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Month: April 2020

COVID-19 Purchasing Scams 

The Fraud Corner (4/9/2020) 

Office of Inspector General Legal Services Corporation

As part of its Fraud Corner Series, the Office of Inspector General (OIG) is providing Legal Services Corporation (LSC) grantees with the following information and resources relating to Coronavirus/COVID-19 frauds and scams. 

A March 24, 2020, OIG Fraud Corner article discussed fraud schemes relating to COVID- 19 and encouraged grantees to share that information with their clients. This article deals with potential price gouging, price-fixing, and bid-rigging scams that can adversely affect LSC grantees and their clients as they make critical purchases during the COVID-19 crisis. As the United States Deputy Attorney General has stated, “capitalizing on this crisis to reap illicit profits or otherwise preying on Americans is reprehensible and will not be tolerated.” 

Price gouging is the charging of exorbitant prices for essential items in times of unusually high demand. A majority of states prohibit price gouging during declared emergencies; state laws differ as to what items and what price increases are covered (and are evolving as the crisis unfolds). To protect their (and their clients’) resources, the OIG encourages grantees to familiarize themselves with the price gouging laws applicable in their respective jurisdictions. 

In a March 31, 2020, memorandum LSC president Ronald Flagg informed LSC grantee executive directors of LSC’s plan to distribute $50 million in emergency funds included in the recent COVID-19 stimulus package. The memorandum also addressed the possibility that LSC may request an additional $50 million in an anticipated Phase 4 coronavirus package. 

This supplemental funding will provide LSC grantees much needed support in dealing with the effects of COVID-19 including equipment, services, and related expenses to improve and expand telework and remote access capabilities, helping LSC’s 132 grantees to rapidly and safely assist low-income clients facing job losses, evictions, and other problems stemming from the pandemic. 

Under the COVID-19 emergency declaration, LSC is encouraged to use emergency procurement authorities to reduce administrative friction for grantees and contractors, enabling a rapid response to the many pressing demands grantees face. Given these unusual circumstances, LSC grantees should beware of vendors taking advantage of the health crisis to reap illicit profits. As LSC has noted, “legal services providers will face financial pressure in obtaining the necessary equipment and technology to allow staff to work remotely and connect with clients.” Even while acting expeditiously as the current circumstances require, the LSC OIG encourages LSC grantees to practice sound procurement practices to avoid being victimized by price-gouging scams during the pandemic. 

LSC Program Letter 16-3, “Procurement Policy Drafting Guidance for LSC Recipients,” discusses the importance of LSC grantees developing effective procurement practices. It includes an attachment entitled “Procurement Policy Drafting 101, Guidelines for LSC Grantees,” which addresses the basic elements of an effective procurement policy: 

1) ensuring competition between vendors; 2) effectively negotiating contract terms; 3) documenting purchasing decisions; and, 4) ensuring internal controls are in place to reduce abusive practices by vendors. 

As noted in the Guidelines, “the purpose of a procurement policy is to ensure that best value – the most advantageous balance of price, quality, and performance – is obtained when purchasing business-related products and services, and to minimize fraud, waste, and abuse in purchasing.” To best avoid procurement scams, the OIG encourages LSC grantees to continue following the guidance laid out in LSC Program Letter 16-03 and maintain sufficient documentation to support all purchasing decisions. 

The OIG realizes that the COVID-19 crisis is placing substantial additional pressure on grantees and stands ready to assist you with any questions or concerns that arise in connection with these and other matters. If you suspect a vendor or contractor is defrauding you during this COVID-19 health crisis, contact the COVID-19 National Center for Disaster Fraud Hotline at (866) 720-5721; your State Attorney General’s office; and the LSC OIG Hotline at (800) 678-8868. 

If you have any questions or would like additional information about this or any other Fraud Corner article, please contact Daniel O’Rourke, Assistant Inspector General for Investigations, LSC OIG, at (202) 295-1651, or by email at dorourke@oig.lsc.gov

Q & A from the HCPF and the Disability Community Webinar Series

The questions below are taken from the webinar series and have been answered by experts in the field. If you find an error or discrepancy, please email covid@ccdconline.org.

Listed by Subject

  1. Administrative
  2. Eligibility
  3. LTSS (Long-term Services and Supports)
  4. Multiple Topics
  5. Non-HCPF questions
  6. State Plan

Administrative Questions

  1. What is HCPF doing about Fair Hearings?
    • Fair hearings are being done by telephone. If absolutely necessary, hearings can be done in person.
  2. Can we suspend timelines for hearings for people getting continued benefits?
  3. Can we still get expedited hearings?
    • Yes.
  4. Will in-person hearings be delayed?
    • Yes.
  5. Will appeal deadlines be relaxed?
    • Not at this time, but no clients can currently be removed from Medicaid until further notice.
  6. OAC is making us make motions for each case to attend the hearing by phone. Can HCPF create a policy stating all hearings are now done by phone?
    • OAC is moving all hearings to a telephone hearing. If a case is scheduled in-person, let OAC know.
  7. How do we help clients that do not have a fax or scanner get releases done when advocacy staff is also working from home?
    • If a client cannot get a release done, they should call OAC or send an email stating who they want to represent them. Clients can also be guided on how to use their phone as a scanner and can take pictures of their signature and ID. They can fill out what they can on the new fillable forms then email that plus their signature and ID to the advocate and OAC so that it is clear that the client intends for the advocate to represent them. (email to oac-gs@state.co.us)

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Eligibility

  1. If people on Medicaid Buy-in are laid off, will the 30-day requirement for finding a new job still be in effect?
  2. How is my recertification going to happen while we are under the Stay-at-home order?
    • Recertification will be done telephonically, and no terminations can happen during the emergency. (Operational Memo)
  3. Is flexibility regarding a redetermination, eligibility, etc., requested for the HCBS waiver only or all?
    • Everyone will be given flexibility in redetermination, eligibility, retaining benefits, etc., and not just those on a waiver.
  4. I am worried about the $2000 asset limit for Medicaid – mostly because I am spending less money since I can’t go anywhere? Is this going to kick me off?
    • The strict asset limit will not come under scrutiny during the state of emergency, and no one will be terminated during this time.
  5. Who do we call if someone is kicked off Medicaid after March 18?
    • HCPF’s answer was to first speak with the county. We can try to help if you email HCPF_HCBS_Questions@state.co.us the information with an encrypted email. CCDC would suggest an immediate appeal if this cannot be solved in one business day with the county. Clients can email our eligibility and appeals coordinator at dsablan@ccdconline.org .
  6. Does the rule about keeping people on Medicaid apply nationwide?
    • No, only for states that take Medicaid program’s federal medical assistance percentage (FMAP).
  7. If we get a shelter in place order, how do I go take care of my son? Do I need some kind of documentation to prove I am his home health provider?
    • You will be allowed to do home care/personal care/CDASS visits. No letter will be required but letters were sent out to CDASS clients by the FMS agencies.

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LTSS (Long-term Services and Supports)

  1. The Colorado Department of Public Health and Environment (CDPHE) released a ban on all “non-essential personal care” services which included massage parlors. I have a massage therapist that under HCBS is considered an essential service. How can she be certain she is not breaking the ban?
    • In-home services are allowed based on the guidance of the provider. Many might choose not to continue services such as massage.
  2. Does HCPF expect surge in CDASS enrollment??
    • Unsure at this time.
  3. My CDASS aides and I are out of the personal protective equipment. How do we get more?
  4. Is there”extra” money available to IHSS parent caregivers for children already on Children’s Home and Community-Based Services Waiver (CHCBS)CHCBS waiver?
    • Not at this time.
  5. “I lost my job and I am filing for unemployment. I am also the Family Caregiver for my son’s residential services. I know that they are tax-exempt, but how do I report this on the unemployment application?”
    • Your PASA should be able to help you with this. If you are a CDASS employee, Consumer Direct should be able to help.


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Multiple Topics

  1. Some host home providers are not allowing people to work. Can HCPF tell them people have a right to work?
    • All non-essential workers are furloughed now. Host home pay is for 24/7 care. They must provide safe structure while sheltering in place.
  2. With Medicaid transportation “canceled” can family members get mileage to take people to medical appointments?

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Non-HCPF questions

  1. Gov. Polis has announced that people can offer assistance and donations through helpcoloradonow.org. However, there is no link for “I need help.” Most of us are down one or all of our home aides due to their potential exposure to COVID-19.
  2. Is there a community site (like Craigs List) where some can volunteer and others can ask for help from volunteers?
    • This is happening on NextDoor apps around the community.
  3. What can be done to help people of high risk avoid having to go out to the grocery stores, pharmacies, and other public spaces without having to pay delivery fees and additional costs?
    • HCPF is allowing NMT to be used for errands. IN the metro area Access-A-Ride is also being used to pick up groceries at specific stores. This is a free service from Access A Ride. (RTD Access-A-Ride)

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State Plan

  1. My daughter is not getting speech therapy because her small provider doesn’t know how to bill Medicaid for telehealth. Where can they go to get information and restore this benefit?
  2. Can we get more than a 1-month fill on my medication?
  3. What is the best way to access telemedicine for my medical care?
    • The DPHE has a good site explaining how to get the most out of telemedicine. Follow the link provided. (Telehealth and Nurselines)
  4. Can I use telemedicine for Non-Federally Qualified Health Centers (FQHC)?
  5. What do I do if I cannot see my primary care provider?
  6. How do I know if a procedure is elective or not?
  7. What if I can’t reach my primary care physician to get refills of my medicine?

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Guide for Hospitals on Best Practices for Communication with Individuals with Disabilities

Note: This guide is not legal advice but is a best practice document 
put together by several Colorado-based disability rights organizations. (April 9, 2020)

This document contains the following sections:

Communication Best Practices

Reasonable modification of policy

Best Practices for Specific Disabilities

QUESTIONS?

COMMUNICATION BEST PRACTICES

To communicate with people who have different levels of ability and may be considered as having a disability

These are some quick tips for first responders and hospitals during an emergency.  In normal situations, the obligations are much more expansive. Training on and clear policies that are regularly updated is expected.  The Americans with Disabilities Act obligations are in place even during emergencies. Some practices may need to be altered during the emergency, but effective communication must be provided.

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What is effective communication?

Communication that is as effective for persons with disabilities as it is for persons without disabilities.  Many people with disabilities may need reasonable accommodations to support alternative methods of communicating.  Ask if the person uses a communication device or needs accommodations.

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What is the obligation of a hospital or other provider?

To provide auxiliary aids and services as needed to ensure effective communication, and to modify policies, practices, and procedures as needed unless the modification fundamentally alters the program, service or benefits.
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Who determines the appropriate auxiliary aids or services?

The primary consideration should be given to the individual with a disability’s desired aid or service.  The entity can offer alternatives or make final decisions only if the communication is equally effective.  BEST PRACTICE IS TO ALWAYS MAKE THIS A COLLABORATIVE PROCESS.  Always ask the person, “What can I do to help with communication?”
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Reasonable modification of policy:

If someone needs another person they know in order to communicate, the hospital must modify policies as long as the modification does not create a fundamental alteration to their service.  Allowing a family member or interpreter, who is capable of acknowledging the risk, to be in the room to assist with essential communication is likely a reasonable modification of the policy that generally prohibits visitors.  This is particularly true if the individual is unable to use a device (iPad, Smartphone, etc.) to communicate. While policy modifications may be needed, it is necessary to always assume the person with disability is the final decision-maker regarding treatment, unless otherwise proven to be different with provided documentation such as Medical POA, POA, or guardianship.

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The following assumptions are acceptable:

  • That people know their communication needs and if they are able to express those needs will tell you.  (Sometimes severe anxiety might get in the way of this but usually people are happy to help someone that is trying to help them).
  • That people with all types of disabilities will have the same gamut of reactions to news that they or a loved one have COVID-19.That people with all types of disabilities have the same level of preparation (or lack thereof) with regard to advance directives as the rest of the population.

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 The following assumptions should not be made:

  • That people with severe disabilities have guardians.  This includes those who clearly lack capacity.
  • That people with significant speech or communication impairments all have an intellectual disability.
  • That people with intellectual disabilities cannot make decisions about their lives.
  • That someone that may require support with decision-making should have a guardian.
  • That people with very significant disabilities would reject lifesaving measures or have a poor quality of life or would see life on a ventilator as a tragedy.
  • That because you believe you understand the communication you are receiving, the other person is fully able to understand and participate in the communication. Communication must be both expressive and receptive to be effective.
  • For someone using ASL or sign, do not assume they can or can’t hear you or their ability with sign language is flawless. Confirm understanding by asking clarifying questions. Especially with an interpreter. They too can make mistakes.

Blue line with three diamond shapes in the middle
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Best Practices for Specific Disabilities

The following sections are organized by the description of the person needing communication support.

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A person who is Deaf

  • Is there a sign language interpreter or agency/company you can have on contract to use via Video Remote Interpreting (“VRI”)?  Set up contracts and protocols, provide training and make sure there is an available phone or tablet. This should be an RID certified interpreter (Registry of Interpreters for the Deaf). Depending on the complexity of the communication, a medically certified interpreter might be necessary.
  • Make sure that all staff have been trained and know how to use VRI, and that equipment is somewhere they can find it quickly.  Please note that VRI might be routed out of state and you might not get a certified interpreter that is required in Colorado unless you ask for this.
  • Note-writing is OK for people who request it or have become deaf later in life, many people born Deaf are limited in English so any note-writing done in emergency should be confirmed with an interpreter at the earliest possible moment.
  • Once an emergency has passed (e.g. patient admitted and somewhat stabilized) an in-person interpreter should be summoned, especially on the request of the patient(s) who is Deaf.   Rural hospitals call RISP.   Urban hospitals should have a contract.  For list of interpreters go here.
  • See guidance from the National Association for the Deaf

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A person who is Hard of Hearing

  • Lip reading will not work through masks. Get some masks with clear plastic windows and have it on site for such patients.
  • Move to a quiet room when possible.
  • Note writing.
  • Have some iPads to type on and sanitize between uses.  Notepads should also be made available as some older people with hearing loss do not use technology. All pens and supplies must be disinfected/wiped down between uses.

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A person who is Non-Verbal

People who are non-verbal do not all have the same challenges.  They may or may not understand what you are saying.

  • Do they have a device to help them?
    • An iPad, a communication board
  • Are they able to write questions and answers?

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A person with a Speech Impairment

  • If they are not with someone that can assist, ask them to repeat it.
  • Many people with speech impairments may spit (non-purposeful) some when they talk, so use a mask.
  • A face shield may be easier for them to use than a mask.
  • Ask yes no questions when possible; yes will be something going up (thumb, head, smile, etc.)
  • If you cannot understand a word, ask them to spell; if you cannot get letters, you start spelling.
  • Have a large letter board and let them point to letters, someone will have to hold it up. If they communicate this way, they might have it on them, unless they were taken into a hospital by ambulance.

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A person who is Blind:

  • NEVER take away mobility aides including white canes or guide dogs.
  • Have accessible documents (Word is preferable) you can email to someone so they can use a screen reader on their device
  • If you cannot use a Word document or the person does not have email, have someone available to read the document for the person.
  • Braille is going to be a challenge unless you have enough to give patients their own copy of the documents.  You cannot have one patient use it after another and it cannot be read with gloves.
  • This is important for advance directives.

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A person who has Low Vision

  • Large and very large print.  Any documents need to have copies in large and very large print (18 and 24 font).
  • Magnifiers that can be sanitized.

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A person who has an Intellectual or Developmental Disability

  • Speak to the person appropriate to the chronological age, do not speak to the person as if he or she is a child (unless they actually are a child).
  • When a person can’t or does not respond to your requests or questions; it does not mean they are not being compliant. Sometimes they just can’t speak or need more time to process before responding.
  • Interactions with authority figures can often bring up traumatic experiences for people with I/DD.
    • If a person isn’t responsive, consider also that they may be in a state of panic or “fight or flight”
    • Give them time and understand that no one is at their best in a crisis situation.
  • Remember to use clear language, avoiding metaphors and idiomatic phrases.
    • Some people with I/DD may do better with very literal communication and when asking a question, endeavor to be specific.
    • Do not ask, “do you have a weapon?” ask, “Do you have a gun in your pocket right now?” or “Do you have a knife in your pocket right now?”
    • Use plain language rather than medical terms.
  • Do not speak directly to a caregiver about a person with I/DD
    • Ask the person with I/DD for permission to talk to their caregiver if you need clarification, etc.
  • Many people with disabilities live with aging caregivers who may also be vulnerable to COVID-19 at this time.
    • People with disabilities may be reticent to leave their family member.
    • Remember that many of these family units have been together, in a very intimate environment, for many decades.
    • When dealing with family members and people with disabilities, consider the increased level of fear that might come with separation.
  • People with I/DD experience the same range of emotions as anyone else.
    • When assisting a person with I/DD, think also about how your communication might need to overlap with communication tips for anxiety, agitation, etc.
    • Remember that about 80% of people with I/DD also have a co-occurring mental health diagnosis.

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A person who has a Mental Illness (depression, bipolar depression, schizophrenia, etc.)

  • Situations of extreme stress can increase symptoms of depression leading to individuals inability to see reality – they may view them as better or worse than the situation warrants.
  • Do not force choices on individuals in this mental state. They would be based on misinterpretation of facts.
  • Be cautious of phrases like “It’s not that bad”, or “You are overreacting.”  For the person in a heightened mental state it is that bad and they aren’t overreacting.

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A person who has Severe Anxiety

  • Realize that anxiety can manifest like hostility, unwillingness, or outright anger. People in the middle of a severe anxiety attack can act and appear very stubborn. This is often due to the overwhelming fear of what comes next.
  • Offer a quiet room when possible.
  • Ask them what usually helps them when they are anxious.
  • Do NOT tell them to calm down.
  • Explain what is happening now, next, and after that. Often knowing the steps help ease the fear of the unknown.
  • Realize that for many anxiety attacks are a chemical imbalance in the brain – similar to adrenaline – where something triggers a surge of chemicals that lead to panic. Often the only option is to ride out the wave until the balance of chemistry in the brain is restored
  • Ask if they have someone who they want to help them with communication and offer a phone if they do not have it.
  • When a person can’t or does not respond to your requests or questions; it does not mean they are not being compliant. Sometimes they just can’t speak or need more time to process before responding.
  • Don’t try to make them make long term plans because they are in survival mode and long-term planning might be out of their reach. (Unlikely this will happen, but long term might mean a few hours away for the person.)
  • Ask them if they need a break or time to gather their thoughts.

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A person who has Severe Agitation

  • Offer a quiet room when possible.
  • Do not threaten, ask what would help.
  • Do NOT tell them to calm down.
  • Speak to the person appropriate to the chronological age, do not speak to the person as if he or she is a child (unless they actually are a child).
  • When a person can’t or does not respond to your requests or questions; it does not mean they are not being compliant. Sometimes they just can’t speak or need more time to process before responding.
  • Don’t try to make them make long term plans because they are in survival mode and long-term planning might be out of their reach.
  • Ask them if they need a break or time to gather their thoughts.

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QUESTIONS?

CALL THE COLORADO CROSS-DISABILITY COALITION (303-839-1775) or email covid@ccdconline.org.

These organizations contributed and are trusted resources. Thank you for contributions.

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Update on City (In)Action Re Needs of the Unhoused in this COVID Crisis

From Denver Homeless Outloud – A Call for Action!

New images from the Men’s Shelter at the National Western Stockshow property:

Sleeping cots appear to be about 4 feet apart. - showing that there is slightly more space than the former men's shelters folks came from, but definitely not to the par of social distancing standards in this pandemic.
There is slightly more space than the former men’s shelters folks came from, but definitely not to the par of social distancing standards in this pandemic.
Sleeping cots appear to be about 4 feet apart.
Sleeping cots at the new men’s shelter appear to be about 4 feet apart.
Dining area in the new men's shelter with tables that are not spaced to allow the 6 foot distance required by social distancing.
Dining area in the new men’s shelter.

As you can see in these pictures, the new men’s shelter at the National Western does not provide the social distancing it was made out to provide. Sleeping coats appear to be about 4 feet apart. Buses coming to the shelter are packed tight with people. There is slightly more space than the former men’s shelters folks came from, but definitely not to the par of social distancing standards in this pandemic. 600 men in one room are still sharing the same air, surfaces, ect.

Artists rendering of an individual facing a brick wall with hotels drawn surrounding the person. The words sya This is a huma rights issue. Defend our community against covid-19. Hotels not hospital beds.
This is a human rights issue. Defend our community against COVID-19. Hotels, not hospital beds.

Over the past 4 plus weeks of the COVID emergency, we have been demanding action from the City and the State to protect all of us – including those of us without housing. Below is an update on what the City and State is and is not doing to date to meet these demands for basic protection.

End the Sweeps and Survival Ban Enforcement:

  • Sweeps – We did get the Mayor’s office to agree to “not displace people or their property from encampments during this state of emergency.” This has been largely followed…which makes life a lot safer and better for folks on the street right now. But it has not been followed all the time and they are pushing the “grey areas.” See detail on ways below…
  • Tents Down – Instead of telling people to move along in camping ban enforcement, police have been telling people to drop their tents in the day. How are people supposed to stay at home if their tent, the only thing they have as a home, is dropped down? Police should be directed to cease this harmful demand.
  • Public Property – Police have frequently threatened camps with move on orders that are on public property saying they were on private property. Police need to understand what is public property vs private. If they are enforcing move-on orders on private property it should be under the initiative of the private property owner, not the police.
  • Park Property – While park property does have curfews, many cities across the US are waiving curfew hours and allowing folks to stay in camps on park property during this pandemic. This should be done here as well. People have been swept from parks regularly here in Denver.
  • Police Harassment – Some police continue to harass people for any number of unnecessary reasons.

Sanitation Resources at Encampments:

  • Hand Washing Stations – To date, the City has not installed any hand-washing station at encampments. The only hand-washing stations that have been placed directly at encampments are placed and maintained by the group Mutual Aid Denver.
  • Portable Bathrooms – To date, the City has not installed any port-a-potties at encampments. With businesses and libraries closed also those options for places to use the bathroom are gone. People are forced to relieve themselves on the streets or maybe at a crowded day center.
  • Trash Cans – To date, the City has not installed any trash cans at encampments. People are forced to wait on random “cleanings” with designated places for trash or regular set trash pick up.
  • Health Care, Education – To date, the City has made some efforts to provide information and hand sanitizer. However, this has not been to the scale of the need.

Housing NOW:

  • To date, the City has 270 hotel units made available for people who are homeless and showing signs and symptoms. This is at least 3,673 units short of the need (that is using PIT court which is a known under-count) and is still only for those who are sick, not the general homeless community.
 
Photo of a protest with men who appear to be homelesll
How can you stay at home without a home?
Take Action!
Call Governor Polis and Demand Housing Now!
(303) 866-2885
 
Contact:
720-940-5291
Denver Homeless Out Lout Logo - Circle with an x and bar across the top.
Denver Homeless Out Loud

Emergency Housing NOW – COVID-19 Crisis Talking Points 

Take Action! Call Governor Polis and Demand Housing Now!

(303) 866-2885
You can use any or all of the talking points below when you call the governor. It is vital that we let him know the inaction being taken for those in need of housing is unacceptable!

The world, including the State of Colorado, is in a state of emergency. In an effort to protect the lives of millions of people against the COVID-19 pandemic, all health agencies and experts advise that protection from this virus requires “social distancing.” Strict orders have been issued for people to stay at home, stay 6 feet away from others, and not gather in groups more than 10. 

Stay at home and social distancing measures are not possible for people who are homeless in the shelters. The best efforts of shelters to have more distance between beds etc will fall short. Because in these conditions hundreds of people in the same room will share the same air, touch the same surfaces, use the same bathrooms, doorknobs, etc. These conditions are contrary to the recommendations of our health professionals. It, in addition, treats people experiencing homelessness as a lesser class not worthy of protection. 

People on the streets can practice social distancing more readily than they can in the shelters. It is actually safer there than in a concentrated shelter environment. Tents allow for safer social distancing as they are in the open-air separated from other tents, plus you have the barrier of the tent itself from airborne risks. Folks outside are not sharing all the same surfaces. However, the government’s refusal to provide bathrooms and handwashing stations at encampments leaves the whole community at greater risk. So it is imperative that both bathrooms and hand washing facilities be provided for all encampments. 

Stay at home orders were put in place because we know homes are the safest place to be in this pandemic – for ourselves and the whole community. In a state of emergency, the Governor has the authority to issue an order for the property to be used for emergency housing. The time for this order is NOW! 

The Governor of Connecticut issued this order to mandate hotels to be opened for this need. It is possible. Businesses and workers of all sorts are making sacrifices to slow this pandemic for the public good. Hotels/motels must do their part. 

Hotel and housing owners are not opening their doors out of goodwill. State, City, and nonprofits have been desperately begging hotel owners for weeks with only 270 available to date in Denver, and far fewer – often none, available in cities across the state. The Governor must issue an executive order and provide resources to ensure housing and hotels are actually opened and people currently living in mass shelters and on the streets get into that safe housing. 

There are at least 9,619 homeless people in Colorado. There are approximately 152,700 vacant housing units in Colorado. We have the resources right in front of us to protect every Coloradan. 

Together with opening safe housing for every Coloradan, the governor must direct the necessary state resources to ensure all people staying in this emergency housing have access to food and any needed supportive services. Strong, BOLD action is required because LIVES are at stake. The time to act is NOW! 

NEW! COVID-19 Information in ASL

Playlist of COVID-19 resources produced through the CDC and other organizations.

One Strong Voice: Information and Resources Regarding Medical Rationing

One Strong Voice (OSV) is a policy group that meets via Zoom the 1st and 3rd Friday of every month. Our group includes CCDC staff and community leaders from across the state who work for or with disability organizations throughout Colorado. We provide a safe, confidential platform for discussing the issues which directly affect Colorado’s disability community, including housing, health care, K-12 Education, transportation, and more.

OSV participated in a call hosted by The American Association of People with Disabilities (AAPD).  During the call, they received a number of questions about what individuals can do to prevent states from developing discriminatory medical triage protocols. Below is the list of resources they compiled, including the #NoBodyIsDisposable campaign, and a Know Your Rights toolkit for people facing discrimination during medical triage.

Listen to the call on 4/3/2020.

Transcript of the call on 4/3/2020.

Resources Provided

Social Security Beneficiaries Will Receive Stimulus Payments Automatically; SSI-Only & VA-Only Beneficiaries Must File Tax Returns 

On Wednesday, the Treasury Department announced that people who receive Social Security Title II retirement, survivors’, and disability insurance benefits will not need to file tax returns to get their CARES Act Economic Impact Payments. While this is an important assurance, the Administration is still requiring millions of low-income seniors and people with disabilities who receive only Supplemental Security Income (SSI), Veterans (VA) Disability Compensation or Veterans Pension benefits to file a tax return in order to receive their stimulus payment. These individuals need the stimulus payments the most and will spend them the quickest, but many of these individuals face very significant barriers to filing tax returns.

Call your members of Congress at (202) 224-3121 and tell them: “Thank Treasury for doing the right thing for Social Security beneficiaries—now they need to include SSI recipients as well.”   

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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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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