Fwd: Advocacy Center Response to SAC White Paper

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Advocacy Center Response to SAC White Paper

The following letter was sent to the Board of Directors of the Statewide Advocacy Council (formerly known as the State Human Rights Advocacy Council) on July 19, 2002, in response to an effort by some members of the SAC to expand its current limited role.

SAC, an entity within the Department of Children and Families, is proposing to have itself appointed as the state protection and advocacy program. This would, in effect, place the federal/state watchdog P & A system under the control of the Department of Children and Families. The SAC is also seeking to take over the Guardian Ad Litem program from the Florida Court System.

The SAC White Paper contains several serious errors. To date, the SAC has not corrected or responded to the Advocacy Center's letter.

Please feel free to forward this response to other interested parties.

July 19, 2002

Members of the Board of Directors

Florida Statewide Advocacy Council

1317 Winewood Boulevard

Building 1, Suite 401

Tallahassee, Florida 32399

Dear Board Members,

We are writing to you, in your capacity as Statewide Advocacy Council Board Members, to express our deepest concern regarding serious inaccuracies contained in a White Paper purportedly released on behalf of the Statewide Advocacy Council.

The White Paper alludes to a pending SAC review of the “Effectiveness of Federally Mandated Advocacy Functions on Behalf of Clients of the State’s Health and Human Services”. This is somewhat puzzling, because no one – not SAC Chairperson Betty Busbee, SAC Executive Director Marvin, nor the SAC liaison to the Advocacy Center Board Carolyn Shell, advised the Center of any such activity. It is also unclear who requested that the SAC undertake this review.

The Center received the SAC White Paper through the courtesy of a third party who had been provided a copy of the White Paper.

Nonetheless, we must insist that the work product, having been undertaken, be factually correct. The Advocacy Center Board of Directors and Staff are happy to provide public information with regard to our activities. If such information had been sought, the significant errors in the SAC White Paper could have been avoided. What follows is a compendium of critical factual inaccuracies for which we request correction or retraction.

A. Statutory Authority: The White Paper alleges that the SAC has: “redundant authority”, comparable to federally mandated protection and advocacy programs. This statement is not accurate, in several respects.

Scope of Authority - SAC is charged with monitoring, investigating, and determining the presence of threat to individuals’ rights, health and safety or welfare. However, it is critical to note that the authority of SAC’s volunteers is limited to advocating on behalf of “persons who receive services from state agencies”, Florida Statutes 402.164 (1A).

The tragedy for many individuals is that they are not receiving services from state agencies, and SAC does not have the authority granted to Protection and Advocacy Programs to advocate, and if necessary to litigate, on their behalf. It has been the careful and strategic use of this authority that has resulted in the Center’s successful record of improving services over a period of many years. In partnership with the State, we have seen the Legislature increase funds for services to Floridians with disabilities by hundreds of millions of dollars, revenues that have brought hope to the lives of individuals previously denied services for decades.

Additionally with respect to education issues, the SAC White Paper makes no mention of the issues pertaining to students in Florida’s Public Schools. A tremendous number of cases handled by the Advocacy Center’s Protection and Advocacy for Individuals with Developmental Disabilities (PADD) are specific to violations of the Individuals With Disabilities Education Act (IDEA). Advocating on behalf of these students requires highly specific training and technical expertise. This is not an area that has been a historic focus of the SAC.

The rights of students with respect to due process, Individual Education Plans (IEP), Extended School Year (ESY) rights, Speech and Language support is technically arduous. It has been through the diligent efforts of the Center’s highly skilled PADD staff that many students’ rights have been successfully protected.

PAIMI Authority. The SAC White Paper also misstates the authority of the Protection and Advocacy Program for Individuals with Mental Illness (PAIMI). The White Paper states that the PAIMI Program is limited to abuse and neglect investigations for individuals in treatment centers, and or residential programs, and issues that may surface within 90 days of the individuals discharge. This portrayal of PAIMI is obsolete. In the 2000 Session, Congress funded the PAIMI Act to the $30 million threshold level, and expanded PAIMI authority to include mental health issues arising in the community, not specifically tied to institutions, inpatient treatment, or abuse and neglect issues.

B. PAIR Program Distortions: Regarding the Protection and Advocacy for Individual Rights (PAIR) program, the White Paper erroneously reports several facts regarding the national PAIR appropriation and the Florida PAIR program. First, the SAC report incorrectly states that the PAIR program is minimally funded at the national level at $5.5 million, the minimum level to qualify for formula grants. The SAC report states that the Florida PAIR program receives the minimum $100,000 state grant. This information is completely in error.

In the current fiscal year’s federal appropriation, the national PAIR appropriation was actually $15.2 million dollars, thus the SAC report is in error on this issue by 276%. Florida’s PAIR program was funded by formula grant, and as the fourth largest state in the U.S., received not the minimum state grant of $100,000, but $714,642. Here, the SAC report was in error by 714%.

C. Litigation Misrepresentations: The SAC White Paper plainly misstates and misreports Advocacy Center litigation activity. Errors in this section include:

Identifying testimony on the Rules of Juvenile Procedures as an issue of litigation. Public testimony requested by the Florida Supreme Court is not a matter of litigation and was not the result of the Center initiating litigation.

Misreporting the Center as key litigants in Doe v. State of Florida. Representatives of the developmental disabilities provider community filed the case.

Omitting / distorting a variety of our prominent litigation activities. The author(s) of the SAC White Paper were strangely selective in the cases they purport to be representative of the Center’s litigation activities. Additionally, SAC does not distinguish between lawsuits in which the Center is lead plaintiff and litigation in which the Center has filed an amicus brief.

Over-representing litigation as the Advocacy Center’s primary strategy. In fact, the Advocacy Center Mission Statement specifically limits this authority: “Prior to litigation, the Center will seek to use alternative means of dispute resolution, including fact-finding, facilitation, good-faith negotiation, conciliation, mediation, arbitration, and any combination of procedures, that may be used in lieu of litigation to address disputes or issues arising in our advocacy programs.”

Most disability advocates in the State of Florida have been highly complimentary of the Center’s careful and strategic use of litigation. The Center handles literally thousands of service requests annually, most of which are resolved without litigation. However, as directed by Congress, the Advocacy Center does utilize the litigation tool when all other methods of persuasion have been exhausted.

Disparaging a Congressional mandate. The SAC report clearly disparages the use of litigation as a tool to protect the rights of Florida’s citizens with disabilities, suggesting that SAC, as “third party mechanism” in Florida state government would have the ability to “conciliate client issues with the state agencies”. The White Paper suggests that if the SAC were awarded the federal Protection and Advocacy grants, it would be able to “rectify issues to the benefit of the client without the need to threaten or ensure litigation against the State of Florida”.

Such a wholesale promise not to utilize the authority Congress has granted to P & A programs is extremely disturbing. In effect, the SAC White Paper suggests that SAC would waive certain constitutional rights of Florida’s citizens with disabilities. Such a statement is at best naïve, and at worst a dereliction in duty to the protection of citizens with disabilities.

6. Making summary conclusions in the absence of any data whatsoever. The report states that SAC conducted a “review of ACPD expenditures” and states that such a review “highlights the troubling conclusion that our clients do not always benefit from the litigation against the State of Florida”. It is difficult to determine how this conclusion was reached. The complete absence of referral to any substantive evidence leading the authors, much less the reader, to this conclusion, is, indeed, “troubling.”

Fact – and we will be pleased to document it, should you so desire: To the contrary, over the last 10 years, many in the State of Florida have acknowledged that the Center’s litigation has been a key and critical element in the successful expansion of services to people with disabilities. This is particularly true with regard to persons with developmental disabilities. We have used the tool of litigation, in partnership with consumers and family advocates, because all other efforts failed