"You Have the Right to Remain Silent ..."

A quick follow-up from this 2009 post regarding challenged youth and the criminal justice system.

The 2009 case involved a Nova Scotia youth with a learning who disability, who made a statement to
police after having purportedly "waived" his right to (among other things) not make such a statement, consult a lawyer and have a lawyer or other adult (usually a parent) present if he made a statement. Although the boy’s mother had told the police of his learning disability,  the officer read the youth his rights in a rapid monotone, not making eye contact, asking only if the boy understood – to which he answered "yes" – but without attempting to gauge the level of that understanding. 

The officer’s rapid pace in navigating the waiver form, monotone voice and lack of eye contact or effort to establish the youth's level of understanding; along with the lack of any real evidence that the youth actually understood his rights left the court unsure whether the youth really understood the importance of the questions and the answers he was giving.

The Supreme Court of Canada held that police must not only advise a young person of their legal rights, but ascertain that he or she actually understands those rights and make an effort to become aware of complicating factors (such as a learning disability or any previous experiences with the criminal justice system).

The police must make an individualized inquiry, so that they can explain the person's rights in a language and at a level that the youth will be able to understand.

"An individualized, objective approach must take into account the level of sophistication of the young detainee and other personal characteristics relevant to the young person’s understanding. Police officers, in determining the appropriate language to use in explaining a young person’s rights, must therefore make a reasonable effort to become aware of significant factors of this sort, such as learning disabilities and previous experience with the criminal justice system.

As a result of this decision, Canadian police have had to work harder to ensure that the youth they deal with actually understand their rights and what it means to give up such rights.  They are required to ask questions about the youth's individual circumstances and tailor their speaking so as to meet that youth's level of understanding if they hope to have any statement made by the youth admitted as evidence in court.

There is much more of interest in this case, so you might want to review that 2009 post in more detail. However, for our purposes today, I found it interesting that school police in Baltimore have now been asked to adopt a "youth-friendly" Miranda warning.

The Baltimore Sun reports the Baltimore school board is currently accepting feedback on new school police policies under consideration before a vote next month.

Juvenile public defender Jenny Egan asked the school board to formulate a Miranda warning that includes developmentally appropriate language. Egan says the typical recitation heard in many a television procedural features clunky language that's difficult for children to understand. Juvenile public defender Neeta Pal read commissioners a "youth-friendly" warning adopted in Seattle's King County that simplifies the language.
[Emphasis added]

If such a move is necessary for typically developing youth, how much more important is it for our youth?

Groundbreaking Ontario Human Rights Special Education Decision

Very interesting news here:

For what appears to be the first time, a Human Rights Tribunal has applied the principles set out by the Supreme Court of Canada (SCC) in the recent human rights/special education case of  Moore v. British Columbia (Education) 2012 SCC 61 (Moore). You can find a discussion of the SCC decision here.

The mother in RB v Keewatin-Patricia District School Board approached the Ontario Human Rights Tribunal following a series of incidents and failures to appropriately accommodate her child, who had been diagnosed with Pervasive Developmental Delay Not Otherwise Specified (“PDD NOS”). These incidents had repeatedly been raised by the parent and escalated to the School Board level without any resolution.

Starting in Kindergarten, the child had been provided with an IEP (aka IPP) and Educational Assistant (EA) support. However, his EA support was cut quite significantly in Grade 2, despite the parent's objections. There were also allegations that the child's EA was being inappropriately forceful with him. Issues continued throughout Grade 3, including segregation in and outside of the classroom and teasing and bullying by other students. Not surprisingly, behaviour issues intensified.

Eventually the child was "excluded" (presumably suspended) from school by the Principal for inappropriate behaviour, including swearing, using profanity, spitting, yelling, cutting a child’s sweater, stomping on a child’s leg, throwing material and being generally non-compliant. The parent was advised that he could not return to school until a psychological assessment was completed by the Board's school psychologist and the Board was confident that his return would not compromise his or other students' physical and mental well-being.

During this time, he was provided with instruction from an itinerant teacher three hours per week. The parent supplemented this instruction and due to her good rapport with the itinerant teacher, the child made significant academic gains, going from reading at level 2 when he was "excluded" to level 7 four months later.

But in an interesting twist, not only had the child been *excluded* from school for several months in Grade 3, but the mother had also withdrawn him from school the previous year for a period of time. Get the picture?

I would like to say that such fact situations are rare. Sadly, you and I both know they aren't. In fact, I can think of three very similar situations right here in Nova Scotia, without even giving the matter much thought. The difference, sadly for us in Nova Scotia, is in how the local situations ended.

At any rate, the Ontario Human Rights Tribunal found several failures to accommodate the student, including

Tax Time Tips

Realizing this might be a wee bit late for some (such as those who do a much better job of getting their act together than I), but hoping it will fall in the category of better later than never (as opposed to "too little, too late"), I offer you some tips for that most favourite time of the year ... Income Tax time!

First up: Tax Planning and the Disability Tax Credit
(And just as an aside, if you're not familiar with the DTC, you have some serious reading to do - just follow that last link and scroll down past this post.)

Secondly: The new Family Caregiver Amount Credit
(Not to be confused with the Caregiver Amount Credit - both of which can be claimed in the right circumstances)

And Third: Isn't it frustrating when you KNOW something to be so, know you've read it before but you just can't seem to find the proof? And even more frustrating when it's a tax question that you take to the CRA, only to be told that "No, you're wrong, you can't do that", when you KNOW darn well you can?

Well, that was my story until this past weekend when I finally came across the proof I was looking for (ironically, by following a link on this very blawg). All this to say...

Yes, Victoria, you can claim the cost of your child's private LD school tuition (and room and board, if applicable) if your child has the DTC. (Scroll 3/4 of the way down this page and look at No. 8 "Fees for Specialized Camps (Summer and Winter) and Specialized Schools").

There you go - run along and have some fun now.

"A Discussion and Consideration of How to Accommodate the [Student's] Disability-Related Needs"

You might recall that a few years ago, we looked at the topic of human rights in the workplace. But although we've certainly touched on the concept of human rights in education here and there (including in more depth rather recently), given that there are quite a few parents out there who are very anxious to bring forward human rights complaints on behalf of students with learning disabilities, it might be useful to look at a few more such cases through the lens of actual complaints made under human rights legislation.

To that end, let's dissect a relatively recent case (April, 2012) of two students who alleged they were discriminated against by their school's failure to properly accommodate them.

In D.S. v. London District Catholic School Board, the Ontario Human Rights Tribunal dealt with two complaints, both alleging that the London District Catholic School Board had failed to accommodate students with learning disabilities.

The first student had been diagnosed with ADHD and a mild visual-spatial learning disability. After attending school in Grades 1 and 2, he was home-schooled for a while and then returned to school on a half-day schedule in Grade 5. Several issues had arisen over the course of the school year, including a disagreement regarding when he should start attending school full-time, the level of support he would receive from the Student Program Support Teacher (especially the amount of withdrawal assistance he would receive) and when and how the school would implement certain recommendations of a private psychologist.

The family was unsuccessful, with the Tribunal finding that the Board had provided proper accommodation for the student's needs as they were known at the time, noting that there was no expert evidence suggesting that the student required a half-day schedule in order to be successful and no specific evidence as to the amount of assistance or withdrawal assistance that he should receive. The Tribunal also found that the Board had implemented the psychologist’s recommendations, albeit not exactly in the form that the parents would have preferred.

Of note, the Tribunal went on to consider the procedure that school boards must follow to in order to meet their duty to accommodate under the Human Rights Code. In this regard, the Tribunal found that compliance with the procedural aspect of the duty to accommodate does not require a Board to provide a student with everything requested. Rather, it requires that there be discussion and consideration of how to accommodate the person’s disability-related needs. In this case, the extensive discussions between the Board, parents and other professionals throughout the school year were found sufficient to fulfill the Board’s procedural obligations. [1]

The parents of the second student, who had been diagnosed with ADHD and a communications learning disability, alleged that his teachers had consistently failed to accommodate his needs, which required “chunking” (breaking down a task into smaller component parts), using “mind maps” (an aid to organize thoughts for writing), and addressing other organization issues. They also alleged that the Board had failed to provide him with adaptive technology in a timely manner.

As in the first case, the Tribunal found that the Board had met its duty to accommodate. Contrary to the allegations, the teacher had went “above and beyond what is required of a teacher to provide additional support and assistance" to the student after school hours. Although there had been a six-month delay in trialing software that would address the student's writing issues, the Tribunal found that during that time, the teacher had provided the substance of the accommodation through a non-technological process.

Importantly, the Tribunal noted that although “more” could always be done to assist a student with a learning disability, whether more could have been done is not the appropriate question in cases regarding the duty to accommodate a student’s disability under the Code. Instead, the Tribunal must ask whether there is evidence that the student has specific disability-related needs requiring accommodation, and whether the school board failed to provide accommodation sufficient to meet those needs.

This decision confirmed one of the Tribunal's previous decisions to the effect that a school’s failure to meet parents’ expectations is not synonymous with a breach of the Code. Schools and school boards have a duty to engage in discussion with the parties involved and consider how to accommodate the student’s disability-related needs but there is no requirement that a school board agree to implement all of the accommodations that a student’s parents may request. 

Further, the Code does not require a school board to implement accommodations that match the recommendations in an IEP (Individual Education Plan) or of a specialist precisely. As similar accommodation can sometimes be provided by a teacher or through the use of adaptive technology, as long as the substance of the necessary accommodation is provided, the school board will have met its duty to accommodate.

Take away points for all the would-be human rights activists out there:

• a school’s failure to meet parents’ expectations is not synonymous with a breach of human rights legislation;
• compliance with human rights legislation appears to require only "a discussion and consideration" of how to accommodate the student’s disability-related needs;
• a school board is not required to implement accommodations that precisely match the recommendations in an IEP or of a specialist
• as long as the substance of the necessary accommodation is provided, the school board will have met its duty to accommodate; and
• the importance of expert evidence setting out precisely what the particular student's "disability-related" needs are cannot be overstated

It should be noted, of course, that this is a decision of the Ontario Human Rights Tribunal and not the Nova Scotia Human Rights Tribunal. Although I believe I recall a couple of cases out of New Brunswick quite a few years ago, I am not aware of any such decisions from the Nova Scotia Tribunal.

Of course,the more jaded among us some might say that is because these types of cases have never been allowed to make it to a Tribunal in this Province. [2]


[1] It is amazing how closely the facts of this case parallel that of a Nova Scotia case from quite a few years back. When that situation was brought to the attention of the NS Human Rights Commission, the parents were shut down on the basis of a Commission policy providing that no claims of discrimination in connection with a student would be considered unless and until all avenues of appeal had been exhausted under the Education Act. Whether this policy is still in existence I cannot say; however, I was recently advised by a Commission employee that she was not familiar with any such policy and a review of the Commission's policies currently available online show no such policy.

[2] Pursuant to sec. 29(4) of Nova Scotia's Human Rights Act, the Commission may dismiss a complaint at anytime in various circumstances, including if the complaint is considered without merit, raises no significant issues of discrimination or there is no reasonable likelihood that an investigation will reveal a contravention of the Act.

Breaking News

"Adequate special education, therefore, is not a dispensable luxury."

The Supreme Court of Canada (SCC) released its much-awaited decision yesterday in Moore v. BC (the LD case out of BC) and I am pleased to report that the parents were substantially successful. "Substantially" because although the finding of discrimination was upheld against the District (aka the School Bd), it was not upheld against the Province.

But let's take a look at the finding against the District first.

With regard to the issue of whether "special education" is a service that is “customarily available to the public" (and thus protected under the BC human rights legislation) the Court found that "special education is not the service, it is the means by which those students get meaningful access to the general education services available to all students" (emphasis added).

To define the service only as ‘special education’ would relieve both the Province and the District of their duty to ensure that no student is excluded from the benefit of the education system by virtue of their disability and risked descending into the kind of “separate but equal” approach that was so famously discarded in the racial integration case of Brown v. Board of Education of Topeka. Further, the court noted that, much as I stated in the previous blawg post, to so find would mean that the District could cut all special needs programs and be immune from a claim of discrimination.

As to what constitutes discrimination in this context, the Court found that discrimination will exist if the evidence demonstrates that the government failed to deliver the mandate and objectives of public education such that a given student is denied meaningful access to the service based on a protected ground.

In this case, prima facie discrimination was found on the basis of the insufficient intensive remediation provided for Jeffrey’s learning disability, which was necessary for him to access the education he was entitled to. It was the combination of the clear recognition of Jeffrey's need for intensive remediation in order to have meaningful access to education, the closing of the intensive program and the fact that the Jeffrey's parents were told that these services could not otherwise be provided by the District that justified the finding that the failure of the District to meet Jeffrey’s educational needs constituted discrimination.

Although the District attempted to argue that the decision to end the program was justified for financial reasons (and just how often have we heard that one in one form or another?), the SCC found that although the fact that the District was facing serious financial constraints was a relevant consideration, accommodation was not a question of “mere efficiency” and disproportionate cuts had been made to special needs programs, while some discretionary programs had been retained, despite their similar cost.

In that regard, the Court agreed with the dissenting judgment in the Court of Appeal, that “without undermining the educational value of the [other program], such specialized and discretionary initiatives cannot be compared with the accommodations necessary in order to make the core curriculum accessible to severely learning disabled students”.

More significantly, the District had not undertaken any assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the intensive program was ended.

The failure to consider financial alternatives completely undermines what is, in essence, the District’s argument, namely that it was justified in providing no meaningful access to an education for Jeffrey because it had no economic choice. In order to decide that it had no other choice, it had at least to consider what those other choices were.
[para. 52]

Significantly, no discrimination was found on the part of the Province even though the District’s budgetary crisis was created, at least in part, by the Province’s funding shortfalls as the Tribunal had found that it was the District that had failed to properly consider the consequences of closing the intensive program or how to accommodate the affected students.

In the Court's opinion, the evidence about the provincial funding regime was too remote to demonstrate discrimination against Jeffery and there was no particular reason to think that those funding mechanisms could not be retained in some form while still ensuring that SLD students received adequate support. It was found to be entirely legitimate for the Province to choose a block funding mechanism in order to ensure that districts do not have an "incentive" to over-report SLD students, so long as it also complies with its human rights obligations.

I highlight this as one of the possible areas of concern around this decision. Don't get me wrong, as noted, courts far too rarely intervene in cases involving educational policy (deferring to the schools' so-called "experts" is all too common in this area) so this decision is HUGE, but, unfortunately, it doesn't appear like it will yield much ammunition when it comes to the actual funding of special education services.

The source of all public school funding is, of course, the provincial government and the SCC clearly states that "block funding" of special education services is acceptable. Although we may now have an argument to stop any erosion of such ear-marked block funding, the sad fact is we all know that special ed is woefully under-funded and school boards often significantly top up the provincially-allocated special ed funding.

Although not a blanket prohibition on the cutting of special ed services at the Board level, where the decision is extremely valuable is in undercutting any attempt by school boards to take out their legitimate budget woes on special ed programming, at least not unless unless

• any cuts made to special ed programs are proportionate with cuts in other areas;
• other discretionary programs are not saved at the expense of special ed programming; and
• serious consideration has been given to the consequences of cuts to such programming and how students requiring the programs and services will be accommodated.

Commentary is, of course, appearing fast and furious around this decision. And while some of it is, indeed, upsetting, opinions of editorial boards aside, this decision should put lie to the (never legitimate) argument that once you let special needs students through the doors, their programming is as susceptible to cuts as any other.

As an aside, I offer you my absolute favourite line from this decision and one which will, no doubt, be quoted ad nauseum by future disability advocates:

Adequate special education, therefore, is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children ...

SCC To Weigh In on Schools' Duty to Accommodate

We're going to be taking a look at a few different human rights issues over the next little while ... mainly because I seem to have collected a number of interesting tidbits on such issues.

So let's start with one of the bigger human rights stories on the legal landscape.

Some of you are no doubt familiar with an education
case out of British Columbia from a few years ago,
Moore v.British Columbia, where a student challenged
both the provincial Ministry of Education and a school board for not providing students with learning disabilities with appropriate accommodations.

From an advocate's point of view, I find this case particularly interesting for two reasons: first, the bases on which the Human Rights Tribunal found both systemic and individual discrimination on the part of both the school board and the Province and, second, the courts' reasoning in overturning that decision (why they decided that no discrimination had, in fact, occurred). And although it might sound like I've just said the same thing twice, they are two very separate issues, as you will see.

Jeffrey Moore had a severe learning disability (SLD) but the very year he was found eligible to attend an intensive program for students with severe learning disabilities, it was cut for financial reasons. The services that were subsequently offered were not comparable to what he would have received in the intensive program and his parents later placed Jeffrey in a private school for students with learning disabilities.

The father brought a discrimination claim to the BC Human Rights Tribunal against the Province (the Ministry of Education) and the school board, alleging both individual and systemic discrimination. The Tribunal found in Jeffrey's favour, finding that both the school board and the Ministry of Education had failed to accommodate his needs in the delivery of educational services.

Individual discrimination had occurred when the school board and the Ministry failed to ensure that Jeffery’s disability needs were appropriately accommodated in the school board by not providing him with sufficiently early or appropriately intensive and effective remediation.

Systemic discrimination by the school board had occurred when services were disproportionately cut to SLD students without analyzing the impact on these students or ensuring that there were sufficient alternative services in place.

Systemic discrimination by the Ministry occurred when it under-funded the actual incidence of SLD students by imposing a cap on funding High Incidence/Low Cost disabled students, when it under-funded the Board resulting in significant cuts to services to SLD students, when it focused its monitoring only on spending and fiscal concerns, and when it failed to ensure that early intervention and a range of services for SLD students was mandatory.

Unfortunately, the Ministry and the Board were successful in their judicial review application and the Court of Appeal (CA) dismissed Mr. Moore`s subsequent appeal.

Here's where it starts to get interesting - unlike the Human Rights Tribunal, which had concluded that the service being provided was “educational programs offered by the Ministry and the [school board]” (in other words, public education services offered generally to the broad public), both levels of court found that services for students with disabilities were “special education”, not general education.

Proceeding on that basis, the courts compared Jeffery with other students who received “special education” and concluded that there was no differential treatment because no student receiving “special education” had access to the services that Jeffrey was seeking for during that period of time. In other words, it would appear that as long as you offer absolutely no "appropriate services" for students with LD, all will be right with the world.

This finding turned on the fact that the BC Human Rights Code provides that a person cannot discriminate against another on the basis of disability when that person is delivering a service that is “customarily available to the public”. Thus, the question became whether students with special needs were entitled to only “special education” services without experiencing discrimination or whether they should have the right to receive general education services without experiencing discrimination. [Can you believe we're even having this conversation?]

[The majority of the CA relied on a 2004 decision of the Supreme Court of Canada (SCC) that some of you might be familiar with (Auton v. British Columbia), in which the issue was whether the province's failure to fund applied behavioral therapy for autism violated the equality provisions of the Charter. In Auton, the SCC had held that a finding of discrimination under sec. 15(1) of the Charter must relate to a benefit or burden imposed by law - it cannot be based upon discrimination in the provision of services not provided under legislation as to do so is tantamount to dictating to the government what services should be provided.]*

The Moores appealed to the SCC, where the Canadian Association for Community Living (one of the intervenors in the case) argued that to find that students with disabilities were entitled to a separate and different “special education” service would be contrary both to the goals of BC’s Human Rights Code and the United Nations Convention on the Rights of Persons with Disabilities, both of which promote inclusive education. CACL also argued that a finding that students with disabilities were entitled to a separate and different “special education” would perpetuate the historical exclusion and disadvantage experienced by such students.

Other questions before the SCC include the use of a comparator group analysis in human rights' duty to accommodate claims and the limits on the scope of remedies that tribunals can order. Unfortunately, we can't go into those issues today, although I will note that what group the person claiming discrimination is compared to (known as comparator group analysis) can and has made a huge difference in whether or not discrimination will be found.

The Moore case was argued in March of this year and disability advocates are anxiously awaiting the SCC's decision in this case, as it should  have a significant impact on future human rights claims. Let's just hope they get it right.

* It should be noted that there was a dissenting opinion in the CA - in fact the majority of the decision (the first 162 paragraphs) is written by the dissenting judge with the majority judgment being a mere 25 paragraphs. Although unfortunately, in this case, size really doesn't matter, anyone with a legal bent might just "enjoy" reading those first 162 paragraphs or at least find them instructive.

Where Will You Go ... What Will You Discover?

Wow ... I was updating the "Places To Be" section in the sidebar and was amazed pleasantly surprised at how much is happening in the next little while.  So much so, in fact, that I thought it might just be best to give it a little more visibility and post about it right here.

You might think this month is pretty well shot but don't be fooled, there's still four activities left for this last week of September. 

Besides the regularly occurring Social Night for Persons with Disabilities every Tuesday @ 4:00 and the Mental Health for All Coffee House running Saturday afternoons from 1:00 - 4:00 from now until December 3rd (both in Halifax), Ken Pope, LLB, TEP, Henson Trust Specialist is offering a live videoconference/webcast on Disabilities and Estate Planning this Wednesday, Sept. 28th from 10:00 am to 12:30 pm.

Topics to be discussed include ODSP eligibility and benefits, exempt asset arrangements, using and back filing the disability and caregiver tax credits, Registered Disability Savings Plans, legal guardianship and Powers of Attorney, Wills and Henson Trust arrangements, funding trusts with life insurance, RRSP rollovers to adult children with disabilities, Lifetime Benefits Trusts to receive RRSPs for children as parallel trusts, and planned giving, bequests, charitable remainder gifts and minimization of income tax on death from RRSPs.

Also on Wednesday (and yes, you can do both because this just happens to be in the evening), Nova Scotia Community College Disability Services is offering an Information Session for parents, teachers, guidance counsellors and students. The point of the session is to answer questions about the transition from high school to college for learners with disabilities including those who are on an Individualized Program Plans. Issues that will be explored include how to help someone with a disability apply to college, whether having an IPP makes a difference when it comes to applying to community college, what can be done now to get ready for college in the Fall, what resources are available at NSSC that students might find helpful and what funding is available for students with disabilities in post secondary education. And, of course, often the most pressing question for parents; "I know how to support my child in school - what's going to change now s/he is going to college?".

And that's just for September.

Success

About our little adventure in trying to get out youngest daughter into Landmark East ... I have only one word to say.

Success.

Okay, maybe nine words ... Thank you Lord.  And Thank you Dept of Education.

And, trust me, the latter are not words you would ever often hear me say.

Now, next up ...

Did You Know?

Sorry I am a bit late getting this out (public school having started two days ago) but I do have a wee bit of an excuse - having just spent the last week or so trying to get Tuition Support funding to get my youngest daughter into Landmark East, I'm a little on the fried side.

Wish me luck, please ... although the school has agreed to take her and she started on Wednesday with the rest of them,we still don't know if the funding will work out!

But on to what I am here to talk about ... in the process of trying to crack the doors of a private school for learning disabilities, I happened to learn a couple of things I thought some of you might find interesting.

So here goes ....

• Unlike the former system of a student having to be on an IPP before they could access tuition support funding, the program now calls for them to be on an IPP, to have been on an IPP or to be "working towards an IPP"; and
  
• For a parent considering appealing an IPP, the regulations use to provide that only "outcomes" or "placement" could be appealed. BUT NOW IT'S POSSIBLE FOR A PARENT TO APPEAL THE FACT THAT A CHILD DOES NOT HAVE AN IPP ... in other words, that the school refuses to put the child on an IPP. [For those wondering, this is based on a change to s. 53(3) of the Ministerial Regulations made under the Education Act]

Two rather big developments I would say. 

With regard to the first, remember that it doesn't have to be an academic IPP. It could just as easily be a social IPP that the student is "working towards".

And with regard to the latter, I have spoken with many parents over the years whose children were refused IPPs and who were effectively left with no recourse other than the possibility of a costly law suit. Not so any more.

As a final thought, if one were inclined to put these changes together- if a parent was anxious to access one of the private schools for a student without an IPP, there are now two possible routes around that obstacle - convene a meeting of your child's program planning team and see if they are willing to work towards an IPP (social or academic) for the child or, if the school is uncooperative in that regard, appeal the school's refusal to provide an IPP. 

I'm not suggesing for one minute that going through that latter appeal process would be either an easy or fun experience (it generally being recoginzed that you are almost guaranteed to lose any such appeal at the school board level) but it does potentially open a door that, up until now, didn't even exist.

And that has to be a good thing, right?

One Out of Two Ain't Bad

Once upon a time we had two ... that's right, I said two! ... Learning Disabilities Conferences to look forward to this Spring. 

Unfortunately, the Annapolis Valley School Board was forced to cancel their planned event due to a lack of registration.  But the good news is that the Atlantic Conference on Learning Disabilities lives on!

This two-day conference will bring together experts from across our region with a focus on supporting youth with learning disabilities, gving delegates access to a wide variety of practical workshops on education and mental health.

And hey, just for a blast from the past, The Fonz actor, author, producer and director Henry Winkler will be one of the keynote speakers. Now, that's pretty cool, you gotta admit!

May 12-13, 2011 at Mount Saint Vincent University in Halifax.  Go here for the full conference schedule, list of speakers and workshops.

Be there or be square, as they say.

LD Awareness Month

"Dear Grandma and Grandpa," I wrote. "I felt like writing you, but I couldn't think of much letter-talk… I mean besides the fact that it is snowing. School is fine. So is Girl Scouts. And, of course, I love and miss you. But, I still want to write you a nice long letter. So, I decided to write you about my life."

The big problem

Well, I've got jumbled memories of being scolded because of my sloppiness… of being moved next to a girl with neat writing to teach me neatness… of taking scissors, cutting up my lunch sandwich… of cutting a fringe around my spelling paper… of wondering why everyone didn't have their crayons broken up… of being lost in a big city on a field trip.

The bad day

I suppose this day started as usual. Barbara, our next door neighbor, started taking me to school. I don't remember any of these walks. Then I entered. I sat down at my desk.

I sat and sat and sat. I wiggled. I remember raising my hand. The teacher called on me. I stood up. "I'm tired of just sitting here," I said.

"Well," she told me. "You're a big girl now. You have to sit and pay attention to learn." I sat down.

Came reading. I did the paper. It was especially neat. So the teacher gave me a 100 percent. I felt so happy and wanted it to look pretty so I took a pair of scissors and fringed it. The class let the teacher know. She tore it up. I wasn't happy.

The next lesson was worse. So, the teacher moved me by Robin, the "little peanut," I called her gaily, for she was quite small. Robin was very neat. She pulled out her workbook. The pages were white–not like my pages. All of mine were smeared and sweated. I had asked and asked for another workbook, but the answer was always, "No."

Soon it was lunch. We lined up. I tried to line up. I tried to line up behind Martha. The reason was, I thought she was quite pretty. I wish she'd pay attention to me. But then, no one else did.

You can read the rest of Dale's letter to her grandparents here.  Finish reading about her bad day.  Then learn about what makes a good day for a child who knows she is different than everyone else.

October is Learning Disabilities Awareness Month. 

And there's no shortage of workshops available to on relevant issues.  Whether you need to know more about the Program Planning Process and Assistive Technology or, perhaps on the slightly more practical side, you seek information on positive parenting, how a learning disability affects a child's behaviour or teaching social skills, they've got it covered. 

Teaching social skills ... now there's a workshop we could really use at my house.  Where's that sign up sheet?

Upcoming Upcomings

Lots of interesting things going on in these parts lately - just check out the heading "Places To Be - Upcoming Events" in the sidebar to the left.

But I thought I would highlight just a few.

One event I wish I could make but unfortunately can't is the Estate Planning for Adult Children with Disabilities session [sponsored by Support Services Group Co Operative Limited (SSG) and Halifax Association for Community Living] on Saturday, February 27th from 10:00 to 12:00 at the Seacoast Towers, 22-24 Dundas Street, Dartmouth NS.

George Clarke, a lawyer from Boyne Clarke, will present planning strategies to assist parents in leaving a legacy to adult children with a disability, without endangering public funding or programming. Guardianship and information on how to protect savings and guaranteed investments vs. non– guaranteed investments, as it relates to savings for your family and your dependent child will also be discussed. Insight will be shared on the types of investments that work well in trust funds. RSVP to James Baltus at 466-0230 or Jean Coleman at 463-4752 by February 25th. (Yeah, that's today).

It being tax season and all, the Disability Tax Credit is once again a hot topic. On Sunday, February, 28th, Megan Leslie, MP for Halifax will be hosting a Disability Tax Credit Presentation from 2:00 pm to 3:30 pm at Northwood Care Inc, Stadacona Room, 2615 Northwood Terrace, Halifax.

The Halifax Association for Community Living (a group which, if you're not familiar with them, you really should check it out) will be offering a Lunch 'n Learn session on the history and work of the organization on March 5, 2010.

There are not one but two Learning Disability Conferences in the near future.

The Annapolis Valley Regional School Board Learning Disabilities Conference Day (entitled "Unleashing the Potential of the Teenage Brain") is Saturday, March 27th at the Kentville Firehall. The registration deadline is March 12th. For more information or to register contact Gail Demmings AVRSB 538-4638 or email gail.demmings@avrsb.ednet.net.ca

The 2010 Nova Scotia Learning Disabilities Conference will be held on May 13th & 14th at the World Trade & Convention Centre in Halifax. Visit the LDNS website for more information and to preview this year’s list of speakers. Register by March 1, 2010 and you will be entered to win a day at the spa!

And last, but certainly not least, might I remind you that the NDP Consultations are continuing around the Province. This is your opportunity to voice your opinion as to how the government needs to support people with intellectual disabilities. You can visit the government website for directions on making your voices heard. But before you do, you might want to check out the responses from the Nova Scotia Association for Community Living regarding the 4 questions asked by Graham Steele, Finance Minister.

There you go ... don't say I never told ya!

'Shaking My Head'

Six months ago, I opened a Registered Disability Savings Plan (RDSP) for my oldest daughter.

Deposited the amount ($1,500) that would garner the highest government contributions for the year. It's not like I would be able to deposit that much (or necessarily any) ever year but while I had access to the funds it seemed like a good idea. Sure, there were a few problems with the process at the time but I still felt like I had make a good choice.

Yesterday I went back to the Royal Bank to open a second RDSP for my youngest daughter. Which reminds me, as a side note, don't ever let anyone tell you that an individual with 'just' a learning disability will not be eligible for the Disability Tax Credit. Not only are they eligible but I have the living proof in my own home.

Dealing with the same sales rep as previously, we got to chatting. I suggested that he should be a pro at opening RDSPs by now. And was very surprised when he told me that he had only opened one more after mine (which was his first).

Six months and he had only opened one other RDSP?

So we chatted some more. Guardianship (and the cost of obtaining same) was definitely an issue for some of those whom he had talked to. I can certainly understand that. Some have real philosophical objections to the issue. Others simply can't afford the cost of hiring a lawyer. Those are legitimate issues. Ones which I hope to see progress on in the near future.

As a matter of a fact, I know of one family locally who is preceding with a guardianship application on their own. Well, not entirely on their own. With a little bit of help from their friends. It always helps to have precedents to work off. Still, it will be interesting to see how well it works for them.

I am pretty sure that judges are not use to see individuals applying for guardianship appearing on their own. Without legal counsel. Oh, the travesty. Hopefully, it will open the door to others taking the same course. I will let you know how they make out, if that's okay with them.

But back to my story. A little later, I asked the sales rep if he could tell me the current balance in my oldest daughter's RDSP. The one I had opened and made a one-time deposit of $1,500 in last February.

Would you believe it was over $6,000?

Not a bad return on investment for $1,500 deposited 6 months ago. I deposited the same amount ($1,500) in my youngest daughter's RDSP yesterday. And now I will sit back and watch it grow.

So here I sit shaking my head. Other than the guardianship issue, I honestly don't understand why more people aren't making use of the RDSP.

Hello! We're talking free money here, people. If the federal government is willing to thrown free money at my child, who am I to refuse?

PLAN put a lot of time, effort and hard work into having the RDSP move from a good idea in someone's head, through the political and legislative process, to become reality. And yet my sense is that (for some reason I cannot fully comprehend) a lot of people are not making use this incredible opportunity.

What? Is there anything more you need to know?

*Walks away, shaking head*

'The Most Wonderful Time of the Year'

In honour of which we have added a new set of links to the sidebar.

You will find them about halfway down sidebar on the right hand side of the page entitled "Helpful Links - Education". Courtesy of The Nova Scotia Partnership on Respite, Family Health, and Well-Being.

And speaking of heading back to school, while parents of children with special needs may have strong feelings one way or the other (or both) as to whether this really is 'The Most Wonderful Time of the Year', I doubt many will be complaining about the fact that the Nova Scotia government has extended the tuition support program for another year.

Originally set to be a three-year program it was extended to four years. And now five. Do I hear six? Going once, going twice...

If you want to know more about the program [Trust Me. You Do.], check out the Department's website and scroll down the page on this link.

'A Journey of 1000 Miles'

So I attended the AVRSB Learning Disability Conference today.

As I already noted, the speaker, Rick Lavoie, has quite an impressive and extensive resume in the field of special education, holding three four degrees in special education and having served as an adjunct professor at numerous universities. He also served as an administrator of residential programs for children with special needs since 1972 and now serves as a consultant on Learning Disabilities to several agencies and organizations.

This they tell you. What they don't tell you is that he has what describes as "moderate to severe ADHD". Not that you (or at least I) could tell, not until he said it. I had noticed that he looked at his watch quite regularly but the fact that he used a wireless microphone, giving him the ability to move around at will, didn't stand out for me. Not until he mentioned it.

His sons also have ADHD. Which didn't really surprise me given that I've often found that the best professional in the field (be it teacher, lawyer, psychologist) is the one who is also a parent of a child (or himself lives) with a disability.

A few years ago (at the same Learning Disabilities Conference, if I recall correctly) I had the pleasure of listening to Dr. B. Duncan McKinlay, a psychologist who has been diagnosed with both ADHD and Tourette's Syndrome. His presentation was entitled "Life's A Twitch" (go check out his website) and it was an absolutely amazing experience to hear his story and insight.

But I digress.

Rick's topic was The Motivation Breakthrough: 6 Secrets to Turning On the Tuned-Out Child. He's a very good speaker and although I might have appreciated a few less anecdotes and a little more substance, it was an interesting and productive day. I took some notes so perhaps at some point I might be able share some of his thoughts on what exactly does (and doesn't) motivate, not just our kids, but all of us.

Did I mention that he's a very good speaker?

One of the first things I noticed was how he was able to connect with both the parents in the audience and the professionals.

And, it was in that regard, that there was something I really wanted to share with you tonight. But first let me say that I am neither a Republican (thank goodness) nor a Democrat (thank goodness again). Although I have been impressed, on occasion, by Sara Palin, when it comes to issues around disability. For example, if you haven't yet seen this video, I would highly recommend it.

But Rick told the story today of how he was asked to write a newspaper piece during this past US Presidential election with his thoughts on Governor Palin's promise to be a champion for "special needs families" because she "knows what they are going through".

He shared with us his response, which he now has posted on his website, and which I found truly amazing.

As an advocate for families of handicapped children for over three decades, I have taken a special interest in the role that Trig Palin is playing in the Presidential campaign. Trig, now six months old, is nominee Sarah Palin’s son. He has Down Syndrome. Governor Palin often tells her audience that she will be a champion for “special needs families” because “she knows what you’re are going through.

With great respect and empathy, I must say, “Sorry, Governor, but you don’t.” You will…someday. But not now. Not yet.

Trig is – and always will be – a blessing in your family’s life. But, Governor, your journey has just begun. You will understand…someday. But between that day and today, there will be a lot of other “somedays.”

Someday…you and your family will spend stressful hours in a hospital waiting room while Trig undergoes corrective surgery. The doctors will call it “routine” … but that characterization will seem foreign and insensitive to you.

Someday…a relative or “close friend” will suggest that Trig not be brought to a holiday function because “it may be too much for him to handle.” Your relationship with that person will never be exactly the same again.

Someday…some stranger in a store will stare at him and ask an insensitive and intrusive question. Startled, you will give a bland response. But for several days after the incident, you will generate great and clever retorts that you “should have said." (By the way, you won’t be able to recall these “clever retorts” the next time this occurs).

Go read all of it.

And watch your life unfold before your eyes.

My Apologies ~ Learning Disabilities Conference Day

Talk about short notice. Mea culpa.

But the Annapolis Valley Regional School Boards' Learning Disabilities Conference Day is this week, Saturday, April 25th, to be exact.

You can find more details here but the speaker is Rick Lavoie, M.A., M.Ed.

Rick Lavoie has served as an administrator of residential programs for children with special needs since 1972. He holds three degrees in Special Education and has served as an adjunct professor or visiting lecturer at numerous universities including Syracuse, Harvard, Gallaudet, Manhattanville College, University of Alabama, and Georgetown. His numerous national television appearances include: CBS Morning Show, ABC Evening News, and Disney Channel Presents.

Rick serves as a consultant on Learning Disabilities to several agencies and organizations including Public Broadcasting Service, New York Times, National Center for Learning Disabilities, Girl Scouts of America, Child Magazine, and WETA. He is a member of the Professional Advisory Board of the Learning Disabilities Association of America.

Rick has delivered his message to over 500 thousand parents and professionals throughout North America. He has the distinction of having delivered Keynote Addresses for all three of the major special needs advocacy organizations in the United States (Learning Disabilities Association, Council for Exceptional Children, Children with Attention Deficit Disorder).

I can't seem to find where I saw it but I believe the title of Mr. Lavoie's talk is Unlocking The Key to Motivation, which, if you have a child with a learning disability, might just grab your attention.

Sorry, if it's too late but for more information, or to register, contact: Gail Demmings, Student Services Division Annapolis Valley Regional School Board (902) 538-4638 gail.demmings@avrsb.ednet.ns.ca

Probably sooner rather than later would be good.

The Power of *You*

Have you ever noticed how some among us would immediately jump to litigation as the solution to every issue? And how others, on the opposite end of the spectrum, would never consider such a thing; after all, aren't all problems simply solutions in need of some diplomacy?

The more realistic view is, of course, somewhere in between. You have to be willing to back up your talk with action, if need be. And yet, immediately tossing over your lawyer's business card at the first sign of a disagreement can be a little less than helpful, to put it mildly.

Which is why I appreciated this story in the Fall 2008issue of the Learning Disabilities Association of Canada National newsletter. In "One Family's Successful Challenge of an Unfair Policy", Dr. David F. Philpott writes about a 15-year-old high school student in Newfoundland who had been assessed as intellectually gifted with a co-existing written output disability.

For many years, Brad had used a laptop with MS Word to take notes and complete projects, with good results. But in his first year of high school he was told that his support plan would have to be changed to "reflect a narrower set of accommodations for public exams". Apparently provincial policy limited accommodations on public exams to software programs like MS WordPad on the basis that the spell check and grammar features provided an unfair advantage. When discussion was ineffective and no one was able to provide the exact value that spelling and grammar had on the exams, Brad's family instituted a complain with the Human Rights Commission.

Unfortunately, as anyone who has had any experience with such claims will tell you, the human rights process can be painfully slow. The complaint was imitated in 2006 and when, despite the family's focus on a settlement, it was clear that none would be reached, the decision was made to take the case forward to a hearing. But by the fall of 2007, the term of the Commission's adjudicators had expired and a new panel had not yet been appointed. And Brad was in his final year of high school, where his exam marks would determine his post-secondary options.

READ MORE

The Challenged Youth v. The Criminal Justice System

What (if any) are the duties on the police when dealing with a youth suspected of committing a crime?

What if that youth happens to face some less obvious intellectual challenges?

The Youth Criminal Justice Act provides that before a statement made by a young person can be used as evidence in court the Crown must prove that the police clearly explained to him or her that

1. the statement could be used against them,
2. that they are under no obligation to make a statement,
3. they have the right to consult a lawyer and
4. that any statement they make must be in the presence of a lawyer or another adult (usually a parent) unless the youth desires otherwise.

In order for a waiver to be valid, these rights must have been clearly explained.

~ ~ ~ ~ ~ ~ ~ ~ ~

This past autumn the Supreme Court of Canada restored the acquittal of a Nova Scotia learning disabled teen charged with dangerous driving causing bodily harm.

Despite the youth having 39 prior convictions, on a variety of offences, since age 12, the youth court judge, viewing his videotaped statement, was not convinced the youth properly understood and waived his rights and ruled the statement inadmissible, resulting in an acquittal.

The SCC upheld the acquittal, clarifying that police must not only advise a young person of the rights set out above but also ascertain that they actually understand those rights and, perhaps most importantly from our point of view, when determining what language to use in explaining these rights, the police must make an effort to become aware of complicating factors, such as a learning disability or any previous experiences with the criminal justice system.

Although the boy’s mother had told police of the teen's learning disability, the youth court found that the officer read him his rights in a rapid monotone, not making eye contact, asking only if the boy understood – to which he answered "yes" – but without attempting to gauge the level of that understanding. The mother said that on previous brushes with the law, her son had relied on her to explain what was happening and that he likely didn’t want to betray his confusion.

It was these facts; namely

• the officer’s rapid pace in navigating the waiver form;
• the lack of eye contact with the youth;
• the officer’s monotone voice;
• the lack of evidence, apart from his affirmative reply to repeated questions of “do you understand?”, that the youth actually understood his rights; and
• the lack of effort on the officer's part to establish the youth's level of understanding

that caused the youth court judge to be left in a state of doubt as to whether the youth really understood the importance of the questions and the answers he was giving.

On a bottom line level this SCC decision means that the police are going to have to work harder to ensure that all the youth they deal with understand their rights and what it means to give up such rights. It isn't going to be enough just to read them a script and ask if they understand. Rather, they will have to ask questions about the individual circumstances of each youth (and then tailor their speaking so as to meet that youth's level understanding) before taking his or her statement.

Meaning that the justice system, and in particular the police, as the system's front line actors, must accommodate all youth, including those with disabilities.

But could this case stand for even more than that?

Nova Scotia Conference on Learning Disabilities Alert

October is Learning Disabilities Month across Canada.

Which would probably help explain why October 2nd and 3rd are the dates of the Nova Scotia Conference on Learning Disabilities.

Which you can find out more about here.

But don't let the cost scare you off; I have it on good authority that there are special parent rates available. Go ahead and give them a call.

Just don't wait too long. Time, it is a passin'.

Appeal Strategies For Tuition Support Program

This comment was dropped on the "Tuition Support Program Gets Fourth Year' post.

I have a daughter with a non verbal spvisual [sic] spatial disorder. Even though she has had Resource an IPP and tutoring paid by us, she is two years behind. She has no behavior issues, is a good student and tries extremely hard. She is exhibiting anxiety, and we want to send her to a place that can help her. Why would the Governmnet [sic] take this away.

Why indeed?

Which led to me a dated, but good, post outlining Strategies For A Tuition Support Appeal at the Equal Education Association of Nova Scotia blog.

Which you should check out.