• Bruce Dennis Sales
  • D. Matthew Powell
  • Richard Van Duizend


In 1975 the United States Congress passed legislation, known as the Developmentally Disabled Assistance and Bill of Rights Act1 (hereinafter DD Act), which requires that the states and territories [hereinafter states] have in effect by October 1, 1977, a protection and advocacy system in order to qualify for receipt of federal funds for developmental disabilities programs. Such systems must be able to (1) “protect and advocate the rights of persons with developmental disabilities,” (2) “pursue legal, administrative, and other appropriate remedies” and (3) “be independent of any state agency which provides treatment, services, or habilitation to persons with developmental disabilities.”2 This is the first time that Congress has conditioned receipt of federal funds on the establishment of a system which must advocate for and protect individuals’ rights.


Cerebral Palsy Developmental Disability Disable Person Legal Service Abled Person 
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  1. 1.
    Pub. L. No. 94–103. 42 U.S.C §§6001–6081 (Supp. V 1975)Google Scholar
  2. 2.
    Pub. L. No. 94–103. §113, 42 U.S.C. §6012 (Supp. V 1975)Google Scholar
  3. 3.
    Interim Guidelines. Development and Implementation of a System for Protection of Individual Rights and Advocacy for Persons with Developmental Disabilities. Part A §5(b), November 1. 1976 (hereinafter HEW Guidelines). Although guidelines are not legally binding, they do indicate the criteria which HEW personnel will consider when determining whether a system qualifies under §113Google Scholar
  4. 4.
    See HEW Guidelines, Part A, §1 and Part B, §§4 and 5.Google Scholar
  5. 5.
    HEW Guidelines, B §5(a).Google Scholar
  6. 6.
    Minnesota and Massachusetts have advocacy systems which were established through non-legislative mechanisms. See S. Herr , Advocacy Under the Developmental Disabilities Act, Developmental Disabilities Office, Office of Human Development, U.S. Dept. Of Health, Education and Welfare (1977).Google Scholar
  7. 7.
    See, e.g., OHIO REV. CODE ANN. §5119.801, .802, .81 & .82 (Page) (1976), and FLA. STAT. ANN. §20.19. These committees, however, may be an important component of a protection and advocacy system because of their investigative powers.Google Scholar
  8. 8.
    Although the legislation creating these agencies will not be discussed here, it should be considered for integration into a protection and advocacy system.Google Scholar
  9. 9.
    It is not entirely clear in many cases that developmentally disabled persons would not be included in the class of persons covered; however, reading particular statutes as a whold strongly suggests that they would not be included.Google Scholar
  10. 10.
    An indigency test also is common in legislation which establishes legal aid and public defender services.Google Scholar
  11. 1.
    ILL. ANN. STAT. ch. 32, §§198–199.4 (Smith-Hurd 1970).Google Scholar
  12. 2.
    Other examples which may be helpful include 42 U.S.C. §§996–29986(/) (Supp. V 1975); ILL. ANN. STAT. ch. 32, §§415–1 to 415–15 (Smith-Hurd Supp. 1977); ILL. ANN. STAT. ch. 32 §§595–624, 1001–1028 (Smith-Hurd 1970 and Supp. 1977). • D. Matthew Powell had primary responsibility for drafting this model statute. • This provision and commentary were prepared prior to the amendment of the Developmental Disabilities Act.Google Scholar
  13. 3.
    Final Report of the National Task Force on the Definition of Developmental Disabilities (1977). (Copies of this report may be obtained through a State’s Developmental Disabilities Council or a regional office of the Developmental Disabilities Office, Department of Health, Education and Welfare.)Google Scholar
  14. 4.
    Id. at p. 9. Note that this is a recommended basis of a majority of the Task Force. The Report also includes a minority proposal to substitute the following for Part 1 of the revised definition: “Is attributable to mental retardation, cerebral palsy, epilepsy, or autism; or is attributable to any other condition of a person similar to mental retardation, cerebral palsy, epilepsy, or autism because such condition results in similar impairment of general intellectual functioning and adaptive behavior and requires treatment and services similar to those required for such persons.” (Emphasis in original.) This constitutes a kind of hybrid definition which includes both catagorical and functional elements.Google Scholar

Copyright information

© Springer Science+Business Media New York 1982

Authors and Affiliations

  • Bruce Dennis Sales
    • 1
  • D. Matthew Powell
    • 1
  • Richard Van Duizend
    • 1
  1. 1.Developmental Disabilities State Legislative Project of the American Bar Association’sCommission on the Mentally DisabledUSA

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