Disability Rights Florida Blog

The P&A Network’s Special Power: Access Authority

Friday, June 21, 2024

What is access authority?

Under federal law, Protection & Advocacy (P&A) agencies (such as Disability Rights Florida) have special authority to physically access facilities serving individuals with disabilities, including:

Hospitals
Prisons
Jails
Residential facilities
Schools
Group homes
Supported living arrangements
Nursing homes
And other locations.

Access authority is a special power that only Protection & Advocacy (P&A) agencies have. It allows P&As and their staff to access all areas of the facility otherwise accessible to the residents and to have unaccompanied access to the residents themselves, to communicate privately with the residents.

Where did the access authority power come from?

It all started with a series of TV broadcasts about the Willowbrook State School institution in New York. These broadcasts exposed the horrific treatment of people with disabilities in institutions to the nation.

Soon, lawmakers introduced legislation called the Developmental Disabilities Assistance and Bill of Rights (DD) Act (PADD) that led ultimately to the creation of the Protection & Advocacy system. The government gave each state and territory a Protection & Advocacy Agency (P&A) that would protect people with disabilities from abuse and neglect.

To ensure that no one else faced what was uncovered at Willowbrook, the government gave the P&A network a specific power, called access authority, that allows agencies like ours to thoroughly investigate places that people with disabilities receive services, and that allows the P&A to routinely monitor these facilities during “reasonable times,” to ensure the rights and safety of residents are being upheld.

The P&A’s access authority is granted to it by the federal laws establishing the P&A system, including the DD Act and Protection and Advocacy for Individuals with Mental Illness (PAIMI) Act. These federal laws each grant the P&A access authority for a specific set of disabilities (e.g. developmental disabilities, mental illness, etc.), and are generally identical in terms of the power granted to the P&A, with a few minor exceptions.

How does it work?

The P&A access authority allows Disability Rights Florida (DRF) to:

Access the facility and its residents unaccompanied by staff during normal work and visiting hours;
Inspect, view, and photograph all areas of the facility used by individuals with disabilities; and
Provide information and training to individuals with disabilities who are being served by the facility.

When investigating allegations of abuse and neglect, DRF may also:

Access the facility at any time, immediately and without advance notice; and
Interview individuals with disabilities, employees, and other persons relevant to the investigation.

It is important to note that P&A agencies like DRF do not need any reports or allegations of abuse to utilize our access authority. We can show up to a facility to simply monitor how people are doing. When we go without any allegations of abuse or neglect, we often will bring with us and provide information, trainings, and referrals for programs that can help people with disabilities at that facility.

What information can the P&A network access?

Separate from its authority to access facilities, P&A’s like DRF also have the authority to access records of individuals under a variety of circumstances, including when the individual has given their consent. Although the scope of our access authority depends on multiple factors, P&A agencies like DRF have broad access to a variety of facility records relating to individuals with disabilities including but not limited to:

Medical records
Incident reports
Internal agency records and policies
Discharge plans
Discipline records
Investigations/audits
Video recordings

DRF can access records related to a specific client, including after it receives a general complaint or other evidence of abuse or neglect. Facilities are required to provide these records “promptly,” or within three days, depending on the circumstances. In more urgent situations, a facility may be required to provide records within 24 hours.

The P&A’s access to records is not limited by confidentiality laws like HIPAA and FERPA. Generally, the P&A is required to maintain the confidentiality of any records it receives, and thus these laws do not restrict the ability of the P&A to receive records.

Federal Statutes and Regulations that Include Access Authority

Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”)

42 U.S.C. § 10805 (establishes system requirements and authority, including access authority and access to records)
42 C.F.R. § 51.2 (definitions of “abuse,” “neglect,” and other terms)
42 C.F.R. § 51.41 (access to records)
42 C.F.R. § 51.42 (access to facilities and residents)
42 C.F.R. § 51.43 (actions required when access is denied or delayed)
42 C.F.R. § 51.45 and § 51.46 (confidentiality requirements)

Protection and Advocacy for Persons with Developmental Disabilities (“PADD”)

42 U.S.C. § 15043 (establishes system requirements and authority, including access authority and access to records)
45 C.F.R. § 1326.19 (definitions of “abuse,” “neglect,” and other terms)
45 C.F.R. § 1326.25 (access to records)
45 C.F.R. § 1326.26 (actions required when access is denied or delayed)
45 C.F.R. § 1326.27 (access to facilities and residents)
45 C.F.R. § 1326.28 (confidentiality requirements)

Protection and Advocacy for Individual Rights (“PAIR”)

29 U.S.C. § 794e (incorporates PADD access authority)

Protection and Advocacy Services Related to Assistive Technology (“PAAT”)

29 U.S.C. § 3004 (incorporates PADD access authority)

Protection and Advocacy for Traumatic Brain Injury (“PATBI”)

42 U.S.C. § 300d-53 (incorporates PADD access authority)

Protection and Advocacy for Voting Access (“PAVA”)

52 U.S.C. § 21061 (incorporates PADD access authority)

Conclusion

Thanks to access authority, agencies like ours can get a full and honest picture about how people with disabilities are doing. With a power like access authority, we will work hard to ensure no person experiences the horrors of Willowbrook again.

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