Fight for the things that you care about but do it in a way that will lead others to join you.
~ Ruth Bader Ginsburg, US Supreme Court

Showing posts with label Policies and Guidelines. Show all posts
Showing posts with label Policies and Guidelines. Show all posts

Friday, October 8, 2021

In Residential Care Situations, What Are Essential Visitors?

These days when I come across an interesting issue or article in the media, I generally just post on FaceBook, reasoning that at least that way it will receive some attention. You may not know this but legal blogging is  a very labour and time-intensive craft (at least it is if you want to do it right) and many days I find it hard to keep up with both my practice and my life.

Although something may indeed better than nothing, the downside is that it limits how much commentary I can provide on any given issue, so it really isn't the same, is it? 

So just as I would about to add this link on the MMC Legal Services FB page , I stopped, took a deep breath and made the decision bring it here instead. Consider it a small effort at atonement.

I know for a fact that the restrictions on visitation at Dept of Community Services home in Nova Scotia has affected many individuals and their families. Although I don't know for sure exactly how negatively people have been affected here, I do know that Nova Scotia could sorely use something along the lines of this proposed Private Member's Bill in Ontario.

Many, including Taylor, hope that a private-member’s bill introduced in September 2020 could lead to change. The More Than a Visitor Act, proposed by Lisa Gretzky, NDP critic for the Ministry of Community, Children and Social Services, aims to ensure that caregivers of a group-home resident would not be treated “merely as a visitor,” especially in emergency situations. The bill defines a caregiver as an individual who “continuously or occasionally provides significant, unpaid, non-professional support to a person receiving care, support or services,” shares an “emotional bond” with the person who receives care, and is considered by the person receiving care, or their substitute decision-maker, to be a designated caregiver. “A designated caregiver,” the bill reads, “may be a family member, a neighbour, a friend, a support person, an attorney for personal care or property under the Substitute Decisions Act, 1992 or another similar type of person.”

There's already been one successful human rights decision on this issue in Ontario, in which the Commission found that a child's disability-specific needs were violated when a rigid visitor restriction policy initially allowed for only video calls or drive-by visits and when in-person visits were allowed, they were required to remain six feet apart from residents. Unfortunately, due to a  communications disability, the child could not use words to communicate, instead relying on  touch, hugging, pulling on hands, gestures and other physical displays of expression.

This decision raises (and answers) many complex and timely issues.

Significantly, the Tribunal found that “[h]uman rights protections do not go away in a pandemic”, despite the service provider's argument that the unprecedented nature of the pandemic did not allow space for individual human rights protections or individualized assessment. Although the pandemic raised important and difficult issues, service providers were still required to follow the requirements of the Code. The human rights framework is robust enough to address many contexts – including a pandemic where safety and health considerations require particular attention. 

The next point of interest is Commission's response to the argument that the parents were at fault for failing to try out the alternative methods of communication proposed offered and instead “insisted upon their preferred accommodation.” The Tribunal rejected this, finding that once the parents had made an accommodation request and explained why the alternatives offered were insufficient, it was incumbent upon the Respondent to actually consider their request, as opposed to insisting that their way was the only way. 

Although the duty to accommodate requires the cooperation of both parties cooperative process, the ultimate responsibility for finding and implementing the accommodation solution remains with the respondent.          

The third important finding relates to the effect of government guidance around safety protocols on human rights obligations. The provider asserted that it was required to strictly follow the government guidelines and couldn't deviate from these to accommodate any individual. However, the Tribunal found that such directions were advice and recommendations intended to guide service providers in their decision making. 

This mandated that the service provider implement the government’s guidelines and recommendations with its mind turned to the individual human rights of its residents. The accommodation request must be investigated and an assessment of the actual risk of accommodating the individual must be undertaken. As they had failed to do this, it was unable to demonstrate that accommodating these individual needs would amount to undue hardship.

The ball was in the respondent’s court to consider the applicant’s accommodation request, and seek its own public health advice on that specific request. It did not do so. Instead, it remained steadfast in its approach. Because the respondent did not investigate the applicant’s accommodation request, there is no objective health evidence that it would have caused undue hardship to grant the request in terms of jeopardizing the health and safety of the residents and staff in the applicant’s home. (para 132) 
Although the Tribunal’s decision relied heavily on the individual facts of the case (the child came with particular pressing needs to have meaningful contact with his parents; the group home had only two residents, which was a relatively controlled environment; and the public health authority was supportive of an individualized risk-based assessment informed by the rates of transmission in the region at that time). all of the above were important factors in the Tribunal’s determination. 

I would submit that there is a strong argument to be made that such such accommodations must be guaranteed to  adults as well. There are a myriad of factors to be considered when individuals have developmental disabilities or delays. For example, outdoor visits with strict rules around touching can be very confusing and upsetting for these individuals, no matter their age. 

The definition of "essential visitors" in residential care situations must include parents or other significant individuals and accommodations must be made [to the point of undue hardship] to meet everyone’s needs. The law requires it.

Monday, October 10, 2016

The Disability Support Puzzle Changes Again

Some of you might recall me posting a little over two years ago when the Dept of Community Services first posted the Disability Supports Services for Persons with Disabilities (SPD) Program Policy online. The document covered both financial eligibility for the programs under the SPD umbrella and the Basic and Special Needs Policy. So good stuff, that.

Or, at least I thought so, until I noticed the other day that we now also have a Level of Support Policy, dated May, 2014, which appears to supplement the 2012 Policy. Which, yes, means I am a little out of date, but, really, if you knew about it, why didn't someone tell me? Personally, I find that it can be awful hard to keep with life these days.

But back to the point and that is this - this Levels of Support Policy appears to be significantly different than the 2012 Policy.

While the Disability Supports Program Policy (2012) mostly concerned itself with general eligibility requirements and SPD DSP support options (aka Places to Live), such as

  • Direct Family Support;
  • Independent Living;
  • Alternative Family Support;
  • Residential Care Facilities;
  • Group Homes;
  • Developmental Residences;
  • Small Options Homes;
  • Adult Residential Centres and
  • Regional Rehabilitation Centres

the new Levels of Support Policy focuses much more on "support planning" and the five "levels of support", along with the requirements for each.

If you're not "in the know", when an individual transitions to the adult system they are re-assessed and given a Levels of Support rating, from One to Five.The Support Levels look something like this:

  • Level One - Minimum Support
  • Level two - Moderate Support
  • Level three - High Support
  • Level four - Enriched Support; and
  • Level five - Intensive Support


What form of residential support "program support options" are available to that person will depend on what Level of Support they have been assessed as requiring.*

To come up with said Support Level, the assessment looks at
  • Activities of Daily Living;
  • Instrumental Activities of Daily Living;
  • Health Status;
  • Medical Conditions;
  • Behaviour; and
  • Safety

The Levels of Support Policy also deals with other issues, of course, such as
  • medical care and behavioral support requirements; 
  • acute nursing services; 
  • chronic medical conditions; 
  • end of life care; 
  • behavioral support parameters; and 
  • something called "discretionary case management regarding a program option". 

Of course, last, but certainly not least (and never to be forgotten) sits the the appeal process.

Intrigued? Perhaps you best check it out for yourself.


* You might want to consider asking for a copy of the Assessment after it's complete. You will likely be denied, but that's no biggie - just make an application under the Freedom of Information Act. Don't ask me why they make us jump through the hoops, but they usually do. At any rate, I think it's worth having a copy of this (and further reassessments if the Support Level is changed) just in case. Here, this might help.

** For a complete list (with links) of all policy documents under the Disability Supports Program, go here.

Tuesday, September 3, 2013

Back By Popular Demand


Okay, maybe "demand" isn't quite the word, but I can tell you it sure was popular! And since it is that time of the year again...

Oh yeah, I decided to be extra nice today -you don't even have to click on the link back to the original post.

And yes - yes,I did check all the links and there are still valid. But if anyone knows of any other relevant document that I missed, please include the link in the comments.

Happy Reading


One Stop Shopping


Back to school. Ugh.
Back to school shopping. Again. Ugh.

Although, personally, I would take the shopping any day over actually having to send my kids back and start yet another year (this will be year 15 for my oldest) of "advocacy".

But do not despair. Nice person that I am, I have put together a list of ammunition documents you really should be familiar with as we start another school year.

I've tried to bring some order to the chaos by organizing them by topic but ... well, really, you wouldn't want me to take all the fun away and make it too easy, would you? Just think of it as digging through the bins at Frenchy's ... you never know when you will find a great bargain that fits you just right!

Special Ed in General

Special Education Policy Manual aka "The Bible" (2008)  -That's right, this document should be your Bible for just about any issue you might face with your school, your Board or the Department.

Life Skills: Supporting Student Success (2009) - A little-known document that can be a life-saver when your school tells you that they're very sorry but your child MUST take all these academic courses to get the credits necessary to graduate. It's not their fault; blame the Department.

OR you could just pass over this document, which sets out exactly how "life skill" credits can be and are recognized. Look at that ... a How To Guide for your school!

Increasing Learning Success (2008) - Although written more or less as a how-to guide for reorganizing high school to keep typical students engaged, there are a fair number of ideas discussed that could be very helpful for students with special needs.

Program Planning Process: A Guide for Parents (2006) - This document basically pulls out (and slightly expands upon) the portion of the Special Education Policy Manual (see above) dealing with the program planning process.

"Just how do I go about getting my child an IPP?", you ask. Look no further...
Supporting Student Success: Resource Programming and Services (2006) - Written to provide direction to school boards on the role of resource teachers and their expected competencies and to assist in the development of related policy and procedures, it is also intended to serve as a framework for professional development for resource teachers, classroom teacher and school administrators regarding the resource role in the program planning process. 

In other words, find out just how Resource is suppose to work.

Respect for Diversity: A Planning Resource (2007) - This resource came out of the Minister's Response to Addressing Bullying in Nova Scotian Schools: A Student's Perspective in 2003. (The more things change ... no?)  It's intended to be a resource for students to use to support the advancement and promotion of diversity ... meaning it's to be used a resource to assist in the planning and delivery of a school-wide Respect for Diversity Day. Never heard of such a thing? Don't feel bad ... neither have I!

It just might just be worth checking out, however. Challenge your school and see if they're up to holding their very own (and chances are, very first) Respect for Diversity Day.

Wednesday, December 19, 2012

Holiday Travel, Anyone?

While I do have a post brewing on some more human rights in education issues, given the time of year and the fact that I have a few other irons in the fire at the moment, I'm hoping you will forgive my tardiness. And, for now, see fit to accept this collection of potentially useful links for traveling this holiday season (or any other time, for that matter).

But first, some background on the Canadian Transportation Agency.
The Canadian Transportation Agency is an independent administrative body of the Government of Canada. It performs two key functions within the federal transportation system:
  • As a quasi-judicial tribunal, the Agency, informally and through formal adjudication, resolves a range of commercial and consumer transportation-related disputes, including accessibility issues for persons with disabilities. It operates like a court when adjudicating disputes.
  • As an economic regulator, the Agency makes determinations and issues authorities, licences and permits to transportation carriers under federal jurisdiction.
Part of the Agency's mandate includes dispute resolution (resolving complaints about federal transportation services, rates, fees and charges) and accessibility (ensuring Canada's national transportation system is accessible to all persons, particularly those with disabilities).

And, by the by, the CTA is also the Agency responsible for the historic One Person, One Fare” decision, in which the the right of  individuals with disabilities to have access to a second seat when traveling by air in Canada without having to pay a second fare for an attendant or other use, to accommodate their disability was recognized.

So now that you are sufficiently versed in the "who", let me share with you the "what". For your viewing pleasure, I offer the following three documents from the CTA:

Carriage of Mobility Aids On Board Planes, Trains and Ferries
This document sets out the standards, regulations, policies and procedures concerning the carriage of mobility aids in air, rail and ferry travel. It also provides some helpful tips for those traveling with mobility aids, as well as the procedure to be followed in resolving any problems/issues.

Take Charge of Your Travel: A Guide for Persons with Disabilities
This guide helps to anticipate the questions and prepare for the challenges that can arise when traveling. Starting with suggestions on making reservations, the document goes on to look at potential issues around the terminal, getting on board and your arrival at the other end (including mobility aids, medical clearances and service animals). There are some handy reminders and advice about what to do when things don't turn out as you expected, as well as a section with useful information sources and an index to help with quick searches. A reservation checklist is also included.

Accessible Transportation Complaints: A Resource Tool for Persons with Disabilities
As the title suggests, this document deals with the procedures involved in resolving accessible transportation complaints.

I haven't personally reviewed the documents at any great length or had any reason to use them yet (although I hope to change that soon - meaning I hope our family will be doing some travel by air this summer) but I hope you find them useful, either now or in the future.

H/T to the Arch Disability Law Centre and their great newsletters

Monday, September 10, 2012

One-Stop Shopping

Back to school. Ugh.
Back to school shopping. Again. Ugh.

Although, personally, I would take the shopping any day over actually having to send my kids back and start yet another year (this will be year 15 for my oldest) of "advocacy".

But do not despair. Nice person that I am, I have put together a list of ammunition documents you really should be familiar with as we start another school year.

I've tried to bring some order to the chaos by organizing them by topic but ... well, really, you wouldn't want me to take all the fun away and make it too easy, would you? Just think of it as digging through the bins at Frenchy's ... you never know when you will find a great bargain that fits you just right!

Special Ed in General
Special Education Policy Manual aka "The Bible" (2008)  -That's right, this document should be your Bible for just about any issue you might face with your school, your Board or the Department.

Life Skills: Supporting Student Success (2009) - A little-known document that can be a life-saver when your school tells you that they're very sorry but your child MUST take all these academic courses to get the credits necessary to graduate. It's not their fault; blame the Department.

OR you could just pass over this document, which sets out exactly how "life skill" credits can be and are recognized. Look at that ... a How To Guide for your school!

Increasing Learning Success (2008) - Although written more or less as a how-to guide for reorganizing high school to keep typical students engaged, there are a fair number of ideas discussed that could be very helpful for students with special needs.

Program Planning Process: A Guide for Parents (2006) - This document basically pulls out (and slightly expands upon) the portion of the Special Education Policy Manual (see above) dealing with the program planning process.

"Just how do I go about getting my child an IPP?", you ask. Look no further...

Supporting Student Success: Resource Programming and Services (2006) - Written to provide direction to school boards on the role of resource teachers and their expected competencies and to assist in the development of related policy and procedures, it is also intended to serve as a framework for professional development for resource teachers, classroom teacher and school administrators regarding the resource role in the program planning process. 

In other words, find out just how Resource is suppose to work.

Respect for Diversity: A Planning Resource (2007) - This resource came out of the Minister's Response to Addressing Bullying in Nova Scotian Schools: A Student's Perspective in 2003. (The more things change ... no?)  It's intended to be a resource for students to use to support the advancement and promotion of diversity ... meaning it's to be used a resource to assist in the planning and delivery of a school-wide Respect for Diversity Day. Never heard of such a thing? Don't feel bad ... neither have I!

It just might just be worth checking out, however. Challenge your school and see if they're up to holding their very own (and chances are, very first) Respect for Diversity Day.

Fact Sheets (Pretty much speak for themselves)
Adaptations - Strategies and Resources

Assistive Technology - Access to Learning

Inclusion - Supporting All Students (Fact Sheet)

Program Planning - A Team Approach (Fact Sheet)

Transition
Transition Planning for Students with Special Needs: The Early Years Through to Adult Life (2005) - Did you know that your child might well be entitled to an Individualized Transition Plan? But wait, what the heck is a Transition Plan? And when is this so-called "transition planning" suppose to occur?

SLP and School Psychologist Guidelines (Some hidden goodies)
Speech-Language Pathology Guidelines

School Psychology Guidelines

Student Records
Student Records Policy

Discipline
Provincial Code of Conduct and School Code of Conduct Guidelines (2008)
This. Document. Is. Very. Important.

The regulations made under the Education Act require the Minister to create a Provincial Discipline Policy (aka the Provincial Code of Conduct). All school boards are mandated to create Codes of Conduct (discipline policies) based on the Minister's Policy and each individual school is obligated to create its own School Code of Conduct. Neither a Board's nor a school's Code of Conduct can contradict the Minister's Policy.

Now listen carefully - the Provincial Discipline Policy was changed in a very significant way in 2008. Prior to that time, no provision was made to take into account a student's stage of development and special needs when meting out discipline. In fact, there was a chart which very clearly in black and white laid out specific behaviour and the consequences of such behaviour - if you do this, you will be suspended; if you do this, the police will be called in; etc.

Thankfully, that is no longer the case - the Provincial Policy clearly states that consequences for misbehaviour must be "appropriate to a student's stage of development and in consideration of the student's special needs". It is further stated that "consequences must make sense to a student as much as possible." The School Code of Conduct policy also supports the development and implementation of a comprehensive school-wide PEBS (positive effective behaviour supports) program. Behaviour is divided into "disruptive" and "severely disruptive" and a range of possible consequences are provided for various behaviours within these categories.

All of the above are very significant changes. Very significant changes that, one would presume, were brought about, at least in part, by a Charter challenge against the Province's discipline policy many years ago.

The case never made it to court and the parents involved could be forgiven for thinking it had all been for naught and no progress had been made. Or, at least, they no doubt thought that until they saw that some of the very changes they were requesting have been incorporated in the Province's Discipline Policy. We haven't made it as far as some other provinces (in particular, Ontario, includes the need to recognize a student's special needs when it comes to discipline within the regulations made under their Education Act) but we have made progress.

So the next time an administrator tells you that they have no other choice, their hands are tied, they have to suspend your child just as they would any other student who had (fill in the blank) .. you might want request both your Board's and the school's Code of Conduct and compare them to this document.

Time-Out Guidelines (2010) - Check out that date ... anyone care to hazard a guess as to the why behind these Guidelines? As so very often happens, change only seems to occur when parents GET LOUD. 

** By the way, did you notice that the practice of using time out is to be decided through the Program Planning Process as set out in Policy 2.2 of the Special Education Policy Manual? Which, to my way of thinking, requires prior parental consent (or at least knowledge) of its intended use.

Guidelines for the Use of Student Restraint (2011) - Need to know what the school can and can't do to restrain your child? Need to gently remind them that physical restraint is to be considered a last resort and only to be used when someone's safety is at risk?

IPP Appeals
School Board and Ministerial Appeal Guide (2000) - Sets out the procedure to be followed when a parent appeals an IPP; first at the school board level and then at the Department level. And, remember this, although you may not have a very good chance of success at the Board level (cough, cough), your chances improve significantly should you convince the Minister to grant you a provincial appeal.

Tuition Support
Tuition Support Program - If your child has a diagnosed Learning Disability, ADHD or autism* and you  are not familiar with the TSP, then you need to be. And take heart, the program has become a little looser than it previously was.

* Unfortunately you are more likely to find a school able to accommodate your child if they have a LD or ADHD, then if they have autism.

Guidelines Regarding Entering Into Agreements, including Tuition Agreements, for the Provision of Services and Benefits * (2011) -  These are the Guidelines that are to govern when the Program Planning Team has exhausted all options and agrees that the public school system cannot meet a student's needs. In such a case, a school board can agree to cover the total cost of the student's tuition at a private school. Just don't expect this to happen too often.
* Not to be confused with the Tuition Support Program, above

Transportation
Handbook for the Transportation of Students with Special Needs (2011)

Medical Care
Diabetes - Guidelines for Supporting Students with Type 1 Diabetes (2010)

Diabetes - Standards of Care for Students with Type 1 Diabetes in School (2008)

DNAR - Guidelines for Supporting Students in School Who Have a Do Not Attempt Resuscitation Order (2012)

Teacher Assistants (aka EAs, TAs, EPAs)
Guidelines for Teacher Assistants (2009) - Need to know the roles and responsibilities of teacher assistants? What are their expected qualifications and competencies? Unfortunately, the document doesn't quite answer many parents' burning question ... "How the heck do I get one for my child?"

Miscellaneous
Schools Plus - One of the Department's newer initiatives and worth taking a look-see at.

You can find a series of special reports here, including the Autism Management Advisory Team (AMAT) Report - Lifespan Needs for Persons with ASD.

And although not technically from the Department of Education, you might find this document useful if you find yourself trying to explain to the school why your child with autism requires a service dog at school.


One (or two) last word(s) ... it took a while to convince me, but after meeting twice with the Minister of Education last year, I am at last convinced that the Department, itself, actually has some pretty good policy documents; as just one example, I was particularly pleased to be pointed to the Life Skills document above after having been repeatedly told my child's high school that she had to sit through (what to her are) totally useless academic courses so that she could get a (to her) totally useless piece of paper (diploma). Can't do life skills as credits, huh?

Knowledge IS power. So now our challenge, as parents, is to actually find and use those documents in our dealings with our children's schools and school boards. I just did some of the leg work for you ... now it's your turn!

Sunday, August 5, 2012

June 2012 Services for Persons with Disabilities Policy


Some of you might recall our previous discussions around the various programs offered under the Services for Persons with Disabilities (SPD) umbrella.

The policy documents  for each of those individual programs (Independent Living Support, Alternative Family and Direct Family Support) can be accessed by clicking on the relevant link on this page and then looking for the policy link on each program page.

But, lo and behold, the Department of Community Services (DCS) has now provided the policy document for the entire SPD Policy (dated June, 2012) online. The document covers both financial eligibility for the programs under the SPD umbrella and the "Basic and Special Needs Policy". 

Which, this is big news, because although you may want to first read the policy document for the individual program you are dealing with, you will definitely want to become familiar with the SPD policy itself.

And although it's next on my own personal "to do list", a little birdy has told me that if you find yourself in a dispute with the DCS (be it for yourself or a family member) around the SPD program, this new policy document might just be well worth the read.

H/T to my *little birdy*

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.

Sunday, July 3, 2011

Subject to Change Without Notice??

The Nova Scotia Department of Community Services (DCS) backed off a clandestine plan to cut medical services for disabled Nova Scotians living in special care homes late Friday Thursday afternoon, hours before it was to take effect.

The province had planned to implement the unannounced cuts over the Canada Day long weekend, but shelved the plan hours after the Canadian Press News Agency sought comment from DCS Minister Denise Peterson-Rafuse. Operators of special care homes were told the policy was “on hold” in late afternoon emails from frontline care coordinators.

The policy would have curtailed coverage for a wide range of medical benefits including dental care, drugs, and medical supplies.

In one case, workers caring for an elderly diabetic who receives a living allowance of just $125 per month were told his daily insulin injections would no longer be covered, because the type of insulin prescribed for his hard-to-control blood-sugar levels is not on a list of approved drugs. The man, who has a developmental handicap, leads an active life and is beloved by his community.

Another agency was told the province would no longer pay for an anti-seizure medication required by one of its residents.
The above is from Parker Barss Donham's blog, Contrarian.

And, if true, it's extremely disturbing. 

Parker's name should be well-known to most Nova Scotians, or at least to those with any interest in politics. Which leads me to the one caveat I offer here; namely that, politics being what it is, I tend to be a mite bit cynical, not just of the party in power, but equally of those associated with the opposition.  Because even those not holding the reins of power have a certain power, colloquially known as the power of "spin".  Meaning that, fair or not, I tend to take anything I come across originating from anyone with a strong connection to any political party with at least a few grains of salt.

I guess what I'm trying to say is this - although on its face deeply disturbing, I have to at least allow for the possibility that there may be a more innocent explanation at play here, one that some would rather not be made public. 

Then again, that being said, my true cynicism, based on years of hard fought experience, lies with government departments, particularly those of Education and Community Services, meaning I have trying real hard not to jump to the conclusion that I would be oh so happy to reach and at least allow for the possibility that all might not be exactly as it seems. I'm trying - it's just not that easy.

On another note, I see that Mr. Dunham has posted various DCS policy documents, which tend to be extremely difficult to access.  The links will be up shortly in the sidebar under the heading "Services for Persons with Disabilities ... Policy Documents".

Just remember, though, that as so aptly pointed out by Mr. Dunham's post, government policies are often subject to change. Without. Any. Notice.

* When researching yesteray's post, I noted that the Department of Health and Wellness' (the new name for the Department of Health) Home Care Policy Manual is dated June 1, 2011.  In a similar vein, I see that both the Services for Persons With Disabilities - Special Needs Policy and the Financial Eligibilty Policy are dated July 1, 2011 (yes, that's two days ago aka Canada Day). It would appear that, perhaps, our NDP government is on some sort of policy revision roll, to an extent that might not quite be accounted for by the various departmental changes made in the recent Government Administration Amendment (2011) Act(ch. 11 of the 2011 Statutes).

Tuesday, November 3, 2009

Practical Applications - Exempting Your Child from Core French

It's one thing to discuss the big picture of how things should work in the world of special education. It can often be quite another thing to attempt to navigate through that maze on the ground.

I received a question last week asking about how to obtain an exemption from core French for a special needs child in Nova Scotia.
We have requested on several occasions that our son be exempted from French at school because of his disability (PDD-NOS/NLD). We have been told that the school is unable to exempt any student from French and that he will have to continue to take it even though there is no reasonable expectation that he will learn to use it. The school has offered an IPP (although it was never put in place, he currently draws pictures in French class) but we wanted him removed from French so that he could use those classes for organization and catch up (or maybe even some tutorial). We have been told there is no way around this although there are other children in the school who have been exempted from French. What is your take on this?
I ran into this last year with my oldest daughter. Ironically, she has always enjoyed French but I knew the time would come when it would be way over her head. Frankly, I was surprised that it took until Grade 8 before that occurred.

Also, somewhat ironically, although I had questioned the school about the possibility of a French exemption when she started Middle School, the thought never even entered my mind the night I wrote a note in the communication book complaining about the French homework she had brought home. Homework which involved translating whole sentences and which was way beyond her ability. Imagine my surprise to get a note home the next day saying that 'they' understood completely and would be applying for a French exemption for my daughter.

For those not so lucky, let's take a look at how the process of obtaining an exemption should works. Although, first, I should point out that "Core French" is only mandatory from Grades 4 through 9; after that it becomes an elective and the problem is effectively solved.

Much like we discussed in a previous post which set out the relationship between legislation, regulations and policy, the policies of any particular school must be in line with those of their school board. Which, in turn, must be in line with the Department of Education's policies in the relevant area.

As a parent being refused some accommodation, service or plan for your child, you will want want to follow this hierarchy from the top down in order to gather the information you need to make a sound argument. Meaning that first you would look to the Education Act to see if your situation is covered there. Whether or not it is, you would continue through a search of the both the Ministerial and Governor in Council Regulations made under the Act. Then you would continue to search the relevant Department of Education policies and finally your own school board policies.

READ MORE


Tuesday, January 20, 2009

Adoptive Parents Not Welcome Here?

I read a lot of Children's Aid cases in my current work. A lot of them are older decisions that I am helping to de-identify, which means taking out the names and anything else which might serve to identify the children and families involved.

While doing that, I have noticed a fair number of decisions where the parents had special needs (sometimes physically, often intellectually challenged) and the question facing the court was whether, given the challenges faced by the parents, they could still be 'good enough' parents to their children.

Sounds like an interesting research study to me; how do the courts treat parents with special needs in a child protection context? I'm not sure if anyone else has ever taken a serious look at that issue so if anyone reading this knows of any such research that has been done, please let me know.

But today, while completing my daily spin through the blogosphere, I came across another, more or less related issue.

We have touched on the issues of whether or not obesity should be considered a disability. So how about obesity (with it's related health issues) being used to exclude perspective adoptive parents who have otherwise passed on all the tests and screening mechanisms?

Ashley's Mom, at Pipecleaner Dreams, tells of two different cases, one in the UK and one in Australia, where perspective adoptive parents were denied that right opportunity due to their weight.

READ MORE

Thursday, January 15, 2009

'One Passenger, One Fare' Comes Home To Roost

If you're planning on doing any air travel any time soon, head over to Air Canada's site and check out their Extra Seating for Passengers with Special Needs page.

Making reservations for this summer, I was pleased to find that, in addition to other services*** offered to individuals with disabilities, and in compliance with the requirements of the Canadian Transportation Agency, as of January 9, 2009, Air Canada has passed its policy making available extra seating free of charge to passengers travelling within Canada who require additional space due their disabilities, including obesity, or to accommodate an attendant.

The procedure to be followed can be found here (and I would strongly recommend you read that before booking any tickets) and the medical form to be filled out by your attending physician and then returned to Air Canada can be found here.

A few other interesting points:
  • Passengers who are quadriplegic may get permanent confirmation for an attendant. They must keep the Air Canada Medical Assistance Desk advised of any changes to the information they have provided in the Fitness for Travel form, or of any new medical condition.

  • Passengers who are disabled by obesity will get confirmation for 2 years, unless there are other medical concerns. It is the passenger's responsibility to inform the Air Canada Medical Assistance Desk of any new medical concern, or of any significant changes to the information they have provided in Section 3 of the Fitness for Travel form.

Future travel for passengers with a long-term medical approval:
For all future travel, you will only be required to contact the Air Canada Medical Assistance Desk once you have booked your flight, and provide your booking information and authorization number. The medical information you will have provided on the 'Fitness for Travel' form will be on file. However, it is the passenger's responsibility to advise Air Canada of any changes to the information they provide on the Fitness for Travel form.

~ ~ ~ ~

Air Canada offers a Service for Unaccompanied Adult Requiring Assistance. [Ed. Who knew??]

Happy flying.

"We'd sit outside and watch the stars at night
She'd tell me to make a wish
I'd wish we both could fly"

— James McMurtry, the song 'Levelland.'

***The bottom third of this page has lots of useful info starting with the sections in grey entitled Extra Seating down to the bottom of the page.

Wednesday, December 17, 2008

Obesity as a Disability

And now for something a little different ...

You will recall our previous discussions around the release earlier this year of a landmark decision by the Canadian Transportation Agency (CTA) concerning the right of individuals with disabilities to travel by air without having to pay for a second seat, for an attendant or other use, to accommodate their disability.

I am pleased to grant the request of Ms. Kelly Kilpatrick to write a guest post on a slightly different aspect aspect of this decision, as set out below.

After all, the issue of who is included and who is exluded from participation in a particular group is certainly one that strikes a chord among the disability community. But what about the question of who exactly is included by the term "disability"?

Something to think about ...

Obesity as a Disability

I almost don't want to touch this one because it's such a hot button issue for so many. The Canadian Supreme Court ruled that is requiring airlines based in that country to accommodate disabled and obese passengers when they need an additional seat or an attendant to accompany them.

The Supreme Court of Canada had refused to hear an appeal from Air Canada, upholding a Transportation Agency ruling ordering carriers to charge all passengers the same fare and not make people pay extra when they need an additional seat for medical reasons.

Whether or not obesity should be defined as a disability in legal terms remains hotly contested. Many feel the obese are NOT disabled because for the vast majority of obese people, there is no medical reason for their obesity. Their size is largely due to high-calorie diets and low activity levels.

There is no doubt that the debate over the obesity issue as a medical condition will only continue to grow as the battle over coveted and expensive airline seats rages on.

Obese people are getting more of the treatment reserved for the disabled. Many are able to secure handicapped parking permits and preferred parking. There have even been some cases where obese people attempt to sue for disability payments. But is this fair? After all, obesity is not caused by an injury or disease (yes, obesity is itself a disease). There are many corresponding and disabling conditions associated with obesity that cause significant mobility impairment and some conditions that can be fatal if not controlled.

But, what makes a person disabled? Is it merely the fact that, no matter how you got to that point, there are things you can no longer do or activities for which you require extra assistance?

The issue of obesity-caused disability will only worsen as time goes on and the number of obese Canadians skyrockets. Obesity has reached epidemic proportions and we, as a nation, will need to decide if accommodating the limitations people place on themselves by being obese make sense or if they only enable those suffering from it.

By-line:
This post was contributed by Kelly Kilpatrick, who writes on the subject of a
nursing assistant. She invites your feedback at kellykilpatrick24 at gmail dot com

Saturday, November 22, 2008

Welcome To The Wild Blue Yonder

You might recall our discussion earlier this year when the Canadian Transportation Agency (CTA) released a landmark decision concerning the right of individuals with disabilities to travel by air without having to say for a second seat, for an attendant or other use, to accommodate their disability.

Known as the historic decision in the “One Person, One Fare” case, the agency recognized the right of these individuals to have access to a second seat when traveling by air in Canada without having to pay a second fare.

But let's never take anything for granted. Reading yesterday's newspaper, I discovered that three of Canada's major airlines (Air Canada, Air Canada Jazz and WestJet) had applied to the Supreme Court of Canada for permission to appeal that policy. Fortunately, they were unsuccessful in their appeal, with the SCC refusing to hear the case.

What that means, from a practical point of view, is that following a six year legal battle, the airlines, all of them, will finally be forced to make those additional seats available at no charge to disabled or obese passengers.

Which, while good news, is really pretty sad, don't you think?

I mean, really, should it have ever been fought in the first place? Isn't it really just an issue of basic human rights? I can only echo the question asked by legal counsel for the Council of Canadians with Disabilities, which my gut tells me had played a big role in this victory.

"Where is the federal government’s leadership on this issue?" said the council’s Pat Danforth. She argued a quicker and easier solution would have been for Transport Canada to impose industry-wide regulations on all air carriers.
Indeed.

Update: By the way, just to be clear, although the article in the Chronicle Herald speaks of a second seat for a disabled person who needs additional room for a wheelchair or stretcher, or an obese person who needs an additional seat, don't be fooled. The decision also applies to a person with a mental or developmental disability who requires an attendant to fly with them.


Thursday, October 23, 2008

Small Victories

I wrote earlier this year about my personal endeavour to have our local bus company institute a policy to which would allow the support person of a person with a disability to ride free of charge when accompanying the person with a disability. As I noted at the time, although they did have a policy in conjunction with the CNIB, providing that a blind person could travel with a support person without paying or a second fare, no policy existed around any other disabilities.

It was just in the midst of that little debate that the Canadian Transportation Agency "released a landmark decision concerning the right of individuals with disabilities to travel by air without having to pay for a second seat, for an attendant or other use, to accommodate their disability. In a historic decision in the “One Person, One Fare” case, the agency has recognized the right of these individuals to have access to a second seat when traveling by air in Canada without having to pay a second fare".

Which sounded like good ammo to me.

At any rate, I am pleased to announce that in June, 2008, Kings Transit passed the following policy:
Where any rider with a disability that requires the need of an attendant to ride the Kings Transit bus system the attendant shall be entitled to ride free of charge.

All riders requiring attendants shall fill out a form and register with Kings Transit identifying who their attendants are.

Attendants are only entitled free ridership while in the presence of their client and if necessary their return trip should they be returning alone.

Riders shall notify Kings Transit of any changes with their attendants.
Which just goes to show, I suppose, that we should never, ever give up. We will get there. Eventually. One step. One policy at a time.

And, lest we foget, kudos to Kings Transit.

Sunday, January 20, 2008

Inventory of Legislation, Policies and Guidelines for Long-term Care

You might recall that I was quite excited to find that the Nova Scotia Department of Community Services had posted various of the policies under the Services for Persons with Disabilities on their website.

And now I am just as pleased and surprised to find that the Department of Health has followed their lead.
Inventory of Legislation, Policies, Guidelines for Long-term Care
The following legislation, policies and guidelines are standards in the long-term care sector. The Department of Health, Continuing Care Division supports owners and operators of long-term care facilities by creating policies and monitoring standards in the sector to ensure that there is a consistent quality of care provided to long-term care residents. Owners, operators and staff of long-term care facilities must be in compliance with the following legislation, policies and standards.
For some of us whose children are older, we wonder what will happen when we're gone. For others, it might be our own parents who give us cause for concern. Whatever the situation, the government needs to move towards more openness and accountability with its programs and services. Or, should I say, our programs and services. After all, it's us, as taxpayers, who are funding them.

It's good to see them take a few baby steps in this direction.

Thursday, January 10, 2008

'Disabled Canadians Jubilant to Have Transport Barrier Removed'

Does your adult son, daughter or friend need a support person with them when traveling by public transportation? Have they or you ever expressed frustration with the fact that it costs twice as much for a person with a disability to use the same public transportation available to other Canadians?

I know I have. And still do, as a matter of a fact. Right at this moment, I am haunted by one of the many items on my never-ending To Do List, this one to recontact our local bus company to continue the debate about whether I should have to pay a second fare for my teenage daughter's support person. It turns out that they do have a policy in conjunction with the CNIB, providing that a blind person can travel with a support person without paying or a second fare. But they don't have any policy around any other disabilities.

After telling them how great I thought it was that they have this policy in place for the blind, I calmly pointed out that to have such a policy for one type of disability and not for others might, by some, be considered discriminatory. Somehow, that seemed to get their attention.

They advised me that would be making a policy around the issue for all disabilities and provided me some with free bus passes in the interim. Which was fine, except that was quite a while ago, the bus passes have long since been used up and I need to call them back again and get them moving on this issue. Just one more time and place when I have to do someone else's job.

But fortunately, and the reason why I am now writing this post, I will now have some backup when I make that call and write that letter.
Today the Canadian Transportation Agency (CTA) released a landmark decision concerning the right of individuals with disabilities to travel by air without having to say for a second seat, for an attendant or other use, to accommodate their disability. In a historic decision in the “One Person, One Fare” case, the agency has recognized the right of these individuals to have access to a second seat when traveling by air in Canada without having to pay a second fare.
Sometimes, I like to convince myself that I haven't simply been procrastinating (or more accurately, been too overwhelmed to finish what I started in a timely manner) but that it's all fate, you see ... of course, I hadn't been aware of it but I had just been waiting for this decision to be released so I would have some good quality ammo on my side for the next time we spoke.

The media release from the Council of Canadians with Disabilities can be found here.

Read it, Preach it, Use it!

Friday, December 21, 2007

They Did It!

So much for attempting to change the subject...
This arrived in my inbox from PLAN today.


Public Policy Update December 2007

WE DID IT!

RDSP receives Royal Assent


After an 8 year campaign, PLAN’s proposal for a Disability Savings Plan is now a fact. On Friday December 14th the RDSP received royal ascent after passing third reading in both the House of Commons and the Senate.

The RDSP is historic and noteworthy for a number of reasons:

Canada is the first country in the world to offer a Registered Disability Savings Plan.

The Federal Government has budgeted $115 million in matching Canada Disability Savings Grants and Bonds in for 2008-09.

An estimated 700,000 Canadians with disabilities and their families will be affected.

Provincial Governments will be forced to the asset limits for disability benefits and to eliminate claw-back. (See sidebar for changes already made by the Government of British Columbia.)

The Federal Government has emphatically declared that they trust families and people with disabilities. There are no restrictions on what the RDSP can be spent on.

PLAN is now working with financial institutions and the federal government to ensure the RDSP is offered as a "product" in every financial institution in the country as quickly as possible.

Write and thank Federal Minister Flaherty for his commitment to people with disabilities and our families.

So great news, that!

As I understand it, PLAN has been a, make that the, leader in having the Federal government create the RDSP.

So, if you're interested in helping them continue with their good work


Three Ways to Support Our Voice in Ottawa

  • Become a PLAN Associate, get great benefits and support our public policy voice.

  • Become a monthly donor and make a supporter of our work to ensure that people with disabilities are able to live good lives.

  • Make a year end donation to PLAN and enable us to continue to work in Ottawa to make it easier for families achieve peace of mind.


    -------------------------------------------------------------
    Contact Information:

    Planned Lifetime Advocacy Network (PLAN)
    #260-3665 Kingsway - Vancouver BC V5R 5W2
    Phone: 604.439.9566 - Fax: 604.439.7001
    Email: inquiries@plan.ca - Website: http://www.plan.ca

Monday, November 12, 2007

Big News ... SPD Policy Documents Now Available

All Good Things Come To Those Who Wait...

At least that's what they say.
And they might just be right.

I am very pleased to report that the actual policy documents for the Direct Family Support, Independent Living Support and Alternative Family Support programs are all now available on the Department of Community Services website.

General information on each program can also be found on the DCS website here, here and here.
And, of course, on this blawg ... DFS, ILS, AFS and SPD Progam -What's In A Name.

Saturday, October 27, 2007

Legislation, Regulations and Policy ... Oh My!

We were previously discussing taxation credits for individuals with disabilities and their families. And today, I planned on taking a further look at provincial benefits. Until I realized that we might need a slight bit of background first.

We've already looked at some of the programs available under Nova Scotia's Services for Persons with Disabilities Program. But before a government institutes any program, policy or service there has to be, in theory at least, some grant of power for them to do so. In other words, there has to be some form of legislative authority which authorizes or allows them to do whatever it is they are doing.

For example, the provincial government receives its authority for the Servcies for Persons with Disabilities program from two pieces of legislation;
  1. the Employment and Income Assistance Act (what people formerly thought of as the Social Assistance Act) and
  2. the Homes for Special Care Act.

In addition to the legislation (the statutes as set out above), the government will also often enact regulations under each statute. The statute gives the broad outlines of what the government can and cannot do and/or what you and I as citizens are allowed and not allowed to do. The regulations made under each of the above statutes fill in the some of the details that are missing from the Acts themselves. Both statutes and regulations have the force of law.

Beneath those you will often 'policy' or 'guidelines" for various programs. Generally speaking, policies do not have the force of law. Which is part of the reason why, for example, in the Dassonville decision we discussed earlier, the Nova Scotia Court of Appeal found that the government must look at individual circumstances and cannot simply apply policy in a blanket manner.

You can almost think of it as a painting. We will start with a paint by number:

  • The statute sets out that black and white outline which will eventually turn into a picture.
  • The regulations tell you what colour goes with what number so you can starting painting in the right colour in the right spot.
  • Beyond that, policies or guidelines would give you more rich detail (which shade of blue goes here, is that light brown or dark brown in this square). Maybe not the best analogy, but hopefully you get the picure.

In the next few posts, we are going to look at some of the regulations made under the Employment Support and Income Assistance Act. Regulations that affect how much money your adult child will receive if you keep him or her at home and how any assets that a disabled individual has [or even has access to] affects their eligibility for provincial benefits under programs such as the Services for Persons with Disabilities Program. And how you, as a parent, can work with that in your child's best interests when drafting your Will.






Wednesday, October 17, 2007

What's In a Name ... A Summary of the 'new' Services for Persons with Disabilities Program

I hope each and every one of you appreciate the phenomenon of deja vu.

Because in each of the three "new" policies we recently looked at, the "Services for Persons with Disabilities Policy" [under which each new program operates and is governed by] is defined, in the main, as being ... wait for it ... the "Community Supports for Adults Policy Manual". You might recall our previous discussion of the Community Support for Adults policy (CSAP) where I noted that despite the rolling out of the "new" Services for Persons with Disabilities (SPD) program, the old policy appeared to live on in various forms. Just so it seems.

And, as noted before, for the remaining policies under the Program, which you will find listed here, also appear to rely on the old Community Support for Adults Policy Manual.


So same old, same old?


Well, maybe. Or maybe not. I have outlined the three 'new' policies and I would suggest you read them and judge for yourself. But I will say this - both the Independent Living Support program and the Direct Family Support program, despite their underlying reference to and purported reliance on the old Community Support for Adults Policy Manual, do appear to offer new and very welcome alternatives to indviduals living with disabilities in Nova Scotia, their families and advocates.

Now, admittedly it does get a little "unusual" here if you closely look at the documents. As many who have tried to access services under the old CSAP are likely aware, that program did not provide for the provision of assistance or services if the person resided in their own, or a family member's, home. But the Independent Living Support program is all about the person residing in their own home. And the Direct Family Support program is all about the person residing in a family member's home. So how does that work?

Well, frankly I'm not quite sure. The only place in which the new policies exempt themselves from the CSAP policy is in regard to the financial assessement conducted to determine eligibility for the programs. So, I must admit to having a bit of a chuckle to read in both of the policy documents for the above two programs that the "Continuum of Supports and Services" offered were
A mix of program and support options available through SPD for persons with disabilities. This continuum includes in-home, residential and dayprogram supports and services.
That's amusing, you see, because, as I noted above, the CSAP policy does not include in-home supports and services. And saying it does just doesn't make it so.

But when it comes down to brass tacks, to what matters, maybe ... hopefully ... from a practical point of view, it doesn't. Although it appears all too clear that the Department is in need of a "new" policy manual to go along with its "new" SPD program, for the moment at least, we do have what appear to be two "for real " new living options for individuals with disabilities in Nova Scotia.