by Angela Wilson
Staff Writer

Mental health activists cheered last month when the U.S. Supreme Court decided a Virginia advocate could use federal courts to force Virginia officials to protect the rights of people with a mental illness. Despite that win, the Virginia Office of Protection and Advocacy (VOPA) may face another uphill climb: getting Virginia officials to cough up documents vital to its work.

The Supreme Court's decision allows VOPA to sue the state in federal court, according to an email from Brian Gottstein, of Virginia's Office of the Attorney General. "It did not say VOPA could see the records that are in dispute."

Federal responsibilities
VOPA is a special kind of advocate. As a condition of federal funding, Congress requires states to designate a "system" to protect the rights of and advocate for persons with mental illness and other disabilities. Each state designates either a state agency or a private nonprofit as its protection and advocacy (P&A) system. Eight states, including Virginia, have a government agency as their P&A entity; the rest are independent not-for-profit organizations. Virginia designated VOPA as its P&A entity in 2002

Eight states, including Virginia, have a government agency as their P&A entity; the rest are independent not-for-profit organizations. Virginia designated VOPA as its P&A system in 2002.

Congress invested all P&A entities with a long reach and access unavailable to other disability rights advocates. They have the authority to gain access to people with disabilities, their records, and the facilities and institutions in which they reside.

P&A systems investigate abuse and neglect of people with disabilities, and use legal, administrative, or other means to remedy harms. They review investigations performed by state and private service providers, analyze trends, recommend changes to policies and practices, and issue public reports about life-threatening practices and conditions.

"People can't just show up and say, 'we are advocates,'" said Curt Decker, Executive Director of the National Disability Rights Network (NDRN), the national P&A organization. "Our law trumps [state confidentiality] laws."

That access is especially significant to people in state facilities. In 2004, for example, a VOPA investigation revealed that Virginia kept some patients locked up in state institutions a decade or more after staff had certified them for release. In 2007, it investigated the death of a woman in a Virginia psychiatric hospital who repeatedly warned staff that God told her to swallow her underwear--and later was found dead with a pair of panties down her throat. That same year, VOPA investigated the death of a man who died while staff tried to strap him spread-eagle to a bed, where staff had tied him for the previous 33 hours. It also has documented cases of over medication, inadequate medical treatment, and post-release plans.

Paula Price, Executive Director of a Mental Health America-Virginia, says her organization works with persons with mental illness "who are in recovery, getting back into the swing of life," not those in institutions. Besides VOPA, she said. "I don't know any [Virginia advocacy groups] who work with people in institutions."

Entities charged with responsibilities for protection and advocacy can advocate for people with a range of disabilities in matters of employment, housing, public accommodations, education and other public services. P&A systems provide services, for example, to people who are deaf or hard of hearing, have traumatic brain injuries or developmental disabilities.

Lauren Spiro, Director of the National Coalition for Mental Health Recovery, a national organization for mental health consumers and survivors, is concerned that state P&A systems lack the resources to meet the needs of persons diagnosed with mental illness. "When it comes to dealing with people with mental health challenges," she said, "I don't know any state P&A that is adequately handling that. There have very little resources to put toward mental health."

VOPA Goes to Washington
VOPA's trip to the U.S. Supreme Court was a short one. In December 2007, it sued, in a U.S. District Court, Virginia officials who refused to hand over peer review documents related to deaths and a serious injury in two state-run facilities. Medical peer reviews are examinations of a doctor's work by a committee of physicians who try to determine what has gone wrong when medical treatment harms or kills a patient. Virginia argued that state law shielded these documents from disclosure, and that the state's sovereignty rendered it immune to VOPA's suit. The District Court disagreed with both of the state's arguments, and directed Virginia to hand VOPA the documents.

The state went to the 4th U.S. Circuit Court of Appeals, which overturned the lower court's decision on the issue of Virginia's sovereign immunity. It did not rule, however, on the documents issue.

VOPA then appealed to the Supreme Court. The nation's highest court focused only on one issue: whether VOPA, an independent state agency with federal rights, could sue in federal court officials of another state agency to force them to comply with federal law. The Court, in a 6-2 vote (Justice Kagan recused herself) said yes.

"That [question] hadn't come up [in front of the Supreme Court] in the 200 years the Constitution has been in effect," said Seth Galanter, who presented VOPA's case to the Supreme Court. "It's incredibly rare for state agencies to have federal rights against state officials." V. Colleen Miller, VOPA's Executive Director, declined requests from MIWatch to comment on the case.

Although all parties agreed that an independent non-profit P&A entity could sue state officials in federal court, Virginia, along with dissenting Supreme Court Justices Roberts and Alito, considered it offensive to allow VOPA, a federally funded state agency, to do the same.

"[T]here is indeed a real difference between a suit against the State brought by a private party and one brought by a state agency. It is the difference between eating and cannibalism: between murder and patricide," wrote Roberts and Alito. "While neither may be welcomed, that does not mean they would be equally well received," they said.

Both Decker and Galanter expect good things to flow from the court's decision. "We spend and the states spend an incredible amount of resources fighting and establishing [the P&As right to access patients and records] over and over again," said NDRN's Decker. "Now "we can wave this [decision] in front of state facilities and say, 'The Supreme Court just upheld our right to access, let us come in so we can do the investigation and fix what's gone wrong.'"

He also believes the Court's decision will let P&A entities bring lawsuits against state officials without having to name a plaintiff, expanding access to justice for persons at risk of retaliation. "Often we have people in a bad situation who tell us, 'But don't say anything--the caretakers will retaliate against me if I complain.'"

Said Galanter, "For VOPA and other state entities out there, [the VOPA decision] makes clear that they can go to federal court. That will remove one level of uncertainty."

Next Steps?
Victorious in the nation's highest court, VOPA will now return to Virginia to address an issue the Supreme Court did not: is the state required to provide the type of records --peer review documents-- the agency asked to see?

Galanter explained that VOPA now must do in reverse the steps it took to get to the Supreme Court. That Court's decision sent VOPA's case back to the Court of Appeals, which will, in turn, send it back to the District court. He is optimistic that VOPA will be able to get the requested documents. "Now that we have clarity about what the law is," he said, "the [Virginia] Attorney General and VOPA will be able to reach accommodation about the records."

Decisions in similar cases buoy Galanter's optimism. After all, five of the nation's 12 federal appeals courts that hear such cases have held that state P&A entities have the right to access peer review records.

Those decisions, however, may mean little to VOPA in what has become a document war with Virginia. Said Galanter, "The issue about peer review records wasn't decided [by the Supreme Court]. It was decided in lots of other cases, but those cases don't bind Virginia."

That is, even though VOPA's case will return to the court which directed Virginia to hand over the peer review documents, Virginia may again refuse, may again force VOPA to sue and--if the District Court again sides with VOPA--may return again to the 4th Circuit Court of Appeals, which isn't required to agree with the five other Appeals Courts on this issue.

Although Galanter insists "No one wants to litigate just to litigate," he acknowledges this scenario is more than possible. "As a technical matter," he admits, "We would have to start again if there was a situation where the state didn't want to turn over the records."

In a prepared statement, VOPA Executive Director V. Colleen Miller summed up her agency's predicament. "Sadly," she said, "This simply means that our case can now begin."

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