Protection and Advocacy Systems in
Another underutilized resource for improving the services received by disabled youth in detention and correctional facilities is the protection and advocacy (P&A) systems. P&A's are federally funded and administered by the States. Designed to provide legal assistance and advocacy on behalf of persons with disabilities, P&A's render a variety of services, including information and referral, training and education, negotiations, legal services, investigation, and monitoring. However, P&A's spend the vast majority of their time and resources on direct client representation.
P&A's exist in all 50 States and the territories through Federal grants. Each of the three main Federal programs in the P&A system targets a specific client group. First, Congress established the Protection and Advocacy System for Persons with Developmental Disabilities (PADD) as part of the Developmental Disabilities Assistance and Bill of Rights Act of 1975 (DD Act).69 The DD Act conditioned a State's receipt of Federal funds under the program on the existence of "a system to protect and advocate the rights of individuals with developmental disabilities."70 Next, using PADD as a model, Congress established the Protection and Advocacy System for Individuals with Mental Illness (PAIMI) in 1986.71 The U.S. Department of Health and Human Services administers both PADD and PAIMI. Finally, the Protection and Advocacy System for Individual Rights (PAIR) was created as a catchall program for individuals with severe or other disabilities who are not eligible for services under either PADD or PAIMI.72 The Rehabilitation Services Administration of the U.S. Department of Education administers PAIR because the program was enacted as part of the Rehabilitation Act. Each P&A has the authority to pursue legal, administrative, and other remedies on behalf of its clients; provide information and referral services to residential and nonresidential programs;73 investigate abuse or neglect of its clients;74 educate policymakers on decisions relevant to advocacy clientele;75 and have access to clients and their records.
P&A's can offer assistance to incarcerated juveniles with disabilities when their disability-related rights have been violated or unmet. Disabilities are often ignored or mishandled within the delinquency context when, in fact, the cause of delinquent behavior may be directly related to a child's disability. Special education issues for persons with disabilities represent the largest category of cases handled by P&A's, and some of this litigation is on behalf of incarcerated juveniles.76 P&A's also represent children with mental health problems, including those youth who reside in juvenile correctional institutions. Some P&A's act as advocates for juveniles during the dispositional phase of a delinquency or abuse/neglect proceeding and make recommendations to the court about appropriate placements.
A fourth grant-funded program called the Client Assistance Program (CAP) provides information and assistance to individuals seeking or receiving services under the Rehabilitation Act.77 (This chapter will not focus on CAP because of CAP's limited scope, applicability, and various restrictions, such as its prohibition against class action lawsuits.) P&A's may be used to help those incarcerated juveniles who fall within the client base of the P&A system and who need assistance with services related to disabilities.78 While the P&A statutes do not establish one central agency to supervise and control the State systems, the National Association of Protection & Advocacy Systems, Inc., exists as a voluntary membership organization to provide training, technical support, and legislative advocacy for its members and consumers.79
Collectively, P&A's provide the largest source of legally based advocacy for persons with disabilities in the United States.80 following the principles that persons with disabilities are equal citizens under the law and that they are entitled to the same opportunities as all members of society, the P&A's strength lies in their ability to ensure enforcement of rights under the existing statutory entitlement programs (see table 2 below).
The DD Act serves two major purposes. First, it sets out a bill of rights for the developmentally disabled.81 Many of these rights are directly relevant to incarcerated individuals, such as the right to appropriate treatment and rehabilitation services, the right to receive those services in the least restrictive environment, the right to programs that maximize the individual's developmental potential, the right of those in residential treatment to be in facilities that meet their needs, and the right of residents to receive humane and sanitary care. The U.S. Supreme Court held in Pennhurst State School & Hospital v. Halderman that this listing of rights bestows no substantive, enforceable right on individuals with developmental disabilities.82 These rights, therefore, cannot be asserted through litigation. This bill of rights can be used, however, as persuasive authority in advocating for a client and arguing that certain services should be provided in a specific way.
Second, the DD Act provides funding. It offers financial assistance for States to carry out programs designed to improve services and assistance to individuals with developmental disabilities, and it funds a comprehensive nationwide network of protection and advocacy organizations.83 States receiving funding under the DD Act are required to establish an agency or office responsible for assisting and protecting individuals with developmental disabilities.84 The availability of this funding for advocates for the developmentally disabled encourages States to provide services in line with the bill of rights set out in the DD Act.
The Federal law requires that the State P&A agency or office be independent of public and private service providers in the State.85 The DD Act requires this in anticipation of the tension between P&A's and States or agencies that often provide inadequate or inaccessible services. The P&A's must also have certain powers to carry out their mandate to protect and advocate for their clients.86 Congress requires that each year the P&A's develop a statement of objectives and priorities to guide their activities. Each P&A must select a governing board to oversee its activities that includes, in part, "individuals with developmental disabilities who are eligible for services" or who have received services, family members, guardians, or advocates.87
Unlike the other P&A systems, PAIMI was not established as part of a broader act but was the result of a specific piece of legislation, the Protection and Advocacy for Mentally Ill Individuals Act of 1986 (MI Act).88 This act provided exclusively for the creation of a P&A system to serve only institutionalized or formerly institutionalized individuals with mental illness.89 However, the statutory scheme merged PAIMI into the existing P&A systems by designating only PADD systems as eligible for funding under the MI Act.90 Although PADD served as the basic model for PAIMI, there are some differences between the two statutes.
Both programs have narrow definitions of the clientele eligible for services. The DD Act's definition of developmental disability categorizes many people as either underqualified or overqualified to receive services.91 Similarly, PAIMI clients must have a significant mental illness that has been diagnosed by a State-licensed mental health professional.92 While PADD serves any individual who satisfies the definition, regardless of his or her living situation, the MI Act's mandate is further limited to residents, or those discharged within the past 90 days, of a care or treatment facility.93 The MI Act's statutory definition says that facilities "need not be limited to" those listed and specifically includes jails and prisons.94 Presumably, juvenile detention and correctional facilities are included in this language.
The PAIR program was Congress' response to the gap left by the narrow clientele definitions of PADD and PAIMI. The program was originally enacted under the Rehabilitation Act Amendments of 1978 as a discretionary program.95 PAIR lay dormant for 10 years because no funds were appropriated. Each year since 1989, however, some money has been designated for the program. In 1992, Congress amended the PAIR program to cover all individuals with disabilities not eligible for services under any of the other P&A programs.96 In its current version, the PAIR program is similar in form and content to the PADD and PAIMI programs.
To learn more about the P&A systems, the ABA Juvenile Justice Center conducted an informal survey of P&A providers and asked questions about ways in which their services could be applied to incarcerated juveniles. The survey confirmed that the P&A system can be an effective mechanism to oversee the provision of services to disabled youth in custody.
Although P&A's are federally funded, each State is responsible for establishing its own P&A system. The structure and functions of the systems vary from State to State. Within the requirements of the statutes, the P&A systems have the discretion to design programs that reflect their own needs and resources. Some generalizations, however, can be made about the structures of the P&A systems in many States.97
Currently, all P&A's are eligible for funding under all three P&A programs. Most of the States have designated private nonprofit groups to serve as the P&A service provider, but some have designated State agencies. In New York, for example, the State Commission on Quality of Care for the Mentally Disabled, created in 1978, has been the P&A since 1980 when it replaced a private agency that had performed unsatisfactorily. The commission contracts out for services with different agencies in the State. Most States have private agencies, frequently legal services agencies, that serve as the P&A provider. Most P&A's receive a blend of Federal, State, and foundation funding.
P&A staff generally consist of attorneys and advocates with experience in disability issues from diverse backgrounds such as social work, special education, nursing, public health, and administration. Advocates can be very helpful in nonlitigious approaches to problem solving and are often very knowledgeable about available resources.
The division of responsibilities between attorneys and advocates is different from State to State. In New Jersey, all cases are coassigned to an attorney and an advocate, but attorneys have to review and sign off on all case resolutions. Virginia has a similar system, with attorneys assuming primary responsibility for all administrative hearings and litigation. In California, attorneys handle all kinds of legal representation, from formal negotiations to class action lawsuits, while advocates handle less formal proceedings, such as interviews and investigations. Attorneys in Wisconsin have primary responsibility for litigation and supervision, and advocates handle negotiations, investigations, and monitoring. Nevada employs no legal staff and contracts out for all of its legal services. Maryland, with a total of 18 staff members in 3 offices, has a legal staff consisting of approximately 7 attorneys, who undertake more litigation than most other P&A's. Often, States have only one attorney.
Many States reported that much of their client representation involves administrative hearings in the areas of special education, social security benefits, medicaid, and claims under the Americans with Disabilities Act. Several States noted that special education claims constitute the largest percentage of their caseload. In New Hampshire, as much as 30 percent of the cases involve special education issues with children. South Carolina considers children's issues, mostly special education, to be a priority.
Litigation in individual cases, rather than class action lawsuits, is sometimes a last resort and may be seen as an unwise use of precious resources. P&A's utilize litigation primarily for "impact litigation," or class action lawsuits. A majority of class action lawsuits filed by P&A's concern large-scale institutional violations. In two States surveyed, the P&A's joined forces with private law firms to bring major institutional litigation on behalf of juveniles. The South Carolina P&A has teamed up with a large law firm and a civil rights attorney on a conditions of confinement case.98 In New Hampshire, the P&A represented a subclass of disabled juveniles in an action involving all juveniles placed by the juvenile courts.99 These are the type of partnerships that advocates for juveniles should be aware of; a resource-rich partner teaming up with a P&A can make all the difference in litigation.
Another area of emphasis, particularly on the PAIMI side of the system, is investigation and monitoring of abuse and neglect in residential care and treatment facilities. In Wisconsin, the P&A PAIMI component has two priorities: (1) reducing institutional abuse and neglect, particularly through the use of seclusion and restraints, and (2) advocating for the release of clients from institutions to less restrictive settings. To carry out these priorities, the P&A engages in much investigative and monitoring work. While the statute provides that all P&A's must have authority to investigate and monitor, some P&A's have had to sue just to gain access to clients and their records.
If an investigation reveals serious rights violations, P&A's usually prepare a report of their findings, present them to the responsible officials, and recommend remedial action. Some States also issue reports to the public to raise awareness and garner support. P&A's attempt to work with the institution initially, both to avoid costly litigation and to foster cooperation. If the institution does not take appropriate action, sanctions may result. Most P&A's report that investigations rarely escalate to litigation. Because of limited resources and the costs of litigation, when individual damages actions based on abuse or neglect claims arise, P&A's usually refer these cases to private attorneys.
In addition to the detained and committed juveniles in correctional facilities with identified disabilities, many juveniles who would otherwise be eligible for services have disabilities that remain unidentified. According to the South Carolina P&A, psychological studies have shown that disabilities in children worsen in juvenile correctional facilities. P&A staff are concerned that mental health problems, particularly depression and suicidal tendencies, are exacerbated during an extended period of confinement. Similarly, issues related to seclusion, restraints, treatment, discharge planning, and transition services are potentially ripe for advocacy by a P&A.
Using a P&A as an ongoing system of oversight of juvenile programs in a State can shed enough light on service deficiencies so that litigation can often be avoided. Advocates in each State can access the existing P&A system to help monitor the services received by youth in custody. P&A's have the authority to investigate abuses, access records, and pursue administrative remedies on behalf of persons with disabilities. The P&A system in each State can help ensure that the rights of disabled youth in custody are not violated.
Seeking assistance from a P&A requires defining problems or issues so that they fit within the P&A's area of authority. Given the paucity of their resources, advocates must be ready to promote issues or potential clients to the P&A. Furthermore, advocates should examine what type of help is most needed from the P&A. Even if a P&A cannot seize the area of concern, it may be able to assist with problem solving.
Not all incarcerated youth fit the narrow definition of disabilities under PADD, PAIMI, or PAIR, but for those who do, P&A's can be valuable resources in individual cases and can help obtain services systemically without litigation. On behalf of a distinct and disadvantaged client group, P&A's act as individual and group advocates and monitors as they pursue remedies to institutional abuses. Incarcerated juveniles can fit into this scheme. Advocates for juveniles must be creative and should contemplate using the current P&A system in their State to access evaluations and services for young offenders with disabilities.