Virginia’s Training Centers violate the ADA

On February 10th, the United States Department of Justice sent a letter to Governor McDonnell concluding that Virginia is in violation of the Americans with Disabilities Act in the operation of its developmental disabilities services.  The 21 page letter concludes that Virginia does not serve its residents with intellectual disabilities in the most integrated setting possible and that Virginia further violates the ADA by maintaining a waiting list for community based services that exceeds 3000 people.   DOJ concludes that the discharge process at Central Virginia Training Center and other training centers is inadequate and that staff at CVTC and other training centers are not knowledgeable about the availability of community services.  The letter details conditions at CVTC that are typical of all five of the states training centers — overuse of restraints, inadequate programming, absence of community integration, and isolated and depersonalized living conditions.  The letter finds that even when individuals want to be discharged and all parties agree that they can be discharged from the training centers, the individuals remain stuck in isolation. 

DOJ commends the Governor for cooperation in the investigations and expresses hope that the Commonwealth will continue working towards an amicable and cooperative agreement to resolve the findings.  Indeed, VOPA commends the Governor and his administration for making a strong first step towards remedying the violations found by DOJ.  The Administration needs to develop a clear plan to completely remedy the violations, but most importantly, the Administration needs to share information with the individuals themselves at the training centers, and with their family members.  Planning for such a dramatic shift in services should not — must not — take place without the input of people with intellectual disabilities.  The people who will be most personally affected by this plan must get frequent and accurate information, and must get reliable assurances that this transformation will be done safely and appropriately.

Virginia is blocking abuse and neglect investigations

VOPA was created as an independent state agency by the General Assembly in 2002. The General Assembly charged us with investigating abuse and neglect of persons with disabilities. Under both state and federal law, VOPA is authorized to pursue all necessary legal remedies to carry out its mission.  Now, the department of Behavioral Health is trying to take away VOPA’s authority.

On December 1, 2010, the United States Supreme Court will hear argument in a case where the Commonwealth of Virginia asserts immunity from investigations. In the case, Virginia Office for Protection and Advocacy v. Stewart, the Virginia Office for Protection and Advocacy (VOPA) is investigating deaths and other suspicious incidents at state operated facilities, but the State refuses to cooperate in the investigations. The State asserts that it cannot be required to produce any information in the investigations. Argument on the case before the Supreme Court will begin at 11:00 a.m.  VOPA is represented by Seth Galanter, of the firm Morrison and Foerster from Washington, DC.

In 2006, two people died under suspicious circumstances in Virginia institutions and a third person was seriously maimed. One death, at Central State Hospital in Petersburg, appeared to be the result of excessive force and improper restraint. The other two incidents, one a death and the other an assault, occurred at Central Virginia Training Center in Lynchburg. Both appeared to be the result of staff neglect. VOPA was alerted to the suspicious deaths and the serious injury from various sources and began investigating. In the course of its investigations, VOPA requested specific records from the Department of Mental Health, Mental Retardation and Substance Abuse Services, now known as the Department of Behavioral Health and Developmental Services. The Department, which operates the facilities where the incidents occurred, refused to provide the requested records. VOPA sued in federal court, alleging that the state’s refusal violates federal law. The 4th Circuit Court of Appeals barred the suit. The Court of Appeals held that VOPA, as a state agency, cannot sue another state agency in federal court, even to enforce federal law. The U.S. Supreme Court agreed to review the ruling of the 4th Circuit.

VOPA was created to protect the rights of people with disabilities, especially when they are most vulnerable, when they are in the custody of the state.  It is unconscionable that the General Assembly would create us to do this job, but the Department of Behavioral Services would stand in our way.   For more infomration about the case, including VOPA’s briefs and those filed by numerous friends of the court, visit our webpage at www.vopa.virginia.gov