Bipolar Affective Disorder
is one that affects different individuals indifferent ways. Many
of those diagnosed are able to continue with employment for short or long
periods of time after diagnosis. Many are unable to.
This is where the question of Social Security Disability Insurance
comes in? Does Bipolar Disorder qualify as a disabling disorder under
the SSDI Act? In short the answer is yes, providing certain criteria
I have divided these pages in
two…one for citizens of the United States, the other for citizens of
Canada. As there are many similarities you may want to take a look
Here is an example of the questions
we may have found at MHI:
Q. I am representing a bipolar
patient. He is seeking to appeal a Canada Pension Plan ruling (1994) that
he cannot receive CPP benefits. This was due to the fact that he was not
yet diagnosed as bipolar (diagnosed in 1998), and was not considerered
to be disabled in December of 1994. He is middle-aged, suffered from bouts
of depression in 1993-1994 and has been on a host of medications since
1986. Given his medical history over the last five years and his age, is
it reasonably safe to conclude that he suffered from a disabling condition
in December 1994? In other words, does bipolar disorder have a sudden onset
in middle age or is it generally gradual (i.e. over a number of years)?
A. I can't speak to your friend's
diagnosis, of course, but perhaps I can try to clarify the issues at stake
in his case. First of all, as someone who periodically consults to insurance
companies, I can tell you that there is an important distinction between
a "disorder" (or disease) and a "disability." I don't know how it works
in the Canadian Pension Plan, but in the U.S., a claimant must be able
to demonstrate that he or she has been essentially incapacitated in respect
to performing usual job functions before the insurer will consider him/her
disabled. A diagnosis is not enough.
There are many individuals with
both unipolar and bipolar disorder who are gainfully employed. These are
usually the fortunate individuals whose illness has responded to medication,
psychotherapy, or both. So to show that your friend was or is "disabled"
at any time, it would have to be proved that he could not perform the usual
duties of his occupation, not merely that he suffered from a mood disorder.
It follows that the critical issue is not when he received his diagnoses,
but when, if ever (as per medical or psychiatric records), he was unable
to function vocationally. The best route in such cases is to obtain as
much psychiatric documentation as possible concerning the individual's
functional capacities at the time of the alleged disability.
Now a few words about bipolar
disorder. First, it is unusual for bipolar to have its onset in middle
age. In most cases, it appears in late adolescence or early adulthood.
However, in some cases an individual shows a "unipolar" pattern of mood
disorder for several or even many years before having a manic episode,
and thus being diagnosed bipolar. In retrospect, such an individual's depressive
bouts were almost certainly the harbingers of a covert bipolar disorder.
But again, this is not the same as establishing a disability. You might
want to contact Med Help International (www.medhelp.org) and/or
the Bazelon Center for Mental Health Law (www.bazelon.org/) for more information
and advice on your options.
comes this story of Mental Health Disability Mental illness strikes 1 in
By MINDELLE JACOBS -- Edmonton
If Bill had fallen off his roof
and broken his leg or been in a car accident and crushed his pelvis, friends
and colleagues would have rushed to help.
Instead, he had a mental breakdown
at work and was subsequently diagnosed with bipolar disorder, also known
as manic depression.
When he needed empathy the most,
his friends scattered, he recalls bitterly.
He was devastated.
"You feel like an alien. You don't
want to die but you don't want to be here," he says.
"It's like you've fallen into
some jungle tribe and you're trying to get back into society and no one
understands your language."
If it wasn't for the support of
his wife and two children, he wouldn't be here, he says.
Bill figures if he speaks out
about the pain he's felt over being ostracized since he crumbled at work
10 years ago and plummeted into the black hole of mental illness, more
people will realize it's not something to fear.
The Alberta Mental Health Board
hopes to send the same message in a series of ads this month.
You may have seen some of them
- which point out that one in five Albertans will experience mental illness.
It strikes more Albertans than
breast cancer, diabetes or Alzheimer's disease but 40% don't know the symptoms
and even when they do many are too ashamed to ask for help.
And the ads note that, contrary
to popular belief, people can't "snap out" of mental illness or "get over
Many need treatment such as counselling,
medication or psychiatric care to get better.
Yet Bill - not his real name -
recalls some people suggesting he was lucky because he didn't have to go
"People would say to me, 'Gee,
I'd like to get off work like you,' and I'd think, you just don't understand."
Maybe they'd have had a different
attitude if they knew that for six months after Bill broke down, he didn't
leave his bedroom.
He couldn't read, stared at the
TV "although it was just noise" and battled sleeplessness.
His mail sat unopened as if he
was trying to put his life on hold for a while.
"It's like I was clinging to life
and storing the moments I was missing so one day I could relive the moments
I was missing."
It's only in the last six months
that he's been able to crawl out of that black hole.
In between, 10 years of his life
flew by, punctuated by mood swings that ranged from extreme euphoria to
deep depression, and doctors' attempts to treat him with various drugs.
Over the years, because of the
stresses of coping with his illness, his health deteriorated, he went bankrupt
and many of his friends abandoned him.
He began volunteering at his kids'
school, an atmosphere he found unthreatening.
These days, he takes three medications
to treat his bipolar disorder and sees a psychiatrist once a month.
Bill, who was a mailman, never
did go back to work. Now 54, he took early retirement in 1996 and helps
support his family with a pension and disability payments.
Ironically, now that his mood
swings are under control and he's "feeling more embracing," as he describes
it, his children - now in their teens - want more independence and shy
away from too much parental presence.
"They feel I'm overprotective,"
he says wistfully, recalling how his daughter would run out to his car
in her stockinged feet when she was in Grade 1 because she wanted to be
with him so badly.
"They were more aware of how much
pain I was in than I would show or admit to myself," he says of his kids.
He declines to use his real name
because he fears his children will be teased about his disorder.
But, in time, he hopes mental
illness will overcome the stigma it's been stuck with for hundreds of years.
"Don't be afraid of it."
comes the following document about CPP Disability Insurance.
Canada Pension Plan - Disability Benefits
The CPP offers monthly disability
benefits for qualified individuals and dependent children in Canada,
except Quebec. Quebec has
their own pension plan.
The disability pension has
two parts: a flat rate portion and an earnings-related amount. A cost of
living increase is built
into the payments, effective January of each year. Also, a maximum is set
People age 18 to 65 who contributed to CPP (the contributory period is
the total length of time
you paid into the plan between your 18th birthday and the day you stopped
Your income must be higher than that year's basic exemption.
You made contributions for at least five of the last ten years or two of
the last three (a late
application can be considered for those who meet the criteria but failed
To be considered disabled, your condition must be "severe" (defined as
any mental or physical
impairment which prevents you from regularly pursuing any substantive gainful
even part-time) and "prolonged" (defined as any impairment that will probably
and have an indefinite duration).
How Do I Apply?
- An application package
can be obtained through your regional or local CPP client service office
(look under "Human Resources
Development, Income Security Program" in the blue pages of the
- The application package
includes the following plus an authorization form allowing CPP to get
additional medical information.
(1) A questionnaire - detailing
how your illness has affected your life. Put specific details in about
the illness has affected
your life (e.g. walking - how far can you walk, do you need to rest afterwards,
or use an aide like a cane,
do you experience pain while walking, etc.).
(2) Medical Report - your
doctor should outline a diagnosis relating the illness as a whole to your
condition. Dates in the
report should be consistent with dates in your application (e.g. date of
contribution to CPP and
date of initial symptoms, precise dates of patient visit(s), length of
have been a patient, etc.).
Your doctor must indicate
that the illness has affected your capacity to work and that this opinion
based on objective medical
tests. These tests should be included in the medical report. The doctor
can send the report directly
or give it (sealed in an envelope) to you to mail.
What Happens Next?
Your application will be reviewed by a Disability Adjudicator, who is usually
Nurse. The adjudicator looks for errors such as ambiguities in the medical
If you are successful, legislation allows payments to begin four months
after the CPP ruling.
Payments stop if you return to gainful employment or reach age 65.
To determine your ongoing
eligibility, the CPP may periodically reassess your impairment.
If your application is denied,
you have 90 days to file an appeal. More medical reports, for example,
from specialists, letters
of support from former doctors, a letter explaining why you are appealing,
personal history and how
the illness affects you can be included in your letter for reconsideration.
Income Security Programs,
Canada Pension Plan
PO Box 1687, Station "M"
If you are again denied,
you can appeal further to the CPP Review Tribunal. If necessary, a final
appeal can be made to the
Pension Appeals Board.
Canada Pension Plan Disability
Benefits. George Cameron-Calouri, ME Canada, 1996.
back to Table of Contents
Changes in Canada Pension Plan
rules hold implications for physicians
Alex Romaniuk, MD
Dr. Alex Romaniuk is senior medical
adviser with the Canada Pension Plan.
Canadian Medical Association Journal
1995; 153: 1777-1778
Recent legislative changes to
the Canada Pension Plan (CPP) have significantly altered eligibility
requirements for disability pensions.
A CPP medical adviser explains how the changes affect
physicians and examines the federal
government's definition of "disability."
Des modifications apportées
récemment aux dispositions législatives régissant
le Régime de pensions
du Canada (RPC) ont transformé
radicalement les exigences relatives à l'admissibilité aux
d'invalidité. Un conseiller
médical auprès du RPC explique comment le changement affectera
médecins et examine la
définition de «l'invalidité» adoptée par
le gouvernement fédéral.
When a Canadian company commissioned
market research in Great Britain to see what images came to mind when Britons thought
about Canada, the top three responses were moose, snow and Mounties.
If one asked Canadians what images
come to mind when they think of the Canada Pension Plan (CPP), it wouldn't surprise me
if most responded: Isn't that a retirement scheme? And isn't it going broke?
CPP is not just a retirement scheme
-- it also provides disability benefits. And since it is based on contributions that increase annually,
it cannot go broke. But CPP financing is not the subject of this article. I want to provide information
about the CPP disability pension and recent legislative changes that have significantly altered
eligibility requirements. I will also deal with the definition of disability under CPP legislation, because
in my experience this causes much confusion, both for claimants and their physicians.
Starting at age 18, all Canadians
with employment income above a threshold amount -- currently $3400 -- contribute to the CPP.
People are eligible for a disability pension only if they have contributed to the plan in 2
of the last 3 years, or 5 of the last 10 years. CPP contributions are the equivalent of premiums paid to
a private insurance company.
In 1992, legislative changes addressed
two eligibility problems. The first was the catch-22 situation involving people who were rendered
incapable of forming the intent to apply for a disability pension, usually because of mental illness
or brain injury. If no relative or agent applied for them during the 5-year window of opportunity,
they were out of luck. Bill C-39 allows the CPP to pay full retroactive benefits regardless
of when the application is received, provided there is medical evidence the person really was incapable
of forming the intent to apply.
The second eligibility problem
concerned a person who could have applied during the 5-year window of opportunity, but did
not because of inadequate information or lack of awareness related to illiteracy or language difficulty.
Bill C-57 allows disability benefits to be paid -- with limited retroactivity -- if it can be
established that people were disabled (within the meaning of CPP legislation) at the time they
last met the earnings requirement, and have remained disabled.
These legislative changes may
require CPP officials to solicit medical information that is 10 or 20 years old. Consequently, we find
ourselves asking physicians to look for charts that, assuming they have not been destroyed, have
been relegated to dark basement corners. We understand it is not easy to meet requests for old
medical records, but we do have reasons for asking -- if the medical information can be provided,
it can be the missing link that allows a disabled person to qualify for
a disability pension.
Although applicants may be eligible
for such a pension on the basis of contributions, they must also have a disability that is "severe
and prolonged" within the meaning of CPP legislation. A disability is severe "only if by reason thereof
the person in respect of whom the determination is made is incapable regularly of pursuing
any substantially gainful occupation." A disability is prolonged "only
if it is determined in [a] prescribed
manner that such a disability is likely to be long continued and of indefinite duration or is likely
to result in death."
These ostensibly simple definitions
are not as simple as they appear.
of "severe" is not expressed in terms of medical diagnoses or disease descriptions,
only in terms of the person's capacity for activity in the workforce. A quadriplegic
employed full time as a computer programmer would not meet the "severe"
is not "severe" because it prevents a person from doing his or her usual
job. It is only considered
"severe" if it prevents a person from having any substantially gainful
occupation. Consequently, a letter carrier whose varicose veins prevent
ambulatory work but do
not prevent sedentary work would not meet the definition of "severe."
definition of "prolonged" varies quite substantially from the normal meaning
of that word. Normally
"prolonged" means "longer than expected" or "longer than normal." "Prolonged" in the CPP sense does not refer to a past prolongation, but to a potential prolongation
into the future -- the
likelihood that a severe disability will be long lasting and indefinite, or
result in death.
Consequently, people who have been off work for 2 years because of heart
problems would not meet the
"prolonged" criteria if they have just had successful bypass surgery and
expect to return to work soon. When considering "prolonged," it is what is
likely to happen, not what has
happened, that is important.
To qualify, a disability must be "severe and prolonged." This means both
criteria must be met
simultaneously. You cannot have one without the other.
We sometimes get appeal letters
from physicians asking: "How can you say her disability is not
severe when she cannot even get out of her wheelchair?"
Or: "He's had that clubfoot all
his life? How can you possibly say the disability is not prolonged?"
I hope the foregoing explanations
and definitions show why neither of these situations would necessarily meet CPP disability
Our criteria have been called
"stringent" -- and worse than that by lawyers at appeal hearings -- but they have been the same since
the inception of the CPP in 1966. Until Parliament decides to change them, those are the criteria
we must use when adjudicating disability cases.
CPP disability pensions were never
designed to be a substitute for short-term disability insurance, a supplement for partially disabled
workers, or an income supplement for aging workers in economically deprived regions.
We are aware that physicians in
general, and general practitioners in particular, can feel pressured by patients to provide medical reports
that will support their applications. Consequently, in the preformatted reports we provide
to physicians we solicit objective medical information about your patient. We do not actively ask
whether you think the patient meets the "severe and prolonged" criteria.
You are, of course, free to provide
such opinion if you wish, but providing us with solid clinical information is more likely to
get your patient a speedy and accurate decision than providing opinion
in the absence of supporting clinical
data. In the latter case we have no recourse but to solicit information from consultants
to see if the opinion has a clinical basis, and if there are no other treating doctors we have to arrange a
consultation ourselves. All of this takes time. If the clinical evidence
of a significant disability is ultimately
not forthcoming, then the whole exercise has been a waste of everyone's time -- yours, ours
and the patient's.
For more information about CPP
disability benefits or for copies of the Disability Benefits brochure, contact CPP client service centres
or Human Resources Development Canada; fax: 819 953-7260.
Cite catalogue number ISPB-153-01-95E.
If you have specific medical questions,
telephone 800 267-3391 and ask to speak to a physician;
(fax) 800 267-1540.
CMAJ December 15,
1995 (vol 153, no 12) / JAMC le 15 décembre 1995 (vol 153, no 12)
In addition to Canada Pension
Disability insurance, eight of Canada’s ten provinces have in place a provincial
disability income insurance plan. This plan is used for a) those
who do not qualify for Canada Pension or b) to supplement income to a guaranteed
income level as assessed by the government.
The following article found at
http://worldchat.com/public/tab/odspa.htm uses Ontario as an example.
Contact your local or provincial social services agency for further
This is a revised and significantly
abridged version of two ARCH*ALERTS, released June 13 and 16, 1997, entitled
"SOCIAL ASSISTANCE REFORM ACT, 1997: A PRELIMINARY ANALYSIS". Much of the
content is unchanged. There was, however, a significant error in the ARCH*ALERTS,
in that I indicated that there would still be an appeal with respect to
decisions regarding employment supports under the Ontario Disability Support
Program. This is not the case: the appeals (which currently exist under
the Vocational Rehabilitation Services Act) will be eliminated under the
new legislation. I also failed to note that the SARA contains a general
power for the Ontario Government to make classes of individuals ineligible
for employment supports through regulation. Both of these points have been
corrected in this revised version. A full revision of the ARCH*ALERTS will
be contained in the next issue of ARCH*TYPE, available from ARCH in a few
1. Social Assistance Reform Act,
The Social Assistance Reform Act,
1997 ("SARA") was introduced for first reading into the Ontario Legislature
on June 12, 1997 by the Minister of Community and Social Services, the
Honourable Janet Ecker. SARA was described by Ms. Ecker as fulfilling "two
key commitments made in the Common Sense Revolution--to reform Ontario's
welfare system and to create an income support program to meet the unique
needs of people with disabilities".
SARA represents the most fundamental
change in Ontario's social assistance programs since the Family Benefits
Act and the General Welfare Assistance Act were introduced more than three
decades ago. Except for a number of improvements targetted specifically
at persons with disabilities (to be discussed further below), the overall
impact of the new legislation is clearly intended to be a reduction of
support to recipients, the implementation of mandatory workfare throughout
the Province, and much tighter policing of the system.
2. Ontario Disability Support
Program Act - Who Is Included - Defining "Disability"
The key issue related to ODSPA
is "who will qualify". Since the "inadvertent" repeal (later reversed)
of the "permanently unemployable" FBA definition in 1995, and the narrow
definition shown to disability organizations by MCSS staff during consultations
in October, 1996, there has been widespread concern in the community that
many current FBA and potential ODSPA recipients will be found to be "Not
Disabled Enough" (the name of a conference organized by the Income Maintenance
Group in March, 1997).
The ODSPA defines "person with
a disability" as follows:
"4. (1) Subject to subsection
(2), a person is a person with a disability for the purposes of this Part
the person has a substantial physical
or mental impairment that is continuous or recurrent and expected to last
one year or more;
the direct and cumulative effect
of the impairment on the person's ability to attend to his or her personal
care, function in the community and function in a workplace, results in
a substantial restriction in activities of daily living; and
the impairment and its likely
duration and the restriction in the person's activities of daily living
have been verified by a person with the prescribed qualifications.
A person is not a person with
a disability if the person's impairment is caused by the presence in the
person's body of alcohol, a drug or some other chemically active substance
that the person has ingested, unless the alcohol, drug or other substance
has been authorized by prescription as provided for in the regulations.
A determination under this section
shall be made by a person appointed by the Director."
MCSS Minister Ecker strongly
defends this definition as appropriate and as responsive to the concerns
expressed by individuals with disabilities, their families and organizations.
In the MCSS background information and in her speeches, she stresses:
the Ministry has moved considerably
from the proposed definition used in the October, 1996 consultations, in
that the qualifier "substantial" has replaced "severe" and a "one year"
test has replaced "two years"
the disability community has consistently
called for the removal of "permanently unemployable" as a test because
of its work disincentive implications
all aspects of a disability are
covered - personal care, functioning in the community, functioning in the
cyclical or episodic disabilities
(e.g. bipolar mood disorder, multiple sclerosis) are recognized explicitly
in the definition through the word "recurrent"
disabilities are to be assessed
"individually" rather than through "labels" (i.e. narrow diagnostic tests)
a wider range of health professionals
than just physicians will have input into disability determination (stressed
in the background materials)
there will be more consistency
in the disability determination process through development of a manual
and better training (stressed in the background materials).
Despite these reassurances, however,
the proposed definition raises concerns which outweigh the advantages.
There are good reasons to believe that eligibility as a person with a disability
will be significantly restricted under ODSPA as compared with the current
Family Benefits GAINS-D program because of the following problems:
the definition is complex, which
will lead to difficulties in interpretation, particularly for family doctors
and other community-based health and social service professionals who are
not working with this language on a daily basis
the semantic difference between
"substantial" and "severe" may prove of limited value if the manual, training
and internal MCSS guidelines emphasize a restrictive approach (as has happened
with Canada Pension Plan disability at the federal level, where the "definition"
has in practice been narrowed without any legislative change)
the term "direct" in subsection
4(1)(b) of the definition may be used to exclude people for whom the impact
of their disability is greater because they are illiterate, over 50, have
only ever worked at hard manual labour, etc.
since subsection 4(1)(b) uses
the word "and" rather than "or" to refer to the three areas of functional
limitation (personal care, functioning in the community, functioning in
the workplace) it appears that individuals will have to show a "substantial"
restriction in all three areas in order to qualify
the Ministry may appoint people
who take a very restrictive view of disability as assessors
the manual may be developed using
a "meat chart" approach (like the American Medical Association disability
assessment guidelines used in Ontario by the WCB)
"substance abusers" whose behaviour
is caused by an underlying disability will be unfairly excluded, or they
may be required to accept treatment as a condition of eligibility (an approach
apparently suggested in the Ministry background documents and already adopted
in a recent SARB decision).
As with other important issues
in SARA, much will obviously depend on the forthcoming regulations and
guidelines. It is especially important that those organizations and individuals
knowledgeable and concerned about particular disabilities and illnesses
continue to participate knowledgeably and actively with respect to this
The Minister has, in the ODSPA
and in the transitional provisions, brought in "grandfathering" of those
assessed as "permanently unemployable" or "PUE" in the past. When the ODSPA
comes into effect, those on FBA as "PUE" will be transferred to the ODSPA
(along with those whose "PUE" applications are complete). They will thereafter
be able to remain on the "higher-tier" ODSPA system as long as there is
not an interruption of more than one year in their allowances, if the interruption
is due solely to employment earnings. (People who go "off the system" for
some other reason, for however short a period, will lose their "grandfathering".)
However, after ODSPA comes into
effect, of course applicants will no longer be able to qualify as "PUE".
Minister Ecker has more-or-less indicated that the new definition is somewhat
comparable to "PUE", but this seems doubtful looking at the language of
the definition as a whole.
The "grandfathered PUE's", together
with all other ODSPA recipients, may be subject to review and retesting.
The Ministry background documents indicate that this will be done only
when the disability is expected to "improve" - however, there is no restriction
on review and retesting in SARA, and any policies regarding this have been
left for regulations or guidelines.
[The "over 60's" have apparently
also been "grandfathered" into ODSPA, but in future "over 60's" will be
3. Ontario Disability Support
Program Act - Employment and Vocational Rehabilitation
ODSPA participants are totally
exempt from workfare and other work-related requirements under the Ontario
Works Act component of SARA. On the other hand, persons with significant
disabilities who are found to be "not disabled enough" for ODSPA may well
be required to participate in workfare as a condition of receiving income
Unlike the OWA, the ODSPA contains
a specific Part (Part III, Sections 32-36) dealing with "Employment Supports".
The greater detail presumably reflects the replacement of the Vocational
Rehabilitation Services Act (VRSA) by the ODSPA.
The ODSPA very clearly links eligibility
for "Employment Supports" to a "competitive employment goal" and removing
barriers which stand in the way to it. Assistance with homemaking, once
provided under VRSA, is not covered.
An important point is that ODSPA
uses a wider definition of eligibility for "Employment Supports" than for
income support (discussed above). Section 32(2) provides:
"32. (2) Employment supports may
be provided to a person if the person is eligible for income support under
Part I or if,
the person has a physical, psychiatric,
developmental or learning impairment that is continuous or recurrent and
expected to last one year or more and that presents a substantial barrier
to competitive employment; and
the fact that clause (a) applies
to the person has been verified by a person with the appropriate qualifications."
The fact this this language is
wider than the definition of "disability" with regard to income support
is good in one way, but it also of course reinforces the concerns about
the potential narrowness of the income support definition (as discussed
While this may be a wider definition,
it does not make the person eligible for income support. The former "VRS
training allowance" is gone in the new system. People who are "disabled"
within the meaning of the ODSPA but who do not qualify financially (because
of assets or income) for the income benefit can qualify for employment
There are other major changes
between VRSA and ODSPA. VRSA is delivered by a branch of MCSS - the rehabilitation
counsellors are provincial civil servants. Under ODSPA, according to the
June 5th Ministry backgrounder, "the proposed employment supports system
will be delivered by local service coordinators who will be selected through
a competitive process based on their ability to provide the best quality
of service and achieve the greatest possible impact on employment outcomes
for their clients". This privatization of rehabilitation services likely
will be met with a mixed response from individuals with disabilities. Some
would like to see a more results-oriented, less bureaucratic approach than
under VRS, while others will have deep concerns, especially if the service
coordinator determining eligibility in a local community comes from the
for-profit sector (which presumably can occur in a competitive process).
The accountability of local service providers with respect to fair decision-making,
privacy, etc. is not addressed directly in ODSPA - a major concern as their
decisions will not be appealable to the Tribunal (as we shall soon see).
The ODSPA employment supports,
according to the Ministry backgrounder, will include a broad range of services,
such as employment planning assistance, interpreters, technological aids
and devices, skills development and ongoing job supports. But the funding
envisaged is very limited: $18 million annually for now increasing to $35
million on full implementation. This is not enough to provide supports
for all those who want employment or have potential for it. Unless "new
dollars" are put in, the ODSPA may develop the same backlog problem as
VRS now has.
The ODSPA employment supports
program has an unspecified co-payment for people with higher incomes (the
backgrounder says this begins at over $52,000 in taxable income for a single
person). While this presumably only affects a small number of individuals,
it may be a dangerous precedent. If the funding in fact turns out to be
inadequate (as I expect it will), it would be easy for the government to
reduce the level at which the co-payments begin.
A separate home and vehicle modifications
program is included in ODSPA but no details are given. Again the key question
is: Where will the money come from?
Another very significant change
is that there will be no appeals from adverse employment support decisions
under ODSPA. [See Section 21(3) of ODSPA.] This removes an important safeguard
which persons with disabilities now have under VRS. The decisions of local
service coordinators will effectively be final (although they will have
to have an internal review process).
Subsection 33(c) also raises a
major concern in that it gives the Government the authority to declare
entire classes of people ineligible for employment supports. To do this,
the Government needs simply to pass a regulation. The Ministry has given
no indication as to how this power will be used under ODSPA.
The Ministry June 5th Backgrounder
mentions federal-provincial negotiations as important to the employment
support component of ODSPA - the federal Vocational Rehabilitation of Disabled
Persons Act (VRDP) is the last conditional cost-sharing social program
in Canada, and its future is currently under consideration by the federal
and provincial levels of government. VRDP has been an important safeguard
for disability-related employment support programs in the Provinces with
respect to some issues - especially appeals. Presumably Ontario either
knows or assumes that, if there is a new VRDP agreement at all, it will
no longer guarantee appeal rights.
In its information, the Ministry
promises a system of "rapid reinstatement" for persons with disabilities
who attempt to work but lose their employment. The main idea is that the
person will be re-assessed only as to financial eligibility, not as to
his or her "disability status". It remains to be seen how this will be
implemented in practice.
4. Ontario Disability Support
Plan Act - Allowances and Benefits
The most significant improvement
proposed here (again, not in the proposed legislation itself but presumably
left to Regulations) would be to eliminate the 25% co-payment currently
imposed under the Ministry of Health's Assistive Devices Program (ADP).
According to the Ministry's Backgrounder, not only ODSPA recipients but
also those receiving Handicapped Children's Benefits and OWA would qualify.
At present, social assistance recipients requiring ADP equipment and supplies
either have to try and get supplementary aid/special assistance from their
local municipality (increasingly hard to get even where there still is
a program), or approach disability organizations or service clubs for support.
As well, ADP has gradually introduced
"caps", "block payments" and other restrictions in many of its categories,
so that often people with disabilities receive significantly less than
25% of the cost of the item.
Ministry of Health officials have
indicated that the new ODSPA policy will be to pay 100% of the ADP approved
amount for equipment and supplies. But if what an individual wants or requires
exceeds the approved amount, he or she will still have to come up with
the "excess" from some other source or his or her own savings.
Section 49 of the draft ODSPA
provides for the continuation of the Handicapped Children's Benefit (HCB)
program (although that name is not specifically used in the Bill). The
benefit is restricted to "extraordinary costs" where the child has a "severe"
disability. Details are all left to the regulations -there is no indication
of any changes to HCB in any of the MCSS materials. At present, many parents
whose children have significant disabilities are denied HCB because the
child's disability is not "severe" enough.
5. Ontario Disability Support
Program Act - Financial Testing
Financial testing related to both
liquid assets and income is the main area in which Minister Ecker has chosen
to make improvements (over the existing FBA) in the new ODSPA.
The liquid asset limit will be
raised from the FBA limit of $3,000 for a single person to an ODSPA limit
of $5,000. The increase for couples (one spouse having a disability) goes
from $5,000 to $7,500. The amount of $500 for each additional dependant
remains unchanged. (Once implemented, this will be the first increase in
the liquid asset limit since 1980!)
The limit for personal injury
awards which are exempt from being treated as liquid assets will be raised
from the FBA limit of $25,000 to an ODSPA limit of $100,000. This exemption
covers Criminal Injuries compensation awards as well as awards and settlements
through the courts.
ODSPA recipients will no longer
be required to treat the cash surrender value of life insurance policies
as liquid assets, so long as the value is $100,000 or less. Rather, they
will be allowed to retain the policy and, according to the June 5th Income
Backgrounder, they may "take a loan against it to cover the costs related
to the advanced states of a serious illness, such as AIDS or cancer". This
raises important questions, one of which is whether those with serious
illnesses will have coercion brought to take out such loans (to the ultimate
detriment of their heirs). Another is whether other government and private
programs, such as the Trillium Drug Program, will consider these loans
to be "income" for purposes of calculating eligibility.
The Ministry's Backgrounder lists
a number of improvements in ODSPA (as opposed to FBA) under the heading
"Partnership with Families". The intention is to remove obstacles which
now limit the ability of parents and other family members to provide supports
to adult sons and daughters. In particular:
Families and other persons will
be able at any time to assist ODSPA recipients with disability-related
costs such as assistive devices, health items, support services, home accommodation
and education. Presently, this is only available under FBA for trusts established
through an inheritance. Presumably, there will be a regulation defining
what expenditures may be made without affecting the ODSPA allowance.
In addition, families and other
persons will be able to provide an additional $4,000/year towards costs
not related to disability for ODSPA recipients. This will apply both to
supports provided by living persons and to trusts based on inheritances.
The Ministry Backgrounder of June 5th says that there will be a "broader
range of eligible uses", which indicates that there will be limits, prescribed
by regulation (and perhaps by guideline), for this amount as well.
With regard to testamentary trusts,
the current limit of $65,000 will be increased to $100,000 - however, it
appears from the Ministry Backgrounder that the power of the Ministry to
exempt a higher amount, based on a plan, will be removed, so that the $100,000
will be a "standard maximum". It appears that the new expenditure rules
will be applied to absolute discretionary ("Henson") trusts, but that there
will be no maximum amount for these (as at present).
These changes all appear very
positive for individuals who have families to support them. However, they
create a system where recipients with supportive families can potentially
receive much more than those without family support, which may not be entirely
On the other hand, liberalizing
the rules allowing family support may be a first step towards a system
where some degree of family support is expected or even mandated (as occurs
in other Provinces now). While Minister Ecker has not suggested that family
support will be required in law, there are examples now of service providers,
such as group homes, requesting additional payments from families. In discretionary
programs such as Special Services at Home (available to parents of children
with physical disabilities and children and adults with developmental disabilities
living at home), the availability of family support under the ODSPA may
be used as a discretionary factor in determining eligibility and the amount
of support provided.
6. ODSPA and OWA - Persons Eligible
for Both Programs
Section 8(b) of the OWA legislation
provides that persons with disabilities who qualify for ODSPA are also
eligible for OWA, together with their dependants. This will enable ODSPA
recipients to participate in the OWA employment-related programs if they
elected to do so voluntarily, such as "community participation" ("workfare").
It will also allow ODSPA recipients to apply for emergency assistance from
their local OWA authority.
7. OWA and ODSPA - Appointment
of "Informal Trustee" ("Person to Act for Recipient"
The OWA [Section 17(1)] and the
ODSPA [Section 12(1)] contain essentially the same provision regarding
"informal trusteeship" of the assistance provided. The OWA provision is
"17. (1) An administrator may
appoint a person to act for a recipient if there is no guardian of property
or trustee for the recipient and the administrator is satisfied that,
the recipient is using or is likely
to use his or her assistance in a way that is not for the benefit of a
member of the benefit unit;
the recipient is incapacitated
or is incapable of handling his or her affairs; or
the recipient is under the age
of 18 years."
[ODSPA Section 12(1) is the same
except that the appointment is made by the ODSPA Director, rather than
the adminstrator, and clause (c) is omitted, as 16- and 17-year-olds will
not be eligible under ODSPA, just as they are now ineligible for FBA.]
The language permitting someone
to be appointed as an "informal trustee" is very broad, especially clause
(a). It would apparently be possible to use this clause to take away a
recipient's control of his or her own money in a wide range of cases.
Clause (b) is also very problematic,
in that income assistance administrators will, in effect, be determining
that someone is "incapable" without going through the procedures and safeguards
in the Substitute Decisions Act. Even where the SDA is used, there is concern
among disability organizations (and in the recent Koch case, by the Ontario
Court of Justice, General Division) that it is too easy to take away someone's
control of their own finances.
Similarly, clause (c) may be very
unfair to a young person capable of independence.
The government will no doubt argue
that "informal trusteeship" is a practical necessity, that there are just
too many cases to go through the SDA. This is a reasonable consideration
(other income programs like Old Age Security have "informal trusteeship"
too), but there could at least be provision for a reporting requirement
to ensure some accountability of "informal trustees".
Both the OWA and ODSPA require
that "informal trustees" act without compensation, but there is nothing
dealing with conflict of interest e.g. where the "informal trustee" is
a service provider to the individual, or his or her landlord. Such an appointment
is permitted and, as already noted, the "informal trustee" does not have
to account to anyone, even with respect to payments made to the trustee
himself or herself.
Further, the person for whom an
"informal trustee" is appointed apparently has to live with any bad decisions
which the trustee makes. There is no provision to assist an individual
whose "informal trustee" fails to notify the government regarding assets
or income, for example, and thus creates an overpayment. The recipient
(as in the current system) is bound by the mistakes made by the trustee.
Significantly, the decision by
the government to appoint an "informal trustee" is not appealable in the
proposed legislation (we discuss later what is and what is not appealable
in the new system). It appears that a person who objects to having an "informal
trustee" appointed will have no recourse at all.
8. Income Maintenance Group
For many years, ARCH has served
the Income Maintenance Group as its Legal Counsel. The IMG, a coalition
of disability organizations, has a long history of advocacy on social assistance
issues. Unfortunately at present (when it is most needed) the IMG is without
funding. If organizations can provide support, either financially or otherwise,
to the IMG during the next few crucial months, this would assist greatly
in helping the community respond effectively to the new legislation.
This paper was prepared by
Advocacy Resource Centre for the
40 Orchard View Blvd.
fax (416) 482-2981