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TCL > May 2003 Issue > The Legal Center: Colorado's Protection and Advocacy System

The Colorado Lawyer
May 2003
Vol. 32, No. 5 [Page  39]

© 2003 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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Departments
Access to Justice

The Legal Center: Colorado's Protection and Advocacy System
by Randy Chapman

Randy Chapman, Denver, is the Director of Legal Services at The Legal Center for People with Disabilities and Older People--(303) 722-0300.

Readers interested in contributing an article on legal services, pro bono, and access to justice topics should contact Kathleen Gebhardt at kjgebhardt@att.net.

The Legal Center for People with Disabilities and Older People ("The Legal Center") is a private nonprofit agency whose mission is to protect and promote the rights of people with disabilities and older people through direct legal representation, advocacy, education, and legislative analysis.1 The Legal Center fulfills that mission by applying the staff’s knowledge of disability and elder law to its knowledge of the disability and senior services delivery systems. It this way, it attempts to ensure that people with disabilities and seniors have equal access to services and that they are protected from abuse and neglect. This article intends to provide some background and general information about the services of The Legal Center.

Background of The Legal
Center and Its Programs

Initially established through the support of the Association for Retarded Citizens in Colorado2 and Colorado Developmental Disabilities Planning Council, The Legal Center has always tried to serve individuals with all types of disabilities.3 The founders also wanted an entity that could pursue right-to-treatment litigation on behalf of persons with developmental disabilities who lived in Colorado’s State Home and Training Schools.4 In 1976, The Legal Center was established because its founders believed services available in the generic legal community were not adequate to meet the unique legal problems facing people with disabilities.

To be sure, people with disabilities are faced with the same legal issues encountered by people without disabilities. However, people with disabilities frequently also must deal with complicated service delivery bureaucracies; depend on residential and other services provided by others; and lack equal access to education, employment, and other public services and accommodations. Thus, The Legal Center was not established to meet all the legal needs of people with disabilities, but rather to help meet these unique legal needs.5

In 1977, pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act of 1975 ("1975 Act"), Governor Richard Lamm designated The Legal Center as the Protection and Advocacy ("P&A") System for Persons with Developmental Disabilities in Colorado.6 The 1975 Act established P&A Systems for persons with developmental disabilities in every state and territory. Over time, Congress also enacted legislation establishing P&A Systems for Individuals with Mental Illness ("PAIMI"),7 Individual Rights ("PAIR"),8 Traumatic Brian Injury ("PATBI"),9 Beneficiaries of Social Security ("PABSS"),10 accessing assistive technology ("PAAT"),11 and a program to assist clients of the vocational rehabilitation system ("Client Assistance Program" or "CAP").12 Additionally, through the Older Americans Act,13 Congress has required that states have a state Long-Term Care Ombudsman14 to monitor the care of seniors in nursing homes and other long-term care facilities, as well as a Legal Services Developer15 to coordinate and support local providers of legal services to seniors.

Each of these programs serves unique populations of persons with disabilities or seniors, has specific requirements for the kind of services that The Legal Center can provide to the particular population, and provides varied amounts of limited federal funding. The remainder of this article focuses on The Legal Center’s services related to the P&A Systems for Individuals with Developmental Disabilities, Individuals with Mental Illness, the Client Assistance Program, and the Older Americans Programs.

P&A Systems for Persons with
Developmental Disabilities

As the P&A System for Individuals with Developmental Disabilities, The Legal Center must be able to pursue legal, administrative, and other appropriate remedies to protect and advocate for the rights of individuals with developmental disabilities throughout Colorado.16 Additionally, The Legal Center must have the authority to investigate incidents of abuse and neglect of people with developmental disabilities if The Legal Center has probable cause to believe that the incidents actually occurred.17

To facilitate abuse and neglect investigations, Congress has granted P&As broad access to service agencies and records if the P&A System believes there is probable cause that an individual has been abused or neglected. In such circumstances, The Legal Center would first contact the individual or the individual’s guardian, conservator, or legal representative and seek permission for records access. If The Legal Center has offered assistance to the individual’s representative but the representative refuses assistance and does not act on behalf of the individual, The Legal Center, as the P&A System provider, still must be given access to the individual’s records and other records that are relevant to conducting the investigation.18 The Legal Center is required to keep confidential the records it receives in the course of an investigation.

The Legal Center has focused its efforts on protecting persons from abuse and neglect in Colorado’s developmental disabilities services delivery system and ensuring appropriate school services for students with disabilities under the Individuals with Disabilities Education Act.19 Historically included in those efforts has been a strong push to move individuals out of Colorado’s Regional Centers20 and into homes in the community, as well as to make sure that students with disabilities attend school in the least restrictive environment. Today, most Coloradans with developmental disabilities live in community homes; therefore, the focus has shifted to protecting persons from abuse and neglect in community-based settings.

P&A System for Individuals
With Mental Illness

Like the Developmental Disabilities P&A System, the PAIMI must have the authority to pursue administrative, legal, and other remedies on behalf of Colorado individuals with mental illness. It also focuses on protecting individuals with mental illness from abuse and neglect. The PAIMI must give priority to pursuing issues that arise while an individual is being admitted to a treatment facility, in a facility, or within ninety days of the individual’s discharge from the facility.21 The PAIMI recently has been authorized to address community issues occurring outside of treatment facilities.22

Also, like the Developmental Disabilities P&A System, Congress has granted the PAIMI program broad facility and records access to facilitate its investigation where it has probable cause to believe a person with mental illness has been abused or neglected.23 The Legal Center’s PAIMI has focused primarily on protecting individuals who are living at the Colorado mental health institutes in Pueblo or Ft. Logan. However, it also has pursued investigations and represented persons in other public or private hospitals and children receiving mental health services in residential child-care facilities.

Client Assistance Program

The CAP assists people with disabilities who are seeking or receiving services from the Colorado Division of Vocational Rehabilitation ("DVR").24 DVR provides assistance to people with disabilities where the disability is a barrier to employment and the individual can benefit from rehabilitation services. In the rehabilitation process, eligible individuals are entitled to an Individualized Plan for Employment, which will include an agreed-on vocational goal and services to reach that goal. The Legal Center helps such individuals with disabilities who may need assistance in becoming eligible for rehabilitation services, reaching agreement on their choice of a vocational goal, or obtaining specific services to meet that goal.

P&A System for Individual Rights

The PAIR program was established to protect the legal and human rights of individuals with disabilities who are not eligible for the CAP or the P&A Systems for people with developmental disabilities or with mental illness.25 Thus, through this program, The Legal Center serves individuals with other physical disabilities, including HIV and AIDS. The Legal Center has focused on housing discrimination and helping eligible persons in institutional settings and those living with HIV and AIDS.26

Older Americans Programs

The Long-Term Care Ombudsman program is a statewide network of advocates for residents in nursing homes and assisted living facilities. The program is administered by The Legal Center under a contract with the Colorado Department of Human Services, Division of Aging and Adult Services. The State Ombudsman is responsible for providing training, technical assistance, and certification to the Regional Ombudsmen who are volunteers for or employed by the sixteen Area Agencies on Aging in Colorado.27 The Regional Ombudsmen visit nursing homes and assisted living facilities in the state and help residents and family members resolve issues related to care and residents’ rights.

The Legal Assistance Developer is responsible for providing training and technical assistance to local legal providers who contract with the Area Agencies on Aging to provide legal assistance to older people. These local programs provide legal advice and representation to Colorado residents 60 years of age or older.

Generally, The Legal Center’s Older Americans programs do not provide direct representation. Instead, they offer support and technical assistance to either Regional Ombudsmen or legal services providers who provide that direct assistance.

Conclusion

The Legal Center promotes independence and inclusion for people with disabilities and older people, thereby helping individuals advocate for themselves as much as possible. Receiving technical assistance, whether through advocate/attorney consultation, written information, or educational seminars can help many people. Frequently, however, the legal issue is too complex or the individual has disabilities that impair effective self-advocacy so that direct representation is required. In 2002, The Legal Center directly represented 479 individuals. Additionally, The Legal Center provided legal information to 1,700 people and reached more than 1,600 through more than sixty educational seminars.

Unfortunately, The Legal Center does not have sufficient resources to represent all the individuals who need direct representation. The Legal Center can use volunteer assistance to help serve individuals who fall within its scope of services, but it also needs attorneys willing to accept referrals to assist individuals with disabilities with more generic legal problems. For example, The Legal Center has received pro bono assistance from the firms of Hoffman, Reilly, Pozner & Williamson LLP; McKenna & Cuneo; and Holland & Hart LLP.

Each year, the various programs prioritize the kinds of issues each individual program targets for direct representation. For information about those priorities or other assistance, please contact The Legal Center in Denver at (303) 722-0300 or (800) 288-1376. The Grand Junction office can be reached at (970) 241-2105 or (800) 531-2105. Also visit The Legal Center website at http://www.thelegalcenter.org.

NOTES

1. In its early years, it was called The Legal Center for Handicapped Citizens.

2. Now known as Arc of Colorado or Arc.

3. E.g., in Silverstein v. Sisters of Charity of Leavenworth Health Services Corp., 614 P.2d. 891 (1979), The Legal Center represented a respiratory therapist with a seizure disorder, successfully challenging a hospital’s hiring policy where the policy violated the Colorado Civil Rights Act, CRS § 24-34-801.

4. Ultimately, this goal led The Legal Center to file a lawsuit in Association for Retarded Citizens in Colorado v. Frazier, 517 F.Supp. 105 (D.Colo. 1981). This lawsuit resulted in allowing children who lived in State Home and Training Schools to receive educational services under the federal Education for All Handicapped Children Act, now the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.

5. Thus, The Legal Center does not provide direct representation in areas where there is expertise in the generic legal community, even though there may be a cost for those services. Moreover, The Legal Center does not provide representation where there are no-cost or low-cost services available, such as Colorado Legal Services, public defenders, or other court-appointed counsel. However, The Legal Center will provide technical assistance related to disability law to those other attorneys.

6. 42 U.S.C. § 15043. In 1975, persons with developmental disabilities often were warehoused in institutions without adequate services and were frequently abused and neglected. Congress passed this legislation to help remedy such situations.

7. 42 U.S.C. §§ 10801 et seq.

8. 29 U.S.C. § 794e.

9. 42 U.S.C. § 300d-53.

10. 42 U.S.C. § 1320b-21.

11. 29 U.S.C. § 3012.

12. 29 U.S.C. § 732.

13. 42 U.S.C §§ 3001 et seq. (Programs for Older Americans.)

14. 42 U.S.C. § 3027(a)(12). See also Corzine, "Long-Term Care Ombudsman Records: Confidentiality for the Frail and Vulnerable," 31 The Colorado Lawyer 73 (Nov. 2002).

15. 42 U.S.C. § 3027(a)(18).

16. 42 U.S.C. § 15002(8). A "developmental disability" is chronic, lifelong, and attributable to a mental or physical impairment that is evident before the age of 22.

17. 42 U.S.C. § 15043(a)(2)(B).

18. 42 U.S.C. § 15043(a)(2)(A)(i).

19. 20 U.S.C. §§ 1400 et seq.

20. These are facilities operated directly by the Department of Human Services to serve persons with developmental disabilities. Formerly called State Home and Training Schools, there are Regional Centers in Pueblo, Wheat Ridge, and Grand Junction.

21. 42 U.S.C. §§ 10801 to 10805.

22. 42 U.S.C. § 10804(d).

23. 42 U.S.C. §§ 10805(4) and 10806; see also Center for Legal Advocacy v. Earnest M.D., 320 F.3d 1107 (10th Cir., Feb. 25, 2003). In this Colorado case, a homeless person died while being treated for a cut forehead at Denver General Hospital’s emergency room. The PAIMI initiated an investigation of the death, but records access was blocked by the hospital’s claim that the records were drug and alcohol treatment records and thus confidential under the Public Health Services Act ("PHSA"), 42 U.S.C. § 290dd-2. The Tenth Circuit Court held that, as a matter of law, the emergency room did not qualify as a drug and alcohol treatment program under PHSA and, therefore, records were not protected. See also Center for Legal Advocacy v. Hammons, No. 01-1547 (10th Cir., March 27, 2003) (PAIMI is entitled to access to peer review and quality assurance records in connection with investigating suicides of four patients at the Colorado Mental Health Institute in Pueblo).

24. 29 U.S.C. § 732.

25. 29 U.S.C. § 794e.

26. The Legal Center has received some private grants and donations specifically to serve persons with HIV or AIDS and has established an HIV/AIDS Program within the PAIR System.

27. Area Agencies on Aging are designated by Aging and Adult Services within the Colorado Department of Human Services pursuant to Title III of the Older Americans Act, supra, note 13.

© 2003 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2003.


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