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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.

Colorado Is Creating Guidelines To Help Make Excruciating Coronavirus Care Decisions

CCDC in the News

What if four patients in respiratory distress need a ventilator to keep them alive, but a hospital has just one available? Who makes that call? And how?

Public health and community leaders are contemplating excruciating dilemmas just like that before demanding for medical help in the coronavirus crisis peaks in coming weeks.

They’re updating protocols, called “crisis standards of care,” for the most urgent medical decision-making possible, guidelines to determine, as resources get scarce, who gets care and at what level and who does not.

Continue to the original article.

A CALL TO ARMS (OR AT LEAST LAWSUITS, IF NECESSARY) FOR PANDEMIC-RELATED DISABILITY DISCRIMINATION COMPLAINTS. 

English/Español

CCDC’s Civil Rights Legal Program has numerous and growing concerns regarding discrimination against people with disabilities as a direct result of decision-making by both private and public entities occurring during the pandemic. When a crisis hits, as we all know (or at least our community is now finding out) people with disabilities and our civil rights get kicked to the curb!

These bad actors jump at every opportunity to Take advantage of what they call our “special rights,” but now that dogged discrimination is multiplied exponentially in order to violate our rights every time the word “emergency” gets used. These evildoers and lawbreakers will do everything in their power to ignore us and act as though somehow emergencies affect the lives of everyone else except people with disabilities. We know just the opposite is true.

Although Governor Polis’ administration has continued working with CCDC in a collaborative fashion and actively seeks input from CCDC regarding the needs of the disability community (something sorely lacking with respect to our needs and rights at other levels of government), the Civil Rights Legal Program stands ready to address to the best of our ability any form of discrimination against any individual or group on the basis of disability as a result of decision-making by governmental entities or private entities (such as the police, transportation providers, government entities failing to provide effective communication, doctors’ offices treating you differently based on disability, etc.) that occur related to the pandemic. All of us at CCDC, who have been working tirelessly to do our best to help our community in this time of crisis see COVID-19: RESOURCES, LINKS, AND INFORMATION FOR PEOPLE WITH AND WITHOUT DISABILITIES, recognize that almost everyone has been hit very hard by current circumstances, but that does not permit discrimination against people with disabilities to be allowed to go unchecked. We will not do so! Now, more than ever, our civil rights must and will be enforced!

As we all know, we always face the same problems as everyone else plus all of the problems related to our disabilities, most of which would be alleviated if people would simply do what they are supposed to under civil rights laws, but during this unprecedented and unimaginable crisis, we are really feeling the devastation far more so than our nondisabled counterparts. So many of us are just trying to figure out how to get out of bed in the morning given that we or maybe our attendants, our families, our friends, and our colleagues are falling victim to this foe that does not discriminate. Nevertheless, we are the most resilient, most resourceful and most likely to figure out the path to victory because that is what we have to do every day of our lives. For all of those reasons, we are here to help the best of our ability and in close connection with our allies in the field and other civil rights lawyers who are working harder than we’ve ever worked in our lives to make sure everyone – and I mean EVERYONE – receives the fair and equal treatment we and those who came before us have fought so hard for all of our lives.

Please go to our Intake Form for information about the types of cases we take. You can also contact our Legal Program Assistant, Kara Gillon, at ccdclpa@ccdconline.org or (303) 660-8254 if you feel you have been discriminated against on the basis of disability based on the above types of circumstances or any other disability-rights violation. Please remember that we only take cases involving civil rights discrimination on the basis of disability. Other problems should be handled by CCDC’s other non-attorney advocates who can be found on our website, ccdonline.org.

Obviously, we cannot guarantee that we can help in every circumstance; nor can we guarantee a perfectly successful outcome, but we have been here for you for 22 (almost 23) years doing all that we can with our small but, in my humble opinion, mighty staff taking on hundreds and hundreds of cases usually with good outcomes for the disability community in most circumstances (not always, but most). This is true even in the face of many more and more opponents who seem more defiant than ever to refuse to treat people with disabilities with humanity and equality as required on the law.

Those who would deny us our civil rights were growing in number and in willful disobedience of the law before, but this behavior is only been enhanced by the current pandemic. They never stop to think that we are the one minority group that they could join and, in the face of the current pandemic, just might join at any given moment. They need us not only to fight for ourselves but for them as well. Everyone is really just one sneeze away from the potential of needing those ventilators we keep hearing about and reading about in the news and perhaps requiring home healthcare for the rest of our lives. Oddly, many of us have lived under the circumstances for most of our lives. We truly are all in this together! But even that doesn’t stop them from discriminating and denying us equal opportunity under the law.

We must show those who will try to take advantage of a crisis to discriminate against us on the basis of our disabilities that we will not permit it! Although disability rights laws are not boundless (they do have their limitations), we are seeing firsthand and hearing about so many clear-cut violations of the law (and so many violations committed in the name of “emergencies” that we must remind those who will find any excuse to take advantage of us or the pandemic, our civil rights matter more now than ever!.

 -- Kevin Williams, CCDC Civil Rights Legal Program Director
and a member of the disability community for 33 -- almost 34 -- years and counting).

Letter to the Governor, RE: Survival of People with Disabilities during COVID-19 Pandemic

Read our letter crafted by our Executive Director and several partner organizations to Governor Polis regarding the Survival of People with Disabilities during COVID-19 Pandemic.

Download the fully accessible PDF Version

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1385 S. Colorado Blvd., #610-A
Denver, CO 80222
303-839-1775

Julie Reiskin
Executive Director
jreiskin@ccdconline.org
720.961.4261 (Direct)
303.648.6262 (Fax)

March 25, 2020, via Electronic Mail

The Honorable Jared Polis
Colorado State Capitol
200 East Colfax Room 136
Denver, CO 80203

Re: Survival of People with Disabilities during COVID-19 Pandemic

Dear Governor Polis,

We want to start this letter by thanking you for your extraordinary leadership during this crisis. Unlike our peers in other states, we are being included in policy decisions and working closely with members of your team (like Elisabeth Arenales) and your cabinet (Kim Bimestefer, Michelle Barnes, Jill Hunsaker-Ryan, and others). We appreciate being involved and allowed to help your administration make the best possible decisions in a horrible situation.

People with disabilities and chronic health conditions are doubly vulnerable during the COVID-19 crisis: they are vulnerable to acquiring the virus and to suffering more severe effects, and they are vulnerable to healthcare discrimination that may deny them necessary care. As a result, Coloradans with disabilities and chronic health conditions are experiencing escalating fear and anxiety, on top of any physical effects of the viral illness. We need your continued leadership to communicate and ensure that Colorado will protect
the rights and access to care of disabled people of all ages.

Colorado has a strong and united disability community that includes ADAPT, Centers for Independent Living, Arc Chapters, Disability Law Colorado, numerous organizations representing specific disability groups such as the Colorado Metal Wellness Network, the National Federation of the Blind Colorado chapter, and the Colorado Commission for the Deaf, Hard of Hearing, and DeafBlind. The Colorado Cross-Disability Coalition (CCDC) is the largest statewide organization run by and for people with all types of disabilities and we are working to coordinate with this amazing community to help with ongoing information dissemination and input to your team on policy issues. We are lucky to have such a strong and united community. This letter is written on behalf of many of these organizations, we wanted to get it out quickly so did not put extended time into sign-ons, but please note the organizations signed on below.

CCDC and others thank you for the swift and decisive actions that you have taken to protect the people of Colorado from COVID-19, reduce community spread, and flatten the curve. Your leadership will protect people with disabilities and their families from the virus’s accelerating spread, including daily increases in the deaths. Our community now asks that you take the following actions to ensure that people with disabilities receive equitable and effective healthcare in Colorado which will, in turn, help maintain the health of all Coloradans.

Prevent and Prohibit Medical “Rationing” Based on Disability

The prospect of shortages of medical staff and equipment for treating those made severely ill by COVID-19 has triggered a discussion of “rationing” medical care.

While the coronavirus crisis poses serious challenges to our social and health care systems, federal laws including the ADA, Section 504, Section 1557 of the ACA, and the Colorado Anti-Discrimination Act (CADA) prohibit any “rationing” measures by public or private entities which discriminate on the basis of disability. Denying care to disabled individuals who are likely to benefit from care is unlawful.

Moreover, swift and efficient action now may prevent or ameliorate the need for untenable rationing decisions. There are additional reserves of ventilators and other medical equipment and supplies maintained by hospitals and the U.S. Department of Defense and the Centers for Disease Control and Prevention.¹ Colorado must follow its own policy statements to ensure that these stockpiles are allocated based on objective need – and distributed throughout the state of Colorado so that health care workers have them on-site.² If existing numbers are projected to be insufficient, Colorado must procure additional equipment and supplies.

People are looking for factual information, honestly, and assurances. As Governor, you are the best person to speak out about the state’s efforts to alleviate widespread fear and anxiety among vulnerable populations, including Coloradans with disabilities.

We further urge the Governor and state agencies to swiftly issue a directive to health plans and insurers, hospitals, and other medical providers on maintaining their obligations under state and federal disability nondiscrimination laws during the coronavirus crisis, including in the allocation of scarce medical resources. Such guidance should include the following basic principles:

  • The presence of a disability, including a significant disability, is not a
    permissible basis for denying people access to care or giving them a lower
    priority for care.
  • The fact that a disabled person may have a lower likelihood of survival is not a
    permissible basis for denying care or allocating the person a lower priority for
    care. If the person will benefit from care, then they are entitled to access care on an equal basis as others.
  • The fact that a person with a disability may require reasonable accommodations during treatment, or more intensive treatment, is not a permissible basis for denying care or allocating the person a lower priority for care.
  • All medical decisions about providing care must be based on current objective
    medical evidence, and not based on generalized assumptions about a person’s
    disability. Treatment decisions shall not be made based on misguided assumptions that people with disabilities experience a lower quality of life.

Covered entities should be permitted to prioritize those with a greater urgency of need, and delay non-urgent care. They need not allocate scarce resources to individuals with no reasonable chance of survival. But people with disabilities should not face discrimination in seeking life-sustaining care that they will benefit from. The lives of people with disabilities are equally valuable to those without disabilities, and healthcare decisions based on devaluing the lives of people with disabilities are discriminatory. Benefit should be derived solely based on medical evidence, not a belief about the life of the patient.

Ensure Access to Home-and Community-Based Services and Related Services

Individuals with various disabilities who rely on personal care assistance face a dilemma during the COVID-19 crisis. No person with a disability should have to choose between catching a potentially deadly new virus and receiving the assistance needed to perform critical activities of daily living such as toileting, eating, dressing, etc. Personal care assistants whether paid or unpaid, should not be required to perform their duties without proper protective equipment to ensure both their own well-being as well as the continued well-being of their own families and other clients with disabilities or face the ethical dilemma of rendering necessary duties while beginning to feel sick.

The following measures are needed to preserve the well-being of people with disabilities while they shelter in place:

  • Fund paid sick leave for any personal care worker unable to work regularly
    scheduled shifts because of illness or the need to quarantine due to exposure. This must also cover any Medicaid consumer-directed or private pay client. Grants to small home health agencies should be made available to allow them to pay their workers. Larger agencies should be required to do the same.
  • Fund and establish backup personal care assistant (PCA) registries, for both
    public and private pay PCAs, and establish streamlined on-call emergency backup alternatives to ensure PCA services when scheduled PCAs are unavailable.
  • Place a moratorium on Medicaid LTSS reassessments that could lead to service hour reductions and consider revising overtime rules.
  • Provide and efficiently distribute protective gear for paid and unpaid PCAs,
    including family, friends, and volunteers who are providing personal attendant
    services. To the extent that shortages make this impossible, provide funding
    for substitute items such as cleaning gloves, industrial respirators, scrubs,
    garbage bags, etc.
  • Continue to include disability-specific providers (whether formal or not, paid or
    not) within the guidance on categories of “essential business” and “essential personnel,” such as public and private personal care attendants, public transit and paratransit, privately contracted Non-Emergency Medical Transportation (NEMT) providers, durable medical equipment providers/repairers, and veterinarians.

Even short gaps in coverage of personal care attendants and related services can lead to worsened health and unnecessary hospitalization or institutionalization, contrary to the integration principles adopted by the U.S. Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999). These risks are sharply heightened by the dangers posed by the coronavirus.

CCDC and the signatories below urge the following additional steps to ensure that disabled Coloradans are safe in their homes and communities with supports during the COVID-19 crisis:

  • Ensure that accurate and up-to-date information about the progression of COVID-19 within Colorado is fully accessible in alternative print and online formats.
    • We appreciate seeing the sign language interpreters at all of your press conferences. Please make sure videos are always captioned properly (just turning on YouTube captioning does not work). We appreciate the remarkable responsiveness of your staff, especially the Lt. Governor’s Chief of Staff, Crestina Martinez, Maria De Cambra on your Communications team and Theresa Montano in OIT when there has been an error in document accessibility. We hope that process improvements to assure no document goes up that is not fully accessible to people that use screen reading technology are prioritized.
    • We also urge that essential documents are quickly translated into threshold languages, adapted for people with lower reading abilities, and made available in American Sign Language and captioned videos. This must apply not only to Executive Orders but to instructions that are important including how to apply for unemployment, testing protocols, prevention protocols, etc.
  • Require all private insurers operating in Colorado to provide fully accessible, current, clear, and readily available information about in-network and out-of-network coverage of COVID-19 testing and treatment.
  • Require public utilities and internet providers to maintain gas, electricity, water, telephone, and internet services for seniors and people with disabilities sheltering in place.
  • Ensure that public and private insurance prioritization of healthcare procedures consider not only the category of procedure before canceling or delaying it as “elective/non-urgent,” but also the underlying conditions and cross-disability needs of the person who will be undergoing a scheduled procedure.
  • Continue provision of ADA paratransit, NEMT, and accessible on-demand service for passengers, including trips to the grocery store, medical facilities, and COVID-19 testing sites. Maintain ADA paratransit service areas even where bus routes are cut or reduced like areas such as Summit and Gunnison.
  • Protect passengers and workers by ensuring the provision of adequate protective gear and cleaning supplies for transit workers, including NEMT providers and janitorial support staff.
  • Place a comprehensive state-wide moratorium on evictions and a hold on termination of public benefits, including all administrative actions that result in individuals being cut off from public benefits. We also ask that any fraud investigations be suspended as this is not a good use of money or resources and could endanger the at-risk individuals.
Ensure Legal Services and Prompt Affirmative Responses to the Potential Violations of Rights of Disabled Coloradans.

We ask that Colorado take steps to bolster financial and human resources in Colorado’s legal service organizations to ensure that they have – the capacity to provide timely representation for individuals who face unlawful medical “rationing” based on disability, any unnecessary and involuntary institutionalization, evictions, benefits issues and other forms of discrimination in COVID-19 treatment and testing.

From past disasters, we know that legal services needs tend to peak 2-12 months after the disaster “ends”. Additional legal services support will be required for the next year. Specifically, Disability Law Colorado, Colorado Legal Services, Colorado CrossDisability Coalition, Civil Rights Education and Enforcement Center, and The Colorado Center for Law and Policy will need support to meet the legal needs of low-income Coloradans with Disabilities.

We further ask that you ensure that Colorado and its agencies respond immediately and effectively to any reports or complaints indicating that the rights of people with disabilities are being violated. While this must include prioritization and streamlining of administrative complaint procedures at all relevant agencies to respond affirmatively and forcefully to any formal or informal report.

Our state has long been a leader in many aspects of healthcare, accessibility, and civil rights protections for people with disabilities. Colorado, as the home of the Atlantis Community, the organization that created ADAPT is the birthplace of the internationally known disability rights movement. Help us to maintain our reputation as a leader in preserving the rights of people with disabilities. We would welcome the opportunity to continue to work with your administration on ensuring that people with disabilities in our state receive equal and effective healthcare during the COVID-19 crisis under the priorities detailed above.

Sincerely,
Julie Reiskin, Executive Director, Colorado Cross-Disability Coalition

Ailsa Wonnacott, Association for Community Living, Boulder and Broomfield Counties

Martha Mason, Executive Director, Southwest Center for Independence

Wilfred Romero, The Arc – Pikes Peak Region

Darla Stuart, Executive Director, The Arc of Aurora

Larry McDermott,  The Arc of Weld County

Timothy Fox, Attorney at Law, Senior Partner, Civil Rights Education and Enforcement Center

Sara Froelich, Chronic Care Collaborative

Lisa Franklin, Executive Director, Parent to Parent

Candie Burnham, Executive Director, Atlantis Community, Inc.

Robert A. Lawhead, Colorado Developmental Disabilities Council

Christiano Sosa, Executive Director, The Arc of Colorado

Hope Hyatt, Colorado Mental Wellness Network

Christine Fallebell, The American Diabetes Association

Ian Engle, Executive Director, Northwest Colorado Center for Independence

Jessalyn Hampton, National MS Society

Judith I. Ham, Ability Connection Colorado

Eileen Doherty, Colorado Gerontological Society

Barbara Henry, Domino Service Dogs

Linda Skaflen, Executive Director, The Arc of Adams County



¹ Dan Lamothe, “Pentagon offers respirators, ventilators and labs in expanding coronavirus response,” Washington Post (Mar. 17, 2020) (describing the release of 5 million masks and 2,000 ventilators from military stockpile), https://www.washingtonpost.com/national-security/2020/03/17/pentagon-offersrespirators-ventilators-labs-expanding-coronavirus-response/;

² Surge Standards, Foundational Knowledge, § 8.4.3, Allocation of Ventilators for Pandemic Influenza, http://www.cidrap.umn.edu/sites/default/files/public/php/258/258_foundation.pdf (“[T]he allocation of ventilators from State and federal stockpiles must take into account the ratio of local populations to available resources, designating appropriate resources for the most vulnerable who are most likely to suffer the greatest impact in any disaster.”).

 

Virtual Events: We’re All in this Together

White rectangle with blue outlined flowers and the words: Just because we are spread far and wide doesn't mean we can't all come together.

Quick links to sections on this page:

We are committed to providing multiple options for people to stay involved in their community while maintaining the recommended social distancing.  Therefore, we are offering a variety of interactive events online. Keep an eye on this page for upcoming webinars, Q & A sessions with your leaders and experts, informational offerings, and extra advocacy training courses.

If you require captions or an ASL Interpreter, please contact Shannon Secrest via email at  ssecrest@ccdconline.org. Facebook events will have captions added once the live event ends and an ASL summary of the discussion.

Details for each event can be found below this week’s listings or click on the title to jump to the information.

Ongoing Conversations

Facebook Live with Julie Reiskin:

Mon & Fri @ 12:30 – Come and share your lunch with Julie (or a CCDC Leader) offering updates, check-ins, and news for the day. (Facebook link)

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CCDC Event Calendar

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Calming Ourselves & Building Our Power

From Julie Reiskin, Executive Director, Colorado Cross-Disability Coalition

To ensure better outcomes for our community during this unprecedented time, Colorado Cross-Disability Coalition is being proactive, compassionate, and conscious in our response to COVID-19.

Please review the following related to our business operations effective immediately and ways you can support our community:

  • Office Operations: CCDC staff will work remotely and will continue to be reachable through email and phone. Our office remains open, however, there will be very limited staff present during normal business hours. We do not encourage external visitors at this time. CCDC staff is prohibited from attending gatherings of 20 or more people. Additionally, internal and external meetings will be postponed or rescheduled as phone calls or via the online Zoom platform, when possible. All in-state and out-of-state business travel have been suspended.
  • Upcoming events: All community gatherings and events hosted by CCDC through April will be rescheduled for a later date, if possible. Any event already scheduled after May will remain scheduled at this point including our ADA 30th Anniversary Celebration in July. We will continually assess the situation and review recommendations from the Colorado Department of Public Health and Environment (CDPHE) and make changes as necessary.
  • How you can support: In this environment of social distancing closures and racist attacks, community needs are shifting by the hour. CCDC acknowledges many members of our community may not have access to food, basic needs, paid family leave, health care, child care, and other valuable resources. Our community regularly experiences social isolation as well. Therefore our community is more likely to be negatively impacted during a public health crisis. This is a time for kindness. Here is how you can help. We highly encourage our volunteers and donors to consider volunteering or making a donation to our direct impact community partners including Mile High United Way, Denver Homeless Out Loud, Asian Pacific Development Center and Colorado Immigrant Rights Coalition.
  • Resources from us to you: During any time of crisis, misinformation and rumors can cause fear and unnecessary anxiety. This resource page provides quick links and references to answer many of your questions and calm your concerns. This resource page will be updated every day so you can expect the most up to date information.
  • Government resources you can trust: While we are often the ones saying not to trust the government on some issues, in this particular subject, the government sites are the most accurate. Specifically:

NOTE: If you encounter inaccessible documents, videos without captions, no ASL interpreters, or any other form of disability discrimination in relation to COVID-19, please send us an email at COVID@ccdconline.org. We will take action if necessary.

If you have any other questions or concerns regarding CCDC’s response to COVID-19, email us at COVID@ccdconline.org and a staff member will reply as quickly as possible.

Stay well and remember nothing about us, without us.
In solidarity,
Your Friends at CCDC

Nothing About Us Without Us…Ever!
CCDCONLINE.ORG
CCDC is a member of OneStrongVoice.org


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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