CRIPA

1. CRIPA A PRIMER FOR MENTAL HEALTH COUNSEL

2. CRIPA • Definition, Purpose & Cite • History • What to do once notice is received & before visit • What to do during a visit • What to do AFTER the visit • What to do if findings are made • What if DOJ wants to follow into someone others’ facilities • What to do in settlement • What to do in litigation

3. Definition, Purpose & Cite • CRIPA=Acronym for: Civil Rights of Institutionalized Persons Act, 42 USC § 1997 et seq. • Purpose: • To authorize the U.S. Attorney General to investigate, and upon appropriate findings, to enter into agreement with a state “institution,” or if not resolveable, to personally sign a complaint to initiate a civil action when constitutional rights are deemed violated

4. HISTORY OF CRIPA • “SINCE 1971, THE ATTORNEY GENERAL HAS PARTICIPATED IN A SERIES OF CIVIL ACTIONS SEEKING TO REDRESS WIDESPREAD VIOLATIONS OF CONSTITUTIONAL AND FEDERAL STATUTORY RIGHTS OF PERSONS RESIDING IN STATE INSTITUTIONS. THROUGH LITIGATION CONDUCTED BY THE CIVIL RIGHTS DIVISION, THE JUSTICE DEPARTMENT HAS PARTICIPATED AS AMICUS CURIAE OR PLAINTIFF-INTERVENOR IN MORE THAN 25 SUITS BROUGHT TO SECURE BASIC LEGAL AND CONSTITUTIONAL CONDITIONS IN INSTITUTIONS HOUSING THE MENTALLY ILL, THE RETARDED, THE CHRONICALLY AND PHYSICALLY ILL, PRISONERS, JUVENILE DELINQUENTS, AND NEGLECTED CHILDREN. IN ADDITION, THE ATTORNEY GENERAL HAS PARTICIPATED IN SUITS SUCCESSFULLY CHALLENGING THE CONSTITUTIONALITY OF SEVERAL STATE COMMITMENT STATUTES. AT LEAST TEN FEDERAL DISTRICT COURTS HAVE REQUESTED THE JUSTICE DEPARTMENT TO PARTICIPATE IN LITIGATION CONCERNING THE RIGHTS OF INSTITUTIONALIZED INDIVIDUALS. THE ATTORNEY GENERAL HAS ALSO PETITIONED TO **833 INTERVENE IN PENDING CASES, TO REPRESENT THE INTERESTS OF THE UNITED STATES IN SECURING BASIC CONSTITUTIONAL RIGHTS FOR ITS INSTITUTIONALIZED *9 CITIZENS. WHETHER BY REQUEST OF THE COURT OR BY PETITION TO INTERVENE, HOWEVER, THE JUSTICE DEPARTMENT INVARIABLY HAS BROUGHT TO THE LITIGATION PROCESS INVESTIGATIVE RESOURCES, TECHNICAL ADVICE, AND LEGAL EXPERTISE UNAVAILABLE TO PRIVATE LITIGANTS. COURTS HAVE BEEN OPENLY APPRECIATIVE OF THESE EFFORTS.” H.R. CONF. REP. 96-897.P.L. 96-247, CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACTHOUSE CONFERENCE REPORT NO. 96-897.APR. 22, 1980

5. HISTORY OF CRIPA cont’d. • One of many outgrowths of Wyatt v. Stickney and its progeny. • In 1971, when Judge Frank M. Johnson, Jr. issued the first order in this case, there were thousands of patients hospitalized in Alabama, ostensibly for mental-health treatment. Most of them were “involuntarily committed through non-criminal procedures and without the constitutional protections that are afforded defendants in criminal proceedings.” Wyatt v. Stickney, 325 F.Supp. 781, 784 (M.D.Ala.1971). Many, if not most, of these patients received no treatment whatsoever.*532Id. Patients were housed in inhumane conditions in “barn-like” dormitories plagued by overcrowding, extreme ventilation problems, and fire and other emergency hazards. Wyatt v. Stickney, 334 F.Supp. 1341, 1343 (M.D.Ala.1971). The staff at the hospitals was under-qualified and stretched much too thin, and the patients did not have individualized treatment plans. Id. at 1343-44. “Also contributing to the poor psychological environment [were] the shoddy wearing apparel furnished the patients, the non-therapeutic work assigned the patients ... and the degrading and humiliating admissions procedure which create[d] in the patient an impression of the hospital as a prison or as a ‘crazy house.’ ” Id. at 1343.

6. HISTORY OF CRIPA cont’d. • The Wyatt standards have had a reverberating impact on state and national law, and, perhaps even more importantly, on public consciousness about mental illness. The standards have been incorporated into state and federal mental-health codes and regulations. The concept of treatment in the “least restrictive setting” contained in the Wyatt standards was “echoed” in the Americans with Disabilities Act of 1990, Pub.L. No. 101-336, 104 Stat. 328 (codified as amended at 42 U.S.C.A. §§ 12101-12213 and 47 U.S.C.A. § 225), as the Supreme Court affirmed in 1999 in Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999).FN1 Dick Thornburgh and Ira Burnim, Dedication to Frank M. Johnson, Jr., 23 Mental & Physical Disability L. Rep. 606, 606 (1999). The nationwide Protection and Advocacy system is a “direct descendant” of the Human Rights Committees Judge Johnson appointed in the Wyatt case.FN2Id. Part of Judge Johnson's *533 March 1972 opinion enumerating rights due the plaintiff class, such as the right to privacy, the right to be treated with dignity, and the right to be free of unnecessary medication and physical restraint, has come to be known among mental-health professionals as a “bill of rights for patients.” Bass, supra, 293.

7. HISTORY OF CRIPA cont’d. • “DECISIONS. DISTRICT COURTS IN BOTH MARYLAND AND MONTANA RECENTLY RULED THAT, ABSENT EXPRESS STATUTORY AUTHORITY, THE ATTORNEY GENERAL LACKED STANDING TO INITIATE CIVIL ACTIONS CHALLENGING CONDITIONS IN TWO STATE FACILITIES FOR THE MENTALLY RETARDED. BOTH SUITS WERE RECENTLY UPHELD ON APPEAL. ALTHOUGH CONGRESS HAS, IN OTHER CONTEXTS, GIVEN THE ATTORNEY GENERAL EXPLICIT AUTHORITY TO REDRESS SYSTEMATIC DEPRIVATIONS OF CONSTITUTIONAL RIGHTS, IT HAS NEVER EXPRESSLY AUTHORIZED HIM TO ENFORCE FUNDAMENTAL FEDERAL RIGHTS OF INSTITUTIONALIZED INDIVIDUALS. THE MARYLAND AND MONTANA DECISIONS MAKE CLEAR THAT WITHOUT A FEDERAL STATUTE CLARIFYING THE ATTORNEY GENERAL'S AUTHORITY TO INITIATE AND TO INTERVENE IN SUCH SUITS, THE DEPARTMENT'S LITIGATIVE EFFORTS TO PROTECT THE INSTITUTIONALIZED WILL BE PARALYZED. H.R. 10 PROVIDES THAT AUTHORITY.” H.R. CONF. REP. 96-897.P.L. 96-247, CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACTHOUSE CONFERENCE REPORT NO. 96-897.APR. 22, 1980

8. Notice Rec’d./Before Visit Develop for the Clients • Ground Rules for DOJ • Tips for Responding • Summary of the CRIPA Visit Process (The process: A combination of assessment of how the facility operates and treats consumers and a legal assessment of whether it meets federal civil rights and constitutional std.s) • OTHER

9. During A Visit • Accompany the DOJ team with like professionals • Refer to documents and records • Track document requests in writing • Do your job in treating consumers • Keep notes (consider forms for tracking records requests, etc. • OTHER…

10. AFTER THE VISIT • Immediately work to fix what they told you was a problem (if doable before the exit do it then) • Develop a plan for correcting problems • Consider the need for further experts • Respond to DOJ about what they had wrong in the facts • Remember the purpose is to improve the system • OTHER KEY ITEMS

11. IF FINDINGS ARE MADE • Fix the problems • Respond to DOJ with preliminary plan • Fix the problems Use the DOJ settlement proposal as a beginning for negotiations OTHER

12. IF DOJ FOLLOWS CONSUMERS • Clarify your agency’s role • Assist with what’s reasonable • Consider contacting target outside agencies • Hand off as appropriate

13. SETTLEMENT STRATEGIES • Seek objective, quantifiable milestones • They seem to want subjective agreements designed for long-term control rather than finality of an agreement (See DOJ Website cited below)

14. Litigation Strategy • Don’t litigate for over 30 years

15. Resources • NASMHPD Legal Division • DOJ Website www.usdoj.gov/crt/split/index.html