Microsoft Word - TASCLtrhd

TASC is sponsored by the Administration on

Developmental Disabilities (ADD), the

Center for Mental Health Services (CMHS), the

Rehabilitation Services Administration (RSA), the

Social Security Administration (SSA), and the

Health Resources Services Administration

(HRSA). TASC is a division of the National

Disability Rights Network (NDRN).

The P&A Desk Reference Manual

Produced by the Organizational Development Committee

October 2007

TAB 1: P&A System Overview

1.1 Commonly Used Acronyms

1.2 Protection and Advocacy for Persons with Developmental Disabilities

(PADD):

Summary of Act

1.3 Client Assistance Program (CAP): Summary of Act

1.4 Protection & Advocacy for Individuals with Mental Illness (PAIMI):

Summary of Act

1.5 Protection & Advocacy for Individual Rights (PAIR): Summary of Act

1.6 Protection & Advocacy for Beneficiaries of Social Security: Summary of

Act

1.7 Assistive Technology Act of 1998: Statutory Provisions

1.8 Protection & Advocacy for Traumatic Brain Injury (PATBI): Summary of

Act

1.9 Protection & Advocacy for Voting Access (PAVA): Statutory Provisions

1.1 Commonly Used Acronyms

ACF Administration for Children and Families

AC Advisory Council

ADA Americans with Disabilities Act

ADD Administration on Development Disabilities

ATC Assistive Technology Center

BOD Board of Directors

CAP Client Assistance Program

CCD Consortium of Citizens with Disabilities

CMHS Center for Mental Health Services

CMS Center for Medicare and Medicaid Services (formerly HCFA – Health Care

Financing Administration)

DAD Disability Advocacy Database

DD Developmental Disabilities

DD Act Developmental Disabilities Assistance and Bill of Rights Act

DDC Developmental Disabilities Council

DSA Designated State Agency

FY Fiscal Year

HAVA Help America Vote Act

IDEA Individual with Disabilities Education Act

ILCs Independent Living Centers

LD Learning Disability

MI Mental Illness

MR Mental Retardation

MTARS Monitoring and Technical Assistance Review System

NDRN National Disability Rights Network (formerly NAPAS - National Association

of Protection & Advocacy Systems)

NIDRR National Institute on Disability Rehabilitation Research

OMB Office of Management & Budget

OSERS Office of Special Education Rehabilitation Services

PAAT Protection & Advocacy for Obtaining Assistive Technology

PABSS Protection & Advocacy for Beneficiaries of Social Security

PADD Protection & Advocacy for Persons with Developmental Disabilities

PAIMI Protection & Advocacy for Individuals with Mental Illness

PAIR Protection & Advocacy for Individual Rights

PAVA Protection & Advocacy for Voting Access

PPR Program Performance Report

PR Public Relations

RSA Rehabilitation Services Administration

Rehab Act Rehabilitation Act

SAMHSA Substance Abuse and Mental Health Services Administration

SOP Statement of Objectives & Priorities

SSA Social Security Administration

TASC Training and Advocacy Support Center (formerly ATTAC – Advocacy

Training and Technical Assistance Center)

TASR Technical Assistance Site Review (CMHS)

TBI Traumatic Brain Injury

Tech Act Technology-Related Assistance for Individuals with Disabilities Act

UAP University Affiliated Program

UCE University Centers for Excellence in Development Disabilities Education,

Research and Service

1.2 Protection and Advocacy for Persons with

Developmental Disabilities (PADD): Summary of Act

PADD's Mandate:

To protect and advocate for the legal and human rights of individuals with

developmental disabilities.

Eligibility for PADD:

To be eligible for services from the PADD program, an individual must have a

"developmental disability" as defined in the Developmental Disabilities (DD)

Assistance and Bill of Rights Act. Generally, this will mean that the individual has a

severe, chronic disability which is manifested before the age of 22 and results in

substantial functional limitations in 3 or more specified major life activities. However,

PADD can serve an individual from birth to age 9 who does not have 3 or more such

limitations if he or she has a substantial developmental delay or specific congenital

or acquired condition, provided that the individual, without services or supports, has

a high probability of developing those limitations later in life.

Legal Authority for PADD:

Public Law 106-402, The Developmental Disabilities Assistance and Bill of Rights

Act of 2000 (repealed and replaced the DD Act of 1996) – to be published at 42

U.S.C. 15001 et seq. The regulations implementing the Act are published at 45

CFR Parts 1385-1386.

Key Definition:

Developmental Disability: (Section 102(8) of the DD Act)

(A) In General – The term "developmental disability" means a severe, chronic

disability of an individual that:

(i) is attributable to a mental or physical impairment or combination of mental

and physical impairments;

(ii) is manifested before the individual attains age 22;

(iii) is likely to continue indefinitely;

(iv) results in substantial functional limitations in three or more of the following

areas of major life activity:

(I) self-care;

(II) receptive and expressive language;

(III) learning;

(IV) mobility;

(V) self-direction;

(VI) capacity for independent living; and

(VII) economic self-sufficiency; and

(v) reflects the individual's need for a combination and sequence of special,

interdisciplinary, or generic services, individualized supports, or other

assistance that is of lifelong or extended duration and are individually

planned and coordinated.

(B) Infants and Young Children – An Individual from birth to age 9, inclusive, who

has a substantial developmental delay or specific congenital or acquired

condition, may be considered to have a developmental disability without

meeting the 3 or more criteria described in clauses (i) through (v) of

subparagraph (A) if the individual, without services and supports, has a high

probability of meeting those criteria later in life.

Key Provisions:

1. Section 109 of the DD Act sets forth the "Rights of Individuals with Developmental

Disabilities." Two of the more general rights are as follows:

(a) Congress makes the following findings respecting the rights of individuals

with developmental disabilities:

(1) Individuals with developmental disabilities have a right to appropriate

treatment, services, and habilitation for such disabilities.

(2) The treatment, services, and habilitation for an individual with

developmental disabilities should be designed to maximize the

potential of the individual and should be provided in the setting that is

least restrictive of the individual's personal liberty.

2. Section 143 of the DD Act sets forth the requirements of the PADD program in the

P&A system. The most relevant mandates for our purposes follow:

(a) SYSTEM REQUIRED. In order for a State to receive an allotment under part B:

(1) the State must have in effect a system to protect and advocate the rights of

individuals with developmental disabilities;

(2) such system must:

(A) have the authority to:

(i) pursue legal, administrative, and other appropriate remedies or

approaches to ensure the protection of, and advocacy for, the rights of

such individuals within the State who are or who may be eligible for

treatment, services, or habilitation, or who are being considered for a

change in living arrangements, with particular attention to members of

ethnic and racial minority groups; and

(ii) provide information on and referral to programs and services

addressing the needs of individuals with developmental disabilities;

(B) have the authority to investigate incidents of abuse and neglect of

individuals with developmental disabilities if the incidents are reported to

the [P&A] system or if there is probable cause to believe that the incidents

occurred;

of Health and Human Services], and take action with regard to goals (each

of which is related to 1 or more areas of emphasis) and priorities,

developed through data driven strategic planning, for the system’s

activities. [The areas of emphasis spelled out in the Act include activities

related to: quality assurance, education and early intervention,

employment, housing and transportation.] …

(H) have access at reasonable times to any individual with a developmental

disability in a location in which services, supports, or other assistance are

provided to such an individual, in order to carry out the purposes of [the Act]

(I) have access to the records of any individual with a developmental

disability... [P&As shall have such authority to access records under

specified circumstances – similar to those set forth under the Protection

and Advocacy for Individuals with Mental Illness (PAIMI) Act – in order to

investigate abuse and neglect (see fact sheet on the PAIMI Act).]

3. 45 CFR 1386.21 sets forth the regulatory "requirements and authority” of the P&A

System. Relevant portions of the regulation for our purposes follow:

(b) Allotments must be used to supplement and not supplant the level of non-federal

funds available in the State for activities under the Act, which shall include

activities on behalf of individuals with developmental disabilities to remedy abuse,

neglect, and violations of rights as well as information and referral activities.

may be sought on the behalf of individuals with developmental disabilities or

compromising the authority of the [P&A] to pursue such remedies through

litigation, legal action or other forms of advocacy. However, the above

requirement does not prevent the P&A from developing case or client acceptance

criteria as part of the annual priorities identified by the P&A...

(f) A [P&A] may exercise its authority under State law where the authority exceeds

the authority required by the [DD] Act. However, State law must not diminish the

required authority of the [P&A].

Authorized: PADD was first authorized in 1970 with the enactment of the Disabilities

Services and Facilities Construction Amendments of 1970 (P.L. 91-517), which

amended the Mental Retardation Facilities and Construction Act of 1963 (P.L. 88-164).

Funding: Congress authorized an appropriation of $32 million for the PADD Program

FY 2001.

Administered by: PADD is administered by the Administration on Developmental

Disabilities of the Administration for Children and Families, U.S. Department of Health

and Human Services.

1.3 Client Assistance Program (CAP): Summary of Act

CAP's Mandate/Purpose:

The purpose of CAP is to:

(a) Advise and inform clients and client applicants of all services and benefits

available to them through programs authorized under the Rehabilitation Act of

1973, as amended (Act);

(b) Assist and advocate for clients and client applicants in their relationships with

programs providing services to them under the Act; and

have been unserved or underserved, of the services available to them under

the Act and under Title I of the Americans with Disabilities Act (ADA).

Eligibility for CAP:

CAP's available scope of services depends on the individual requesting

assistance, as follows:

(a) Clients and client applicants of programs funded under the Act are eligible to

receive all available CAP services (as discussed later).

(b) Individuals with disabilities who have an issue arising under Title I of the ADA

may be eligible for all available CAP services if the problem is also connected

to a service they are receiving or seeking from a program funded under the

Act. If not, these individuals are only eligible to receive information and

referral services about their rights and services available under the Act and

Title I of the ADA.

funded under the Act are eligible to receive only information and referral

services from CAP regarding their rights and benefits available under the Act

and Title I of the ADA.

(d) All other individuals in the State are eligible to receive only information from

CAP about CAP.

Legal Authority for CAP:

Section 112 of the Act

34 CFR Part 370

Key Definitions:

Client or client applicant: (34 CFR 370.6(b))

Client or client applicant means an individual receiving or seeking services under

the Act, respectively.

Services under the Act: (34 CFR 370.6(b))

Services under the Act means vocational rehabilitation, independent living,

supported employment, and other similar rehabilitation services provided under the

Act. For the purposes of the CAP, the term "services under the Act" does not

include activities carried out under the protection and advocacy program

authorized by section 509 of the Act (i.e., the Protection and Advocacy of

Individual Rights (PAIR) program, 34 CFR part 381).

Advocacy: (24 CFR 370.6(b))

Advocacy means pleading an individual's cause or speaking or writing in support of

an individual. Advocacy may be formal, as in the case of a lawyer representing an

individual in a court of law or in formal administrative proceedings before government

agencies (whether State, local or Federal). Advocacy also may be informal, as in the

case of a lawyer or non-lawyer representing an individual in negotiations, mediation,

or informal administrative proceedings before government agencies (whether State,

local or Federal), or as in the case of a lawyer or non-lawyer representing an

individual's cause before private entities or organizations, or government agencies

(whether State, local or Federal). Advocacy may be on behalf of:

(1) A single individual, in which case it is individual advocacy;

(2) More than one individual or a group or class of individuals, in which case it is

systems (or systemic) advocacy; or

(3) Oneself, in which case it is self advocacy.

Class Action: (34 CFR 370.6(b))

Class action means a formal legal suit on behalf of a group or class of individuals

filed in a Federal or State court that meets the requirements for a "class action"

under Federal or State law. "Systems (or systemic) advocacy" that does not

include filing a formal class action in a Federal or State court is not considered a

class action for purposes of this part.

Key Regulatory Provisions:

1. 34 CFR 370.3 outlines who is eligible for services and information from CAP:

(a) Any client or client applicant is eligible for the services described in section

370.4.

(b) Any individual with a disability is eligible to receive information on the services

and benefits available to individuals with disabilities under the Act and Title I of

the ADA.

2. 34 CFR 370.4 sets forth the authorized CAP activities:

(a) Funds made available under this part must be used for activities consistent with

the purpose of this program, including:

(1) Advising and informing clients, client applicants, and individuals with

disabilities in the State, especially individuals with disabilities who have

traditionally been unserved or underserved by vocational rehabilitation

programs, of:

(i) All services and benefits available to them through programs authorized

under the Act; and

(ii) Their rights in connection with those services and benefits;

(2) Informing individuals with disabilities in the State, especially individuals with

disabilities who have traditionally been unserved or underserved by

vocational rehabilitation programs, of the services and benefits available to

them under Title I of the ADA;

(3) Upon the request of a client or client applicant, assisting and advocating on

behalf of a client and client applicant in his or her relationship with projects,

programs, and community rehabilitation programs that provide services under

the Act by engaging in individual or systemic advocacy and pursuing, or

assisting and advocating on behalf of a client or client applicant to pursue

legal, administrative, and other available remedies, if necessary:

(i) To ensure the protection of the rights of a client or client applicant under

the Act; and

(ii) To facilitate access by individuals with disabilities and individuals with

disabilities who are making transition from public school programs to

services funded under the Act; and

(4) Providing information to the public concerning CAP.

(b) In providing assistance and advocacy services under this part with respect to

services under Title I of the Act, a designated agency may provide assistance and

advocacy services to a client or client applicant to facilitate the individual's

employment, including assistance advocacy services with respect to the individual's

claims under Title I of the ADA, if those claims under Title I of the ADA are directly

related to services under the Act that the individual is receiving or seeking.

Authorized: CAP became a formula grant program in 1984.

Funding: CAP received $12.5 million in FY 2001.

Administered by: CAP is administered by the Rehabilitation Services Administration

(RSA), Office of Special Education and Rehabilitative Services (OSERS), the U.S.

Department of Education.

1.4 Protection & Advocacy for Individuals with Mental

Illness (PAIMI): Summary of Act

PAIMI's Mandate:

1. Protect and advocate for the rights of individuals with mental illness through

activities to ensure the enforcement of the Constitution and Federal and State

statutes.

2. Investigate incidents of abuse and neglect of individuals with mental illness if the

incidents are reported to the system or if there is probable cause to believe that

the incidents occurred.

Eligibility for PAIMI:

To be eligible for services from the PAIMI program, an individual must satisfy the

definition of “individual with mental illness” contained in the PAIMI Act. The

definition covers those individuals that have significant mental illness or

emotional impairment as determined by a mental health professional and who is:

a. an inpatient or resident in a facility rendering care or treatment (even if the

whereabouts of the person are unknown); or

b. in the process of being admitted or transported to a facility rendering care or

treatment; or

c. involuntarily confined in a municipal detention facility for reasons other than

serving a sentence resulting from conviction for a criminal offense.**

Further, P&As are permitted to provide assistance to persons who had a

significant mental illness or emotional impairment and have been discharged

from a facility, but only with respect to matters which occur within 90 days of

discharge from the facility.

Finally, as amended by the Children’s Health Act of 2000 (Public Law 106-310,

October 17, 2000), coverage under the Act is expanded to allow P&A services for

a person with a significant mental illness or emotional impairment who “lives in a

community setting, including their own home.” However, the amendment further

provides that such coverage under the Act shall apply, and thus, persons living in

the community shall be eligible for services under the PAIMI Program, only when

the total allotment under the Act for any fiscal year is $30 million or more. (This

threshold was reached in fiscal year 2001.) Finally, the Act provides that in such

a case, the P&A “must give priority to representing persons with mental illness”

who reside in a facility rendering care or treatment.

**NOTE: CMHS said that individuals who are missing or deceased also are covered

under the PAIMI Act provided they meet all of the criteria of the above

definition. The Act does not specifically say this; however, CMHS has

interpreted the definition this way since death is covered in the definitions of

"abuse" and "neglect."

Scope of PAIMI's services:

PAIMI can address only those issues raised by an eligible individual (i.e., an

individual with a mental illness) that arise:

a. during the individual's transportation or admission to a facility;

b. during the individual's time of residency in the facility;

c. within 90 days after the individual is discharged from the facility;

d. at any time with respect to a person who lives in a community setting, but only

if the appropriation for the fiscal year equals or exceeds $30 million.

Legal Authority:

Protection and Advocacy for Individuals with Mental Illness Act

42 U.S.C. 10801 et seq.

45 CFR Part 51

Key Definitions:

1. Individual with Mental Illness (See definition discussed above, which is found at

42 U.S.C. 10802(4) and 45 CFR 51.2).

2. Facility (42 U.S.C. 10802(3) and 45 CFR 51.2) includes any public or private

residential setting that provides overnight care accompanied by treatment services.

Facilities include, but are not limited to the following: general and psychiatric

hospitals, nursing homes, board and care homes, community housing, juvenile

detention facilities, homeless shelters, and jails and prisons, including all general

areas as well as special mental health or forensic units.

3. Care or Treatment (45 CFR 51.2) means services provided to prevent, identify,

reduce or stabilize mental illness or emotional impairment such as mental health

screening, evaluation, counseling, biomedical, behavioral and psychotherapies,

supportive or other adjunctive therapies, medication supervision, special education

and rehabilitation, even if only "as needed" or under a contractual arrangement.

4. Abuse (42 U.S.C. 10802(1) and 45 CFR 51.2) means any act or failure to act by an

employee of a facility rendering care or treatment which was performed, or which

was failed to be performed, knowingly, recklessly, or intentionally, and which

caused, or may have caused, injury or death to an individual with mental illness, and

includes acts such as: rape or sexual assault; striking; the use of excessive force

when placing an individual with mental illness in bodily restraints; the use of bodily or

chemical restraints which is not in compliance with Federal and State laws and

regulations; verbal, nonverbal, mental and emotional harassment; and any other

practice which is likely to cause immediate physical or psychological harm or result

in long-term harm if such practices continue.

5. Neglect (42 U.S.C. 10802(5) and 45 CFR 51.2) means a negligent act or omission by

an individual responsible for providing services in a facility rendering care or treatment

which caused or may have caused injury or death to an individual with mental illness

or which placed an individual with mental illness at risk of injury or death, and includes

an act or omission such as: the failure to establish or carry out an appropriate

individual program plan or treatment plan for an individual with mental illness; the

failure to provide adequate nutrition, clothing, or health care to an individual with

mental illness; or the failure to provide a safe environment for an individual with mental

illness, including failure to maintain adequate numbers of appropriately trained staff.

Key Provisions:

1. 42 U.S.C. 10805(a)(1) mandates the services of the PAIMI program:

(a) A system established in a State under section 10803 of this title to protect and

advocate the rights of individuals with mental illness shall:

(1) have the authority to:

(A) investigate incidents of abuse and neglect of individuals with mental

illness if the incidents are reported to the system or if there is probable

cause to believe that the incidents occurred;

(B) pursue administrative, legal, and other appropriate remedies to ensure the

protection of individuals with mental illness who are receiving care or

treatment in the State; and

(i) was an individual with mental illness; and

(ii) is a resident of the State, but only with respect to matters which occur

within 90 days after the date of the discharge of such individual from a

facility providing care or treatment.

2. 45 CFR 51.7 sets forth the requirements for "Eligibility” for P&A services:

In accordance with section 105(a)(1)(C) of the Act (42 U.S.C. 10805(a)(1)(C)) and

the priorities established by the P&A system governing authority, together with the

advisory council, pursuant to section 105(c)(2)(B) of the Act (42 U.S.C. 10805(c)(2)(B)),

allotments may be used:

(a) To provide protection and advocacy services for:

(1) Individuals with mental illness as defined in 42 U.S.C. 10802(4) and 10805(a),

including persons who report matters which occurred while they were

individuals with mental illness;

(2) Persons who were individuals with mental illness who are residents of the

State, but only with respect to matters which occur within 90 days after the

date of the discharge of such individual from a facility providing care or

treatment; and

(3) Individuals with mental illness in Federal facilities rendering care or treatment

who request representation by the eligible P&A system. Representation may

be requested by an individual with mental illness, or by a legal guardian,

conservator or legal representative.

(b) To provide representation of clients in civil commitment proceedings if the P&A

system is acting on behalf of an eligible individual to obtain judicial review of his

or her commitment in order to appeal or otherwise challenge acts or omissions

which have subjected the individual to abuse or neglect or otherwise violated his

or her rights. This restriction does not prevent a P&A system from representing

clients in commitment or recommitment proceedings using other resources so

long as this representation does not conflict with responsibilities under the Act.

42 U.S.C. 10805(a)(4) and 42 CFR 51.41 and 51.42 grant P&As extensive authority to

gain access to records and facilities in order to investigate abuse and neglect. For

instance, P&As shall have access to the records of an individual with mental illness who

is not competent to consent to their release and who does not have a guardian or

whose guardian is a state agency if the P&A has probable cause to suspect abuse or

neglect or has received a complaint. Also, P&As shall have reasonable unaccompanied

access to facilities and to residents to investigate abuse and neglect or to conduct

monitoring regarding health and safety.

**Background Information regarding incarcerated individuals: The following

excerpt from the Preamble to the PAIMI regulations, 62 F.R. 53552 (October 15, 1997)

gives further guidance on who is eligible for services from the PAIMI program. In

particular, this excerpt focuses on those individuals who are involuntarily confined to a

jail, prison, or some other detention facility.

The Department concurs that a system may assist prisoners or detainees

with mental illness who are maintained within the general prison or jail

population and who may receive mental health services from time to time

as well as those who are maintained in special mental health units....

...The Department would like to clarify some confusion in the statute with

regard to jails and prisons. In section 102(3) of the Act jails and prisons are

clearly listed as facilities. Yet section 102(4) in the definition of "individual

with mental illness," indicates that such a person includes an individual who

has a mental illness and "who is involuntarily confined in a municipal

detention facility for reasons other than serving a sentence resulting from a

conviction for a criminal offense." ...To clarify this ambiguity, the Department

is expanding the definition of "individuals with mental illness" to include

persons in a detention facility, jail or prison which provides overnight care or

treatment, whether they have been convicted of a criminal offense or not,

and whether the facility is municipal, State or Federal....

Authorized: The PAIMI program was first authorized in 1986 with the enactment of the

Protection and Advocacy for Mentally Ill Individuals Act.

Funding: The PAIMI program received $30 million in FY 2001.

Administered by: The PAIMI program is administered by the Center for Mental Health

Services, U.S. Department of Health and Human Services.

1.5 Protection & Advocacy for Individual Rights (PAIR):

Summary of Act

PAIR's Mandate:

To protect the legal and human rights of individuals with disabilities who:

1. need services that are beyond the scope of services authorized to be

provided by the Client Assistance Program (CAP); and

2. are ineligible for protection and advocacy programs funded under the DD

and PAIMI programs.

Eligibility for PAIR:

To be eligible for services from the PAIR program, an individual must:

1. either be ineligible for CAP services or have an issue that falls outside the

scope of services authorized under the Rehabilitation Act of 1973, as

amended, to be provided by CAP; and

2. be ineligible for services from the PADD or PAIMI programs. [The individual

must be INELIGIBLE for the PADD and PAIMI programs, NOT just have

an issue that falls OUTSIDE the scope of the priorities set by the PADD

and PAIMI programs.]

NOTE: To be eligible for services from the PADD program, the individual

must have a "developmental disability" as defined in the DD Act. To be

eligible for services from the PAIMI program, the individual must have a

significant mental illness or emotional impairment and be a resident of a

facility that provides care and treatment and have an issue that arose during

transportation or admission to the facility, during residency, or within 90 days

of discharge. The Children’s Health Act of 2000 provides expanded coverage,

in any year in which the total allotment under the PAIMI Act equals or

exceeds $30 million, to allow PAIMI services for persons with a significant

mental illness or emotional impairment living in the community.

Legal Authority:

Section 509 of the Rehabilitation Act of 1973, as amended

29 USC 794e

34 CFR part 381

Key Definition:

Eligible individual with a disability (34 CFR 381.5(b)):

Eligible individual with a disability means an individual:

(1) Who is ineligible for:

(i) The CAP under section 112 of the Act;

(ii) Protection and advocacy programs under part C of the DDA; and

(iii) Protection and advocacy programs under the PAIMI; or

(2) Who needs protection and advocacy services that are other than the services

authorized under CAP.

Key Provisions:

1. Section 509 of the Rehabilitation Act sets forth the purpose of the PAIR program.

The relevant provision for our purposes is as follows:

(a) Purpose. – The purpose of this section is to support a system in each State to

protect the legal and human rights of individuals with disabilities who:

(1) need services that are beyond the scope of services authorized to be

provided by the client assistance program under section 112; and

(2) are ineligible for protection and advocacy programs under part C of the

Developmental Disabilities Assistance and Bill of Rights Act (42 USC 6041 et

seq.) and the Protection and Advocacy for Mentally Ill Individuals Act of 1986

(42 USC 10801 et seq.).

2. 34 CFR 381.1: This program is designed to support a system in each State to

protect the legal and human rights of eligible individuals with disabilities.

Authorized: The PAIR program became a formula grant program in FY 1994.

Funding: The PAIR program received $14 million in FY 2001.

Administered by: The PAIR program is administered by the Rehabilitation Services

Administration of the Office of Special Education and Rehabilitative Services, U.S.

Department of Education.

1.6 Protection & Advocacy for Beneficiaries of Social

Security: Summary of Act

PABSS's Mandate:

Services provided to disabled beneficiaries pursuant to a payment made under

this section may include –

(1) information and advice about obtaining vocational rehabilitation and

employment services; and

(2) advocacy or other services that a disabled beneficiary may need to secure or

regain gainful employment.

Eligibility for PABSS:

To be eligible for services from the PABSS program, an individual must be a

social security beneficiary eligible for Social Security Disability Benefits (Title II),

Supplemental Security Income (Title XVI), the continuation of Medicare (XVIII), or

Medicaid (XIX) under section 1619 (b) based on disability or blindness.

Scope of Services

1. Provide assistance and individual representation to Social Security

beneficiaries with disabilities who are seeking vocational rehabilitation

services, employment services and other support services from employment

networks and other service providers. Such assistance and representation

may include individual advocacy services and various forms of alternative

dispute resolution, as well as investigating, negotiating, or mediating solutions

to issues that arise in developing, implementing, and amending a

beneficiary’s individual work plan under the Ticket to Work and Self-

Sufficiency program under section 1148 of the Social Security Act.

2. Investigate and review any complaint of improper or inadequate services

provided to a beneficiary with a disability by a service provider, employer or

other entity involved in the beneficiary’s return to work effort.

3. Provide information and referral to Social Security beneficiaries with disabilities

about work incentives and employment, including information on the types of

services and assistance that may be available to assist them in securing or

regaining gainful employment, particularly services and assistance available

through employment networks under the Ticket to Work and Self-Sufficiency

Program. Provide information and technical assistance on work incentives to

individuals, attorneys, governmental agencies, employment networks and other

service providers, and advocacy organizations.

4. Provide consultation to and legal representation on behalf of beneficiaries

with disabilities when such services become necessary to protect the rights of

such beneficiaries. To the extent possible, alternative dispute resolution

procedures should be used.

5. Advocate to identify and correct deficiencies in entities providing vocational

rehabilitation services, employment services and other support services to

beneficiaries with disabilities, including reporting to the program manager on

identified deficiencies related to employment networks and other concerns

related to the Ticket to Work and Self-Sufficiency program.

Conditions of Award:

The following conditions are placed upon the awarding of funds to Protection and

Advocacy (P&A) Systems under grant announcement (SSA-OESP-01-1)

authorized under Section 1150 of the Social Security Act (as added by section

122 of P.L. 106-170, the Ticket to Work and Work Incentives Improvement Act of

1999). The conditions are to ensure that this grant money is to be used solely for

services to SSA’s beneficiaries with disabilities. The grants are made for two

specified purposes: 1) to provide information and advice about obtaining

vocational rehabilitation and employment services, and 2) advocacy or other

services that a beneficiary needs to secure or regain gainful employment.

1. P&A Systems must be available to serve all beneficiaries or individuals within

the State who are eligible for Social Security Disability Benefits (Title II),

Supplemental Security Income (XVI), Medicare (XVIII) or Medicaid (XIX)

based on disability or blindness. They may not expend funds to serve other

than currently eligible beneficiaries.

2. P&A Systems must attend SSA mandated training provided by the SSA

technical assistance contractor. Funds may not be used for additional

external training without prior approval of SSA.

3. P&A Systems must spend grant funds on services in the order of priority listed

with the most important service being listed as first and so on.

4. A P&A System shall exhaust in a timely manner all administrative remedies,

where appropriate, prior to initiating legal action in a Federal or State court.

Such requirement, however, shall not apply with respect to any situation

where the legal rights of any person would be compromised, or to a situation

where no effective administrative remedies exist. If, in pursuing administrative

remedies, the P&A System determines that a matter will not be resolved

within a reasonable time, the P&A System may pursue alternative remedies,

including initiating legal action. A P&A System shall be held to the prevailing

standard of exhaustion of remedies provided under State and Federal law,

and no additional requirements shall be imposed.

5. P&A System funds may not be used for appeals or litigation against the

Social Security Administration, the Commissioner of Social Security or any

official of the Social Security Administration because of decisions on program

issues, (e.g., overpayments, continuing disability reviews, plans for achieving

self support, subsidy, impairment related work expenses, etc.) rendered

against current or former beneficiaries. Funds may be used for litigation

against a Federal government agency only for issues directly related to

securing or regaining employment.

6. Any monies received through a court judgment pursuant to litigation using

SSA Protection and Advocacy to Beneficiaries of Social Security (PABSS)

funds may only be used by the P&A System to further the purpose of the

PABSS program. Such funds may not be paid to contractors for legal

services, or to employees of P&A Systems.

7. SSA must review and approve for technical accuracy prior to publication and

use, all documents intended for public distribution. Such documents may

include a statement that SSA has reviewed the material for technical

accuracy. P&A Systems shall include on all documents intended for public

distribution the following disclaimer: “SSA has reviewed the following

publication for technical accuracy only, however, this should not be

considered an official SSA document.”

Authorized: The authority for these grants is found in section 1150 of the Social

Security Act, as added by section 122 of Public Law 106-170, the Ticket to Work and

Work Incentives Improvement Act of 1999. The Ticket to Work and Work Incentive

Improvement Act which was passed on November 19, 1999 and signed into law by

President Clinton on December 17,1999.

Funding: Grants will be awarded to the P&A system in each of the fifty States as well

as the District of Columbia, Puerto Rico, Guam, American Samoa, the United States

Virgin Islands, the Commonwealth of the Northern Mariana Islands, and the P&A

system for Native Americans. $7,000,000 is to be appropriated for each of the fiscal

years 2000 through 2004. Minimum funding to a state is $100,000.

The PABSS program received $3.5 million in May 2001 (for cooperative grant awards

effective 4/15/01).

Administered by: The PABSS program is administered by the Social Security

Administration.

1.7 Assistive Technology Act of 1998: Statutory Provisions

State Grants for Protection and Advocacy Services Related to Assistive

Technology (PAAT)

29 U.S.C.A. § 3004

Title 2-- Labor

Chapter 31-- Assistive Technology for Individuals with Disabilities

§ 3004

(a) Grants

(1) In general

The Secretary shall make grants under subsection (b) of this section to

protection and advocacy systems in each State for the purpose of enabling

such systems to assist in the acquisition, utilization, or maintenance of assistive

technology devices or assistive technology services for individuals with

disabilities.

(2) General authorities

In providing such assistance, protection and advocacy systems shall have the

same general authorities as the systems are afforded under part C of

subchapter I of chapter 144 of Title 42 (42 U.S.C.A. § 15041 et seq.), as

determined by the Secretary.

(b) Grants

(1) Reservation

For each fiscal year, the Secretary shall reserve such sums as may be

necessary to carry out paragraph (4).

(2) Population basis

From the funds appropriated under section 3007(b) of this title for a fiscal year

and remaining after the reservation required by paragraph (1) has been made,

the Secretary shall make a grant to a protection and advocacy system within

each State in an amount bearing the same ratio to the remaining funds as the

population of the State bears to the population of all States.

(3) Minimums

Subject to the availability of appropriations, the amount of a grant to a

protection and advocacy system under paragraph (2) for a fiscal year shall—

(A) in the case of a protection and advocacy system located in American

Samoa, Guam, the United States Virgin Islands, or the Commonwealth of

the Northern Mariana Islands, not be less than $30,000; and

(B) in the case of a protection and advocacy system located in a State not

described in subparagraph (A), not be less than $50,000.

(4) Payment to the system serving the American Indian Consortium

(A) In general

The Secretary shall make grants to the protection and advocacy system

serving the American Indian Consortium to provide services in accordance

with this section.

(B) Amount of grants

The amount of such grants shall be the same as the amount provided

under paragraph (3)(A).

Notwithstanding any other provision of law, the Secretary shall pay directly to any

protection and advocacy system that complies with this section, the total amount of

the grant made for such system under this section, unless the system provides

otherwise for payment of the grant amount.

(d) Certain States

(1) Grant to lead agency

Notwithstanding any other provision of this section, with respect to a State that,

on November 12, 1998, was described in section 102(f)(1) of the Technology-

Related Assistance for Individuals With Disabilities Act of 1988, the Secretary

shall pay the amount of the grant described in subsection (a) of this section,

and made under subsection (b) of this section, to the lead agency designated

under section 3003(c)(1) of this title for the State.

(2) Distribution of funds

A lead agency to which a grant amount is paid under paragraph (1) shall

determine the manner in which funds made available through the grant will be

allocated among the entities that were providing protection and advocacy

services in that State on the date described in such paragraph, and shall

distribute funds to such entities. In distributing such funds, the lead agency

shall not establish any additional eligibility or procedural requirements for an

entity in the State that supports protection and advocacy services through a

protection and advocacy system. Such an entity shall comply with the same

requirements (including reporting and enforcement requirements) as any other

entity that receives funding under this section.

(3) Application of provisions

Except as provided in this subsection, the provisions of this section shall apply

to the grant in the same manner, and to the same extent, as the provisions

apply to a grant to a system.

(e) Carryover

Any amount paid to an eligible system for a fiscal year under this section that

remains unobligated at the end of such fiscal year shall remain available to such

system for obligation during the subsequent fiscal year. Program income generated

from such amount shall remain available for 2 additional fiscal years after the year

in which such amount was paid to an eligible system and may only be used to

improve the awareness of individuals with disabilities about the accessibility of

assistive technology and assist such individuals in the acquisition, utilization, or

maintenance of assistive technology devices or assistive technology services.

(f) Report to Secretary

An entity that receives a grant under this section shall annually prepare and submit

to the Secretary a report that contains such information as the Secretary may

require, including documentation of the progress of the entity in--

(1) conducting consumer-responsive activities, including activities that will lead to

increased access, for individuals with disabilities, to funding for assistive

technology devices and assistive technology services;

(2) engaging in informal advocacy to assist in securing assistive technology

devices and assistive technology services for individuals with disabilities;

(3) engaging in formal representation for individuals with disabilities to secure

systems change, and in advocacy activities to secure assistive technology

devices and assistive technology services for individuals with disabilities;

(4) developing and implementing strategies to enhance the long-term abilities of

individuals with disabilities and their family members, guardians, advocates,

and authorized representatives to advocate the provision of assistive

technology devices and assistive technology services to which the individuals

with disabilities are entitled under law other than this chapter;

(5) coordinating activities with protection and advocacy services funded through

sources other than this chapter, and coordinating activities with the capacity

building and advocacy activities carried out by the lead agency; and

(6) effectively allocating funds made available under this section to improve the

awareness of individuals with disabilities about the accessibility of assistive

technology and assist such individuals in the acquisition, utilization, or

maintenance of assistive technology devices or assistive technology services.

(g) Reports and updates to State agencies

An entity that receives a grant under this section shall prepare and submit to the

lead agency of the State designated under section 3003(c)(1) of this title the report

described in subsection (f) of this section and quarterly updates concerning the

activities described in subsection (f) of this section.

(h) Coordination

On making a grant under this section to an entity in a State, the Secretary shall

solicit and consider the opinions of the lead agency of the State with respect to

efforts at coordination of activities, collaboration, and promoting outcomes between

the lead agency and the entity that receives the grant under this section.

1.8 Protection & Advocacy for Traumatic Brain Injury

(PATBI): Summary of Act

PATBI's Mandate:

The goal of the Federal traumatic brain injury P&A Program (PATBI) is that all

individuals with TBI and their families will have accessible, available, acceptable

and appropriate services and supports. PATBI may provide:

• information, referrals, and advice;

• individual and family advocacy;

• legal representation; and

• specific assistance in self-advocacy.

Eligibility for PATBI

All individuals with TBI and their families are eligible for PATBI services. The

term “traumatic brain injury” is defined as an insult to the brain, not of

degenerative or congenital nature, caused by an external physical force that may

produce a diminished or altered state of consciousness, which results in an

impairment of cognitive abilities or physical functioning and/or a disturbance of

behavioral or emotional functioning.

Legal Authority for PATBI:

Title XIII of the Children's Health Act of 2000 (PL 106-310) reauthorized the programs of

the TBI Act of 1996 Public Law 104-166. It authorized the Human Resources and

Services Administration to make grants to State P&A Systems.

SEC. 1305. STATE GRANTS FOR PROTECTION AND ADVOCACY SERVICES.

Part E of title XII of the Public Health Service Act (42 U.S.C. 300d-51 et seq.) is

amended by adding at the end the following:

SEC. 1253. STATE GRANTS FOR PROTECTION AND ADVOCACY SERVICES.

(a) IN GENERAL- The Secretary, acting through the Administrator of the Health

Resources and Services Administration (referred to in this section as the

'Administrator'), shall make grants to protection and advocacy systems for the purpose

of enabling such systems to provide services to individuals with traumatic brain injury.

(b) SERVICES PROVIDED- Services provided under this section may include the

provision of—

(1) information, referrals, and advice;

(2) individual and family advocacy;

(3) legal representation; and

(4) specific assistance in self-advocacy.

advocacy system shall submit an application to the Administrator at such time, in

such form and manner, and accompanied by such information and assurances as

the Administrator may require.

(d) APPROPRIATIONS LESS THAN $2,700,000-

(1) IN GENERAL- With respect to any fiscal year in which the amount appropriated

under subsection (i) to carry out this section is less than $2,700,000, the

Administrator shall make grants from such amount to individual protection and

advocacy systems within States to enable such systems to plan for, develop

outreach strategies for, and carry out services authorized under this section for

individuals with traumatic brain injury.

(2) AMOUNT- The amount of each grant provided under paragraph (1) shall be

determined as set forth in paragraphs (2) and (3) of subsection (e).

(e) APPROPRIATIONS OF $2,700,000 OR MORE-

(1) POPULATION BASIS- Except as provided in paragraph (2), with respect to each

fiscal year in which the amount appropriated under subsection (i) to carry out this

section is $2,700,000 or more, the Administrator shall make a grant to a

protection and advocacy system within each State.

(2) AMOUNT- The amount of a grant provided to a system under paragraph (1) shall

be equal to an amount bearing the same ratio to the total amount appropriated

for the fiscal year involved under subsection (i) as the population of the State in

which the grantee is located bears to the population of all States.

(3) MINIMUMS- Subject to the availability of appropriations, the amount of a grant a

protection and advocacy system under paragraph (1) for a fiscal year shall-

(A) in the case of a protection and advocacy system located in American Samoa,

Guam, the United States Virgin Islands, or the Commonwealth of the

Northern Mariana Islands, and the protection and advocacy system serving

the American Indian consortium, not be less than $20,000; and

(B) in the case of a protection and advocacy system in a State not described in

subparagraph (A), not be less than $50,000.

(4) INFLATION ADJUSTMENT- For each fiscal year in which the total amount

appropriated under subsection (i) to carry out this section is $5,000,000 or more,

and such appropriated amount exceeds the total amount appropriated to carry

out this section in the preceding fiscal year, the Administrator shall increase each

of the minimum grants amount described in subparagraphs (A) and (B) of

paragraph (3) by a percentage equal to the percentage increase in the total

amount appropriated under subsection (i) to carry out this section between the

preceding fiscal year and the fiscal year involved.

(f) CARRYOVER- Any amount paid to a protection and advocacy system that serves a

State or the American Indian consortium for a fiscal year under this section that

remains unobligated at the end of such fiscal year shall remain available to such

system for obligation during the next fiscal year for the purposes for which such

amount was originally provided.

(g) DIRECT PAYMENT- Notwithstanding any other provision of law, the Administrator

shall pay directly to any protection and advocacy system that complies with the

provisions of this section, the total amount of the grant for such system, unless the

system provides otherwise for such payment.

(h) ANNUAL REPORT- Each protection and advocacy system that receives a payment

under this section shall submit an annual report to the Administrator concerning the

services provided to individuals with traumatic brain injury by such system.

(i) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated

to carry out this section $5,000,000 for fiscal year 2001, and such sums as may be

necessary for each the fiscal years 2002 through 2005.

(j) DEFINITIONS- In this section:

(1) AMERICAN INDIAN CONSORTIUM- The term `American Indian consortium'

means a consortium established under part C of the Developmental Disabilities

Assistance Bill of Rights Act (42 U.S.C. 6042 et seq.).

(2) PROTECTION AND ADVOCACY SYSTEM- The term `protection and advocacy

system' means a protection and advocacy system established under part C of the

Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6042 et

seq.).

(3) STATE- The term `State', unless otherwise specified, means the several States

of the United States, the District of Columbia, the Commonwealth of Puerto Rico,

the United States Virgin Islands, Guam, American Samoa, and the

Commonwealth of the Northern Mariana Islands.'.

1.9 Protection & Advocacy for Voting Access (PAVA):

Statutory Provisions

HAVA authorizes P&As to "ensure the full participation in the electoral process for

individuals with disabilities, including registering to vote, casting a vote and accessing

polling places." The P&As’ unique role under the Help America Vote Act (HAVA)

provides them the opportunity to lend their expertise to voters, advocates, as well as

election officials who are trying to comply with HAVA and other voting statutes. The

P&As’ work under HAVA is referred to as PAVA (Protection and Advocacy for Voting

Access).

U.S.C. § 15461

PART 5—PROTECTION AND ADVOCACY SYSTEMS

SEC. 291. PAYMENTS FOR PROTECTION AND ADVOCACY SYSTEMS.

(a) IN GENERAL.—In addition to any other payments made under this subtitle, the

Secretary of health and Human Services shall pay the protection and advocacy

system (as defined in section 102 of the Developmental Disabilities Assistance and

Bill of Rights Act of 2000 (42 U.S.C.15002) of each State to ensure full participation

in the electoral process for individuals with disabilities, including registering to vote,

casting a vote and accessing polling places. In providing such services, protection

and advocacy systems shall have the same general authorities as they are afforded

under subtitle C of title I of the Developmental Disabilities Assistance and Bill of

Rights Act of 2000 (42 U.S.C. 15041 et seq.).

(b) MINIMUM GRANT AMOUNT.—The minimum amount of each grant to a protection

and advocacy system shall be determined and allocated as set forth in subsections

(c)(3), (c)(4), (c)(5), (e), and (g) of section 509 of the Rehabilitation Act of 1973 (29

U.S.C. 794e), except that the amount of the grants to systems referred to in

subsections (c)(3)(B) and (c)(4)(B) of that section shall be not less than $70,000 and

$35,000, respectively.

(1) IN GENERAL.—Not later than 90 days after the date on which the initial

appropriation of funds for a fiscal year is made pursuant to the authorization

under section 292, the Secretary shall set aside 7 percent of the amount

appropriated under such section and use such portion to make payments to

eligible entities to provide training and technical assistance with respect to the

activities carried out under this section.

(2) USE OF FUNDS.—A recipient of a payment under this subsection may use the

payment to support training in the use of voting systems and technologies, and to

demonstrate and evaluate the use of such systems and technologies, by

individuals with disabilities (including blindness) in order to assess the availability

and use of such systems and technologies for such individuals. At least one of

the recipients under this subsection shall use the payment to provide training and

technical assistance for nonvisual access.

(3) ELIGIBILITY.—An entity is eligible to receive a payment under this subsection if

the entity—

(A) is a public or private nonprofit entity with demonstrated experience in voting

issues for individuals with disabilities;

(B) is governed by a board with respect to which the majority of its members are

individuals with disabilities or family members of such individuals or

individuals who are blind; and

containing such information as the Secretary may require.

SEC. 292. AUTHORIZATION OF APPROPRIATIONS.

(a) IN GENERAL.—In addition to any other amounts authorized to be appropriated

under this subtitle, there are authorized to be appropriated $10,000,000 for each of

the fiscal years 2003, 2004, 2005, and 2006, and for each subsequent fiscal year

such sums as may be necessary, for the purpose of making payments under section

291(a); except that none of the funds provided by this subsection shall be used to

initiate or otherwise participate in any litigation related to election-related disability

access, notwithstanding the general authorities that the protection and advocacy

systems are otherwise afforded under subtitle C of title I of the Developmental

Disabilities Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15041 et seq.).

(b) AVAILABILITY.—Any amounts appropriated pursuant to the authority of this section

shall remain available until expended. 42 USC 15462.

A copy of the entire Help America Vote Act of 2002 is available from the Department of

Justice at: www.usdoj.gov/crt/voting/hava/hava.html.

TAB 2: Client Services

2.1 Required Policies and Procedures

2.1.1 Client Confidentiality Procedures

2.1.2 Client Grievance Procedure

2.1.3 Process for Reporting Client Grievance Procedures to Board, Advisory

Council and Federal Authority

2.2 Strongly Recommended Policies and Procedures

Functions of the P&A

2.2.1 Outreach Plan

2.2.2 Intake and Referral Procedure, Including Established Case Acceptance

Criteria

2.2.3 Ability to investigate incidents of Abuse and Neglect of Individuals with

Disability

2.2.4 Demonstrated Ability to Pursue All Remedies Available to the P&A

Quality of Practice

2.2.5 Case Management Protocols

2.2.6 Training

2.2.7 Technology

Ethics Issues

2.2.8 Client Retainer Agreement

2.2.9 Attorney Referral

2.2.10 Client Conflicts

2.2.11 Unauthorized Practice of Law

2.2.12 Liability Coverage/Indemnity

2.2.13 Client Trust Fund

2.2.14 Co-Counsel Agreements

2.2.15 Client Direction/Communication

Introduction

All P&A staff must comply with basic professional responsibilities designed to provide

protection to the P&A’s clients, and P&As should develop policies to assist staff in

accomplishing this. There are also policies mandated by or recommended under the

P&A statutes.

The guidelines that follow are offered to strengthen the activities of each P&A; to assist

programs in supporting the P&A lawyer and advocate in meeting professional

obligations; and to assist those staff members in providing high-quality legal services to

clients of the P&A System. The purpose of this guide is to provide practice and

performance criteria to which the P&A System should aspire.

Each program should review these guidelines and adapt them to meet the program’s

individual structure and needs. Some programs may wish to adopt more specific

standards for particular subject areas.

Additional Resources

• Best Practices for Law Schools For Preparing Students For Practice (Center on

Professionalism, Univ. S. Carolina Law School, 8-2004)

http://professionalism.law.sc.edu/news.cfm#CLEA

• ABA Standards for Providers of Legal Services to the Poor (ABA 1986)

www.ain.lsc.gov/ainboard/RefMat/eval_guide/appendix_2.htm

• Charn & Youells, Quality Matrix (LSC Equal Justice Winter 2004)

www.ejm.lsc.gov/Winter2004/quality2.htm

• Houseman, Past And Current Efforts To Ensure Quality Within The Civil Legal

Assistance Community (Center for Law and Social Policy 1-12-2004)

www.lri.lsc.gov/pdf/04/04houseman_quality.pdf

• ABA Model Rules www.abanet.org/cpr/mrpc/mrpc_toc.html (herein “Model

Rules”)

• ABA Model Code www.abanet.org/cpr/ethics/mcpr.pdf (herein “Model Code”)

• Guidelines for Practice by P&A attorneys, (NDRN August 2005),

www.ndrn.org/tasc/legal/sept_2005_FINALguidelines-posted.pdf

These guidelines should not be construed to give rise to a legal cause of action, nor

are they intended to create a presumption that a P&A lawyer or program breached a

legal duty owed to a client or a funding source.

2.1 Required Policies and Procedures

2.1.1 Confidentiality and Privilege

P&A clients have a right under both state and federal law to confidential treatment of

their files. Certain communications between attorneys and their clients or prospective

clients are privileged, and cannot be disclosed by the attorney. State ethics law creates

a broad duty of confidentiality to the attorney’s clients or prospective clients. The rights

of people with disabilities, particularly those who have a guardian or other legally

appointed representative, are often not fully realized or understood in interpretations of

state law regarding attorney-client privileges, which can be both statutorily and

constitutionally based.

P&As’ policies should recognize the confidentiality provisions of the federal P&A

statutes and define the relationship between those laws and any state law, as well as

providing legal staff with guidance on interpretation of privilege laws to protect

information about the P&A lawyer’s client. Policies should be written to provide the

greatest protection possible for client confidentiality.

In addition to the requirements of the P&A statutes and rules, P&A policies on release of

records should recognize that a file may contain privileged communications between the

attorney and client, and should limit release accordingly. The policy should provide for

full disclosure to the client on the possible waiver of privilege should the material be

shared with third parties.

Federal reviews of client files present particular difficulties for P&As. These problems are

compounded because some program statutes address this issue while others relegate the

question to regulations.

Compare

PAIMI regulations at 42 C.F.R §51.45(c) with PADD statute at

42 U.S.C. § 15044(c) and CAP at 29 U.S.C. § 732 (g)(4).

P&A privilege practice point: Who is within the privilege? The attorney-client

privilege generally applies to private communications between the client and the

lawyer related to the matter on which the client is represented. An individual’s

communication with P&A staff member who is not supervised by a lawyer is

confidential but may not be privileged. Some state enabling statutes extend a

privilege to communication with non-lawyer P&A staff. P&A policies should reflect

state practice regarding privilege.

P&A privilege practice point: Waiver of privilege? All states require the lawyer to

keep confidences and to protect the privilege, unless the client waives the privilege

after full disclosure. P&A policies should recognize this, and address situations

where non-lawyer third parties may seek to review legal confidences. An example of

this would be where a P&A governing authority seeks to examine the client file to

review a client

rievance.

Resources

• Model Rules 1.6, www.abanet.org/cpr/mrpc/mrpc_toc.html

• Model Code DR 4-101, www.abanet.org/cpr/ethics/mcpr.pdf

• Federal / State Rules of Evidence

• State privilege statutes

• Sample confidentiality policies are at: www.ndrn.org/TASC/legal/

PA_Practice_Guidelines_Combined_Appendices.pdf (Appendix A and B)

2.1.2 Client Grievance Procedure

Effective communication with clients or potential clients is essential. Under federal

mandates, P&As should have a policy describing an individual's rights to appeal (grieve)

within the P&A system.

When describing an individual's rights to appeal (grieve) within the P&A System, it is

helpful for the P&A to offer the reason for declining representation in writing. Some

reasons may be that the current year's priorities do not cover the issue for which

representation is requested; the agency does not currently have the personnel or

resources to represent the individual; or representing the potential client would create a

conflict of interest.

Attached as appendices are a model grievance policy summary sheet, a model

grievance policy, a model policy on notice of grievance rights, and a model grievance

form.

2.1.3 Process for Reporting Client Grievance Procedures to

Board, Advisory Council, and Federal Authority

See forms noted in Section 2.1.2. Grievances should be tracked via a grievance log,

both to ensure timely responses and to demonstrate compliance with federal regulations

requiring a grievance procedure. See sample grievance log for administrative staff at

Appendix F.

Under the PAIMI program, following any final staff review, grievances may be appealed

to the governing authority (customarily the board of directors). In cases where the

governing authority is the director of the P&A, the final review and determination is

made by a supervisor or appointed board or committee. 42 CFR sec. 51.25(b)(1). Also

under the PAIMI regulations, grievances should be reported at least annually to the

governing authority and the PAIMI Advisory Council, 42 CFR sec. 51.25(b)(2), in a form

P&A practice point: Disclosure of records – P&A statutes and regulations provide

strict conditions for release of client records. P&A policies should also reflect state

law on attorney-client confidentiality and privilege, and ensure that confidences and

privile

es are not improperl

disclosed.

that protects client confidentiality. See Tab 4, Final Client Grievance Panel, for more

information.

2.2 Strongly Recommended Policies and Procedures

Functions of the P&A

2.2.1 Outreach Plan

The P&A should prepare and implement an outreach plan to inform people with

disabilities, their families and the advocacy community of their available services and

priorities for case acceptance.

One important aspect of an outreach plan is monitoring of facilities in which people with

disabilities receive services. P&A staff should implement a schedule to visit facilities for

people with psychiatric disabilities or developmental disabilities, including state

hospitals, community residences, and prisons. P&A staff may use a variety of advocacy

and problem-solving strategies when assisting residents.

Another critical aspect of an outreach plan is communication with groups serving people

with particular disabilities, (e.g., traumatic brain injury) and regular contact with

community-based advocates serving these communities.

In developing an outreach plan, the P&A should be particularly mindful of issues of

accessibility, language barriers, and cultural competence. The outreach plan should

also set forth specific methods for reaching people with disabilities in traditionally

underserved communities.

2.2.2 Intake and Referral Procedure, Including Established

Case Acceptance Criteria

Currently, it is estimated that the majority of P&As dedicate 25 percent of their

resources to providing information and referral (I&R). I&R can entail a wide range of

activities, including the provision of brief written or oral information, such as information

about the P&A or information about additional programs and resources external to the

P&A. I&R may also include some direct client assistance, such as providing a client with

information about deadlines for filing complaints. I&R can be provided in the form of

phone, mail, e-mail, face-to-face contact, or training.

While P&As provide I&R in unique ways, it is widely recognized that I&R is critical to the

success of all agencies dedicated to protecting the rights of individuals with disabilities.

In addition to providing P&As with data regarding community needs, I&R services allow

P&As to serve a large number of clients in an effective and efficient manner, while

freeing up resources for direct representation and systemic reform work.

P&As should establish policies and procedures to handle I&R, as well as policies and

procedures that govern case acceptance.

Resources

• TASC Guidelines

for the Provision of Information, Referral, and Short-Term

Assistance Provided by a P&A, July 2005

2.2.3 Ability to Investigate Incidents of Abuse and Neglect of

Individuals with Disability

One of the core responsibilities of the P&A is to investigate incidents of abuse and neglect

of individuals with disabilities; to do so, P&As have broad statutory authority to access

individuals with disabilities – and their records – in public and private facilities and

programs that render care or treatment. A full discussion of that function is beyond the

scope of this chapter. The following resource contains important and useful information.

Resources

• TASC Protection and Advocacy System Access Manual: Legal Authority to

Access Facilities Serving Persons with Disabilities and Records in order to

Investigate Incidents of Abuse and Neglect, Third Edition 2007

2.2.4 Demonstrated Ability to Pursue All Remedies Available

to the P&A

The P&A must have adequate resources and staffing to pursue “administrative, legal, or

other appropriate remedies” on behalf of people with disabilities. See, e.g., 42 C.F.R. 51.31.

This includes the ability to pursue administrative and legislative advocacy, as well as the

ability to bring legal actions in state and federal court, in both individual and systemic cases.

To foster effective individual and systemic advocacy, the P&A should budget a litigation

fund to cover expenses of depositions, expert witnesses, and other litigation costs.

Quality of Practice

2.2.5 Case Management Protocols

All P&As have case management policies governing their intake and case handlers.

These issues apply specifically to legal case work.

Resources

 Compilation of Sample P&A Case Management Forms (TASC), January 2001

Case Loads

Disciplinary rules require that the lawyer represent the client zealously and competently. A

case load that is too large compromises both. The P&A should have policies in place to

ensure that cases and case loads are effectively managed and appropriate supervision is

provided to the legal staff. Of particular concern are case loads and appropriate supervision

of managing attorneys. The policy may differentiate between active and inactive cases.

Some programs use a weighted system which, for example, gives more weight to complex

litigation and less to counsel and professional assistance in calculating the case load.

Resources

 Model Rules 5.1, 5.2, 5.3 ABA Model Rules,

www.abanet.org/cpr/mrpc/mrpc_toc.html

 A sample policy is available at www.ndrn.org/TASC/legal/

PA_Practice_Guidelines_Combined_Appendices.pdf (Appendix H)

Appeal Rights

The P&A’s policies should also provide a mechanism to review cases that are ripe for

appeal to determine if the P&A will offer representation to the client. Among the factors

the P&A may wish to consider in deciding whether to represent the client on appeal are

strength of record; programmatic priorities and staff resources; and potential impact on

other clients of the P&A in the state or the federal circuit.

Record Retention

The P&A policy on record retention should address the issue of the statute of limitations

for filing attorney malpractice claims, including any tolling or savings statutes, and

issues of attorney-client privilege. The P&A should follow the recommended policies of

the state board of bar overseers regarding the length of time for retaining records and

the protocols for returning and disposing of client records.

2.2.6 Training

Continuing Legal Education

Competent representation requires on-going professional learning, both formal and

informal. Many jurisdictions now require continuing legal education (CLE). The P&A

should have policies to ensure that legal staff receives mandated or otherwise

appropriate continuing education. These policies should also include paralegal and

other professional support staff.

A P&A’s policies should include:

• provision of CLE as part of a training program, including a reasonable training

budget for CLE related to disability law;

• participation in listservs, committees (local and TASC), and bar activities; and

• support of admission to federal district and appellate courts.

P&A Required Training

P&A lawyers who work in specific areas may need to receive specific training. For

example, PAIMI regulations require that staff who conduct abuse and neglect

investigations must be trained in interviewing and other skills. 42 C.F.R. § 51.27. See

Iowa P&A v. Tanager Place, 2004 U.S. Dist. LEXIS 20009 (N.D. Iowa 2004).

Resources

 Model Rules, Rule 1.1, Comment 6, www.abanet.org/cpr/mrpc/mrpc_toc.html

2.2.7 Technology

The P&A should provide appropriate technology and technical support to legal staff. The

P&A’s technology policies should comport with legal ethics. Appropriate office

technology may include:

• Database for clients, client information, contact information of other persons,

case activity, and projects, capable of tracking time and cases based on

federal reporting requirements;

• Conflict checker (for both opposing parties and adverse witnesses);

• Case management software – preferably integrated with email, word

processing, and full text word search capability – with timekeeping for

attorneys’ fees in appropriate cases;

• Document management and case planning tools for complex cases and

document assembly software for routine pleading, correspondence, and

forms (e.g., HotDocs);

• Individual diary or tickler systems to track filing deadlines;

• Central calendaring to track electronically hearing dates and location of staff;

• Secure email communications (encryption if required by state ethics

requirements);

• Capability to view dockets of federal cases (PACER login and password) and

federal e-filing capability (CM/ECF log in and password);

• Legal research tools (e.g., Westlaw, Lexis);

• Listserv resources.

Technology should be compatible with screen readers that make electronic documents

and websites accessible to individuals who are blind or have low vision.

Resources:

▪ See “Accessibility of Electronic Documents and Websites” in Information and

Referral/ Short-Term Assistance: Organizing Your Services to Meet Client Needs

- Volume II, Chapter 3, available at www.ndrn.org/TASC/pub/anuals/IR/ch3.pdf

Ethics Issues

2.2.8 Client Retainer Agreement

Written retainers are required in some jurisdictions and encouraged in others. The P&A

should have policies and standard retainers that set out the terms of the relationship

between the P&A lawyers and the client. The retainer should disclose that the attorney

is paid by a third party, but will exercise independent judgment on behalf of the client.

The P&A may wish to use the retainer to obtain an assignment of any statutory

attorneys’ fees that are awarded in the case.

If a retainer is not used, the P&A should have a policy requiring a letter confirming

representation, which contains many of the same elements as would be in a retainer.

Retainer agreements and/or letters should describe the scope of representation. P&A

policies may recognize that the P&A can limit the scope of representation so long as

this is clearly conveyed to the client. For example, the P&A may represent people only

through the administrative appeal level for certain causes of action and not take cases

to court without further assessment. Or, the client may have a Medicaid case regarding

the number of hours of in home care the client is entitled to receive. That client may also

have some issues with his or her landlord for which representation is requested.

However, the latter issue may be outside the scope of the P&A's work and, therefore,

not be undertaken. This should be clearly explained. In addition, when requests for

services for several issues are made, the client must be clearly informed about what

issues the P&A will help with and which issues it will not, and the extent of

representation that will be provided.

P&A practice point: What if the client can’t read? Many P&A clients will be unable

to read a written retainer. For others, alternative media will be necessary. The P&A

lawyer must exercise professional judgment in deciding not to use a written retainer,

but in any event should document carefully in the client file that the elements of the

retainer were discussed and that the client acce

ted the terms.

P&A practice point: Scope of attorney-client relationship – A program may use a

limiting retainer to obtain agreement with a client on the scope of representation.

However, communication regarding other legal matters between the attorney and

client would still be within the context of the attorney client relationship for the

purpose of conflicts of interest and privilege.

Sample agreements for Short Term Assistance, Regular Assistance, and a Litigation

Retainer from California, Oregon, and the Center for Public Representation are attached

as Appendices G-J.

Resources

 Model Rule 1.5(b), www.abanet.org/cpr/mrpc/mrpc_toc.html

 “Retainer Agreements” in Compilation of Sample P&A Case Management Forms

(TASC) January 2001

2.2.9 Attorney Referral

Ethics rules regarding fee splitting and referral fees paid by attorneys vary by

jurisdiction. State rules on these practices should be consulted before a P&A decides to

adopt policies in these areas.

2.2.10 Client Conflicts

Client conflicts do occur, and the P&A should have a mechanism in place to identify

conflicts between different clients, clients and witnesses, clients and the P&A, or clients

and staff members. A policy should be in place to address conflicts after they are

identified.

The P&A’s policy should include:

• Definition of who a “client” is for the purpose of conflict checks;

• A mechanism for identifying potential conflicts, followed by legal staff review to

determine if the conflict precludes acceptance of the newer case; and

• Where appropriate and permitted by rule, an opportunity for full disclosure and

written waiver.

P&As should consider using computer software to initially check conflicts (see Section

2.2.7).

P&A practice point: Who is the “client”? A conflict of interest can exist only in

situations where an attorney-client relationship has been formed between the lawyer

and the client. The legal interests of a person with a disability who is not a “client” of

the P&A do not create a conflict of interest for the lawyer, even though there may be

a factual or policy conflict between the interests of the P&A client and those of the

other person with a disability. For example, if a lawyer can advance a client to the top

of a service wait list, the other people with disabilities on the list are disadvantaged.

The duty of zealous advocacy for the client requires that this interest be advanced by

the lawyer. P&As may wish to consider these types of issues at the time of case

acceptance and, in so doing, seek to avoid this type of policy conflict.

Resources

 Model Rules 1.7 - 1.10, www.abanet.org/cpr/mrpc/mrpc_toc.html

 Model Code DR 5-105, www.abanet.org/cpr/ethics/mcpr.pdf

 www.ndrn.org/TASC/legal/PA_Practice_Guidelines_Combined_Appendices.pdf

(Sample conflict policy at Appendix A).

2.2.11 Unauthorized Practice of Law

Lawyers may not assist others in the unauthorized practice of law. P&A policies should

reflect this mandate, and the P&A may wish to speak directly to the roles of non-lawyer

advocates in assisting clients. Additionally, policies should delineate lines of authority if

legal staff is expected to supervise advocates or paralegals.

Resources

 Model Rule 5.3, 5.5, www.abanet.org/cpr/mrpc/mrpc_toc.html

 See “Accessibility of Electronic Documents and Websites” in Information and

Referral/ Short-Term Assistance: Organizing Your Services to Meet Client Needs

- Volume II, Chapter 7, available at www.ndrn.org/TASC/pub/manuals/IR/ch7.pdf

 See sample policy at: www.ndrn.org/TASC/legal/

PA_Practice_Guidelines_Combined_Appendices.pdf

. (Appendix C)

P&A practice point: When is advocacy the practice of law? P&As in many

states have developed an experienced and skilled corps of non-lawyer advocates

who assist clients to address rights violations. Advocates conduct abuse and

neglect investigations, provide rights information to clients, and assist clients in self

advocacy. Because there is no universally accepted definition of “practice of law,”

each P&A should develop guidelines for non-lawyer advocates based on its own

state’s definition of the unauthorized practice law. The policy should specify the

scope of client assistance that an advocate can provide, either when acting

independently, or when consulting with or being supervised by a lawyer.

P&A practice point: When is the caller a client? P&As are required by their funding

sources to categorize the type of service given to a caller, but these categories do not

necessarily determine the caller’s rights under state ethics rules. A person with a

disability who calls the P&A seeking advice or representation but who is provided

“short term assistance” for P&A reporting purposes may still be a “client” for purposes

of conflict of interest and attorney-client confidentiality (see Section 2.1.1). Program

policies should reflect the practice in the state regarding formation of the attorney-client

relationship as it relates to both conflict of interest and client confidences.

2.2.12 Liability Coverage / Indemnity

Some states require that the lawyer maintain liability insurance; others require notice to

a client if no liability insurance is maintained. All P&As should have appropriate

malpractice insurance or a process for indemnification and defense of malpractice

claims against the legal staff.

These policies may be broad enough to cover volunteer lawyers or non-lawyer

advocates and other P&A staff who work directly on client cases. P&As should also

consider policies that provide for coverage of disciplinary proceedings against the

lawyer.

2.2.13 Client Trust Fund

P&A policies should recognize that a lawyer must manage client funds separately from

the funds of the P&A. Ideally a client trust fund will be maintained. In many states,

individual lawyers have reporting responsibilities regarding an Interest on Lawyers’

Trust Account (IOLTA) requirement. If a trust fund is not available, policies and training

on mechanisms for keeping funds separate may be developed.

Resources

 Model Rule 1.15, www.abanet.org/cpr/mrpc/mrpc_toc.html

2.2.14 Co-Counsel Agreements

The P&A may wish to develop a policy and model agreement for co-counseling with

private counsel or other nonprofit law firms. The agreement should specify final

authority for decision making in the case; obligations related to costs of the case; and

matters related to settlement of the case and awards of attorneys’ fees. A sample

agreement is attached as Appendix K.

State agency P&As may have restrictions on purchase of insurance, but may have an indemnification or

immunity process set out in state law.

P&A practice point: Client awards, public benefits and income taxes. Awards

to clients, either through a judgment or settlement, are routinely processed

through lawyer trust accounts. The settlement is then divided between the money

owed to the client and the attorneys’ fees, if any. P&A lawyers who obtain

damages for clients should be knowledgeable regarding the tax and public

benefits impact of settlement or judgments for their clients. Statutory attorneys’

fees can pose a particularly difficult situation, although recent legislation passed

Con

ress

rovided some relief for P&A clients in those circumstances.

2.2.15 Client Direction/Communication

The P&A should have policies in place to ensure that cases are client-directed and that

effective client communication takes place. Both attorney-client ethics and federal

regulations provide resources in this area.

A. Direction of Case by Client

Most P&As have as part of their mission or vision statements the general principle that

persons with disabilities should direct the P&A’s advocacy efforts. Applying this general

principle to specific circumstances where an individual with a disability is formally a

client may require further examination and discussion in the P&A’s policies. A common

example would be where a child with a disability is represented at due process hearings

by the P&A’s lawyers, but the child’s parents are the nominal party and also have an

attorney-client relationship with the P&A lawyer.

As a general rule, lawyers must both obtain and then follow direction from the client.

Notable exceptions are when the client wants to pursue a matter that is frivolous or

seeks to maintain litigation that is out of spite or for another improper purpose.

P&A practice point: When representing children, who signs the retainer?

Representation of children with disabilities presents many ethical problems because

of their lack of legal capacity under most state laws, and because the authority to

enforce their rights is often lodged with the parent or guardian. At the same time,

children do have a right to have independent counsel and to direct that counsel in

many situations. P&As should develop policies that recognize this differentiation.

Additionally, P&As may want to obtain retainers from both the child and the

responsible adult, defining the legal relationship with both, recognizing the potential

for a conflict of interest, and specifying what action the P&A will take if a conflict

develops.

P&A practice point: Can a P&A share with co-counsel confidential information

gained through its access authority? P&As have extraordinary access to client

records, and this access sometimes allows the P&A lawyer to obtain documents that

are confidential outside of the discovery process. Co-counsel agreements should

address how this information will (or will not) be shared. For individual (non-class)

cases, client consent to sharing of information can be sought. For class action cases,

counsel can seek a protective order within the litigation governing use and

confidentialit

of the information.

Except for lesser procedural matters, this rule applies to all aspects of representation.

For example, in an individual case

the client would have exclusive authority, after being

fully advised by the lawyer, to accept or reject a settlement proposal, even if that

proposal is a substantial compromise of the relief sought at the beginning of the case. In

this situation, the client is uniquely situated and is given complete authority to determine

the amount of legal risk he or she will accept.

Special problems can arise when the client’s ability to provide adequate direction is

limited for whatever reason, or the client has a legally appointed representative. Both

the American Bar Association’s Model Code and Model Rules require the lawyer to

maintain as ordinary or typical a relationship with the client as is possible under the

circumstances. The P&A should develop legal staff guidelines for circumstances where

a typical relationship is not possible. This would include, for example, guidelines for

when the P&A will proceed as next friend on behalf of a client who has a representative

or lacks capacity to act in his or her own right.

Class actions present different circumstances and the individual plaintiff as class representative

has a different role than in non-class cases. There is also significant judicial oversight of class

actions, including the settlement phase.

P&A practice point: Client outcome at odds with programmatic priorities P&As

base their case acceptance decisions on priorities developed through a process set

out in federal law. Clients will sometimes choose to resolve their case through

settlement, and the outcome could vary significantly from the reason the P&A initially

agreed to provide representation in the case. For example, a P&A could have a full

inclusion / community integration priority for its PADD program, based on the

preferences for these outcomes stated in the IDEA, DD Act, and ADA regulations. To

settle an IDEA due process complaint, however, a parent may agree to obtain

necessary services in a school placement that is less inclusive than originally sought,

or an adult client for whom litigation has been filed could agree to move to an

institution to receive needed services. In both cases, it is the client who is entitled to

make this choice after receiving the advice of his or her lawyers.

P&A practice point: What action should the P&A take if a client cannot make or

express a meaningful choice, or consent, or the legal representative is not

available? Because of the mandate provided by federal law, P&As sometimes act

either in their own name or as next friend for a client with a disability who is unable to

provide direction in the case. The P&A’s policies should identify the basis for its

actions in these types of cases, and provide guidelines that safeguard and advance

the human, legal, and civil rights of the person with the disability in a way that does

not limit the client's options.

Resources

 Model Rule 1.14 www.abanet.org/cpr/mrpc/mrpc_toc.html

 ABA Family Law Section Standards of Practice for Lawyers Representing

Children in Custody Cases

 State Rules of Professional Conduct

 Model Rules of Civil Procedure 17

 State and federal case law regarding variable or intermediate degrees of

competence or capacity to make decisions (See, U.S. v. Charters, 829 F.2d 479

(4th Cir. 1987).

Tertiary Sources:

 ARCH: A Legal Resource Centre for Persons with Disabilities, Notes on Capacity

to Instruct Counsel www.archlegalclinic.ca/publications/disorders/

A73_2003_002616/01_capacity/.

 Consent Handbook for Self-Advocates and Support Staff, Cathy Terrill (1999),

available through AAMR web page, www.aamr.org.

B. Independent Professional Judgment

Lawyers must take direction from the client, not from a third party responsible for

payment. Full disclosure of the third-party payment should be provided to the client (see

retainer, below).

There are occasions when the P&A is the lawyer’s client. In those instances, the P&A

should have guidelines for designating who – usually the Executive Director – makes

decisions as the client. However, an Executive Director who is an attorney should not

engage in the practice of law on behalf of his or her own P&A. The attorneys

P&A practice point: Who supervises the lawyer? Complicated relationships can

arise because of the nature of governance of P&As, including non-lawyer board

members and administrators. P&A policies should assist the P&A lawyer in

maintaining independent professional judgment at the direction and on behalf of the

client, and in preserving confidences except as permitted by relevant ethics rules and

privilege statutes. At the same time, the policies should recognize that a lawyer’s

work may, under the relevant ethics opinions, be supervised by other lawyers.

P&A practice point: Can the client have capacity to make one type of decision,

but not another? There are times when individuals with disabilities have variable

capacity – the capacity to make some kinds of decisions but not others. In all cases

where capacity of a client to make decisions is or may be at issue, the P&A should

have guidelines to assist legal staff in making the determination of the client’s

capacity to consent or make decisions. Guidelines should also require that legal staff

document carefully how a decision regarding client capacity was made.

representing the agency must exercise independent professional judgment in

prosecuting the case.

Resources

 Model Rules 1.8(f), 5.4, www.abanet.org/cpr/mrpc/mrpc_toc.html

 American Bar Association Committee on Ethics and Professional Responsibility

Formal Opinion 334 (1974)

C. Cultural Competence

Resources

 P&A Ethics Consultant Group – A Resource for P&A Attorneys

www.ndrn.org/TASC/legal/prot-consulting0706.pdf

 Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers,

8 Clin. L. Rev. 33 (2001).

P&A practice point: When can / should the P&A proceed in its own name? P&A

lawyers are called on to represent clients who may not have capacity to proceed in

their own name. Under court rules, the P&A can proceed as “next friend” for the

client in some cases if the client does not have a representative who can sue on his

or her behalf or whose representative is acting in conflict with the client’s legal

interests. There is also a substantial body of authority on when and whether the P&A

has standing to sue in its own name to protect a client’s interests, although some

authorities conflict. For the lawyer, not having a client to direct the case, or having

the P&A as the nominal party when the person with a disability is the “client,” can

present ethical questions, not the least of which is who directs the case. Having the

P&A as a party also presents practical problems of costs and discovery that do not

occur when the client is the party. P&A policies should reflect an understanding of

these issues.

P&A practice point: Cultural sensitivity and competence – P&A lawyers are

called on to represent individuals from diverse cultural backgrounds. A client’s

disability may also affect the communication with the lawyer. P&As are required in

both cases to take steps to provide effective communications with the client. A

substantial body of material on these matters is available to the P&A from TASC, and

the P&A should provide training and assistance to legal staff on these matters.

TAB 3: Fiscal and Administration

3.1 Preface

3.1.1 Accounting Manual

3.2 Financial Reporting Requirements

3.2.1 Financial Status Report Form SF 269

3.2.2 PMS Form 272

3.3 Receiving Sources of Funds

3.4 Budget Process and Reserve Policy

3.5 Annual Audit Policy

3.6 Program Income Policy

3.6.1 Use of Program Income

3.7 Payroll Procedures

3.8 Credit Card Policy

3.9 Risk Management Policy

3.10 Employee Grievance Procedures

3.11 Record Retention Policy

3.12 In-Kind Contributions Policy

3.13 Conflict of Interest Policy

3.14 Affirmative Action Policy

3.14.1 Equal Employment Opportunity Statement

3.14.2 Affirmative Action Policy Statements

3.14.3 Services and Activities

3.15 Lobbying Guidelines Policy

3.16 Consultants and Contracted Services Policy

3.17 Procurement Policy

3.18 Lease Agreements Policy

3.19 Training Policies and Procedures

3.20 Expense Reimbursement Policy

3.21 Travel Policy

3.1 The Agency Accounting Policies Preface

The Agency, Inc. is funded primarily through formula grants. The Agency programs and

funders are:

U.S. Department of Health and Human Services

Administration for Children and Families Protection and Advocacy for Persons

with Developmental Disabilities (PADD)

Protection & Advocacy for Voting

Access (PAVA)

Substance Abuse and Mental Health Protection and Advocacy for

Services Administration (SAMHSA) Individuals with Mental Illness (PAIMI)

Health Resources and Services Protection and Advocacy for Persons

Administration (HRSA) With Traumatic Brain Injury (PATBI)

U.S. Department of Education

Rehabilitation Services Administration (RSA) Client Assistance Program (CAP)

Protection and Advocacy for Individual

Rights (PAIR)

Assistive Technology (PAAT)

Social Security Administration

Social Security Administration (SSA) Protection and Advocacy for

Beneficiaries of Social Security (PABSS)

The Agency maintains a double-entry bookkeeping system that entails an accrual

method of accounting according to a specified chart of accounts and a federal fiscal

year of October 1 through September 30.

3.1.1 Accounting Manual

1. Internal procedures and the chart of accounts provide the identifying receipts and

expenditures of program funds separately for each grant.

2. Monthly financial statements are prepared which reflect cumulative expenditures

by grant and cost category according to an approved budget. The CFO and the

CEO review these summaries. These summaries are submitted to the Board of

Directors, PAIMI Advisory Council, and management staff on a quarterly basis.

3. No one individual has complete authority over an entire financial transaction:

a. Request for payment – approved by the Management Staff, CEO, or CFO;

b. Checks – prepared by the Accounting Department;

c. All checks require two signatures – the CEO, Deputy Director, and chosen

members of the Board of Directors have signature authority;

d. Bank reconciliations are performed by the Accounting Department.

4. The Agency maintains fidelity bond coverage for all employees. Professional

liability, which includes Error & Omissions, covers all employees and Directors

and Officers coverage for the Board of Directors. The CFO carries a minimum

bond of $50,000.

3.2 Financial Reporting Requirements

3.2.1 Financial Status Report Form SF 269

Annual SF 269 reports are submitted to appropriate region or headquarters listed on the

grant award for the following formula grant programs: PADD; PAIMI; PAIR; CAP;

PATBI; PAVA.

All annual SF 269 reports are due 90 days after the end of the reporting period. PATBI

reports are due 90 days after the end of the reporting period, however. the reporting

period is two years.

No report is required for the PAAT Grant.

Semi-annual reports are submitted to SSA for the PABSS grant. Semi-annual SF 269s

are due 30 days after the end of the reporting period.

3.2.2 PMS Form 272

SF 272 Report of Federal Cash Transactions is prepared on a quarterly basis and due

45 days after the end of the quarter for the following HHS formula grant programs:

PADD; PAIMI; PATBI; PAVA.

3.3 Receiving Sources of Funds

Funds for PADD, PAIMI, PAVA, and PATBI are received through the Division of

Payment Management Systems, then through Smartlink. Funds for PAIR, CAP, and

PAAT are received thru EDGAPS. Both systems are Internet-based ACH transactions,

which are directly deposited to the agency bank account. PABSS is received via ACH

transaction from SSA by completing a form SF 270 for reimbursement or advance

payment on a timely basis, but at least once a quarter. There are files maintained in the

office of the CFO on each of the above cash draw systems.

All other grant funds are requested monthly on Financial Status Reports (FSR) sent

directly to the contracting agency. Some are paid thru ACH transactions and some in

the form of a check.

All mail is received through the receptionist desk. Checks are stamped For Deposit Only

and logged on a cash receipts journal listing that is maintained by the Receptionist.

Once checks are logged, they are passed on to the Accounting Department. The

Accounting Department makes copies of all checks and gives the copy to the

appropriate person for coding.

Deposits are made by the Accounting Department in a timely manner. Checks are kept

in the office of the CFO in a locked file cabinet.

At the end of the month, a comparison is made between the cash receipts journal

maintained by the Receptionist and the actual cash deposit listings. This comparison is

done by the Accounting Department.

The bank reconciliation is prepared by the Accounting Department and reviewed by the

CFO monthly.

A journal entry is prepared by the Accounting Department at the end of the month for

cash receipts and federal wire transfers.

3.4 Budget Process & Reserve Policy

The initial budget is prepared by the CFO with input from the CEO and Management

Staff. The Finance Committee of the Board of Directors then meets to review and

analyze the budget. Once the Finance Committee is satisfied with the budget, it is

presented to the full Board of Directors at the final meeting before the beginning of the

new fiscal year.

Budget revisions require the same process.

The Board of Directors of The Agency requires a 20 percent planned carryover or reserve

of total federal grant awards on an annual basis. This amount is reserved to allow

operations to continue even when the federal government has not acted on the new fiscal

year’s budget process resulting in no continuing resolutions or federal grant awards.

3.5 Annual Audit Policy

Nonprofit organizations that receive more than $300,000 in federal financial assistance

(grant awards) are required to have an A-133 audit conducted on an annual basis. The

annual A-133 audit requires considerable coordination between The Agency Finance

Department and the contracted CPA firm. Coordination between the two may maximize

efficiency during the audit which could reduce overall costs and minimize disruption

during the examination.

A draft of the audit is reviewed by the Audit/Finance Committee, CFO, CEO, and

auditing partner. The draft is approved by the Audit/Finance Committee. The auditing

partner presents the audit to the full board for approval.

The approved audit must be submitted to the Audit Clearing House with the Data

Collection Form (SF SAC) provided by the auditor no later than nine months following

the close of the fiscal year. The SF SAC must be signed by the CEO and CPA.

The Audit/Finance Committee will take reasonable and prudent actions to assure the

independence of the auditor, which may include contracting with a new auditor every

five to seven years. If a determination is made that The Agency cannot change firms, a

new auditing partner will be requested within the same firm.

3.6 Program Income Policy

Program income is any income generated by a supported activity or earned as a result

of the grant award. This income includes, but is not limited to, income such as fees for

services performed, use fees or rental fees, and attorney fees. Detailed records are kept

on such income by grant. The use of program income and method of use is driven by

each granting agency. Program income is only used when necessary, and always

furthers the objectives of the grant.

3.6.1 Use of Program Income

Allowable uses of program income include, but are not limited to, the following:

• Continuing grant activities after the grant has expired;

• Supporting other projects or programs that further the broad objectives of

the statute;

• Obtaining equipment or other assets needed for the program;

• Match for a federal or state grant, which would allow serving additional

clients;

• Support cost of expensive litigation such as expert witness fees.

PADD and PAIMI Program income can be carried over without a time limitation for

liquidation. CAP, PAAT, and PAIR Program income may be used in the year in which it

is received or in the carryover year. However, by the close of the carryover year, the

carried over program income must be either deducted from total outlays claimed under

the federal grant for the fiscal year that generated the income or obligated for additional

program expenditures (if additional method was allowed).

3.7 Payroll Procedures

All employees are paid every two weeks. To prepare payroll a Labor Distribution Report is

ran from the Time Keeping Component of DAD. Individual time reports are generated by

the employee by pay period. Time reports are signed by the employee and their

respective manager. Staff time is charged to the grants according to work conducted

during the pay period. Salaried staff is paid based upon a set salary. However, all staff

must turn in a time report in accordance with administrative requirements.(OMB circular

A-110). All overtime must be approved in advance by the appropriate Management Staff.

Overtime must be reasonable and necessary and associated to an approved objective.

Payroll is performed by an outside source (ADP, Inc.). The Accounting Department or

the CFO enters the required information to process payroll and transmit the data to

ADP. The payroll is delivered to The Agency the next day, and all information is

reviewed for accuracy by the CFO. The CFO reviews the check register at least

monthly. All garnishments are handled based on the appropriate instructions,

considered confidential information, and stored separately from staff personnel files.

ADP also prepares and submits all Federal, State, and City taxes on behalf of The

Agency. They also prepare and submit 941s, W-2s, and any annual reporting to the

applicable taxing authorities.

3.8 Credit Card Policy

The CEO, Accounting Department, CFO, and other Management Staff are authorized to

use corporate credit cards. The credit card accounts may also be used for staff hotel

arrangements, airline tickets, phone orders, Internet orders, and other expenses, as

necessary.

However, only certain employees have access to the cards and the authority to use

them. Every item on the monthly summary must be supported by documentation.

All credit card statements are reconciled by the Accounting Department on a monthly

basis. Statements are paid prior to any interest or fees being charged.

3.9 Risk Management Policy

Insurances should be maintained for all aspects of the business in order to ensure

proper risk management. The Agency maintains insurance in the following areas:

 Professional Liability for all staff;

 General Property and Equipment insurance;

 Media Liability for Publications;

 Directors and Officers Liability; and

 Workers Compensation.

3.10 Employee Grievance Procedures

An employee may bring a grievance under this procedure whenever there is an alleged

misinterpretation or misapplication of one or more of the specific policies contained in

this manual.

Step One: An employee having a grievance shall present it orally to

his/her immediate manager within twenty (20) working days from the date

on which the employee actually knew or reasonably should have known of

the incident upon which the grievance is based. The immediate manager

shall orally give his/her answer to the employee within twenty (20) working

days of the meeting.

Step Two: If the employee is not satisfied with the disposition at Step

One, the grievance shall be reduced in writing and filed with the immediate

manager within twenty (20) working days after the employee received the

answer at Step One. The immediate manager shall respond in writing

within twenty (20) working days.

Step Three: If the employee is not satisfied with the disposition at Step Two,

the grievance shall be appealed to the CEO within twenty (20) working days

of the response in Step Two. If so requested on the written grievance

submitted to the CEO, a meeting shall be held on the grievance within twenty

(20) working days of receipt of the grievance. The CEO shall give his/her

written answer within ten (10) working days of receipt of the grievance or

within ten (10) working days of the meeting, if a meeting is requested.

If a grievance is not initiated within the time limits set forth above, it shall be considered

waived. If a grievance is not appealed to the next step within the specified time limit or

any agreed extension thereof, it shall be considered settled on the basis of The

Agency’s last answer. If The Agency fails to comply with time lines applicable to it, the

grievance shall be considered denied. The time limit in each step may be extended by

mutual written agreement of the employee and The Agency. The term "working days" as

used in this grievance procedure shall mean the days Monday through Friday, but

excluding holidays when the office is not open. Whenever time limits are indicated, the

date of the postmark will be used.

3.11 Record Retention Policy

All financial records, supporting documents, reports submitted to federal government,

and statistical records are retained for three (3) years from the date of submission of the

final SF269 expenditure report, unless notified by grantors that records need to be

retained longer. At the end of the three years all accounting and grant documentation

not under review or audit by a federal or state agency will be destroyed. Audits are

retained permanently.

All payroll-related records are retained for seven (7) years after the close of the tax

year. After the end of the seven years, all payroll-related records not under review or

audit will be destroyed.

3.12 In-Kind Contributions Policy

In-Kind contributions include gifts of supplies, inventory, materials, equipment, and

volunteer time. The accounting department will verify in-kind contributions and enter the

transactions in the account records. Minimum wage will be the rate used for volunteer

services. Higher rates may be charged when a volunteer provides professional services.

3.13 Conflict of Interest Policy

Consistent with the status of the agency as a nonprofit, tax-exempt corporation, no part

of the net proceeds of the agency’s operation may be paid to the Board of Directors and

officers or employees of the corporation. However, bona fide expenditures on behalf of

the agency, including reimbursements for travel to meetings, may be made pursuant to

agency policies.

Employees and board members are prohibited from selling to the agency, through

contract or any other purchase arrangement, any goods or professional services during

employment or while serving as a board member and for one year after termination as

an employee or term of office. Board members shall not use their membership on the

board to promote their own personal business interests. Board membership by persons

who are employees of, or have a substantial ownership interest in, or who are related by

marriage or immediate family relationship to an employee or a person with substantial

ownership interest in any businesses supplying goods and services, shall disqualify that

business from being considered by the agency for the purchase of any such goods or

services. This provision does not prohibit the agency from reimbursing a family member

from serving as an attendant for purposes of enabling a member to attend a Board

meeting, or other legitimate Board member expenses.

On an annual basis, each employee and board member shall execute a Conflict of

Interest Disclosure Statement. The statement shall disclose any relationship the

individual and his or her immediate family members may have, through employment,

ownership, or role as officer or director in:

1. business which provide goods or services of such a nature as to make The

Agency a potential customer;

2. agencies or organizations which provide direct services (other than

advocacy services) to persons with disabilities;

3. any other group, organization, business, or agency which the member

believes has the potential to create conflict-of-interest situations for the

member.

Upon a significant change in circumstances (such as the development of an ownership

interest, or election to another organization’s governing board), a staff or board member

shall complete and submit a new or revised Disclosure Statement.

With respect to specific items of staff or board discussion or decision, any individual or

the CEO may raise the issue of an actual, potential, or appearance of conflict of interest

involving a staff or board member which has not been disclosed or identified.

Depending on whether the situation involves staff or board, it will be handled by either

the Management Team or Board of Directors.

3.14 Affirmative Action Policy

3.14.1 Equal Employment Opportunity Statement

One of the philosophical bases of The Agency is that all citizens should be afforded

equal opportunities so that every person can attain a lifestyle that is the least restrictive

and most adaptive. To this philosophical end, The Agency commits itself to the

establishment and implementation of procedures which will ensure that all persons

possessing requisite work skills will be given equal employment consideration

regardless of race, religion, color, sex, disability, national origin, sexual orientation,

marital or parental status, age, or ancestry. Through the following affirmative action

policy and plan, The Agency does not intend to over-compensate in avoiding

discrimination by limiting the opportunities of the class that are not usually considered

"affected." In order to accomplish this mission The Agency shall:

a. Comply with the Civil Rights Act of 1964, the Equal Employment Opportunity Act

of 1962, and the Rehabilitation Act of 1973, as amended, and all other state and

federal civil rights laws in developing and implementing policies and programs

designed to extend equal employment to all persons including, but not limited to:

Native Americans; African Americans; Latinos; Asian Americans; women; and

persons with disabilities.

b. Also, in compliance with the above-mentioned legislation, The Agency shall develop

and implement programs and policies designed to actively promote the participation

of members of "affected" classes in all of its activities. The Agency shall extend equal

opportunities for benefits regardless of race, religion, color, sex, disability, national

origin, sexual orientation, marital or parental status, age, or ancestry.

3.14.2 Affirmative Action Policy Statements

a. Employment Criteria

i. As positions are vacated, all job descriptions shall be reviewed by the Chief

Executive Officer of The Agency or his or her designee to assure that only

those physical and mental abilities that are absolutely necessary for

particular jobs are included. In addition, job descriptions shall include only

those skills related to the performance of that particular job.

ii. The Agency shall not use any test or criteria which has a disproportionate or

disparate impact or adverse effect on the employment of "affected" classes,

unless:

1. The test or criteria has been validated as a predictor of performance of a

particular job;

2. An alternative or test criterion which has a less disproportionate, adverse

effect is shown to be unavailable.

b. Recruitment

All correspondence and publicity related to recruiting for job positions and for

goods and services shall contain an equal opportunity statement, as well as

statements encouraging persons of "affected" classes to apply or submit

proposals, as applicable. The Agency will make a reasonable effort to notify

persons of “affected” classes whenever there is a job vacancy or request for

proposal for goods and services in excess of $10,000.

c. Hiring and Selection

i. All employment decisions shall be made in such a way as to assure that no

person shall be subjected to adverse discrimination in employment on the

basis of race, religion, color, sex, disability, national origin, sexual

orientation, marital or parental status, age, or ancestry.

ii. The Agency shall not use employment selection criteria that lessen or

eliminate favorable employment consideration of any person because of a

disability unless it can be clearly demonstrated that the criterion used is:

1. Directly job-related for the position in question; and

2. Necessary because alternative criteria are not available and cannot be

made available.

iii. The Agency shall make reasonable accommodations and alterations

necessary for employing persons with disabilities.

d. Wages, Compensation, Benefits, and Promotions

i. Wages, compensation, benefits, and promotions for all positions shall be

considered without regard to race, religion, color, sex, disability, national

origin, sexual orientation, marital or parental status, age, or ancestry.

ii. All full-time employees will be afforded the same benefits including vacation,

sick leave, insurance, leave of absence, etc., regardless of race, religion,

color, sex, disability, national origin, sexual orientation, marital or parental

status, age, or ancestry.

3.14.3 Services and Activities

a. No qualified person shall, on the basis of race, religion, color, sex, disability,

national origin, sexual orientation, marital or parental status, age, or ancestry, be

excluded from participating in, denied benefits of, or otherwise subjected to

discrimination under any program or activity of The Agency.

b. The Agency shall make every effort to hold meetings or activities in buildings

that are accessible to persons with disabilities. If it is not possible to meet in an

accessible building, The Agency will provide reasonable accommodations to

assist individuals with disabilities to participate in the meeting or activity.

c. In notifying persons of activities and programs, The Agency shall include

agencies and groups that directly deal with members of "affected" classes in an

effort to offer services and secure input from all qualified persons.

d. The Agency shall not knowingly transact business with or provide assistance to

any agency that discriminates in employment or services on the basis of race,

religion, color, sex, disability, national origin, sexual orientation, marital or

parental status, age, or ancestry.

e. The Agency shall not knowingly contract for services with any agency that

discriminates in its hiring or service practices on the basis of race, religion, color,

sex, disability, national origin, sexual orientation, marital or parental status, age,

or ancestry.

3.15 Lobbying Guidelines Policy

The Agency must comply with two separate federal regulatory structures regarding

lobbying activities. First, as a 501(c) (3) nonprofit, lobbying expenditure must be

reported annually to the Internal Revenue Service (IRS). The IRS has regulations

limiting the amount of lobbying nonprofit agencies can conduct. Second, the agency

cannot use any portion of federal dollars for lobbying activities.

Lobbying is defined as any attempt to influence federal or state legislation, participation

or intervention in a political campaign, grassroots lobbying, and direct communication

with certain high-ranking federal executive branch officials in an attempt to influence any

official action (regulatory or otherwise) of those officials.

Non-lobbying activities include responding to a documented request made by the

recipient member, legislative body or subdivision, or a cognizant staff member;

determining the existence or procedural status of specific legislation or the time, place,

and subject of any hearing to be held; preparing routine brief summaries of the provisions

of the specific legislation; completing required state and federal filing requirements;

reading any publications available to the general public or viewing or listening to other

mass media communications; and merely attending a widely attended speech.

Lobbying time should be recorded as such, enabling the time spent to be charged to

nonfederal dollars.

See OMB Circulars A-21 and A-122.

3.16 Consultants and Contracted Services Policy

A bid process for contracted services will be used when attempting to carryout agency

activities that cannot be completed by current staff. At least three proposals/individuals

will be considered for the work. There may be instances when there will not be three

proposals to consider because of the specialized work the agency does.

Letters of agreement or written contracts clearly defining work to be performed and the

timeframe of agreement will be maintained for all consultant and contract services. The

qualifications of the consultant and reasonableness of fees will be considered in hiring

consultants. Consultant services will be paid as work is performed. The CEO will

approve contracts. Contracts will be signed by the CEO and Chairperson of the Board

of Directors. Contracts will be maintained in the central filing system.

No contracts will be formed with members of The Agency’s Board of Directors or

Advisory Councils.

3.17 Procurement Policy

All employees, officers, agents, or any family member must disclose conflict of interest

where there is a financial or other interest in the award of a contract. Disciplinary action

will be taken if this conflict is not disclosed.

All procurements will be conducted in an open and free competition process. All

procurements must meet the test of reasonable and necessary. Affirmative steps shall

be taken to assure that small and minority businesses are utilized when possible as

sources of supplies, equipment, construction, and services. A cost analysis will be done

to determine whether to lease or purchase, based on which would be most economical.

Purchases will be made only by the Finance Department within the agency. No personal

purchases will be made for staff members or members of the Board of Directors. All

paperwork, including shipping invoices, approval forms, invoices, and statements, shall

be attached to the agency copy of the check.

It is recommended that The Agency obtain three bids when making purchases. A purchase

amount for requiring bids will be determined by the management team. In making this

determination, OMB circulars and direction from funding agencies should be reviewed.

Items costing over $25,000 must have prior approval of the grants management officer.

All sole-source contracts in which the aggregate expenditure is expected to exceed $5,000

shall be subject to prior approval by either the CEO or some other person with authority to

approve such a purchase. Justification for sole-source contract must be documented.

The type of procuring instruments used (e.g., fixed-price contracts, cost-reimbursable

contracts, purchase orders, and incentive contracts) shall be determined by the agency,

but shall be appropriate for the particular procurement and for promoting the best

interest of the program or project involved.

All purchasing will be governed by 45 CFR, Part 74; 34 CFR, Part 74; and 20 CFR Part 435.

3.18 Lease Agreements Policy

A cost analysis will be conducted to determine whether to lease or purchase, based on which

would be most economical, where appropriate. Lease agreements will be signed by the CEO

or his/her designee. Lease agreements will be maintained in the central filing system.

3.19 Training Policies & Procedures

Staff development budgets are prepared each fiscal year for each Team. How the team

budgets for staff development are spent is determined by the Team Manager. Each

Team Manager is responsible for staying within their respective budget amounts.

The agency has an Approval for Staff Development form that is completed by the

employee attending the training. The form may be used to request per diems, hotel

reservations and payment, transportation fees, etc. The employee and their manager

must sign the form before arrangements are made for the training. Grant and priority

information must be complete in order to charge the correct grant.

Arrangements for staff development are made by the CFO or designee; however,

determination of whom and what activities are attended are made by the teams. The

agency will only pay for coach travel, but staff wishing to travel first class may pay the

difference.

Costs for providing technical assistance and training for staff of The Agency may not

exceed 10 percent of the total funds awarded.

See Reimbursement Policy for information on receiving advance for expenses or

reimbursement.

3.20 Expense Reimbursement Policy

Reimbursement to anyone for expenses incurred on behalf of The Agency is paid twice

each month. These expenses include things such as business meals; seminars;

expenses while attending trainings; travel expenses; filing fees; fees for copies; etc.

Reimbursement forms must be complete with date, reason for expense, and goal/grant

information, along with attached documentation of expense. All requests for

reimbursement forms must be signed by the employee and his/her immediate manager.

Forms must be submitted eight (8) days before the expected pay date in order to

receive timely reimbursement. Each expense report is due no later than 30 days after

the business expense has been incurred.

Receipts are not required for per diems. In-state per diem rates are set by the Board of

Directors. Currently, the rate is $25.00. If out-of-state travel is required, the IRS

guidelines are used to determine the food per diem for the city of destination. To

determine amounts for individual meals, 20 percent of total daily amount is used for

breakfast, 30 percent for lunch, and 50 percent for dinner.

The mileage reimbursement rate is determined by the Board of Directors. IRS

regulations, along with budgetary information, will be used to determine the current rate

for reimbursement for mileage.

3.21 Travel Policy

The Agency does not intend its employees, Board of Directors, Advisory Councils, or

Committee members to incur any hardship by requiring the use of personal funds for

business purposes and will advance funds for such purposes within the limits set.

Complete accounting of these advances is required.

All travel must be approved by the employee’s immediate manager and must be

associated with either a Service Request or approved objective. The employee must

submit a completed Request to Travel form to the appropriate department for

accommodations, including travel and hotel arrangements, advance for hotel payment,

meals, and travel to and from the airport. Reimbursements may also be made for costs

for hotel, meals, etc. instead of advances, should the employee so choose.

Reimbursement forms along with receipts must be submitted to the accounting

department in a timely manner. No reimbursements will be made without a receipt.

Reimbursements and advances are paid twice each month when checks are prepared.

TAB 4: Governing Boards and Advisory Councils

4.1 Determining the Organization’s Mission and Purpose

4.1.1 Mission Statement

4.1.2 Vision Statement

4.1.3 Bylaws

4.2 Selecting the Executive Director and Reviewing Performance

4.1.1 Selecting the Executive Director

4.1.2 Reviewing the Executive Director’s Performance

4.3 Assessing the Board’s Own Performance and Ensuring the Continuity

of the Board

4.1.1 Assessing the Board’s Own Performance

4.1.2 Recruiting and Ensuring Continuity of the Board

4.4 Final Client Grievance Panel

4.5 Advisory Councils

4.1 Determining the Organization’s Mission and Purpose

4.1.1 Mission Statement

4.1.1.1 Introduction

A mission statement is very important because it is critical in defining "who"

your organization is. Your mission statement is integral in effectively

communicating the work of your organization to the public, media, and potential

funders. In just a few sentences a mission statement should communicate the

essence of your organization to your stakeholders and to the public.

4.1.1.2 Importance to P&As

The federal authorities that govern the P&A require that the P&A protect and

advocate the rights of individuals with disabilities, as well as work for the

achievement of independence and full inclusion in society. Your P&A’s mission,

must be inclusive of the federal mandate, but is not limited by it.

There are a myriad of disability groups; the chief method in distinguishing these

groups is through their mission. In Profiles of Excellence, Independent Sector

lists a clear, agreed-upon mission statement first among the four primary

characteristics of successful nonprofit organizations. Specifically, the four

primary characteristics include:

1. a clear, agreed-upon mission statement;

2. a strong, competent executive director;

3. a dynamic board of directors; and

4. an organization-wide commitment to fundraising.

The primary importance of the mission statement means that failure to clearly

state and communicate your organization's mission can have harmful

consequences, including:

• organization members can waste time "barking up the wrong tree";

• the organization may not think broadly enough about different possibilities if

its mission statement is unclear or overly narrow;

• the organization may not realize when it is time to go out of business.

4.1.1.3 Minimal Standards

During review, the Federal Partners verify that the P&A fulfills its mission and

federal mandate, and complies with all federal and state laws. It is important

that this statement be made readily available.

4.1.1.4 Models/Best Practices

TASC recommends that your mission statement be a one-sentence, clear,

concise statement that says who the agency is (the name, that it is a nonprofit,

and what type of agency it is), what it does, for whom, and where.

Following is an example of a Mission Statement:

United Community Center is a 501(c)(3) human service agency provid-

ing emergency assistance, daycare, social services and recreational

activities for low-income children and families at risk in inner city

Atlanta, Georgia.

4.1.1.5 What’s In a Mission Statement?

A Mission Statement can be composed in many different ways. As

recommended above, there are minimal components suggested; however,

following are some other components that may be included.

• Purpose Statement: The purpose statement clearly states what your

organization seeks to accomplish: Why does your organization exist? What

is the ultimate result of your work? Purpose statements usually include two

phrases:

o an infinitive that indicates a change in status – such as to increase,

decrease, prevent, eliminate

o an identification of the problem or condition to be changed

An example of a purpose statement is "to eliminate homelessness." In

defining purpose, it is essential to focus on outcomes and results rather than

methods: How is the world going to be different? What is going to change?

Thus, the purpose of a mental health counseling agency would never be

simply "to provide counseling services," for that is describing a method

rather than a result. Rather, the purpose might be "to improve the quality of

life" for its clients.

• Business Statement: This statement outlines the "business (es)" (i.e.,

activities or programs) your organization chooses in order to pursue its

purpose. Specifically, you must answer, "What activity are we going to do to

accomplish our purpose?" Business statements often include the verb "to

provide" or link a purpose statement with the words "by" or "through." For

example: "To eliminate homelessness by providing job training to homeless

individuals." A cautionary note: If the word "and" is in your purpose or

business statement, ask yourself, "Are we really committed to both ideas

connected by the word or have we simply not been able to accept that one

idea is more important?"

• Values: Values are beliefs your organization's members hold in common

and endeavor to put into practice. The values guide your organization's

members in performing their work. Specifically, you should ask, "What are

the basic beliefs that we share as an organization?" Examples of values

include: a commitment to excellent services; innovation; diversity; creativity;

honesty; integrity.

Provided is an example of all three of the above components in a mission

statement:

At the Developmental Studies Center we develop, evaluate, and disse-

minate programs [business] that foster children's ethical, social, and in-

tellectual development [purpose]. While nurturing children's capacity to

think skillfully and critically, we also strive to deepen children's commit-

ment to prosocial values such as kindness, helpfulness, personal re-

sponsibility, and respect for others - qualities we believe are essential to

leading humane and productive lives in a democratic society [values].

4.1.1.6 Resources

4.1.2 Vision Statement

4.1.2.1 Introduction

Developing a vision statement can be very culture-specific. Of course,

developing the vision can be the most enjoyable part of planning, but also the

part where time easily gets away from you. It should be noted that, originally,

the vision was a compelling description of the state and function of the

organization once it had implemented the strategic plan, i.e., a very attractive

image toward which the organization was attracted and guided by the strategic

plan. Recently, the vision has become more of a motivational tool, too often

including highly idealistic phrasing and activities that the organization fails to

identify with the overall mission of the organization. While a vision statement

need not be completely confined to definitive parameters, it is helpful to the

work and direction of the P&A if the mission and vision are complementary.

4.1.2.2 Importance to P&As

The federal authorities that govern the P&A System require that the P&A

protect and advocate the rights of individuals with disabilities, as well as work

for the achievement of independence and full inclusion in society. This latter

part of the federal requirement is a vision statement. While independence and

full inclusion in society may be the vision of federal partners, your

organization’s vision may be more expansive.

4.1.2.3 Minimal Standards

During review, the Federal Partners verify that the P&A fulfills its mission and

federal mandate and complies with all federal and state laws. A vision

statement is not required.

4.1.2.4 Models/Best Practices

TASC recommends that your vision statement be one to three sentences in

length. It should be a clear, concise statement that says what the agency would

like to eliminate. This statement is sometimes called the “Put yourself out of

business” statement. What this means is that if your vision is achieved, the

current services your agency provides would not be needed.

Following is an example of a Vision Statement:

MPAS envisions a time that the awareness of resources and services of

MPAS by the citizens of Mississippi will affect community awareness

and a change of attitudes by all Mississippians toward people with dis-

abilities. This attitude change shall include a reduction to the institutio-

nalized population and an assurance of adequate community integrated

services & facilities in the State of Mississippi.

4.1.2.5 Resources

• Board Cafe www.supportcenter.org

• Boardsource www.boardsource.org

• Alliance for Nonprofit Management www.allianceonline.org

• Independent Sector www.independentsector.org

4.1.3 Bylaws

4.1.3.1 Introduction

Nonprofit organizations can live and die by their bylaws. It is important to

ensure that these bylaws reflect the organization and keep it out of legal

troubles.

Bylaws govern all nonprofit organizations. The bylaws direct their meetings and

the topics and conduct of these meetings. Bylaws set the foundation for the

policies and procedures of the organization.

4.1.3.2 Importance to the P&As

Bylaws define how the P&A will be managed and how it will run. They may also

determine which staff and board members have authority and decision-making

responsibilities and how those responsibilities should be carried out. They

create a framework for the organization and aid in resolving internal disputes.

They also describe the rules for calling board meetings, and how and when

board members are elected.

In addition to bylaws, it is advisable to have something at a lower level of

formality, such as board policies. One such policy may be a conflict-of-interest

policy. It is extremely important for P&As to be very transparent. This comes in

response to the disability community and governmental monitoring agencies.

The P&A bylaws become the governance manual for the board and the agency.

4.1.3.3 Minimal Standards

4.1.3.4 Models/Best Practices

TASC recognizes that bylaws are written for a number of audiences, any one of

which may be critical to your organization's operations. Together with Articles of

Incorporation, bylaws demonstrate to IRS examiners and state regulators your

agreement to conform to accepted nonprofit standards of operation.

Bylaws – along with board meeting minutes – are also relied upon by other third

parties (potential lenders, vendors, auditors) to show that corporate actions

were properly taken. And, most importantly, bylaws are written for internal use:

an owner's manual, if you will, to guide the organization in governing,

administering, and organizing itself.

If written without appreciation of these various functions, bylaws easily become

useless or counterproductive documents.

Therefore, in clear and concise non-legalese, bylaws should:

 Set forth purposes in broad and flexible terms;

 Describe the governing board (and membership, if any), its manner of

perpetuation, officers, and administrative mechanisms;

 Satisfy IRS and state scrutiny by including language that mirrors Internal

Revenue Code and state law provisions;

 Protect officers, directors, and others personally by including liability and

indemnity provisions; and

 Set forth a workable system for amending the bylaws.

4.1.3.5 Changes to Bylaws

There is usually a tendency in nonprofits to resist any large-scale changes in

the bylaws. This is typically because of the importance of continuity and

tradition to a nonprofit organization or the P&A. Despite this concern, it is not

advisable that your P&A should remain static over a continued amount of years.

It is not uncommon that – due to the environmental landscape of being a

nonprofit and a disability rights organization – the P&A may find itself with

different needs than they had at their founding.

It is important that nonprofit organizations have bylaws that are responsive to

the organization's constituents and its needs. Organizations that never review

their bylaws sometimes end up burdened with antiquated bylaws that no longer

reflect the organization's mission, needs, or direction.

Whenever a need for a change in P&A bylaws arises, it is imperative that the

board, executive director, and organization understand the delicate task

involved in making sure that the alterations stay in line with the mission of the

P&A and protect the organization from future difficulties. Throughout this

process, all persons involved in this change process must make certain that by

meeting the current needs of the P&A, long-term challenges are not ignored.

Following are some suggested reasons for changing bylaws:

 Change in constituent demands;

 Change in organization mission;

 Change in organization operation;

 Response to specific situations;

 Practices that need documenting;

 Change in social or legal environment.

4.1.3.6 Resources

• Minnesota Council of Nonprofits www.mncn.org/bylaws.htm

4.2 Selecting the Executive Director and Reviewing

Performance

4.2.1 Selecting the Executive Director

4.2.1.1 Introduction

When organizations face the critical task of selecting a new manager or

executive, they aspire to choose a real leader. Selecting the right person

requires a clear understanding of what leadership is (and is not), plus the

correct tools to identify the closest match to your P&A’s needs among a host of

qualified candidates.

4.2.1.2 Importance to the P&As

The P&A System is a very complex system that requires a necessary skill set to

be successful. While most P&As are private nonprofit agencies, they are also

federally mandated, legally based disability rights agencies. The selection of an

Executive Director that understands the mission of the P&A and its relation to

the “Network of P&As” is essential. More importantly, the P&A Executive

Director must have a commitment to protecting and advocating for the rights of

individuals with disabilities.

4.2.1.3 Minimal Standards

While there are no federal minimal standards for selection of the P&A Executive

Director, it should be noted that some P&As require that the Executive Director

be a member of the State Bar or have the ability to become a member of the

State Bar in a required time.

4.2.1.4 Models/Best Practices

Succession Planning

TASC recommends that the board work in conjunction with the present

Executive Director in developing a Succession Plan. The information contained

in such a plan can be essential for selection of the new Executive Director. This

document can also assist the board in identifying those necessary skills and

qualities needed to be successful in managing your respective P&A.

Hiring from Within

TASC recommends as a best practice to always consider potential candidates

from within the organization. This potential pool of candidates should not be

limited to your P&A, but the P&A network as a whole should be seen as a

viable option for candidate selection. The P&A System is a very complex

organization; having institutional, infrastructure, and operating knowledge of

this system as a result of serving on the staff may prove vital in this position’s

success. Lou Font, president of Strategic Talent Group Inc. in Chantilly, Va.,

says that companies should take a “portfolio approach” when assessing the top

people within the organization. The organization needs to fully understand the

capabilities and assets that its top managers provide. While some P&As do not

have a separate HR position, the board should note that such a person may be

a great resource to assist during the hiring process.

Executive Search Firms

TASC recommends as a best practice that, when selecting an executive search

firm, it is emphasized to the board that the search firm’s job is only to identify

qualified candidates. The P&A board is still responsible for ensuring that an

adequate system is in place to select the type of individual needed for your

respective P&A. This system ideally would have been implemented as a result

of your agency’s ongoing succession-planning process.

Diversity in the Selection Process

TASC recommends as a best practice that when identifying a candidate pool,

specific attention be placed on recruiting from a diverse pool. It is important

that, in the selection process, the P&A Board is very cognizant to be inclusive

of all disability, race, gender, ethnicity, and other diversity factors.

4.2.1.5 Resources

• Bennis,W. (1999). The Leadership Advantage. Leader to Leader, Spring No.

12.

• House, R. J. (1999). Cultural influences on leadership and organizations:

Project globe. Advances in Global Leadership, Vol. 1. Greenwich, Ct.: JAI

Press

• Kouzes, J.M., and Posner, B. Z. The Leadership Challenge. San Francisco,

Jossey-Bass, 2002.

• Rajagopalan, N., and Datta, D. K. (1996). CEO characteristics: Does

industry matter? Academy of Management Journal, 39, 197-215.

• Van Velsor, E. and Leslie, J.B. (1996) A Look at Derailment Today: North

America and Europe. Greensboro, NC: Center for Creative Leader

Leadership

4.2.2 Reviewing the Executive Director’s Performance

4.2.2.1 Introduction

Because the executive director is so central to the success or failure of the

agency, performance evaluation is an important component of the board's

responsibilities.

4.2.2.2 Importance to the P&As

An annual, written evaluation both documents the executive director's

achievements and shortcomings and helps the executive director understand

areas for improvement or where the board is insufficiently informed. The P&A’s

success is often associated with that of the executive director. In addition to the

responsibility the board has to the disability community, as stewards of the

P&A, it is imperative that this essential board duty is fulfilled.

4.2.2.3 Minimal Standards

P&A regulating statutes state that the P&A System shall establish policies and

procedures for the Board evaluation of the P&A executive director. This process is

documented during the Federal Review process by requiring a copy of the

evaluation procedures and form, as well as an interview with the Board President.

4.2.2.4 Models/Best Practices

TASC recommends that a yearly evaluation be done for the P&A Executive

Director. We suggest using the areas of evaluation listed in this manual. We

continue to stress that this list is not exhaustive and challenge each P&A to use

this list as an outline to tailor their evaluation to the culture of the particular P&A

and the disability community in the respective state. In addition, it is a best

practice to continue the evaluation process throughout the year with open lines

of communication. This is possible through the use of regular updates, frequent

phone calls, and occasional one-on-one visits. Regular updates – whether in

the form of weekly, biweekly, or monthly email messages; fax broadcasts; or

briefing papers are all great practices to ensure an open and cooperative

evaluation process.

4.2.2.5 Why Conduct an Assessment

An assessment of the executive director is one of the primary duties of the P&A

Board. Oftentimes this duty is neglected by boards because many boards feel it

requires too much of a commitment in time and energy. In addition, some

members of a consumer board may be intimidated or feel inadequately

equipped to perform this task. Conducting an assessment can help ensure that

everyone shares common expectations for the executive director’s

performance. The assessment is not all about finding fault or problems; it can

be an opportunity to provide accolades to the executive director for a job well

done. The process of assessing or evaluating the executive director should

ultimately be constructed in a manner to strengthen the executive director’s

performance and effectiveness.

4.2.2.6 Who Should Participate

Typically the board members and the executive director are the participants in

the formal evaluation or assessment. Sometimes a committee of the board

(often the board officers) leads the evaluation process, reports on the

evaluation to the entire board, and recommends salary for the next year.

Depending on the size and culture of the P&A, it may be appropriate to obtain

input from senior management and staff who have a closer working relationship

with the ED and may be able to provide additional insight as to the ED’s

performance.

4.2.2.7 Areas of Evaluation

In our rapidly changing environment in the nonprofit, governmental, and

disability community, organizational responsibilities are always subject to

change. The board and executive director need to formally assess – at least

twice a year – whether the objectives and priorities are still relevant and

important. While the following list is provided of typical areas on which an

executive director should be evaluated, it is by no means exhaustive. The

measurement criteria cannot be set just once early in the year with the

expectation of declaring success or failure late in the year; evaluation is a

continuous evolving process of communication and cooperation. Areas of

evaluation are as follows:

• Annual Performance Goals

• Core Competencies for P&A Executive Director (Planning, Administration,

Board Relations, Financial Management, Communications and Public

Relations, and Fundraising)

• Personal Leadership Qualities (Leadership Skills, Interpersonal Skills)

• Accomplishments and Challenges

4.2.2.8 Resources

• Bennis,W. (1999). The Leadership Advantage. Leader to Leader, Spring No.

12.

• House, R. J. (1999). Cultural influences on leadership and organizations:

Project globe. Advances in Global Leadership, Vol. 1. Greenwich, Ct.: JAI

Press

• Kouzes, J.M., and Posner, B. Z. The Leadership Challenge. San Francisco,

Jossey-Bass, 2002.

• Rajagopalan, N., and Datta, D. K. (1996). CEO characteristics: Does

industry matter? Academy of Management Journal, 39, 197-215.

• Van Velsor, E. and Leslie, J.B. (1996) A Look at Derailment Today: North

America and Europe. Greensboro, NC: Center for Creative Leader

Leadership

4.3 Assessing the Board’s Own Performance and Ensuring

the Continuity of the Board

4.3.1 Assessing the Board’s Own Performance

4.3.1.1 Introduction

All effective organizations have a basis for determining their effectiveness: they

conscientiously decide the performance goals to which they aspire, and then

they determine a process for judging whether those goals have been met. This

evaluation process occurs in nonprofits as employees are evaluated. Often,

governing boards insist that staff performance be evaluated to assure that

resources are being used effectively and that services are being delivered at

the expected level of quality, but it is only when the board consciously draws

conclusions about its own performance that it can take steps to improve. A

regular assessment assures that the board is operating at maximum efficiency

and effectiveness, and that it is adding value to the organization it governs.

4.3.1.2 Importance to the P&As

Boards evaluate because they are committed to accountability. Yet, far too

many boards refuse to hold themselves accountable. While it is important to

evaluate the effectiveness of the executive director and the P&A, it is equally

important to evaluate the effectiveness of governance performance of the P&A

Board. The board directs the affairs of the P&A through their policy and

governance roles, as well as their overall vision for the organization. Self-

evaluation provides valuable information and insight for the board’s own

internal use as it seeks to improve its own performance, as well as that of the

executive director and the P&A as a whole.

4.3.1.3 Minimal Standards

The Federal Partners do not require a Board Assessment.

4.3.1.4 Models/Best Practices

TASC recommends that the Board undertake a yearly assessment. It is hopeful

from these assessments that board members can continue to grow on an

individual level as it relates to being an active and vibrant board member. In

addition, it is hopeful that this type of assessment will strengthen the P&A

governing board collectively, thereby maintaining a responsive and vital P&A.

4.3.1.5 Resources

• Board Cafe www.supportcenter.org

• Boardsource www.boardsource.org

• Alliance for Nonprofit Management www.allianceonline.org

• Independent Sector www.independentsector.org

4.3.2 Recruiting and Ensuring Continuity of the Board

4.3.2.1 Introduction

One of the most important aspects of Board operations is Board recruiting. Just

like the careful staffing that is usually done with employees, Board members

should be carefully selected, trained, and evaluated, as well. There is a

tendency in some nonprofits to approach recruitment and selection as if they

are somehow lucky just to get Board members who will show up at Board

meetings. It is imperative for the successful governance of the organization that

the Board is dedicated to recruiting committed Board members who relate to

the mission and vision of the organization.

4.3.2.2 Importance to the P&As

As required by federal mandates, there are regulations in regards to the

composition of the P&A board. This is not typical for your average nonprofit, as

board composition is usually left to the governing body. The P&A Board can be

characterized as a consumer board. This characterization is directly related to

the specified percentage of persons with disabilities that must sit on a specified

Board. A consumer board can be very beneficial to the P&A, as it should

provide a direct link to the disability community. In addition, the P&A Board

should continually be committed to cultural competency principles. These

principles are based in the concept that the Board should be a reflection of the

community it serves.

4.3.2.3 Minimal Standards

There are specific standards mandated for the specific Federal Agencies.

CMHS requires the following:

 The P&A system shall establish policies/procedures for selecting its

Governing Board members.

 Terms shall be staggered, and membership shall be subject to term limits

set by the system to ensure rotating membership.

 The Board shall be composed of members who broadly represent or are

knowledgeable about the needs of clients served by the P&A system.

Membership shall include significant representation of: individuals with

mental illnesses who are/have been eligible for services or have

received/are receiving mental health services; family members; guardians;

advocates; authorized representatives.

 A majority of the Board must be individuals with disabilities including

individuals with developmental disabilities, or parents, family members,

guardians, advocates, or authorized representatives of such persons.

ADD requires the following:

 P&A practices encourage the participation of individuals with developmental

disabilities and family members in leadership positions on the governing

board or advisory council.

 New members are provided with an orientation to the values, mission, and

federal mandates of the P&A and their roles and responsibilities as

governing board or advisory council members

 P&A governing board or advisory council members are provided with

information about the service system for and the needs of individuals with

developmental disabilities.

 The P&A has a recruitment process to identify individuals with

developmental disabilities or family members, guardians, advocates for

membership on the governing board or advisory council.

 Bylaws and written policies provide for a process for the selection of

governing board members or advisory council members who broadly

represent the needs of individuals with developmental disabilities and who

reflect the racial and ethnic diversity of the State.

4.3.2.4 Models/Best Practices

TASC recommends that the P&A proactively seek out potential Board members.

This is in contrast to recruiting reactively, where the recruiting process does not

start until a Board member has left or a board term is soon to expire. TASC

recommends that the Board keep an ongoing file of potential members. This file

should provide all contact information about the potential recruit and a summary

of the skills and assets this individual would bring to the organization. The

sponsoring Board member’s name should be included in this file as well.

4.3.2.5 Recruiting Steps

The Application Process

It is important that the Board get to know prospective board members. The

Board should have the opportunity to get to know the applicant just as the

applicant should get to know the Board and P&A. While many organizations do

not have a formal application for board members, such an application is very

helpful for the recruiting process. The application should ask things the Board

may want to know about the applicant, and may inquire about the applicant’s

willingness to commit to the necessary time and resource requirements of

serving on the Board.

Pre-Orientation

Most board members know very little about the organization they are being

asked to govern. So, while they are still in this application process, prospective

members should be given a good sense of what they are getting themselves

into! Create an introductory orientation program for BEFORE someone is

appointed to help them determine if they even want to be on the board. This

program could be as comprehensive as having them attend a board meeting,

tour the P&A office(s) with a staff person, and participate in a one-on-one

interview with a board member just to answer questions. Or it could simply be a

brief video. Whatever material(s) you deem necessary to include in this Pre-

Orientation, ensure that it allows the prospective candidate to know what's

behind the organization they may be leading.

Interview

The Board Development Committee should use their list of desired

qualifications to interview prospective board members. This is an excellent way

to find out where they might fit into the organization so they can hit the ground

running if and when they are appointed. It is also an excellent way to find out if

this is really a great fit or not.

4.3.2.6 Board Orientation

Board orientation is intended to prepare new board members for their board

role in the organization. Orientation is also extremely useful for all members to

ensure they are operating from the same "script." Whether done only with new

members or with the entire board, orientation is a strong team-building activity

that should be conducted once a year, either before a regular board meeting or

during the retreat – particularly after new board members have been recruited.

4.3.2.8 Resources

4.4 Final Client Grievance Panel

4.4.1.1 Importance to P&As

It is essential that P&As provide the highest quality legal and advocacy

assistance to clients as required by relevant statutes and regulations. P&As

must be accountable to clients and applicants by establishing grievance

procedures to process complaints by applicants about the denial of assistance

and complaints about the manner or quality of the legal/advocacy assistance

provided. This part is intended to help ensure that the grievance procedures

adopted by P&As will result, to the extent possible, in the provision of an

effective remedy in the resolution of complaints.

4.4.1.2 Minimal Standards

The federal agencies that provide funds to P&As require the agencies to have a

written grievance procedure that allows clients and potential clients to assure

that individuals with disabilities have full access to the services of the program

and to assure that the P&A is operating in compliance with the law.

4.4.1.3 Models/Best Practices

Grievance Committee

It is recommended that the governing body of the P&A establish a grievance

committee or committees, composed of lawyer and client members of the

governing body, in approximately the same proportion in which they are on the

governing body.

Complaints by applicants about denial of legal/advocacy assistance

It is recommended that P&As establish a simple procedure for review of

complaints by applicants about decisions to deny legal/advocacy assistance to

the applicant. The procedure should, at a minimum, provide:

• practical method for the P&A to provide applicants with adequate notice of

the complaint procedures and how to make a complaint; and

• opportunity for applicants to confer with the Executive Director or the

Executive Director's designee, and, to the extent practical, with a

representative of the governing body. The procedure should be designed to

foster effective communications between the P&A and complaining

applicants.

Complaints by clients about manner or quality of legal/advocacy

Assistance

(a) P&As should establish procedures for the review of complaints by clients

about the manner or quality of legal assistance that has been rendered by

the P&A to the client.

(b) The procedures should be designed to foster effective communications

between the P&A and the complaining client and, at a minimum, provide:

(1) A method for providing a client, at the time the person is accepted as a

client or as soon thereafter as is practical, with adequate notice of the

complaint procedures and how to make a complaint;

(2) For prompt consideration of each complaint by the Executive Director or

the Executive Director's designee;

(3) An opportunity for the complainant, if the Executive Director or the

Executive Director's designee is unable to resolve the matter, to submit

an oral or written statement to a grievance committee established by the

governing body. The procedures should also: provide that the

opportunity to submit an oral statement may be accomplished in person,

by teleconference, or through some other reasonable alternative; permit

a complainant to be accompanied by another person who may speak on

that complainant's behalf; and provide that, upon request of the

complainant, the P&A shall transcribe a brief written statement, dictated

by the complainant for inclusion in the recipient's complaint file.

4.4.1.4 Resources

• Legal Services Corporation, Client Grievance Procedures

• 45 CFR Part 1621

4.5 Advisory Councils

4.5.1.1 Introduction

An advisory board or committee is a voluntary collection of individuals

assembled to advise or support an organization (or one of its programs).

Unlike the members of a governing board who serve as fiduciaries with the

principal responsibility for advancing the organization’s mission and legal

accountability for its operations, the members of an advisory committee are not

typically authorized to act as policy makers.

As a caveat, however, the legal liability of the members of the advisory

committee still must be assessed. Although members of an advisory group are

not typically exposed to the same degree of liability as the governing board, the

advisors should be protected by the nonprofit organization’s risk management

polices (including adequate insurance coverage), if applicable.

4.5.1.2 Importance to P&As

Advisory Councils are important to the P&As, as the PAIMI Advisory Council is

a mandate of the PAIMI Regulations. Other P&As have taken the PAIMI

Advisory Council model and expanded it to include Advisory Councils for other

programs within their respective P&A. Some P&As have gone further in

securing the chair of these respective advisory councils a seat on the P&A’s

governing board.

4.5.1.3 Minimal Standards

Federal Code 42, Part 51Sec.23 Advisory council.

(a) Each P&A system shall establish an advisory council to:

1. Provide independent advice and recommendations to the system.

2. Work jointly with the governing authority in the development of policies

and priorities.

3. Submit a section of the system's annual report as required under Sec.

51.8.

(b) Members of the council shall include attorneys, mental health professionals,

individuals from the public who are knowledgeable about mental illness, the

advocacy needs of persons with mental illness and have demonstrated a

substantial commitment to improving mental health services, a provider of

mental health services, individuals who have received or are receiving

mental health services and family members of such individuals. Continuing

efforts shall be made to include members of racial and ethnic minority

groups on the advisory council.

1. At least 60 percent of the membership of the advisory council shall be

comprised of individuals who have received or are receiving mental health

services or who are family members of such individuals. At least one family

member shall be a primary care giver for an individual who is currently a

minor child or youth who is receiving or has received mental health services;

2. The council shall be chaired by an individual who has received or is receiving

mental health services or who is a family member of such an individual;

3. The advisory council shall meet no less than three times annually. The

terms of council members shall be staggered and for 4 years except that

any member appointed to fill a vacancy for an unexpired term shall serve

for the remainder of such term. A member who has been appointed for a

term of 4 years may not be reappointed to the council during the 2-year

period beginning on the date on which such 4-year term expired.

and fiscal data to enable review of existing program policies, priorities and

performance outcomes. Such submissions shall be made at least annually

and shall report expenditures for the past two fiscal years, as well as

projected expenses for the next fiscal year, identified by budget category

(e.g., salary and wages, contract for services, administrative expenses)

including the amount allotted for training of each the advisory council,

governing board and staff.

(d) Reimbursement of expenses.

1. Allotments may be used to pay for all or a part of the expenses incurred

by members of the advisory council in order to participate in its activities.

Expenses may include transportation costs, parking, meals, hotel costs,

per diem expenses, stipends or subsistence allowances, and the cost of

day care or child care (or its equivalent for the child's travel and

subsistence expenses) for their dependents with mental illness or

developmental disabilities.

2. Each P&A system shall establish its own policies and procedures for

reimbursement of expenses of council members, taking into account the

needs of individual council members, available resources, and

applicable restrictions on use of grant funds, including the restrictions in

Secs. 51.31(e) and 51.6(e).

4.5.1.4 Models/Best Practices

TASC recommends that the P&A proactively seek out potential Advisory

Council members within the community. The PAIMI Council has the unique

position of having a direct link between the governing board and the

community. TASC recommends that PAIMI Council members become readily

involved in the data-gathering process to assist the Mental Health Community.

4.5.1.5 Resources

TAB 5: Human Resources

5.1 Organizational Development

5.1.1 Organizational Chart

5.1.2 Position Descriptions

5.1.3 Staffing Plan for current year

Note: Sections on Office Policy and Procedures Manual as well as Internal Controls are

already listed under different tabs; therefore they are removed from the human

resources section. Internal Control is briefly discussed under Accounting Policies and

Procedures §3.1. Office Policies and Procedures are contained in section §3.1.15

5.2 Employee Development

5.2.1 Employee / Personnel Policies

5.2.2 Employee Handbook

5.2.3 Employee Orientation

5.2.4 Performance Appraisal & Career Development

5.2.5 Recruitment, Interviewing, Hiring Policies & Practices

5.2.6 Disability Hiring Advocacy

5.2.7 Anti-harassment Policy

5.2.8 Staff Time & Attendance Records (previous 2 years)

5.2.9 Best Practices in Supervision

5.2.10 Ethical Practices

Introduction

Human Resources entail two major areas with multiple sub-elements. These are critical

to a well-developed, fundamentally sound organization:

 Organizational Development ensuring that staff structure and functions are in line

with the mission and core values of the organization.

 Employee Development ensuring that personnel placed in positions supporting the

mission of the organization are supervised and mentored according to:

o Legal requirements

o Employee development best practices

o Ethical HR best practices

o Disability Advocacy best practices

P&As are uniquely positioned as potential role models for both government and industry

in the employment of people with disabilities. Therefore, it is essential that in formalizing

practices, best practices are established in every aspect of the administration of human

resources. Through the utilization of the framework within this section, agencies will be

able to focus on the functions required to achieve the objectives of the organization and

thus search for individuals able to perform those specific functions. Targeting functions

may open opportunities for people with disabilities because it permits the employer to

seek ways people’s talents can be used, and to then make accommodations as

necessary to take advantage of those talents.

5.1 Organizational Development

The focus of this section is on the framework of the organization. The mission and

vision should be already clarified and the strategic plan of the organization well defined.

The following components all support the achievement of the mission through the

defined vision and strategic plan.

5.1.1 Organizational Chart

5.1.1.1 Importance to P&As

The organizational chart provides a structural framework for both internal and

external stakeholders to understand how both authority and communications

should flow within the organization. If the framework has been logically

developed to support the strategic plan, then everyone having a role in

implementing the plan will have a clearer understanding of how they fit into the

master plan.

5.1.1.2 Minimal Standards

The federal agencies that provide funds to P&As require the agencies to have

an organizational chart on site.

5.1.1.3 Models/Best Practices

TASC recommends that this organizational chart clearly delineate the

supervisory structure of the P&A and that the chart be updated when there are

staff changes or changes in the supervisory relationships at the P&A.

When developing the organizational chart, keep the following key concepts in

mind:

 Analyze your organization from several perspectives (reality based, thinking

functions, not people):

o How work gets done

o How information is passed along

o Who are the decision makers and at what levels

o What blocks successful results

o What requires steps from somewhere else in order to achieve results

 Analyze your strategic plan in light of your organization

o What functional area is responsible for what aspect of the plan

o What elements are inter-related

o What requires higher level decision making /authority for implementation

 Analyze your existing organization

o How well do existing functional areas match goals of the strategic plan

o What redesign is required to streamline decision making and work

implementation

o What communication systems are currently in place to support the ideal

chart of organization

o What redesign of the chart is required to reflect communication flow as

well as the authority flow

 Draft the organizational chart (software assistance listed in Resources,

Section, 5.1.1.4)

 Review draft from external / internal stakeholders’ perspective:

o Does it clearly identify functional responsibility for implementation of

strategic plan

o Are lines of authority delineated

o Are communication protocols clear with regard to the flow of information

 Secure feedback from critical stakeholders to ensure that the results are

valid, and correct as needed.

Examples of organizational charts are available through TASC.

5.1.1.4 Resources

Many resources are available to allow each agency to pursue a comprehensive

approach to the development of the organizational chart for the individual P&A.

The list below is by no means comprehensive, but will provide significant

information about the topic:

• Organization Charts as a Management Tool by F. John Reh. This web

page also includes several links to software for the creation of

organizational charts. http://management.about.com/cs/

generalmanagement/ a/OrgCharts.htm

• The informal organizational chart in organizations: An approach from

the social network analysis. By Jose Luis Molina. This article is excellent

for those seeking to understand the dynamics that impact how an

organization functions in reality beyond the structure that may be imposed

upon it. A solid comprehension of these dynamics will result in a more

effective organizational chart. www.insna.org/Connections-Web/Volume24-

1/8-Molina-24.1.pdf

• Creating an organization chart in Office 2003 Applies to: PowerPoint,

Word, Excel, Publisher, Visio. This article illustrates how to utilize Microsoft

software to create your organization chart. http://office.microsoft.com/en-

us/assistance/HA011588171033.aspx

• Studying the world beneath the org chart – organizational dynamics –

Interview. Dr. Karen Stephenson by Bob Rosner. This article discusses the

reality of the networks that exist beneath the traditional organizational chart

based on the legacy of the organization. www.findarticles.com/p/articles/

mi_m0FXS/is_9_80/ai_78433705

• Behind the organization chart: Principles of supply chain design by

Minsok Pak. Although this article discusses the theory of supply chain

design within the manufacturing environment, the principles are transferable

to any workplace and describe the importance of understanding the inter-

relation between functions in an organization in order to achieve outcomes.

www.mckinsey.com/practices/operationsstrategyeffectiveness/supplychain

management/pdf/Behind_the_organization_chart.pdf

5.1.2 Position Descriptions

5.1.2.1 Importance to P&As

Ideally, position descriptions should reflect the functions required within the

given program/division in order to achieve the strategic plan/mission of the

P&A. Often, job descriptions have evolved or were updated after-the-fact,

rather than pro-actively written without considering specific individuals. The

most effective position descriptions will succinctly capture the purpose of the

position, the primary functions, and how the position relates to the success of

the P&A’s mission.

5.1.2.2 Minimal Standards

The federal agencies that provide funds to P&As require he agencies to have,

on site, job descriptions for all employees.

5.1.2.3 Models/Best Practices

TASC recommends that job descriptions be accessible to all employees. If

possible, job descriptions should be posted on a shared computer file at the

P&A or included in the employee handbook.

TASC also recommends that the job description be attached to each of the

employees’ performance evaluations so that it is clear what job duties are being

evaluated. As will be discussed in § 5.2.3, the actual evaluation will be done on

measurable objectives of the job functions. Job descriptions should contain the

essential functions of the job. Under the Americans with Disabilities Act, courts

will presume that the essential functions of a job are accurate if the employer has

developed a job description containing the essential functions of the job before

an employee is hired. For more information on the hiring process, go to § 5.2.5.

TASC also recommends that the job description be provided to each applicant

both in the job postings and in the interview so that applicants know from the

start what the essential job functions are.

Below are the suggested elements to include in the position description:

 Position Purpose – simply stated related to the overall organization

 Major Tasks, Responsibilities, Key Accountabilities – basically what the

functions of this position are

 Nature and Scope – supervisor, subordinates and decision-making authority

 Essential Functions – environmental job requirements

 Minimum Qualifications – age, drug test, background test, etc.

 Education Required – minimal level for position

 Years of Relevant Work Experience – minimal for position

 Physical Job Requirements – sitting, lifting, etc.

 Preferred Qualifications – higher levels desired in education and experience

 Knowledge, Skills, Abilities, Competencies – needed to perform the major

tasks, responsibilities, key accountabilities of this position.

A thoroughly written position description following the above outline becomes a

valuable tool in recruiting, hiring, performance appraisal, and employee

development.

5.1.2.4 Resources

• Steps to Writing an Effective Job Description. A brief but succinct article

that includes the aspect of the physical requirements of the job. Excellent.

http://hr.ucsb.edu/Compensation/writing.JD.steps.htm

• Conduct A Job Analysis From the Office of Personnel Management’s

Delegated Examining Operations Handbook this section describes how

to conduct a job analysis prior to developing a job description.

www.opm.gov/deu/Handbook_2003/DEOH-Section-

7.asp#_Section_B_Conduct

• Recruiters Network This website contains multiple links for both software

and books regarding the creation of job descriptions. It also provides a free

sample template to assist you in the creation of your own job descriptions.

www.recruitersnetwork.com/resources/jobdescriptions.htm

• US Code for American with Disabilities Act regarding Employment.

Beneficial to be cognizant of the law so that job descriptions can be

developed to enhance the probability of employing an individual with

disabilities who will have the specific skills needed to perform the essential

functions of the position. http://straylight.law.cornell.edu/uscode/html/

uscode42/usc_sup_01_42_10_126_20_I.html

• SHRM Online (Society for Human Resource Management) – resource

page on job descriptions containing links to over 400 articles, including one

entitled: Non-Prejudicial Language For ADA-Compliant Job Descriptions.

http://search.shrm.org/search?q=job+descriptions&ie=&site=Complete&outp

ut=xml_no_dtd&client=Complete&lr=&proxystylesheet=http%3A%2F%2Fw

ww.shrm.org%2FGoogle%2FgoogleStyle.xsl&oe=&filter=0

• Documentation that adds value by Kesteven and Associates Presentation

Although this link jumps you into the middle of an article where it relates the

link between process and position descriptions, it is an excellent parallel to

the power of looking at the mission/objectives of the organization and then

translating that into the position descriptions. www.kesteven.com.au/

present/pres07.htm

5.1.3 Staffing Plan for the Current Year

5.1.3.1 Importance to P&As

Proactively planning as an organization for the achievement of the P&A’s

mission and its strategic plan utilizing all of its resources will increase the

probability of success. Effectively planning the use of staff is more than

accountability to granting agencies; it is effectively aligning similar functions,

inter-related activities, and sequential timelines. Allocating planning time to this

aspect of human resources prior to the start of the fiscal year will streamline

operations for the entire year.

5.1.3.2 Minimal Standards

The federal agencies that provide funds to P&As require agencies to have, on

site, staffing plans for the current year.

5.1.3.3 Models / Best Practices

TASC recommends that these plans include the percentage of each P&A grant

used to fund the salary and benefits of each staff person.

Key components to developing an effective staffing plan:

 Maintain strategic plan perspective throughout planning process;

 Be realistic in division of the position’s time between the various major

tasks, etc. assigned to it when determining the percentages of time;

 Consider the integration of functions between positions required to achieve

completion of objectives ;

 Be proactive in streamlining duplicative activities where feasible to increase

productivity of overall agency.

5.1.3.4 Resources

• Organizing Staff by Carter McNamara, MBA, PhD, a comprehensive article

that provides a step-by-step analysis of the organization to align it with the

strategic plan as the staffing plan is developed.

www.managementhelp.org/strt_org/design.htm

• Framework for a Basic Strategic Plan Document. Although this is a

template for an entire strategic plan, Appendix E is for the staffing plan.

www.managementhelp.org/fp_progs/sp_mod/sp_frame.htm

5.2 Employee Development

5.2.4 Employee / Personnel Policies

5.2.4.1 Importance to P&As

An organization's personnel policies define what the agency can expect from its

employees, and the employees can expect from the agency. The establishment

of employee/personnel policies is a safeguard to the P&A that management

has considered the legal parameters required by both state and federal

regulatory authorities and those gray areas not covered by law, and determined

how they impact the activities of the P&A and its staff. The wisdom of

developing policy before problems occur is evident in those situations resulting

in legal settlements and often-tense separation issues caused by unclear or

absent policy.

5.2.4.2 Minimal Standards

The federal agencies providing funds to P&A’s for protection and advocacy

services require P&A’s to have, on site, employee personnel policies.

5.2.4.3 Models / Best Practices

It is recommended that comprehensive employee/personnel policies entail all

aspects of an employee’s relationship with the agency and his/her behavior

within and representing the agency. Three categories encompass the majority

of these policies:

 Compliance Assurance;

 Conditions of Employment;

 Employee Use of Agency Property .

Examples of employee/personnel policies are available from TASC.

5.2.4.4 Resources

• Personnel Policy Service, Inc. - HR Policies & more! The links on this

web site cover the full range of topics that are needed in the development of

personnel policy. Included among others, are:

www.ppspublishers.com/downloadcenter.htm#ADA

• Example Personnel Policies from the Employment Law Information

Network. This is an excellent website with actual examples from multiple

organizations of every type of personnel policy that an organization could

develop. It is conveniently arranged in alphabetical order with hyperlinks to

policies. www.elinfonet.com/HR_RZ.php

• British Columbia Govt’s Personnel Policies Manual. This

comprehensive Personnel policies manual is extremely well done and

serves as an excellent model of clarity and design.

www.bcpublicservice.ca/policies/policy_manual/chapters.htm

• Minnesota Council of Nonprofits – Human Resources Basics:

Personnel Policies. This website provides a basic set of personnel

policies that can be adapted to your organization.

www.mncn.org/info/basic_hr.htm

5.2.5 Employee Handbook

5.2.5.1 Importance to P&As

The Employee Handbook is the employee’s resource guide both during

orientation and on the job. While the personnel policies and procedures that

were developed in the previous section are the bulk of the handbook, it would

ADA

Affirmative Action

COBRA

EEOC

Exempt and Nonexempt

Interviewing

Pregnancy

Resignation

Sexual Harassment

Wage and Hour

be a mistake to assume that the Handbook is complete with only that content.

Keep in mind that this will serve as not only the employee’s introduction to the

organization as an entity, but also his/her reference guide in the future. Ensure

that the Employee Handbook reflects the desired culture of the organization

and the mission of the organization. Ideally it should be easily updated to reflect

the ongoing changes in the organization within its leadership (the Board of

Directors, the organizational chart, etc.), the strategic objectives of the

organization as it moves forward (the new employee should be able to envision

how s/he fits into the vision), and of course legal and benefit changes as they

occur.

5.2.5.2 Minimal Standards

The federal agencies providing funds to P&As require agencies to have, on

site, employee handbooks.

5.2.5.3 Models/Best Practices

Keeping in mind the purpose of the Employee Handbook as stated above: this

document should be considered a dynamic tool in the relationship that the

employees have with the organization. This is a reference guide the employee

will use in the future.

The handbook would begin with a Welcome from the Executive Director and

the President of the Board of Directors. These two letters should be updated

regularly to reflect the current activities and goals of the organization. This

provides a freshness to both the handbook and to the organization. The new

employee receives a sense of excitement during the orientation that is part of

that first impression as an “insider.”

The first section of the handbook will provide to the new employee the history–

how it came to be what it is today. The history should reflect the pertinent

crossroads that shaped the organization. A litany of facts will not engage the

new employee in wanting to become a member of team, but an inspiring

journey along those crossroads will.

The second section will be the organizational framework of the employee’s

new second home. Other than our families, we spend the majority of our time at

work; our workplaces become our second home. Organizations recognizing the

importance of establishing a solid team environment that is a welcome place in

which work can be done will increase productivity. In this section, a clear chart

establishing decision-making levels, work groups, programs/divisions helps the

new employee envision where s/he fits in the grand scheme. The strategic plan

– or at least the mission/vision of the organization – would also be included in

this section.

Most of the examples contained in the Resource section below emphasize the

importance of putting the Equal Opportunity Employer statement very early

in the Employee Handbook, separating it from the rest of the personnel policies.

Logically, this would come next in your handbook.

The personnel policies that were developed in § 5.2.1 would now follow in the

next section of the manual. Ideally, each policy would be listed on a separate

page to allow easy updating as changes occur over time. Thus, each employee

within the organization is given the updated policy and encouraged to continue

to utilize his/her handbook as an ongoing reference guide.

Required forms and procedures for utilizing them would follow in the next

section, thus enabling employees to be knowledgeable in accessing benefits

and appropriate staff without difficulty. When thoughtfully done, this becomes a

time-saver for management as well.

The Employee Acknowledgement Form can be located either in the front or

the back of the manual. There should be two copies: one for the employee to

keep and one for the P&A to put in the personnel file. The advantage to placing

it at the end of the manual is that ideally, at the conclusion of the orientation

process, the entire manual would have been reviewed at some point or

another. The employee could then be asked to sign and turn in the form at the

completion of the orientation. (See section § 5.2.3)

Construction of the manual itself

Depending upon the resources available, a notebook with removable pages is

the ideal media for the employee manual. Consider who will be producing and

updating the manual.

Ultimately, in developing or re-doing the Employee Handbook, the key is to

view it as a management tool instead of something “personnel” has to do.

5.2.5.4 Resources

• The Company Employee Handbook The Small Business Administration,

Online Women’s Business Center provides a section-by-section explanation

with examples of an employee handbook. www.onlinewbc.gov/docs/

manage/hrpolicy1.html

• Small Business Notes - Employee Handbook This article provides a

comprehensive list of components to be included in the employee manual

with hyperlinks to each component, explaining the reason for the policy/

component and an example. www.smallbusinessnotes.com/operating/

hr/employeehandbook.html

• Findlaw for Business Enter your state and the website will direct you to

specific information pertinent to your state. An extremely comprehensive

resource regarding legal information related to employment and business

law. http://cobrands.business.findlaw.com/states_new.html

• Ensuring your company handbook is up to snuff The legal perspective

provided by The Alexander Hamilton Institute ensures that the organization

is not exposing itself to potential employment liabilities.

www.ahipubs.com/reports/handbookaudit.pdf

• Your Employee Handbook: Document Company Policies and

Procedures to Safeguard Your Business While this website does

promote a specific line of products, it does an excellent job of discussing the

wider impact that Handbooks have in developing the culture of the

organization, and the necessary forms required in beginning employment.

www.gneil.com/info/employeehandbook/default.asp

5.2.6 Employee Orientation

5.2.6.1 Importance to P&As

Orientation is the critical introduction for the new employee to the organization,

job, and staff, and how all of those elements integrate together to accomplish

the mission of the P&A. Explaining the contents of the Handbook is a part of

that introduction. After successfully completing orientation with handbook in

hand, the employee should feel comfortably ready to begin the new job,

knowing who the appropriate contacts are for questions, support, and

decisions. The new employee should also have a sense of welcome and team

membership. A well-planned orientation program will lay the foundation for

good work performance and high job retention.

5.2.6.2 Models/Best Practices

The outcome of the orientation should be that the new employee:

 Grasps the culture of the P&A through a brief review of history, mission, and

goals/objectives;

 Knows the organizational structure of the P&A and where s/he fits into it

through a review of the organizational chart and explanation of his/her

division/department, supervisor, and peers;

 Understands the information contained in the Employee Handbook and

knows to whom to go with questions through a review of the information

contained within the policies section and a signed release stating such; nad

 Begins to feel acceptance as a team member through a tour, introductions,

and other activities designed to acclimate the new employee into the culture.

A strong effort in the orientation of new employees is a worthy investment in

accelerating productivity as s/he becomes a team member instead of standing

in the periphery trying to find a way to break into the well-established “inner

circle.”

The orientation process does not have to take place all in one day. It should be

designed to be processed over the first week to ensure that the new employee

actually retains the information being deluged upon her/him. It also allows the

P&A to capitalize on that initial desire to become involved right away and “get to

work!” It is just as important that the organization be prepared for the new

employee as the new employee be prepared for work that first day. As

employers, we expect our new employee to be on time, have the necessary

“tools” to work, dress appropriately, etc. Is his/her workplace ready?

 Is the assigned desk ready?

 Has the phone and computer been prepared for use?

 Are work assignments lined up and manager/supervisor ready to delegate?

 Has the orientation week been outlined to acquaint the employee with those

with whom s/he will need to interact?

 Have the external stakeholders been informed or has an announcement

been prepared?

In other words, has your organization “dressed for work” that first day with your

new employee?

5.2.6.3 Resources

• A Quick Guide to Employee Orientation – Help for Managers & HR

This website offers an excellent guide to developing an orientation program,

especially if the P&A has never had a formal one. It also advises that

current employees would benefit from attending! www.work911.com/articles/

orient.htm

• Conducting Effective Employee Orientations. A three-step guide to

orientation programs. www.easytraining.com/orientation.htm

• Orientation of New Employees A resource of links to articles about

orienting new employees, covering a wide range of topics from the impact

on retention to a twelve-step process. http://humanresources.about.com/od/

orientation/

• Human Resources – Successful Employee Orientation (Part 1) by

Christina Morfield. First of three articles (links for the other two parts

contained within this one); reviews what should be contained within

employee orientation. www.suite101.com/article.cfm/human_resources/

34398

• Employee Orientation – Keeping new Employees on Board! This article

discusses both the design of the orientation program and how a solid design

will have long-tern results. www.humanlinks.com/manres/articles/

employee_orientation.htm

• Stop Wasting Money on Employee Orientations by Ronald M. Katz

This article points out the weaknesses of the traditional orientation approach

and suggests changes to improve the integration of the new employee into

the work team, as well as build on the initial enthusiasm and energy.

www.workforce.com/section/01/article/24/04/23.html

5.2.7 Performance Appraisal & Career Development

The performance appraisal system is the groundwork for multiple elements of

employee development within an organization:

 Basis for promotion and compensation;

 Enhances working relationship between supervision and subordinate;

 Lays groundwork for career path for employee;

 Provides opportunity for developing strengths and fortifying weaknesses;

 Integrates employee’s functions into the strategic plan and the successful

achievement of the mission of the P&A.

When everyone in the organization understands how the performance appraisal

system is implemented, apprehension is minimized and it is used as a

management tool. Senior management takes the lead in demonstrating the

significance of working with all employees on a continual basis and providing

positive, useful feedback versus an annual subjective overview that attempts to

capture on one sitting an entire year’s activities. The following sections break

this process into manageable components.

For an excellent resource on how an entire system can function, visit the Office

of Personnel Management’s website at www.opm.gov/perform/overview.asp,

which contains a wealth of knowledge on every aspect of a continual

performance improvement system.

5.2.7.1 Performance Appraisal Form & Yearly Objectives

5.2.7.1.1 Importance to P&As

The performance appraisal form serves two purposes: at the beginning of the

performance year, it delineates the measurable, targeted objectives by which

the employee’s performance will be measured after 12 months; and at the end

of the year, it actually records the level of success in meeting those objectives.

This tool gives both the supervisor and the subordinate a clear understanding

of the expectations of performance critical for a healthy working relationship.

The employee knows what to work towards throughout the year; the supervisor

knows how to guide the employee towards improving performance and on what

to provide feedback.

5.2.7.1.2 Minimal Standards

The federal agencies that provide funds to P&As require agencies to have, on

site, performance evaluation criteria for all employees.

5.2.7.1.3 Models/Best Practices

TASC recommends that evaluation criteria be based on job descriptions.

In designing the performance appraisal instrument, there are several factors

that are key in the conceptual process pertinent to the specific organization.

Keeping in mind that the most effective performance appraisals are those

delivered by the direct manager/supervisors, consider the following:

 Who will be coordinating the entire process?

 Who will be executing the performance appraisals?

 Will the process be completely electronically transmittable? If so, consider

the safeguards needed on the files to ensure confidentiality, and protection

against future editing.

 How will the individual’s objectives (for the coming year) be determined so

they are indeed dovetailed into the strategic plan?

 How will objectives be developed that are measurable (if this is new for your

organization)?

Once these questions have been considered, then the instrument itself is

designed. Many templates for a performance appraisal instrument are available

(a free one can be found at www.businessballs.com/freematerialsinword/

appraisalformtemplate.doc). This particular instrument combines many of the

elements that reflect a desirable tool. Several basic points are worth

mentioning:

 Interactive – completed by both the appraisee and the appraiser separately

and individually prior to the interview;

 Discussion points – provides for the discussion that will take place during

the interview itself;

 Objectives – reference made to the objectives determined last year to be

achieved in the past 12 months with the measures or standards against

which they would be measured;

 Rating of specific capabilities or knowledge – these can be adapted to the

specific position, and allows a measurable profile for determining

improvement and/or need for improvement in specific knowledge/skill areas

needed to perform the job;

 Future growth and aspirations – from both the appraisee’s and the

appraiser’s perspectives, considers next steps in the individual’s career path

within the organization, as well as next year’s targeted objectives for

performance;

 Signatures – Both parties sign the form upon its completion.

While this process has many similarities to Management by Objectives (MBO),

the difference is that the objectives that are determined at the beginning of the

year are driven by the strategic plan and senior management and, while agreed

upon by the employee, the employee is not asked to determine them for

herself/himself. The relationship between the stated objectives and the strategic

plan – or if not yet developed, at least the organization’s annual objectives –

cannot be underestimated. In developing the employee’s loyalty and sense of

contribution to the P&A, this demonstration of the integration of his/her work

into the success of the overall mission is key.

5.2.7.1.4 Resources

• Make performance appraisal relevant by Winston Oberg. An excellent

discussion of the pros and cons of different performance appraisal systems.

www.unep.org/restrict/pas/paspa.htm

• Performance appraisals, performance evaluation and assessment of

job skills, personality and behaviour – and tips for '360 degree

feedback' and '360° appraisals' A wealth of downloadable information

regarding all aspects of performance appraisal systems.

www.businessballs.com/performanceappraisals.htm

• An extensive collection of business articles and publications related to

measuring and managing employee job performance.

www.bpubs.com/Human_Resources/Performance_Appraisals/

• Performance Appraisal Gallup's approach to performance appraisal and

review helps managers and their employees achieve objective performance

outcomes by focusing on their strengths. While this is a totally different

approach, the research that has been documented in Marcus Buckingham’s

book entitled Discover Your Strengths under the Gallup organization’s

auspices, bears out that this focus brings about phenomenal productivity

results. www.gallup.com/content/default.aspx?ci=1474

5.2.7.2 Performance Appraisal Annual Interview

5.2.7.2.1 Importance to P&As

An accurately completed instrument can be completely useless if it is delivered

inappropriately. The performance appraisal interview should be a dialogue in

which the supervisor provides feedback to the subordinate about performance,

assigned objectives for the coming year, and career development; and in which

the subordinate also provides feedback to the supervisor about challenges and

opportunities in performing the job, aspirations for growth, and thoughts on

meeting assigned organizational objectives.

Senior management can utilize performance appraisal interviews as a

management tool in developing employees to reach their full potential and

empowering supervisors to strengthen relationships with their own

subordinates. Through the delegation of performance appraisal interviews to

the appropriate department heads where the supervision actually takes place,

executive directors leverage resource development, increasing the depth of

ownership within the organization. However, it is critical that any manager/

supervisor that is tasked to execute performance appraisal interviews have the

appropriate training in how to conduct the actual interview and how to complete

an objective performance appraisal review form. It would damage the

organization, the manager/supervisor, and the employee to ask the manager/

supervisor to begin this task without the appropriate training.

5.2.7.2.2 Models/Best Practices

TASC recommends that supervisors conduct a written performance evaluation

after the employee has worked for the P&A for six months, and that written

performance evaluations be conducted annually on the employee’s anniversary

date. TASC recommends that the P&A’s executive director, the employee’s

supervisor, and the employee sign the performance evaluation that will go in

the employee’s confidential personnel file. If the employee refuses to sign the

performance evaluation, ask the employee to sign a paper acknowledging

receipt of the performance evaluation.

Ideally, the subordinate’s immediate manager/supervisor conducts the

performance appraisal. That individual has been most involved with daily

performance throughout the year. The subordinate has been given the

appraisal instrument at the beginning of the year; therefore, there is total

familiarity with the standards against which performance is going to be

measured. The objectives for the year were set at the beginning of the year;

therefore, both the subordinate and the supervisor have been working jointly to

meet the same goals throughout the year.

The subordinate is provided a clean electronic copy of his/her performance

appraisal form at least two weeks before the date of the appraisal in order to

allow sufficient time to thoughtfully complete a self-appraisal. S/he is requested

to submit to the manager/supervisor several days before the interview date to

allow the supervisor time to review and formally complete his/her portion. The

manager/supervisor should have completed her/his portion independently prior

to seeing the subordinate’s, then finalized it with the subordinate’s input

considered where necessary.

Adequate time should be set aside in a private setting without interruption to

have the performance appraisal dialogue. The subordinate needs to believe

and feel that this is a priority with the manager/supervisor; that her/his career

development is important to the organization and to the manager/supervisor. If

it is necessary to use a different setting, then do so to avoid interruption. This

will send a powerful message to the subordinate that an investment is being

made in his/her development.

During the interview it is essential that the focus be future-oriented, i.e. how do

we take what happened this past year to enhance the coming year. If the

employee’s strengths are being discussed, how are they maximized to showcase

the individual’s capabilities within the organization? If areas of weakness are

being discussed, how do they compensate for them to accomplish the objectives

that are assigned? The key is to focus on what the individual can do, not what

s/he cannot do. S/he was hired because of knowledge, skills, and abilities.

Remember that in the performance appraisal and seek that out.

Complete documentation of discussion does not mean that a word-for-word

transcript is written. Documentation does mean that the agreed-upon

performance appraisal is written, the objectives for the next year are written,

and goals for additional training and aspirations for future career development

as appropriate are written. This enables both the manager/supervisor and the

subordinate to work as a team for both the organization and the growth of the

employee. It dispels the “gotcha” environment common to some workplaces,

and replaces it with a positive atmosphere of teamwork and reinforcement.

When both the manager/supervisor and the subordinate sign the performance

appraisal, it is a statement that both support the plan.

5.2.7.2.3 Resources

• How to Do an Employee Appraisal. This is an excellent step-by-step

guide for the actual interview process, including preparation a few days out.

It includes topical areas of discussion with suggested language for various

job categories. www.hrgopher.com/web/link.php?id=292&links_id=

19953&session=293j4qq1mkczc2donit0

• Preparing for performance appraisal interviews. The following

information provided by the Alexander Hamilton Institute, Inc. shows

managers how to conduct their appraisal interviews successfully and legally.

It also includes a self-appraisal form for managers to use at the conclusion

of the interview to rate him/herself on how well the interview went.

www.ahipubs.com/reports/paprep.pdf

• Human Resources - Guidelines for Effective Feedback by Christina

Morfield. A brief overview on guidelines for the interview.

www.suite101.com/article.cfm/human_resources/32564/2

• A Performance Appraisal That’s Better than Ratings and Rankings by

Gary B. Brumback. In one author’s opinion, an appraisal done in a question-

and-answer format beats a ranking system hands down.

www.workforce.com/section/01/feature/23/48/77/

• Performance Management: Working in Theory but Failing in Practice?

A new approach, called The PAF Technique (Performance Analysis and

Feedback), is effective where other methods have fallen short. It is effective

because it is a simple and logical approach that works with the natural way

managers already assess and evaluate performance, not against it. This is

the PDF article; e-book also available. www.performancefeedback.com/

PAF%20Article.pdf

• University of Texas at Austin presents a graphic system demonstrating

that Performance Management is an ongoing dialogue between manager

and employee that links expectations, ongoing feedback and coaching,

performance evaluations, development planning, and follow-up.

www.utexas.edu/hr/er/perfeval/

5.2.7.3 Performance Appraisal Quarterly Reviews

5.2.7.3.1 Importance to P&As

The most effective way to guide an employee towards improved performance is

through ongoing dialogue, not with a once-a-year discourse on what s/he did

wrong the past 12 months and how s/he missed the objectives that were set

last year. Everyone is damaged in that process:

 The organization loses – the objectives needed to meet the strategic-plan

goals were not met;

 The employee loses because their own objectives were not met – promotion

and most likely financial increase are not given; and

 The manager/supervisor loses because her/his goals were not met – s/he

has an employee not performing to his/her capability, and now s/he gets to

do a difficult annual performance appraisal.

5.2.7.3.2 Models/Best Practices

With the quarterly review process, an informal discussion is held with the

employee every three months as a checkpoint. Through this process, the

manager/supervisor and the subordinate have an opportunity to discuss what is

working, as well as what is not, and work together to resolve challenges, as

well as discuss successes and build on those. No one is operating in isolation

and the subordinate is getting reinforcement for positive work performance and

assistance in areas where improvement is needed.

When there have been three quarterly meetings preceding the annual

appraisal, neither the manager/supervisor nor the subordinate are in for any

surprises. The subordinate is well aware of the areas that have needed

improvement and has had assistance in working on achieving results in those

areas all year. Objectives have been actively discussed in light of the

performance appraisal all along - no surprises there either. The manager/

supervisor will be able to complete the annual form with accuracy and

specificity, as will the subordinate. It will be a meaningful dialogue for both.

The actual form used would be an abbreviated reflection of the full appraisal

form so that information can be transferred as appropriate. The dialogue should

follow the same best practices as those discussed under the performance

appraisal interview, however:

 This is less formal;

 This does not impact promotion/pay;

 There is no form to be completed ahead of time by the subordinate. The

manager/supervisor would have completed an observation form to be

shared with the subordinate for planning purposes during the meeting. The

subordinate is encouraged to bring his/her thoughts to the meeting, as well,

and can be given a copy of the same form if so desired; and

 The meeting should not be long and intense. It should be viewed as a

“working meeting” because the intent is to plan on how to continue to meet

the objectives stated for the year.

The similarities are:

 The completed form and the notes from the manager/supervisor will go in

the subordinate’s file at the end of the year with the completed performance

appraisal form, becoming part of the total package; and

 The dialogue should be handled in the same way as the performance

appraisal interview with regards to building up the subordinate and focusing

on accomplishing objectives.

Incorporated into the management style of the P&A, quarterly reviews

strengthen supervisory skills in managers and enhance the performance and

productivity of all employees.

5.2.7.3.3 Resources

• Performance Management: Monitoring "Monitoring" means consistently

measuring performance and providing ongoing feedback to employees and

work groups on progress toward reaching their goals. Ongoing monitoring

provides the opportunity to check how employees are doing and to identify

and resolve any problems early. This website provides multiple resources to

assist with that process. www.opm.gov/perform/monitor.asp

• Coaching for Improved Performance by Robin Nitschke. This is a step-

by-step coaching approach that can be used to help an employee improve

work performance. This approach avoids the need for discipline and

produces great results. http://humanresources.about.com/library/weekly/

uc031903a.htm

• The Awesome Power of Goal Setting – Ten Tips for Triumph by Susan

M. Heathfield. When you begin your new year with solid direction and

desired outcomes in mind, you set yourself up for awesome success. These

tips will help you achieve your goals and live your resolutions. http://

humanresources.about.com/od/performancemanagement/a/goal_setting.htm

• Your Performance Review: Make It Perform Although this Businessweek

Online article was written in 2001, it delineates from the employee’s

perspective how and why to prepare for the performance appraisal and

advocates for more frequent communication with the supervisor.

www.businessweek.com/magazine/content/01_51/b3762136.htm

• Department of Administrative Services for the State of Connecticut has

implemented an Employee Communications Plan that directly impacts the

performance review process as a result of the feedback received from

employees requesting more direct information from their supervisors.

www.das.state.ct.us/News/Employee_Communication_Plan.htm

5.2.7.4 Documenting Termination Procedures

5.2.7.4.1 Importance to P&As

Terminating an employee is a task most organizations avoid for as long as

possible – even when it is for the well-being of everyone concerned, including

the employee. It is a reality of organizational life, however, and the more

effectively and efficiently it is managed, the swifter the entire organization will

resume fluid operations.

Proper management of termination is also important because of the potential

liabilities inherent in a termination. Keen knowledge of employment law as it

pertains to each situation is a prerequisite before the first step can be made to

exiting an individual from the organization. Documentation is a critical

component of exercising that knowledge.

Finally, minimizing the number of individuals involved in the process and

ascertaining that only those appropriately in the line of authority are involved

will help to minimize the difficulties of the process.

5.2.7.4.2 Models/Best Practices

The ideal scenario when termination is at hand is where the employee has a

history of poor performance that has been documented by the supervisor, and

the employee has been given ample opportunity to correct the performance

issues and thus meet the objectives set earlier to which both manager and

supervisor agreed. Utilizing the performance appraisal system with quarterly

reviews already described, the employee in question would be well aware that

performance is a concern to management and, when the first formal warning

comes, it would not be totally unexpected.

However, at work is also the doctrine of employment-at-will in effect in many

states. In essence, employment-at-will means employment is presumed to be

voluntary and indefinite for both employees and employers. Essentially, at-will

employers may terminate an employee whenever and for whatever reason they

want, usually without consequence. No assumption should be made that the

employment-at-will doctrine makes the termination process in those states

exercising it a black-and-white process. Employees are still protected under

wrongful-cause termination, protected classes, etc.

When it is necessary to terminate an employee, it is always best to have

thoroughly prepared all of the necessary documentation to justify your position.

1. Start with the initial hiring of the employee and establish upfront what the

specific job is, the functional responsibilities, the measurable objectives, etc.

2. Have quarterly performance meetings with the immediate manager/

supervisor and document those meetings in the personnel file.

3. When performance issues arise, establish an action plan with achievable,

measurable goals that will demonstrate the individual’s effort and progress,

as well as the employer’s efforts to assist him/her.

4. Offer the individual appropriate training and support, but no more so than

any other employee would be offered.

5. Have policy in place that addresses performance issues and how long

individuals will be kept on performance-improvement plans. This removes

the manager/supervisor from the “fall guy” position when the determination

has to be made that this individual has been given enough opportunities for

improvement.

6. Be cognizant of this employee’s impact on the rest of the department/

division. No employee functions as an island. There is the potential of

creating a domino effect of mediocrity if one individual continually carries

less than his/her share of the workload.

7. When the time comes to terminate, if your state is an employment-at-will

state, no reason should be given for the termination other than a simple

statement, e.g. ‘The relationship is no longer mutually beneficial.’

8. The actual termination interview should be handled as soon as possible

once the decision has been made. There are numerous protocols to follow

that can be found in the resource section. The important element at this

point is to plan this final encounter and not to have it alone. Ensure that you

have appropriately planned communication to the rest of staff afterwards so

that only truthful explanations of the employee’s departure are given.

5.2.7.4.3 Resources

• Protect Yourself When Terminating Employees by Larry Rosefeld. A

solid summary of the key legal issues pertaining to termination.

www.entrepreneur.com/article/0,4621,309571,00.html

• Employer Guidelines for Terminating Employees: Pre-Termination

Checklist This comprehensive checklist provided by Wildman Harrold

Attorneys and Counselors addresses everything from reasons for termination

to collecting keys and credit cards. www.whad.com/labor_library/

Pre-Termination_Checklist.htm#_Establishing_Reasons_for_Reduction

• Terminating Employees by Jim R. Sapp. This short article contains a list of

common-sense points to consider when confronted with the termination that must be

done. www.nfib.com/object/IO_16630.html

• Employment at Will: what employment-at-will means a brief explanatory

article. http://jobsearchtech.about.com/od/laborlaws/l/aa092402.htm

• U.S. Federal Laws Limiting Employment at Will Landmark U.S. Federal

acts that spawned laws limiting the employment at-will Doctrine and helping

to enforce good cause for termination. http://jobsearchtech.about.com/

od/careereducation/l/aa092402_3.htm

• The employment-at-will doctrine: three major exceptions by Charles J.

Muhl. An excellent discussion of challenges in all 50 states to the

employment-at-will doctrine, published in the Monthly Labor Review.

www.bls.gov/opub/mlr/2001/01/art1full.pdf

5.2.8 Recruitment, Interviewing, Hiring Policies & Practices

5.2.8.1 Importance to P&As

Effective recruiting, interviewing, and hiring result in strong staff who believe in

the mission of the P&A and will function effectively as team members with the

existing staff. Time spent in this phase of the operations of the P&A will reduce

the time required in other areas later. This component of human resources is

more complex than simply placing an ad, collecting resumes or job

applications, interviewing who shows up, and making a final decision. For many

organizations, this actually presents an opportunity to introduce new thinking;

for others it is a major crossroads to depart from one form of leadership and

enter into another. Whatever direction the organization is headed, it should be

deliberate and reflected in this process.

5.2.8.2 Models/Best Practices

While a variety of strategies are available for recruiting, depending on the

frequency of hiring within a specific P&A, interviewing and hiring should follow

best-practice protocol whether occurring once or a dozen times a year.

Recruiting

Before the recruiting process can even begin, ideally a solid job analysis is

completed to specify:

 An accurate and current description of the functions of the job;

 Pertinent knowledge, skills, and abilities required; and

 An understanding of the supervision structure, as well as work process

structure for those who will work with this individual.

Once the analysis is completed and a comprehensive position description has

been written, develop a plan for the recruitment phase. Consider the following

factors:

 The immediacy of the need (turnaround time for results);

 Budget for advertising the position;

 Support currently in-house to handle responses (email, phone, etc.); and

 The level of the position and the talent desired.

Available job posting options include:

 Newspapers;

 Trade journals;

 Television and radio;

 Online posting – employment and other websites;

 Postings on other agency websites – utilize your networking; and

 Referrals from other agencies, colleagues, and former employees (good

ones!).

If your hiring is continual or frequent, consider maintaining a pool of potential

candidates. Maintaining an active internship program is another source of

future employees.

Finally, establish a timeframe. Set dates up front for closing the application

process, screening candidates, interviews, etc. The process may have to be re-

opened, but set a timeframe for a complete cycle and be prepared to adhere to it.

Screening

Once applicants begin to respond to the recruiting campaign, begin the

screening process, if feasible. Log the applicants and have a simple database

established in which the minimum requirements are set up as fields. As each

candidate’s application is received, log it in and fill in the appropriate data field,

thereby eliminating any candidate not meeting the minimum requirements for

education, previous experience, software experience, and anything else that

has been specified in the job posting. Remember, anyone that cannot follow

instructions in applying for a job will not follow instructions on the job.

This is also where a full understanding of EEOC law is important if the P&A has

15 or more employees. For an explanation of how the law affects the

application process, see www.toolkit.cch.com/text/P05_0810.asp Determining

Who is An Applicant.

Pre-Interview Process

Once candidates have been selected to come for an interview, many P&As

choose to have a separate job application completed prior to the interview. This

application provides important information that may not be contained in the

resume that was submitted. However, there is significant information that

cannot be asked on a job application. For a complete list, visit What to ask on

a Job Application www.toolkit.cch.com/text/P05_0850.asp, and What not to

ask on a Job Application www.toolkit.cch.com/text/P05_0870.asp. It is also

advisable to include certain statements on every job application; see What to

include in your Job Application www.toolkit.cch.com/text/P05_0880.asp.

Depending upon the position, it is advisable to have competency tests prepared

for the candidate. For example, if the position is for an administrative assistant

that needs to be competent in Microsoft Word, Excel, Access, and PowerPoint,

create a short test in which the candidate can demonstrate familiarity with all

four programs. This simple process identifies those that claim they are

proficient, but truly are not, saving weeks of lost time in probationary periods

and having to restart the cycle. Other testing and pre-screenings are

determined by the needs of the position.

Interview

Essentially, there are two types of interviews: structured and unstructured. A

structured interview is based on a pre-established list of questions that are

posed to the candidate. The interviewer controls the entire process and allows

little deviation from the established list. An unstructured interview is open-

ended and essentially goes wherever the conversation flows. The best

interview is a combination of the two styles, in which the interviewer has

prepared a list of questions that will be posed to each candidate – providing a

basis of comparison in the decision-making process – but also provides for

exploration of the candidate’s answers and history by the interviewer.

The questions developed by the interviewer should accomplish multiple

purposes:

 Give the candidate an opportunity to market how his/her KSA (knowledge,

skills, abilities) uniquely suit this job;

 Explain why the candidate is seeking to leave their current job situation;

 Explain any gaps in the resume/job application;

 Open the door for the candidate to ask exploratory questions of her/his own

about the P&A and the opportunity for growth;

 Explain the candidate’s self-perceived strengths and weaknesses;

 Explore the candidate’s short and long-term goals;

 Give the candidate the opportunity to explain why s/he wants this position.

Once again, there are specific questions to avoid due to potential discrimination

issues. For a discussion of those questions, visit Questions Not to Ask

www.toolkit.cch.com/text/P05_1430.asp.

At the conclusion of the interview, the interviewer should tell the candidate the

selection process timeframe and assure him/her of contact by a certain date,

whether selected or not. References and documentation of education should be

collected in case a hire decision is made. (When the appointment is initially

scheduled, the candidate should be asked to bring copies of degrees and a list

of references with her/him to the interview. If a hire decision is made, then the

references can be called and education can be verified.)

During an interview, a frequently made error – by either party – is to allow the

discussion to wander off topic. A good interviewer will stay on task, utilizing the

previously established questions as a guideline, realizing that in the final

decision-making process, blank sections on the note sheet will make

comparison difficult. Printing out the questions and allowing space for notes will

facilitate the interview and ensure fairness in all interviews.

Controlling the interview is critical. A skilled applicant will drive the interview to

highlight her/his KSA and how they suit the P&A’s needs. It behooves the

interviewer to drive the interview to discover the information needed to make an

informed decision for the P&A. A balanced give-take of information throughout

the interview is characteristic of an excellent exchange. If either party has

dominated the conversation, then it can almost be guaranteed the interviewer

will not have the adequate information needed to make a qualified decision.

Hiring

Before the offer of employment is given, several more steps need to be

completed. Depending upon the P&A’s hiring practices, they might include:

 Background check

o Criminal records check. For jobs in which the employee will have access

to people's homes or to sensitive information, you should conduct a

criminal records check. The P&A will need to be protected from liability

by doing criminal background checks on applicants who will:

 Drive a company vehicle;

 Have access to master keys; and/or

 Have a great deal of contact with the public, patients, or children.

o Reasonable investigation duty. You have a duty to make a reasonable

investigation of an applicant's fitness before hiring. The extent of the

duty may vary with the circumstances.

o You can be held liable if:

 you didn't do a background check.

 you hired an employee you should have known (through proper

checking) was incompetent or unfit

 Education verification www.toolkit.cch.com/text/P05_1565.asp

 Reference check www.toolkit.cch.com/text/P05_1520.asp

 Employment references www.toolkit.cch.com/text/P05_1525.asp

 Personal references www.toolkit.cch.com/text/P05_1550.asp

 Driving Records (if driving company vehicle) www.toolkit.cch.com/text/

P05_1590.asp

The Job Offer

Once the final decision is made, the job offer should include the following

components:

 the position offered;

 location and working hours;

 salary (although sometimes salary must be negotiated before the applicant

will accept);

 benefits;

 starting date;

 any papers or information that should be brought on the first day of work; and

 a date by which the applicant must respond to your job offer, so you can

move on to the next candidate if necessary.

Evaluate your process

Once the entire cycle is completed, evaluate the success of this effort and

make adjustments for future hiring endeavors. Document the changes that

need to be made in order to save time in the future. If any ideas need to be

implemented now, such as changes in job applications, connections with

recruiting agencies, etc., move forward with them. If others in the P&A will be

involved in hiring in the future, share the experience in a short staff meeting or

training so that all can benefit from what was learned.

5.2.8.3 Resources

• Chapters 3-7 of the Office of Personnel Management’s Delegated

Examining Operations Handbook reviews the entire acquisition of

personnel process.www.opm.gov/deu/Handbook_2003/DEOH-Contents.asp

• Business Owners Toolkit A comprehensive guide to all aspects of the

selection and hiring process. When most people think of hiring an

employee, they tend to think only of classified ads and interviews. This site

considers the full process with serious implications for the future of the P&A,

and the time needed to examine your needs and to hire and recruit in a

systematic, legal way. www.toolkit.cch.com/text/P05_0001.asp

• Editor’s picks from Entrepreneur.com on the topic of Hiring

Employees A wealth of articles covering the entire topic.

www.entrepreneur.com/Your_Business/YB_Node/0,4507,500,00.html

• Recruiting - Employee Recruitment: Recruiting Talented Employees

Links to multiple articles addressing various aspects of the recruitment

process. http://humanresources.about.com/od/recruiting/#more

• Interviewing Tips and Interviewing Techniques Links to multiple articles

addressing various aspects of the interview process.

http://humanresources.about.com/od/interviewing/

• Employee Selection and Employee Hiring Links to multiple articles

addressing various aspects of the selection and hiring process.

http://humanresources.about.com/od/selectemployees/

• Testing Job Applicants There are many tests that you can administer to

job applicants. Some cannot legally be given until after a conditional job

offer has been made, while some may be a part of the application and

selection process. www.toolkit.cch.com/text/P05_0950.asp

• Restrictions on Criminal Record Checks Select the state and see the

specific state laws and the federal civil rights law applicable to employment.

www.toolkit.cch.com/text/P05_1600.asp

• Recruiting and Interviewing Another multiple step guide to the full

process. www.is4profit.com/businessadvice/recruiting-interviewing/

5.2.9 Disability Hiring Advocacy

5.2.9.1 Importance to P&As

P&As are uniquely positioned as potential role models for both government and

industry in the employment of people with disabilities. While federal and state law

only goes so far in requiring equity in employment practices, P&As need to go

the extra mile in ensuring that people with disabilities have been given every

opportunity to demonstrate the ability to function and perform with their peers in

the workplace. With the emphasis on the functions of a job and the KSA needed,

accommodations can be put in place to enable an individual with disabilities to

function well, performing the job at the same standards as any employee without

disabilities. When a P&A establishes with its entire staff that this is the attitude

with which placement will take place internally, external advocacy is made

sharper and more aggressive, based on experience and not just theory.

5.2.9.2 Models/Best Practices

Businesses hire people with disabilities for three primary reasons:

1. Benefits the organization directly by filling vacancies;

2. Benefits a company’s long-term viability and profitability by enhancing the

corporate image, demonstrating a commitment to the community and

lending additional credibility and relevance to P&A advocacy;

3. Benefits to the company are of secondary importance in comparison to the

outcomes expected for the employee with a disability and for the community

at large; reflects the organization’s commitment to corporate social

responsibility.

P&A’s should be hiring people with disabilities for all three of the reasons

above, again serving as a model for the business community and sounding a

positive message of advocacy for the community at-large. Several elements are

required to implement this policy:

 A comprehensive position description must articulate the KSA needed to

perform the specific functions of this job. It must also clearly delineate the

any physical attributes necessary to perform the job.

 When interviewing a candidate with the appropriate KSA, do not enter into a

discussion of the accommodations. When a job offer is made, then it is time

to discuss appropriate accommodations.

 When making accommodations, it behooves the P&A to make every effort

to make this work. Keep in mind it is the accommodations to the work

environment, not to mastering the work. As an employer, the first obligation

is to ensure that the mission of the P&A is being met and the resources of

the P&A are being appropriately allocated to accomplish that objective.

 Once it has been established that the individual will be accepting employment

with the P&A, the next step is working with the manager/supervisor to

establish the work performance objectives for the coming year, and the

standards against which the accomplishment of these objectives will be

measured, keeping in mind that during the quarterly and annual performance

appraisal this employee will be reviewed in the same manner and against the

same standards as any other employee. S/he is viewed as a member of the

team and should be viewed as such by management and peers alike.

 Ensure that all accommodations are in place before the first day of

employment, and ensure that all staff members are prepared to both welcome

and support the new employee in the appropriate manner. Remind all, if

necessary, that this is their peer. Discuss with appropriate personnel the

accommodations that have been made so everyone can be equally supportive.

 Finally, remember that accommodations do not mean accepting sub-

standard work. All employees need to fulfill their organizational

responsibilities and be held accountable.

5.2.9.3 Resources

• Disability Etiquette Handbook A comprehensive etiquette guide that can

be used by anyone, anytime in working side-by-side with an individual with

disabilities. Includes the following topics:

 Reasonable Accommodation in the Workplace

 Etiquette For Greeting and Assisting a Person With a Disability

 Conversational Etiquette

 Interview Scheduling Etiquette

 Interviewing Technique Etiquette

 Interviewing Courtesies for Effective Communication

 Do and Don’ts

www.diversityresources.com/rc_sample/etiquette.html

• Information on Hiring People with Disabilities Social Security

Administration’s information page for employers on hiring people with

disabilities. www.ssa.gov/work/Employers/employers.html

• U.S. Department of Labor Office of Disability Employment Policy Hiring

People with Disabilities www.dol.gov/odep/pubs/ek97/hiring.htm

• Centers for Medicare and Medicaid Services, Office of Equal Opportunity

and Civil Rights Hiring People with Severe Physical Disabilities

www.cms.hhs.gov/about/oeocr/HiringPeoplewithSeverePhysicalDisabilities.asp

• Interim Report on Best Practices for the Employment of People with

Disabilities in State Government published by The U.S. Equal

Employment Opportunity Commission. www.eeoc.gov/initiatives/nfi/

int_states_best_practices_report.html

• Benefits and opportunities for employers who hire people with

disabilities Includes four video clips, one entitled, Accommodations can be

Simple. www.workabilityutah.org/uwin/webpage/products/workability/

01/BenefitsAndOpportunites/benefitsandopportunities.html

• Why Employers Hire People with Disabilities National Center on

Workforce and Disability/Adult provides this resource page with multiple

topical links. www.onestops.info/article.php?article_id=67&subcat_id=5

• Top 10: Employer Perspectives on Hiring People with Disabilities

(Understanding the Business Case) or “Hiring and retaining workers with

disabilities is not “social program”-VR needs to understand and promote the

business case” http://ctat-training.com/cgi-script/CSNews/pdf_upload/

Top%2010%20from%20Katherine%20pdf.pdf

5.2.10 Anti-harassment Policy

5.2.10.1 Importance to P&As

With the Anti-harassment Policy, size of the P&A plays a role only in the legal

requirements of what must be implemented (See §5.2.7.2 Minimal Standards

below). Even if the P&A has fewer than 15 employees, it must also be

concerned with preventing harassment because it can sometimes be sued in

state courts, depending on the state's sexual harassment laws. More broadly,

however, the enforcement of a solid anti-harassment policy creates a work

environment that can be enjoyed by all employees when it is free of the

underlying stress created by harassment of any nature. While this policy should

have also been covered in the general personnel and policies (§5.2.1), it

warrants separate discussion because of the significant legal ramifications.

5.2.10.2 Minimal Standards

If you have 15 or more employees, an organization is subject to federal

antidiscrimination laws, which means the P&A has a legal obligation to provide

a work environment that is free from intimidation, insult, or ridicule based on

race, skin color, religion, gender, national origin, age, or disability.

5.2.10.3 Models/Best Practices

Recognition of what harassment is in all its forms must precede the

implementation of any policy regarding it.

Definition

Harassment is verbal or physical conduct that denigrates or shows hostility or

aversion toward an individual because of that person's (or that person's

relatives', friends', or associates') race, skin color, religion, gender, national

origin, age, or disability, and that:

• has the purpose or effect of creating an intimidating, hostile, or offensive

work environment;

• has the purpose or effect of unreasonably interfering with the individual's

work performance; or

• otherwise adversely affects the individual's employment opportunities (from

Business Owners’ Toolkit www.toolkit.cch.com/text/P05_5155.asp).

Policy & Procedures

A comprehensive policy will include five major elements:

• definition of harassment;

• harassment prohibition statement;

• description of the complaint procedure;

• description of disciplinary measures; and

• statement of protection against retaliation.

A comprehensive anti-harassment policy alone is not sufficient. There must

also be a filing process in place through which any employee can notify the

organization of a complaint. There must be alternatives available to the

employee, particularly if the supervisor is the party identified in the complaint. If

the anti-harassment policy is being updated or newly implemented, then obtain

from each employee a signed acknowledgement that the policy has been

thoroughly explained and s/he understands the policy and the avenues

available to file a complaint.

Training on anti-harassment is highly recommended throughout the country in

today’s business environment. In an effort to better educate the total workforce

about what constitutes harassment, many organizations are taking the time

necessary in staff meetings, workshops, etc. to review this information and then

have employees sign the acknowledgement form. This extra effort can have

long-term benefits in creating an atmosphere of respect, as well as a clear

understanding of how to handle complaints should harassment occur. It also

provides a better legal foundation for the employer.

Management should always keep a sensitive ear to the ground when it comes

to harassment issues. Intimidation is a common workplace problem that, once

rooted, is difficult to cut out of an organization, and the damage can be deep.

5.2.10.4 Resources

• The Development of Anti-Harassment Policies from HR Tools A step-

by-step process. www.hrtools.com/HREssentials/P05_5150.asp

• Sample policy taken from British Columbia’s Personnel Policy Manual

This policy is very comprehensive and involves more layers of authority than

a P&A will have to administer, but it gives the reader a sense of the

seriousness of this policy and how to adapt it to the reader’s organization.

www.bcpublicservice.ca/policies/Directives/1-4/03-01dH-rev.htm

• High Court Rulings Stress the Importance of Anti-Harassment Policies

A discussion of Supreme Court rulings that have impacted harassment

cases and what that means to employers. www.peoplesystems.com/

harassment/sharticle.asp?expand=11

• Having a Written Anti-Harassment Policy Is No Longer an Option, New

York Law Journal: Labor and Employment Law, explains in detail the

components needed for a legally sound anti-harassment policy.

www.goodwinprocter.com/publications/solecki_digilio_3_10_03.pdf

• Training: Now Essential In New Jersey for an Effective Workplace

Harassment Policy While this case is specific to New Jersey, it is a

comprehensive explanation of why employers are now being held

responsible for implementing training in their anti-harassment policies

www.littler.com/nwsltr/asap_nj_harassment.html

• US Supreme Court sets guidelines for constructive discharge cases

and rules on availability of employer defense This case began in

California and was a sexual harassment case in which there was a policy,

but no one acted on the employee’s complaint. She resigned and then sued.

www.theisonlawgroup.com/?news%7C1042

5.2.11 Staff Time & Attendance Records

5.2.11.1 Importance to P&As

Funding provided through grants requires a documented audit trail of how those

funds are expended, including the appropriation of staff time. Documentation

needs to be clear, justifiable, and maintained for a minimum of the current year

and the previous two years.

Of secondary importance in tracking staff time is understanding the efficiency

with which the organization is operating. Through an accurate tracking of staff

time, an analysis can be run of the operations of the organization to determine

whether the delegation of staff time has been optimized and, consequently,

grant dollars spent most effectively.

5.2.11.2 Minimal Standards

Grantors have specific requirements that must be met with regards to historic

documentation of staff time appropriated for grants. Frequently, the common

requirement is the minimum of the current year and two previous years. Consult

each specific grant to ensure compliance.

5.2.11.3 Models/Best Practices

One of the challenges in capturing staff time and attendance is to avoid the

process becoming so burdensome that it overrides the benefits in the

information obtained. Senior Management needs to be realistic in evaluating

instruments used to capture task activity data to determine which will interfere

least with the performance of the job itself. Similarly, in documenting staff

attendance, determine which instruments will facilitate payroll processing and

employee communications pertaining to benefits.

When collecting staff information, there are several factors that should be

considered:

 All of the purposes for which the information can and will be used;

 Who will be using the information;

 Who will be collecting the information; and

 How it will be accessed and, therefore, stored.

Purposes

Additional analysis is required when considering the first question. Multiple

purposes are served by staff time and attendance data:

 Payroll processing

o Days in attendance;

o Days earned toward paid time off/vacation/sick leave, etc.;

o Days taken against already earned time.

 Tracking activity spent per staff member per project/account, etc.

o Grant accountability;

o Accuracy of position description against duties performed;

o Analysis of total organizational effectiveness in utilization of human

capital.

 Future planning

o Sufficient resources to accomplish current established objectives;

o Sufficient resources to accomplish projected objectives.

Who will be utilizing the data

Determining who will be using the data directs the level of sophistication required

in the data collection system, as well as the flexibility in how that data can be

manipulated to access it for different outputs. The same information may need to

be accessed by the comptroller for the grant-accounting task, human resources

for payroll processing and benefits administration, and the CEO for strategic

planning. How effective the P&A desires to be through the utilization of this

information will determine the flexibility of the instrument chosen.

Who will be collecting the data

This is a bi-level process. The primary collection point is from each staff

member. Consideration of the time required at this level is crucial. Many

organizations weigh their employees down in this process by requiring detailed

accounting of activities within every day. The question senior management

must ask is exactly what information is needed, and how can that information

be obtained most efficiently.

Consider, for example, the various grants to which one employee may be

assigned. This employee may be performing the same job functions for

different grants. What would be the most effective way to track and account for

that time? Similarly, there may be different job functions for different grants

performed by one employee. Again, how can the data-collection process be

minimally intrusive in the performance of the job?

The second level is the individual responsible for collating the raw data

collected by the employees themselves. What technical knowledge will be

required of this individual and how intensely will s/he be responsible for

analyzing the data for its use by others?

Ultimately, the more thought that is invested in this process, the more dynamic

the benefits the organization will receive from it.

5.2.11.4 Resources

• How should I measure the activities of staff involved in providing an

intervention? A discussion of the appropriate protocol for measuring staff

activities. www.herc.research.med.va.gov/FAQ_C1.htm

• A Sample weekly Time/Activity Sheet This form is designed to keep track

of time spent by staff on CUE activities for the purpose of accounting for the

use of agency fee monies. www.cueunion.org/cuesupes/docs/timesheet.pdf

• Google web search of software programs providing tracking for time

and attendance www.google.com/Top/Computers/Software/Accounting/

Time_Tracking/

• This website promotes a specific vendor’s System-wide Application

Process that integrates accounting with the grant-tracking process.

However, it provides a succinct explanation of the wisdom in doing so.

http://emfinc.com/blackbaud/PDF/ProjectGrantsandEndowments.pdf

• Time & Attendance Application Developers. Choose a developer

from the list to view their contact and product information.

www.digitalpersona.com/developer/exisDevSol/timeAtten.html

• A Set of 10 data templates that can be used to fully analyze your

organization. Included among them is a template for the Distribution of

salaries/fees by Program (DT3) with detailed instructions for its use.

www.nea.gov/resources/Lessons/EVANS.html

5.2.12 Best Practices in Supervision

5.2.12.1 Importance to P&As

Supervision practices within an organization can be the strong link that holds the

chain together, or the weak link that permits it to come apart. Through the

supervisor, vision and organizational goals/objectives are communicated and

core principles/values are portrayed – positively or negatively. Through the

supervisor, employees are encouraged or discouraged; motivated or de-

motivated; strengthened as team members or disenfranchised as non-members.

Frequently, individuals are promoted to levels of supervision for inappropriate

reasons, or before they have been adequately prepared and trained for this

task of supervision. What senior management fails too often to foresee is the

long-term impact of a short-sighted decision. Supervisors must be leaders by

the very nature of having subordinates report to them. They must have the

ability to bring forth the best out of each employee, by understanding both the

position requirements and the nature of the organization, and how the position

integrates with that nature. Then finally they must understand how this

individual will bring his/her specific set of talents and skills to this position to

move the total organization forward.

Supervisors must have high expectations for themselves and what they can

contribute to the mission of the organization; that is the only way that message

will be imparted to the employees for whom s/he is responsible.

5.2.12.2 Models/Best Practices

In developing supervisors/managers in P&As, it is ideal to establish a formal

training program to ensure that everyone is functioning under the same principles

and working as a team for an effective organization. How a training program is

implemented will depend upon the resources available to each P&A. However,

the components of the program should cover essentially the same material:

 Role of the supervisor/manager in achieving the mission of the organization;

 Understanding own management style and how it impacts assigned

subordinates;

 Understanding the strengths/weaknesses of each subordinate;

 Effective team management/blending team members’ strengths and

weaknesses;

 Communication methods;

 Various methods of developing employees;

 Implementing a year-round performance improvement system; and

 Project management.

However individuals came to be managers/supervisors within the P&A, it would

be beneficial to establish benchmark expectations for that aspect of their

performance organization-wide, if none have been set before. For some it will

be an opportunity to mentor others. For newer managers/supervisors, it will be

an opportunity to gain the needed skill-set to lead a team within the

organization. In all cases, the P&A visibly establishes for all employees the role

and expectations for its manager/supervisors.

5.2.12.3 Resources

• Employees’ University – County of Santa Barbara: Supervision

Certificate This program is an in-depth model of the knowledge that

supervisors should master in order to operate effectively in supervising

other employees. www.employeesu.com/eu_certificate.asp#Supervison

• University of Colorado at Boulder – Attributes of a Good Internship

Program. A discussion of a solid internship program lays the groundwork

for a good supervisory relationship as well. http://leeds.colorado.edu/

career/interior.aspx?id=257,302,305

• Reflective Supervision Although this setting is one of child care, the

supervisory issues can be paralleled to any working environment.

www.headstartinfo.org/publications/hsbulletin73/hsb73_32.htm

• Training Report: A series of articles on Leadership

www.trainingreport.ca/articles/headlines.cfm?StoryCategoryID=8

• Best Practices for Good Management – The State of Utah Written from

the state perspective, each department head could then take it down to his/

her level and implement the same concepts. www.le.state.ut.us/audit/

00_2001rpt.pdf

• Best practices reveal supervisors' critical role This is Module 5 from the

Change Management Guide for Managers and Supervisors, which presents

the essential steps to enable supervisors to coach their front-line employees

successfully through change. www.change-management.com/tutorial-

coaching-mod5.htm

5.2.13 Ethical Practices

5.2.13.1 Importance to P&As

Ethics has come to the forefront in corporate discussions, and now is also

becoming prominent in the nonprofit world, as well. The visibility of this topic has

been due in large part to the publicity frenzy on the few well-known cases of

unethical or fraudulent behavior within both corporations and nonprofits. The call

for clarity and commitment to high standards and ethical conduct is a plus,

especially for organizations that serve the public good. When all employees and

members of the Board of Directors of nonprofits strongly commit to a published

code of ethics, a statement is made to both supporters and beneficiaries of that

organization that the focus is singular and mission-oriented.

A published code of ethics also sends a strong message to new employees that

clearly states what is and is not acceptable behavior in the hiring organization.

The boundaries are set up-front, making future conversations regarding

potential infractions easier to manage. Publishing the code and setting the

boundaries up-front, however, is not sufficient. Ethical behavior must be a part

of training, staff meetings, and ongoing discussion as it relates to the work that

is done every day. Employees need to believe that the code of ethics is indeed

as much a part of the organization and its mission as is the strategic plan.

The code of ethics needs to be built upon the core principles of the organization.

While there are basic ethical standards within any business organization, the

core principles of P&As revolve around independent advocacy, loyalty to the

individuals with and for whom we advocate and, ultimately, maximum dignity and

independence for individuals with disabilities. Therefore, all aspects of the code

of ethics should reflect how business will be conducted within that framework.

This becomes critical for those individuals transitioning into a P&A from other

organizations within the disability arena that may not share the same core

principles. For example, serving someone within an institution may fit a given

provider’s code of ethics, but it would be totally unethical if a P&A’s code of

ethics communicated an attitude of settling for convenience for all stakeholders

in some form of institutionalization versus maximum independence possible for

the individual for whom advocacy is sought.

5.2.13.2 Minimal Standards

There are clearly delineated ethical standards for attorneys. In addition, all

advocates in P&As must give fundamental attention to independent advocacy,

loyalty to the individuals they serve, safeguarding individuals against harm, and

unnecessary conflicts of interest.

5.2.13.3 Models/Best Practices

The resources listed below provide several excellent models and access to

hundreds of others. Best practices for implementing and sustaining highly

ethical standards within the organization have several elements in common:

 Core principles are well-integrated into the code of ethics;

 Intent of each standard in the code is stated and explained, as well as the

implication on doing business within that standard;

 Employee orientation includes training on the code of ethics and the

organization’s expectations of all employees;

 Ongoing training is conducted to maintain awareness of ethical standards

and expectations in all employees’ activities; and

 A forum is available to all employees to bring ethical concerns to a

manager/supervisor for advice or discussion.

When first implementing or training on ethical standards expected within the

organization, realistic role playing or group discussions of realistic scenarios

engage employees in processing how ethics impact each person everyday on

his/her job. Codes of Ethics can be viewed as an organizational standard

envisioned by senior management that sounds great but has little impact on the

daily operations. It is the function of effective training to demonstrate the

opposite. It is the function of senior management to ensure that ethical behavior

from every employee in the P&A is the norm, not the exception, and to clearly

define what that ethical behavior is.

5.2.13.4 Resources

• Ethics and Culture Management are Good for Business This

comprehensive website covers all aspects of integrating ethics into the culture

of your organization. Among other concepts, it explains the first objective of

any ethics policy is to facilitate legitimate ethical reasoning activity. It is

impossible to merely glance at an ethics policy and judge its "goodness." The

true test of any ethics policy is how it actually works within a specific

organization.

www.ethicsquality.com/humanresourcemanagement.htm

• Complete Guide to Ethics Management: An Ethics Toolkit for

Managers by Carter McNamara, MBA, PhD. Applies to nonprofits and for-

profits, unless noted. www.managementhelp.org/ethics/ethxgde.htm

• SHRM Toolkit: A Guide to Developing Your Organization’s Code of

Ethics www.shrm.org/ethics/organization-coe.pdf

• Workforce Management A series of articles on all aspects of ethics,

including the positive impact of implementation on the total organization.

www.workforce.com/picosearch/search.php?psel=10&phide=1&sup=busine

ss_issues_and_trends

• Defining and Communicating Ethics In Your Business from Ivy Sea

Online. This articles addresses the following concerns: What does it mean

to be ethical; our ethical foundation and examples of ethics; and tips for

communicating organizational codes of ethics.

http://humanresources.about.com/gi/dynamic/offsite.htm?zi=1/XJ&sdn=hum

anresources&zu=http%3A%2F%2Fwww.refresher.com%2F%21ethics

• The EthicsWeb is a collection of ethics-related websites, run by

philosopher-ethicist Chris MacDonald. Chris has been administering

respected ethics-related websites since 1994. www.ethicsweb.ca/

APPENDICES

A. Standards for Advocacy Programs Serving People with Disabilities

B. Model Grievance Policy Summary Sheet

C. Model Grievance Policy

D. Model Policy on Notice of Grievance Rights

E. Model Grievance Form

F. Sample Grievance Log for Administrative Staff

G. Sample Agreement for Short-Term Assistance – California P&A

H. Sample Agreement for Regular Assistance – Oregon P&A

I. Sample Civil Rights Retainer – Center for Public Representation

J. Sample Damage Action Retainer – Center for Public Representation

K. Sample Co-Counsel Agreement – California P&A

APPENDIX A

STANDARDS FOR ADVOCACY PROGRAMS

SERVING PEOPLE WITH DISABILITIES

National Disability Rights Network

2/04

(revised 10/07)

INTRODUCTION

The following consensus statement was adopted by the NDRN Board of Directors.

Principle

The National Disability Rights Network (NDRN) expects that all Protection and

Advocacy Systems (P&As) will move toward full compliance and implementation of

these standards.

Purpose

NDRN intends that these performance standards describe the boundaries of

acceptable practice for effective advocacy, and provide guidance concerning the quality

of P&A services.

Monitoring

• The standards are to be used on a voluntary basis for internal self evaluation

activities, peer consultations, and program-requisitioned external evaluations.

They are designed to assist P&As to identify program and organizational

strengths and weaknesses, as well as technical assistance needs.

• These performance standards have not been designed for use by any

administering agencies or other outside entities for purposes of sanctioning P&As

in retaliation for assertive advocacy or for political purposes.

• In the event that administering agencies elect to use these standards in

developing evaluation instruments, NDRN will be committed to negotiating and

developing appropriate protocols for their use in promoting quality services.

• The peer consultation based on these standards will not result in a numerical

score but will culminate in a written report to the program outlining

accomplishments and areas for improvement.

Time Table

• It is the expectation of NDRN that all programs should strive to meet these

standards as fully and quickly as possible. All standards will become operative

within one year of their adoption by the NDRN Board of Directors.

DEFINITIONS

For purposes of these standards, the following terms are used:

• Advisory council – a group of persons who confer with program staff and the

agency board to influence the direction of the program including identifying

priority client groups, and the nature of advocacy activities. Under federal law,

P&As who work on behalf of people with mental illness must have advisory

councils where half the members are potential advocacy recipients and/or their

families.

• Advocacy – speaking on behalf of a position, cause, one's self, or, an individual

with a disability - especially when rights or interests are at risk or have been

violated, or to secure those rights.

• Advocacy program –includes all entities under subcontract that are receiving

funds to provide advocacy services as part of the mandate of any P&A program

(i.e., PADD, PAIMI, PAIR, PATBI, PAAT, PABSS, PAVA, CAP).

• Client – A person with a disability who is receiving advocacy services from a

P&A program.

• Conflict of interest – a conflict that arises when (1) a program staff person, or a

member of the governing board or advisory committee stands to gain financially

from an action of such program, board, or committee; (2) the interest of a staff

person, or a member of the governing board or advisory committee is contrary or

opposed to the interest of a particular program client or class of clients; (3) one

client seeks the agency's assistance in representing his/her interests against

those of an otherwise client.

• Executive director – the person who is in charge of and responsible for the P&A

program, and who reports directly to the governing board of the agency.

• Governing board – the legally constituted board of directors of a nonprofit

advocacy organization.

• Governing authority – the legal governing structure of the program,, which may

be a public entity or a private, nonprofit board of directors.

• Legal advocacy – advocacy by an attorney or advocate working under

supervision of an attorney designed to protect or enforce the legal, civil, and

human rights of individuals or groups of individuals with disabilities.

• Segregated setting – a setting – such as a facility, school, or residential

program – that (1) is created for the sole purpose of serving people with

disabilities; (2) is of such size and composition that it could not be construed as a

normal community residence or work environment; or (3) restricts the ability of

participants to interact with the surrounding community.

• Systems advocacy – concerted action to reform the policies or mode of

operations of a system of services such as the school system or the disabilities

service system. Systems advocacy may also include legislative advocacy. The

purpose of systemic advocacy is to (1) to reform the underlying structure of

public and private institutions and systems which serve individuals with

disabilities, in order to make them more accessible, fair, and effective; and (2)

expand the rights and entitlements of individuals with disabilities.

Values and Philosophy

Advocacy for persons with disabilities is based on the following values:

EQUALITY, EQUITY, AND FAIRNESS: People with disabilities are full and equal

citizens under the law. They are entitled to equal access to the opportunities afforded to

all members of the society. People with disabilities are entitled to be free from abuse,

neglect, exploitation, discrimination, and isolation, and to be treated with respect and

dignity.

MEANINGFUL CHOICE & EMPOWERMENT: People – regardless of type or level of

disability or age – have the right to make choices with respect to daily routines and

major life events.

SUPPORTS AND PARTICIPATION: Services and supports are shaped by the unique

needs and preferences of each individual, and assure opportunities for integration in all

aspects of life. Services are age-appropriate and premised on the fact that people with

disabilities continue to learn, grow, and develop throughout their lives. For children,

such growth is best accomplished within families, and for adults, in integrated

communities rather than institutions.

INDEPENDENCE: Services are based on equal access, peer support, and self-

determination to be achieved through individual, professional and system advocacy.

Services must maximize leadership, independence, productivity, and integration of

individuals with disabilities.

CULTURAL COMPETENCY: People with disabilities shall be included in all activities

undertaken by the Network and P&A/CAP staff. Boards and services should reflect the

diverse cultural, ethnic, racial, and disability diversity of their state.

RESOURCE GENERATION: P&As/CAPs will be leaders in public policy that has a

positive impact on the lives of children and adults with disabilities and their families.

P&As/CAPs will work to enhance their resources to provide high-quality legal and

advocacy services to people with disabilities.

Advocacy Principles

The following principles govern the way in which advocacy services are organized and

delivered:

1. People with disabilities share with all citizens of the United States and its

territories basic human, legal, and civil rights.

2. The primary role of advocates is to establish, expand, protect, and enforce the

human, legal, and civil rights of people with disabilities.

3. The role of the advocate is to inform the client about options, assist the client to

express preferences, and ensure that these preferences are heard and

vigorously pursued within the scope of the law.

4. Advocacy efforts are sensitive and responsive to the unique needs of individuals

from diverse ethnic, racial, and cultural backgrounds.

5. Advocates appreciate the realities that confront clients and take meaningful

direction from clients.

6. Advocacy programs are accessible and reasonably available to the places where

people live and work.

7. The availability of advocacy services is known to potential clients, the location of

services is physically accessible, and the program possesses the resources

necessary to communicate with its clients.

8. When a decision or meaningful choice cannot be or is not expressed by a client,

or when consent is not available from or provided by a client or legally authorized

substitute, advocates safeguard and advance the human, legal, and civil rights of

the person with a disability in a way that does not limit the client's options for

choice.

9. Advocates assist people with disabilities to speak for themselves regarding their

personal, programmatic, and service goals and desires.

10. Advocates seek access to, and participate in forums such as state rule-making

and planning and legislative and policy development processes that affect the

rights and opportunities for people with disabilities.

11. Advocacy programs are accountable to the people whom they represent and

such accountability is reflected in the policies and practices of the program as

well as in the ethnic, racial, cultural, and consumer composition of the governing

authority and staff.

12. Advocates employ multiple means of action and redress, such as individual and

class representation, legislative and other systemic advocacy, training, and

consumer education.

13. Advocacy programs are administratively independent and physically separate

from service providers and state agencies responsible for the provision of

services to persons with disabilities.

14. Advocacy priorities include the special concerns of people in segregated settings

and promote opportunities for integration in work, education, leisure, and

housing.

15. Advocacy resources and priorities address the human, legal, and civil rights of

those individuals in the greatest jeopardy and with the greatest needs.

16. Advocacy efforts recognize and promote the right to a range of appropriate and

humane treatment and habilitation options.

STANDARDS

I. Mission/Program Goals

The mission and program goals of the advocacy program are the basis upon which it

functions. These assertions translate into the purpose of the agency and govern the

character and direction of its activities.

1. The program has a written mission statement or statement of program philosophy

and purpose.

• The mission statement is consistent with the values and advocacy principles

articulated in these standards and with federal legal mandates and governing

regulations.

• The mission statement addresses the multiple concerns of the program's

constituencies.

• The mission statement is adopted by the governing authority.

• The mission statement is reviewed periodically with input from the advisory

council(s) and other constituencies.

2. There is a statement of program goals, derived from the mission, by which activities

are carried out.

II. Ethics and Values

Federally supported advocacy programs for persons with disabilities and people with

mental illness were established in large measure because service systems violated

clients' rights, and clients lacked information about opportunities to exercise their legal

and human rights.

Advocacy programs, therefore, should strive to overcome any barriers to effective

communication with clients, and to attain the advocacy goals espoused by the client.

This is especially true for persons who need assistance with communication; are

confined to segregated settings; and are members of racial, cultural, or ethnic

minorities, or who reside in rural areas or regions which lack appropriate services and

resources.

1. The program represents the expressed preferences of its clients, thereby presuming

the competency of clients.

2. Advocates systematically and thoroughly attempt to discern client preferences in a

non-judgmental fashion to guide individual, as well as system, advocacy efforts.

3. There are methods and guidelines established to interpret the preferences of clients

with limited or non-standard communication systems, as well as reliance upon the

experience of the advocates in serving such persons.

4. Advocates make good-faith efforts to employ these methods to interpret client

preferences in their work.

III. Priority Setting and Planning

It is through the priority setting and planning process that the advocacy program

translates its mission and goals into priorities and, ultimately, plans for implementation.

It is also an opportunity for the program to reach out to its multiple constituencies. As

such, the process is dynamic and inclusive. Because programs cannot respond to all

advocacy needs in the state, there should be a method for discerning which group or

groups of potential clients have the greatest advocacy needs so that limited resources

can be directed at such persons. This process includes those who are past, current, or

potential advocacy recipients and their family members. The priority-setting and

planning process culminates in specific objectives, case selection criteria, budget

allocations, intake mechanisms, and a description of the steps necessary to implement

the program's priorities.

1. The priorities are consistent with the mission statement and goals established by the

advocacy program.

• The statement of priorities for covered programs is consistent with federal

mandates and governing regulations, as well as with the advocacy principles

listed in these standards.

• The priorities address the client population to be served and the advocacy

strategies to be employed.

• The strategies for implementing priorities take into account the most efficient and

effective use of available resources.

• The priorities specifically address the needs of persons not capable of requesting

assistance due to the nature of their disability, the conditions of their

environment, and other related access barriers.

• The priorities address the needs of persons in segregated settings and those at

risk of abuse, neglect, and exploitation.

2. The priorities address the role of the program in serving racial and ethnic minorities

and other historically unserved and underserved groups.

3. In determining priorities, the program solicits the concerns and needs of current and

potential clients and their families, especially those most in need, including people

who are institutionalized, members of ethnic and racial minorities, and other

disenfranchised groups.

4. The priority setting process involves a range of groups such as staff, board

members, advisory council(s), consumers, families, and community representatives.

• On an annual basis, the program provides the public with an opportunity to

comment on the priorities established by the program.

• The program prepares a written plan or plans setting forth specific goals and

objectives in both systems and individual advocacy.

• At least every three years, the program comprehensively reviews, reaffirms, or

reformulates its advocacy priorities and prepares a written plan.

5. The program's priorities are widely publicized.

• A dissemination strategy is in place to ensure that the description of advocacy

activities and eligibility requirements reaches ethnic and racial minority groups.

6. Systemic and legal and other advocacy activities are consistent with the program's

priorities.

7. Advocacy programs translate their priorities into case selection criteria. Such criteria

are in keeping with legislative mandates and program mission.

• The program has documented case selection priorities requirements that are

based on legislative mandates, planning priorities, and the program's mission.

• In its case selection priorities, the program does not discriminate based on race,

gender, religion, age, disability, sexual preference, or any legally impermissible

criteria.

• The program has case-selection guidelines that are available to the public.

• To the extent feasible, individuals who are not served by the program are

assisted to find alternative services.

8. The allocation of program staff and other resources is consistent with the program's

stated advocacy priorities.

IV. Program Governance

Advocacy programs are governed by a variety of structures and organizations – both

public and private. Regardless of its nature, this governing authority should provide

effective, independent, and ethical leadership. The governing authority ensures the

accountability and stability of the advocacy program and protects the program from

arbitrary influences that are in a conflict with the program's mission or that interfere with

its responsibility to represent client concerns. The program must be independent of any

agency that provides treatment or services other than advocacy services. The

governing authority should ensure that these standards are enforced within the program

and its subcontractors. The governing authority also strives to maximize the capacity of

the program to serve clients effectively and responsibly.

The governance of a program provides for the participation and input of individuals

eligible for advocacy activities and their families, as well as representatives of the

public. The program's governing authority is accountable to those who are served by the

agency.

The following program governance standards are divided into three parts: (1) boards of

directors of nonprofit advocacy programs; (2) advisory councils; and (3) the governing

authority of an advocacy program within in a public agency.

When a program has a governing board of directors, the following standards will apply:

1. The governing board is composed of members who share a commitment to the

protection of the rights of all people eligible for the program as delineated in the

organization's mission statement and goals.

• The board includes representation from relevant minority, racial, and cultural

communities in the state.

• The board membership satisfies requirements of relevant funding sources.

• Depending on the clients served by the program, the board includes persons who

have disabilities.

• Depending on the clients served by the program, the board includes family

members of people with disabilities.

• The board membership includes an attorney.

2. There are provisions for the recruitment, appointment, election, and orientation of

new members; terms of office; and board member responsibilities.

• The board has bylaws that delineate limits on the terms of office of board

members and advisory council members; limits on the number of terms that

boards members can serve; meeting schedules; voting structure; and the

appointment process.

• Board vacancies are filled within 60 days.

• There is a mechanism to ensure board recruitment of new members to fill vacant

positions.

• There is a board member orientation process that introduces new members to

the program's mission and goals, and to their legal and ethical responsibilities to

clients served by the program(s).

3. The program has incorporated measures to ensure that the governance of the

agency is effectively safeguarded from conflicts of interest.

• In the composition and functioning of the governing board, the program does not

allow conflicts of interest to undermine the program's (a) overall planning and

priority- setting process; or (b) specific decisions regarding case selection, focus

of the program's advocacy, and choice of subcontractors.

• The program has adequately addressed the issue of membership on the

governing board of staff of provider agencies.

• There is a process by which members of the governing board are required to

abstain from decision-making on issues where a conflict or potential conflict of

interest may arise.

4. The role of the governing board is to set broad policy regarding program design and

priorities; and management, planning, financial, and personnel practices. The board

does not interfere with the advocate/client relationship.

5. The governing board conducts ongoing oversight and periodic evaluation of the

performance of the executive director and takes corrective action when the

performance of the executive director is found to be unsatisfactory.

6. The rules and bylaws governing the board are available to the public.

7. The executive director, as manager of the program, regularly consults with the board

regarding management, financial, and general personnel issues.

8. Board meetings and other events are held in physically accessible places.

9. Necessary supports are provided to board members to facilitate participation and

communication.

• Board members needing communication devices, transportation assistance,

interpreters, readers, or facilitators are provided with such resources.

• Board members are given necessary supports, including staff assistance,

payment for related expenses, relevant materials and information, orientation,

and training.

10. The board assists in activities such as community relations and systems reform that

support and enhance the program.

The following standards shall apply to PAIMI Advisory Councils only:

1. The advisory council includes attorneys, mental health professionals, individuals

from the public who are knowledgeable about mental illness, and a provider of

mental health services. At least one-half of the Advisory Council membership shall

be comprised of a combination of individuals who have received or are receiving

mental health services or who are family members of such individuals.

• The advisory council includes racial and ethnic minorities.

2. A major role of the advisory council is to advise the program on policies and

priorities to be carried out in protecting and advocating the rights of people with

mental illness.

• The recommendations of the advisory council are communicated to the

governing board (or to the governing authority when no governing board exists)

as part of the council's annual report, as well as regular reports to the board

regarding council activities.

3. 401.20 The advisory council develops the annual priorities in conjunction with the

governing authority.

4. 401.30 The chairperson of the advisory council serves on the governing board, where

such board exists.

5. 401.40 Advisory council meetings and other events are held in physically accessible

places.

6. 401.50 Necessary supports are provided to advisory council members to facilitate

participation and communication.

• Advisory council members needing communication devices, transportation

assistance, interpreters, readers, or facilitators are provided with such resources.

• Advisory council members are given necessary assistance including secretarial

and staff support; payment for expenses as necessary; relevant materials and

information; and orientation and training.

When a program is part of a state agency, the following standards shall apply:

1. The state agency provides mechanisms for soliciting input from persons eligible for

advocacy services, their families, and other interested persons in the development

of program priorities and in the assessment of program performance.

2. The state agency ensures that the advocacy program is insulated from conflicting

pressures and influences that would jeopardize the program's independent

functioning and its ability to vigorously represent the interests of clients.

3. The state agency has a policy that prohibits conflicts of interest among those

responsible for managing the program, advising the program, and providing

advocacy services.

V. Activities

The law requires that programs provide legal and systemic advocacy as core activities.

These functions should, therefore, receive a substantial portion of the program's

resources. The specific targets and content of these core activities depend on the

program's mission, goal,s and priorities. Other advocacy activities are those endeavors

that facilitate program access to priority groups and to ethnic and racial minorities;

provide needed information, referral and training; test new ways of supporting individual

clients; and enhance the position of the program in the community and in the state. The

activities provided by the program should be clearly spelled out and made available to

the public.

Advocating on behalf of people with disabilities and people with mental illness presents

unique challenges. Because some individuals have difficulty making their wishes

known, or their wishes have been historically discounted, advocates should ascertain

the preferences of clients in an aggressive and non-judgmental fashion. When client

preferences cannot be ascertained, strict policies and procedures should be in place to

guide decisions. Advocates must also be given the resources necessary to provide

effective representation.

Individual and systemic advocacy activities should be conducted by persons who are

professionally competent, sensitive to their clients, and committed to high-quality work.

To this end, a program should actively develop recruitment policies that ensure the

identification of such individuals. Supervision of less-experienced advocates is

necessary to assure that clients' interests are not jeopardized and to facilitate

development of proficient advocates.

CORE ACTIVITIES

There is a written description of the core and other advocacy activities required to meet

the program's mission, priorities and implementation strategies.

• A substantial portion of the program's resources is devoted to legal and systemic

advocacy activities.

A. Individual legal advocacy.

The following standards apply to all individual legal advocacy, whether it is provided by

the advocacy program or by an authorized subcontractor.

1. The program has the capacity to pursue legal, administrative, and other remedies on

behalf of clients.

• The program employs a sufficient number of attorneys – preferably on staff – to

implement its individual legal advocacy priorities.

2. The individuals who are represented are people with disabilities and whose rights

are at risk as a result of their disability.

• The program provides legal advocacy and representation to individual clients

pursuant to its established priorities.

• The program develops intake and outreach systems for individual clients that

make it possible for people not capable of requesting assistance to have access

to representation.

3. Clients receive advocacy of high quality that safeguards and advances their

fundamental rights.

• The program provides individual advocacy consistent with the client's goals and

expressed preferences.

• The program ensures that each client's file includes documentation regarding the

objectives and desired and attained outcomes of the representation.

• Individual cases are reviewed regularly by supervisors to ensure representation

of high quality.

4. All client representation is provided consistent with applicable rules of professional

conduct.

5. The program assures that there is no unreasonable interference with the advocate's

activities in carrying out professional responsibilities on behalf of a client.

6. Each client is provided vigorous representation.

7. Each client is consulted in order to determine the goals of the representation and the

possible means for achieving these goals.

• Case notes indicate ongoing attention to expressed goals.

8. Efforts are made to ensure that each client is provided appropriate time between

consultation and the time when any decision must be made in order that the client's

ability to make a decision and participate in the case is enhanced.

9. When a client is unable to give direction or consent, the role of the advocate –

consistent with the directive that the client's fundamental rights be safeguarded and

advanced – is to assure that any intervention or service proposed by another is

consistent with the client's rights.

• The program has policies and procedures to guide advocacy in instances when

a decision or meaningful choice cannot be, or is not expressed by, a client, or

when consent is not available or provided by a client.

• The policy addresses the criteria that will be used by the advocate in order to

ensure that the intervention or service is consistent with the client's rights.

10. Each client is regularly informed – in a manner consistent with the client's preferred

means of communication – of the status of ongoing advocacy activities on his or her

behalf.

11. The program assures advocate-client confidentiality.

12. The advocates have access to and use, when needed, interpreters and other

experts and enhancements to facilitate their communication with clients.

13. The advocates have access to and use, as necessary, a range of expert witnesses

appropriate to the legal issues of the clients.

14. The advocates have access to and use, as necessary, resources for legal research

and factual investigation.

15. When a program contracts with another entity to represent an individual, the

program offers appropriate support, and training, requires compliance with these

standards, includes the programs official policies by reference, and monitors such

compliance.

B. Systems advocacy

The program has the capacity to pursue a range of strategies to secure systemic

reforms on behalf of the program's clients, such as litigation, legislation,

administrative reform, client education, and other approaches.

• System advocacy evolves in large part from the program's knowledge and

experience in representing individual clients.

• The strategies adopted to implement the systemic activities are consistent with

the program's mission, goals, and priorities.

• The program has identified long-term goals and strategies for systemic change,

including time frames and staff assignments.

• The program allocates sufficient staff and fiscal resources to accomplish its

systemic advocacy agenda.

• System reform litigation meets all of the relevant standards under Individual

Legal Advocacy above.

• Interagency collaborative arrangements reflect program priorities.

C. Other advocacy activities

1. 501.70 In addition to core advocacy activities, the program may utilize other

methods to advocate for the rights of people with disabilities, either directly or by

subcontract. Such methods could include the use of volunteers, direct consumers,

family members, citizen advocates, or others to perform certain specified advocacy

functions. With the use of any of these methods, the program must conform to all

guidelines below.

• Any individuals assisted must meet the program's federally mandated eligibility

criteria and be in need of protection of their legal, civil, or human rights.

• The program ensures that anyone performing individual advocacy functions has

received adequate training.

• Training is comprehensive and trainers include people with disabilities, their

family members, and legal experts.

• The program provides appropriate support, follow-up, and consultation to people

involved in individual advocacy.

• The program must ensure that any individual advocacy provided is consistent

with the person's expressed goals and preferences.

• The program has policies and procedures directing advocacy in instances when

a decision or meaningful choice cannot be, or is not expressed by, a client, or

when consent is not available or provided by a client.

• People receiving individual advocacy from the program have timely access to

legal advocacy assistance if this form of intervention is necessary to protect the

person's rights.

• The level of documentation for each person receiving individual advocacy is

commensurate with the advocacy method utilized and nature of the rights

violation involved.

2. The program has developed an information and referral (I&R) activity, or other forms

of short-term assistance (STA), to augment its core advocacy resources.

• I&R activities are consistent with the program's mission and priorities.

3. The program may develop training activities to augment its advocacy activities, to

enhance understanding, and empower people with disabilities to advocate on their

own behalf.

• The program solicits the input of people with disabilities and their families in

developing training and self-advocacy materials.

• Training activities are consistent with the program's mission and priorities.

4. Program materials prepared are written in such a way that they can be understood

by a wide range of people and – where indicated and given the level of resources

available to the program – are translated into other relevant languages.

VI. Access and Presence

Access and presence are vital to effective advocacy efforts. Physical access to and

presence in a state facility, community program, or the larger disability system allows

program staff an opportunity to interact regularly with those individuals who are current

or potential recipients of advocacy services. This regular contact provides opportunities

for advocates to develop relationships with clients; enhance the capacity to

communicate with staff and other key decision makers; and obtain information, as well

as review records. If a program has space in a state facility, program staff should work

with that facility's administrators to make office hours and physical space as accessible

and private as possible. The selection of location(s) for the advocacy program should

take into account proximity to targeted clients, access to public transportation, and

physical accessibility.

Strategies to enhance access and presence can include such things as dispersed office

locations, a toll-free telephone number, or subcontracting with a local advocacy

program.

1. The program is administratively separate from state agencies responsible for

providing services to people with disabilities.

2. The program has secured or aggressively sought access to facilities and/or services

in which priority clients are served.

• Consistent with federal law, the program has access to clients' records and

related documents and facilities, either through legislation, court actions,

memoranda of understanding, or other means.

3. There are contacts and collaborative relationships – to the extent possible – with

service providers, legal offices, consumer organizations, and disability agencies,

consistent with the program's mission and priorities.

4. The program is available to potential clients statewide.

5. The program has a presence in relevant planning, policy-making, and decision-

making forums.

6. The program's offices are accessible to people with disabilities and those with

communication limitations.

7. The program has effective outreach strategies to enable individuals who fit the

program's case-selection priorities to: (a) become aware of the availability of

advocacy assistance; (b) communicate with program staff and be informed of their

rights and entitlements; and (c) receive additional advocacy assistance as required.

8. The program has taken steps to ensure that access to the program is not hindered

by a person's geographic location, legal status, ability to request assistance, or racial

and ethnic background.

9. The program provides a means for recording telephone calls to the program outside

of office hours.

10. The program's facilities are clearly identified and not subject to confusion with the

services and staff of a provider agency.

11. The program has developed a policy that ensures that all activities are carried out on

a non-discriminatory basis.

• Where feasible, program staff has the ability to communicate with clients in their

primary language.

12. The program has methods and procedures for identifying and assisting clients not

capable of requesting its services due to the nature of their disability, the conditions

of their environment, or other barriers to service access.

VII. Personnel Practices

The most valuable resource of an advocacy program is its staff; the leadership and

management of the organization should reflect a concern and respect for the program's

personnel consistent with the overall values of P&As. The program should develop

aggressive recruitment policies to implement equal opportunity and affirmative action

employment practices.

Personnel policies should reflect the philosophy of the organization and should be made

available for review by all employees. It is important to establish a personnel system in

which employees have opportunities for professional development and are encouraged

to contribute to the achievement of the objectives of the program. Each program

determines the number and types of professional and other staff members necessary to

provide optimum services. The program ensures that staff members achieve and

sustain a high level of competency to meet the needs of clients.

Introductory orientation and ongoing training are essential for ensuring such

competency and the internalization of program mission and values. Training provides

the knowledge, awareness, and skills necessary for employees and volunteers to fulfill

the program's philosophy and is based on the needs of the individuals served and the

expressed needs of trainees. Training is focused on facilitating knowledge and

awareness among personnel of the nature of the disabilities experienced by clients and

the impact these disabilities have on the lives of these individuals.

1. There are written job descriptions for every position in the program.

2. Written personnel policies are made available to each staff member.

3. The program has a method for conducting yearly employee evaluations.

• The evaluation includes an opportunity for the employee to set individual goals

for professional growth in relation to his or her work.

• The evaluation includes an assessment of the employee's performance against

the written job description, previous individual goals, or other clear and objective

job expectations.

• Separation and disciplinary procedures ensure that employees have had

sufficient feedback on job performance and time to modify such performance.

4. Employees are active participants in setting priorities and implementing relevant

activities.

5. Employees have the qualifications and experience necessary to perform their duties.

6. Employees are provided with orientation to the program.

7. Employees receive continuing training necessary to perform their duties.

8. The program is an equal opportunity employer.

• The recruitment, employment, assignment, and promotion of program staff is

without regard to race, gender, religion, age, disability, sexual orientation, or any

legally impermissible criteria.

• Persons with disabilities are not denied employment by the program due to

inaccessibility of the program's buildings or facilities, or the need for other

accommodations.

9. With the exception of state programs with sovereign immunity, the program has

adequate liability and malpractice coverage.

10. When programs use volunteers, the program has a process in place to recruit,

select, supervise, and train volunteers.

• Volunteers who perform the same functions as employees receive the same

training for those functions as the staff members.

• Volunteer participation complies with state laws, such as those relating to labor

and insurance.

VIII. Fiscal Affairs

The program should be managed in accordance with sound, accepted fiscal principles

in order to conserve resources and to maximize the availability and continuity of

services. Accurate fiscal information and documentation of revenues and expenses

should be maintained for purposes of proper allocation and analysis, and to facilitate

annual audits.

The availability of financial information assists management to maintain financial

soundness and to achieve programmatic objectives. Particular care should be exercised

when the agency has fiduciary responsibilities for individual funds. Fiscal affairs should

be managed in a manner consistent with the purposes of the program and in

accordance with sound practices and legal requirements. The governing authority or

board should assure that program funds are spent and accounted for in ways that fully

meet the program's responsibility to its clients, funding sources, and the public. This

begins with the adoption of a budget that provides a realistic allocation of resources and

that supports the program's priorities and objectives.

The governing authority or governing board of the advocacy program should also

ensure that all aspects of the advocacy programs – including subcontractors that

provide advocacy services – are held to the same accounting and fiscal accountability

requirements. It should also ensure that the process for determining the level and

distribution of funding for advocacy functions maintains the program's independence

from external and arbitrary influences.

The governing authority or board of directors approaches the budget as the mechanism

through which it implements major policy decisions on program direction and operation.

It recognizes, for example, that decisions about the personnel budget may substantially

affect the provider's capacity to serve specific geographic areas or to address specific

substantive legal issues.

1. The program operates based on accepted fiscal practices governing financial

records, reports, payroll, purchasing, and financial statements.

2. The allocation of financial resources is based on a formal budget.

3. The allocation of financial resources is consistent with program mission, values, and

priorities.

4. The governing authority and the executive director (or other appropriate official of

the program) assure the financial integrity of the program by:

• Adopting a budget within available resources consistent with client needs and

objectives and the needs of staff for reasonable working conditions and

compensation.

• Monitoring spending in relation to the approved budget.

• Providing for an annual independent audit.

5. There is a process for reallocating funds when necessary to meet changing

programmatic needs.

6. There is a process to monitor the fiscal and programmatic performance of

subcontractors.

7. Neither the program's current funding nor the pursuit of new funding compromises

the program's independence or represents a conflict with the goals of the program.

IX. Policies and Procedures

In order to operate an efficient and effective program, policies and procedures must be

developed to ensure standardized practice, and, to provide protocols for responding to a

variety of circumstances, as well as to protect client interests. Employees, as well as

clients, have input into the development and review of procedures to ensure that they

are responsive.

1. There is a written policy on client confidentiality and the release of information.

2. There is a grievance procedure for clients to assure that eligible individuals have full

access to the services of the system.

• The program's grievance procedure culminates in an appeal to the governing

authority, except where prohibited by state statute or regulations.

3. There is a written administrative policy and procedures manual.

4. The program has intake procedures designed to elicit – in the client's preferred

method of communication – information regarding the client’s preferences, goals,

and needs.

5. The program has developed a protocol regarding reporting of client abuse.

6. The program has a conflict of interest procedure to respond to instances in which

one program client abuses another client or potential client of the program.

7. The program has a written policy regarding conflicts of interest among members of

the governing board, advisory councils, staff, and management.

X. General Management and Organization

Advocacy programs have evolved from a wide range of organizational auspices.

General advocacy goals, however, are based on similar values and philosophy, as well

as federal legislative mandates. To help ensure the viability of these similar yet singular

organizations, certain practices based on sound management principles are be in place.

1. The program has a uniform system for maintaining client files and for noting and

meeting deadlines.

2. There is an organizational structure that is reflected in an organizational chart in

which supervisory relationships are clear.

3. There is a clear division and distribution of authority and responsibility among

administrative, advocacy, and support personnel.

4. The program is structured in a manner that supports effective advocacy.

• Staff meets periodically with other staff responsible for similar duties and

activities.

XI. Recordkeeping and Data Collection

Proper recordkeeping and data collection (aside from being a legislative requirement)

allow a program to know who is being served and through what methods. It also

improves the program's efficiency by providing a database from which to assess the

performance of the program. Good practice dictates both the method and quality of

recordkeeping.

1. Case records include information regarding the nature of the client's disability, the

client's complaint or problem, the advocacy strategies employed, case

responsibility, and final disposition, as well as other relevant data required by the

federal funding agency.

2. The program prepares and circulates a year-end report documenting the activities,

accomplishments, and expenditures of the agency.

3. There is a written procedure for determining what is an active, inactive, and closed

case; and a protocol for the management of files in inactive and closed cases.

4. The program has a system of secure filing/storage.

5. The program has a uniform and systematic process for collecting and analyzing data

concerning client characteristics and program activities.

XII. Evaluation and Quality Assurance

In order to assure that advocacy activities remain effective and responsive to the needs

of clients with disabilities, advocacy programs should institute systematic evaluation

mechanisms. These mechanisms should involve clients and their friends and families,

and should be directed at an assessment of the program mission and the extent to

which priorities have been consistently addressed. Results of evaluation and quality

assurance assessments are made available to employees, clients, the board of

directors, and the general public.

1. The program annually provides opportunities for public comment on, and a review

of, its performance by interested persons and groups.

2. There are internal quality assurance practices to assess the consistency of program

activities with the mission and priorities; compliance with legal mandates; and the

outcomes of advocacy strategies.

3. The program periodically initiates a third-party evaluation (such as a peer review) of

its performance.

4. The program actively and systematically includes consumers, families, board, staff,

and peers in the evaluation.

5. A component of the program evaluation is solicitation of input regarding the

satisfaction of people who have participated in program activities.

6. The program has developed and implemented outcome measures and procedures

for evaluating the impact of its advocacy activities.

• The measures include specific assessments of whether the program's advocacy

activities are consistent with its written mission, goals, priorities, strategies, and

systemic objectives.

• The measures include specific assessments of whether the program's advocacy

activities enhance the values of empowerment; equality and fairness; meaningful

choice; and supports and participation.

• The measures include specific assessments of whether the program's advocacy

activities provide representation and meaningful outreach to people who are not

capable of requesting assistance.

P&As: A Client-Driven System

A Client-Driven P&A System is one that:

• Accepts people with disabilities first and foremost as human beings;

• Welcomes people with disabilities as full partners;

• Is directed by the goals of their clients;

• Offers their clients support without loss of dignity;

• Encourages people with disabilities to contribute their gifts;

• Fosters a society in which we all want to live.

Prerequisites:

• Acceptance of people with disabilities as human beings who have the potential to

grow;

• Promotion of models of professional practices that advance empowerment ;

• Collaborative modes of working with people with disabilities that respect their

needs, desires, concerns, and priorities;

• Understanding the experiences and needs of people with disabilities through

their involvement in the governance of the system;

• Effective intervention strategies hat target quality-of-life, as well as basic services

for people with disabilities.

Measurement of a Client-Driven P&A:

• Percentage of people with disabilities used as trainers for staff development

regarding cultural competence;

• Percentage of people with disabilities who feel respected by P&As on survey;

• Proportion of intake interviews that ask about desired consumer outcomes;

• People with disabilities receive a copy of P&A grievance procedure;

• Number of internal client grievances (about P&A) filed v. clients served ;

• P&A staff offer individualized self-advocacy training to consumers on initial

contact (phone or in facility);

• P&As offer self-advocacy training/materials in large group setting;

• Percentage of record that pass audit standards regarding P&A case

management;

• Comparison of types of disability among clients and corresponding

accommodations available in P&A;

• Percentage of P&A client grievances related to accessibility/accommodation

issues;

• Percentage of people with disabilities who find P&A offices and services are

accessible;

• Distribution of clients served is comparable to where people with disabilities live;

• Percentage staff trained on cultural competence issues;

• Program expenditures linked to program priorities;

• Allocates funding for needed accommodations;

• Number and type of accommodations requested;

• Priority-setting process addresses targeted needs as communicated by people

with disabilities;

• Number of people with disabilities on governing body of P&A;

• Number of people with disabilities on Advisory Council of P&A;

• Number of people with disabilities on staff of P&A;

• Number and type of opportunities for people with disabilities to participate in P&A

activities;

• Number of people with disabilities who participate in each of the opportunities

provided by the P&A;

• Number of partnerships with people with disabilities/advocacy groups.

WAYS WE COMMUNICATE ORGANIZATIONAL VALUES

1. Mission Statement

2. Statement of Values/Policy Manual

3. Procedure Manual

4. Agency publications – people first language, etc.

5. Genuine effort to get client input in planning

6. Genuine effort to get client feedback about services

7. Continuous efforts to evaluate services/activities of the agency

8. Employee Handbook

9. Orientation for staff

10. Attention to professional development for staff through conference attendance, in-

services, etc

11. Rigorous attention to employee supervision and evaluations

12. Genuine efforts to recruit a diverse staff in terms of ethnicity, disability, sex, age,

etc.

13. Recognition of staff accomplishments

14. Board orientation and on-going training

15. Genuine efforts to recruit a diverse Board

16. Written history of the agency

17. Events/Celebrations

18. Anecdotes and stories about the agency

APPENDIX B

MODEL P&A GRIEVANCE POLICY – SUMMARY SHEET

The following explains your right to file a written complaint (or grievance) with [name of

agency]. You have this right if you believe that we have wrongly denied you help with a

concern regarding a disability or have not provided effective help. We will give you a

more detailed written explanation of your rights, if that would be helpful. We will be glad

to explain your rights under this policy, if you have any questions. Also, if you are

unable to give us a written complaint, you may explain your complaint in person or over

the phone, or we will help you to make a written complaint.

Your Right to Services

• [agency name] is authorized by Federal law to provide certain types of advocacy

services and legal help for eligible persons with disabilities in [name of

state/territory]. A few of the services we can provide include investigating and

pursuing allegations of (1) abuse and neglect, and (2) discrimination on the basis

of an individual's disability.

• We can help eligible individuals with disabilities in many ways, including: (1)

pursuing legal, administrative and other appropriate remedies in order to protect

the rights of eligible individuals with disabilities in the State; (2) providing

information about and making referrals to other programs that can help

individuals with disabilities; and (3) coordinating our programs with other

programs that serve individuals with disabilities.

• However, because of limited funding for our program, we cannot handle every

complaint and case that come to us. We have a written statement about the

types of cases we can take under each of our programs: Protection and

Advocacy for Persons with Developmental Disabilities (PADD), Protection and

Advocacy for Individuals with Mental Illness (PAIMI), and Protection and

Advocacy for Individual Rights (PAIR). This is called our statement of objectives

and priorities (you may ask for a copy of this). We develop a new statement of

objectives and priorities each year. You have the right to tell us your comments

about the types of cases you think we should handle. [ADD THE FOLLOWING

SENTENCE IF THE P&A HAS THE CAP TOO: Our Client Assistance Program

(CAP) does not develop a statement of priorities and objectives because Federal

law specifies the kinds of cases CAP can accept.]

• Unfortunately, if your problem or concern is not covered by our priorities [ADD

THIS PHRASE IF THE P&A HAS THE CAP TOO: or is not allowed under

Federal law], we may not be able to help you. If we cannot provide direct help,

we will try to let you know about other agencies or persons who can.

Grievance Rights

If you are a client of [name of agency] or are asking for our help, you have the right to

file a written grievance if you are unhappy with our services. For example, you may file

a grievance if you believe that: (1) we did not provide you with effective services; (2) we

wrongly denied you help; or (3) we violated our legal obligations. If you want, we can

give you more detailed information about what the law requires of any one of our

programs.

How to File a Grievance

• You or your representative must file a written grievance within 30 work days after

our decision with which you disagree. If you believe that we have broken one of

our legal duties, you may file a written complaint about this at any time. You may

either mail to us a completed [name of agency] grievance form (this is attached)

or mail a letter which explains why you believe our decision was wrong. You

should sign and date the form or letter. If you cannot give us a written grievance,

you may give us your grievance orally (e.g., by telephone, in person, or by audio

tape) or ask us to help you write your grievance.

• Written grievances should be mailed to the Executive Director of [agency name],

at the above address. Within 15 work days, the Executive Director will give you a

written decision about your complaint. If needed, we will write a plan to correct

the problems and make sure that we provide the proper services to you as soon

as possible.

• If you are unhappy with the written decision of the Executive Director, you may

send a letter to our Board of Directors which asks that the Board review that

decision (in the case where the governing authority is the Executive Director of

the P&A, the appeal decision should be made by the Director's superior, e.g., a

supervisor, or by an independent entity, e.g., an appointed board or committee.

Accordingly, in that case, indicate here to which such individual or entity the

appeal letter should be sent.) The letter should be sent to: [insert address]

• You must make this request within 30 work days of the date you receive the

Executive Director's decision. The decision of the Board [or other specified

individual or entity] will be given to you within 30 work days. This will be our final

decision.

• If you need more information about your rights under this policy, or if you cannot

write a grievance or this letter, please let us know. We will try to provide any help

you need.

APPENDIX C

MODEL P&A GRIEVANCE POLICY

Background

Protection and Advocacy Services

As a protection and advocacy (P&A) agency, [insert agency name] is federally

mandated to provide legal and other advocacy services on behalf of all eligible persons

with disabilities within [name of state/territory]. The P&A agency is comprised of several

different federally funded advocacy programs: Protection and Advocacy for Persons

with Developmental Disabilities (PADD), Protection and Advocacy for Individuals with

Mental Illness (PAIMI), and the Protection and Advocacy of Individual Rights (PAIR).

[ADD THE FOLLOWING SENTENCE IF THE P&A ALSO HAS A CAP: The Client

Assistance Program (CAP) also is part of our agency.]

Federal law authorizes us, as the P&A agency, to handle many different kinds of cases,

including those alleging abuse and neglect, and those alleging discrimination on the

basis of the individual's disability. We are also authorized to pursue legal, administrative

and other appropriate remedies to protect and advocate for the rights of persons with

disabilities under all applicable Federal and State laws. In addition to direct

representation, we provide educational services, information about the rights of persons

with disabilities and other technical assistance as needed. We also provide referrals to

other agencies which may be able to provide appropriate assistance.

However, our ability to provide these services is restricted due to limited funding.

Federal law requires the PADD, PAIMI, and PAIR programs to develop a statement of

objectives and priorities (a copy of the current year's statement is attached) each year

that prioritizes its activities for the year and gives the rationale for those priorities and

objectives. Federal law also requires that we develop this statement of objectives and

priorities after giving the public, including individuals with disabilities, the opportunity to

comment on our objectives, priorities, and activities. This statement of objectives and

priorities determine the kinds of cases we will accept each year. This means that

generally we can represent only those individuals whose problems are covered by our

priorities for the current year. If we cannot provide direct help for the individual, we will

make an effort to inform the individual about other agencies or individuals who can

assist with the problem.

[ADD THE FOLLOWING PARAGRAPH IF THE P&A ALSO HAS THE CAP: Federal law

does not require the CAP program to establish priorities and objectives for the cases it

will accept each year. Instead, the law itself limits the services CAP can provide and the

kinds of cases it can accept.]

Grievance Rights

Your Right to Services

• Clients of [name of agency] and those seeking our services have the right to file a

written grievance if they are unhappy with our services. For example, these

individuals or their representatives may file a grievance if they believe that: (1) we

did not provide them with effective services; (2) we wrongly denied them help; or (3)

we violated our legal obligations. If requested, we can provide individuals with more

detailed information about what the law requires of any one of our programs.

• Among other obligations, we must assure that we: have the capacity to protect and

advocate for the rights of persons with disabilities; have access to records for the

purpose of investigating allegations made by persons with disabilities; maintain

confidentiality of client records; and provide the public with an opportunity to

comment on our statement of objectives and priorities.

• The grievance process is designed to assure that persons eligible for services from

[agency name] are provided full access to the agency. This right is guaranteed under

the three Federal laws governing the activities of P&As such as ours: the

Developmental Disabilities Assistance and Bill of Rights Act, the Protection and

Advocacy of Individuals with Mentally Illness Act and Section 509 of the

Rehabilitation Act of 1973, as amended. [ADD THE FOLLOWING SENTENCES IF

THE P&A ALSO HAS THE CAP PROGRAM: Section 112 of the Rehabilitation Act,

which governs the CAP program, does not guarantee individuals the right to a

grievance process. However, because the CAP is part of our P&A agency, we are

extending this right to our CAP clients as well.]

• The eligibility requirements for services under these laws are explained in the

attached brochure [agencies should distribute the TASC brochure explaining the

P&A System or a similar internal publication]. Copies of these laws and related

regulations are available upon request.

A grievance may be filed by a person with a disability or his or her representative or

family member under any of the following circumstances:

1. When there is disagreement about the decision of [agency name] not to provide

technical assistance or advocacy services;

2. There is dissatisfaction regarding the quality or extent of the services actually

provided;

3. There is a belief that [agency name] has failed to fulfill one or more of its legal

obligations; or

4. It is believed that [agency name] has discriminated in the provision of its services on

the basis of disability, race, or another prohibited basis.

Filing a Grievance

• Time Frame. A grievance related to a believed failure of our agency to provide

appropriate services must be filed within 30 work days after the date on which the

disputed event occurred (for instance, the date on which notification was provided in

writing, or orally, that the agency would not provide requested services). A grievance

related to a believed failure to comply with our legal obligations may be filed at any

time.

• Upon request, we will provide assistance in filing and submitting a grievance and/or

in helping the individual understand his/her rights under this policy. If the individual

cannot provide a written complaint, we will either help in writing it or accept an oral

complaint (e.g., by telephone, in person, or audio tape). In limited circumstances,

additional time to file the grievance may be permitted.

• Required Information. An individual (or his/her representative) who is dissatisfied

with services provided by [name of agency], or with the decision to deny services, or

believes that we have violated a legal requirement has the option of completing and

submitting our grievance form (copy attached).

• Alternatively, a grievance may be filed in the form of a letter. This letter should

provide all relevant information about the complaint, including the following: the

name of the individual who is dissatisfied with agency services and his or her

address and telephone number; the type of services requested and the approximate

date of the request; the response of [name of agency]; whether the individual for

whom the request was made has a disability and the nature of the disability; and the

legal obligation, if any, the individual believes [agency name] has violated.

• Copies of any documentation relating to the grievance (such as correspondence

from our agency) should be included with the grievance. The grievance form or letter

should be signed and dated.

Review of Grievances

• First Level Review. The grievance should be mailed to the Executive Director of

[agency name], at [agency address]. An individual who is dissatisfied with an agency

decision is encouraged to discuss the matter first with the [name of agency]

employee directly responsible for the decision and/or with his or her supervisor, but

is not required to do so. A listing of our employees is available upon request.

• Within 15 work days of the filing of the grievance, the Executive Director will issue a

written determination. This determination will be based on a careful review of the

grievance and any other materials submitted. This review will be conducted by the

Executive Director or a staff member designated by the Director, such as the

Managing Attorney.

• The Executive Director or designee will review any applicable law and agency

policies and procedures (including our statement of objectives and priorities) to

determine whether the disputed agency decision was appropriate. If necessary, the

Executive Director or the designee will contact the individual who filed the grievance

and other individuals, including other [name of agency] staff, who have knowledge of

the dispute.

• If the Executive Director or designee finds that the agency's denial of services or

other action which is being disputed was inappropriate, he or she will inform the

grievant in the written determination. As appropriate, the Executive Director or

designee will develop a plan to correct the problems identified and ensure that

appropriate services are provided promptly.

• Access to the grievance and related materials will be permitted only for [name of

agency] staff with a need to review the complaint. The confidentiality of the

grievance will be strictly protected. We will annually tabulate information about

grievances received, processed and resolved, and present this information to our

Board of Directors [substitute governing authority, if appropriate] and Advisory

Council.

• Appeal Rights. If the grievant is dissatisfied with the written determination of the

Executive Director, he or she may appeal the determination to the Grievance

Committee of [name of agency]'s Board of Directors (in the case where the

governing authority is the Executive Director of the P&A, the appeal decision should

be made by the Director's superior, e.g., a supervisor, or by an independent entity,

e.g., an appointed board or committee. Accordingly, in that case, indicate here to

which such individual or entity the appeal letter should be sent.) This appeal letter

should be sent to: [insert address]. The individual must submit this appeal, in writing,

within 30 work days of receiving the Executive Director's determination.

• The appeal must specify the reasons for disagreement with the Executive Director's

determination, and must be signed by the grievant.

• The [Grievance Committee or other specified entity] will issue a decision within 30

days. The Grievance Committee's [or other specified entity] decision is the final

determination of the agency.

APPENDIX D

NOTICE PROCEDURES REGARDING P&A GRIEVANCE POLICY

1. It is suggested that a statement regarding the right to submit a grievance be included

in agency brochures which describe available services.

2. A poster or other notice informing persons of the right to submit a grievance should

be posted conspicuously in all P&A reception and waiting areas. P&As may wish to

establish other streamlined notice procedures.

3. All persons who request services, except as noted later in this section, should be

informed in writing of the right to submit a grievance to the agency at the time that the

agency sends the individual a letter: (1) with the information or referral requested, (2)

with the legal advice requested, (3) informing the individual that the agency has

accepted the case for representation, or (4) informing the individual that the agency

will not represent the individual. It is recommended that the agency send a copy of the

policy summary to those individuals whom the agency has decided not to represent as

well as those for whom it has opened a case file (e.g., send the summary along with

the case acceptance or rejection letter). There is no need to send the policy summary

to those individuals for whom only a written information/ referral or legal advice was

given, unless the individual has expressed dissatisfaction with that information/referral

or legal advice. In that case, the agency should send the individual a copy of the

policy summary as well.

The agency does not need to give notice (either written or oral) of the right to submit

a grievance to those individuals who are provided only limited information or referral

by telephone. However, oral notice of the right to submit a grievance and a copy of

the policy summary should be given to those persons who express dissatisfaction

with the oral information or referral received if that individual remains dissatisfied

even after the agency has explained the basis for its actions. Documentation must

be kept in the client's case record that this notice was given.

4. A copy of the grievance policy summary should be provided to all persons who request

further information about the policy or who express continued dissatisfaction with the

services received or denied after receiving only written notification about the grievance

policy, as indicated above. A copy of the policy summary should also be given to

anyone who requests it even if one has been provided to the individual before.

5. A copy of the policy summary should be provided to clients at the time their case is

closed. It is recommended that the agency send the policy summary to the individual

along with the "case closing" letter. Documentation must be kept in the client's case

record that notice was given.

6. The detailed explanation of the grievance procedure should be used for internal

guidance purposes (for instance, to assist staff in explaining grievance rights to

clients). A copy of this document should be provided to all persons upon request.

APPENDIX E

GRIEVANCE FORM

You may fill out this form to file a complaint with [name of agency]. Instead of filling out

this form, you may make your complaint in a letter, or you may explain your complaint in

person or over the phone. We will be glad to provide any help you need in making your

complaint. Your complaint must be returned to us, at the above address, within 30 work

days following the decision of this agency with which you disagree. Please send it to

the attention of [title of staff member].

Please complete all sections which apply to your concerns and sign and date below;

also give your address and telephone number. Attach other information that you would

like us to consider.

Please describe the type of help that you requested from [name of agency]:

________________________________________________________________

I was told that [name of agency] would not provide me services. (Please indicate date

on which you were informed of this decision.) I disagree with this decision because:

________________________________________________________________

I am unhappy with the services that I am receiving because:

________________________________________________________________

I disagree with the decision of [name of agency] to limit services to me or to close my

case (please indicate date on which you were informed of this decision). I disagree

because:

________________________________________________________________

I believe that [name of agency] has treated me unfairly or has not carried out its legal

obligations, because:

________________________________________________________________

NAME: _______________________ SIGNATURE: _____________________

DATE: _______________________

ADDRESS: _______________________________________________________

TELEPHONE: ________________

PLEASE ATTACH ADDITIONAL EXPLANATION IF NECESSARY.

APPENDIX F

Grievance Log FY07

*Please note funding stream

Name Letter Received Drafted By Date Sent

[Please Note Here:

Internal Office Case Number

Funding Source

Caller’s Name

Caller’s Address]

APPENDIX G

SECTION 2.9 REPRESENTATION FORMS

Sec. 2.9-1 Client Retainer Agreement - Limited Purpose

LEGAL REPRESENTATION AGREEMENT

Investigation and/or Assessment

This agreement is entered into between [agency name] and ______________________

(Client's Name).

I, the Client, wish to retain PAI to investigate and assess my rights and/or obligations

with respect to the following matter, dispute, occurrence or transaction:

______________________________________________________________________

_____________________________________________________________________.

PAI has agreed only to investigate, research and assess my claim or legal problem. I

understand that PAI has not promised to represent me and will not make a decision

whether or not to represent me until the investigation and research is completed to PAI's

satisfaction.

I also understand that PAI has made no guarantees or representations regarding a

successful outcome of the legal services it provides.

ALL OF THE INFORMATION I HAVE GIVEN TO PAI ABOUT MY CASE AND MY

STATUS IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE. I HAVE

READ AND UNDERSTAND THIS AGREEMENT.

Date:___________ Client or Client Representative_____________________________

Date:___________ PAI Attorney/Advocate___________________________________

Note: Two copies of this agreement are to be signed both by PAI and the client. One

copy is kept by PAI and the other is given to the client.

APPENDIX H

RETAINER AGREEMENT

___________________(Client) hereby retains the Oregon Advocacy Center (OAC) and

OAC hereby agrees to represent Client regarding ______________________________

______________________________________________________________________

_____________________________________________________________________.

Client hereby authorizes OAC to discuss the client’s situation and claims with such

persons as OAC deems necessary in order to provide representation, including other

attorneys and paralegals as deemed appropriate by OAC, and obtain needed relief.

Such representation includes, but is not limited to:

(1) obtaining all necessary information required to investigate client’s claim;

(2) making any appropriate request for reasonable accommodation on client’s

behalf; and

(3) representing client in negotiations to resolve the claim.

This agreement does not contemplate the filing of an action in federal or state court, or

representation in a special education due process hearing. Should it be determined that

that is the appropriate way to proceed, and that OAC will undertake such

representation, a separate retainer agreement will be used.

It is agreed that no settlement of client=s claim(s) will be reached without full discussion

and client’s agreement. If OAC determines that in its professional judgment, client=s

claim should be dismissed, settled, or otherwise disposed of, and client does not agree

or consent to such disposition, OAC reserves the right to withdraw from this

representation.

It is understood that client will fully cooperate with OAC in working on this case. Such

cooperation includes keeping appointments, responding to correspondence, and

providing necessary information and documents. If client fails do to so, OAC may

withdraw from representation.

DATED: ________________ SIGNATURE:___________________________________

Client

DATED: ________________ SIGNATURE: ___________________________________

Oregon Advocacy Center

APPENDIX I

CIVIL RIGHTS RETAINER AGREEMENT

I. PARTIES

1. This Agreement is entered into between the Center for Public Representation

(hereafter the Center) and ____________ (hereafter the Client).

II. PURPOSE

2. The purpose of this Agreement is to set forth the legal services to be performed by

the Center for the Client; the intentions of the Center and the Client with regard to

attorney's fees, costs, and possible court-awarded fees; procedures for

disbursement to the Client of any recovery, and division of fees amongst attorneys

representing the Client. The Center is undertaking to represent you, free of charge,

because of the important civil liberties or civil rights issues that your case raises.

III. LEGAL SERVICES

3. The Center will represent the Client with respect to any claim she may have against

the ____________ or any of its agencies or executive departments, regarding

_______________.

4. The Center has no obligation to represent the Client, or to secure representation for

the Client, in any subsequent stage of this case, including an appeal, or in any other

legal matter. The decision whether to offer any such additional representation to the

Client will be made if and when it becomes necessary.

5. The Client hereby gives the Center the exclusive right to take all legal steps to

enforce this claim. She agrees not to settle this action in any manner without the

written consent of the Center. In consideration of the Center's agreement to

represent the Client in the case, the Client agrees not to accept any offer of

settlement which does not include a monetary component sufficient to insure receipt

by the Center of the costs incurred in this litigation, including attorney's fees.

6. The Client agrees to release to the Center all confidential information concerning the

matters subject to this Agreement.

7. The Center agrees to diligently represent the Client in accordance with Rule 3:l4 of

the Supreme Judicial Court of Massachusetts.

8. The Center acknowledges the right of the Client to change her attorney at any time,

and the Client agrees that if she changes her attorney without cause, the Center

shall have the right to recover under this Agreement, if it has substantially performed

the services set forth above.

9. The Center may seek to terminate its involvement in this case, if in its judgment

continuing to litigate the case would be frivolous or unreasonable or if the facts turn

out to be substantially different from those the Client has stated.

IV. CLIENTS' GOALS

10. The Client's primary goal in retaining the Center is to redress the violation of her civil

rights and liberties occasioned by her ______________________________.

Accordingly, the Client recognizes that the Center will bring a civil rights action on

her behalf seeking to redress the violation of her civil rights and any other legally

protected interests she may have.

V. COURT-AWARDED FEES

11. The Client and the Center agree that an award of attorney's fees and costs will be

sought in this case, if, in the Center's judgment, it is appropriate to seek such fees

and costs. One basis for seeking such an award is the Civil Rights Attorney's Fees

Awards Act, 42 U.S.C. 'l988, although there may be other grounds for seeking fees

as well.

12. The Client understands that she and the Center have a right to court-awarded

attorney's fees and costs under the law, if she prevails.

13. It is the Center's policy not to discuss attorneys' fees as part of general settlement

negotiations, since negotiating attorneys' fees at the same time as the merits of a

settlement offer can place attorneys in a conflict of interest. For the reasons set forth

in Appendix 1, it is also the Center's policy not to waive its right to attorney's fees.

The Client understands that the Center agreed to represent her in part because of

the availability of court-awarded attorney's fees, and that any fees which are

awarded in this case will be used to support other civil rights activities. Therefore, the

Client agrees not to waive or compromise any possible court-awarded fees or costs,

without the Center's written consent.

VI. COSTS

14. There are many costs of litigation in addition to attorney's fees, including court costs,

transcripts of depositions and hearings and experts. These costs are the

responsibility of the Client. Any outstanding costs paid by the Center will be

deducted from the Client's portion of any recovery in the case.

15. In rare situations when a case is lost, a court might order the Client to pay her

opponent's attorney's fees or costs, or both. Ordinarily the Center will pay these

costs. The only exception is if the Client has misstated facts to the Center and the

court's award is based on facts it has found to be substantially different from those

the Client told the Center.

16. The Client must pay any fines, damages, or penalties that a court assesses against

the Client personally.

VII. PUBLICITY AND CONFIDENTIALITY

17. Even though the Center does not charge the Client legal fees, its attorney-client

relationship means that it is obliged to keep confidential those communications

which the Client makes in confidence. However, the Center often publicizes its

cases. From time to time the Center may publish the Client's name and the basic

facts of her claim, unless there is an important reason to keep publicity to a

minimum.

18. Sometimes in settlement discussions, opposing parties will ask that the terms of the

settlement not be made public. It is the Center's policy not to agree to such "gag

order" requests. Exceptions may be made in extraordinary circumstances, or when

the Client has particular privacy interests in the nondisclosure of settlement terms.

VIII. MISCELLANEOUS

19. The mutual promises made in this Agreement by and between the Center and the

Client are made in consideration of one another. All parties have read and

understand this Agreement

20. If any part of this Agreement is found invalid or unenforceable, that part of the

Agreement shall be severed from the rest, and the rest shall be enforced.

Dated this ___________ day of _______________, 20__.

____________________ ________________________________

Witness Center for Public Representation

____________________ _________________________________

Witness Client

APPENDIX 1: Explanation of Fee Concepts

Private attorneys ordinarily bill their clients for their work, including the work of paralegal

staff, at hourly billing rates. Such rates vary from attorney to attorney depending upon such

factors as experience and degree of specialization. These rates may also be increased from

time to time to reflect changes in the above factors and inflation, as well as accrued interest.

These hourly billing rates are set at levels that, assuming the attorneys work full time and

are compensated for all their services at their hourly rates, enable them to pay their office

expenses and salaries.

Similarly, public interest attorneys rely, to a significant extent, on fees to pay themselves

and their support staff. The Center's ability to undertake civil rights cases and its fiscal

stability depend upon being compensated at its attorney's hourly billing rates, plus interest,

for substantially all services rendered.

Some civil rights laws provide for the separate recovery of a reasonable attorney's fee in

addition to damages, from the defendant. While there are general guidelines for the

computations of reasonable attorney's fees, there are no fixed rules by which the courts

may compute an exact figure in any individual case. The amount of attorney's fees to be

awarded against any defendant is in the discretion of the trial judge, and is often less than

the fees of the attorneys involved computed at their regular hourly rates.

In cases brought under laws providing for attorney's fees, defendants may make

settlement offers which include a proposed division of the total proposed settlement into one

section on relief for the civil rights violation and another for attorney's fees. If such an offer

is made, and if the proposed division between damages and attorney's fees is respected by

the client and the attorneys, it might create a financial conflict of interest between the client

and the attorneys. For example, if a defendant offers settlement package which includes

generous relief for the civil rights violation but a small amount for attorney's fees, it might be

in the client's interest to accept the offer but in the attorney's interest to decline it.

Conversely, it might be in the attorney's interest to accept but in the client's interest to

decline an offer which provided for a generous attorney's fee but only meager damages.

Because of these potential conflict, some courts have suggested that plaintiffs' attorneys

attempt to settle or litigate the civil rights issues first, and only when these questions are

resolved, to settle or litigate the amount of attorney's fees to be paid by the defendant.

Because of these court rulings, the Center will attempt to settle or litigate any civil rights

questions in this case before settling or litigating the attorney's fees issue. However, since

these court rulings are not binding upon defendants, they may still make combine

settlement offers with specified components for attorney's fees and relief for the civil rights

violations. The only way that the Center and the client can be sure to avoid this type of

conflict is to agree, prior to the commencement of representation, that any division of

settlement offer into attorney's fees and relief for the civil rights violations proposed by the

defendant will be disregarded by the Center and the client.

APPENDIX J

DAMAGE ACTION RETAINER AGREEMENT

I. PARTIES

1. This Agreement is entered into between the Center for Public Representation

(hereafter the Center) and ____________ (hereafter the Client).

II. PURPOSE

2. The purpose of this Agreement is to set forth the legal services to be performed by

the Center for the Client; the intentions of the Center and the Client with regard to

attorney's fees, costs, and possible court-awarded fees; procedures for

disbursement to the Client of any recovery, and division of fees amongst attorneys

representing the Client.

III. LEGAL SERVICES

3. The Center will represent the Client with respect to any claim she may have against

the ____________ or any of its agencies or executive departments, regarding

_______________.

4. The Center has no obligation to represent the Client, or to secure representation for

the Client, in any subsequent stage of this case, including an appeal, or in any other

legal matter. The decision whether to offer any such additional representation to the

Client will be made if and when it becomes necessary.

5. The Client hereby gives the Center the exclusive right to take all legal steps to

enforce this claim. She agrees not to settle this action in any manner without the

written consent of the Center. In consideration of the Center's agreement to

represent the Client in the case, the Client agrees not to accept any offer of

settlement which does not include a monetary component sufficient to insure receipt

by the Center of the costs incurred in this litigation, including attorney's fees.

6. The Client agrees to release to the Center all confidential information concerning the

matters subject to this Agreement.

7. The Center agrees to diligently represent the Client in accordance with Rule 3:l4 of

the Supreme Judicial Court of Massachusetts.

8. The Center acknowledges the right of the Client to change her attorney at any time,

and the Client agrees that if she changes her attorney without cause, the Center

shall have the right to recover under this Agreement, if it has substantially performed

the services set forth above.

9. The Center may seek to terminate its involvement in this case, if in its judgment

continuing to litigate the case would be frivolous or unreasonable or if the facts turn

out to be substantially different from those the Client has stated.

IV. CLIENTS' GOALS

10. The Client's primary goal in retaining the Center is to redress the violation of her civil

rights and liberties occasioned by her ______________________________.

Accordingly, the Client recognizes that the Center will bring a civil rights action on

her behalf seeking to redress the violation of her civil rights and any other legally

protected interests she may have.

11. The Client further recognizes that obtaining damages or financial compensation for

her is the secondary goal of this Agreement.

V. COURT-AWARDED FEES

12. The Client and the Center agree that an award of attorney's fees and costs will be

sought in this case, if, in the Center's judgment, it is appropriate to seek such fees

and costs. One basis for seeking such an award is the Civil Rights Attorney's Fees

Awards Act, 42 U.S.C. 'l988, although there may be other grounds for seeking fees

as well.

13. The Client understands that she and the Center have a right to court-awarded

attorney's fees and costs under the law, if she prevails.

14. It is the Center's policy not to discuss attorney's fees as part of general settlement

negotiations, since negotiating attorney's fees at the same time as the merits of a

settlement offer can place attorneys in a conflict of interest. For the reasons

described in Appendix 1, it is also the Center's policy not to waive its right to

attorney's fees. The Client understands that the Center agreed to represent her in

part because of the availability of court-awarded attorney's fees, and that any fees

which are awarded in this case will be used to support other civil rights activities.

Therefore, the Client agrees not to waive or compromise any possible court-awarded

fees or costs without the written consent of the Center.

VI. COSTS

15. There are many costs of litigation in addition to attorney's fees, including court costs,

transcripts of depositions and hearings and experts. These costs are the

responsibility of the Client. Any outstanding costs paid by the Center will be

deducted from the Client's portion of any recovery in the case.

16. In rare situations when a case is lost, a court might order the Client to pay her

opponent's attorneys' fees or costs, or both. Ordinarily the Center will pay these

costs. The only exception is if the Client has misstated facts to the Center and the

court's award is based on facts it has found to be substantially different from those

the Client told the Center.

17. The Client must pay any fines, damages, or penalties that a court assesses against

the Client personally.

VII. CONTINGENT FEE

18. A recovery of damages for the Client will be sought in this case. The Center's fee,

which the Client agrees to pay, is thirty-three percent (33%) of the total amount of

the recovery, with the percentage computed prior to the deduction of unpaid

expenses. There will be no other fee due from the Client if the case is lost of if no

recovery is received.

19. The Center and Client agree that this contingent fee is not the limit of the fees which

may reasonably be sought and received by the Center. The Client acknowledges

that the Center may, if successful in this case or otherwise entitled, apply to the court

for a further fee award.

20. The parties agree that the Center is entitled to full and fair compensation, to the

maximum extent permitted by law. In this regard, the Client and the Center agree

that the attorney's fee will be the amount under the contingent provision, or the

amount awarded by the court, whichever is greater. If a contingent fee is received

from the recovery, it will be disclosed to the court and the court will be requested to

award any additional amount which, solely in the lawyer's professional judgment,

would be appropriate under the law.

21. For any recovery received by the Client in this case, whether that recovery is

received by court award, settlement, arbitration, or in any other way, and whenever

such recovery is received, whether before or after litigation is initiated, or after

appeal, the Center will be paid the contingent fee stated in this Agreement. The

process for payment will be as follows:

a. From the total amount of recovery, the percentage fee agreed upon will be deducted and

paid directly to the Center.

b. The Client will receive the entire balance after all expenses that were paid by the Center

are reimbursed to the Center.

c. The Center will promptly provide a statement and proposed distribution breakdown to the

Client for approval. The Client and the Center will cooperate in expeditiously reviewing

and signing all releases and forms so that distribution can be made as soon as possible.

VIII. PUBLICITY AND CONFIDENTIALITY

22. Even though the Center does not charge the Client legal fees, its attorney-client

relationship means that it is obliged to keep confidential those communications

which the Client makes in confidence. However, the Center often publicizes its

cases. From time to time the Center may publish the Client's name and the basic

facts of her claim, unless there is an important reason to keep publicity to a

minimum.

23. Sometimes in settlement discussions, opposing parties will ask that the terms of the

settlement not be made public. It is the Center's policy not to agree to such "gag

order" requests. Exceptions may be made in extraordinary circumstances, or when

the Client has particular privacy interests in the nondisclosure of settlement terms.

IX. MISCELLANEOUS

24. The mutual promises made in this Agreement by and between the Center and the

Client are made in consideration of one another. All parties have read and

understand this Agreement

25. If any part of this Agreement is found invalid or unenforceable, that part of the