The Disability Defence Office: what it can do for you

It is the office where complaints go when someone denies you a right because of your disability. And it is not an office that only writes letters: the law gives it power to adjudicate the complaint, order what is wrong to be corrected, fine up to five thousand dollars — a company, a person or a government agency — and make the losing party pay attorney’s fees. Several guides on this site end by saying “the complaint goes to the Defensoría”; this one explains what happens when it gets there.

The Act publishes no closed list of who may file. It describes the subject matter: complaints “relating to acts and omissions that harm the rights of persons with disabilities, deny them the benefits and opportunities to which they are entitled and affect benefit programmes for persons with disabilities.” Article 2.09 does say when the Defender will not investigate, and one reason is that “the filing party lacks standing to bring it.” The duties and rights whose breach grounds a complaint are detailed in the regulation the Defender adopts, and we did not read that regulation.

Information pending verification.

Information pending verification.

1. 1

   Step 1: The Defensoría can adjudicate, not merely recommend

   Article 2.08(T) is what changes the expectation. The Defender may “Attend, investigate, process and adjudicate complaints relating to acts and omissions that harm the rights of persons with disabilities, deny them the benefits and opportunities to which they are entitled and affect benefit programmes for persons with disabilities, and grant the pertinent remedies according to law, as well as order corrective actions against any natural or juridical person who denies, obstructs, violates or harms the rights and benefits of persons with disabilities.” Adjudicate, grant remedies and order corrective actions: all three are in the text.

2. 2

   Step 2: A fine of up to $5,000, and agencies too

   Article 2.08(Z) leaves no ambiguity about reach: “Impose and collect administrative fines up to a maximum of five thousand ($5,000.00) dollars for acts or omissions that harm the rights of persons with disabilities protected by the Constitution and laws of the Commonwealth of Puerto Rico, or the Constitution of the United States of America and federal laws. The Defender may impose fines on natural and juridical persons and on public agencies.” The money goes into the Defensoría’s Special Fund. And subsection (AA) adds that when a public employee is fined, their agency is notified.

3. 3

   Step 3: The losing party may pay the fees

   If you are weighing whether it is worth complaining, read subsection (BB) whole: “Impose on the non-prevailing party in a quasi-judicial proceeding the obligation to pay attorney’s fees and costs, where appropriate and according to law.” It cuts both ways — the Act says “the non-prevailing party,” without saying which — and it is conditioned on being appropriate under law.

4. 4

   Step 4: It reaches private companies that take no public funds

   This detail in subsection (G) is overlooked and among the most useful. The Defender “shall enforce the provisions of Act No. 44 of July 2, 1985, as amended, which prohibit discrimination against persons with disabilities, both in public agencies and private entities that receive Commonwealth funds and those that do not receive them.” We did not read Act 44-1985, so we publish none of its content; we publish that the reach includes private entities receiving no Commonwealth funds.

5. 5

   Step 5: What happens when you file: you are notified either way

   Article 2.09 describes the process. “Every complaint brought under this Act’s provisions shall be processed as the regulation provides.” The Defender notifies you of the decision to investigate and, on the same date, notifies the agency or the private person or entity, “stating the facts alleged in the complaint and citing the law that confers the power to conduct such investigation.” And if the decision is not to investigate, you are notified too, “stating the reasons for it and warning you of your right to request reconsideration and review of the determination.” A “no” must come with reasons and with notice that you may ask for reconsideration.

6. 6

   Step 6: The five reasons they will not investigate

   The Act lists them and they are worth knowing before filing. The Defender will not investigate complaints when: “A. They concern a matter outside their jurisdiction. B. They lack merit. C. The filing party has voluntarily withdrawn. D. The filing party lacks standing to bring it. E. The complaint is being investigated by another agency and, in the Defender’s judgement, acting on it would duplicate efforts.” And it adds a useful exit: where the complaint raises no justiciable controversy or falls outside their jurisdiction, “the filing party shall be oriented and referred to the agency concerned, if necessary.”

7. 7

   Step 7: The hearing is public, save for an exception

   Subsection (U) says it at the end of a long sentence and it is easy to miss: the Defender may “conduct investigations in connection with the complaints they investigate, obtain the information they deem pertinent, hold administrative hearings and carry out ocular inspections. Hearings before this Defensoría shall be public, unless public interest justifies conducting them privately.” Article 2.10 adds that the Defender may designate examining officers to preside over those hearings.

8. 8

   Step 8: It can go in and look at records and facilities

   Subsection (X) gives the Defender the power to “Inspect records, documents, inventories and facilities of public agencies and of private persons and entities where pertinent and necessary to an investigation and complaint before them.” Subsection (Y) adds subpoenas for witnesses and documents, with a written guarantee for the person summoned: “The person summoned must be informed of their right to refuse to reveal any evidence or testimony that may incriminate them,” and with the immunity framework of Act 27-1990, which we did not read.

9. 9

   Step 9: Obstructing the Defensoría is a crime

   Article 2.16 puts it this way: “Any person who wilfully disobeys, impedes or hinders the performance of the Defensoría’s functions or those of any of its authorized agents in the discharge of their duties under this Act, or who obstructs the holding of a hearing conducted under this Act, shall incur a misdemeanour and be punished with a fine not exceeding ten thousand (10,000) dollars or imprisonment not exceeding six (6) months, or both, at the court’s discretion.” The same article punishes with up to five hundred (500) dollars or up to six months the disclosure without consent of evidence or testimony from an executive session.

10. 10

    Step 10: Do not confuse it with the Protection and Advocacy Office

    They are two different offices and this is the easiest mistake to make. The Defensoría is this one, created by Act 158-2015: it oversees, investigates, adjudicates complaints and fines. The Office for the Protection and Defence of Persons with Disabilities is another, created by Act 64-2021, which pulled the former Protection and Advocacy Division out of the Defensoría — this Act marks its Article 2.17 as repealed by Article 19 of Act 64-2021 — to meet the federal requirement of an independent system. That other office provides legal services; we have a separate guide for it.

The Office for the Defence of Persons with Disabilities is, under Article 2.01, “an independent legal entity separate from any other agency or public entity,” led by a Defender and assisted by a Governing Council. PRFácil has no agency record for the Defensoría, so this guide is filed under the general-government facet and names it in the text as the Act names it. The Act publishes no address, telephone or form, and we do not invent them: the complaint process is set by the Defender’s regulation. Other guides of ours that end by referring here include the one on government website accessibility and the one on reasonable accommodation at university.

• Thinking the Defensoría only advises: it can adjudicate the complaint, grant remedies and order corrective actions.
• Believing it does not reach a private company that takes no government funds: the Act expressly says it does.
• Confusing it with the Protection and Advocacy Office created by Act 64-2021: they are different offices with different functions.
• Not requesting reconsideration when they decline to investigate: the Act requires notifying you of the reasons and of that right.
• Filing a complaint another agency is already investigating: it is one of the five express reasons not to investigate.
• Assuming the hearing will be private: hearings before the Defensoría are public unless public interest justifies otherwise.

These are the government pages this guide is based on.

• Portal de Servicios del Gobierno de Puerto Rico (PR.gov)

  PR.gov

  bvirtualogp.pr.gov