Federal court upholds DRW's right to investigate abuse and neglect

12/14/2009
News
David Carlson
Director of Resource Advocacy

A recent order from the Honorable Federal District Court Judge Justin L. Quackenbush of the Eastern District of Washington held that Disability Rights Washington has the right to provide protection and advocacy services to people in a privately run farm that serves people with a variety of disabilities and mental illnesses.  The ruling is a clear signal to providers that no matter where they provide services to people with disabilities, they must not interfere with Disability Rights Washington’s lawful efforts to investigate abuse and neglect and provide other Protection and Advocacy services.

In the 1970’s the United States Congress attempted to address abuse and neglect of people with developmental disabilities who lived in large state run institutions.  Congress passed the Developmental Disabilities Assistance and Bill of Rights Act.  That law created state councils and university centers of excellence to examine and advise the government and general public on the needs of people with developmental disabilities. The law also created Protection and Advocacy systems in each state and territory to protect and advocate for the rights of people with developmental disabilities in large institutions.

Over time, Congress recognized that other people with disabilities were also often abused and neglected.  Eventually, additional laws like the Protection and Advocacy of Individuals with Mental Illness Act and Protection and Advocacy or Individual Rights Act expanded the focus of Protection and Advocacy systems to cover all people with disabilities.  Congress also recognized that most people with disabilities lived in the community; so, Congress told the Protection and Advocacy systems to provide their services to people with disabilities in both institutions and the community.  

There are a number of services Congress expects the Protection and Advocacy systems to provide.  They provide information and referral, legal representation, systemic community advocacy, education of policy makers, and investigation of abuse and neglect.  In order to adequately provide the last service mentioned, Congress gave the protection and advocacy system special access to investigate abuse and neglect. 

When the Protection and Advocacy system receives a report or abuse or neglect, or has probable cause to believe abuse or neglect has taken place, the Protection and Advocacy system may start an investigation to determine whether people are actually being abused or neglected.  To conduct investigations Congress gave the protection and advocacy systems the right to access a broad range of information.  This includes information about policies and practices that relate to the alleged abuse and neglect, personnel records of staff involved, and the names of individuals with disabilities receiving services so that the Protection and Advocacy system may interview them and ask if they have any concerns.

As the Protection and Advocacy System for the State of Washington, Disability Rights Washington routinely receives reports of potential abuse and neglect, and it also often finds it has probable cause to suspect possible abuse and neglect.  Disability Rights Washington frequently investigates abuse and neglect using the access rights created by Congress in the Protection and Advocacy Acts. Once in a while, a person or facility that serves people with disabilities refuses to give Disability Rights Washington access to the information it needs to fully investigate potential abuse or neglect.  When Disability Rights Washington is unsuccessful in convincing providers to follow the federal law that gives Protection and Advocacy systems access to information needed for an investigation, Disability Rights Washington must then go to federal court to enforce its right to access the information.

Last December, a provider refused Disability Rights Washington’s request for access.  After an exchange of several letters and telephone calls, Disability Rights Washington was told by the provider’s attorney that if it wanted access to the information it had requested, Disability Rights Washington would have to sue the provider.  Disability Rights Washington brought a lawsuit in federal court to enforce its rights. Over the last year, Disability Rights Washington has been working on this case to enforce its right to conduct a full investigation of potential abuse and neglect of residents that facility. 

During the course of the lawsuit, the provider denied it served a single person with a disability and therefore was not required to follow the federal law providing Protection and Advocacy systems access to investigate potential abuse and neglect.  Disability Rights Washington had information from a former resident that this information was not accurate and showed the court that the provider’s own website had information about how it treated people with depression and other mood disorders, anxiety disorders, and other disabilities. 

On March 20, 2009, the court found that the provider served people with disabilities in the past and likely continued to serve people with disabilities. The court recognized that the language of the Protection and Advocacy of Individuals with Mental Illness Act clearly covers people with mental illness no matter where they live. The court held that “[t]here is no limitation placed on where [Protection and Advocacy System] investigations take place; rather the investigatory power is couched in terms of protection of individual rights in any context. … DRW’s role is to protect individual rights, not to serve solely as a watchdog for certain types of institutions or facilities.” Disability Rights Washington v. Penrith Farms et al., No. CV-09-024-JLQ, 2009 WL 777737 (E.D. WA 2009).

After receiving the courts ruling in March, Disability Rights Washington believed the case would quickly be resolved because the court ordered the provider to allow Disability Rights Washington to visit the grounds of the farm in order to determine whether there were still people with disabilities present and to test the veracity of the original allegations received.  Disability Rights Washington staff members visited with a number of residents and found that there were individuals who were identified as having Autism, Bi-Polar Disorder, Depression, Epilepsy, Learning Disability, Obsessive Compulsive Disorder, and Schizophrenia. Disability Rights Washington also received additional information regarding the issues raised by original complaint that is was attempting to investigate.

With this information in hand, Disability Rights Washington approached the defendants to negotiate a settlement of the case that would allow Disability Rights Washington to conduct its full investigation.  Unfortunately, the defendants continued to claim they did not serve people with disabilities and would not cooperate with Disability Rights Washington’s requests for access.  

Disability Rights Washington went back before the judge to explain that it had even more information confirming the defendants currently serve people with disabilities, that there are ongoing concerns about rights violations, and that the defendants refused to give Disability Rights Washington full and meaningful access to conduct its investigation.  At a hearing on a motion for summary judgment, the defendants finally admitted they served people with disabilities.  The Court ruled that Defendants had to provide Disability Rights Washington with access to the information and residents it requested because “Disability Rights Washington had and has authority to investigate when it receives complaints of abuse or neglect, as well as instances where it has probable cause to believe abuse or neglect of people with mental illness or disabilities is occurring, as provided by the [Protection and Advocacy Acts].” Disability Rights Washington v. Penrith Farms et al., No. CV-09-024-JLQ, 2009 WL 3245110 (E.D. WA 2009).

This ruling will help definitely help the individuals served by this particular provider, and it will also help individuals in a variety of other therapeutic settings like wilderness camps and boot camps, or therapeutic schools that are similar to the therapeutic farm in this case.  Disability Rights Washington and Protection and Advocacy systems in other states can use this case to explain the Protection and Advocacy Acts’ access rights to other providers, and hopefully the people receiving services from those providers will have access to Protection and Advocacy services without having to wait nearly a year for the parties to sort it out in court.

Issues: 
Freedom from abuse and neglect