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Day 2 of 15 | Access Authority

Want to know a surprising fact about Disability Rights North Carolina (DRNC)?

 

We have a super power! 

Not a super power like super heroes have, but a unique legal authority to go places where children and adults with disabilities receive services, so we can ensure they are safe and know their rights. This authority, called “access authority,” is established in federal law and gives DRNC, along with all the other protection and advocacy (P&A) organizations nationwide, the right to investigate when we have cause to believe that disabled people are being abused or neglected. Our access authority applies in many kinds of places, like nursing facilities, developmental centers, psychiatric facilities, group homes, sheltered workshops, jails, prisons, and schools. 

 

Sometimes facilities attempt to deny a P&A’s access authority.

When that happens, we have successfully obtained court rulings upholding our right to access people with disabilities under federal law. Our access right has been litigated and upheld by the US Supreme Court.  

For the past 15 years, DRNC staff have used our access authority strategically to ensure system-wide, positive outcomes for disabled people in NC that would not have been possible otherwise. As we reflect on these outcomes, we share a few examples that illustrate the dramatic results that began by our use of access authority. It is important to note that because we are a small staff serving over 2 million people with disabilities of all ages across the state, we focus our efforts on bringing about systemic change to protect and improve the lives of many people. 

 

Examples of DRNC’s achievements include: 

  • A statewide ban on the use of dangerous facedown (prone) restraint by any facility under the oversight of the NC Department of Health and Human Services (DHHS). Then-Secretary Al Delia issued this crucial, life-saving policy change in 2012 following the tragic death of a man at a state-operated center for people with intellectual and/or developmental disabilities (IDD), Murdoch Developmental Center, after staff held him face down on the floor several times over the course of an hour. DRNC staff investigated the man’s care and treatment and found systemic failures.
  • DRNC staff monitored psychiatric residential treatment facilities (PRTFs), leading to three different, sweeping changes for the children and youth who are locked away in these facilities, often for months and years at a time:
    • A new state law in 2015 requires PRTF providers and the state Department of Public Instruction (DPI) to ensure kids in these facilities get the education they are entitled to receive. DRNC’s investigation determined that Individualized Education Programs (IEPs) were not being implemented for special education students, nor were kids being evaluated for services when they were suspected of having disabilities. (This work began in 2011.)
    • A requirement that PRTFs and the state ensure that children in these locked facilities receive the same protections as adults who are in locked facilities. That means a judge must review kids’ admissions and ongoing stays to ensure their rights are protected. (This work began in 2009 and implementation began in 2011.) 
    • A settlement agreement with DHHS under which the state agreed to help kids with “complex needs” remain in their homes and communities with the services they need to avoid being forced into institutions like PRTFs. These children, with an IDD and mental health disability, were being funneled into locked PRTFs because the state failed to provide appropriate services to keep them safe and thriving at home in their communities. The 2016 settlement agreement was for two years, but DRNC’s work in this area continues because significant service gaps remain for these children.   
    • DRNC will continue to monitor PRTFs to ensure compliance with these hard-won changes and other laws, and protect the safety and rights of kids in institutions. 
  • When Hurricane Florence blew through NC in September 2018, DRNC staff began monitoring the status of people with disabilities in emergency shelters housing displaced survivors. Within 47 days, DRNC visited 26 shelters and communicated directly with more than 300 displaced individuals, over 150 shelter staff, and other service providers. DRNC observed significant inconsistencies in the resources available to survivors and found that welltrained, attentive staff provide far better outcomes for individuals with disabilities. Many of the dislocations and traumas DRNC observed could be avoided if future disaster plans, responses and recovery efforts are more inclusive and respectful of people with various kinds of disabilities, and ensure their civil rights. 

DRNC issued a report, “The Storm After the Storm,” that generated much attention, resulting in several significant developments, among them: 

  • The State hired a Disability Integration Specialist to develop plans for preparedness, response, recovery, and hazard mitigation in compliance with the Americans with Disabilities Act (ADA). 
  • The State created Functional Assessment Support Teams (FAST) in NC to assist local government agencies and their partners in providing appropriate support to people with access and functional needs during disasters, including deployment to shelters. 
  • The State established three workshops to assist with preparedness, focusing on shelter accessibility; the recruitment, training, and dispatch of FAST staff to shelters; and organizational disaster preparedness, identifying resources and training for nonprofit organizations to enable them to continue to serve clients during and after a disaster. 
  • DRNC was able to secure funding from nonprofits and foundations to continue this important work. 

 

Following complaints and reports we received about people with mental health disabilities inappropriately stuck in adult care homes (ACHs), DRNC launched an investigation and in 2010, filed a complaint with the US Department of Justice (DOJ). In this complaint, DRNC described the illegal and inappropriate warehousing of thousands of adults with mental health disabilities in ACHs, in violation of the ADA and the 1999 US Supreme Court Olmstead decision.

The DOJ substantiated our complaint and started its own investigation. In 2012, the State and the DOJ entered into a settlement agreement requiring specific changes and timelines, including diversions and discharges from ACHs, and development of supported housing and employment services. In addition, the settlement called for the appointment of an “independent reviewer” to make periodic reports to the parties to this settlement agreement. As part of the settlement, the state launched Transitions to Community Living (TCL).

Since then, the state has been unable to meet many of the goals and timelines, and the settlement agreement has been extended multiple times. Currently the settlement is set to end in June 2023. DRNC continues to monitor the state’s progress toward its goals under the settlement agreement and the status of adults with mental health disabilities who are stuck or at risk of being stuck in ACHs. 

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