Five Minutes of Fame (Literally)

UPDATE: So how come no one has ever pointed out this mistake I've been consistently making? Apparently left = right and right = left. And the sidebar ... that's on the RIGHT-HAND side of the page. Sorry.

A big thank-you to CTV Morning Live for having me on the show this morning. I really appreciated the opportunity to discuss why guardianship (and other options) can be such an important issue for so many families.

If you're new here and have more questions, please scroll to the bottom of the page and click on the Guardianship label in the sidebar to the left. That should give you access to all the posts I have written on the subject.

You will also find labels like "Powers of Attorney" and "Personal Directives" that you might like to check out, too.

If you're interested in my upcoming presentation on Saturday, December 8th, click on the "Upcoming Presentations" tab at the top of the page.

And please feel free to stick around - hopefully, you will find valuable information in both past and future posts.

A Leap of Faith

It's been eighteen years since I've practiced law.

I stopped practicing in 1994 due to the significant health (to say nothing of other) needs of my oldest daughter. And I've always said I wouldn't go back to practice unless I could have just a "disability" practice.

In other words, not unless I could only take cases involving disability-related issues. But considering that most families with a disabled family member can't afford a lawyer and I figure that it will likely take Nova Scotia a good 20 years to get to the point where the government helps subsidize the cost of legal representation for families ... I just couldn't see it happening.

But for the past year or so, I've been playing around with the idea of doing just that ... going back to the practice of law.

What if I went back to practice? Just on a part-time basis?

What if I could offer people the option of either purchasing the Guardianship Kit or hiring me to bring their guardianship application?

What if I could, not just talk about the Henson Trust, but actually do up Wills for people with the proper wording?
What if ...?

Not only would my fees be significantly lower than the majority of lawyers' but people were already asking if they could hire me to bring guardianship applications and I had to explain that no, I wasn't practicing.

So it was that I've been playing around with this idea for a while now.

I tried to talk myself out of it ... after 18 years of not practicing, just how many hoops would the Barristers' Society make me go through before granting me practicing status again? For a while, that seemed like a good enough reason not to proceed any further.

But eventually I realized that I might just be staring in the face (and yet not seeing) exactly what I have been looking for so hard for quite a while now. This has been my passion for so many years now - how long have I been telling people that if I could find a way to marry law and disability (and get paid for it), I would be truly happy? Trust me, a very long time.

And so it was that eventually, very slowly, light began to dawn on marblehead (that would be me, in case you were wondering) and I made the decision to take the leap and return to practice. 

Now I must admit that the time between making that decision and actually commencing the process  has been a little slow but ... I am happy to inform you that yesterday I mailed my aplication to change to practicing status to the Bar Society.

What now, you ask?

Now.

  

Now I sit and wait to hear back as to what, exactly, I will have to do before I can start practicing again.

Wish me luck. Please.

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.

'Unfit Solely Based on Their Disability'

A few years ago, when a lot of my work involved digesting child protection cases, I toyed with the idea of writing a blawg post on the issue of parents with disabilities whose children had been taken into care by the Province. 

Actually, I did more than toy with the idea; I began keeping track of those type of cases when they crossed my desk and started actively searching for ones from other provinces. In fact, I may still have that research around here somewhere although I would most likely be hard pressed to find it now.

Obviously, I never did get to that blawg post. Mainly because it became clear that the issue was huge and it was going to take no small amount of research and writing to put something together. And I was, in all fairness. rather occupied with other things at the time.

But the issue still fascinates (and disturbs) me from both a legal and parental point of view.

The test in such a situation is always (supposedly) the "best interests" of the child. Parents do not have a right to parent their children. Rather, children have the same basic rights and fundamental freedoms as adults and the additional right "to special safeguards and assistance in the preservation" of their rights and freedoms. And the presumption is that a child's needs will be best met in the care of his or her own family. 

But a presumption is not a certainty. Thus, parents are given legal "responsibility for the care and supervision of their children" and children are only to be removed from that supervision "when all other measures are inappropriate".

So at what point does it actually become the case that parents, due to their disability, cannot properly care for their child? And is it possible that children would ever be taken away from their parents due to some form of systemic discrimination against persons with disabilities?

But then again, can it even be that simple?

There are physical disabilities and there are intellectual disabilities. And there are individuals who have both. And, of course, most importantly, each case will should turn on its own unique fact situation, right?

All of which takes me to this report out of the US setting out the following issue:

A federal agency is warning the White House that more protections are needed to ensure the parental rights of those with disabilities.

Even as an increasing number of Americans with special needs choose to become parents, laws across the country routinely undermine their rights, according to a National Council on Disability report which was sent to President Barack Obama on Thursday.

In two-thirds of states, courts are allowed to deem a parent unfit solely based on their disability. And, disability can legally be taken into account in every state when assessing what’s in the best interest of a child, the council found.

The key, of course, is found in that last paragraph.

In two-thirds of states, courts are allowed to deem a parent unfit solely based on their disability. And, disability can legally be taken into account in every state when assessing what’s in the best interest of a child, the council found.

I have no issue with the second sentence - that "disability can legally be taken into account in every state when assessing what’s in the best interest of a child".

But it's one thing to take disability into account (just as you would take into account other factors, such as the support available to a family or parenting style) and completely another to disqualify a person from parenting their own child just because they have a disability. That, I would submit (and I'm sure you would agree) smacks of discrimination.

Apparently the National Council on Disability agrees. And the numbers are staggering.

Currently, some 6.1 million children in the United States have parents with disabilities. They are significantly more likely than other kids to be forcibly separated from their parents, the federal agency found.

Estimates suggest that among parents with intellectual disabilities, removal rates are as high as 80 percent. Similarly high rates are seen among parents with psychiatric disabilities.

Meanwhile, the council found that people with special needs are more likely to lose custody of their children after divorce and have more difficulty adopting kids.

Although I'm not aware of any Canadian province providing that the courts are allowed to deem a parent unfit solely based on their disability, I have a hunch that the situation is not that different in this country, albeit on a somewhat smaller scale. And although it would be really interesting to see the numbers for Canada, to the best of my knowledge, no one is actually paying attention. Or, at least, no one is compiling those statistics.

In the US, the National Council on Disability is recommending that new laws be implemented to protect the rights of parents with disabilities and that social services agencies work to better understand and accommodate parents with special needs.

Does that sound like too much to ask?

Light Dawns on Marblehead

As a follow-up to that July post concerning families in Indiana who were forced to legally admit neglect in order to obtain the mental health services their children required, I am pleased to report that state officials have unveiled a plan to provide such services for mentally ill or developmentally disabled children without requiring parents to plead guilty to neglect.

"This is a small, but important and complex population that presents a big struggle for many families. For decades, the only way these children have been able to get care is by entering the court system as a juvenile delinquent or to have their parents claim neglect so the child can become a ward of the state. And everyone agrees -- from state agencies, to prosecutors, to judges, to probation officers, to mental health experts, to families -- that is not the way to help these kids." -- DCS Chief of Staff John Ryan

Which, I suppose it was going to take strong pressure from somewhere to change the situation given that the state's Department of Child Services had publicly stated that the agency would not change any of its policies (those being the policies requiring parents to go through such a heart-breaking charade) even after a Court of Appeals' decision stating that a parent in such a situation should be "applaud[ed]", not "condemn[ed] ... through coercive action."

It would appear that in Indiana, at least in regard to this situation, light has finally dawned on marblehead. We can only pray (or demand) that it will also dawn elsewhere.

Paralympic Athletes Writing Next Chapter in Human Story

Reading the latest issue of the IWK's Village Voice this morning, I was struck by this piece by Warren Reed, a human rights activist in Halifax.

All 20 of the fastest times in the 2012 Boston Marathon belong to wheelchair racers. In fact, Canadian wheeler Joshua Cassidy (1:18:25) had time for a nap while waiting for Kenyan runner Wesley Korir (2:12:40) to finish. A luxurious 54 min-utes, to be exact. Gravity? The course does drop 425 feet in 26 miles — a barely noticeable three-tenths of one per cent grade — but that benefits runners and wheelers alike.

Meanwhile, the course has some daunting uphill stretches, and dragging an extra 15 pounds of wheelchair up Heartbreak Hill surely offsets any advantage from turning potential energy kinetic.

But this is apples and oranges, angels and pins. One shouldn’t be confused by the artificiality of divisions into thinking there is a single winner of the Boston Marathon, and then some women and then some wheelchairs. They’re all committed athletes, running the same race differently.

People with disabilities have a special perspective on difference — we are, in many ways, defined by it. Many of us embrace our differences as extraordinary gifts.

Some would say Stephen Hawking won a Nobel Prize in spite of his condition. People with more imagination might wonder if it’s because of his condition. Conventional thinkers see him as suffering from Lou Gehrig’s disease. (Lou, by the way, was not a bad ball player.) I’d say Stephen Hawking is a pretty spectacular physicist and that there’s a decent chance his achieve¬ment is connected to his physical characteristics. At the very least, his circumstance provides an unusual perspective on the universe.

You can read the rest of the piece by clicking on the Weekly Update: September 7, 2012 link on this page. I would suggest that you do.

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!

An Interesting Tidbit Look at Physician-Assisted Suicide

In Canada, suicide is not a crime. However, assisting someone to commit suicide is.

Or, at least, it was.

In a June, 2012 decision out of British Columbia, the British Columbia Supreme Court (BCSC) found that these Criminal Code prohibitions violated the Charter rights of the plaintiffs (a woman with a fatal neurodegenerative disease and the relatives of another woman who had terminated her life in Switzerland with their assistance).

Some of you might recall the issue of physician-assisted suicide being dealt with many years ago; in 1993, to be exact. In that case, the Supreme Court of Canada (SCC) found that although the prohibition on doctor-assisted death engaged the s. 7 rights of liberty and security of the person, the law should be upheld based on the importance of the objective behind it; namely, the protection of the vulnerable. This policy is part of our fundamental concept of the sanctity of life and it was noted that blanket prohibitions on assisted suicide is the norm among Western democracies.

The government's repeal of the offence of attempted suicide was not a recognition that suicide was to be accepted within Canadian society but merely reflected the recognition that the criminal law is an ineffectual and inappropriate tool for dealing with suicide attempts. Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the SCC found that the blanket prohibition on assisted suicide was neither arbitrary nor unfair.

But the law has developed since then, particularly as to what exactly is encompassed in the term "principles of fundamental justice" (as found in s. 7).  Further, the Rodriguez case had not dealt with the issue of s. 15 equality rights.

Financial and Estate Planning Tool

We've talked at length, on various occasions, about the challenges involved in planning for your child's future security, be it personal or financial.

In that vein, although no longer exactly *new*, I've been meaning to share NBACL's financial and estate planning resource.

From Ken Pike, NBACL Director of Social Policy:

There are many issue to consider when making financial and estate plans for your family member with a disability. NBACL's new online resource, Financial and Estate Planning for a Family Member with a Disability, provides information on a number of important topics as well as links to other resources that may be useful. The on-line module has information about

• The key elements of good financial planning;
• The tax system, including credits, benefits and deductions relevant to people with disabilities and their families;
• Registered Disability Savings Plans;
• Estate planning considerations and options for a family member with a disability;
• Establishing a financial trust for a loved one with a disability;
• The impact of provincial social assistance laws and rules on financial and estate planning [See Below]; and
• Planning for a home for a family member with a disability.

The module also contains a series of family financial and estate planning scenarios that offer some guidance from a qualified financial planner and a lawyer that address the situations presented.

As Ken notes, although the law in this area is often changing, NBACL has committed itself to keeping the information current.

Which is where the one BIG CAVEAT comes in - the site is based on New Brunswick law, not Nova Scotia law.

Although, fortunately, that is not quite as big of a problem as you might first think as, in many respects, the law is similar in both provinces around these issues. However, one area where the law does substantially differ between the provinces is how income* and assets* are treated with regard to social assistance payments.

Speaking of which, it's essential to remember that in Nova Scotia any trust you create for a loved one with a disability must be a so-called "Henson Trust" (referred to in the NB Resource as an  absolute discretionary trust) in order to ensure that social assistance payments are not affected.

* NOTE: Although you can find the Employment Support and Income Assistance policy manual here, I would strongly suggest that you always double check what you read in any policy document to make sure it complies with the regulations made under the applicable Act.

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*

For Whom The Bell Tolls

Very interesting situation going on in Minnesota at the moment - apparently, the law there as it now stands provides that persons subject to a guardianship order retain the right to vote unless a judge explicitly takes it away.

Some are trying to get that changed to provide that a person subject to guardianship cannot vote unless a judge orders otherwise. They fear that the votes of some persons with disabilities are being manipulated. The article refers to "guardianship voting" - I'm not sure exactly what that means but they also speak about group home workers taking their "charges" to vote and possibly influencing their votes - although I have to wonder how many of those group home residents are actually subject to guardianship. My guess is that most aren't.

In Nova Scotia (which easily has the most archaic guardianship system in the country), many rights are automatically taken away from a person subject to a guardianship order, including the right to vote.

Although I think I know what my readership will say, what do you think?

Should people who have been declared incompetent still be allowed to vote? If so, what (if any) measures should be put in place to ensure that their votes aren't being illegally manipulated?

Our American Friends

South of the border the debate continues on the UN Convention on the Rights of Persons with Disabilities. Is it good? Or is it bad?

Despite bipartisan support for a United Nations disability rights treaty, a group of Republican lawmakers is holding up U.S. Senate consideration of the matter.

The Senate Foreign Relations Committee planned to consider the U.N. Convention on the Rights of Persons with Disabilities last week, but was unable to after Sen. Jim DeMint, R-S.C., and a number of other Republicans reportedly placed a hold on it.

The move effectively squashed efforts by supporters of the treaty to get the U.S. to ratify it before the 22nd anniversary of the Americans with Disabilities Act on Thursday.

While the U.S. initially signed the U.N. Convention in 2009, Senate approval is needed for ratification of the treaty, which calls for greater community access and a better standard of living for people with disabilities worldwide.

Why, you ask?

Why would any part of the American government be reluctant to ratify an international convention recognizing the rights of person with disabilities? Rights which surely must be recognized and held in high esteem in such a great democracy as the US, a shining city uppon a hill?

For the very same reason that the US is hesitant (or outright refuses) to ratify other international conventions, of course.

The delay comes amid opposition from the Home School Legal Defense Association which is urging its members to tell Congress that the treaty “surrenders U.S. sovereignty to unelected U.N. bureaucrats, and will threaten parental control over children with disabilities.”

In a statement to the Capitol Hill newspaper The Hill, a DeMint spokesman said he wanted to delay the treaty over largely similar concerns..

That's right, folks. It just wouldn't do to have anyone else telling them what to do to or [gasp] interfere with their sovereignty.

Although I have to wonder just how well that is working for them.

The failure of the US to join with other nations in taking on international human rights legal obligations has undercut its international leadership on key issues, limiting its influence, its stature, and its credibility in promoting respect for human rights around the world.

And I must admit, I do find this thinking somewhat puzzling.

Sen. DeMint strongly opposes this treaty, as the United States is already the world leader in addressing the needs of the disabled and it’s foolish to think Americans need to sign away our sovereignty to exert our influence around the world.

So let me get this straight ... because the US is the world leader in addressing the needs of the disabled (I wonder what their own people have to say in that regard?) and they can/will continue to exert their influence around the world (now, here is where I get lost ... are they referring to their influence with regard to recognizing the rights of persons with disabilities?) because naturally they will have so much more moral clout around the issue given that they refuse to sign the Convention?

I must say that I find it particularly strange that the HSLDA is such a vocal opponent. Perhaps they are concerned that constitutionally enshrining "the right of persons with disabilities to education" [Art. 24] will somehow interfere with a parent's right to "direct the education of their children and to protect family freedoms."

Oh, wait, now I get it.

There is no doubt that the Obama administration is waiting to see how they do on this convention to push through an entire package of UN treaties—chiefly the UN Convention on the Rights of the Child, CEDAW (the women’s treaty), and the small arms treaty.

The poor souls are afraid. Afraid, I tell ya.