"As long as the world shall last there will be wrongs, and if no man objected
and no man rebelled, those wrongs would last forever
~Clarence Darrow

Monday, April 30, 2012

"... To Each According to His [or Her] Need"

Show of hands, please.

How many of us have had dealings with any of the programs under the Province's Services for Persons with Disabilities Program?

It might have been Direct Family Benefits (formerly known as In Home Support), Alternative Family Support or Independent Living (formerly known as Supported Apartment). Or perhaps it involved Small Options, Group Homes/Developmental Residences, Residential Care Facilities, Adult Residential Centres or Regional Rehabilitation Centres.

Anyone? Anyone at all? Yeah, I thought so.

For those of us so blessed, how many have been told that the amount of respite available to your family member is capped at a certain amount or that the Department of Community Services will only pay $10 per hour for respite workers and, if yours happen to charge more, well, so sorry but you will just have to make up the difference yourself?

I see those heads nodding.

How about this one - anyone ever been told (and I mean told) that the government is not obligated to provide these programs, that they do so voluntarily. With the implicit undertone being Do. Not. Rock. The. Boat. Do. Not. Push. Us. Too. Far. Or. You. Will. Find. Yourself. Without. Any. Help. Whatsoever.

Well, then, you're sure to really appreciate this March, 2011 decision from the Nova Scotia Supreme Court.  Check it out. You're going to love it. Trust me.

But first, let me ask you this - how many times have I suggested that we need to help one another, to stand and work together when it comes to getting the system to meet the needs (and respect the rights) of individuals with disabilities and their family members? I only ask because, to me, this decision is a prime example of just how (and why) that works.

Anne Boudreau went to court to get her son and herself the help they desperately needed, the help the government refused to provide. But in winning a victory for Brian and her family, she also won a victory for you. For me. For all of us. Which explains exactly how I view the world - anything I do for one of my children, I do for other children. And anything I do for another child or family, I do for my children and family.

Brian Boudreau has autism and requires 24/7 care. To assist with this, his mother received money to pay for part-time and full-time personal care workers from the Services for Persons with Disabilities (SPD) Program. But the Boudreaus were unable to keep these workers because they couldn't pay a sufficient hourly rate. Needless to say, this constant turnover was not in Brian's best interests, particularly given his very high level needs.

Receiving funding of only $10 and $12 per hour respectively for part-time and full-time workers [the hourly rates set by the Department, which have remained unchanged since 1998], when the average hourly wage in their area was $14 per hour plus benefits, it shouldn't have surprised anyone when they went through seven workers in the span of one year.

Her request for extra funding to allow her to pay $12 and $15 respectively to the part-time and full-time PCWs denied, 
["As you know the Direct Family Support program bases its respite amount on $10 per hour. Unfortunately Services for Persons with Disabilities (SPD) staff have not been authorized to increase this hourly amount at this time. In regards to the possibility of increasing your monthly amount, in order that you can use the additional funding to pay extra per hour, SPD has not been authorized to allow any increases which result in payments exceeding $2200 per month. As Brian’s current respite allowance already exceeds $2200 per month no increase may be authorized at this time."] 
Mrs. Boudreau appealed. And although initially unsuccessful, she was successful at the second appeal level, to the Assistance Appeal Board.

The Board found that although neither the directive [in November, 2009 a directive had been issued from the Director of the SPD program limiting DFS program approval levels for respite funding to $2200 per month] nor the policy [which also limited DFS respite funding to $2200 per month] supported the appeal, neither was there any Regulation under the Act to support the directive or the policy. [You can find a discussion of how that interaction works from a legal point of view here.]

Instead the Regulations provide a guide to the intention of the Act, which allows for variance from policy and directive when it was in the best interest of the client. Sound familiar?

Not surprisingly, this result did not please the Department, who promptly took the matter to court.

Because the Board had found that Brian was entitled to the additional funding under the Employment Support and Income Assistance Act (ESIAA), one of the issues before the court was which of the three possible pieces of legislation [the Employment Support and Income Assistance Act (ESIAA); the old Social Assistance Act ("SAA"), which was effectively gutted when the ESIAA was proclaimed; or the Homes for Special Care Act] govern the SPD Program. Or, perhaps it was as the Department argued, that the Program is something done out of the goodness of their heart, with absolutely no legislative authority?

For those of us less legally inclined, I am going to provide the summation of what this case actually decided here. Those with interest can read on to see how the court came to the conclusions it did.

In other words, pay attention. Here's the important part.

In the words of Mr. Calderhead*, the Boudreau decision is very important for at least four reasons.
  1. It settles, once and for all, the question of whether the SPD program is authorized by legislation (it is!) and which legislation (the Social Assistance Act and the Municipal Assistance Regulations).
  2. It makes it clear that there is nothing voluntary about the SPD program. That is, once eligibility for services has been shown/accepted, a legal entitlement arises automatically.
  3. Further, as with any other “assistance” under the Social Assistance Act, eligibility triggers not just a right to that assistance but one that is to be immediately provided.
  4. Generally, the SPD Program will fall under the ‘special needs assistance’ provisions in the Social Assistance Act and, in situations where the legislation does not stipulate a maximum amount for such assistance, the Department should be paying “reasonable” amounts sufficient to meet the need.
Mr. Calderhead also notes that this decision establishes that the Department of Community Services must provide a per diem rate that is reasonable. In the Boudreau case, that was found to be $15.00 per hour for a full time employee, and $12.00 per hour for a part time employee.

Now, for those of you brave enough to venture further, you can READ MORE.

The court in Boudreau found that sec. 9 of the SAA provides that "the social services committee" must furnish assistance to all persons in need who reside in the municipal unit. "Assistance" is defined as "the provision of money, goods or services to a person in need, including
  1. Items of basic requirement: food, clothing, shelter, fuel, utilities, household supplies and personal requirements,
  2. Items of special requirement: furniture, living allowances, moving allowances, special transportation, training allowances, special school requirements, special employment requirements, funeral and burial expenses and comforts allowances. The Director may approve other items of special requirement he deems essential to the well-being of the recipient,
  3. Healthcare Services: reasonable medical, surgical, obstetrical, dental, optical and nursing services which are not covered under the hospital insurance plan or under the medical services insurance plan,
  4. Care in homes for special care,
  5. Social services, including family counselling, homemakers, home care and home nursing services,
  6. Rehabilitation services.
Noting that the bolded items above corresponded neatly to the "payment descriptions” on Brian's monthly cheque stub, the court found that the Department must view “in home support” and “respite” funding as “home care” in the Regulations.

Under the SAA, a “person in need” is defined as "a person who requires financial assistance to provide for the person in a home for special care or a community-based option". Since it was not disputed that if Brian was not living at home with his mother, he would have no option but to live in a publicly managed and funded full time care facility, he was eligible under the SAA as a “person in need” .... living in “a community based option.”

What was in issue, however, was whether Brian was also a “recipient” and eligible for assistance pursuant to the Regulations made under the ESIAA. Those regulations provide for assistance to be provided for "special needs" where the services are essential for the applicant "in the opinion of a caseworker"`.

The Department argued (and the court agreed) that the ESIAA did not apply to Brian because his circumstances did not suit the purpose of that legislation, which is to facilitate the movement of people toward independence and self-sufficiency.

In Brian`s case, the Department wanted the Board`s decision (which had granted Mrs. Boudreau's appeal) to be overturned on the basis that the Board had wrongly found Brian`s entitlement to be under the ESIAA and not under the SAA. But they also wanted to take it a step further and have the court find that both the SPD program and the DFS program are administrative creations that are not specifically linked to any particular piece of legislation. Which would mean that applicants for additional funding, like Brian, (and you and you and you I) could never be certain which legislation was the source of our funding.

Nice try but no cigar. The court found that the SAA obligated the Department as administrator of the SPD and DFS programs to “furnish assistance” to Brian, with such assistance meaning all those items set out above, including continuous care in his home and travel outside his home, since if he were not living at home, the Department would be responsible for his care 24 hours per day 7 days a week.

Which brings us to our first point, namely, that the money we or our family members receive under the Services for Persons with Disabilities Program is not governed by the Employment Support and Income Assistance Act but is governed by the Social Assistance Act.
As to how much “assistance” the Department is obligated to provide an individual in Brian`s situation, the court found that the Department`s obligations would be met when the “assistance” reasonably met the “need” in each specific case.

Based on the evidence presented to the Appeal Board, it was found that Brian's reasonable “need” for assistance was 24-hour-a-day "homecare” (less the time his mother could reasonably attend to his care). In other words, Brian`s “need” was for 118 and 170 hours of part time and full time PCW services.

The court found that the Department had a clear obligation to provide such “assistance” to Brian and whether under the ESIAA or the SAA, Brian`s “special need” was by definition not a discretionary item, which the Director, a caseworker or supervisor neded to decide was “essential" to his well being.

But the court did not stop there. It went on to find that even if it were wrong and the “respite” decision by the Department was discretionary under either the ESIAA or the SAA,
  • the Director had clearly accepted that Brian required constant supervision, 
  • a reasonable amount of “assistance” was 118 and 170 part time and full time PCW hours respectively, 
  • the $2,200 limit in the November, 2009 Directive (which could not override the legislation and regulations) did not apply because Brian was “grandfathered” and,
  • due to the lower than average existing hourly rates, Mrs. Boudreau had been unable to retain/maintain PCWs to care for Brian.
Once the Director accepted those facts, its obligation and what was “essential” was well defined. Whether seen as an outright obligation to furnish “assistance” or a discretionary decision as to whether the “assistance” was “essential”, the Department’s obligation clearly included the additional funding requested.

This is why, even though the Board had erred in relying on the ESIAA in assessing whether the Department had complied with the relevant Act and Regulations, the court refused to set aside its decision. If the Board had purported to act under the jurisdiction of the SSA (as it should have), it would have come to the same conclusion given the similarity between the two Acts and their Regulations. Both Acts and their Regulations obligated the Department to furnish assistance to Brian and the Department`s obligations would be met when the “assistance” reasonably met Brian`s “need”.'

Bottom line, Mrs. Bourdreau had been unable to retain and maintain PCWs to care for Brian because the maximum hourly wage rates the Department permitted had not remained competitive since being set in 1998. Whether characterized as “essential’ to Brian`s well being or whether necessary to reasonably meet the “need” of Brian, the Board`s decision would have been the same under ESIAA or the SAA.

Mere reference by the Department to the November, 2009 Directive, without consideration of the SAA and its Regulations, did not amount to a reasoned decision to deny additional funding and had the Department complied with the law, it would have reached the same decision as the Board had.

And the reason for all this confusion?

The Department had acknowledged that the overlap between the SAA and ESIAA, combined with the unclear linkage between the SPD/DFS programs and those Acts, presents a very clouded picture of the legislative framework underlying the funding of the care requirements for a person in Brian's position. Even the forms for SAA appeals are titled as being under ESIAA and make no reference to the SAA.

Further, both the SAA and ESIAA obligate the Department to “furnish assistance to all persons in need” and the definitions of “person in need”, and “assistance” in the two pieces of legislation and the definition of “special need” in the ESIAA suggest a distinct similarity between the two pieces of legislation, creating a very clouded picture of the legislative framework underlying the funding of care requirements for a person in Brian's position.

*With thanks to NSACL's Spring 2012 Soaring Forward Newsletter for running an article by Vince Calderhead of NS Legal Aid, which brought the Boudreau decision to my attention.


Jean said...

Thanks so much for talking about this...so many families don't know...the more that we can get the word out the better. Thanks Michelle.

MMC said...

Actually, Jean, I should be thanking you. I still can't believe that I had totally missed this case. At least until I read NSACL's newsletter. ;-)