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CCDC Statement on Masks and the Americans with Disabilities Act

For Immediate Release
May 27, 2020: 

DENVER, Colorado—The Colorado Cross-Disability Coalition (CCDC) is Colorado’s largest statewide, disability-led, disability rights organization. CCDC advocates for social justice on behalf of people with all types of disabilities (cross-disability). This Statement is made jointly by CCDC’s Executive Director, CCDC’s staff, and CCDC’s Civil Rights Legal Program. This Statement is not intended to be construed as legal advice. As set forth below, all information regarding how to proceed under the circumstances is made available by the United States Department of Justice (DOJ).

CCDC was founded 30 years ago to make sure that the Americans with Disabilities Act (ADA) became real in Colorado. To that end, we have been involved in both education and enforcement regarding the ADA. CCDC has been aggressive about requiring governments and businesses to make reasonable modifications to policies, practices, and procedures when necessary to enable people with disabilities to have equal access to any public accommodation. A public accommodation is any place where the public can engage in activities such as stores, hotels, movie theaters, restaurants, golf courses, etc. Non-profits like CCDC’s office and meeting areas are public accommodations. (All information about what the ADA says is publicly available on the DOJ website www.ada.gov.) The ADA also applies to state and local governments (including special districts), transportation, and employment. 

We have learned that people who object to requirements to wear masks or face coverings are advising followers to state that they have a disability and that it is a violation of the ADA to require that individuals wear a mask. There are individuals with disabilities who cannot use masks at all or who can but only with great difficulty. Securing a mask may be difficult to impossible for individuals who may not be able to get a mask on and off independently and lack constant support from a caregiver or other person and for individuals with facial anomalies. However, we are aware there are others invoking this rule without cause.

It is our position that businesses and governments ARE allowed to deny entrance to people who are not wearing masks. In fact, we encourage it.

Public accommodations must also protect their employees and other customers. In fact, the DOJ already has spoken on the issue of the fraudulent claims by people who simply do not want to wear a mask and claim they have a disability as the reason why. The DOJ position states the following: “The Department urges the public not to rely on the information contained in these postings and to visit ADA.gov for ADA information issued by the Department.” See *COVID-19 ALERT: Fraudulent Facemask Flyers* (DOJ COVID-19 ALERT). Furthermore, the ADA regulations in the section that governs public accommodations speak to this issue:

Sec. 36.208 Direct threat.

(a) This part [Title III of the ADA] does not require a public accommodation to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others.

(b) Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.

(c) In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk.

If a person claims that they are unable to use a mask, the public accommodation must make reasonable efforts to accommodate the customer in a different way. This must not involve requiring staff to take unsafe risks. A reasonable person can conclude that behaviors that are contrary to local health department guidelines are unreasonable and unsafe. Some examples of accommodations or modifications might include:

  • Telephone or video chat services
  • Curbside delivery
  • Allowing a substitute person to pick up and item with proper permission. This may include taking a credit or debit card number by phone and then allowing someone else to pick up the item with a special code
  • When possible and in some unique situations, delivering the good to the person outside of curbside delivery

CCDC recommends that businesses post a sign outside that says “Masks Required” and also provides a phone number and email address for someone to contact should they be unable to use a mask. Doing this will eliminate the need for an employee to have to debate the situation with an un-masked person.


“We want you to protect your employees. Some may have disabilities themselves, but more importantly, they are our neighbors, friends, and the essential workers that keep our community going. Why would anyone want to risk harming the people that they want to provide service to them?” Julie Reiskin, Executive Director 


Common Questions:

Can I ask the person what their disability is?

No, you cannot. You can ask why they cannot wear a mask, but it is irrelevant. You do not need to let them in.

Can I ask for proof of disability?

No. Generally, requiring an individual to prove a disability does not occur a complaint is filed and you are in court for an ADA lawsuit or before the DOJ for an administrative complaint. Remember, the person claiming a disability has the burden of proving their disability meets the strict definitions of the ADA to the court. If the individual who does not want to wear a mask does not have a disability but claims that they do and if the claim is fraudulent, the individual will lose in court. It is a risk. Fraudulent lawsuits have consequences. If someone asks for a modification of policy that is significant or maybe an undue burden, the public accommodation could ask for proof, but we recommend you avoid this and consult with an attorney before doing so. Having a condition or diagnosis does not necessarily mean that the person has a disability under the ADA. What meets the ADA definition of an individual with a disability is complicated and requires proof of a substantial limitation of a major life activity and more. All of this can be found on the DOJ website referenced above.

 What if the person has a note from their doctor?

That is irrelevant. Whether an individual is an individual with a disability is a legal definition, not a medical diagnosis.

How far must I go to provide services to this person?

A public accommodation must make reasonable modifications to its policies, practices, and procedures. You need not fundamentally alter your business model or go to such extreme expense that it would cause your business undue hardship. A large business with branches would need to consider the entire company’s, not just one location’s, resources. Under no circumstances must you ever put your employees or customers in danger under the direct threat analysis.

What if my employee says they do not want to work near anyone who does not have a mask?

This is a reasonable request, and you should support this. Check with the Occupational Safety and Health Administration for employee safety requirements. Also, you must follow state, city, or county orders that govern wearing a mask in a public location. You might violate the law by not wearing a mask. See also the DOJ COVID-19 ALERT referenced above.

What if the customer has a mask but it is hanging from their neck?

Instruct your staff to request that the customer secure the mask appropriately or leave. Confirm your staff knows to maintain appropriate social distancing restrictions of 6-feet as recognized by the Centers for Disease Control and other health authorities.

What if someone has a visible disability and their mask falls off? Are you obligated to help the person put it on?

No, you are not required to provide personal services like this. If you or your staff want to do so you may offer and then listen to the individual as they instruct you on how to do this. However, any staff person who feels compromised or uncomfortable must be permitted to not provide this level of assistance. 

Specific disability issues:

While there appear to be people blithely making up disabilities, there are people with real disabilities, and the rule of reasonable modification of policies always applies with the caveats set forth above. 

Deaf/Hard of Hearing:

Very few Deaf people read lips as it is rare but sometimes effective. However, some people who are hard of hearing do use a combination of lip-reading and hearing aids to understand others. If you can have at least some employees use a mask with a clear plastic panel to make the mouth visible, that will be appreciated. A face shield might be appropriate under the circumstances. You should conduct research regarding available types of masks and face coverings to ensure they are effective for the purpose of preventing the spread of the virus.

Blind:

If you have signage, please have Braille underneath.* Also, have available paper flyers in very large print (20 point font or higher) with the phone number to call for assistance. (Dial 711 for a Relay Operator)

Mental Health/Cognitive:

While some individuals may not be able to understand why they have to wear a mask or have extreme discomfort when something is over their mouth, the health risks of allowing people in who are not masked outweighs the benefit. Make sure not to challenge their experience or act like you do not believe them if they say they cannot wear a mask.

Physical:

Some people have facial structures that make mask-wearing impossible or may be unable to secure a mask if it falls off. For most of these individuals, the risk of serious illness or death from contracting COVID-19 is quite high, particularly for employees or other customers who already have respiratory problems and/or other disabilities that compromise their immune systems and are likely to understand mask policies.

Speech:

People with speech disabilities may be a bit harder to understand when wearing a mask. Feel free to ask them to repeat themselves if you do not understand. Most people with speech disabilities will be happy to repeat themselves. If they are unwilling to do so, they are not assisting you in the process of facilitating communication. Therefore, they should not be permitted to enter.

Perspectives from CCDC Staff with Disabilities


Michelle McHenry-Edrington Advocacy Coordinator and Air Force Veteran and her service dog Edgar
Michelle McHenry-Edrington Advocacy Coordinator and Air Force Veteran and her service dog Edgar

“I went into service because I wanted to protect my country and help others. I would never want to risk un-knowingly spreading this disease now even if my PTSD makes it harder to wear a mask. The mask makes me feel as though I am deployed again and in my decontamination suit.”

Michelle McHenry-Edrington Advocacy Coordinator and Air Force Veteran and her service dog, Edgar

 

 


Kevin Williams, Civil Rights Legal Program Director.
Kevin Williams, Civil Rights Legal Program Director

“As a quadriplegic with limited hand function, I cannot re-secure most masks if it slips off. I understand I may need to leave a store or find another way to shop. That is an inconvenience. However, as a quadriplegic with reduced breathing capacity and a compromised immune system, I believe it is very likely I would not survive if infected with COVID. As a result, I will do everything in my power to ensure that I have a mask on so I do not infect you.  It is a matter of simple respect and kindness for other people and should not be made a political issue or an issue of faking disability for getting an accommodation.”

Kevin Williams, Civil Rights Legal Program Director


Dawn Howard, Director of Community Organizing.
Dawn Howard, Director of Community Organizing.

“I know I am hard to understand sometimes. I am never offended if you ask me to repeat myself.”  

Dawn Howard, Director of Community Organizing

ON THIS MEMORIAL DAY, LET US REMEMBER! | A message from Kevin Williams, CCDC Civil Rights Legal Program Director

As many of us know, Memorial Day (formally known as “Decoration Day”) exists for the purpose of remembering, i.e., memorializing, those brave human beings who have died and fallen in combat to protect true and real liberties of this Great Nation! To all of them, so many of whom returned to our country as people with disabilities, on behalf of CCDC, I say, LET US REMEMBER!

As many of us know, many veterans with disabilities are housed (basically warehoused) in veterans’ homes and are dying from the current pandemic at rates far higher than the general population of humans who have the ability to shelter at home. To those great veterans with disabilities and others warehoused in these institutions without any reprieve, on behalf of CCDC, I say, LET US REMEMBER!

As many of us know, the current pandemic affects everyone in ways that none of us could ever imagine. However, people with disabilities who remain the most vulnerable population across the globe and yet who fight for justice with incredible courage and tenacity, on behalf of CCDC, I say, LET US REMEMBER!

Image of Wade Blank, standing in before an American flag
Wade Blank, crusader for the rights of people with disabilities transitioning from their incarceration in nursing homes to their own homes and creating, alongside people with disabilities, the organization ADAPT

As many of us know, ADAPT, certainly one of the greatest and most powerful leaders in the disability rights community dating back to 1983 in Colorado with its roots dating back to 1973, when 19 young people with disabilities incarcerated in nursing homes for most of their lives, said no more and moved into their own apartments. Once in the community with other human beings, they realized there were many barriers — inaccessible public transportation, restaurants, stores, and so many other places. In discussing ADAPT, we cannot forget Wade Blank, a champion of social justice and social change who worked at Heritage House, the place of incarceration where our 19 friends and colleagues with disabilities (many who are no longer with us) were trapped against their will, who helped them in their insistence that they be in their homes and not nursing homes. On behalf of CCDC, I say, LET US REMEMBER!

As many of us know, so many people who are currently warehoused in nursing homes across this country and those who work in those nursing homes are dying at a rate far higher than the rest of us were able to shelter in our own homes as a result this pandemic and the fact that no assistance appears to be being provided. On behalf of CCDC, I say, LET US REMEMBER!

As many of us know, ADAPT went on to challenge Denver’s Regional Transportation District (“RTD”), the largest “public” bus system now including light rail and commuter rail services in the Denver metropolitan area. Of course, RTD did not think the “public” included people with disabilities. After countless meetings and negotiations between ADAPT members with disabilities and RTD that went nowhere the now-famous “Gang of 19” staged a two-day protest blocking one of the busiest intersections in downtown Denver of Colfax and Broadway, people with disabilities blocked buses with their bodies, getting out of their wheelchairs and lying in the street. This action eventually led to RTD making all of its buses have wheelchair lifts. Denver was the first city in the United States to do so as a direct result of this protest. On behalf of CCDC, I say, LET US REMEMBER!

 

Plaque located at the site where the Gang of 19 protested on Colfax Ave. in Denver, Colorado
Plaque located at the site where the Gang of 19 protested on Colfax Ave. in Denver, Colorado

 

Image of protesters with disabilities who got out of their wheelchairs to block RTD buses in the 1984 “Gang of 19” protest
JUL 5 1978, JUL 6 1978 Demonstrators Sleep On the Job Four demonstrators sleep in the street Thursday morning after spending the night blocking two Regional Transportation District buses near the corner of East Colfax Avenue and Lincoln Street. They were among about 30 persons who maintained an overnight vigil to dramatize the need for greater accessibility to public transportation for the handicapped. The buses stopped and barricaded by about 30 persons early Wednesday, were freed Thursday morning. The barricade has served its purpose, said Wade Blank. Credit: Denver Post (Denver Post via Getty Images)

 

As many of us know, ADAPT and so many people with disabilities, in the great tradition of protest movements for civil rights of Black people, women, the LGTB community and so many other human beings who sought equal treatment and civil rights under the law, those people with disabilities crawled up the United States Capitol steps, many abandoning their wheelchairs behind them in order to demonstrate the struggle of inaccessibility and unequal treatment to get Congress and President George H.W. Bush to enact the Americans with Disabilities Act (“ADA”), on behalf of CCDC, I say, LET US REMEMBER!

Picture of eight-year-old Jennifer Keelan leading people with physical disabilities protesting the lack of accessibility on the March 12, “Capitol Crawl” (© AP Images)
Picture of eight-year-old Jennifer Keelan leading people with physical disabilities protesting the lack of accessibility on the March 12, “Capitol Crawl” (© AP Images)
Image of President George H.W. Bush with Evan J. Kemp, Jr., then the chairman of the Equal Employment Opportunity Commission (pictured next to President Bush seated in his motorized wheelchair) and Justin Whitlock Dart, Jr., often called the “Godfather of the ADA,” an American activist and advocate for people with disabilities and co-founder of the American
Image of President George H.W. Bush with Evan J. Kemp, Jr., then the chairman of the Equal Employment Opportunity Commission (pictured next to President Bush seated in his motorized wheelchair) and Justin Whitlock Dart, Jr., often called the “Godfather of the ADA,” an American activist and advocate for people with disabilities and co-founder of the American Association of People with Disabilities (also pictured next to President Bush seated in his wheelchair)

 

As many of us know, the Colorado Cross-Disability Coalition (“CCDC”) was formed by people with disabilities in 1990 bring the promises of the ADA to and ensure they were enforced in Colorado. On behalf of CCDC, I say, LET US REMEMBER!

As many of us know, CCDC, and solidarity with so many like-minded disability rights advocates and activists across the country and worldwide, with its mission to ensure social justice for people with disabilities of all kinds, has made major changes on the impact of the lives of people with disabilities in Colorado and throughout the nation. On behalf of CCDC, I say, LET US REMEMBER!

As many of us know, attorneys across the country and those who work for CCDC’s Civil Rights Legal Program have spent decades of our lives devoted to the simple principle that people with disabilities are people entitled to the same liberty and justice enjoyed by all human beings. It does not always take a village to solve a problem even though that is a good approach; often, unfortunately, it takes a lawsuit! On behalf of CCDC and all of the hundreds and maybe thousands of attorneys who understand that simple principle, once again, I say, LET US REMEMBER!

As many of us know, CCDC in solidarity with disability rights groups throughout the country, are steering people with disabilities and those in power in the right direction, recognizing the humanity and quality of all people to maintain life, liberty and the pursuit of happiness in the face of this pandemic that is killing us for reasons that make no sense. On behalf of CCDC, once again, I say, LET US REMEMBER!

As many of us know, there are people in this country who seek to take advantage of those accommodations that are necessary in order to provide equality of opportunity for people with disabilities, but we reject and have exposed and stopped your inhumane attempts to do so. The last thing anybody claims they ever want to be is a person with a disability, but so many non-disabled people are willing to try to take advantage of the necessary accommodations people with disabilities need for equality. On behalf of CCDC, once again, I say, LET US REMEMBER!

As many of us know, there people today in this country who claim to have a disability as the reason for not wearing a mask to protect the health and safety of all of us, those with disabilities and those without. There may be legitimate disability-related reasons for not wearing a mask, but to those of you who are doing so illegitimately, we shame you. What you’re doing is despicable and will not be tolerated. On behalf of CCDC, once again, I say, LET US REMEMBER!

"mask loophole" meme that states "I am exempt from ALL REGULATION mandating face mask usage in public. Wearing a face mask poses a health risk to me. Under the ADA and HIPPA, I am NOT required to disclose my medical condition to anyone." The meme goes on to warn of financial penalties for businesses and provides a phone number for the Department of Justice.
ADA and HIPAA “mask loophole” meme

As many of us know, “The economic shutdown related to COVID-19 has complicated the lives of Colorado people with disabilities, who find their routines upset, their jobs at risk and their quest for affordable, accessible housing more difficult.” On behalf of CCDC, once again, I say, LET US REMEMBER!

As many of us know, on this Memorial Day, often-called the unofficial “First Day of Summer,” “This ain’t no party, this ain’t no disco, this ain’t no foolin’ around!”[Lyrics from “Life During Wartime.”© David Byrne, 1979. Talking Heads, Fear of Music album and featured in the 1984 film Stop Making Sense]  Our friends, our loved ones and our colleagues are dying in large numbers. The death toll in the United States will most likely reach 100,000 as of the end of this hallowed Memorial Day! On behalf of CCDC, once again, I say, LET US REMEMBER!

 

— Kevin W. Williams, Civil Rights Legal Program Director, Colorado Cross-Disability Coalition. Memorial Day, May 25, 2020. Permission to share and distribute widely because we need to remember and continue in the proud tradition of disability rights activists all over the world and fix this calamity as soon as possible and save ourselves! We SHALL overcome!

Picture of Kevin W. Williams, CCDC Civil Rights Legal Program Director shown in front of banner that reads, “Colorado Cross-Disability Coalition: Nothing about us without us.”
Picture of Kevin W. Williams, CCDC Civil Rights Legal Program Director shown in front of
a banner that reads, “Colorado Cross-Disability Coalition: Nothing about us without us.”

READ THE PDF VERSION, CLICK HERE

Lawsuit Adds Pressure on RTD to Drop Union Station Rule Changes

Denver artist Raverro Stinnett was at Union Station after attending a LoDo art opening, waiting for a train home early on the morning of April 20, 2018, when he was confronted by four security officers who threatened him and challenged him to a fight. Two of the guards, employed by contractor Allied Universal Security Services, led him to a bathroom and brutally assaulted him while another kept watch; all three later pleaded guilty to criminal charges. Stinnett was left with permanent brain injuries that, according to a lawsuit filed last week, “have completely upended his life.”

Continue to Westword Article

CALL TO ACTION: We Need 12% FMAP (Federal Medicaid Assistance Payment) Increase

Urgent Action Needed from You!

From Julie Reiskin, Executive Director

Background:

  • The FMAP formula is designed so that the Fed pays a lesser portion of Medicaid costs in states with higher per capita income relative to the national average.  Colorado until recently was a wealthier state.
  • FMAP rates have a statutory minimum of 50% and a maximum of 83%. For FY2019, regular FMAP rates range nationally from 50% – 76.39%, with Colorado at 50% and states like MS, WV, AL, KY, and NM at greater than 70%,
  • That means for every dollar of expense, the State of Colorado and the Fed each chip in 50 cents, despite how the Coronavirus pandemic is impacting our economy right now.  Colorado has tourism as a big part of our economy.
  • At the same time, Medicaid membership increases as our economy takes a downturn, creating even more expense for the State.

Federal Response:

  • The Federal Stimulus package did include a 6.2% increase in FMAP for all states.
  • Colorado and most other states asked for and received needed flexibility from the federal government to help us cope with the effects of the pandemic. THIS JUST ALLOWS US TO DO THE ACTIVITIES BELOW BUT DOES NOT GIVE US RESOURCES TO ACTUALLY DO THESE THINGS:  Some of our requests include:
    • Not kicking people off of Medicaid during the crisis
    • Relaxing prior authorization requirements so people do not risk not getting essential services
    • Increased funds for supports like cleaning and sanitizing in nursing facilities, dialysis centers, etc.
    • Paying retainer payments to programs that are essential for our most vulnerable but that cannot operate during the crisis like adult day care programs
    • Allowing paid time off for some direct care workers so they do not come work with vulnerable people when ill.

Problem:

For Colorado to actually implement the most critical areas of flexibility requested, meet the needs of the Medicaid providers that include rural hospitals, personal care workers, people that provide direct support to those with cognitive disabilities, and other essential needs the FMAP needs to be at least 12%.   Therefore, we need our federally elected officials to actively fight for an increased FMAP in the next stimulus package currently in the work.  It must be at least 12%.  At the very least we need money that goes to the states to help with Medicaid costs.

This is NOT a partisan issue.  Medicaid Helps ALL of Colorado.   This could be a life and death issue for elderly and disabled Coloradans but will also affect many others including everyone who has either lost their job or has reduced hours.

WHAT TO DO NOW:

Everyone should contact BOTH Senators and the Representative for YOUR area.  You should say that you want the package to include 12% FMAP or any other way to get money to state governments and why you care about Medicaid.  Include that you are a voter, and know and speak to many other voters!!    Share this request with others.

Colorado U.S. Senators

  1. https://www.bennet.senate.gov/public/index.cfm/contact
  2. https://www.gardner.senate.gov/contact-cory/email-cory

Colorado U. S. Representatives

  1. CD 1 Diana DeGette https://degette.house.gov/contact  Denver
  2. CD 2 Joe Neguse https://neguse.house.gov/contact  Boulder to Ft. Collins and Eastern Mountains
  3. CD 3 Scott Tipton https://tipton.house.gov/contact Entire Western Slope and Pueblo
  4. CD 4 Ken Buck https://buck.house.gov/contact Northern Colorado including Greeley
  5. CD 5 Doug Lamborn https://lamborn.house.gov/contact Colorado Springs to Salida
  6. CD 6  Jason Crow https://crow.house.gov/contact Aurora to Centennial
  7. CD 7 Ed Perlmutter https://perlmutter.house.gov/forms/writeyourrep/  Most of Jefferson & Adams

Please get at least 5 other people to write –and ask them to do the same!

A map showing the congressional districts of Colorado.CD 1 Diana DeGette:  Denver  CD 2 Joe Neguse: Boulder to Ft. Collins and Eastern Mountains CD 3 Scott Tipton: Entire Western Slope and Pueblo CD 4 Ken Buck: Northern Colorado including Greeley CD 5 Doug Lamborn: Colorado Springs to Salida CD 6  Jason Crow: Aurora to Centennial CD 7 Ed Perlmutter: Most of Jefferson & Adams
Colorado Congressional Districts, 113th Congress

Southern Colorado Providers Say Coronavirus Impact Additive For Vulnerable Populations

CCDC In the News!

CCDC’s own Kristen Castor was interviewed as part of the following news report. Follow the link to read the entire article. Kristen’s section is below

Southern Colorado Providers Say Coronavirus Impact Additive For Vulnerable Populations

Kristen Castor
Non-attorney advocate with the Colorado Cross-Disability Coalition, based in Pueblo

Image of members of the CCDC 2019 State Meeting.
Kristen Castor (second from right) works as a non-attorney advocate with the Colorado Cross-Disability Coalition.
Kristen Castor (second from right) works as a non-attorney advocate with the Colorado Cross-Disability Coalition.
CREDIT COLORADO CROSS-DISABILITY COALITION

On Her Work With The Organization
My primary responsibility is to represent people who are appealing Medicaid denials at the administrative law judge level with the state. And then I do a lot of miscellaneous organizing things. Right now there’s a lot, because we’re trying to get our own membership informed about the virus, the precautions they can take and the benefits that they have.

Interestingly enough, most of the people with disabilities that we serve live below the poverty level. So, anything that deals with poverty often crosses over with what we need to look at for our population.

On Supports And Challenges Due To COVID-19
I’ve been so worried about people being stuck in their homes and not able to get food. That just terrifies me. I think people with severe disabilities or possibly very elderly people are at high risk of that happening. And so far, the city [of Pueblo] has just responded by creating more networks and trying to help that particular population.

[We’ve been discussing] the fear that if you need medical help outside of your disability, that you will be triaged, and basically murdered. That’s the fear we live with that constantly. And the reason is because all of us, if we have a severe disability and lived with it for a number of years, all of us have been told to our faces by various people that we should not be alive. I’ve been told that.

We’ve been fighting for the right to live in the community for the last 40 years. So every time we go around with a threat like this, we’re thinking, ‘Oh my god, I fought all my life to stay independent, and now I might lose it with a pen stroke.’ And people with disabilities, we’re just that–we’re people. It doesn’t mean we can’t contribute.

In The Face Of Ethical Aberrations In Several States Colorado Stands Strong Against Discrimination In COVID-19 Care

DENVERApril 9, 2020 /PRNewswire/ — The Governor’s Expert Emergency Epidemic Response Committee developed Crisis Standards of Care (CSC) after collaboration with experts and communities. Governor Polis has authorized the Colorado Department of Public Health and Environment to enact the standards when or if necessary.  

The Colorado Cross Disability Coalition (CCDC), The Arc of Colorado, and over 140 organizations thank Gov. Jared Polis for ensuring that people with disabilities and other vulnerable populations receive equitable care under the CSC during the COVID-19 epidemic and other crisis situations.

Read the original article here.

PART 3: URGENT AND IMPORTANT CCDC INVESTIGATION OF CSL PLASMA

Please see Part 1  and Part 2 for other important related information.

THE FOLLOWING PROVIDES AND EXPLANATION OF THE LEGAL BACKGROUND REGARDING DISABILITY DISCRIMINATION THAT MAY OCCUR BY PLASMA CENTERS, INCLUDING CSL PLASMA:

According to their website, CSL Plasma states the following with respect to “Who Can Donate?”

Anyone in good health, 18 or older, who weighs at least 110 lbs, have had no tattoos or piercings within the last 12 months, meets our eligibility and screening requirements, has valid identification and a permanent address is eligible to donate plasma.

To maintain high health standards, a member of our medical staff gives every potential donor a screening examination, and gathers medical history information. This is for the donor’s safety as well as the quality of the product that will be made from plasma, and we assure the utmost respect to donor privacy.

Both the requirements regarding “good health” and the required “screening examination” may very well discriminate against people with disabilities, even though they may have been put in place with the best of intentions. These phrases often serve as buzzwords for disability discrimination. For example, what does “good health” mean and who gets to decide? Also, as explained below, “screening examinations” may screen out letting people with disabilities donate plasma even when an individual’s disability has nothing to do with the ability to provide a plasma donation safely.

Plasma centers like CSL Plasma are places of public accommodation under the Americans with Disabilities Act (“ADA”) and the Colorado Anti-Discrimination Act (“CADA”) and are not permitted to discriminate on the basis of disability.[1] As such, CSL Plasma cannot refuse to allow you (if you are an individual with the disability) to donate and receive payment for doing so on the basis of disability except under very limited circumstances. If you have already contacted a CSL Plasma center in the past and have been denied the ability to donate plasma based solely on the basis of your disability or if you call now to try to make a donation, here are some key things to remember:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who ow/ns, leases (or leases to), or operates a place of public accommodation.[2]

Both Title III of the ADA and the CADA apply to the owners of public accommodations and/or businesses that lease a place of public accommodation or operate a place of public accommodation, although the CADA refers to “any person” who discriminates whereas the ADA only applies to entities that discriminate, not persons.[3] You should also be aware that Title III of the ADA prohibits an entity from engaging in contractual, licensing or other arrangements that result in discrimination on the basis of disability as well.[4] The CADA is intended to apply all of the same standards and defenses as the ADA.[5] As a result, it is possible, for example, that the CADA incorporates standards pertaining to contractual licensing and other arrangements that result in discrimination. Title III of the ADA prohibits many forms of discrimination some of which are very direct and others are much more subtle.

And now for some minutia or “getting in the weeds” of ADA Title III and CADA claims:

An individual or class of individuals on the basis of disability cannot be denied the equal opportunity to participate in plasma donation; nor can an individual or entity like CSL Plasma use “standards or criteria or methods of administration” that have the effect of discriminating on the basis of disability or perpetuate the discrimination of others (for example, a standard that prohibited all people who are blind or deaf or who have any other form of disability that is not specifically related to the individual’s ability to donate plasma).[6] Title III also prohibits imposing “application of eligibility criteria ” that screen out or tend to screen out an individual with the disability or any class of individual with disabilities from participating in plasma donation and prohibits failing to “make reasonable modifications in policies, practices or procedures” when such modifications are necessary to afford an individual with disabilities and equal opportunity to participate in plasma donation or due to a failure to “provide appropriate auxiliary aids and services” (like sign language interpreters if necessary for effective indication) in order to participate in plasma donation.[7] Modifications of policies, practices and procedures under Title III of the ADA may also include requiring that a plasma center not discriminate against an individual with the disability who uses a service animal.[8] Under the CADA, an individual with a disability has the right to be accompanied by a service animal and even a trainer of a or an individual with the disability accompanied by an animal that is being trained to be a service animal is permitted to have the service animal in or service animal in training in any place of public accommodation.[9]

In addition, plasma centers are required to be fully accessible to people with disabilities if they are newly constructed facilities under the ADA if they have been altered or renovated in a significant way, and they must remove architectural and communication barriers when doing so is readily achievable which means without difficulty or expense (like installing accessible parking spaces and ensuring that equipment and rooms are made accessible when doing so is not complicated or expensive).[10] The CADA also addresses design and construction issues with respect to the requirements that it be construed to apply the same standards and defenses available under the ADA reference above and also in its remedial provisions.[11]

For people with mobility disabilities, there is specific guidance issued jointly by the United States Department of Justice, Civil Rights Division, Disability Rights Section and the United States Department of Health and Human Services Office for Civil Rights (“Joint Guidance”). This guidance addresses requirements related to the accessibility of medical equipment and also the need to accommodate individuals with such disabilities. SeeAmericans with Disabilities Act: Access To Ethical Care for Individuals With Mobility Disabilities.” Here are just some examples that relate directly to this guidance as well as prohibitions set forth in the policies of plasma clinics regarding transferring individuals with mobility disabilities:

    • Question: I don’t want to discriminate against patients with disabilities, but I don’t want my staff to injure their backs by lifting people who use wheelchairs onto exam tables. If my nurse has a bad back, then she doesn’t have to help lift a patient, does she?

Staff should be protected from injury, but that doesn’t justify refusing to provide equal medical services to individuals with disabilities. The medical provider can protect his or her staff from injury by providing accessible equipment, such as an adjustable exam table and/or a ceiling or floor based patient lift, and training on proper patient handling techniques as necessary to provide equal medical services to a patient with a disability. (See Part 4 [of the document] for more information on this equipment.)

    • Question: What should I do if my staff do not know how to help a person with a disability transfer or know what the ADA requires my office to do? Also, I am unsure how to examine someone with spasticity or paralysis.[12]

To provide medical services in an accessible manner, the medical provider and staff will likely need to receive training. This training will need to address how to operate the accessible equipment, how to assist with transfers and positioning of individuals with disabilities, and how not to discriminate against individuals with disabilities. Local or national disability organizations may be able to provide training for your staff.[13]

Therefore, it might very well be considered discrimination on the basis of disability if a plasma clinic has a policy or standard that requires an individual who uses a wheelchair who wishes to donate plasma to be able to transfer herself to a device such as an examination table or chair used for plasma donation independently and without any assistance from the staff working at the plasma center.

Furthermore, it is very important that plasma centers do not discriminate on the basis of myths, fears, and stereotypes associated with disabilities as often occurs with respect to people with cognitive or psychiatric disabilities.[14] Therefore, if a plasma center prevented someone during its screening process from donating plasma because of fears or stereotypes related to the individual due to a condition that causes muscle spasms, seizures or psychiatric disorders, all of these actions may constitute discrimination under Title III. Likewise, if a plasma center refused to allow someone to be a plasma donor because the individual had a psychiatric disability based on a fear that the individual might attempt to donate plasma without having taken his or her medications might very well constitute discrimination on the basis of disability.

There are exceptions to all of the forms of discrimination that are prohibited under Title III of the ADA set forth above, but they are very limited. For example, if allowing the individual to donate plasma would cause an “undue burden to the plasma center, or if the individual somehow constituted a direct threat to the health or safety of others even if the behavior that caused that direct threat was related to disability and could not be accommodated reasonably, the plasma center may refuse to allow the individual to donate plasma. Even when a plasma center falls under the ADA provisions addressing newly designed and constructed facilities, there might be an exception for full and complete accessibility if it is structurally impracticable to make the facility accessible and in compliance with the requirements for the Standards for Accessible Design. There may be other disability-related reasons why an individual might not be able to donate plasma (for example, if an individual had some blood-related disease that would interfere with providing plasma, this might constitute an exception). Nevertheless, as said, the exceptions are very limited. As an example of the limitations on the exceptions, making a  determination as to whether allowing an individual with a disability to donate plasma constitutes an undue burden for the facility at issue, many considerations must be made like determining resources and capabilities of any parent company involved with the facility in question. Another example relates to the structural impracticability defense related to designing instruction. A public accommodation like a plasma center would have to prove that the conditions under which the facility was built made it almost nearly impossible to build it in for compliance with the ADA if it falls under the newly designed and constructed facilities provisions.

Therefore, as set forth in Part 1 of this Alert, please let us know if you have experienced discrimination on the basis of your disability by CSL Plasma, or, as set forth in Part 2 of this Alert if you wish to contact CSL Plasma and donate plasma, and you experience discrimination on the basis of disability as a result, please do contact Kara Gillon at the email address or telephone number listed in Part 1 of this Alert.

[1] 42 U.S.C. § 12181(7)(f) (defines “public accommodation” to include the office of a healthcare provider or other service establishment); Colo. Rev. Stat. § 24-34-601(1)(defines “place of public accommodation” to mean a place of business engaged in sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering sales to the public or public facility of any kind whether indoor or outdoor); Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1234 (10th Cir. 2016) (holding that a similar plasma donation center is a public accommodation under the ADA).

[2] 42 U.S.C. § 12182(a); Colo. Rev. Stat. § 24-34-601(2)(a) (referencing the prohibition of discrimination on the basis of disability by any “person” defined elsewhere in the statute, Colo. Rev. Stat. § 24-34-301(5)(a), as including limited liability companies, partnerships, associations, corporations and other entities similar to those identified in Title III of the ADA).

[3] Id.

[4] 42 U.S.C. § 12182(1)(A)(i)-(iii).

[5] Colo. Rev. Stat. § 24-34-802(4); Colo. Code Regs. § 708-1:60.

[6] Id. §§ (b)(1)(A)(1) & (b)(1)(D).

[7] Id. §§ (b)(2)(A)(i)-(iii).

[8] 28 C.F.R. § 36 302(c)(1).

[9] Colo. Rev. Stat. §§ 24-34-803(1)(a) & (2)(a) & 24-34-804(1). Both the ADA and the CADA place some limitations on the use of a service animal (and/or under the CADA a service animal in training). 28 C.F.R. §§ 36.302(c)(2), (4), (5) (the animal must be in the control of its handler, the animal must be housebroken and public accommodations are not responsible for the care or supervision of service animals); Colo. Rev. Stat. § 24-34-803(4)(requiring that a service animal or a service animal in training must be under the custody or control of the individual wh the disability or the trainer).

[10] 42 U.S.C. §§ 12183 (applicable to new construction and alterations) & 12182(b)(2)(A)(iv) (applicable to the requirement of existing facilities — those designed and constructed before the enactment of the ADA — to remove structural and communication barriers when doing so is readily achievable).

[11] Colo. Rev. Stat. §§ 24-34-802(b)-(c).

[12] A similar analysis would be applied to a blood donation center or plasma donation center.

[13] The guidance provides direct contact information for the ADA Website and the US Department of Justice as well.

[14] 28 C.F.R. pt. 36, app. C at 706 (a person who is not allowed into a public accommodation because of the myths, fears, and stereotypes associated with disabilities would be protected under the ADA as would an individual who was denied services because the public accommodation feared a psychological condition constituting a disability might result in problems if the individual was not medicated properly).

⇐⇐Part 1                  ⇐ Part 2

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PART 2: URGENT AND IMPORTANT CCDC INVESTIGATION OF CSL PLASMA


Please see Part 1  and Part 3 for other important related information.

CCDC MEMBERS, IF YOU HAVE NOT ALREADY ATTEMPTED TO DONATE PLASMA TO CSL PLASMA (See all locations set forth in Part 1 of this Alert):

  • DO YOU NEED TO EARN MONEY? (Silly question, we know.)
  • DO YOU WANT TO SAVE LIVES BY HELPING YOUR FELLOW COLORADANS? (CCDC members are always the first responders when it comes to helping others.)
  • DO YOU WANT TO HELP CCDC WITH A DISABILITY DISCRIMINATION WITH AN INVESTIGATION BY DONATING PLASMA OR TRYING TO DO SO? (We need your help to determine what, if any, discrimination on the basis of disability is happening.)

What could be better than that? A trifecta. CCDC members and friends, would you like to earn up to 400 extra dollars per month[1] on an ongoing basis and provide an enormously needed service to help others in need? Why not donate plasma? Currently, plasma centers are designated as a “Critical Business” that will remain open for purposes of making donations under the current Colorado Order and PHO (see Part  1 of this Alert for links to these orders) as well as under the U.S. Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency[2] because their services are needed desperately by those who need plasma. In addition, CSL Plasma advertises that it is taking extreme precautions to follow all COVID-19 protocols in order to ensure the safety of those of you who want to help others who desperately need donated plasma.[3] CCDC certainly wants to ensure that all of its members and our families, friends and colleagues stay safe and healthy. Finally, CCDC wants to make sure that CSL Plasma is not discriminating against people with disabilities and needs your help to investigate whether this is happening.

We all know everyone is struggling both with worries about their own physical health and the physical health of their friends and family, and we all are dealing with economic circumstances that also provide us all with a great amount of stress. For many, economic problems are enormous.   On top of the physical health and economic concerns that weigh heavily upon all of us, our current circumstances are affecting many people’s mental health as well.

One way we can all benefit others as well as earn some income during these stressful economic times is to donate blood and plasma. Because people are staying at home, they are much less likely inclined to provide needed donations of blood and plasma to those centers that will make it available for life-giving and life-sustaining procedures for so many people throughout our state.

Several recent news reports provide some examples regarding medical needs in Colorado, and plasma donations are needed now more than ever.[4]

CCDC is investigating CSL Plasma, because there is reason to believe that this entity is discriminating against people with disabilities and preventing them from donating plasma as a result. Even though people with disabilities want to do their part and help others as well as earn needed income in the process, they might be turned away from doing so for reasons resulting from disability discrimination that could very well violate the Americans with Disabilities Act (“ADA”), the Colorado Anti-Discrimination Act (“CADA”) and possibly other disability rights laws.

You can earn up to $400 for donations each month and help save other people’s lives in the process. Even though you might have already received or soon will be receiving a tax refund and/or a stimulus check, for many of CCDC members with disabilities, this additional money can really help especially those on lower incomes and those who are currently not working because of the pandemic. By doing so, you can provide a potentially life-saving service for so many people who are either hospitalized or have conditions requiring them to need plasma transfusions for reasons that may or may not be related to the current pandemic. This needed service for others can help CCDC members with disabilities with their needed extra income.

So, by donating plasma, you can serve three very meaningful purposes: (1) You can help yourself make it through these difficult economic times; (2) you can help others who so desperately need plasma to survive; and (3) you can help CCDC with its investigation regarding whether this plasma center is discriminating on the basis of disability. This is an extremely rare win-win-WIN situation!

So many CCDC members (many of home live on lower and fixed incomes) who have always stepped up to help others in need in the past have asked us at CCDC, “What else can I do to help fellow Coloradans during this horrible and unexpected crisis?” This is one more critical time and one more urgently needed way to help. This very well may be the most critical time we have ever seen with respect to all of us needing to help each other. Clearly, donating needed plasma will help others stay alive as we all work to help each other get through the pandemic together.

Furthermore, CCDC has become aware and is very concerned that the entity that runs these plasma centers may be discriminating against people with disabilities who want to serve others in helping to donate plasma. We have reason to believe that these plasma centers may be prohibiting many people with disabilities, solely on the basis of disability, from donating plasma.

As set forth in Part 1 sent earlier, please let us know immediately (1) if you have tried to donate plasma at one of the Colorado centers listed in Part 1 And available on the CSL Plasma website for Colorado locations, and, in doing so, if you have been denied the ability to donate plasma for a disability-related reason (the appropriate contact information and what information you should provide is all set forth in Part 1); or (2) if you would be willing to try to donate plasma to assist others and earn some income during these trying times.  You can find the plasma center near you in the state of Colorado and contact the facility of your choice if you would like to donate plasma. Their website provides other useful information you will need as well.

[1] Please keep in mind not every payment will be $400.00. That is the maximum amount an individual might receive for donating plasma in a given period of time. According to the CSL Plasma Frequently Asked Questions page:

You can get paid up to $400 each month by donating life-saving plasma. This is applicable for eligible, qualified new donors. Fees vary by location. In addition, you can also receive points (called iGive) for your donations. iGive points can be redeemed for extra cash deposited (loaded) right to your reloadable prepaid card. Check with your preferred CSL Plasma donation center to see if they are participating in any other special promotions.” In addition, The U.S. Food & Drug Administration (FDA) regulations state that the maximum frequency you can donate plasma is once in a two-day period – and, no more than twice in a seven-day period.

[2] See CSL Plasma Corona Virus page and Safe Passage letter; as stated in Part 1 of this Alert, CSL Plasma centers also fall under the “Critical Business” exception to the Stay at Home Order executed by the Colorado Governor and as described by the Colorado Department of Public Health and Environment in its implementation of the Order § III(C) which excludes businesses engaging in healthcare operations and provides a non-exhaustive list, including businesses like blood banks and other healthcare operations like plasma donation centers.

[3] CSL Plasma “Our Message to Our Donors.”

[4] See, e.g., “Denver man with rare disease is asking people to donate blood during the stay-at-home order,” Denver Post, https://www.thedenverchannel.com/news/coronavirus/denver-man-with-rare-disease-is-asking-people-to-donate-blood-during-the-stay-at-home-order (last visited Apr. 7, 2020); “Local family seeks plasma donor for life-saving COVID-19 treatment,” Fox31 Denver, https://kdvr.com/news/coronavirus/local-family-seeks-plasma-donor-for-life-saving-covid-19-treatment/ (last visited Apr. 7, 2020); “Colorado hospital calling for donors to help with experimental, ‘promising’ coronavirus treatment: Convalescent plasma treatment is being used at Children’s Hospital Colorado,” ABC News, https://abcnews.go.com/Health/colorado-hospital-calling-donors-experimental-promising-coronavirus-treatment/story?id=69951910 (last visited Apr. 7, 2020).

This three-part Alert will be followed by Part  3, the final installment of the Alert pertaining to the applicable law and how disability discrimination might occur related to those who wish to donate plasma. Part 1 sent earlier explains who to contact and what information you should provide if you feel you have experienced disability discrimination as a result of contacting CSL Plasma.

 

⇐Part 1                    Part 3⇒

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PART 1: URGENT AND IMPORTANT CCDC INVESTIGATION OF CSL PLASMA


Please see Part 2  and Part 3 for other important related information.

HAVE YOU EXPERIENCED DISCRIMINATION ON THE BASIS OF DISABILITY AND ATTEMPTING TO DONATE PLASMA TO A CSL PLASMA CENTER IN COLORADO BECAUSE OF YOUR DISABILITY?

For example, were you denied the opportunity to donate plasma and receive payment for doing so for a disability-related reason? If so, our Civil Rights Legal Program needs to hear from you as soon as possible. Please contact Kara Gillon at ccdclpa@ccdconline.org or (303) 660-8254. Email is best as the Colorado Cross-Disability Coalition (“CCDC”) staff are all following the current EXECUTIVE ORDER D 2020 024, AMENDING AND EXTENDING EXECUTIVE ORDER D 2020 017 ORDERING COLORADANS TO STAY AT HOME DUE TO THE PRESENCE OF COVID-19 (“Order”), entered April 6, 2020, as well as the UPDATED PUBLIC HEALTH ORDER 20-24 IMPLEMENTING STAY AT HOME REQUIREMENTS (“PHO”), dated March 26, 2020, and issued by the Colorado Department of Public Health & Environment. Most of us are working at home unless otherwise necessary. CCDC is permitted under these orders to have staff in the office, but we are working at home unless otherwise necessary.

WHAT DO WE NEED FROM YOU? We need to know as much precise information as possible which may include the following: (1) when you made the contact with any of the CSL Plasma Centers located in Colorado (the previous link provides all addresses and other necessary contact information, also listed below); (2) all reasons why you believe you were discriminated against on the basis of your disability; (3) who you talked to and when and what was said.

Leave a good time to contact you (again preferably by email) and your name, telephone number, email address and whether you are a CCDC member already.

If you would like to become a CCDC member, membership is free and can be extended to any individual who believes in social justice for people with all types of disabilities. You can become a member easily by logging on to the CCDC Membership Website Page. By becoming a member, you may elect to receive important information regarding all activities of CCDC which are especially important in light of the current pandemic.

This is Part 1 of three parts to be included in this Alert.

Part 2 of this Alert will provide you with information regarding whether you would be interested in being a plasma donor which accomplishes three important purposes: (1) Assisting individuals who are in desperate need of plasma donations received those donations during this time of crisis; (2) helping you obtain some additional needed financial resources during this economic crisis; and (3) assisting CCDC with its investigation of this issue and the possibility of disability discrimination.

Part 3 of this Alert will provide you with the legal background for the types of disability discrimination individuals might be experiencing as a result of attempting to donate plasma at CSL Plasma centers.

WE ARE CONDUCTING AN INVESTIGATION AND NEED TO HEAR FROM YOU AS SOON AS POSSIBLE.

Colorado CSL Plasma locations:

Arvada
11651 W 64th Ave Suite B1
Arvada, CO 80004
Ph: 303-425-9959
Fax: 303-423-6464
Mon-Fri 6:30am-7pm; Sat/Sun 7am-5pm
Map This Location
Donation Center Details

Aurora
690 Peoria St. Unit M
Aurora, CO 80011
Ph: 303-363-0095
Fax: 303-363-6732
Mon-Fri 6am-8pm; Sat 7am-3pm; Sun 6am-6pm
Map This Location
Donation Center Details

Colorado Springs
5506 N. Academy Blvd
Colorado Springs, CO 80918
Ph: 719-284-3258
Fax: 719-387-9767
Mon-Fri 7:30am-6pm; Sat/Sun 9am-3pm
Map This Location
Donation Center Details

Evans (Greeley)
3505 11th Avenue, Unit #1
Evans, CO 80620
Ph: 970-330-3558
Fax: 970-330-1807
Mon-Fri 7am-8pm; Sat-Sun 7am-7pm
Map This Location
Donation Center Details

Ft. Collins
1228 West Elizabeth Street, Suite D-3
Ft Collins, CO 80521
Ph: 970-484-2248
Fax: 970-484-2568
Mon-Fri 7am-7pm; Sat-Sun 7am-3pm
Map This Location
Donation Center Details

Grand Junction
2650 North Avenue
Grand Junction, CO 81501
Ph: 970-233-7947
Fax: 970-241-3511
Sun-Fri 6am-7pm; Sat 6am 5pm
Map This Location
Donation Center Details

Northglenn
11874 Washington St
Northglenn, CO 80233
Ph: 303-515-7621
Fax: 303-255-1471
Mon-Fri 6:30am-7pm; Sat-Sun 7am-5pm
Map This Location
Donation Center Details

 

Part 2⇒                         Part 3⇒⇒

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Colorado readies guidelines for prioritizing coronavirus patient care in case of hospital overload

Colorado health officials are finalizing guidelines to help doctors on the front lines of the coronavirus crisis make the excruciating choices about how to prioritize care for COVID-19 patients should the pandemic overwhelm the capacity…

Continue to the original article.


Important Notice
CCDC’s employees and/or volunteers are NOT acting as your attorney. Responses you receive via electronic mail, phone, or in any other manner DO NOT create or constitute an attorney-client relationship between you and the Colorado Cross-Disability Coalition (CCDC), or any employee of, or other person associated with, CCDC. The only way an attorney-client relationship is established is if you have a signed retainer agreement with one of the CCDC Legal Program attorneys.

Information received from CCDC’s employees or volunteers, or from this site, should NOT be considered a substitute for the advice of a lawyer. www.ccdconline.org DOES NOT provide any legal advice, and you should consult with your own lawyer for legal advice. This website is a general service that provides information over the internet. The information contained on this site is general information and should not be construed as legal advice to be applied to any specific factual situation.

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