that persons with disabilities face result from the failure of businesses to accommodate their disabilities. The denial of the accommodation generally stems from stereotypes and misconceptions about persons with disabilities or unfamiliarity of the laws that protect their civil rights. P&As continue to challenge discriminatory policies and educate businesses of their duty under the law.

‘           After 30 years of being a member of the YMCA, a gentleman with cerebral palsy was told it was no longer safe for him to attend the facility alone and that he was now required to bring a companion in order to use the service of the YMCA. As a result of the advocacy on the Connecticut P&A, the individual was allowed to continue to use the facility independently.

‘           The Illinois P&A successfully advocated for young girl that was denied access to a mainstream Brownie Girl Scout Troop because of her disability. Similarly, a child in Virginia was denied admission to a child-care program due to her disability. However, as a result of the advocacy of the Virginia P&A, the child is now able to attend the daycare program with her siblings.

‘           In Tennessee, a seven year-old boy who is deaf was denied admission to a summer camp when he tried to make arrangements to have his interpreter attend camp with him. Instead, he was offered admission to a segregated camp for children with disabilities. Through the advocacy efforts of the P&A, the child was allowed to attend the summer camp with typically aged and developed peers, along with his interpreter.

Housing

One of the most basic necessities is a home. However, for millions of persons with disabilities decent, safe, affordable, and accessible housing is impossible to obtain. Further, individuals with disabilities often face discrimination due to stereotypes and unfair rules and policies that exclude them from housing. P&As have been working to eradicate housing discrimination, which not only denies people with disabilities of everyone’s basic need for shelter, but of the opportunity to be part of the community.

‘           The District of Columbia P&A brought a class action lawsuit against the D.C. Housing Authority on behalf of 2,000 D.C. residents with disabilities based on the housing authority’s failure to comply with federal mandates requiring that public housing be accessible to persons with disabilities. The individual class representatives included non-elderly individuals forced to live in nursing homes and other institutional setting due to the lack of accessible housing, separated from their spouses, children and other family members. Other individual plaintiffs were denied access to pivotal parts of their homes, such as bathrooms, due to stairs and other physical barriers. The P&A successfully settled the lawsuit with a court ordered settlement that nearly triples the amount of accessible public housing available in the District.

‘           A housing provider in Michigan was being denied the opportunity to offer affordable, accessible housing to persons with disabilities because the cities where he owned housing units would not accept his nonprofit status. The Michigan P&A represented the provider in three separate hearings throughout the state and was successful in getting the zoning administration to approve his nonprofit status. As a result of the P&A’s representation, more housing options for persons with disabilities now exist in Michigan.

‘           The New York P&A was successful in contesting a housing authority’s decision to deny housing to a young woman with developmental disabilities, because they believed that her disability would make her vulnerable to crime in the independent housing placement.

‘           The California P&A successfully challenged the local housing authority’s decision to close its waiting list for senior/disabled apartments to non-elderly persons with disabilities and to move this category of individuals on the senior/disabled waiting list to a longer general waiting list. As a result of the lawsuit brought on behalf of two individuals, the housing authority agreed to change its discriminatory policy, train its staff on the Fair Housing Act and set aside $20,000 for a education and mediation program at the senior/disabled complexes. Additionally, the individual plaintiffs received housing in a senior/disabled housing and monetary damages.

The P&As in Alaska, Mississippi, American Samoa, Delaware, Maine, Rhode Island, South Dakota, Maryland, Puerto Rico, and West Virginia, have also made great strides in securing affordable and accessible housing opportunities for persons with disabilities. They have addressed housing needs for persons with disabilities by obtaining accessibility enhancements, securing changes in policies that adversely affect persons with disabilities, including those with relation to service animals, and by advocating for systemic change that will create more housing options for persons with disabilities.

Abuse and Neglect: The Challenges and Responses

Congress enacted the P&A statutes in response to the inhumane conditions in state facilities and to protect the human and civil rights of vulnerable persons with disabilities. In legislation empowering P&As to serve persons with mental illness, Congress expressly determined that “State systems for monitoring compliance with respect to the rights of individuals with mental illness vary widely and are frequently inadequate” and clarified that a primary role for the System is to act as the ultimate check on such inadequate monitoring systems.

Among other authorities, P&As are empowered to: (1) investigate incidents of abuse and neglect of persons with developmental disabilities, mental illness and other disabilities; and (2) pursue legal, administrative and other appropriate remedies upon their behalf to ensure the enforcement of their constitutional and statutory rights. P&As’ authorizing legislation provides detailed express authority to gain broad access to records, as well as to facilities and residents, to ensure that these mandates can be effectively pursued.

Unfortunately, there continues to be widespread deadly abuse and neglect of persons with disabilities in institutional and community settings such group homes. And many state systems for protecting the safety and rights of persons with disabilities are woefully inadequate. Such systems frequently are not held accountable under state law and lack stringent standards for their operations. In addition, many of these systems, and the service providers they regulate, strongly resist disclosure of information about their performance and investigative findings to P&As and other advocacy groups, family members of victims of abuse and other interested persons.

In 2000, Congress began to address some of the concerns relating to absence of state care standards and disclosure of information, when it passed legislation establishing nationwide standards on the use of restraint and seclusion in federally funded health care settings. The legislation also requires reporting of deaths to P&As and other agencies to be designated by the Department of Health and Human Services (DHHS). To date, DHHS has issued regulations designating P&As as the recipients of reports concerning restraint-related deaths in hospitals; and deaths, serious injuries, and suicide attempts in psychiatric residential treatment facilities for children. Regulations regarding other types of health care providers will be issued in the future. However, up to 90 percent of persons with disabilities who reside in facilities are subject only to state standards, emphasizing the importance of P&A oversight of the state care systems.

The challenge to the P&A System is, given a relatively low level of resources available nationwide, to address these barriers and ensure that appropriate systemic and individual corrective actions are implemented. P&As have been rising to this challenge by developing practical strategies such as the following (which are detailed in the advocacy examples below):

‘           conducting direct investigations of facilities and other service providers;

‘           reviewing the investigations conducted by service providers themselves or state agencies, and intervening when the process or outcomes raise questions;

‘           analyzing trends in reported incidents in facilities, regions, or across the state and making recommendations for changes in policies and practices;

‘           routinely monitoring health and safety conditions at facilities;

‘           issuing public reports about inadequate systems of care and oversight and public alerts about dangerous practices; and

‘           working with policy makers at the state level to ensure that effective standards are implemented to address these issues.

Oversight of State Systems

At least 163 persons residing in Georgia’s system of group homes for people with mental retardation have died in last the four years under the State’s watch in circumstances shrouded in secrecy; a sizable number of those who died were malnourished, bruised, scalded and dehydrated, while others choked on food and died from other preventable causes. (Hardie, Dying in Darkness: Day One – Ugly Results of State Care Revealed, Atlanta Journal-Constitution, December 2, 2001). In response to these findings, the Georgia P&A immediately began the process of evaluating the state system by obtaining all records in state custody regarding these individuals and planning investigations of a number of the deaths. The agency is developing findings on the extent to which the state was failing to comply with applicable care standards.

In other cases, however, P&As have worked productively with their state licensing agencies:

‘           After a Michigan P&A investigation of a nursing home found that facility employees were not qualified to provide care, the P&A filed a complaint with the state agency, which in turn, withdrew the facility’s license.

‘           In Louisiana, the P&A investigated the case of an 18 year old with mental retardation residing in a group home in which staff were failing to provide adequate food and monitoring of his safety; as a result of a complaint filed by the P&A with the state licensing agency, the facility was fined, a criminal investigation was begun and the young man was placed in a safe environment.

[HIGHLIGHTED IN MARGIN “Death at Care Facility Criticized” and “A Mother Still Asks Maryland Why Son Died” reads the headlines from two Baltimore Sun stories (January 29 and February 12, 2002). These stories chronicled the Maryland P&A’s review of the failure of the state agency responsible for investigating deaths at state licensed facilities to adequately investigate the restraint death of Mark, a resident at a facility for persons with mental retardation. The P&A’s review of records revealed that the man was physically restrained face-down by four or five staff members, suffered more than 20 contusions, lacerations and hemorrhages, lost consciousness and died. The P&A determined that the state’s “investigation” merely resulted in the completion of a 2 ½ page form; the state failed to inquire about many of the circumstances leading up to Mark’s death (including the use of a dangerous restraint method and a delay in seeking emergency treatment), cited no deficiencies in practices, and did not make even a single recommendation for reform at the facility. Many other state investigations, the P&A found based on a systemic review, also suffered from similar deficiencies. The Baltimore Sun found that “The gaps in the report have uncovered a vast void in accountability for state-licensed facilities and exposed a bureaucracy that strives to keep deaths like [Mark’s] shrouded in secrecy not only from the public but from the families of those who die in state custody.” The P&A issued a detailed report calling on the state and facility to undertake specific reforms to improve the investigative process and restraint practices – for instance, the state must identify persons like Mark who can be served in safer, less expensive community settings; and there should be specific improvements to treatment plans and a ban on the use of “prone” restraints.]

Direct Investigations/Public Reports

P&As have been actively investigating suspicious deaths of persons with disabilities and recommending appropriate reforms to policy and practice. They have been continuing to focus on eliminating inappropriate restraint and seclusion practices, which are still commonly used by facilities as a means of discipline or for staff convenience when dealing with challenging behaviors of persons with disabilities. These practices (forced isolation, physical holds, and use of devices and drugs to subdue difficult-to-manage patients) result in hundreds of deaths and thousands of injuries nationally each year.

‘           In the last year, the California P&A conducted extensive investigations of seven reports of chemical and physical restraints that resulted in death or serious injury. In one case, the P&A reviewed school personnel’s facedown restraint of an eleven year-old boy in a seclusion room, who then suffered a seizure. As a result of this investigation, the department of education ordered the school to eliminate the seclusion room. Based on its investigations, the P&A is preparing a public report on the hazards of restraining patients face down.

‘           Similarly, after managing to photograph a 36-foot room where school children with mental illness were restrained and segregated from their classmates, the Oklahoma P&A compelled the school principal to tear down the room and eliminate this horrible practice.

‘           The Virginia P&A’s systemic review and report of restraint and seclusion abuses practices at a large state hospital resulted in major reforms to those practices, including a requirement that staff use that intervention only as a last resort and document their efforts to use less restrictive behavioral interventions.

‘          The efforts of the Indiana P&A resulted in a child being moved from an institution, where he had been inappropriately restrained, back to his home and neighborhood school, with appropriate supports and services.

‘           Due to the Iowa P&A’s investigation of the restraint-induced death of an eleven year-old boy in a children’s psychiatric facility, a new facility administrator was hired, the faculty’s license was restricted, and half of the residents were moved to safer environments. Other similar facilities in Iowa have also discontinued dangerous restraint practices.

‘           As a result of a year-long investigation conducted by the Kentucky P&A at a facility for people with mental retardation (involving, for instance, 20 unannounced site visits, review of case files and incident reports and interviews with residents and staff), the P&A issued a comprehensive report substantiating a shortage of trained staff, failure to protect residents from abuse, lack of adequate treatment and unnecessary institutionalization of many residents. Since the P&A’s investigation, the following facility reforms have occurred: removal and criminal prosecution of abusive staff, resignation of the facility director, a large increase in the facility budget, additional staff training and posting of abuse hot line numbers throughout the facility.

Litigation/Systemic Reform

In a small number of cases, it is necessary to resort to litigation to address egregious abuses and assure broad systemic reforms protecting patient rights. For instance:

‘           In a landmark case brought by the Washington P&A to address the shameful abuse and neglect of residents in the state’s largest psychiatric hospital, the agency reached a model settlement in 2001, assuring that the hospital implements appropriate systems of care. The settlement requires that the hospital provide residents with constitutionally adequate and timely dental and medical care, active treatment and programming, freedom from unnecessary restraint and seclusion, and appropriate discharge planning; it also puts into place systems to prevent physical and sexual assault and procedures for reporting and investigating incidents.

‘           The Kansas, Illinois, Delaware, and Texas P&As are pursing cases against care providers whose abuse or failure to monitor their patient’s safety or provide basic medical treatment led to their tragic and unnecessary deaths.

‘           Finally, the Nebraska P&A settled two negligence cases brought against women in a state facility who were sexually assaulted by male patients, and is seeking damages against the state for a woman with mental illness who went into a coma as a result of deficient care.

Community Integration as a Standard of Living

Leo is only 14 years old. He is a ward of the state and has lived in state hospitals for all but brief periods of his life because of mental illness and heart transplant issues. The hospital contacted the Minnesota P&A after the county stopped paying Leo’s medical bills. It soon became apparent to the Minnesota P&A that the county has lost its motivation to find services for Leo after numerous state agencies had refused to accept his combination of care needs. The Minnesota P&A identified a network of individuals who wanted to provide supports for Leo, however, it required renting an apartment and providing 24 hour staff to respond to his cardiac and mental health needs. When the P&A presented the plan to the county there response was “oh they do that if you have developmental disabilities, but we are mental health.”

The P&A did not give up and continued to campaign the county board until funding was approved. Months after the move to his own apartment, Leo says he likes living in a regular house like a regular kid. The P&A continued to work with the Department of Mental Health in developing a uniform screening tool to identify appropriate individualized services for persons with mental illness.

Susan, is 28 years old is about to complete her masters degree in English. Her accomplishment is especially significant considering that she has spent the past several years of her life in a nursing home. Her drive to get her masters is so great she is making it happen even without access to a computer. The Wisconsin P&A discovered her situation as part of a PAIMI campaign to conduct personal interviews with every PAIMI eligible resident in several nursing facilities around the state to determine if these individuals were interested and able to move to a less restrictive setting. Susan wanted to move back to her community. A P&A review of records revealed that she had in fact been in remission for several years as a result of medication. Her only health issue remaining was that of limited mobility do to a medical condition, for which she was not receiving treatment in the facility. Despite her desire for community placement and her remission, the nursing facility staff recommended her for continued institutionalization.

The P&A worked to find Susan an apartment in a four-person group home with peers her age. Additionally, P&A advocates found a source willing to donate a computer for her to use in completing her masters degree.

Jay was involuntary committed to a hospital several counties away from his home. Days later the hospital discharged him by simply walking him across the street. No follow-up services were arranged and he was not even given access to the medication that had assisted him in the hospital. Jay attempted suicide outside the hospital and was promptly readmitted. With assistance from the California P&A, Jay was given the support of a case manager who arranged for community mental health services near his home, help with medication management, identification of appropriate housing in his home county and transportation to his new home.

The California P&A continues to train hospital personnel and people with disabilities across the state about laws requiring this type of comprehensive discharge planning. California, West Virginia, and Alaska are among several P&As who have worked with hospitals to develop a standardized assessment form to be completed on every individual being discharged.

Leo, Susan, and Jay are just three of the hundreds of individuals P&As have assisted to move from institutional settings to the community in 2001. The number jumps to several thousand individuals served when you include the resolution of class action law suits this year alone in California, Louisiana, New Hampshire, Oregon, and Washington, in which the states agreed to provide appropriate transition planning and community support for people whom doctors agree are unnecessarily segregated in facilities.

State progress in developing new and better community-based services is driven in large part by Medicaid law the most common method states use to fund these supports and services. Therefore, P&A advocacy often involves ensuring providers and state officials properly enforce Medicaid. Proper enforcement of Medicaid can free people from institutions, preserve family connections, and it can save a life which is what Sarah hoped when she contacted the Washington P&A.

Sarah learned from a nursing home administrator that if Medicaid did not cover its late payment, “the plug was going to have to be pulled” on her mother who was in a coma and on a ventilation machine. The Washington P&A quickly notified the nursing home that such action would violate federal Medicaid law and offered to assist the nursing home in contacting Medicaid regarding timely payments.

Suzanne had been out of school for weeks with complications from cystic fibrosis when her mom contacted the Nevada P&A.  Suzanne’s ongoing hospitalization and subsequent removal from school could have been avoided to a great degree if Medicaid had approved coverage of an airway clearance vest. The vest is a portable inflation device that clears clogged airways and lungs, which the individual can wear throughout the day. It is an effective, independence-promoting alternative to the traditional manual chest percussive therapies, which require another individual (usually a parent or trained health professional) to physically pound on the chest and back to clear respiratory passages.  The Nevada P&A successfully represented Suzanne and several young children with cystic fibrosis in their appeal of Nevada Medicaid’s denial of ABI vests.  As a result of the P&As representation, Nevada Medicaid Services Department permanently changed its policies and agreed to provide vests to all qualified children in the future.

In addition to individual and group representation, P&As seek out opportunities to inform state officials and legislators about the need for new and increased community support options that are flexible and promote self-direction. For example:

‘           The Delaware P&A wrote a draft bill that would establish a statewide attendant services program and informed legislators about the dire need for new programs to fund attendant services. In July 2001, the bill was enacted and is expected to serve 30 senior citizens and persons with disabilities.

‘           The District of Columbia P&A drafted a clear policy on Medicaid payment for motorized wheelchairs for individuals in nursing homes and in the community and advocated for Medicaid to adopt it. In part from the P&As advocacy, Medicaid issued a letter clarifying that electric wheelchairs can be covered for individuals in the community and in nursing facilities.

‘          The Native American P&A negotiated with the Arizona Division of Developmental Disabilities to obtain an increase in contract and payment rate for physical therapists and speech pathologists to serve infants and toddlers living in rural areas.  The goal is to increase the availability of therapists in rural areas so that families with children needing early intervention services are not forced to either leave their homes on Native American land and move to a more urban areas in order to get community supports or place their children in institutions far from home.  These negotiations are just one result of a multi-prong P&A initiative to increase community supports for children. The Native American P&A has also represented dozens of infants and children in a lawsuit to obtain appropriate Medicaid early intervention services.

‘           The Maryland and Washington P&As worked on task forces, which drafted a bill to amend the Heath Care Decision Act to specifically provide for a Mental Health Treatment Advance Directive. The Maryland bill was passed in the 2001 legislative session.

P&As also provide information and training to empower people with disabilities to seek administrative and legislative action on their own behalf:

‘           The South Carolina and Arkansas P&As recently completed guides for self-advocates explaining Medicaid community based services. The guides include detailed information followed by sample letters advocates might use in all steps of the process from apply for coverage to appealing a denial of service and how to prepare for a hearing.

‘           The California, North Carolina, Minnesota, Maine, Kentucky, Massachusetts, Vermont, and Texas P&As developed information on how consumers can develop advance directives to allow them to make their own decisions regarding medical care and psychiatric treatment.

A major focus of P&A self-advocacy information concerns the landmark 1999 U.S. Supreme Court decision in Olmstead v. L.C. In Olmstead, the highest court in the land said that unnecessary segregation and institutionalization of people with disabilities constitutes discrimination and violates the ADA. Focusing on state efforts to provide individuals with services in the community and comply with the Olmstead decision is crucial to P&A work at both the legal and advocacy level. A 2001 survey by ATTAC/NAPAS revealed that every P&A was involved in Olmstead implementation efforts in their state. Part of P&A Olmstead work includes promoting consumer advocacy to assure states move aggressively to provide appropriate community supports. For example:

‘          California, Kentucky, Illinois, and Montana are among P&As that have prepared information kits for self-advocates explaining how to file a formal request with the federal government to provide appropriate community services so that they can move out of an institution.

‘          North Carolina, Connecticut, Ohio, New Jersey, South Carolina, and Alabama are just a few of the P&As that have advertised and supported Olmstead stakeholder groups to come together and draft ideas for implementing Olmstead and to propose adoption of these recommendations to the Governor. These P&As also devoted hours of time with stakeholder groups to apply for federal “real choice systems change grants” aimed at helping to fund community integration programs.

For decades, people with disabilities and their families have led a grass-roots civil rights movement to demand equal access to all areas of work and community life as the able-bodied enjoy. The shift from institutional segregation to community integration has been a thoughtful process born from years of studies demonstrating a better quality of life for people with disabilities living in the community and a confidence that realistic community options exist.

P&As are proud to be one of our nation’s strongest enforcers of federal laws that promote community integration.

Challenging the Conditions of the Criminal Justice System

The unmet/under-served population of individuals with disabilities in the criminal justice system is an ever-increasing concern of many P&As.

Accessing and obtaining services is a major complaint received by the P&A system from inmates with disabilities in the criminal justice system. The Virgin Islands P&A brought legal action against the Government of the Virgin Islands and Virgin Island Department of Justice alleging the discriminatory treatment and medical neglect of inmates with psychiatric disabilities. The Virgin Island P&A has received a high volume of telephone calls from inmates of a local correctional facility. Inmates complained of: 1) medical staff routinely refusing to provide pain medication when requested; 2) unavailability of medication for inmates with AIDS/HIV; 3) unavailability of medical staff to treat an inmate with an enlarged prostate; 4) allegations of retaliation by correctional staff against inmates in regular contact with the Virgin Island P&A.

As a result of the P&A’s activities, the District Court of the Virgin Islands scheduled a hearing to address these and others concerns and ordered the development and coordination of procedures for handling inmate grievances regarding medical/mental health treatment.

Some referrals to P&As involved death investigations such as the Missouri P&A’s investigation of a man with paraplegia who died while incarcerated in the St. Louis County detention center. The P&A litigated and settled favorably against the St. Louis County jail to rectify neglect of individuals with disabilities who are incarcerated in St. Louis County. The settlement agreement means that all people with disabilities who are incarcerated in St. Louis County will be afforded accessible jails. Additionally, inmates with disabilities will receive health care that treats their disability; and, they will not be denied services or opportunities for early release because their disability restricts them from full participation in required programs. It is estimated that several hundred people with disabilities will be positively impacted as a result of the efforts of the Missouri P&A.

Due to an overwhelming need for community based services for ex-offenders with disabilities are disproportionately remain without appropriate and adequate options for residing in the community (employment, housing, benefits, etc.) which often leads towards a downward spiral of events causing unwanted interface with law enforcement officials:

‘          Montana’s P&A, through outreach and collaboration, participated on a Mental Health Oversight Committee which oversees the mental health service plan involving law enforcement officers. As result of the P&A’s involvement on this committee, law enforcement officers are now receiving increased training on how to interact with  persons who have disabilities. Prior to the Montana P&A’s involvement, law enforcement officers received on 2 hours of disability awareness training during the academy training program.

After the deaths of 2 persons with mental illness, the Minnesota P&A convened a work group to investigate the problem of police interaction with those experiencing mental health crises. The group learned that peace officers in Minnesota receive no specific training, either pre-licensure or post-licensure, on how to de-escalate situations with those in crises. A number of needed actions were identified by the group and the following have been achieved and implemented as the result of the Minnesota P&A’s mediation and intervention efforts: 1) persuaded the Peace Officer Standard and Training Board to include training in how to interface with individuals with disabilities; 2) Legislation appropriating $150,000 over two years to create urban and rural community policing models that could be replicated throughout the state passed 2001 legislative session; 3) the Legislature created a Department of Public Safety Citizen Advisory Council to advise the Governor and Commissioner of Public Safety on these issues.

One avenue to attack the increasing problem of over-represented individuals with disabilities in the criminal justice system pursued by a P&A at the state level is the development in conjunction with collaborative partners alternatives to incarceration/diversion programs for individuals with disabilities:

‘           The New Mexico P&A in collaboration with the Governor’s Mental Health Planning Council have developed submitted a proposal to the Governor making sweeping recommendations on systematic development of community based diversion programs for persons with disabilities currently residing in jails.

‘           In South Carolina, over-representation of its youth in juvenile justice facilities is currently under court-ordered monitoring by the South Carolina P&A. Close attention is being paid to the improvement and safety of services at the Department of Juvenile Justice and to monitor juveniles placed with the S.C. DJJ for future advocacy efforts involving community placement/discharge planning upon release. The S.C. P&A represented 37 juveniles in receiving appropriate treatment and services, and identification of community placement options. The P&A’s involvement in this court-ordered monitoring resulted in numerous alternative/diversionary placements versus confinement juvenile justice facilities.

In the year 2002, over 600,000 ex-offenders will be released into communities all over the country. It is estimated that at least 10% (60,000) of these ex-offenders will be individuals with mental illness or are dually diagnosed (mental illness & substance abuse).

Note: Sixteen (16%) percent of state prisoners are classified as having a mental illness/disability and seven (7%) percent of federal prisoners are diagnosed with a mental illness/disability. There are over a quarter million individuals with mental illness/disability are in prison or jail.

Bureau of Justice Statistics Special Report July 1999

*Reported either a mental or emotional condition or an overnight stay in a mental hospital or program.

With these staggering statistics, it is evident that a sizable number of U.S. jails and prisons house a significant portion of this countries special needs population, further supporting P&A’s nation-wide criminal justice advocacy efforts.

P&As Respond to the New Federalism

A series of recent decisions by the U.S. Supreme Court’s five member conservative majority have created new challenges for P&As seeking to enforce the rights of people with disabilities. The cases, most notably University of Alabama v. Garrett and Alexander v. Sandoval, limit the scope of civil rights protections and restrict access to the courts. The lower courts have followed suit and have issued decisions that make it even more difficult for P&As to bring lawsuits on behalf of their clients. Rather than backing down, however, P&As are crafting new legal arguments in response to those raised by defense attorneys. In addition, P&As are working with the grass roots organizations in their states to bring about federal and state reforms.

For example, Equip for Equality, the Illinois P&A, defended the first post-Sandoval case addressing the issue of whether individuals could bring a lawsuit to enforce the regulations promulgated under Title II of the ADA. The class action lawsuit sought to end the Chicago transit system’s longstanding failure to provide equal access to public buses and trains for riders with disabilities. Among other things, defendants argued that Sandoval precluded the P&A from bringing suit, because, they argued, the ADA regulations exceeded the scope of the statute. The court rejected defendants’ Sandoval arguments and found that the plaintiffs’ claims survived. Ultimately, the case was settled, with the Chicago Transit Authority agreeing to make numerous changes in its practices, and to expend significant financial resources, in order to guarantee accessibility for its riders with disabilities.

Similarly, the Disabilities Law Project (the legal arm of the Pennsylvania P&A), has successfully fended off a number of legal challenges raised by the state in their community integration cases. One case has been brought on behalf of residents in a state psychiatric hospital; the other has been brought on behalf of residents of a state-operated nursing facility for persons with psychiatric disabilities. In each case, the court found, among other things, that claims under Section 504 are not barred by the 11^th Amendment, that the P&A could sue state officials for prospective injunctive relief under Title II of the ADA and Section 504, and that the P&A could bring an action to enforce the integration mandate regulation even after Sandoval. At the time this document went to press, the cases were still pending.

In Connecticut, the Office of Protection and Advocacy for Persons with Disabilities (the Connecticut P&A) is litigating these issues as well. In addition, however, the P&A sponsored a series of meetings with disabilities and civil rights organizations to discuss a political response to the Supreme Court’s decisions. The result of these meetings was the formation of the Connecticut Coalition for Justice (CCJ), a broad based coalition whose goal is to push for legislation to overturn the effects of the Supreme Court cases. To that end, CCJ proposed two bills: one, a statute that would waive 11^th amendment immunities with respect to the ADA, the Age Discrimination in Employment Act, and a number of other civil rights statutes; the other, an amendment to the State Human Rights Law which attempted to maintain the pieces of the state law that are stronger than the ADA, while adding other provisions that would make the state law more in line with all Titles of the ADA. While neither bill made it out of the Judiciary Committee this year, the CCJ intends to raise both bills again next session.

Similarly, the Alabama P&A formed the Alabama Disabilities Action Coalition (ADAC), a cross-disability coalition composed of both individuals and disability advocacy organizations, in order to enact a strong state law prohibiting discrimination on the basis of disability. The result was a bill entitled the Alabamians with Disabilities Act, which in some ways mirrors, and in other ways provides more protections than, the Americans with Disabilities Act.. Although the bill passed in the State Senate, the bill failed to get out of committee in the State House. Alabama advocates hope to reintroduce the bill in the next legislative session. In addition, ADAC plans to conduct candidate forums, where candidates for state and local elections will be invited to come together and answer questions about pertinent disability issues.

Finally, the New York Lawyers for the Public Interest, a subcontractor of the New York P&A, has brought together rights groups and advocates from across the country to share information and strategize about how to respond to the Court’s “rollback” of civil rights. In June, 2001, these organizations and individuals issued a joint press statement proclaiming grave concern over the Supreme Court’s decisions. Now these organizations and individuals are taking the next steps in the development of a national outreach campaign, and are working to address the rollback through federal and state reform efforts. A national strategy conference is scheduled for October, 2002.

P&As Respond to Nationwide Class Action Settlements

In the past year, there have been attempts to settle a number of ADA Title III architectural access cases through nationwide class action settlements. While purporting to protect the rights of people with disabilities, these proposed settlements contain numerous substantive and procedural problems, and often contain provisions that would prohibit people who have been discriminated against from filing future lawsuits. In general, the settlements include less stringent accessibility standards than required by the ADA, waive all future claims (under federal and state law), and provide relief only to a narrow group of people with disabilities rather than all the disability communities who are covered by the agreements. As a result, P&As across the country have banded together and have filed joint objections to the proposed settlements.

In Access Now v. May Department Store Company, plaintiffs filed a lawsuit under Title III of the ADA alleging that seven Lord & Taylor stores (owned and operated by the May Co.) in southern Florida were inaccessible to persons with mobility impairments. In settlement of their claims, Plaintiffs entered into a proposed nationwide class action settlement covering all May Co. department stores in 49 states. The proposed class action settlement agreement provided for increased accessibility, but in many instances the standard of accessibility did not rise to the level required by the ADA Accessibility Guidelines. In addition, the proposed settlement would have applied to all persons with disabilities, and would have precluded all future federal and state claims alleging discrimination by May Co. stores. Twenty-one P&As signed on to objections authored by the Arizona P&A. The New Hampshire P&A, which had a pending law suit that would have been mooted out by the settlement, filed a separate objection. In response to the objections, the court de-certified the class, finding that approval of the settlement would have constituted “reversible error.”

In Association for Disabled Americans v. 7-Eleven, the parties filed a proposed consent decree to resolve a national class action, which would have released all ADA Title III and state law claims nationwide, in return for certain accessibility enhancements and other relief. Twelve P&As signed on to objections authored by the Texas P&A, for reasons that included the over breadth of the release of state law claims, the failure to require ADAAG compliance in new construction and alterations, and numerous other grounds. In response to the objections, the court rejected the settlement, finding that the named class plaintiffs shared neither the same interests nor the same injuries as all members of the class.

Finally, in Association for Disabled Americans v. Amoco, another nationwide class action settlement involving approximately 4000 Amoco, BP, and ARCO service stations, 13 P&As signed on to objections authored by the New Hampshire P&A. While the Court ultimately approved the Consent Decree, the parties modified the agreement in response to the P&A objections so that the release of federal and state claims does not preclude private suits under state accessibility laws for actual damages.

The P&A network is continuing to monitor these cases and has recruited a cadre of volunteers to file objections where appropriate. While P&As certainly support class action litigation as an important enforcement mechanism for defending the rights of persons with disabilities, they will remain vigilant against class action settlement agreements that, in fact, diminish their clients’ rights.

Upholding the Right to Vote Through Accessibility

The millions of people with disabilities in this country still face a wide array of obstacles in their path to participation in the electoral process.  Many potential voters are disenfranchised by the non-accessibility of polling places or outdated exclusionary legal criteria dealing with standards of intelligence.  For others, who seem to have better access to the ballot, the problem might be the lack of training for election officials who are not adept in working with or accommodating  voters with disabilities.

Working with the State

‘           The Alabama P&A’s Access Alabama Communities project advocated for improving access for individuals with disabilities to 20 polling places in Alabama.  As part of this project, the P&A is working with the Secretary of State of Alabama and county officials to improve access to the voting process for individuals with disabilities.

‘           The Virginia P&A, another agency within its state’s government, worked with the Virginia State Board of Elections (SBE) Task Force to eliminate barriers to accessibility at polling places.  The Task Force was instrumental in revising the Virginia voter registration form to include a question regarding the need for accommodations at the polling place.  The P&A also assisted the SBE in educating Registrars on disability-related issues with a training entitled, “Accessibility in Voting For People with Disabilities.” Additionally, the P&A prepared an informative document for use on the SBE website, to be viewed by state election officials.

‘          The Northern Mariana Islands CAP provided information to poll-workers regarding the voting rights of people with disabilities and the role of P&As in the voting process during a series of trainings, which were coordinated by the Election Commission. In all, 100 workers on the islands of Saipan, Tinian, and Rota received the training

Finally, an advocate of the South Dakota P&A working at a state-operated psychiatric hospital assisted eligible adults access the electoral process. The advocate provided information on voter eligibility and registration as well as assisting clients with contacting their county of residence to secure absentee ballots. The advocate then corresponded with the counties to clarify that attendance at the facility was not a finding of capacity.  The hospital cooperated with the P&A in recognizing that potential voters should have an opportunity to register, obtain, and return their absentee ballots.  The P&A has been involved in this process during the last several state and national voting cycles.

Legislative Effort

‘           The Delaware P&A collaborated with several agencies in obtaining a State Constitutional amendment and statutory amendment addressing voting.  A bill was passed eliminating the state’s Constitutional prohibition on voting by “idiots and insane persons.”  The P&A negotiated several amendments to another bill which resulted in the elimination of a similar statutory voting prohibition and the elimination of the mandatory reporting of persons with cognitive disabilities to the Election Commissioner.

Legal Challenges

‘           In U.S. District Court, the Maine P&A successfully challenged state constitutional and statutory provisions that prohibited people under guardianship for mental illness from voting.

‘           The New Jersey P&A received a positive Appellate Court decision overturning a judge’s decision not to count absentee ballots cast by residents of Trenton Psychiatric Hospital.  The P&A had appealed the decision and the Appellate Court agreed with the P&A position, holding that interference with a right such as voting cannot occur unless the challenger can show by clear and convincing evidence a compelling reason to do so.

The P&A System continues to work toward protecting this most basic American right in a variety of ways, from P&As housed within their state governments effectively working in close collaboration with state governments to independent P&As addressing the issue through non-legal advocacy, lobbying, and legal challenges.

Descriptions of Significant Disability-Related Laws

Air Carrier Access Act of 1986

Provided prohibitions against discrimination of individuals with disabilities that applied to all air carriers.

Americans with Disabilities Act

Expanded Rehabilitation Act protections by prohibiting government and private programs and activities from discriminating on the basis of disability in employment, public services, public accommodations and telecommunications whether or not Federal funds are involved.

Fair Housing Amendments Act of 1998

Extended the Federal housing laws* scope of coverage to individuals with disabilities.

Individuals with Disabilities Education Act

Created a comprehensive scheme to ensure a free, appropriate, and public education for all children with disabilities.

Ticket to Work and Work Incentives Improvement Act (TWWIIA) of 1999

 A dramatic “return-to-work” legislation, which removed significant work disincentives and created programs and services to provide health care, employment preparation, placement, and other support services to individuals with disabilities that will enable those individuals to reduce their dependency on cash benefit programs.

Advocacy Terms and Definitions

Administrative Appeals - Providing non-litigation based remedies on behalf of people with disabilities through the appeal process or through the complaint process of a Federal, state or local agency with investigatory and/or enforcement authority relating to violations of civil rights.

Class Action Litigation - Filing a lawsuit on behalf of a group or “class” of people.

Counseling/Advice - Providing information or advice to a client (who has an open case) or explaining to persons with disabilities their rights to receive particular services.

Impact on Policy Makers - Changing a procedure or practice due to the involvement of a P&A in a case.

Individual Litigation - Filing a lawsuit on behalf of a client.

Information/Referral - Brief written or verbal information, including information about the P&A and additional resources, provided in response to individual requests and needs.

Investigation - Examining information, records, evidence, and circumstances surrounding a specific allegation of abuse or neglect. Investigations are undertaken to determine if there is basis for action on behalf of the client. Requires a significant amount of time and resources.

Legislative Advocacy - Contributing to the understanding of legislation.

Mediation/Negotiation - Two parties meeting, with or without the assistance of a third party facilitator, in an attempt to resolve a dispute without resorting to litigation.

Monitoring - Examining information or records to ascertain whether there is a pattern of practice which is abusive, exploitative, or violates the rights of persons with disabilities receiving services from a specific provider.

Self-Advocacy - Teaching people with disabilities how to advocate for themselves.

Training/Education/Outreach - Sharing information with people, which promotes a greater understanding of the rights of people with disabilities.

Commonly Used Advocacy Acronyms

ACF - Administration for Children and Families

AC - Advisory Council

ADA - Americans with Disabilities Act

ADD - Administration on Developmental Disabilities

ATC - Assistive Technology Center

ATTAC - Advocacy Training and Technical Assistance Center

BOD - Board of Directors

CAP - Client Assistance Program

CMS - Center for Medicare and Medicaid Services

CMHS - Center for Mental Health Services

DD - Developmental Disabilities

DD Act - Developmental Disabilities Assistance and Bill of Rights Act

DDC - Developmental Disabilities Council

DSA - Designated State Agency

FAPE - Free and Appropriate Public Education

FY - Fiscal Year

HRSA - Health Resources and Services Administration

IDEA - Individuals with Disabilities Education Act

IL - Independent Living

ILCs - Independent Living Centers

LD - Learning Disability

MI - Mental Illness

MR - Mental Retardation

MTARS - Monitoring and Technical Assistance Review System

NAPAS - National Association of Protection and Advocacy Systems

NIDRR - National Institute on Disability and Rehabilitation Research

OMB - Office of Management & Budget

OSERS - Office of Special Education Rehabilitation Services

P&A - Protection and Advocacy System

PAAT - Protection and Advocacy for Assistive Technology

PADD - Protection and Advocacy for Persons with Developmental Disabilities

PAIMI - Protection and Advocacy for Individuals with Mental Illness

PAIR - Protection and Advocacy for Individual Rights

PPR - Program Performance Report

RSA - Rehabilitation Services Administration

SAMSHA - Substance Abuse and Mental Health Services Administration

SOP - Statement of Objectives & Priorities

SSDI - Social Security Disability Insurance

SSI - Social Security Insurance

RSA - Rehabilitation Services Administration

TASR - Technical Assistance Site Review (CMHS)

Tech Act - Technology-Related Assistance for Individuals with Disabilities Act

UAP - University Affiliated Program

UCE - University Centers for Excellence in Developmental Disabilities Education, Research, and Service

TBI - Traumatic Brain Injury