About Disability Rights Colorado

Transcript – Randy Chapman Speaks about the History of Disability Law

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Good morning. This morning we’re going to discuss (the) history of disability law. We’re going to go through the Civil Rights Act of Colorado. We’ll talk about Section 504. We’ll talk about right to treatment litigation, both nationally and internationally. Colorado, I’ll also talk about (the) right to education. Litigation, I’ll cover state laws dealing with the rights of people with developmental disabilities, um, where those laws came from, who drafted them and how they’ve changed over the years. So I’m going to start, um, going back to 1954, Brown versus the Board of Education of Topeka, Kansas, which as I’m sure all of you know is the school desegregation case.

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And that was a case where parents of, in that situation, black school children, filed class action litigation in Kansas because their children were not allowed to attend integrated public schools along with white children. And I got to the Supreme Court and the Supreme Court looked at it under the Equal Protection Act of our Constitution and the 14th Amendment. And they said that in fact having a separate school system for black children violates the Equal Protection Clause of the 14th Amendment and we have to integrate our public schools. That theory is in use later when we get into the early 1970s to get educational services for kids with disabilities and the public school system will come to that a little bit later.

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But after that decision there was a really big increase in minority civil rights activity pressing for voting rights, pressing for civil rights, resulting in the Civil Rights Act of 1964-1965. And then following that, that’s really when the disability civil rights movement began. It was started by primarily parents of children, adult children and minor children, who had either mental illness or cognitive disabilities. And actually in those days, you could have children who were deaf or blind, deaf and blind. people with significant physical disabilities who by and large throughout the country were in large congregate care facilities, institutions, and that was true nationwide, and it was true in Colorado as well, and I’ll talk about our institutions here in Colorado, what they were like, who was in them, and the conditions there in just a few minutes.

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So, those parents got organized and they got attorneys. There had not been any major disability civil rights court decisions prior to getting into the late 60s and early 70s. We had a terrible decision in Buck v. Bell, which… allowed sterilization of people with cognitive disabilities. I believe that’s back in the 30s.

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But by and large there hadn’t been any federal or supreme court decisions related to Right to treatment. And by and large people that were in institutions nationwide and in Colorado were not getting appropriate care and treatment; often were getting little or no treatment and were subjected to significant abuse and significant neglect due to understaffing, lack of training for staff, overcrowding – very serious conditions. And again, I’ll talk about that more in just a couple of minutes.

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So, parents organized and they got lawyers who developed a whole new area of the law: treatment for people who are in institutions. The theories that they used were several. They began with looking at the idea that if the state takes your liberty away and involuntarily commits you to a facility or an institution of some kind, the state, if they do that to you, then the state has an obligation in return to provide you with appropriate care and treatment or protect you from abuse and neglect.

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Another theory was that it violated the Eighth Amendment related to imprisonment and not getting care while you’re in prison. So that was another argument that was used. Pointed out at the time, “Well, most of these folks that are in facilities are not involuntarily committed. They’re voluntarily placed there.”

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Most people that went into facilities, particularly those that weren’t in mental health facilities, were placed by their family when they were young children because there were not other programs for them to go to. And the argument there, by the Right to Treatment lawyers was, “Well, yeah it looks on paper like it’s voluntary, but it’s really not because they don’t have any choice. They don’t have any other place to be.” So there’s a series of lawsuits. There’s one the Supreme Court, O’Connor v. Donaldson, I think in 1969. But the biggest one and the most important one was in the mid 70s, Wyatt v. Stickney, regarding a facility in Alabama and a very brave and courageous judge – Judge Frank Johnson.

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And he was presented with evidence of the abuse that the individuals that were placed at that facility suffered, and the lack of treatment that they received. The lack of any concept of making sure that their hospitalization, if you will, is at least in a more inclusive setting as make it more homelike, make it what we now call the “least restrictive environment”.

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And he then wrote a long decision that pretty much outlines all of the things that we take for granted today as regarding right to treatment for people with disabilities who are in facilities. His decision included right to humane care and treatment, right to be free from abuse and neglect, right to be in the least restrictive setting the right to vote, right to fair employment practices, right to communications for those individuals. And then that model was used in some other court cases. And that became the standard for the right to treatment litigation that was going on. And I’m sure you’re also familiar with the Willowbrook case in New York, which is very significant, not so much as to what it said at the time, but that it got a lot of public coverage and a lot of press and people became aware, because they could see pictures, of the conditions of folks in those facilities.

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I came to Colorado in 1977 and one of the first things that we did at the legal center was to take new staff. There were three of us on staff. There was me as an attorney, I was a VISTA volunteer. There was another VISTA volunteer who was a social worker who did social security work. And we had one volunteer, Sister Suzanne Halfond, who was a nun, and the director was Bruce Bernstein, and we had a secretary reception person. So we took tours of facilities, and we went out to the then-called the State Home and Training School at Ridge.

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At that time in Colorado, we had three State Home and Training Schools, one in Pueblo, one in Wheat Ridge, and one in Grand Junction. Now they’re called regional centers, we changed the name. So we went to visit the State Home and Training School at Ridge. And my first impression of the facility was – I went into a room that was about the size of this room, but if you cut it in half, there was a wall that was about waist high and inside that wall were people piled upon each other that by and large were not clothed. The stench was horrible. And there were staff there, but there was no interaction by those staff with those individuals. And I have to tell you, when you see people in those conditions, they don’t look like people.

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And that is how society, I believe, has been able to neglect, abuse, if you can see. is less than real people, maybe it makes it easier. Our receptionist had to leave the room. She covered her face, went out, got in the car, missed the rest of the tour. I went on tour to other wings. There was a unit called The Rounds, which were up there on a hill and they were very proud of The Rounds because as the name implies they were round buildings and inside the center of the round room was a nursing station that was also round and it would allow the minimum, number of staff to look and monitor all the people that were in the room. And the people that were in the room were in beds lying three or four deep in a three quarter circle around the nursing station with no partitions in between.

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There were not rooms for folks. They were all in this big ward laying in these beds. Over in the corner, there was a section that had been cut out and was in a cage. And it was a basketball court and it had a tattered basketball net up in the corner of that room and it had a broken TV over in the other corner and there were a bunch of guys in there, uh, not doing anything, no staff interaction.

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So that was my first exposure to institutional care and treatment, and here it was in, Colorado, which we always think of ourselves as a progressive state. If you ask people, what kind of services would Colorado have had in those days, I think most folks would say we would have had good services, that the abuses were as we know in Alabama, in the deep south.

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But no, it happened here as well. So that had a profound impact on me at the time and probably formed my view of what needed to be done and how important the work was that we were choosing to undertake and also how difficult it would be. Because the number of people in that facility was over a thousand people.

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Today there are, I think, 30 or 40. And they’re in cottages, they’re not in those… There’s a lot of people. And there are a bunch more down in Pueblo in similar conditions. Although Pueblo had a unit called Johnson Hall, which is where they placed individuals that were considered more… emotionally, behaviorally … sometimes semi violent kind of folks – they were down there, which was an even less pleasant place. And over in Grand Junction we had a large number of people. The origin of the Grand Junction Regional Center State Alma Training School is that it originally was an Indian school. And I think that helped make it of the three places, the better place to be if you were going to be institutionalized because it had an attitude of education. The services weren’t any better, but the housing conditions were better and it was also vital to the economy of the community. So, it didn’t have the image that the other facilities had. But what it did have was hundreds of children and babies that lived in one unit over there because on the western slope in those days they did not have any children’s programs.

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There were no group homes, regional facilities, residential placement facilities for kids. So as a result, it became the norm to place very young children in that unit. And that continued up until I write the education lawsuit that I’ll get to in a minute and into the early 80s. So when I say that the conditions were poor. I want you to be able to see that because that was not, this was not something that happened somewhere else. It happened right here in Colorado.

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And I’ll talk now about a young woman that Jeff knows very well and she spent her life playing pretty much flat on gurney. Lived at the Regional Center State Elementary School on Ridge when I first met her. She later moved into the Family Living Project, which Jeff Peterson was… that one time the director of and lived in a host home. But when I first met her, it was on a tour of one of those wards at the State Home and Training School in Ridge, one of the children’s wards. And I heard a story that she was paralyzed from pretty much the neck or shoulders down and laying on this gurney all day flat. And she would lift her head up to smile and look at you. She was very verbal. And she had been left under a hot water pipe that dripped. And that pipe dripped and burned through the small of her back down to the bone. Not because anybody that… was working at that facility, wanted that to be done. It was because they were overcrowded, understaffed, and they just left her there. She didn’t feel it. But they had to have surgery and deal with that. The good news is years later, she did get out and moved into the community where she later passed away, but the Family Living Project was the first host home program in Colorado. And I’ll talk more about them in a little bit when I talk about a nursing home called Twin Pines.

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There’s this right to treatment litigation and conditions in our regional centers in Colorado. And in 1975 the individuals that helped found the Legal Center for Handicapped Citizens, which was founded in 1976. They draft our own Colorado State Right to Care and Treatment legislation for people with developmental disabilities in 1975 and they modeled it on the order that Judge Johnson had drafted. So every right that he recognized in that opinion, they put into state statute. So we had, in 1975, one of the most progressive state statutes related to care and treatment of people with disabilities of any state in the country. At the time, the definition of developmental disability for Colorado was a categorical definition.

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You’re regarded as having a developmental disability if you had, and I’m going to use the R word now for a little while, to describe things. You don’t use it anymore, but I don’t know how to tell the story without using it. Individuals with mental retardation, individuals with cerebral palsy in individuals with Fragile X, range, they categorize a lot of different people with different kinds of conditions that all occurred before the age of 22 and if you had one of those conditions, you were considered a person with a developmental disability. So you can have cerebral palsy without having any cognitive impact and you would have been a person with a developmental disability at that time. The rights, according to the statute, were guaranteed to people that were receiving services in facilities.

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And the definition of facilities in Colorado was extremely broad. It included the three state owned training schools. It included nursing homes. It included the group homes that we had. So it’s very broad. It didn’t apply to individuals living at home. But if you were in a program that was residential in order to get treatment, you were covered under that statute. So it was extremely progressive. When I came to the legal center, the founders had been, for some time, planning our own right to treatment litigation, a lawsuit by our staff using the Association of Retarded Citizens of Colorado. Now, the Arc of Colorado, they filed our own right to treatment litigation.

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And they had sent individuals into the facilities, primarily looking at regional centers, but we also had nursing homes and some group homes collecting data regarding the care and treatment or lack thereof for people that were in those facilities. So it’s stacks and stacks of information that we went through. We went out and visited. Some of those individuals, one that was a named plaintiff, her name was Mary Botas. She’s passed away now. Mary, when I met her, was about a 16 year old girl out at the Wheat Ridge Regional Center. And she spent all her time with these big, giant mittens on her hands because she had blinded herself by picking at her eyes. And rather than provide interventions to keep her from doing that, they put the big mittens on her. So you can see the need and why something had to be done to try to deal with these issues and try to get appropriate support. One part of the new law that I neglected to mention, and I’ll mention it now and come back to it, was (that) they had a section dealing with sterilization.

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There had been in long history, nationwide and also in Colorado, of the involuntary sterilization of people with cognitive disabilities. And in our new state Developmental Disabilities Statute in 1975, we put in very, tight guidelines as to what needed to happen in order for a person to become sterilized if they were a person with cognitive disabilities. It required their consent. It also required the consent of a professional in the field and also consent of doctors. Those additional people providing their consents were not saying we think it’s a good idea. What they were basically doing, was affirming that the individual was giving their consent, supporting that they understood the nature of the process and the result would be permanent sterilization. So that was a very, progressive statute. And in just a minute, I’ll talk about sterilization cases that the legal center did.

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Another section of the law what’s called an Imposition of Legal Disability, or now we refer to that as an ILD. That was not part of the DD Act, but it was part of the overall institutions statute, and that allowed for a court to impose a legal disability on individuals based on them having a disability, and taking away their right to have a driver’s license, enter into contracts or determine place of abode. Our new Right to Care and Treatment Statute didn’t allow for any kind of involuntary commitment of a person with developmental disability. You couldn’t do that anymore. The other thing that it did is it terminated all the guardianships, because at the same time we rewrote the Guardianship Statute and put in all the rights that are there now: Right to a hearing, Right to have counsel appointed – things of that nature were not in the guardianship law before. So what had happened was a lot of people that were institutionalized, guardianships by using their family, but those guardianships had been done unconstitutionally. So that law was struck down. But they gave a six month grace period by which families could go in under the new law and get a new guardianship.

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And that was going on, when I first got to Colorado. It was a really big deal for families. Well, for the folks that were already in the regional centers, they had been held there under the guardianship law. That couldn’t be used anymore. And they started trying to leave, and the Attorney General’s Office for Colorado used this law called Imposition of Illegal Disability that had been there before, and they essentially used it to involuntarily commit people to the institutions.

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The problem with that law is it didn’t provide a right to a hearing, didn’t provide a right to counsel, didn’t provide any of the due process that we all today take for granted and Pueblo Legal Services took on a case and had that declared unconstitutional because it did not have those rights and later gets rewritten.

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That’ll be important in another story that I’m going to tell in just a few minutes. So, that’s a long time saying that we prepared this Right to Treatment lawsuit. We put a ton of time into drafting and preparing that and we filed it. We filed the biggest right to treatment lawsuit in the state that had ever been filed. Our lawsuit was for everybody with a development disability no matter where they were and declaring they had a right to treatment. We filed it under the Constitution. We filed it under Section 504, which I’ll talk about in a few minutes. And we filed it under our state DD Act. The reason that was the biggest lawsuit was because it covered everybody everywhere. Previous litigation has focused on people in a specific facility, a specific institution.

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Well, Bruce Bernstein and I, we didn’t know any better. It’s that first class action lawsuit, so we filed it. And, pretty soon realized we had a lot of stuff on our hands. There’s only two of us. And we had sent our complaint when we drafted it out to all the bigwigs in Right to Treatment Litigation throughout the country and they had all looked at our complaint and sent it back and said, “great job, good job, beautiful complaint!” And in order to find out what happened was, Judge Feinsilver decided to abstain stating that the crux of our argument was under our state statute. And it was a matter of state law.

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And so he said, you need to take this to state court. And we thought, “oh, okay.” And then we come to find out that all these lawyers that I looked at our complaint office said, “Oh yeah, we knew that it was too big a lawsuit. You all couldn’t do it.” And we said, “why didn’t you tell us? They said, “you didn’t ask.”

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Randy laughs. The audience laughs.

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So, that was the bad news. The good news was, in the meantime, we had identified a number of people that were school age. The Education for All Handicapped Children’s Act had been passed in 1975. It was adopted in Colorado in the spring of 1978. And I’ll talk more about that in a few minutes.

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And it guaranteed that all children with disabilities had a right to a free appropriate public education, regardless of where they were, including people and children at institutions. And we had a number of parents contact us who were trying to get educational services for their children at the regional centers. And what was happening is you had families from Denver or Greeley or Pueblo whose children were institutionalized in the regional centers and were asking for school services because there were no school services provided to those kids at the regional centers. Children at the regional centers with significant disabilities literally spent their day laying on mats.

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Many of them were cognitive as well as intense physical disabilities and very little intervention. And it used to be debated annually in our state legislature whether it was worth trying to educate kids and how, and, just providing physical occupational therapy to regain strength to their limbs so that they could move better on the mat. And we used to go to the legislature every year and testify. And say this new law says that all kids get a right to free appropriate education and it does include kids that are that significantly impaired. And the argument would be that in those days they used to refer to people as being either educationally mentally retarded, EMR, or trainably mentally retarded, TMR.

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We don’t use those terms anymore. If you were trainable then you didn’t qualify for education. Ciao. You didn’t get anything. If you were educable in Colorado, it meant that you might be getting some services at a community center board run school, but the kids at the regional centers weren’t getting anything. And they did literally spend their days laying on mats, and one of the benefits of the new education law was – it did require that we provide services to those individuals. But the issue was, for the families that contacted us said that since they were in Denver, Denver Public Schools ought to serve them or Greeley schools ought to serve them if they’re from Greeley. So we went to those school districts, asked for services, and they said, “We’d like to serve your daughter or your son but they live in Jefferson County or they live in Pueblo or they live in Mesa County because they’re in the institution.”

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So we thought, well, we’ll just go to the institution or the school district that’s in the institution’s taxman area and ask them. And they said, “We’d like to serve your son or daughter, but you don’t understand. You live in Denver and Weld County and Mesa and Jefferson County is not responsible for you.” So we, uh, went to Cal Fraiser who is the Colorado Commissioner of Education and a very wonderful man. And after a long time of badgering and pestering him, we got him to issue an order saying that the school districts where the parents lived were responsible for these kids. Because he didn’t think it would be appropriate that a school district that happened to have a large institution in it would have an obligation to serve all those kids.

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So that was great. And we thought we were all set. The only problem was the school district said, “We’re not doing it.” So that’s when we filed in 1979 our Right to Education Lawsuit, which is geared towards getting educational services for kids specifically at the State Oman Training School at Ridge. It was a class action lawsuit. The State Representative of the Attorney General’s Office filed a motion to dismiss, arguing that those kids were not covered, institutionalized kids aren’t protected under 94 132 of the Education for Undercapped Children’s Act. We pointed out, no, there’s specific language here that says even kids in institutions. So we had lots of briefs, big hearing. And we won. And once we won, then the state sat down with us and decided to settle the lawsuit. And we hammered out a settlement that required the state to identify all the kids, not just the Wheat Ridge Regional Center, but all three that were school aged. Because the school districts hadn’t been in those facilities at all. They didn’t know who was there. So they had to come in, identify the kids, do evaluations and assessments, then have IEP meetings on behalf of those children, and then make placement recommendations. And the Department of Institutions in those days is what it was called, we don’t have that anymore – they developed their own school on the campuses of the regional centers at Wheat Ridge they developed a school called the Sonata Learning Center. Cale Sonata was the superintendent of the Wheat Ridge Regional Center. Also a very good man. And that’s located not far from Arvada High School. And so some children… went to the Sonata Learning Center. Some were putting classrooms on the grounds, Grand Junction, since it had been an Indian school, already had classrooms there.

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So a lot of those kids went to those classrooms. But some school districts took over and started providing services in and within the public school system. Littleton Public Schools identified their kids and they created a program called the CEMBEX program which was for kids with severe disabilities, where they went in and bused kids from the regional center to Littleton. And that was the very first time in Colorado that you had kids with severe disabilities educated in the public school system. And you can track from that moment the elimination, gradually, of almost all segregated schools in Colorado. In those days we had a handful of segregated schools run by school districts. There’s one called S. A. Wilson down in Colorado Springs, and it closed because Colorado Springs, those kids went into the public school system. We still have the community center board run schools, Fletcher Miller and Margaret Walters schools. They were still serving kids, but the public schools went in and took the higher functioning children from those schools, brought them into the public school system and into the community center board schools then serve kids with more severe disabilities.

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So, over time, eventually there were not any kids in segregated schools. I’m not talking about day treatment programs and some programs like that. I’m talking about general schools that only serve kids with disabilities. We had a school in Denver that only served children with disabilities and years later we were able to close that one down. It was located next to Children’s Hospital and served mostly kids with physical disabilities. There are a lot of adults with physical disabilities in Colorado that are graduates of that school. And we were able to shut that down. All those kids then went to public schools. Let me make a couple more comments on the imposition of legal disability, sterilization cases, and then we’ll move on to Civil rights related to employment discrimination.

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I mentioned that we had this really progressive sterilization provision of our Right to Care and Treatment Act for people with developmental disabilities. And in 1977 or 1978, we had a lawyer contact us out of Brighton and he was representing, I think she was 12 at the time. It’s a case called In the Matter of AW and her parents were trying to get her sterilized because they did not want to have to deal with her monthly periods. And they talked to a doctor and the doctor said, I don’t think I can just do this, we got to go to court. And so they went to court and the judge appointed a lawyer to represent the little girl.

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And that lawyer opposed the sterilization saying, You can’t do this, she’s only 12 years old. And the judge ruled in favor of the parents. And they were on their way to sterilizing her. And the lawyer went to the judge and he appealed. He said, I want to appeal. And the judge said, you can’t appeal. You’re not acting in her best interest. Her best interest is to be sterilized. And so I’m firing you. And fired the lawyer. So she didn’t have any representation. And so we then, as the legal center, took over the case and we got another lawyer appointed by going and contacting the Court of Appeals and took up the matter of AW. The legal center was an amicus curiae in the case. Pointed out our new legislation and the issue was, whether or not parents of a minor child had the authority to sterilize this minor child and the Court of Appeals said no. Our new sterilization legislation says that there is a procedure to be gone through and you have to have an attorney appointed and parents can’t just do this.

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So that was a tremendous breakthrough. Quite a few years later, we had another case that came over from the western slope. It’s also in your materials in the matter of Romero. Ms. Romero, I can’t remember her age, but she was like, I think maybe in her 30s. She had a history of having some disabilities and injuries. She was in a nursing home, and I believe it was her mother also that sought to have her sterilized. And I believe a social worker contacted us, because the mom had also gotten a doctor to agree to do it, and they were on their way to sterilize her, saying that the mother, as her guardian, had the authority to sterilize this woman.

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She did not want it. You could talk to her and ask her, and “no, I’d like to have Children.” So, we represented her. We also got court appointed counsel to assist her. That went to the Colorado Supreme Court. And Peg Long, who worked for us in those days, took the lead and argued that before the Colorado Supreme Court and we prevailed on that. And that case says that guardians don’t have the right just to order sterilization of adult individuals, particularly when they are not wanting to be sterilized. Another case dealing with imposition of legal disability, that’s the one I talked to you about a few minutes ago, that discusses or allowed for people to be involuntarily placed in these regional centers.

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The Pueblo Legal Services had gotten that found unconstitutional. It couldn’t be done without a hearing. We had a young man who contacted us who was living on Johnson Hall down in Pueblo, and his mother lived in Denver, and they gave him a furlough. So it shows you, I put him on a bus, he came up to Denver. On a photo, so it shows you the high functioning level of people that were living in this horrible Johnson Hall. Clarence Miller was living there. We aren’t talking about people with real severe disabilities. This guy was fine. he should have been out having a job. So he came up, spent Thanksgiving with his mom, and he decided he wasn’t going back. His dad was the Attorney General for the Virgin Islands, and he got up in arms, and he called everybody at the state, and so they went to try to find him. And you did. And then, I don’t know, somebody contacted us and we got involved and said, “You can’t just send this guy back. He has rights. Undo this process.”

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And I talked to him, interviewed him, and “Do you want to go back?” “No, I don’t want to go back. I don’t like it there. It’s not a good place.” “Okay.” And we went and got a, he was, had been placed over at Denver General Hospital in a wing over there. And the state was going to put him on a bus, a sheriff’s bus, and take him back to Pueblo and we literally got a habeus corpus issued that morning, and I handed it to the bus driver as he was getting on the bus. And I got him off that bus, they couldn’t take him, and we scheduled a hearing. Now the reason I’m telling this story is for this point: We went to the hearing, …. [Randy gets emotional] give me a minute, and I was arguing for the judge, Clark was there sitting next to me, and I was explaining to the judge, all the rights that a person with mental retardation has under this wonderful new law. It wasn’t that new then, I’d been around for a while. And that you could not just force a person, because they had mental retardation, to live in a facility and you could just put them on a bus and send them back. And the judge ruled in my favor and I was really happy. Because I’d won. And I turned to Clark and he was crying. I said, “what’s wrong?” He said, “why did you say all those bad things about me?” And I said, “what do you mean bad things?” He said, you said I was retarded.” And I said, “I’m sorry Clark, it never occurred to me.”

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We know not to use that word today, but it never dawned on me that nobody had told him that. Here he was in one of the most restrictive environments that you could be in and nobody ever said, “you’re a person with a disability and we call it mental retardation because you have an IQ below…” whatever. So, words make a difference and we do not take people first language lightly. In this organization. Because they hurt. And when they hurt, it doesn’t go away. That hurt doesn’t leave you. So there are times in the history of the legal center, I’ve been pretty strong about that and pretty annoyed when people weren’t, and that’s why. That’s why. And it’s not like we didn’t tell you. It’s in that book you’ve got in front of you. To use people first language. Good news is Clark… As far as I know, he lived the rest of his days somewhere in the streets of Denver. I was at a birthday party with Peter Fanning once at a bar downtown. Peter Fanning was the Director of Special Ed for Colorado. Here comes Clark, wanted him to the bar, sat down, and we had a drink. So, I don’t know whatever happened to him, but he got along fine. Let me shift now and let’s talk about civil rights related to employment discrimination and some other laws.

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In 1973, there was the Rehabilitation Act of 1973 that was passed, a federal law. That was the first time there was federal legislation to provide protections and prohibited discrimination against people with disabilities. The most well known part of that law is Section 504 and 504 said that any program that receives federal financial assistance and federal financial assistance can be in the form of contract, you get money, not contract. Receipt of federal funding, use of federal personnel, use of federal property could not discriminate against qualified handicapped persons – that was the terminology – in the areas of employment, access to services. So that then applied to the legal center, because we had federal funds as the P&A – We had VISTA volunteers, I was a VISTA volunteer working at the program. Applied to school districts, University of Colorado, lots of entities to get federal funding. The law was passed in 1973. The two other important parts of that act was section 501 which applied to the federal government and prohibited discrimination in employment in the civil service. It also required affirmative action in seeking out affirmative in hiring people with disabilities. And section 503 applied to employers who had contracts with the federal government in excess of 2, 500 a year. So in those days, when we were doing employment discrimination cases we used, to use 504, we had to find a Federal funding connection. We used 501. I had a lot of cases in those days of people who hit the post office. I had a guy who came back from Vietnam. Got some mental health treatment upon return. Finished his treatment. Applied at the post office for a job. They had a doctor who had to rule on whether or not people were medically, eligible to work at the post office.

[00:42:04] → [00:44:18]
He saw the guy had a record of mental health treatment and bam. So we filed under 501 and you went through the affirmative action process and eventually got him his job. 503 applied to employers that were contractors. So we had the Climax Molybdenum Company mining company up in Leadville. We also had Martin Marietta. I represented a blind individual who had worked for Martin Marietta. Was a computer expert and was terminated. And we used Section 503 and went through that process to get him accommodation so he could stay employed. Under 501, I represented a guy who had cognitive disabilities and worked at the Air Force Academy down in Colorado Springs. And he couldn’t remember he was a janitor. And he was fine doing all the janitorial duties, but he couldn’t remember the order in which to do them. He would leave the rooms half done, do the wrong rooms at the wrong time, and so they fired him, and we filed an appeal, and we went to a hearing and I came up with a brilliant idea of typing up a list of things for him to do, putting it on his cart, and what time to do them, because he could tell time as long as he had a digital, uh, watch. Little funny story in the hearing, I was trying to show that he could tell time, and I asked him to look up at a big, uh, regular clock on the wall, and I asked him, can you tell us what time it is, and he looked up, looked at his watch and said, yeah, it’s three o’clock. He couldn’t tell what time it was on the clock. We could tell what time it was on his watch, so he’s a smart guy. So we put that together and we had a good hearing officer on that and he got employed. So those are the kinds of cases we were taking under federal law. We also had in Colorado, the Colorado Civil Rights Act, which in 1977 was amended to include people with physical disabilities.

[00:44:19] → [00:45:48]
Previously, it only covered people based on discrimination due to gender, religion, race, things of that nature, did not include people with disabilities. And the legal center, along with Other disability advocacy organizations were successful in 1977 in getting that law amended to include people with physical disabilities. They tried to get it to include people with cognitive disabilities, but we couldn’t get the legislature to go. in that direction and, do that. The big case there was Lynn Silverstein versus St. Joseph’s Hospital. Lynn, in this case, was going on when I came to Colorado. Lynn Silverstein was a respiratory therapist who worked at St. Joseph’s Hospital. Years ago, she had a history of pettite mal seizures. They had cleared up, but they came back when she became pregnant. And her seizures were petit mal. They were just for blanking out for a second. She came back. They also were nocturnal. They only occurred at night. There was the manager of St. Joseph’s Hospital, was a nun, who had a horrible experience seeing somebody when she was a child have a terrible grand mal seizure. So she had an image of, seizure disorders that was a little more on the dramatic side. She didn’t realize there were gradations, different kinds of seizures that people have.

[00:45:49] → [00:47:32]
So they had a policy at St. Joseph’s Hospital that no person who had ever had a seizure in their entire life could work in hands on patient care in that hospital. And we were able to show and prevailed and got established a decision that said you have an obligation as an employer to look at each person as an individual and their individual qualifications. You cannot have a just blanket exclusion of people with any type of disability from employment under the state civil rights act. So that was revealing. employment discrimination law case in Colorado for quite a few years and established a very important precedent. Three years later, in 1980, I did a presentation to the Arc of Colorado. They used to have an annual convention, a convention, and they had it down in Colorado Springs. And I reminded them that we had never gone back to try to amend Our state statute to include people with cognitive disabilities or mental illness in our state civil rights act and they said, oh, that’s right. So they put together a task force and for ten years we worked. Every year we’d introduce the bill and every year we’d get killed. Finally in 1990, it finally passed. And lo and behold, also 1990 is when the Americans with Disabilities Act passes. So it’s good news, bad news, except the Americans with Disabilities Act in its employment section only covers employers with States Civil Rights Act covers all employers.

[00:47:33] → [00:49:09]
So if the ADA doesn’t cover a Colorado individual with a disability, we still have our state law. And our state law also in the last few years has been amended significantly to include lots of the rights under the ADA. You could not require an employer to provide an accommodation if it cost any money. It cost a dime. You could not require that. tough hurdle. That’s the reason we lost the Dalkoski case. Dalkoski was a Denver policewoman, was in a severe accident resulting in her having quadriplegia. She got stabilized, got better, applied for a job at the Denver Police Department. They turned her down because she could not effectuate a forceful arrest and discharge a firearm properly. We filed with the Civil Rights Division, arguing that Those are not essential functions of the job. We got a vocational habilitation specialist to do a study of all the jobs at the police department, and in fact identified, the fingerprint people and lots of jobs that are there that those folks never went out in the field. But we lost primarily because of that requirement that you not have to spend any money as an employer to make an accommodation. Since that time, two things happened. One, there was an ADA case brought by Joe Epstein, one of the founders of our organization, that prevailed under the ADA. And also the police department, all those police jobs became civilian jobs.

[00:49:09] → [00:50:51]
So if you go in for the fingerprint people now at the police department are civilians. They’re not police officers. So we were right. But being right doesn’t always get you the win. Let me talk about two other things. I want to talk about ten Twin Pines nursing homes, and then I’m going to talk about the 1985 rewrite. of our state DD Act and then I need you all to ask me questions if there’s anything that I have left out or forgotten. Twin Pines was a nursing home in Loveland. Jeff Peterson Was, I believe Jeff was working for the DD division at that time. And his job was to go tour nursing homes. And see how, services were being provided there. That was the Developmental Disabilities Division that hired him and some other folks to go do that. And he went to Twin Pines Nursing Home and uncovered a horrible place. Where individuals were literally, these are folks, with developmental disabilities at Twin Pines had previously lived at the Wheat Ridge State Edelman Training School. And they, when they were the initial of the institution, institutionalization process that moved folks out of institutions, a lot of them went into nursing homes, and these were some of those folks. And as we now know, if you have a developmental disability and you get moved into a nursing home, there isn’t anybody that comes check on you.

[00:50:52] → [00:52:32]
You gotta stay there. Nobody checks out. CCBs don’t come in and say, how you doing? At least they didn’t then. But good news was, Jeff went by and he found, and there were literally people with developmental disabilities shackled to the wall at this facility. It was a geriatric nursing home. And he brought us information. Which I took and gave to a friend of mine at the Attorney General’s office who promised to follow up. She was slow on that. Eventually a fellow there died because they didn’t take serious his illness, and he didn’t get taken to get medical care. And the, our office then took that information and shared it with, channel 9 news, and they did a series on the abuses there. That resulted in, um, the DD division being very, active in sending people up to Leaven. I went up there many, times to visit, monitor, make sure that the people, that if we moved them, they didn’t go to another nursing home, they didn’t go back to the regional center. And so Jeff comes back, again, because we were able to get the Family Living Project, which was a host home program then, to accept some of those guys who had pretty significant disabilities. And they moved into host homes, Kudos to the Family Living Project, the first host home program in Colorado. And a pat on the back to the Lula Center that got you guys moved there. But if sometimes when I’m talking about nursing homes you think I’m a little irritated, that has a lot to do with it.

[00:52:33] → [00:54:05]
Because the homes that I’ve gone into are not the happy places that some of our grandparents may get to go to. I don’t know. The ones I’ve gone to are not good places. I wouldn’t have anybody there. That’s why I deal with it that way. All right. I talked about 2710. 5, our original state DD Act that was written in 1975. In 1985, the legislative council, these are lawyers that work for the legislature that have nothing to do all day but go look at statutes and see if the statutes have enough support in the law. we Look at how things are run, etc. They look at how agencies are doing business, and see if how the agency does business has statutory support. The Community Center Board programs, which are wonderful programs, by and large, had developed in law in Colorado back in, I think it’s 1972 or 1973. They were established, they were agencies, they weren’t established, but they were authorized if they established themselves to provide services to people with developmental disabilities. And they began getting state funding to help do that. So they got minimal funding, I am sure. And they developed good programs for people and they were running those segregated schools because the public school system wasn’t serving kids. So they were doing good work. There was nothing wrong with the community center programs in that sense.

[00:54:05] → [00:55:38]
But we had put in place the whole process of how they were funded and the things that they did that weren’t in state statute. There was no mention in 2710. 5 of community center board programs. No mention of how they were governed, how they were licensed, who’s on their board of directors. None of that. All that was there was this wonderful law from 75 that focused on rights of people in facilities, but not the nitty gritty of how that gets accomplished. that did the dreaded, what we call, opening up of the act. when you open up an act, that means everybody gets to take their shot at it. There was a huge battle in Colorado between the advocacy organizations led by the legal center at that time, and all of the local arcs in the Arc of Colorado, because we believed it was a conflict of interest for a community center board to provide case management, because the case managers are advocates. They run your individualized… planning meeting. They’re the ones that are supposed to advocate for you and connect you with the services that you need. And we felt that’s a conflict of interest between your role as being a direct service provider. Because if they’re also providing the direct services and there’s a problem with the services and the case manager is the person you complain to in the system.

[00:55:39] → [00:58:41]
There’s a little bit of a conflict of interest. Now today, that’s as obvious as the nose on your face. In those days, there were bitter, arguments and anger over that issue. And the whole system didn’t come to blows, but about as close as you could get. It was huge, big breakup. And we spent a huge amount of time, hour after hour. It soon became apparent to the advocates that we could not win on that issue. Because one thing the community center board programs have always done pretty well, is work with the state legislature. In particular the Republican side. This is not. But in those days, it was by and large the Republicans that were in charge of the legislature. So if you’re going to work with a party, you work with a party in power. So if Democrats had been in power in those days, that’s what they would have done as well. But because they had a good reputation, and deservedly provided good work, Dedicated people work for these programs. They get, we knew the legislature was not going to buy into separating case management from service delivery, so we tried to get other things into that legislation. And so what we put in is when we changed the DD definition, was previously, was a categorical definition. If you had a category of disability you were eligible. To a functional definition, because since that time we had the federal law which had a functional definition of developmental disability. So we wanted to use that law. We didn’t get a total repeat of the federal definition, but what we got was language that said, you were a person with a developmental disability if you had, again here’s the R word, mental retardation or If you had adaptive functioning so that you needed services similar to a person with mental retardation. So that’s a hugely important change in the definition. We also added human rights committees, which were committees of service provider agencies including community center boards and regional centers that were third party people that did not work for those agencies that looked at issues of abuse and neglect an independent eye. We put in place for the first time, appeal procedures for people with disabilities. If their services were changed, reduced, or modified, they had a right to file a complaint, had a right to a hearing on those issues. We put in a requirement that consumers and families be represented on the boards of education, of the boards, sorry not educated, of the board directors, boards of directors, of community center boards. So we got a lot in exchange for not getting the conflict of interest resolved. That we really, wanted at the time.

[00:58:42] → [01:40:00]

The issue with the definition, it’s hard to move a system. The system, even though it was a categorical definition since 1975, the system really had only served people with cognitive disabilities. And when we introduced this new definition, that could include higher functioning people, if they had adaptive functioning issues. The system never accepted that. And so for year after year, they would only apply Part 1 of that definition, and were finding people ineligible, and not using Part 2. And try as we might, we could not get that in those. The language clearly says or, it didn’t say and, I wrote it, I put it there, or means or But we couldn’t do it until finally. In the 90s we had a case involving an individual who was applying for services and was turned down strictly on that adaptive functioning criteria. And we took that to an ALJ hearing and we prevailed. And that caused an uproar in the entire system. Liz Fusile and Andrea Phelan handled that case for our office. And so the whole system got alarmed, and they’re going to have to start identifying all these people. Long story short they put in place some temporary regulations. You can read about some of that. There’s a document that you have that talks about the history of this definition. And finally, I think it’s 2013, we finally got it acknowledged that the OR means OR. And that definition does not apply only to people with significant cognitive disabilities. I think I’ve overdone my time, but thank you for listening to me