Where was DRVD?
Caitlin Wright
Deputy Director, National Alliance for the Mentally Ill –Virginia Affiliate
In recent years, shocking conditions have been found in Virginia’s publicly funding mental health system. Scandals have included alarming numbers of needless deaths in state facilities, the overuse of restraints, seclusion and other forms of abuse and neglect, the warehousing of consumers in facilities who could live successfully in the community, the lack of treatment in facilities, and an abysmal lack of community resources for people with mental disabilities. The Department of Justice (DOJ) has validated alarm by investigating five different facilities for civil rights violations in Virginia since 1993.
In light of all these human rights violations, the question must be asked, where has the state watchdog been that is supposed to protect the rights of people with disabilities?
There are fifty-six agencies within the United States and its territories that receive federal funding to protect the rights of people with disabilities. These agencies are called Protection and Advocacy agencies (P&As). P&As are funded, in part, to protect the rights of people with mental illnesses in institutional settings, from hospitals (public and private) to adult care residences to prisons and jails. They are intended to prevent the very types of problems that have riddled Virginia’s mental health system. The Virginia P&A is known as the Department for Rights of Virginians with Disabilities (DRVD), and is one of only a handful in the entire nation that is controlled directly by the same arm of state government - the executive branch - that it is intended to monitor.
Annual reports to the federal government are required of all P&As. The following are excerpts from annual performance reports for Fiscal Year 1999 for P&A activities related to people with mental illnesses. These excerpts compare and contrast a number of different P&As around the country, including Virginia’s DRVD. Information was also used, in part, from the United States Department of Justice, Civil Rights Division, and from other public sources. The intent was to examine how Virginia compares with other P&A’s on issues that are critical to consumers in institutional settings.
Investigations of Deaths in facilities
- The Pennsylvania P&A reviewed or investigated 73 deaths in facilities. Additionally, the agency investigated and litigated a case involving a suicide in a state hospital.
- In New Jersey, the P&A investigated all 82 deaths in state facilities. The organization initiated a class action suit which resulted in a consent order establishing standards for staffing, treatment and physical conditions, and created a monitoring committee appointed by the court.
Where was DRVD?
In 1999, The Virginia P&A, DRVD, investigated eight out of the 96 deaths reported by the state. Recommendations for changes were made within the investigation reports. However, no negotiations or follow-up actions were reported that would facilitate systemic changes to prevent needless deaths from recurring.
Monitoring and enforcing correction in cases of abuse and neglect in facilities
- The Texas P&A reviewed 230 cases of abuse, neglect, and serious injuries to patients, and participated in work groups to address systemic issues that arose from these cases. They also actively advocated for multiple pieces of legislation relevant to abuse and neglect
- The New Jersey P&A developed a program in which volunteers accompany P&A staff on monitoring visits to facilities. This P&A was part of monitoring efforts due to a lawsuit that established standards for staffing, treatment and conditions in a facility.
- The Connecticut P&A was instrumental in helping legislation pass that mandated standards and oversight of the use of restraints in facilities. The agency helped improve access to appropriate language and culture-based mental health services for Hispanic individuals, and helped increase access to translation for the deaf and hard of hearing in facilities. The agency monitored the implementation of changes as a result of a class action lawsuit they successfully completed, and P&A staff were involved in court-ordered monitoring of hospitals.
- The Massachusetts P&A focused on the over-use of seclusion and restraints with minority populations, including non-English speaking consumers and youth for whom English is a second language. The agency successfully litigated against restraint practices in state facilities, including the use of "cage-like structures." The P&A helped draft legislation to modify seclusion and restraint practices, and supported the legislation at hearings and other public meetings.
Where was DRVD?
In Virginia, DRVD began collecting data on the use of seclusion and restraints within three state facilities that have already been investigated by the Department of Justice (DOJ). These facilities have been forced to submit a corrective plan of action to DOJ, including plans to discontinue the excessive use of seclusion and restraints. DRVD has not used its data to help any individual consumer or to promote any system-wide changes.
Though requested repeatedly, DRVD refused to open a case on Cesar Chumil, a Guatemalan man for whom English is a second language. Mr. Chumil has been in permanent seclusion in a plexiglas cell at Western State Hospital for the past five years, though he is allowed regular passes home to visit his family free of any seclusion or restraints. DRVD’s director publicly defended their refusal to open a case, stating that neither Mr.Chumil nor his family formally requested help, demonstrating that the rights protection agency had colluded with the hospital to ignore this patient’s special language and cultural needs.. The agency further contended that Mr., Chumil no longer needed help because he was no longer being abused. The DRVD director stated that Mr. Chumil’s cage was more humane than the leather restraints that bound his hands and feet for fifteen years prior to the construction of the seclusion cell.
Ensuring appropriate care, training and resources in the facilities
- In Texas, the P&A opened 55 cases addressing inappropriate care in facilities, and 117 cases involving the violation of civil rights of patients in facilities, many of which were resolved successfully.
- The Ohio P&A addressed the lack of culturally competent staff to treat patients who do not speak English or who speak it as a second language. The P&A successfully demanded the state hire Spanish speaking staff, provide ready availability of interpreters and translators, and the provide materials regarding rights, treatment and medications in languages other then English.
- The Massachusetts P&A forced the mental health system to provide training to consumers regarding money management, social security benefits, guardianship and related activities. Their legal case challenged the manner in which the DMH took benefits from consumers while in facilities. The agency also advocated successfully for the installation of air conditioning in state facilities.
Where was DRVD?
In Virginia, DRVD focused on the number of toilets in a state hospital building, and advocated successfully for better access to bathrooms in the future. The agency also advocated for changes in the lunch program on the forensic unit at Central State Hospital, and addressed a complaint regarding poor acoustics in a computer lab.
Advocating for the release of patients ready for discharge
- The Pennsylvania P&A successfully litigated a class action on behalf of 255 consumers for community placement who were ready for discharge from state facilities. The agency monitored the progress and welfare of those individuals.
- The Connecticut P&A assisted the discharge of 81 individuals from facilities to the community. This P&A, in conjunction with a state NAMI affiliate, has a class action suit pending on behalf of institutionalized consumers ready for discharge who are being held due to lack of community services.
Where was DRVD?
DRVD identified five individuals being held in a maximum security setting with little treatment. They facilitated the transfer of these consumers to civil units. Two other patients were identified as ready for discharge, one of whom was successfully placed in the community. Another group of patients was identified as being mentally retarded and not meeting commitment criteria. DRVD staff discussed these consumers with the facility director, who pointed to the lack of community care. There is no indication that further action was taken.
Promoting appropriate community resources
- The Texas P&A joined a coalition of organizations, including the state NAMI affiliate, to advocate for increased community-based resources. This resulted in the allocation of $33 million for new services. The P&A also helped draft legislation to protect consumers during the implementation of Medicaid managed care, and helped advocate for legislation protecting people with mental illnesses from insurance discrimination.
- The Connecticut P&A targeted board and care homes to investigate for poor conditions, and worked with the state DMH on a forum to examine the conflicting purposes of public mental health system: recovery vs. security. The Connecticut P&A was also active in legislative efforts to enact mental health insurance parity. Additionally, the agency worked on linking homeless individuals with mental illnesses to appropriate mental health and housing in the community.
- The Ohio P&A helped propose legislation on behalf of consumers in adult care facilities. The agency continued working with other agencies regarding implementation of the legislation once it passed. The agency convened a summit and published a report on family involvement in treatment and recovery.
Where was DRVD?
In Virginia, many budget amendments and other bills were submitted to enhance the community system of care for people with mental disabilities, during the 1999 legislative session. DRVD did not participate in these efforts. DRVD provided no public information or testimony on any legislative initiatives that impacted their constituents, with the exception of actively representing Governor Gilmore’s opposition to legislation that would allow DRVD more independence to do its job.
Where is DRVD?
Performance Comparison between DRVD and the National Average for P&A Programs for People with Mental Illness*
Total #
# of Complaints
# Deaths
# Deaths
# Intervention
Amt of Outside
Clients Served
Reported
Reported
Investigated
Strategies
Funding
1995 Nat'l Total 16,941
24,800
2,343
345
345
$ 5,984,579
1995 Nat'l Avg 302
443
42
6
401
$ 106,867
1996 Nat'l Total 16,556
222,281
1,281
370
23,633
$ 5,808,563
1996 Nat'l Avg 295
398
23
7
422
$ 103,724
1997 Nat'l Total 15,658
23,345
1,545
377
23,957
$ 6,782,959
1997 Nat'l Avg 279
417
27
6
428
$ 121,124
1998 Nat'l Total 16,531
25,522
1,203
426
26,199
$ 7,010,212
1998 Nat'l Avg 295
456
21
8
468
$ 125,182
4 Yr Nat'l Avg 293
428
28
7
430
$ 114,225
1998 DRVD Total 88
140
120
12
199
$ 207,354
% DRVD was 320%
285%
241%
37%
172%
44%
above or below below
below
above
above
below
above
the 1995-98 Nat’l Average in 1998 1999 DRVD Total 80
130
96
8
168
$ 208,438
% DRVD was 363%
315%
172%
10%
223%
45%
above or below below
below
above
below
below
above
the 1995-98 Nat’l Average in 1999*** * Includes Data from All 56 Federally Funded Protection & Advocacy for Individuals w/ Mental Illness (PAIMI) Programs w/in the U.S. & its Territories
** The federal government breaks these into three complaint categories (abuse, neglect, rights), but they are similar enough to be combined for interpretation
*** Based on the most current information available for DRVD, or Virginia’s P&A, which was compared a national average, but was adjusted to reflect the fact that Virginia’s population is 20% larger than the average state. (Calculated on U.S. census population data stating Virginia’s population as 6,872,912 and the U.S. population as 272,690,813.)