UN Convention on the Rights of the Disabled

Current Status of the UN Convention of the Rights of Persons with Disabilities at a Glance

The Convention on the Rights of Persons with Disabilities and its Optional Protocol opened for signature on March 30, 2007 :

102 signatories to the Convention
57 signatories to the Optional Protocol
4 ratifications of the Convention

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What is a Convention and How Do They Work?
An international convention or treaty is an agreement between different countries that is legally binding to the contracting States. Existing international conventions cover different areas, including trade, science, crime, disarmament, transport, and human rights. A convention becomes legally binding to a particular State when that State ratifies it. Signing does not make a convention binding, but it indicates support for the principles of the convention and the country’s intention to ratify it.

As contracting counties are legally bound to adhere to the principles included in the convention, a monitoring body is often set up to assess country parties’ progress in implementing the convention by considering reports periodically submitted by countries. Human rights conventions do not contain any enforcement mechanism to compel countries to comply with the principles of the convention or with the recommendations of the monitoring body, and the implementation of these conventions depends on the commitment of each country.

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Special Education Report Released

The Department of Education released the Special Education Report (more accurately the "Review Commmittee Report and Recommendations Arising From the Minister's Review of Services for Students with Special Needs") on August 23/07. A full copy of the Report can be found here.For what its worth, the Report contains 27 recommendations, a significant number of which focus on issues surrounding students with learning disabilities. The initial focus of media coverage was definitely the recommendation to phase out the Tuition Support program but let's hope that "the rest of them" (students with differing special needs) don't get lost and forgotten in the shuffle.And its important to remember that the Recommendations are just that. Its up to the Minister of Education to decide whether to accept any or all of them. As an aside, pages 4-16 of new Report contain the government's resposes to the 34 recommendations contained in the 2001 Report.

Initial media coverage focusing on the potential loss of the Tuition Support program (as recommended in the Report) can be found here , here and here. The Daily News also has an editorial on the topic here.

Continuing highlights and commentary follow below.

Special Education Report ...Part II

Further Recommndations and Commentary from the Special Education Report ... See Part I, Below

• The Minister of Education enhance the resources and supports presently in place for the Severe Learning Disabilities (SLD) Program to ensure that all students requiring this program have access.
  

The Report notes that the funding for the SLD program has not increased for 10 years. Thus, many students who could benefit from the program are denied access. An "examination of service delivery models within each school board" is recommended "with a view to expanding more flexible placement and programming options".

And given the often tumultuous relationship between the educational system and the phsychologists at the IWK, it is interesting to note that the Commission acknowledges "the health professionals within the Clinical Neurosciences Centre at the IWK fHealth Sciences Centre for their succinct wording around this issue".

• The Department conduct a Board by Board audit of the role and assignment of teacher assistants.

Apparently the Committee is concerned that a "competitve educational marketplace" has been created around the assignment and supervision of teacher assistant services. "Competitive" ... sure, we can agree with that.

• The Minister enhance the services and supports presently in place for the Severe Learning Disabilities Support Program to ensure that all students requiring this service have access.

The Committee wants clarity brought to the role of teacher assistants and cautions that it would be detrimiental to the system if the number of teaching assistants were reduced without a corresponding increase in the number of teaching staff. I suppose it would be. And, as noted in the Report, it would be equally or even more detrimental to our children.

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Thar' She Blows - Special Education Report Released

So. The latest version of the Special Education Report (more accurately the Review Commmittee Report and Recommendations arising from the Minister's Review of Services for Students with Special Needs) has been released.

The Report contains 27 recommendations, a significant number of which focus on issues surrounding students with learning disabilities. But its important to remember that the Recommendations are just that. Its up to the Minister of Education to decide whether to accept any or all of the Recommendations. Pages 4-16 of new Report contain the goverment's resposes to the 34 recommendations were accepted in the 2001 Report.

On a side note, I note that the preparation of the 2001 Report involved numerous intensive focus groups - with parents, educational assistants, teachers and others. In contrast, it is stated that this report was based upon "consultation via public meetings in all eight regional school boards" and "public consultation via on-line and written response forms".

At any rate, here are a few recommendations of note, with many, many more to follow in another post:

• The Department of Education appoint a provincial learning disabilities consultant by 2008




• The Department of Education develop a provincial learning disabilities strategy by the 2008-2009 school year

The Report notes that a Provincial Learning Disability Strategy would emphasize the importance of early identification and early intervention - currently, most school boards require a student to be 3 years behind in at least one subject area before they can even be considered for receiving servies from a learning disabilities program.

• The Minister announce the end of the Tuition Support Program effective June 30, 2010

The Report notes the limited access available to the Tuition Support Program [there are only 3 schools (two in HRM and one in the Annapolis Valley) eligible for the program] and uses the government's statutory responsibility "to provide a publicly funded school system whose primary mandate is to provide education programs and services for students to enable them to develop their potential and acquire the knowledge, skills and attitudes needed to contribute to a healthy society and a prosperous and sustainable economy" [Education Act, s. 2] and the requirement that a school board "make provision for the education and instruction of all students enrolled in its schools and programs" [Education Act, s. 64(2)(a)] to find that the Tuition Support Program is not appropriate as the Department must adequately fund school boards to enable them to respond to the learning needs of all students, including students with special needs.

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NDP Wants Time Limit Off Tuition Support Funding

Apparently the NDP are taking the opportunity to call the government to task for the current three year limitation on the tuition support program. You will recall that we discussed that program previously in the context of the recent French language special education decision. The Chronicle Herald reports today that the Department of Education is preparing 41 letters to parents who have "used up their eligibility" refusing further support under the program. NDP education critic Bill Estabrooks wants the three year limit removed. No doubt that stance will make him the friend of many, many parents.

The Department notes that the issue will be addressed in the latest version of a Special Education report to be released tomorrow. Anyone who has been on this merry-go-round for a while will remember the release of a similar report in June, 2001. It should be interesting to see what the Department comes up with this time.

Whether or not the issue of tution support is on your radar screen, it really couldn't hurt to make sure you get a copy of this most recent report from the Department, give it a quick look-over and then file it away for future reference. Although far from binding, such reports can sometimes prove useful when dealing with your school board on a particular issue or even if you find you find yourself in court at some point advocating for your child's rights. If your particular issue is dealt with in a manner favourable to you in the report, it's worth having a copy of the document and bringing it to your lawyer's attention. He may or may not be able to put it to any significant use but it just makes sense to always have as many resources at hand as possible.

Update: Apparently, the Report was released today, not Thursday as reported in the Chronicle Herald. I bet you just can't wait to get your hands on it, right?

Where Will You Lay Your Head?

A hot topic lately - will some individuals with special needs continue to reside in institutions or will we have full inclusion in the community?

No matter what your personal thoughts and feelings on the subject may be, there's no deying that it has generated a lot of interest across the country recently. The Manitoba Association for Community Living has launched a human rights complaint against that province's government in connection with the government's failure to integrate more residents of the Manitoba Developmental Centre into the commununity. The complaint itself gives a nice history and background on the issue of institutionalization versus community living.

In Nova Scotia, as part of the The Department of Community Services' review of services, the Community Support for Adults progam and the Children's In Home Support program have recently been revamped as part of the new Services for Persons with Disabilities program. In theory, this new program will provide services for disabled indviduals from birth through adulthood.

Within the next few weeks, I hope to have up more info about this *new* umbrella program and what programs are subsumed in it. So stay tuned!

But for now, you will recall that our provincial government's recent announcement of $19million to RENOVATE an aging institution outside New Glasgow and to build 3 replacement group homes has more than a few groups concerned. In that vein, I am passing along the latest release from the Nova Scotia Associaiton for Community Living (NASCL):

The Canadian Association for Community Living and People First of Canada have created a joint National Deinstitutionalization Task Force. I am honoured to be a member of the Task Force.
Nova Scotia has more people living in institutions than any other province and the Premier has recently announced almost $19m to renovate one of our largest as well as more dollars to create a new one in the old Cobequid Centre in Sackville.
The Joint Task Force has a newly created web site and has written a declaration. The wb site will be expanded shortly. However, we are urging everyone to visit the site, read the Declaration and add your name.
I hope that many Nova Scotians will show the country that despite the actions of our government, we really do believe that citizens with an intellectual disability ought to be supported to live lives of dignity in their own communities.
Please pass the message along to other friends, family and colleagues.
http://www.institutionwatch.ca/

Mary Rothman
Executive Director
NSACL

The above link will take you to an online declaration/petition which you may or may not wish to sign. Either way, its definitely worth checking out.

**** Background Reading Material: Other relevant reads to come up to speed on this topic before we boldly go where few Nova Scotians have gone before (namely the Services for Persons with Disabilities Program) include Dr. Michael Kendrick's infamous, if now somewhat dated, "An Independant Review of the Nova Scotia Community Based Options" (more commonly known as " the Kendrick Report ") and the former Community Support for Adults Policy Manual ... perhaps now more aptly subtitled "Gone but not forgotten".

H/T to Dorothy Kitchen of the Kendrick Coalition

Update: I have quite a few hard copies of the Executive Summary from the Kendrick Report. If anyone would like their own copy, drop me a note in the comment box or use the email link in the profile.

The IPP Appeal Process

"It's all knowing what to start with. If you start in the right place and follow all the steps, you will get to the right end."
~ Elizabeth Moon, The Speed of Dark, 2003



UPDATE:  Due to recent changes, a parent is now able to appeal the fact that the school has refused to provide their child with an IPP




Technically speaking, the IPP is the Individual Program Plan which sets out certain educational goals for the student, the means by which the goals are to be achieved or measured and the roles of teachers and other specialists or assistants.

But from a parent's point of view it is often the place where the rubber hits the road - if your child cannot meet grade level outcomes it is the program that he or she will follow. It lays out how and what the school will teach your child. In a sense, its your child's lifeline, from where he is now to where you hope and pray he will some day be. It is for that reason that the IPP appeal process is so important - what happens if you, as a parent, do not agree with what the school proposes to teach your child, where they propose to teach him or the methods that they propose to use? How do you get your say?

From a parental perspective its very important to know what steps you have to follow in order to initiate an appeal of your child' s IPP, how much time both the school board and Minister have to respond and set up an appeal hearing, what your rights are at such hearings and to be aware of potential pitfalls and hazards along the way.


SCHOOL BOARD APPEAL PROCESS
IPPs are to be designed and continuously modified to keep pace with the student=s development through the course of his education by the Program Planning Team. This team includes the student's teachers, educational and other specialists and the parents or guardians of the child. Therefore,as the parent or guardian of a special needs child, you are, by law, a member of your child's Program Planning Team.You are, by law, not only to be afforded the "opportunity to participate in the development of an IPP for your child"[Education Act, s.25 (2)] but also to have access to a procedure to appeal that document if you disagree with it.

The Education Act and Regulations, read together, provide that "the parent may make a request in writing to the Minister of Education asking the Minister to establish a Board of Appeal to provide a ruling on an existing or proposed IPP" where "the parent does not agree with the IPP that has been developed for the child; and the disagreement can not be resolved by a School Board appeal process."

Obviously this presupposes a school board appeal process. Policy 1.8 of the Special Education Policy Manual from the Department of Education mandates that Aeach school board shall develop and maintain "written policy and procedures to ensure that programming and services are designed for students with special needs". This policy is to include, among other things, "an appeal policy established by the board within the parameters of the provincial policy" .

In other words, each school board in this province is obligated to develop a written appeal policy which includes the appeal procedures to be followed in a case where the parent of guardian of a child with an IPP does not agree with the child's proposed or existing IPP. At the present time, it is unclear whether all of the school boards have complied with this directive or not.

The school board appeal policy must fit within the parameters of the provincial appeal policy.

Special Education and Parents' Rights

In Nova Scotia, the education of a special needs child is governed by:

1. The Canadian Charter of Rights and Freedoms
2. The Nova Scotia Humans Rights Act
3. The Education Act and Regulations made pursuant to that Act
4. The Special Education Policy Manual

I have listed these documents in their order of importance, or in other words, what trumps everything else (the Charter) comes first.

I. CANADIAN CHARTER OF RIGHTS AND FREEDOMS
The Charter is part of Canada’s Constitution and as such, any federal or provincial law in conflict with it will be of no force and effect to the extent of the conflict. For our purposes, the most relevant section of the Charter is sec. 15 which provides that "Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability’.

To date, there has been one major case where the Supreme Court of Canada has applied this section of the Charter in the context of the rights of a special needs child in the educational system [Eaton v. Brant (County) Board of Education (1996) 142 D.L.R. (4th)385].

In that case, the parents of a multiply-handicapped child appealed her "placement" – although Emily had initially been placed in a regular kindergarten class with a special assistant, after two years the school wanted Emily to be placed in a segregated special education class and the parents wanted her in a regular grade level classroom. Through the IPP appeal process, the case eventually made its way to the Supreme Court of Canada. The argument centred around s. 15 of the Charter – was it discriminatory to place Emily in a special education classroom? The Court found that in the facts of that particular case, it was not. It would be in Emily’s "best interests" to be placed in a special classroom.

Although some people view this case as a step backwards for equality and perspective is, of course, everything, I see this case as an important step forward for special needs children. The court noted that true equality requires the recognition of differences and focused upon a lack of accommodation as the real threat to disabled people in Canada. It was found that segregation can both protect and violate equality depending on the very individual characteristics of the child in question. Integration was accepted as the general norm for the placement of special needs students due to the benefits it provides. But at the same time, the court found that a presumption such as that imposed by the Ontario Court of Appeal in favour of integrated schooling should be rejected on the basis that it may operate to deprive pupils that do require special education services that are best provided in a segregated setting (p. 407).

The idea that each individual child, the strengths and needs of that particular child and where those needs are best met as the controlling factor in determining placement makes sense, at least to me. The court held that in some cases segregation would constitute discrimination; in other cases, inclusion in a regular classroom would be discriminatory. It all depends on the particular child and what is in their best interests.

The potential pitfall that I see in this analysis is how we determine (and who determines) what is in a particular child’s best interests. Unfortunately, the courts often display a high degree of deference to the "specialized tribunals" that represent school boards, whether it be the Identification Placement and Review Committee which determined placement in the Eaton case or the Ministerial appeal board we find in Nova Scotia. It has been noted that parents have no such benefit and the weight of their choice is only felt when they agree with the Board. And to date, not only in Nova Scotia, but across the country, the courts definitely tend to come down on the side of the education system as being the best party to make such decisions.

One point that is clearly made by the case of Emily Eaton is that people with disabilities are not required to take the world as they find it, as the mainstream world is focused on an able-bodied perspective. A decision regarding placement of a child must be governed by an analysis of the individual needs of that child and focused on the best interests of that particular child.

Dauphinee v. CSAP - What Exactly Does It Mean?

For those who are interested, here is a link to the recent decision of the Nova Scotia Supreme Court in Dauphinee v. Conseil Scolaire Acadien Provincial. This case, which is discussed below in the post "Special Ed for Les Francais", has garnered a lot of attention in the last few days.

Although on the surface the decision appears to be a step forward for the francophones in the Province, one has to wonder. The court speaks of the duty on the Department of Education to "investigate" the possibility of designating French language schools in New Brunswick or Quebec for the purposes of the tuition support program and appears to base its decision on the fact that the Province had failed to even "attempt[ing] to make any provisions ... which would accommodate special needs students". To me, that doesn't exactly sound like a heavy obligation to place on the Province or a strong statment for a family to hang their hat on, so to speak, when planning for their child's future.

But let's assume that the Province does, in a timely manner, designate French language schools in New Brunswick or Quebec to be eligible for funding under the tuition support program. What will be the practical effect of this for the Francophone family who wishes to place their child in a private school? The court justifies this interprovincial designation on the basis that students would have to travel far from their homes now in order to attend one of the three designated English schools in Nova Scotia. Fair enough except ... it can be a lot further (both in terms of physical distance and psychologically) for a child to travel out-of- province to attend school. I have to wonder how many children and their families will be willing or able to avail themselves of such an option, assuming it is made available. On the other hand, we don't live in the ideal world and this "compromise" put forward by the court may be the best that can be hoped for in the real world.

I know some are of the view (or perhaps more accurately, the hope) that this decision might have some positive effect for English speaking children with special needs in the Province. Frankly, I can't really see how it will be of any assistance to the rest of us. The court's decision was made on the basis of the "equality and equivalency principles" applicable to French language rights under Sec. 23 of the Canadian Charter of Rights and Freedoms. Which, in simple terms, means that those students are entitled to an education "equal" to that offered by the Province to English speaking students.

Unfortunately, the case was not argued on the basis of Sec. 15 of the Charter, which section guarantees that

"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Had the case been argued on that basis, there might have been some statements made by the court concerning discrimation and students with special needs in general which might have been useful for all such students in future litigation. But there are many times when I would be happy to be proven wrong. We can just add this one to the list.

One other item of note. The court found no liability against the school board (CSAP) for not offering the Tuition Assistance program to its students. *

Here's the catch - the Tuition Assistance program (in which, likely after a lengthy battle, the school board pays the full cost of private school tuition for the child) is not mandatory. School boards can offer the program; they don't have to. And apparently, only three school boards in the Province (HRM, the AVRSB and the CCRSB) offer the program. Meaning that if you live elsewhere, you're basically out of luck. The solution? The provincial government needs to make Sec. 63(4) of the Education Act (which authorizes the program) mandatory. Sounds like its time to contact your local MLA.

*Keep in mind the distinction between the Tuition Support program and the Tuition Assistance program set out in my previous post

More Funding For Group Homes in NS

The provincial government has recently announced $19million to RENOVATE an aging institution outside New Glasgow and to build 3 replacement group homes. This has more than a few groups concerned.

I am advised that NSACL will be issuing a formal release expressing their dismay at this announcement later in the week. In their own words:

NSACL does believe that a large building sitting on a hill, outside town does NOT constitute a home. By finding $19 million new dollars to use in this way, the Department has ensured that there will be institutional placements available in this province for decades to come.

The whole issue of institutional care versus community care (and perhaps more importantly, who decides) for individuals with disabilities in Nova Scotia has a long and tortured history. The Dept of Community Services has recently formulated new policies as to what "placements" are available under the Services for Persons With Disabilites program.

Expect to read more on those here in the near future.

H/T to Dorothy Kitchen of the Kendrick Coalition

Special Ed For Les Francais

A new decision was released today from the Nova Scotia Supreme Court concerning the provision of special education for French students in the Province.

Samuel Shaun Dauphinee, whom a CJAD article states has "hyperactivity disorder", had to attend Churchill Academy in Dartmouth, N.S., in English because there were no similar alternatives offered in French. Mr. Justice Boudreau found this unacceptable and although he stopped short of advocating the province set up francophone, private-sector schools for children with autism and hyperactivity disorders, he sated that he could see "no reason why the department should not investigate, as part of its tuition support program, what services could assist Conseil Scholaire Acadien Provincial students with special needs."

Under the current tuition assistance support program, brought in by the Nova Scotia government three years ago, parents are provided with up to $5,500 $6,400 if it is determined that a private school would be the best service for their children. As always, the rub lies in who makes that determination.

The Dauphinee family was seeking to be reimbursed for a portion of the $47,500 in fees they paid for their son's education. The court awarded them the sum of $9,500 but refused much of the remaining claim, saying the family failed to use existing procedures to make the case to the school board that the private-school education was necessary. I haven't yet had the chance to read the actual decision but that's likely a reference to the fact that the family failed to follow the appeal procedure set up for when parents and school boards disagree as to whether a private school is necessary for the student's education.

UPDATE: The CBC News write-up gives more information on the French angle - Section 23 of the Canadian Charter of Rights and Freedoms sets out the rights of minority francophones in Canada to receive an education in that language. The court in Dauphinee found that the Province (the Dept. of Education) violated Sec. 23 in that French students are not treated as equal to or equivalent to the English majority. In other words, the Province cannot legitimately take the stance that it's not their fault if there are no French private schools in the province.

The court stated that the Province "... must act to see what, if any, French first-language schools ... can be designated for inclusion under the present tuition support program" and suggested the possibility of appropriate French schools in other jurisdictions such as New Brunswick or Quebec being designated as such.

Update II: The Province has currently made provision for two different programs. The Tuition Support program has the Province providing funding to a "designated special education private school" [currently there are only three in the Province] for one year with an option to renew for an additional consecutive year for students with special needs who meet the eligibility criteria and are approved pursuant to the Regulations under the Education Act. The amount of funding provided is calculated as the average per student allocation to school boards, which for 2007-2008 is $6,400. Students must have received services under an IPP in a public school within the Province for the preceeding school year in order to be eligible. A full list of the eligibility requirements can be found here.

In contrast, under the Tuition Assistance program, the relevant school board covers the full cost of tuition at a private school for the special needs student. However, in this scenario, "the program planning team, of which the student’s parents are members, and the school board staff [must] have determined that the student’s needs for learning cannot be met within the board’s system". This also involves the school board finding that it has "explored all opportunities to realign,reallocate or change the delivery of services within the school board to meed the needs of the student". From ancedotal experience, parents who have tried to get a school board to agree to provide Tuition Assistance have found this to be an uphill battle, at best. And that assessment is likely being charitable. To the school boards.

Although no information is provided on the Tuition Assistance program on the Department's website, Guidelines issued by the Department in 1997 are reproduced in the Dauphinee decision.