The Developmentally Disabled in Colorado
| Publication year | 1975 |
| Pages | 2315 |
| Citation | Vol. 4 No. 12 Pg. 2315 |
1975, December, Pg. 2315. The Developmentally Disabled in Colorado
Colorado's laws affecting the mentally retarded and other handicapped persons are now among the most progressive in the nation. In 1975, the Colorado legislature passed Senate Bill 135, creating Article 10.5 of Title 27, Colorado Revised Statutes 1973, entitled "Care and Treatment of the Developmentally Disabled" (the Act). Governor Lamm signed the bill into law on July 14, 1975, concluding two years of effort by numerous Colorado groups to reform the state's treatment of the develop-mentally disabled.
In the summer of 1973, a group of law students from the University of Denver College of Law identified a number of serious problems faced by the mentally retarded. These included dehumanizing conditions in large institutions unable to provide appropriate care, a serious lack of community placement options which could provide a more normal living situation, inadequate control of the care provided in some community facilities, improper reliance on resident labor at state institutions without proper pay, and improper use of birth control techniques.
During 1974 the legislature heard again of the numerous problems facing the mentally retarded in Colorado, this time from the Colorado Association for Retarded Citizens and various state department heads. Several legislators and persons working with the mentally retarded toured other states for ideas on how to improve Colorado's treatment programs. In late summer of 1974, the Colorado Bar Association's Subcommittee on Mental Retardation began drafting legislation to correct the numerous problems previously identified.
The activity in Colorado occurred while important legal developments were taking place around the country. In 1971 and 1972, a Federal District Court in Alabama ruled that the United States Constitution guaranteed a right to treatment to those persons residing involuntarily in state-operated facilities for the mentally ill and mentally retarded.(fn1) This landmark decision set out objective standards of treatment that are constitutionally required,(fn2) many of which have been incorporated into the new Colorado statute.(fn3) Other cases decided in various federal courts established constitutional and statutory protection for the mentally retarded concerning such things as adequate compensation for labor performed by residents in institutions,(fn4) the right to receive treatment in the least restrictive alternative facility,(fn5) the right of residents to refuse hazardous or experimental treatment,(fn6) and the right to receive a public education.(fn7) The Act incorporates many of these and other care and treatment standards, thus avoiding time-consuming and expensive litigation to establish the rights too long withheld from
the mentally retarded in Colorado.
Numerous groups in addition to the Colorado Bar Association participated in the drafting of the Act and supported its passage in the General Assembly. The Colorado Association for Retarded Citizens, the Colorado Epilepsy Association, and the Governor's Council on Developmental Disabilities in Region A all publicly endorsed the Act. The Colorado Bar Association was particularly interested in the bill's passage because of the Mental Health Act adopted in 1973 which drastically reformed the state's treatment of the mentally ill.(fn8) This statute specifically excluded the mentally retarded, an exclusion made to allow time to draft a separate bill to cover their unique needs and problems. Thus, the new Article 10.5 for the Care and Treatment of the Developmentally Disabled should be read in light of Article 10 of Title 27, including the amendments to the Mental Health Act contained in the new Act.
Six basic concepts underlie the provisions of the Act:
1) adequate care and treatment to meet the individual needs of developmentally disabled persons within the concepts of "normalization" and deinstitutionalization;
2) similar treatment of all persons with developmental disabilities regardless of the type of facility in which they reside;
3) completely voluntary admission of developmentally disabled persons to facilities;
4) statutorily guaranteed rights for all developmentally disabled persons;
5) a limited intrusion on the ability of counties and municipalities to exclude group homes from residential neighborhoods; and
6) special procedures to protect mentally retarded persons who are to be sterilized.
The legislative declaration of purpose(fn9) clearly establishes the right of each developmentally disabled person to receive "such care and treatment as is suited to his needs"(fn10) in a manner consistent with the person's individual "privacy, dignity, rights, and privileges."(fn11) This statutory purpose is based on the concept of "normalization," which has been defined as "utilization of means which are as culturally normative as possible, in order to establish and/or maintain personal behaviors and characteristics which are as culturally normative as possible."(fn12)
The United Nations General Assembly adopted the Declaration on the Rights of Mentally Retarded Persons in 1972. In the Declaration, the mentally retarded person is declared to have the rights to: (1) the maximum degree of feasibility, the same rights as other human beings; (2) proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential; (3) institutional care (if necessary) provided in surroundings and other circumstances as close as possible to those of normal life; and (4) protection from exploitation, abuse and degrading treatment.
The definition of "care and treatment" in the Colorado statute is based on the philosophy set forth by the Declaration.(fn13) The new statute also includes an affirmative right to receive care and treatment,(fn14) which includes the right to "live as normally as possible."(fn15)
The new statute is not limited in coverage to the mentally retarded; it also covers persons with cerebral palsy, epilepsy, autism, or other neurological impairments constituting a continual, substantial handicap.(fn16) Similarly, the statute is not limited to persons residing in state-operated institutions. It covers all facilities in the state, whether privately or publicly operated, where a developmentally disabled person resides or seeks admission for purposes of care and treatment.(fn17) Only two exceptions were made to this broad coverage. The sterilization provisions(fn18) cover only mentally
retarded persons,(fn19) and a "facility" does not include a place where a developmentally disabled person resides with his own family, spouse, or legal guardian.(fn20)
Court-ordered adjudications of incompetency to commit a developmentally disabled person to an institution are no longer allowed in Colorado. The Mental Health Act passed two years ago abolished all adjudication procedures in Colorado as of July 1, 1975, but specifically excluded the "mentally deficient" (the old term for the developmentally disabled) from its provisions restoring to competency all mentally ill persons previously adjudicated.
Thus, courts could no longer adjudicate as incompetent either the mentally ill or the developmentally disabled.(fn21) However, the Act deletes the exclusion of the mentally deficient from the restoration provisions of the Mental Health Act(fn22) and restores all persons previously adjudicated mentally deficient to competency as of July 1, 1976.(fn23) Section 136 of the Act provides a special procedure to restore developmentally disabled persons to competency between July 1, 1975 and July 1, 1976, when the blanket restoration takes effect.
The new statute replaces the old adjudication procedure with a system based on contract. A facility may enter into a contractual agreement with a developmentally disabled person or his representative for short-term or long-term admission to the facility.(fn24) All agreements for admission must be in writing and a copy given to the person requesting the admission. Every agreement must include...
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