The Legal Intelligencer
By Mark J. Murphy
November 23, 2009
In more than 40 states, adult protective service, or APS, systems have authority to investigate and offer protective services to individuals with disabilities who are subject to abuse, neglect, or exploitation.

Pennsylvania is in the distinct minority of states that have no protective services system for people with disabilities between the ages of 18 and 59. The Disability Rights Network of Pennsylvania, or DRN, the organization designated by Pennsylvania pursuant to federal law to advocate for and protect the rights of people with disabilities, has been working to create a statewide, effective APS system.

DRN has frequently been involved in heart-wrenching situations where people with disabilities have been subject to severe abuse and neglect. For example, a 35-year-old woman with Down Syndrome was raped by her mother's boyfriend, but her mother, a drug addict, pressed her to drop the charges. Her mother also does not always take her to essential dialysis treatments and sometimes abandons her there.

A 59-year-old man with developmental disabilities was financially exploited by his stepson and his stepson's girlfriend, who harass him to give them his Social Security checks. He was found rummaging through trash cans for food. A 19-year-old woman with mental retardation lives with family members who are in and out of jail. Neighbors report that there have been times when she appears to be home alone. She is often bruised and arrives for school in dirty clothes and with no lunch.

A 37-year-old man with severe mental retardation who cannot speak lives with his mother and two brothers with mental health issues. A visitor found cockroaches crawling on the man with mental retardation. The mother admitted to hitting him. Although she initially agreed to allow the man to be placed in a residential program, she reneged when she learned that she would no longer have access to his disability checks.

These are not isolated incidents. The Area Agencies on Aging, which are responsible under Pennsylvania law to investigate elder abuse, report receiving hundreds of calls each year of alleged abuse and neglect of persons under age 60, but these agencies are not authorized to investigate such incidents.

Pennsylvania's lack of an APS system means that little can be done to investigate these situations and provide non-elderly abused and neglected adults with services in a safe environment. Since no agency has authority to investigate abuse and neglect of adults with disabilities, caregivers can keep people with disabilities isolated and unable to communicate with people who could offer them assistance. Even when independent agencies are able to speak with abused or neglected individuals with disabilities, they may refuse offers of assistance because, like some non-disabled victims of abuse, they are fearful - fearful of those who have subjected them to abuse or neglect or simply fearful of change and being in a situation where they might have no home.

While a few Pennsylvania counties, including Philadelphia, provide some level of protective services to non-elderly adults, the services vary considerably and are subject to funding constraints. Other potential means to protect non-elderly individuals with disabilities are generally ineffective or inappropriate. Contacting the police can be counterproductive, as caregivers deny allegations, then become more abusive of the individual. Pennsylvania's guardianship law allows appointment of a guardian for a person who lacks capacity to make decisions, but government or private agencies usually are unwilling to incur the costs and responsibilities of seeking and serving as guardians.

The Protection from Abuse Act also affords little protection to adults with disabilities since it does not cover abuse of adults by most non-spousal caregivers. Even when that act is applicable, many people with disabilities lack the capacity or means to seek a protection order. Involuntary commitment procedures result in placement in inappropriate, segregated, institutional environments.

In October 2003, the Legislative Budget and Finance Committee of the Pennsylvania House of Representatives issued a report titled "An Assessment of the Need for an Adult Protective Services System." The committee unequivocally recommended the creation of an APS system for non-elderly adults with disabilities. Six years later, Pennsylvania remains without an APS system. Although most legislators support the idea of an APS system, the $6 million annual cost has so far stymied its development.

DRN is working with more than 50 organizations, including The Arc of Pennsylvania, the Mental Health Association of Pennsylvania, and United Cerebral Palsy of Pennsylvania, to create an APS system. Currently, bills are pending in the Senate and House that would achieve this goal.

Under the proposed bills, the Department of Public Welfare would appoint regional agencies with authority to investigate and address abuse, neglect and exploitation of adults aged 18 to 59 who have disabilities. These agencies would be available to receive reports 24 hours per day, 365 days per year, and would be required to investigate priority cases of abuse immediately and non-priority cases within 72 hours.

Agencies would have access to records from other agencies and providers and would have the right to access the alleged victim. If the agency is denied access to the alleged victim because of interference by a third party or if he declines to cooperate because of coercion or justifiable fear of further abuse, neglect, or exploitation, the agency can petition the court to mandate access. When a report of abuse, neglect, or exploitation is substantiated, the agency will develop a plan to provide services to the individual in the least restrictive manner and most integrated setting.

The issue of adult protective services is just one of many legal and policy initiatives of DRN designed to ensure that the rights of persons with disabilities are protected. Each year, DRN provides legal and other advocacy services, including advice and technical assistance, direct representation, training, and publications, to thousands of persons with disabilities and their families. To learn more about DRN and its work, visit www.drnpa.org.

Mark J. Murphy is the legal director of the Disability Rights Network of Pennsylvania.