Virginia is Blocking Abuse and Neglect Investigations in State Care

Imagine a state establishing an agency as a watchdog, and of that same state trying to cut its legs off when it actually manages to sniff something out.

State legislated watchdogs, you see, aren’t really supposed to find things. Rather, it seems, they are supposed to provide the mere pretense of providing oversight.

Few would question that legislators are prone to making mistakes. Among them is the mistake of occasionally appointing the right person to a particular position. That is to say, someone who’ll actually do the job correctly.

That’s a arguably a rare mistake, but it does actually happen, from time to time.

That rare mistake occurred when Colleen Miller was appointed to head the Virginia Office for Protection and Advocacy. Clearly, she is a woman of integrity – which is a rare quality for a government bureaucrat to hold in such a position.

The Virginia Office for Protection and Advocacy was created as an independent state agency by the General Assembly in 2002. The General Assembly charged it with investigating abuse and neglect of persons with disabilities. Under both state and federal law, the Virginia Office for Protection and Advocacy (VOPA) “is authorized to pursue all necessary legal remedies to carry out its mission.”

Today, Virginia’s Department of Behavioral Health is clashing head-to-head with VOPA, trying to undermine its authority as a watchdog – even as it endeavors to whitewash apparent wrongdoing leading to deaths in the state-operated facilities that it ostensibly oversees.

As Colleen Miller, VOCA’s director, explains in yesterday’s blog entry:

    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.

This quandary leads us into the very chambers of the United States Supreme Court, where oral arguments were raised only yesterday concerning the issue of whether one state agency may sue another in federal court to enforce its role as a watchdog.

This arose from an appeal in the Fourth Circuit ruling against VOCA. As, Oyez, a web site that tracks such rulings explains:

    The Virginia Office of Protection and Advocacy (“VOPA”), a state agency dedicated to advocating on behalf of persons with disabilities, sued several Virginia state officials in their official capacities in a Virginia federal district court. VOPA alleged that the officials violated two federal statutes when the officials refused VOPA access to state records which VOPA argued it was entitled. The officials moved to dismissed the case arguing that they were immune to suit under the Eleventh Amendment.

    The U.S. Court of Appeals for the Fourth Circuit reversed the district court, holding that the state officials were immune to suit under the Eleventh Amendment. The court reasoned that: (1) Congress did not abrogate state immunity under the statutes which VOPA sued under and (2) the mere receipt of federal funds by Virginia under the two statutes did not mean that the state had consented to suit.

In a supplemental legal brief submitted to the Supreme Court on May 27, VOCA explained that only two Circuits – the Seventh and the Fourth – “have addressed the ability of a protection and advocacy entity that is organized as a state agency to sue state officials of the same State in federal court.”

As these rulings were directly in conflict, VOCA explained that the Supreme Court “should allow the issue to develop further in the lower courts to determine whether this is actually a recurring issue.”

Some critical thinkers actually took notice of all of this, among them Rhode Island’s Office of the Child Advocate, which submitted a legal brief in support of VOCA to the Supreme Court, explaining that: “The Child Advocate is empowered by the State of Rhode Island to safeguard vulnerable children in Rhode Island, and it has done so in part by bringing federal claims against state officials in federal court. If affirmed, the Fourth Circuit’s decision would remove powers that agencies like the Child Advocate and VOPA have properly been given by their states.”

The organization Disability Rights Oregon also took notice of this, explaining that: “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.”

As Disability Rights Oregon explains the case:

    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.

Some other formidable alliances formed as well around this case. The AARP, the National Senior Citizens Law Center, the Arc of the United States, the National Health Law Program, and United Cerebral Palsy drew together to draft a legal brief in support of VOCA’s argument that it could seek redress through the federal courts.

So, what does all of this boil down to? The questions of whether a state agency accepting federal funding may be held accountable for its transgressions when it fails to fulfill its federal mandates. When people die under its watch, clearly it is so failing.

More significantly, it boils down to a question of whether a state agency that is in receipt of federal funds in clear breach of its federal mandate may be held accountable for that breach in a court of federal jurisdiction.

Without question, this is an important case that is well worth watching.