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 641 E. 112th Avenue - Northglenn, CO 80233 circle  Phone: (303) 428-0310
E-mail: info@arcadams.org circle Fax: (303) 650-9070

Rights!

A person receiving services and supports under the Colorado Developmental Disabilities System has the same rights and responsibilities guaranteed to all individuals under federal and state constitutions and federal and state laws. These also include the rights found in Colorado Revised Statutes 27-10.5-112 through 123 and 128.

27-10.5-113, Right to individualized plan or individualized family service plan. (1) Each person receiving services shall have an individualized plan, an individualized family service plan, or a similar plan specified by the department that qualifies as an individualized plan, that is developed by the person's interdisciplinary team. The individualized family service plan for a child with disabilities from birth through two years of age shall be developed in compliance with part 7 of this article.

(2) Pursuant to section 27-10.5-106, the individualized plan for each person who receives services or supports shall be reviewed at least annually and modified as necessary or appropriate; except that an individualized family service plan for a child with disabilities from birth through two years of age shall be reviewed as required pursuant to part 7 of this article. A review shall consist of, but is not limited to, the determination by the interdisciplinary team as to whether the needs of the person receiving services or supports are accurately reflected in the plan, whether the services and supports provided pursuant to the plan are appropriate to meet the person's needs, and what actions are necessary for the plan to be achieved.

27-10.5-114, Right to medical care and treatment.

(1) Each person receiving services shall have access to appropriate dental and medical care and treatment for any physical ailments and for the prevention of any illness or disability.

(2) No medication for which a prescription is required shall be administered without the written order of a physician. A physician shall conduct a review of all prescriptions and other orders for medications in order to determine the appropriateness of the person's medication regimen annually, or more often, if required by law.

(3) All service agencies which administer medication shall require that notation of the medication of a person receiving services be kept in the person's medical records. All medications shall be administered pursuant to part 3 of article 1.5 of title 25, C.R.S.

(4) Persons receiving services shall have a right to be free from unnecessary or excessive medication. The service agency's records shall state the effects of psychoactive medication if administered to the person receiving services. When dosages of such are changed or other psychoactive medications are prescribed, a notation shall be made in such person's record concerning the effect of the new medication or new dosages and the behavior changes, if any, which occur

(5) Medication shall not be used for the convenience of the staff, for punishment, as a substitute for a treatment program, or in quantities that interfere with the treatment program of the person receiving services.

(6) Only appropriately trained staff shall be allowed to administer drugs.

(6.5) The executive director has the power to direct the administration or monitoring of medications to persons being cared for and treated in centers for the developmentally disabled pursuant to section 25-1.5-301 (2) (h), C.R.S.

(7) No person receiving services shall be subjected to any experimental research or hazardous treatment procedures without the consent of such person, if the person is over eighteen years of age and is able to give such consent, or of the person's parent, if the person is under eighteen years of age, or of the person's legal guardian. Such consent may be given only after consultation with the interdisciplinary team and a developmental disabilities professional not affiliated with the facility or community residential home in which the person receiving services resides. However, no such person of any age shall be subjected to experimental research or hazardous treatment procedures if said person implicitly or expressly objects to such procedure.

(8) No person receiving services shall have any organs removed for the purpose of transplantation without the consent of such person, if the person is over eighteen years of age and is able to give such consent. If the person's ability to give consent to the medical procedure is challenged by the physician, the same procedures as those set forth in section 27-10.5-129 shall be followed. Consent for the removal of organs for transplantation may be given by the parents of a person receiving services, if the person is under eighteen years of age, or by the person's legal guardian. Such consent may be given only after consultation with the interdisciplinary team and a developmental disabilities professional not affiliated with the facility or community residential home in which the person receiving services resides. However, no person receiving services of any age shall be a donor of an organ if the person implicitly or expressly objects to such procedure.

(9) (a) As used in subsections (7) and (8) of this section, consent also shall require that the person whose consent is sought has been adequately and effectively informed as to the:

(I) Method of experimental research, hazardous treatment, or transplantation;

(II) Nature and consequence of such procedures; and

(III) Risks, benefits, and purposes of such procedures.

(b) The consent of any person may be revoked at any time.

(10) Subsections (7), (8), and (9) of this section shall not apply when a physician renders emergency medical care or treatment to any resident.

27-10.5-115, Right to humane care and treatment.

(1) Corporal punishment of persons with a developmental disability shall not be permitted.

(2) All service agencies shall prohibit mistreatment, exploitation, neglect, or abuse in any form of any person receiving services.

(3) Service agencies shall provide every person receiving services with a humane physical environment.

(4) Each person receiving services shall be attended to by qualified staff in numbers sufficient to provide appropriate services and supports.

(5) Seclusion, defined as the placement of a person receiving services alone in a closed room for the purpose of punishment, is prohibited.

(6) "Time out" procedures, defined as separation from other persons receiving services and group activities, may be employed under close and direct professional supervision, as defined by the department, and only as a technique in behavior-shaping programs. Behavior-shaping programs utilizing a "time out" procedure shall be implemented only when it incorporates a positive approach designed to result in the acquisition of adaptive behaviors. Such behavior programs shall only be implemented following the completion of a comprehensive functional analysis, when alternative nonrestrictive procedures have been proven to be ineffective, and only with the informed consent of the individual, parents, or legal guardian. Such behavior programs shall be implemented only following the review and approval process defined in rules and regulations. Behavior development programs shall be developed in conjunction with the interdisciplinary team and implemented only following review by the human rights committee. Behavior development programs involving the use of the procedure in a "time out room" are prohibited.

(7) Behavior development programs involving the use of aversive or noxious stimuli are prohibited.

(8) Physical restraint, defined as the use of manual methods intended to restrict the movement or normal functioning of a portion of an individual's body through direct contact by staff, shall be employed only when necessary to protect the person receiving services from injury to self or others. Physical restraint shall not be employed as punishment, for the convenience of staff, or as a substitute for a program of services and supports. Physical guidance or prompting techniques of short duration such as those employed in training techniques are not considered physical restraint. Physical restraint shall be applied only if alternative techniques have failed and only if such restraint imposed the least possible restriction consistent with its purpose. If physical restraint is used in an emergency or on a continuing basis its use shall be reviewed by the interdisciplinary team and the human rights committee in accordance with the rules and regulations of the department.

(9) The use of a mechanical restraint, defined as the use of mechanical devices intended to restrict the movement or normal functioning of a portion of an individual's body, is subject to special review and oversight, as defined in rules and regulations. Use of mechanical restraints shall be applied only in an emergency if alternative techniques have failed and in conjunction with a behavior development program. Mechanical restraints shall be designed and used so as not to cause physical injury to the person receiving services and so as to cause the least possible discomfort. The use of mechanical restraints shall be reviewed by the human rights committee. The use of posey vests, straight jackets, ankle and wrist restraints, and other devices defined in rules and regulations is prohibited.

(10) A record shall be maintained of all physical injuries to any person receiving services, all incidents of mistreatment, exploitation, neglect, or abuse, and all uses of physical or mechanical restraint. All records shall be subject to review by the human rights committee.

(11) Behavior development programs shall be supervised by a developmental disabilities professional having specific knowledge and skills to develop and implement positive behavioral intervention strategies.

27-10.5-116, Right to religious belief, practice, and worship.

No person receiving services shall be required to perform any act or be subject to any procedure whatsoever which is contrary to the person's religious belief, and each such person shall have the right to practice such religious belief and be accorded the opportunity for religious worship. Provisions for religious worship shall be made available to all persons receiving services on a nondiscriminatory basis. No such person shall be coerced into engaging in or refraining from any religious activity, practice, or belief.

27-10.5-117, Rights to communications and visits.

(1) Each person receiving services has the right to communicate freely and privately with others of the person's own choosing.

(2) Each person receiving services has the right to receive and send sealed, unopened correspondence. No such person's incoming or outgoing correspondence shall be opened, delayed, held, or censored by any person.

(3) Each person receiving services shall have the right to receive and send packages. No such person's outgoing packages shall be opened, delayed, held, or censored by any person.

(4) Repealed.

(5) Each person receiving services shall have reasonable access to telephones, both to make and to receive calls in privacy, and shall be afforded reasonable and frequent opportunities to meet with visitors.

(6) All service agencies shall ensure that persons receiving services have suitable opportunities for interaction with persons of their choice. Nothing in this section will limit the protections provided under article 3.1 of title 26, C.R.S.

(7) Repealed.

27-10.5-118, Right to fair employment practices.

(1) No person receiving services shall be required to perform labor; except that persons receiving services may voluntarily engage in such labor if the labor is compensated in accordance with applicable minimum wage laws.

(2) No person receiving services shall be involved in the physical care, care and treatment, training, or supervision of other persons receiving services unless such person has volunteered, has been specifically trained in the necessary skills, and has the judgment required for such activities, is adequately supervised, and is reimbursed in accordance with the applicable minimum wage laws.

(3) Each person receiving services may perform vocational training tasks, subject to a presumption that an assignment longer than three months to any task is not a training task, if the specific task or any change in task assignment is an integral part of such person's individualized plan. If such person performs vocational training tasks for which the service agency is receiving compensation from any outside source, the person shall be compensated in accordance with the applicable minimum wage laws.

(4) Each person receiving services may voluntarily engage in labor for which the service agency would otherwise have to pay an employee if the specific labor or any change in labor is an integral part of such person's individualized plan and the person is compensated in accordance with the applicable minimum wage laws.

(5) Each person receiving services may be required to perform tasks of a personal housekeeping nature or tasks oriented to improving community living skills in accordance with the person's individualized plan.

(6) Payment to persons receiving services pursuant to this section shall not be collected by the service agency to offset the costs of providing services and supports to such person.

27-10.5-119, Right to vote.

Each person receiving services who is eligible to vote according to law has the right to vote in all primary and general elections. As necessary, all service agencies shall assist such persons to register to vote, to obtain applications for mail-in ballots and to obtain mail-in ballots, to comply with other requirements which are prerequisite to voting, and to vote.

27-10.5-120, Records and confidentiality of information pertaining to eligible persons or their families.

(1) A record for each person receiving services shall be diligently maintained by the community centered board. The record shall include, but not be limited to, information pertaining to the determination of eligibility for services and the individualized plan. The record shall not be a public record.

(2) Except as otherwise provided by law, all information obtained and any records prepared in the course of determining eligibility or providing services and supports pursuant to this article shall be confidential and subject to the evidentiary privileges established by law. The disclosure of this information and these records in any manner shall be permitted only:

(a) To the applicant or person receiving services, to the parents of a minor, such person's legal guardian, and to any person authorized by the above named person;

(b) In communications between qualified professional personnel, including the board of directors of community centered boards and service agencies providing services to persons with developmental disabilities, to the extent necessary for the acquisition, provision, oversight, or referral of services and supports;

(c) (Deleted by amendment, L. 92, p. 1380, § 21, effective July 1, 1992.)

(d) To the extent necessary to make claims for aid, insurance, or medical assistance to which a person receiving services may be entitled, or to access services and supports pursuant to the individualized plan;

(e) For the purposes of evaluation, gathering statistics, or research when no identifying information concerning an individual person or family is disclosed. Identifying information is information which could reasonably be expected to identify a specific individual and includes, but is not limited to, name, address, telephone number, social security number, medicaid number, household number, and photograph.

(f) To the court when necessary to implement the provisions of this article;

(g) To persons authorized by an order of court issued after a hearing, notice of which was given to the person, parents or legal guardian, where appropriate, and the custodian of the information;

(h) To the agency designated pursuant to 42 U.S.C. sec. 6012 as the protection and advocacy system for Colorado when:

(I) A complaint has been received by the protection and advocacy system from or on behalf of a person with a developmental disability; and

(II) Such person does not have a legal guardian or the state or the designee of the state is the legal guardian of such person;

(i) To the department or its designees as deemed necessary by the executive director to fulfill the duties prescribed by this article.

(3) Nothing in this section shall be construed to limit access by a person receiving services to such person's records.

(4) Nothing in this section shall be construed to interfere with the protections afforded to a person under the federal "Health Insurance Portability and Accountability Act of 1996", 42 U.S.C. sec. 1320d, and the federal "Family Education Rights and Privacy Act of 1974", 20 U.S.C. sec. 1232g.

27-10.5-121, Right to personal property.

(1) Each person receiving services has the right to the possession and use of such person's own clothing and personal effects. If the service agency holds any of such person's personal effects for any reason, such retention shall be promptly recorded in such person's record and the reason for retention shall also be recorded.

(2) Upon the request of a person receiving services, a service agency may hold money or funds belonging to the person receiving services, received by such person, or received by the service agency for such person. All such money or funds shall be held by the service agency as trustee for the person receiving services. Upon request, an accounting shall be rendered by the service agency.

(3) Upon request, a person receiving services shall be entitled to receive reasonable amounts of such person's money or funds held in trust.

27-10.5-122, Right to influence policy.

The persons receiving services of a service agency shall be entitled to establish a committee to hear the views and represent the interests of all such persons served by the agency and to attempt to influence the policies of the agency to the extent that they influence provision of services and supports.

27-10.5-123, Right to notification.

Each person receiving services shall have the right to read or have explained, in each person's or family's native language, any rules or regulations adopted by the service agency and pertaining to such person's activities.

27-10.5-128, Sterilization rights.

(1) It is the intent of the general assembly that the procedures set forth in the following subsections be utilized when sterilization is being considered for the primary purpose of rendering the individual incapable of reproduction.

(2) Any person with a developmental disability over eighteen years of age who has given informed consent has the right to be sterilized, subject to the following:

(a) Prior to the procedure, competency to give informed consent and assurance that such consent is voluntarily and freely given shall be evaluated by the following:

(I) A psychiatrist, psychologist, or physician who does not provide services or supports to the person and who has consulted with and interviewed the person with a developmental disability; and

(II) A developmental disabilities professional who does not provide services or supports in which said person participates, and who has consulted with and interviewed the person with a developmental disability.

(b) The professionals who conducted the evaluation pursuant to paragraph (a) of this subsection (2) shall consult with the physician who is to perform the operation concerning each professional's opinion in regard to the informed consent of the person requesting the sterilization.

(3) Any person with a developmental disability whose capacity to give an informed consent is challenged by the developmental disabilities professional or the physician may file a petition with the court to declare competency to give consent pursuant to the procedures set forth in section 27-10.5-129.

(4) No person with a developmental disability who is over eighteen years of age and has the capacity to participate in the decision-making process regarding sterilization shall be sterilized in the absence of the person's informed consent. No minor may be sterilized without a court order pursuant to section 27-10.5-130.

(5) Sterilization conducted pursuant to this section shall be legal. Consent given by any person pursuant to subsection (2) of this section shall not be revocable after sterilization, and no person shall be liable for acting pursuant to such consent.

: Entire article added, p. 918, § 1, effective July 1. L. 85: IP(1), (1)(b), and (2) amended, p. 1007, § 27, effective July 1. L. 92: Entire section R&RE, p. 1382, § 26, effective July 1.

ANNOTATION

Law reviews. For article, "Involuntary Sterilization of Retarded Minors in Colorado", see 11 Colo. Law. 421 (1982). For article, "Cruzan: The Right to Die, Parts I and II", see 19 Colo. Law. 2055 and 2237 (1990). For article, "In re Romero: Sterilization and Competency", see 68 Den. U. L. Rev. 105 (1991).

Constitutional rights extend to incompetents. The constitutionally-protected procreative alternatives available to competent adults must also extend where possible to individuals who are not mentally competent to make the choice for themselves. In re A.W., 637 P.2d 366 (Colo. 1981).

Sterilization sections not limited to competent adults. The general assembly did not intend §§ 27-10.5-128 through 27-10.5-132 to limit sterilizations to competently consenting adults. In re A.W., 637 P.2d 366 (Colo. 1981).

Court's power to act in absence of statutory authorization. A district court acting in its probate capacity has the power in the absence of statutory authorization to act on a petition for sterilization of a mentally retarded minor. In re A.W., 637 P.2d 366 (Colo. 1981).

A court's inherent parens patriae jurisdiction over incompetents may extend to decisions involving irrevocable consequences for the incompetent individual. In re A.W., 637 P.2d 366 (Colo. 1981).

Since statutory provisions concerning sterilization of mentally retarded persons do not address the issue of sterilization of a minor, it is within the district court's inherent authority to consider a petition for sterilization of a minor, and, in the absence of legislative pronouncement, it is proper and necessary for the supreme court to promulgate standards for determining the circumstances under which such a procedure may be performed. In re A.W., 637 P.2d 366 (Colo. 1981).

Preliminary determinations court must make. In considering a petition to sterilize a mentally retarded minor, the district court must make the following preliminary determinations. First, while the mentally retarded person need not testify or be present at the proceedings if the person's presence would serve no useful purpose, the trial judge should talk with the person and observe the person's physical and mental condition. The wishes of the person, although not conclusive, are relevant, and a strong indication that the person does not wish to be sterilized must weigh heavily against authorizing the procedure. Second, the district court must determine that the person's capacity to make a decision about sterilization is unlikely to improve in the future. Third, the person for whom sterilization is requested must be proven capable of reproduction. In re A.W., 637 P.2d 366 (Colo. 1981).

Sterilization of mentally retarded minor must be medically necessary. Once a district court determines preliminary matters relating to a petition to sterilize a mentally retarded minor, it must find by clear and convincing evidence that the sterilization is medically essential. A sterilization is medically essential if clearly necessary, in the opinion of experts, to preserve the life or physical or mental health of the mentally retarded person. In re A.W., 637 P.2d 366 (Colo. 1981).

For legislative history of provisions relating to sterilization, see In re A.W., 637 P.2d 366 (Colo. 1981).

 Responsibilities!

A person receiving services and supports under the Colorado Developmental Disabilities System has the same rights and responsibilities guaranteed to all individuals under federal and state constitutions and federal and state laws.

A person receiving Home and Community Based Services (HCBS) such as Comprehensive Services or Supported Living Services, also has the following responsibilities:

  • Give accurate information to my case manager regarding my ability to complete activities of daily living.
  • Assist in promoting my own independence.
  • Cooperate with my providers and case management agency.
  • Notify my case manager of changes in my support system, medical condition and living situation including any hospitalizations, emergency room admissions, nursing home placements, or Intermediate Care Facility for the Mentally Retarded (ICF/MR) placements.
  • Notify my case manager if I have not received HCBS supports for 30 days or 1 month
  • Notify my case manager of any changes in my care needs and/or problems with services.
  • Notify my case manager of any changes that may affect Medicaid eligibility.