The Supreme Court recently agreed to hear the case Virginia Office for Protection and Advocacy v. Reinhard (“VOPA v. Reinhard”). This lawsuit concerns whether a state agency responsible for advocating on behalf of people with disabilities may sue another state entity to obtain for information about possible abuse and neglect of people with disabilities.
The protection and advocacy (“P&A”) system came into existence in the 1970s after Geraldo Rivera brought cameras into Willowbrook State School in New York, where adults and children with developmental disabilities were isolated, segregated, and subjected to horrifyingly inhumane conditions in overcrowded, understaffed facilities. It also turned out that people with disabilities were segregated and deprived of basic rights in institutions across the country. As a result, Congress decided to allocate money to the states to designate an agency that would ensure that the rights of people with disabilities would never again be violated in this way. States may choose whether to establish these P&A agencies as either an independent state agency, or a private not-for-profit. Whichever they choose, P&As are critical to ensuring the enforcement of the ADA. In Virginia, the governor designated the Virginia P&A (VOPA) to advocate on behalf of people with disabilities, a state agency.
In 2006, three residents in state-run facilities died or were injured while in the custody of the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services (the “Department of Mental Health,” now called the Department of Behavioral Health and Developmental Services). The VOPA opened an investigation into these deaths and tried to gain access to records about injuries and deaths at state institutions. When the Department of Mental Health refused to provide the records needed to complete the investigation, the VOPA sued the head of the Department of Mental Health to obtain the records. A federal appeals court dismissed the lawsuit, saying that the P&A agency couldn’t enforce the right to get access to information based on the theory that the Department of Mental Health couldn’t be sued by another state agency. Another Court of Appeals, in another part of the country, came to the exact opposite conclusion, deciding that state agencies may sue other state agencies in federal court. This second court recognized the important function the P&A system serves in protecting people with disabilities and the need to prevent state hospitals and institutions from shielding themselves from investigation and oversight.
The split in opinion between the two courts of appeals regarding whether state agencies may sue other state agencies to gain access to information is an important issue for the Supreme Court to resolve. The outcome of this case will seriously impact whether state agencies designated to protect the rights of people with disabilities can actually accomplish their mandate. In this case, without access to the requested information, the Virginia P&A agency found itself unable to complete its investigation and determine how the deaths and injuries in question had occurred. As a practical matter, if a state can protect itself from scrutiny by an agency created to ensure that certain rights and protections are provided by simply classifying the P&A as a state entity, then this will effectively block the P&A’s ability to oversee and enforce rights and protections. Access to information is a crucial part of any investigation and without access to records at state-run facilities the P&A systems will have a much harder, if not impossible, time doing their jobs. Consider this: In New York, the home state of Willowbrook, the P&A that conducts investigations into abuse and neglect is a public agency and a ruling against the VOPA’s right to go to court could seriously undermine its effectiveness. Wouldn’t that be an ironic and sad conclusion to the story that began with Willowbrook?
(Photo by Elephi Pelephi.)