Should Transparency Take this Much Work?
Can a state’s Office of Protection and Advocacy do its job with only half of the information and the other half concealed to shield government agencies and state hospitals instead of citizens?
From the Associated Press:
WASHINGTON — The Supreme Court says it will decide whether Virginia’s advocate for the mentally ill can force state officials to provide records relating to deaths and injuries at state mental health facilities.
I’m not sure why anyone would think there should be such a blind spot in an agency’s assessment of these facilities. Force implies resistance. Shouldn’t information like that be turned over upon request or even voluntarily recorded and addressed?
The justices agreed Monday to review a federal appeals court ruling dismissing the state advocate’s lawsuit against Virginia’s mental health commissioner and two other officials.
Backing the appeal, the Obama administration said the ruling by the 4th U.S. Circuit Court of Appeals in Richmond “threatens to undermine the enforcement of federal laws that Congress designed to protect especially vulnerable individuals from the abusive and neglectful practices that can result in injury and death.”
The Virginia advocate’s office, like those in the other 49 states, was created under two federal laws that give states federal money for monitoring the treatment of the mentally ill in state facilities. The first law grew out of public reports in the 1970s of crowded, filthy conditions and abusive treatment of mentally retarded children at the Willowbrook State School in New York.
The issue for the court is whether the Eleventh Amendment prohibits a state agency from going to federal court to sue officials of the same state. The state itself could not be sued in the same circumstances.
Argument will take place in the fall or winter.
The case is VOPA v. Reinhard, 09-529.
To read a brief summary of VOPA v. Reinhard II, click here (PDF).
Excerpt (emphasis mine):
The P&A system in Virginia is the Virginia Office for Protection and Advocacy (VOPA). In 2006, VOPA sought records relating to three incidents of deaths and injuries to residents of the Central Virginia Training Center (CVTC) and Central State Hospital (CSH) that occurred while these residents were in the custody of the Department of Mental Health, Mental Retardation, and Substance Abuse Services (DMHMRSAS) (now called the Department of Behavioral Health and Developmental Services). When DMHMRSAS refused to provide the records, VOPA sought a declaration that this refusal violated federal law…
Additionally, the Fourth Circuit Court of Appeals is in conflict with a recent federal case decided by the U.S. Court of Appeals for the Seventh Circuit in Indiana, who noted that states cannot be allowed to shield their state hospitals and institutions from investigation and oversight — especially not the investigation and oversight created by Congress to fund some of the state’s most vulnerable citizens.
The Virginia decision has effectively rendered VOPA unable to fully exercise its federal authority to protect vulnerable citizens throughout the Commonwealth, even though Congress specifically created P&A systems for protection purposes. Without access to the records from state-run facilities, VOPA has no way of completing an investigation—and without a complete investigation, VOPA has no way of protecting Virginians with disabilities from abuse and neglect.