CANADA Disability Insurance
& Bipolar Disorder

 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 are met.

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 at both.

Here is an example of the questions we may have found at MHI:

http://www.neurotimes.com/expert/exp1031599a.html

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. 

From http://www.acmi.canoe.ca/Health9906/10_mental.html comes this story of Mental Health Disability Mental illness strikes 1 in 5
By MINDELLE JACOBS -- Edmonton Sun

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 it."

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 to work.

"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."

From http://www.nsnet.org/idans/cpp.html  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 each
 year.

 Who Qualifies?

      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 working because
      of disability). 
      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 apply). 
      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 employment
      even part-time) and "prolonged" (defined as any impairment that will probably be continued
      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
 phone book).

 - 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 how
 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 last valid
 contribution to CPP and date of initial symptoms, precise dates of patient visit(s), length of time you
 have been a patient, etc.).

 Your doctor must indicate that the illness has affected your capacity to work and that this opinion is
 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 a Registered
      Nurse. The adjudicator looks for errors such as ambiguities in the medical evidence.

      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, a
 personal history and how the illness affects you can be included in your letter for reconsideration. Mail
 it to:

 Income Security Programs, Canada Pension Plan
 PO Box 1687, Station "M"
 Halifax, NS
 B3J 3J4.

 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.

 Compiled from:

 Canada Pension Plan Disability Benefits. George Cameron-Calouri, ME Canada, 1996. 

                             back to Table of Contents

http://www.mdmanagement.ca/cmaj/vol-153/issue-12/1777.htm

Changes in Canada Pension Plan disability
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 

[résumé] 
 

Abstract

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." 
 

Résumé

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 prestations
d'invalidité. Un conseiller médical auprès du RPC explique comment le changement affectera les
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. 

     The definition 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" definition. 
     A disability 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." 
     The 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 pension criteria. 

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  details.

INTRODUCTION 

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 weeks. -HB 
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1. Social Assistance Reform Act, 1997 ("SARA") 

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. 
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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 if, 
 

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 workplace 

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 issue. 

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 on OWA.] 
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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 support. 

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 above). 
 

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 supports, however. 

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. 
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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. 
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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 fair. 

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. 
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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. 
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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 as follows: 

"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. 
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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
Harry Beatty

Advocacy Resource Centre for the Handicapped
40 Orchard View Blvd.
Suite 225
Toronto, Ontario
M4R 1B9
fax (416) 482-2981
 


 

 

 

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