A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury. The civil rights of an individual may not be denied or interfered with because of their membership in a particular group or class. This includes individuals who are institutionalized.
The Civil Rights of Institutionalized Persons Act of 1980 (CRIPA) ensures the rights of persons in institutions are protected against unconstitutional conditions. Those confined in government institutions include persons with physical and mental disabilities, the elderly in government-run nursing homes and individuals who have been jailed.
The Civil Rights of Institutionalized Persons Act authorizes the Attorney General to conduct investigations and litigation relating to conditions of confinement in state or locally operated institutions. The statute does not cover private facilities. Under CRIPA a Special Litigation Section (the Section) can investigate covered facilities to determine whether there is a pattern or practice of violations of residents’ federal rights.
The Act does not provide authority to the Section or any other government agency or department to represent individuals or to address specific individual cases or private facilities. Issues related to institutionalized individuals in private facilities, individuals who need individual representation, issues arising from community placements, or allegations of discrimination should seek the assistance of qualified attorneys who specialize in these kinds of rights issues.
The Section’s CRIPA work is generally divided into five areas:
• Jails and Prisons
• Juvenile Correctional Facilities
• State or locally run Mental Health Facilities
• State or locally run Developmental Disability and Mental Retardation Facilities
• State or locally run Nursing Homes
Since the enactment of CRIPA there have been more than 300 facilities in over 35 states that have been investigated. As a result thousands of institutionalized persons who were living in dire, often life-threatening, conditions are now receiving adequate care and services.
The Section’s institutional work has focused on significant problems, such as abuse and neglect in nursing homes and juvenile facilities, sexual victimization of women, inadequate education in facilities serving children and adolescents, and the unmet mental health needs of many. In addition, the Section has been active in enforcing the rights of institutionalized persons with disabilities to receive adequate habilitation and active treatment and to be served in the most integrated setting appropriate to their needs.
The isolated nature of federal institutions and the vulnerability of their residents combine to create environments ripe for abuse and neglect. One and a half million people reside in over 17,000 nursing homes nationwide and 30 percent of those facilities have been cited for harming residents or placing them at risk or serious injury or death. Reports have shown that he incidence of abuse is actually much higher. These studies state that over 80 percent of abuse goes unreported or undetected, as it usually occurs behind closed doors, and even family members of residents are reluctant to report the abuse.
The Section staff is involved in a broad array of activities to vindicate the federal rights of institutionalized persons. These activities range from reviewing complaints and conducting investigations, to monitoring and enforcing court orders, litigating large, complex institutional reform cases, and writing briefs on issues of national import. The department works closely with nationally renowned experts to evaluate institutional conditions by touring the facilities, observing relevant practices and procedures at the facilities, evaluating records, and interviewing residents, staff, and other individuals knowledgeable about the conditions at the institutions. The staff’s resources are limited however and the investigations often time consuming.
A large number of investigations have already uncovered a variety of unlawful conditions. When these harmful environments are identified the facility at fault may either voluntarily correct the conditions or they receive a judicially enforceable settlement notice that is designed to improve conditions to ensure the provision of appropriate services. If state or local officials fail to correct the deficiencies or to agree to an appropriate settlement, then CRIPA is authorized to ask the Attorney General to file suit(s).
The Attorney General may also initiate civil lawsuits where there is reasonable cause to believe that conditions are “egregious or flagrant,” that they are subjecting residents to “grievous harm,” and/or that they are part of a “pattern or practice” of resistance to residents’ full enjoyment of constitutional or federal rights.
In addition in cases that are not under the authority of one of the government agencies, an individual or family member, to ensure the federal rights of the institutionalized person are followed, may initiate a private investigation and/or lawsuit. In some cases they may be eligible to receive a monetary award.