OASIS members are pleased to see the Ministry moving forward with updating the legislation for the system of support for individuals with developmental disabilities. Particularly encouraging is the removal from the legislation of any reference to institutional care and as a consequence, the discontinuation of the Ministry as a direct service provider. The system envisioned is one which is fairer, which levels the playing field and addresses the significant inconsistencies and resource inequities which have historical roots. The new system includes methods to more easily fund innovative approaches to the provision of support and there is an emphasis on accountability for funds expended. There is intended to be greater consistency across the Province and this together with common tools will allow for the development of a better planned and more easily managed Provincial system. While there are some concerns with the concept of a waiting list being entrenched in the legislation, the intent to more systematically manage resources and demand for service is welcomed. There are attempts to make the transition as smooth as possible through “grand parenting” provisions and this legislation signals to families that their concerns and viewpoints have been heard by the government.
There are a number of issues we would like to raise which we believe will make the legislation stronger.
We have been very supportive of the inclusive consultation which has occurred around the development of the transformation paper and the legislation. We are fully committed to continuing our work as partners with the Ministry in developing the next phases of this process including the regulations, policy directives and policy guidelines. We urge the Ministry to lay out a clear process to ensure involvement of all stakeholders at the development phase of these very important implementation pieces and to commit to broad based consultation throughout the process. One quite successful approach is the one used by the Ministry of the Environment when they post information for feedback for a specified time period on the internet. We strongly believe that the best results for the system will be achieved when stakeholders are involved right from the beginning in the development of these documents rather than after they have been fully developed.
This Bill, by the very nature of legislation of this type, must contemplate the most extreme and difficult situations and address how they will be dealt with. This results in the legislation sounding particularly punitive and focused on enforcement and punishment. This could be balanced by the inclusion of a preamble with value statements, moral guidance, spirit of intentions, scope and purpose, etc. Not only would that assist in guiding in the development of regulations, it would clearly communicate the very purpose of the Act and the vision for the social change that is taking place in this sector.
Bill 77 is quite silent on partnerships with other Ministries and agencies such as LHIN’s, Boards of Education, etc. While we understand that Bill 77 is only dealing with services funded by the Ministry of Community and Social Services for those individuals with developmental disabilities who are over 18, we remain concerned with the barriers this creates for families and communities attempting to do longer term and more holistic planning.
Once clear example is that the government has divided responsibility between two ministries based on an age of 18 and each ministry is only responsible for its own segment of the population what gets lost is the proactive transitional planning that can and should happen to ensure that the children and youth with developmental disabilities have a smooth transition into adulthood without having to start all over with new assessments, new plans, etc.
A system where options and choices exist for individuals and their families is dependent on services being available. The not for profit system relies on community support and on volunteers willing to take on the responsibilities and accountabilities of managing these organizations through boards of directors. These community agencies have developed in response to local need and the tremendous diversity of the province of Ontario is reflected in their individual by-laws, board composition, etc. We are very concerned that under Bill 77 as currently proposed, the Province could have the authority to impose things like board composition on service agencies without regard for local differences. It is important to note that similar authority does not extend to application centres or third party providers within the legislation. Again, if the intent is provided, that might clarify why service agencies are the focus of this particular section.
There are a number of liability related issues in the current draft of the Bill. It is not clear where all of the liabilities lie in the case of third party agreements which flow through application centres.
In the case of an appointed manager in a take over situation, they are protected from any liability but that is not the case for volunteers and staff managing the services on an ongoing basis. Given that the appointed manager is protected, it is unclear who is liable during a take-over situation.
Of particular concern is paragraph (c) of Section 35(1) in which a person could be found guilty following a failure to comply with reporting requirements or quality assurance standards even if the failure is unintentional. This might mean that a member of the board of directors could be held individually responsible for this transgression. We have a legal opinion that expresses concern that director’s liability insurance may not cover this particular situation.
The legislation is not entirely clear regarding the nature of relationships between various components of the system, especially the service agencies, application centres and third party providers. It would appear that the application centres may be setting priorities in isolation from the agencies providing service and the funding available. It is also not clear who will be providing assistance to families to make applications and who will receive funding to support the costs of managing this system. While much of this will be clarified through the drafting of regulations, the actual framework is somewhat confusing especially in regard to the role of the application centres. This confusion would be somewhat lessened if the Act referred to “application process” rather than “application centre”, moving the understanding to a series of activities rather than more narrowly defining it by a specific location.
As currently proposed, the legislation would appear to apply different standards for different types of service and employ different mechanisms depending on the method of funding i.e. direct funding versus service agency. We are very supportive of the existence of clear standards for quality of care and believe that the same set of standards should be applied regardless of funding mechanism or service type. As currently drafted, the level of accountability appears higher for service agencies than any other part of the system. This will become a particularly difficult issue as third party and for profit services become involved in the system and potentially have a lower level of standards to meet than service agencies.
In this sector, we have worked for years to move society’s perception away from agency operated group homes where people are placed toward an understanding that this is a person’s home in which they live with supports, they make as many of their own decisions as possible and are assisted to do that and they have the right to be fully engaged in community life. Therefore, we are extremely uncomfortable with the section of the Act which allows entry, without warning, to an individual’s home. This indicates that people requiring significant support with daily living do not have the same rights to privacy afforded to all other members of society.
There are a number of funding concerns which this proposed legislation raises. We are very supportive of the expanded definition of eligibility proposed in the Bill to include individuals who need service but have been excluded in the past. We do have concerns about the availability of additional funding to support these additional demands on the system.
Without knowing the implementation details related to application centres, it is hard to envision exactly what the system will look like, and consequently, what the costs will be. However, it is a concern that funding may be diverted from direct service to cover the administrative costs of processing applications, managing wait lists, etc.
It is not clear what the provisions will be for people currently receiving service. The legislation clearly indicates that their eligibility will be “grand parented” but not necessarily their access, priority or level of service.
During 2007, the sector endured serious labour disputes which had significant implications for the very people being supported. Individuals had their homes picketed, relationships damaged and trusts were broken. Given the nature of this sector and vulnerability of many of the people supported, we believe the introduction of this Bill provides a good opportunity to identify this as a no strike sector with provisions within the act to use alternative methods to deal with labour disagreements.
The Act does include some internal appeals which really involve a self judgement process whereby the organization making the original decision is also hearing the appeal. In other cases, appeals have to go the judicial route which can be a lengthy, costly and quite inaccessible process. More equitable, transparent and fair would be a third party appeal mechanism for the various stages of decision making that occur within the system. This would ensure that decisions are reviewed by an independent body and appeals are heard by a non biased party. This body could also act as a processor of complaints and provide support for self advocacy.
One concept that the Bill is completely silent on is that of legal capacity. With the introduction of direct funding, there is an assumption that an individual has the capacity to enter into a contract. For some individuals, family members will be willing and able to take on this role and for others, there will be no-one available and that will mean that there is no access to this funding stream and the types of service which might be purchased with it.