May 26, 2016
People with disabilities and older people being exploited, languishing in jails and hospitals, and being wrongly charged with crimes for misunderstanding the law – these are just a few of the issues Disability Law Colorado worked on this legislative session. Continue reading for additional information on the legislative work we did this year.
Disability Law Colorado’s 2016 Legislative Wrap-Up
Dear Supporters of Disability Law Colorado:
This legislative session was extremely busy for us as there were numerous bills introduced with the potential to impact individuals with disabilities and older people in both positive and negative ways. Without a lobbyist or any one individual to handle legislative issues, the entire team at Disability Law Colorado played a role in ensuring that the voices of people with disabilities and older people were heard by legislators this year. Below is a summary of just a sample of the work we did this session. This important work could not be done without your support and backing, so we thank you for continuing to believe in our mission and the work we do on behalf of people with disabilities and older people.
House Bills
HB16-1101: Concerning Medical Decisions for Unrepresented Patients
HB16-1101 would allow for the appointment of a proxy decision-maker for persons who lack decisional capacity to consent to or refuse medical treatment for whom there was no family or interested persons to act on his or her behalf. The decision-maker could be a physician, but not the attending physician, and HB16-1101 would require that individual to seek an independent assessment of decisional capacity and to consult with the facility’s medical ethics committee prior to making a decision. HB16-1101 arose out of the inability of Colorado to adopt a Public Guardianship Program to meet the needs of persons who are indigent, incapacitated, and isolated. HB16-1101 was amended several times, including the addition of provisions that strengthened the rights of the patient and brought the statute into conformity with the provisions of the “Living Will” statute that requires an independent concurring opinion from another physician when a decision to withhold or withdraw end-of-life treatment is at issue. HB16-1101 passed both houses, with amendments, and was signed by the governor on May 18, 2016. We supported HB16-1101, particularly after the additional safeguards were added to it in the amendments.
HB16-1111: Same Day Voter Registration with I.D.
We opposed HB 16-1111 because it creates a barrier to the election process for people with disabilities who do not have a photo I.D. HB16-1111 would require anyone who registers on or immediately prior to Election Day to provide a photo I.D. Under current state law, a registered voter can show an I.D. that does not contain a photo in order to be able to cast their vote. HB16-111 would eliminate the ability to use proof of identity that does not have a photo, such as utility bills and bank statements. We testified against HB16-1111 and it was postponed indefinitely.
HB16-1201: Documentation Requirements for Companion Animals
We opposed HB16-1201 because it limited an assistance animal to only providing therapeutic benefits and only to people with mental or psychiatric disabilities. Federal law provides that an assistance animal can provide broader benefits than just those that are therapeutic and that people with disabilities other than those that are mental or psychiatric in nature may be entitled to an assistance animal as a reasonable accommodation. Since we believed HB16-1201 was too narrow and therefore in violation of federal law, we testified as the sole opposition to the bill when it was in the House Committee on Health, Insurance, & Environment. HB16-1201 did not pass this Committee and was therefore postponed indefinitely.
HB16-1300: Prepaid Postage on Mail Ballot
We supported HB16-1300 since a prepaid ballot would eliminate voter confusion over how much postage should go on a ballot. Every election has a different amount since the weight of the ballot is never the same. Also, HB16-1300 would eliminate the travel barrier for voters with disabilities who cannot drive or who do not have access to public transportation since the voter would simply put the ballot in their personal mail box for the postal carrier to deliver. Eliminating the postage for a person with travel barriers provides much greater access to the election process, allowing for the equal participation of voters with disabilities. We testified in support of HB16-1300 for these reasons. Unfortunately, HB 16-1300 was postponed indefinitely.
HB16-1308: Intentional Misrepresentation of a Service Animal
HB16-1308 would have made it a crime to take a non-service animal into a public business. We strongly opposed HB16-1308 because we believed it would have unintended consequences that would harm individuals with disabilities. Specifically, we were concerned that individuals who have legitimate companion or assistance animals, who are allowed in housing as a reasonable accommodation for individuals with disabilities, would be charged under this new criminal law just because that person did not understand that their assistance animal was not a service animal that could enter public businesses. We reached out to the bill’s sponsors asking that they lower the fine, include a notice provision, and provide for education regarding the laws that affect individuals with disabilities who use the different classifications of animals for their disability. We testified against the bill when it was in front of the House Judiciary Committee, and since the bill’s sponsors were not willing to include provisions for notice and education, we again testified in opposition of the bill when it was in front of the Senate Judiciary Committee, where it was postponed indefinitely.
HB16-1328: Use of Restraint & Seclusion in the Division of Youth Corrections (“DYC”)
Along with the American Civil Liberties Union of Colorado and the Colorado Juvenile Defenders Center, we testified in support of HB16-1328 at the committee level, primarily because of its limitations on the use of seclusion, its documentation requirements, and its training and reporting requirements within the Division of Youth Corrections. Testimony at the hearings established that despite our joint investigation that uncovered abuses in DYC’s seclusion practices and a director’s system-wide letter and policy change banning the use of administrative seclusion, abuses remained within DYC supporting the need for the legislation. All of the bill’s supporters believed that HB16-1328’s codification of portions of DYC’s seclusion policy should ensure that the protections remain as DYC administrators change over time. HB16-1328 is currently awaiting signature by the governor.
HB16-1426: Intentional Misrepresentation of Entitlement to an Assistance Animal
HB16-1426 would make it a crime to misrepresent an animal as a service or assistance animal. We initially opposed HB16-1426, but worked faithfully with the bill’s sponsors to modify the language of the bill in such a way as to alleviate our concerns so that we were able to retract our opposition. After meetings and numerous communications with the bill’s sponsors and other stakeholders, HB16-1426 was eventually modified to include a provision that individuals must be provided notice before being charged, decreased fine amounts, added an educational component, and delayed the implementation date to ensure time for public awareness and educational outreach. HB16-1426 passed through both Houses and is currently awaiting signature by the Governor. In addition to keeping an eye of the effects of this legislation should it be signed, we fully intend to expand our efforts to educate the public about this new law and the rights of individuals with disabilities who have service and assistance animals.
HB16-1454: Presidential Primary Election
We supported HB 16-1454 because it would reinstate Colorado’s presidential primary election, providing a more accessible way for people with disabilities to participate in the choosing of their party’s candidate for president. As it stands now, the caucus system has proven to be extremely inaccessible for people with disabilities based on several different reasons. The timing of the caucus is in the evening, which has been difficult for people who are elderly and for those who have impairments that make it difficult to travel in the evening. The location of the caucus is not always planned with accessibility in mind. For example, in this year’s caucus, there were many complaints about limited space and lack of accommodations. This would not be a problem with a primary election since the Secretary of State’s office is responsible for ensuring that all voting service and polling centers are ADA accessible and have accommodations in place for those who make requests. Unfortunately, HB 16-1454 was postponed indefinitely.
Senate Bills
SB16-026: Personal Rights of Protected Persons
SB16-026 would have created a right by third parties to visit a person under a guardianship if the Guardian refused access to the Ward, and was adapted from similar legislation in California. The Colorado Bar Association opposed SB16-026 because: (1) it did not conform to Colorado probate law terminology; (2) it did not address the ward’s rights to visitation but rather that of persons who wished to visit the ward; (3) it had a huge fiscal note (more than $500,000) that would affect the Judicial Branch’s budget; and (4) there are other ways to address these concerns through the present probate system. SB16-026 passed out of the Senate, but was postponed indefinitely in the House. We did not actively support or oppose SB16-026, but felt that more reasonable – and less costly –alternatives were available under current Colorado law.
SB16-038: Transparency of Community-Centered Boards (“CCBs”)
SB16-038 as originally introduced would have made CCBs subject to the Colorado Open Records Act (“CORA”). CCBs provide services to individuals with intellectual and developmental disabilities. Following extensive stakeholder meetings with House sponsors, the bill was amended to require that CCBs be subject to performance audits undertaken by the State Auditor under the requirements of “Colorado Local Government Audit Law.” SB16-038 also expanded public disclosure of the administration and operations of the CCBs. For example, CCBs are required to post agendas for board meetings, minutes and supporting documents as well as tax form 990 filed with the federal Internal Revenue Service on their websites. Upon reasonable request, CCBs must also provide their annual budgets, a summary of all state revenues and expenditures, and a description of financial policies and procedures. Contracts with the Departments of Health Care Policy and Financing and Human Services must also be posted on their web sites. We supported SB16-038 initially and as amended and participated in stakeholder meetings. The amended version of SB16-038 was approved by both houses and sent to the Governor.
SB16-074: Mail Ballot Opt Out
We opposed SB16-074 since it would allow an elector to opt out of receiving a mail ballot unless they chose to opt back in through the Secretary of State’s process, which the Secretary of State would establish by rule. If passed, SB16-074 would create confusion among voters who might have forgotten that they were on the opt out list. Mail ballots provide voter accessibility for many people with disabilities, so the risk of losing this guaranteed method of voting is too great to justify having the option to opt out of receiving the ballot by mail. In addition, mail ballots serve as reminders to vote and as sample ballots for those who want to vote in person. We therefore testified against this bill, which was postponed indefinitely.
SB16-077: Employment First for People with Disabilities
SB16-077 would require the heads of several state departments to develop policies that would increase competitive integrated employment for people with disabilities. We attended a stakeholder meeting regarding SB16-077 and supported it throughout the session. SB16-077 passed both houses and has been sent to the governor for his signature.
SB16-083: Government Issued Photo I.D. For Voting
We opposed SB16-083 because it would have created a barrier to the election process for people with disabilities who do not have a photo I.D. and who do not have access to the documents necessary to obtain a government issued photo I.D. from the Department of Motor Vehicles. SB16-083 would remove all forms of I.D. that do not contain a photo, specifically a government-issued photo, from the list of forms of documentation used for voting purposes. We testified against SB16-083, and it was postponed indefinitely.
SB16-131: Overseeing Fiduciaries’ Management of Assets
SB16-131 provided for revisions of the general Probate Oversight statute [C.R.S. § 15-10-503] to allow for an emergency hearing to address the conduct of fiduciaries and provide for removal of a fiduciary upon a showing of cause, and established the right of an adult ward to be represented by an attorney of his or her choosing post-adjudication. SB16-131 passed both Houses, with amendments, and was sent to the Governor for his signature. We supported SB16-131 and were particularly interested in the post-adjudication right to counsel.
SB16-169: Amendments to the 72-Hour Emergency Mental Health Procedure
We opposed SB16-169 at the committee level by testifying in opposition to the bill, participating in stakeholder meetings, and by voicing our concerns to a Senator. Our primary issue with SB16-169 was the extension of time from 24-hours to 48-hours that an individual in crisis could be held in a county jail without effective treatment and without due process protections that would allow the detainee to challenge their mental health hold. Although SB16-169 was amended several times, we could not support the bill; however, SB16-169 passed and is awaiting the Governor’s signature. We continued our opposition to SB16-169 by sending a letter to the Governor asking him to veto SB16-169. Our letter conveys our major concerns, specifically: (1) jails are no place to treat individuals in mental health crisis and extending the amount of time an individual in crisis may be held in jail endangers the health, safety, and liberty of Coloradans; (2) SB16-169 provides no due process protections, which we believe violates the 14th Amendment to the U.S. Constitution; and (3) using jails to warehouse people in mental health crisis (even for one more day) is no solution to the serious deficiencies in Colorado’s emergency mental health system.
SB16-199: Concerning Program of All-Inclusive Care for the Elderly (“PACE”)
SB16-199 was introduced in reaction to the conversion of Innovage, a PACE provider, from a nonprofit to a for profit status in accordance with a plan approved by the state Attorney General’s office. SB16-199 would impact the PACE program, which delivers medical and non-medical services for people age 55 and over who receive both Medicare and Medicaid and have established functional deficits, making them eligible for a nursing home level of care. PACE has a goal to serve this population not in a facility, but at home with appropriate supports from the PACE program. SB16-199 is comprised of two separate and distinct sections. The first establishes an Upper Payment Limit (“UPL”) methodology to be used within the capitated rate appropriated from the General Fund for the program. The second establishes a State PACE Ombudsman within the State Long-Term Care Ombudsman Program. It also creates a stakeholder process to meet for a year to design a statewide system to best meet the needs of PACE participants. We attended most of the hearings and testified at two of the hearings regarding the provisions, training, and services of the current system. SB16-199 is currently awaiting the Governor’s signature.
We thank you again for your continuing support. If you would like to review any of our written position statements, please click HERE or contact our offices to be directed to the staff person who worked on the bill. If you would like to donate to Disability Law Colorado to support our work, please click here or contact Julie Busby at [email protected] or (303) 722-0300.
