"So many dreams at first seem impossible. And then they seem improbable. And then when we summon the will, they soon become inevitable."
~ Christopher Reeve

Thursday, September 30, 2010

If I Had My Druthers ...

A bit of a personal missive this evening - some of my readers will know that I have two children with special needs.  Two teenage children, to be exact.  My oldest daughter has a laundry list of labels and diagnoses - mentally challenged, PPD, speech/language disorder ... none of which accurately describe her - and my youngest has a learning disability.

As I walked out of my oldest daughter's IPP meeting today and into the bright sunshine, it struck me that many days it really doesn't seem to matter how much or how well you think you know the law or which government entity is responsible for this or that - creating something meaningful and functional for our children seems nearly an impossibility.  The key words here are, of course, meaningful and functional.

It I had my druthers, Nova Scotia's Canada's education law would be very similar to that in the US.  We would have legislation similar to IDEA (Individuals with Disabilities Education Act) - which, admittedly, would be somewhat difficult given that IDEA is a federal law whereas, in Canada, education is a provincial responsibility - which actually had some teeth in it, which actually gave parents meaningful rights and a process to challenge a school or school board's actions (or inaction). 

Yes, that's what we would have as opposed to the current namby pamby wishy washy excuse we have for legislation - legislation which uses much of the language in IDEA (such as guaranteeing our children an "appropriate education") but lacks both the process and the teeth to back it up.

I have definitely discovered that high school is a whole new ball game when it comes to IPPs.  From everything from the way they are created to the way they are reviewed and implemented, it is, quite simply, different.  And much harder, from a parent's point of view (or at least from my point of view) to meaningfully participate, to offer meaningful input that is actually included in the IPP and to get information as to how well the goals, once they are finally created, are (or are not) being met (and no, I don't mean the pathetic excuse for "reporting" that is passed off as report cards).

Although it took a long time for IDEA (as it exists today) to emerge, it also took a lot of parental involvement and advocacy.  And I can't help but think that's the only thing that is going to move Canada's educational systems for children with special needs forward.

In the meantime, I suppose we will all just keep putting one foot in front of another.  And keep hoping that somehow, through it all, we can manage to actually obtain an appropriate education for our children.

There's only one problem with that, of course.

Hope isn't actually a strategy.

Tuesday, September 28, 2010

Making A Difference?

Acting unanimously, the House of Representatives last night approved a bill to remove the terms “mentally retarded” and “mental retardation” from federal education, health and labor laws. The measure, called “Rosas’ Law” in honor of a Maryland girl who has Down syndrome, has already passed the Senate and is expected to be signed into law by President Obama.

“This law is about families fighting for the respect and dignity of their loved ones,” said Sen. Barbara Mikulski (D-Md.), one of the measure’s sponsors. “This change will have a positive effect on more than 6 million Americans.” She said the law will make the language of federal law consistent with that used by the Centers for Disease Control and the United Nations, and will not affect any services, rights, responsibilities or educational opportunities for people with intellectual disabilities.

Rosa’s law substitutes the terms “intellectual disability” and “individual with an intellectual disability” for the earlier terms, now considered outdated and stigmatizing by many self-advocates and their families. It does not cover entitlement programs, which include SSI, Medicare, Medicaid and Social Security.



Sounds nice. Definitely.

And what more could you ask for than the photo op of such a sweet looking little girl with an older brother willing to go forth and do battle for her rights?

Cynical, you say? Maybe. Maybe not.

There's no doubt in the world that words can and do hurt.  And serve to shape our perception of "reality".  And much like the Marcelli household, the word "retard" is not allowed in our house.  Never will be.

And yet, there's something here that bothers me that I can't quite put into words.  At any rate, I do seem to be feeling a tad more cynical on the subject today than I was the last time we discussed Rosa's Law.

Still, it's passed.  And that's a good thing.  A step forward. 

But is it a step that will really matter?

I'm not sure. Kids (and their parents) will still throw around the word 'retard" as a taunt, on the playground and elsewhere.  Parents of challenged children will continue to wince when hear the word.  Some may speak up.  Some may not.  But, most importantly, children who are challenged will continue to be hurt what is said. No matter what the law books may say. 

Still, perhaps one small step forward. 

It may be that I just need to keep reminding myself ...
It's better to light a candle than to curse the darkness.
Eleanor Roosevelt
H/T to On Special Education Blog

Tuesday, September 21, 2010

Injury Damages, Human Rights and Disability - A Guest Post

For Americans, a case just heard in New York state [Ed. This reference is now almost one year old - my sincere apologies to Mr. Mitchell  for the delay in getting this up] is raising questions about how far human rights questions can intervene in the calculation of damage awards ... and influence the outcome. It is interesting to see how this case tests against Canadian authority, how the idea is treated, here, and how the ideas it raises could affect the treatment of persons with disabilities north of the border.

McMillan v. New York is a race-discrimination based decision but its implications extend far beyond mere questions of race. It involves, directly, how legal equality assurances should affect how damages awards
are calculated for injured people.

The cases’s background is this: You might remember a terrible accident a few years ago when a New York ferry slammed into its dock at high speed killing several people and badly injuring others.

One of the persons injured was an employee who was left paralyzed in his legs and in part of his arms and unable to work. He therefore suffered not only the actual loss of the use of his arms and legs but also a
direct elimination of his ability to continue to earn income from his employment. And, in such cases, with a sufficiently young claimant, the loss of projected income over a working lifetime can be a very large amount indeed.

This Claimant, McMillan, is African-American. And this is where the case becomes interesting. The fact is that, as a group, African-Americans have a shorter statistical life span – and therefore a shorter statistical working life span – than other groups in society.

McMillan sued for damages including his inability to carry on working and the loss of wages it would mean over the balance of his working life.

The calculation of this kind of loss is a standard exercise in Canadian and American law. It involves trying to decide how much a loss of income the man could be expected to suffer over each year and how long he might be expected to be able to work.

Perhaps you’re seeing the argument coming: Because, African-Americans have shorter life spans, on average, than other groups in American society and the factor immediately became an issue in calculating the loss that he suffered. Clearly, a person with a shorter lifespan (and therefore a small chance of working full time to retirement age), will expect to earn less than others with a longer projected life as a result of the same inability to work. And just as clearly, his damages will be less if because of his accident, he can no longer work.

New York City’s lawyers brought this argument – not rocket science by the way, but a usual and customary part of damages law – directly into play. They argued that because the McMillan’s lifespan was statistically less than, say, a Caucasian working the same job, in effect, he should be entitled to less damages than his Caucasian counterpart.

In the result, of course, the City expected to save a very significant amount of money. The trial judge refused to allow the city to make this distinction. He awarded damages based on overall life expectations and refused to limit it to those governing African Americans. The first argument that he used was that “race” is such an undefined and fluid category that statistics based on the distinction is much less precise than the category might at first appear – and so it would be unfair to judge people’s claims based on unclear data. The second argument was that as a result of better care and treatment because of the funds available from the damages award, the claimant’s expected life span might actually expand.

But lastly, and this is where it bears consideration here, McMillan decided that because the US constitution protects everyone equally under law, that a distinction allowing the law to differentiate between claimants based on race-based characteristics actually violated that constitutional protection.

You can see, for the Americans, damages calculations based on disability will also have an effect. In the same way that as the court found that how statistics link lifespan to “race,” at best, only in the fuzziest of ways linkages of lifespan to disability will, in the same way, be only the vaguest and most remote connection, if helpful at all.

How could this affect us here?

Canadian cases arguing racial distinctions cases are fewer and farther between than in the US. However, there are broad suggestions from now decade old or older cases, that courts have attributed lower earnings potential or life span to native claimants in BC damages claims. While a struggle has been being waged to limit unfairness – and corrections are taking place – in applying old statistical information to the projected earnings levels of women to reduce their damages claims as compared to similarly claiming men, the issue has not been resolved.

But no one seems to be studying the claims of persons with disabilities. And equally, no one seems to be considering applying the constitutional protections of equality.

The courts here have reminded us that the Charter’s s. 15 including equality considerations can be available in our country to affect this area of law (case based “common law”) decisions as well as any
government regulation or practice. But as of yet, it seems, the issue has yet to be directly confronted in the country’s law reports.

Perhaps the perhaps innate unfairness of categorizing people for legal purposes based on any grounds of inequality deserves close review in Canadian cases. Perhaps it’s a place where our governments need to intervene.

A Guest Post by Mr. Blair Mitchell, a Halifax lawyer who has practiced in the area of civil and administrative litigation for over 20 years and whom, you might recall, has graced our pages previously.

Wednesday, September 15, 2010

Focus, People, Focus

Meaning that I attended a focus group last night.

Apparently the federal government will be starting a new ad campaign for the RDSP.  A print ad campaign (think magazines and newspapers), in particular and they were looking for different groups of people (in this case, parents of individuals) who would be eligible for the RDSP to try out some of their ideas on.

It was an interesting evening (yes, in part, because we were paid well for our time) to see both how many people were not even familiar, had not even heard of the RDSP and the different reactions to the different types of ads.  Would you believe that out of a group of 9 individuals, 5 had never heard of the RDSP? Pretty depressing from my point of view...

They did have some good ad ideas, though.  And, of course, some not so good.  One in particular that I really liked showed a mother and daughter with a headline that read "I'm afraid planning for her future".  I found that headline really effective, with the word "afraid" crossed out and replaced by "planning".

So here's to hoping this ad campaign gets going soon and more and more people become familiar with the RDSP.  Wouldn't it be great to get to the point of the RDSP being a familiar a term as the RRSP or RESP?

Ah, well, a girl can always dream ...