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Virginia Office for Protection and Advocacy v. Stewart

U.S. Supreme Court Allows Full Protection of Nursing Home Residents

The U.S. Supreme Court agreed with AARP's brief asking that the Virginia Office of Protection and Advocacy (VOPA) be able to sue in federal court in order to carry out its duty to investigate abuse and neglect of residents of long term care facilities and other institutions.

The Dispute

VOPA is a federally funded and statutorily mandated agency organized under federal law and charged with protecting and advocating the rights of persons with disabilities, regardless of age, residing in facilities and in the community. This includes investigating instances of abuse and neglect in both state and private facilities. VOPA is organized as an independent state agency, one of only eight states and territories that have in that way elected to comply with federal laws protecting the rights of people in institutions. The remaining state Protection and Advocacy (P&A) offices are structured as private nonprofit entities.

During the investigation of a suspicious death at one of Virginia's public facilities, VOPA sought records from officials of various Virginia state agencies. The state refused to comply. VOPA sued in federal court, seeking to have the court enter an injunction ordering the state officials to release records. The state countered with a constitutional defense — invoking its 11th Amendment "sovereign immunity" rights. Sovereign immunity not only protects states from liability under many federal laws, but in some limited cases it protects states from having to appear in federal court at all.

AARP's brief, filed by attorneys with AARP Foundation Litigation and filed in conjunction with the National Senior Citizens Law Center, argued that longstanding Supreme Court precedent makes it clear that a state can be held to account in federal court by its own citizens in various contexts. The 100-year-old case Ex parte Young allows such actions when, as here, the case is filed against a state official asking for injunctive relief to prevent ongoing violations of federal law. AARP argued that the appeals court went too far in ruling that to allow one state agency (even an "independent" one) to sue another in federal court would offend the sovereign interest and "dignity" of Virginia. The brief also pointed out the reasons that federal court recourse is needed.

The Supreme Court agreed. "VOPA's power to sue state officials is a consequence of Virginia's own decision to establish a public, rather than a private, P&A system. We fail to perceive what Eleventh Amendment indignity is visited on the Commonwealth when, by operation of its own laws, VOPA is admitted to federal court as a plaintiff."

What's at Stake


As AARP's brief pointed out, state and federal surveys document a continued severe undercounting of harmful conditions in nursing facilities. Congress intended for P&A programs to have reasonable and unfettered access to people and records for investigation into abuse and neglect of people with disabilities and older people and the importance of such investigations is now more important than ever.

Case Status

Commonwealth of Virginia by its Office for Protection and Advocacy v. Stewart
was remanded to trial court for proceedings on the merits.

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