What is the Protection and Advocacy System?
Historically, people with disabilities in the United States have encountered widespread discrimination and been denied basic rights. They have been subject to segregation in schools, institutionalized--despite the ability to thrive in a community setting-as well as abused and neglected and denied employment.
In an effort to overcome past discrimination, break down barriers, and make all aspects of society more accessible, Congress passed legislation to:
- Guarantee all students with disabilities a free and appropriate special education through the Individuals with Disabilities Education Act (IDEA)
- Prohibit housing discrimination though the Fair Housing Act.
- Establish rights for people with disabilities living in nursing homes and state-run institutions for people with developmental disabilities through the federal (Medicaid) funding law.
- Prohibit disability discrimination by government programs and services, employers, and businesses through the Americans with Disabilities Act (ADA).
Several years after enactment of these laws, the results of follow-up studies on their impact were disappointing, showing that widespread non-compliance remained. Numerous studies have shown that schools, for instance, routinely violate students' rights under IDEA despite a mandate that the U.S. Department of Education ensure compliance nationwide.
In 1975, after national media coverage of horrific conditions at a state-run institution for people with disabilities, Congress also tried an additional approach. Congress created a nationwide system of state-level, independent Protection and Advocacy (P&A) organizations. The first P&A system was established to protect and advocate the rights of people with developmental disabilities (PADD). In 1985, Congress established a P&A system for people with serious mental and emotional illnesses (PAMI).
And in 1994, Congress established a P&A system for people with any other mental or physical disability (PAIR) who were not covered by the PADD or PAMI systems.
Federal law requires that state P&A systems have:
- Independence of providers of disability services, both public and private (including guardianship services)
- Broad powers to safeguard people's rights, including the right to take legal action, to enter public and private facilities to talk with service recipients, and to make unannounced visits
- Access to records of a service recipient with the individual's or guardian's consent, as well as when the P&A has probable cause to believe the someone was subject to abuse or neglect (then consent is not required)
- Access to abuse and neglect investigations conducted by state investigators and facility investigators
- Authority to investigate abuse and neglect at public and private institutions, facilities, and programs
- Involvement of the general public in development of their advocacy plans and priorities.
Each state P&A system has a great deal of flexibility and freedom in designing their advocacy programs and services and setting their priorities.
Today, the national P&A System is:
- A legally-based advocacy group providing advocacy and legal services and investigating abuse and neglect
- Broad in scope, addressing a wide range of societal barriers that prevent people with disabilities from fully participating in their communities and leading productive and independent lives
- Cross-disability, advocating for people with any type of mental and physical disability, including developmental disabilities and mental illnesses
- Advocating for people of all ages, including children and seniors
- Advocating for people regardless of where they live, including those living with their parents, independently in the community, in group homes, nursing homes, psychiatric hospitals, and state-run institutions.
The national network of state P&A systems has successfully secured enforcement and expansion of the rights of people with disabilities and enhanced their safety through a variety of means including class action and other systems change litigation, advocating for passage of state legislation, and monitoring of conditions in select facilities.
When federal and state governments do not conduct thorough, timely, and objective investigations of serious incidents of abuse and neglect, the state P&A system has the authority to step in and investigate the incident, release the results to the public, and call for needed reforms.
Recently, the P&A systems have been pushing for implementation of the U.S. Supreme Court case known as Olmstead v. L.C.. The Olmstead case involved two women with developmental disabilities and mental illnesses who lived in a state-run institution. They sued under the ADA because they were not permitted to move into the community despite the fact that the state treatment professionals found them appropriate for community placement. The Supreme Court found that unwarranted institutionalization of people with disabilities is a form of discrimination prohibited by the ADA.
Most states' service delivery systems for people with disabilities do not offer an appropriate least restrictive setting because of a lack of funding for community services. The Olmstead decision is an important tool for advocates of community integration, and state P&A systems are taking steps to ensure enforcement of the Olmstead decision. In addition, President George Bush has issued an Executive Order calling on the federal government to take steps to ensure that the Olmstead decision is implemented.