The Ontario Secondary School Teachers Federation OSSTF and Ten Disability Organizations Have Already Endorsed the AODA Alliance’s 19 Recommendations on What the Ontario Government Must Now Do to Meet the Needs of A Third of A Million Students with Disabilities in Ontario Schools


Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities
Web: http://www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: http://www.facebook.com/aodaalliance/

June 26, 2020

SUMMARY

Last week, the AODA Alliance made public a detailed brief showing the Ontario Government what it must now do to address the needs of a third of a million students with disabilities in Ontario schools during the transition to schools eventually re-opening, hopefully this fall. This brief draws on grassroots feedback we have received from many sources both before and during the COVID-19 crisis.

We are delighted that in just over one week since we submitted it to the Ontario Government, the AODA Alliance’s June 18, 2020 brief on what should be done to meet the needs of students with disabilities during the COVID-19 crisis has already won important endorsements. As an important step forward, our brief’s 19 recommendations, set out below, were just endorsed by the Ontario Secondary School Teachers Federation OSSTF. OSSTF is the union that represents thousands of secondary school teachers who work at the front lines in Ontario’s public schools. OSSTF’s June 26, 2020 public statement, sent to the AODA Alliance, says:

“Supporting students with disabilities A statement from OSSTF/FEESO

June 26, 2020 – Over the past four months, educators have done their best to work with students in this unprecedented environment of emergency remote learning. The start of the new school year in September will come quickly, and it is critical that the Ontario government prepare a plan for reopening schools that meets the learning needs of all students.

It is essential for the government to ensure that they meet the learning needs of the thousands of students with disabilities in our school system now, and during the transition to school reopening.

OSSTF/FEESO supports the 19 recommendations of the Accessibility for Ontarians with Disabilities Act Alliance as outlined in its June 18, 2020 brief on this topic. These recommendations effectively speak to the needs of students with disabilities, their families, and those of us committed to providing those students and all students with an excellent education.”

Seven years ago, when we were in the midst of our multi-year campaign to get the Ontario Government to agree to create an Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act to tackle the many barriers that impede students with disabilities in Ontario’s education system, We were fortified and helped in our efforts when the OSSTF wrote , the Ontario Government to support our call for an Education Accessibility Standard. Several other teachers unions supported our efforts back then.

As well, we have been notified that ten key organizations in the disability community have endorsed our brief’s recommendations, including March of Dimes of Canada, Citizens with Disabilities Ontario, Community Living Ontario, Spinal Cord Injury Ontario, The Canadian National Institute for the Blind, the Inclusive Design Research Centre of the Ontario college of Art and Design University, Physicians of Ontario Neurodevelopmental Advocacy, Balance for Blind Adults, the Fetal Alcohol Spectrum Disorder Elgin, London, Middlesex, Oxford Network), and Ontario Parents of Visually Impaired Children (Views for the Visually Impaired).

We commend all those who have already supported our brief. We urge other organizations and individuals, whether within the disability community or not, to email the Ontario Government at [email protected] to support our June 18, 2019 brief. Both individuals and organizations can write the Ontario Government to voice this support. Please help us get more individuals and organizations to do so.

There have been 512 days since the Ford Government received the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes even worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis.

There have been 93 days, or over three months, since we wrote Ontario Premier Doug Ford on March 25, 2020 to urge specific action to address the urgent needs of Ontarians with disabilities during the COVID-19 crisis. He has not answered. The Premier’s office has not contacted us. The ordeal facing Ontarians with disabilities during the COVID-19 crisis is worsened by that delay.

Visit the AODA Alliance’s COVID-19 web page to see what we have been up to, trying to ensure that the needs of people with disabilities during the COVID-19 crisis are properly addressed. Send us your feedback! Write us at [email protected] Please stay safe!

MORE DETAILS

List of Recommendations in the AODA Alliance’s June 18, 2020 Brief to the Ontario Government

#1. The Ministry of Education should immediately develop, announce and implement a comprehensive plan for meeting the learning needs of students with disabilities during the COVID-19 crisis. This plan should include during this time of distance learning, during an eventual return to school, and in case of a future COVID-19 wave that requires another round of school closures. To the extent possible, this plan should be an integral part of the Ministry’s overall plan it is developing for school re-opening.

#2. The Ministry of Education should immediately establish a “Students with Disabilities Education Command Table” to oversee the development and implementation of a Government action plan for meeting the urgent learning needs of students with disabilities during the COVID-19 crisis, and to swiftly react to issues for students with disabilities as they arise.

#3. The Ministry of Education should immediately issue a policy direction to all school boards, imposing restrictions on when and how a principal may exclude a student from school, including directions that:

a) During the re-opening at schools, students with disabilities have an equal right to attend schools for the entire school day as do students without disabilities. The power to refuse to admit a student to school for all or part of the school day should not be used in a way that disproportionately burdens students with disabilities or that creates a barrier to their right to attend school.

b) A principal who refuses to admit a student to school during the school re-opening process should be required to immediately give the student and their family written notice of their decision to do so, including written reasons for the refusal to admit, the duration of the refusal to admit and notice of the family’s right to appeal this refusal to admit to the school board.

c) A principal who refuses to admit a student to school for all or part of the school day should be required to immediately report this in writing to their school board’s senior management, including the reasons for the exclusion, its duration and whether the student has a disability. Each school board should be required to compile this information and to report it on a bi-monthly basis to the board of trustees, the public and the Ministry of Education (with individual information totally anonymized). The Ministry should promptly make public on a provincial basis and a school board by school board basis the information it receives on numbers, reasons and durations of refusals to admit during post- COVID-19 school re-opening.

#4. For each student with disabilities, each school board should now:

a) Contact the family of each student with disabilities, preferably by phone rather than email, to discuss and identify the student’s progress during the school shutdown, the student’s specific and individualized disability-related deficits and needs arising from and during distance learning due to the COVID-19 crisis and the student’s needs and challenges related to eventual transition to school (including any vulnerabilities of other family members due to the COVID-19 pandemic), and;

b) Create a COVID-19 IEP to set specific goals and activities to effectively address their disability-related needs during distance learning, and in connection with transition back to school.

#5. The Ministry of Education should assign staff to assist its Students with Disabilities Command Table by serving as a central rapid response team to receive feedback from school boards on recurring issues facing students with disabilities and to help find solutions to share with school boards.

#6. The Ministry should direct that each school board shall establish a similar central rapid response team within the board to receive and act on feedback from teachers, principals and families about problems they are encountering serving students with disabilities during the COVID-19 period, that will quickly network with other similar offices at other school boards, and that can report recurring issues to the Ministry.

#7. The Ministry of Education should plan for, fund and coordinate the provision by school boards of a surge in specialized disability supports to those students with disabilities who will need them when students return to school.

#8. The Ministry of Education’s plan for school re-openings must include detailed directions on required measures for ensuring that students with disabilities are safe from COVID-19 during any return to school. This requires additional planning in advance by school boards and additional funding to school boards to hire and train the additional SNAs and EAs they will need to ensure the safety of students with disabilities. It also requires safeguards to ensure that an EA or SNA does not work at multiple sites and risk transmitting the COVID-19 virus from one location to another.

#9. The Ministry of Education should immediately engage an arms-length digital accessibility consultant to evaluate the comparative accessibility of different digital meeting platforms available for use in Ontario schools. This should involve end-user testing. The Ministry should immediately send the resulting report and comparison to all school boards and make it public. This should be revisited as the fall approaches, in case there have been changes to the relative accessibility of different virtual meeting platforms. The Ministry should direct which platforms may be used and which may not be used for virtual or synchronous classes or parent/school meetings, based on their accessibility.

#10. The Ministry of Education should immediately direct TVO to make its online learning content accessible to people with disabilities, and to promptly make public a plan of action to achieve this goal, with specific milestones and timelines.

#11. The Ministry of Education should make public a plan of action to swiftly make its own online learning content accessible for people with disabilities, setting out milestones and timelines, and should report to the public on its progress.

#12. The Ministry of Education should direct all its staff and all school boards that whenever making digital information public in a PDF format, it must at the same time also be made available in an accessible format such as an accessible MS Word document.

#13. The provincial plans for return to school should include these features:

a) Rather than having all students across Ontario return to school at once, in a one-size-fits-all strategy, the Ontario Government should lead a strategic return to school process, trying out different approaches to see what works most effectively. For example, opening a few schools first to detect recurring problems and plan to prevent them would assist with opening of other schools across Ontario.

b) The COVID-19 IEP of each student with disabilities should tailor their plans for the return to school to meet their individual needs. Students with disabilities who need this accommodation should be afforded a chance to return to the school facility early so they can be oriented to any changes to which they need to adjust in the COVID-19 era.

#14. The Ministry of Education should immediately put in place an effective proactive team to gather teaching strategies for students with disabilities during distance learning from frontline teachers, parents and school boards and make these easily available to the frontlines on an ongoing basis, in formats that are accessible to people with disabilities. These should be supplemented by strategies that the Ministry researches from other jurisdictions that have innovated creative solutions.

#15 The plans for return to school must include measures for ensuring that those who cannot return to school at the same time can secure effective distance learning, including home visits (with social distancing) from teaching staff.

#16. The Ministry of Education should prepare teaching materials for teachers and parents to use, addressing different disability-related learning needs, for preparing students with disabilities for the return to school, to address such changes as social distancing.

#17. The Ministry of Education should create, fund and effectively enforce new standards for safe bussing practices for students with disabilities during any return to school while COVID-19 remains a community threat.

#18. Each school board should ensure that its Special Education Advisory Committee (SEAC) meets at least once per month, and preferably more often, during the COVID-19 crisis, to give its board ongoing input into planning for students with disabilities during the COVID-19 crisis.

#19. To get the most from the volunteer work of SEACs around Ontario, the Ministry of Education should:

a) Create and maintain a listserv or other virtual network of all Ontario SEACs, to enable them to share their efforts with all other SEACs around Ontario, and

b) Frequently gather input from SEACs around Ontario about the experiences of students with disabilities during the COVID-19 crisis.




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The Ontario Secondary School Teachers Federation OSSTF and Ten Disability Organizations Have Already Endorsed the AODA Alliance’s 19 Recommendations on What the Ontario Government Must Now Do to Meet the Needs of A Third of A Million Students with Disabilities in Ontario Schools


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

The Ontario Secondary School Teachers Federation OSSTF and Ten Disability Organizations Have Already Endorsed the AODA Alliance’s 19 Recommendations on What the Ontario Government Must Now Do to Meet the Needs of A Third of A Million Students with Disabilities in Ontario Schools

June 26, 2020

          SUMMARY

Last week, the AODA Alliance made public a detailed brief showing the Ontario Government what it must now do to address the needs of a third of a million students with disabilities in Ontario schools during the transition to schools eventually re-opening, hopefully this fall. This brief draws on grassroots feedback we have received from many sources both before and during the COVID-19 crisis.

We are delighted that in just over one week since we submitted it to the Ontario Government, the AODA Alliance’s June 18, 2020 brief on what should be done to meet the needs of students with disabilities during the COVID-19 crisis has already won important endorsements. As an important step forward, our brief’s 19 recommendations, set out below, were just endorsed by the Ontario Secondary School Teachers Federation OSSTF. OSSTF is the union that represents thousands of secondary school teachers who work at the front lines in Ontario’s public schools. OSSTF’s June 26, 2020 public statement, sent to the AODA Alliance, says:

“Supporting students with disabilities – A statement from OSSTF/FEESO

June 26, 2020 – Over the past four months, educators have done their best to work with students in this unprecedented environment of emergency remote learning. The start of the new school year in September will come quickly, and it is critical that the Ontario government prepare a plan for reopening schools that meets the learning needs of all students.

It is essential for the government to ensure that they meet the learning needs of the thousands of students with disabilities in our school system now, and during the transition to school reopening.

OSSTF/FEESO supports the 19 recommendations of the Accessibility for Ontarians with Disabilities Act Alliance as outlined in its June 18, 2020 brief on this topic. These recommendations effectively speak to the needs of students with disabilities, their families, and those of us committed to providing those students and all students with an excellent education.”

Seven years ago, when we were in the midst of our multi-year campaign to get the Ontario Government to agree to create an Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act to tackle the many barriers that impede students with disabilities  in Ontario’s education system, We were fortified and helped in our efforts when the OSSTF wrote the Ontario Government to support our call for an Education Accessibility Standard. Several other teachers unions supported our efforts back then.

As well, we have been notified that ten key organizations in the disability community have endorsed our brief’s recommendations, including March of Dimes of Canada, Citizens with Disabilities Ontario, Community Living Ontario, Spinal Cord Injury Ontario, The Canadian National Institute for the Blind, the Inclusive Design Research Centre of the Ontario college of Art and Design University, Physicians of Ontario Neurodevelopmental Advocacy, Balance for Blind Adults, the Fetal Alcohol Spectrum Disorder – Elgin, London, Middlesex, Oxford Network), and Ontario Parents of Visually Impaired Children (Views for the Visually Impaired).

We commend all those who have already supported our brief. We urge other organizations and individuals, whether within the disability community or not, to email the Ontario Government at [email protected] to support our June 18, 2019 brief. Both individuals and organizations can write the Ontario Government to voice this support. Please help us get more individuals and organizations to do so.

There have been 512 days since the Ford Government received the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes even worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis.

There have been 93 days, or over three months, since we wrote Ontario Premier Doug Ford on March 25, 2020 to urge specific action to address the urgent needs of Ontarians with disabilities during the COVID-19 crisis. He has not answered. The Premier’s office has not contacted us. The ordeal facing Ontarians with disabilities during the COVID-19 crisis is worsened by that delay.

Visit the AODA Alliance’s COVID-19 web page to see what we have been up to, trying to ensure that the needs of people with disabilities during the COVID-19 crisis are properly addressed. Send us your feedback! Write us at [email protected]. Please stay safe!

          MORE DETAILS

List of Recommendations in the AODA Alliance’s June 18, 2020 Brief to the Ontario Government

#1. The Ministry of Education should immediately develop, announce and implement a comprehensive plan for meeting the learning needs of students with disabilities during the COVID-19 crisis. This plan should include during this time of distance learning, during an eventual return to school, and in case of a future COVID-19 wave that requires another round of school closures. To the extent possible, this plan should be an integral part of the Ministry’s overall plan it is developing for school re-opening.

#2. The Ministry of Education should immediately establish a “Students with Disabilities Education Command Table” to oversee the development and implementation of a Government action plan for meeting the urgent learning needs of students with disabilities during the COVID-19 crisis, and to swiftly react to issues for students with disabilities as they arise.

#3. The Ministry of Education should immediately issue a policy direction to all school boards, imposing restrictions on when and how a principal may exclude a student from school, including directions that:

  1. a) During the re-opening at schools, students with disabilities have an equal right to attend schools for the entire school day as do students without disabilities. The power to refuse to admit a student to school for all or part of the school day should not be used in a way that disproportionately burdens students with disabilities or that creates a barrier to their right to attend school.
  1. b) A principal who refuses to admit a student to school during the school re-opening process should be required to immediately give the student and their family written notice of their decision to do so, including written reasons for the refusal to admit, the duration of the refusal to admit and notice of the family’s right to appeal this refusal to admit to the school board.
  1. c) A principal who refuses to admit a student to school for all or part of the school day should be required to immediately report this in writing to their school board’s senior management, including the reasons for the exclusion, its duration and whether the student has a disability. Each school board should be required to compile this information and to report it on a bi-monthly basis to the board of trustees, the public and the Ministry of Education (with individual information totally anonymized). The Ministry should promptly make public on a provincial basis and a school board by school board basis the information it receives on numbers, reasons and durations of refusals to admit during post- COVID-19 school re-opening.

#4. For each student with disabilities, each school board should now:

  1. a) Contact the family of each student with disabilities, preferably by phone rather than email, to discuss and identify the student’s progress during the school shutdown, the student’s specific and individualized disability-related deficits and needs arising from and during distance learning due to the COVID-19 crisis and the student’s needs and challenges related to eventual transition to school (including any vulnerabilities of other family members due to the COVID-19 pandemic), and;
  1. b) Create a COVID-19 IEP to set specific goals and activities to effectively address their disability-related needs during distance learning, and in connection with transition back to school.

#5. The Ministry of Education should assign staff to assist its Students with Disabilities Command Table by serving as a central rapid response team to receive feedback from school boards on recurring issues facing students with disabilities and to help find solutions to share with school boards.

#6. The Ministry should direct that each school board shall establish a similar central rapid response team within the board to receive and act on feedback from teachers, principals and families about problems they are encountering serving students with disabilities during the COVID-19 period, that will quickly network with other similar offices at other school boards, and that can report recurring issues to the Ministry.

#7. The Ministry of Education should plan for, fund and coordinate the provision by school boards of a surge in specialized disability supports to those students with disabilities who will need them when students return to school.

#8. The Ministry of Education’s plan for school re-openings must include detailed directions on required measures for ensuring that students with disabilities are safe from COVID-19 during any return to school. This requires additional planning in advance by school boards and additional funding to school boards to hire and train the additional SNAs and EAs they will need to ensure the safety of students with disabilities. It also requires safeguards to ensure that an EA or SNA does not work at multiple sites and risk transmitting the COVID-19 virus from one location to another.

#9. The Ministry of Education should immediately engage an arms-length digital accessibility consultant to evaluate the comparative accessibility of different digital meeting platforms available for use in Ontario schools. This should involve end-user testing. The Ministry should immediately send the resulting report and comparison to all school boards and make it public. This should be revisited as the fall approaches, in case there have been changes to the relative accessibility of different virtual meeting platforms. The Ministry should direct which platforms may be used and which may not be used for virtual or synchronous classes or parent/school meetings, based on their accessibility.

#10. The Ministry of Education should immediately direct TVO to make its online learning content accessible to people with disabilities, and to promptly make public a plan of action to achieve this goal, with specific milestones and timelines.

#11. The Ministry of Education should make public a plan of action to swiftly make its own online learning content accessible for people with disabilities, setting out milestones and timelines, and should report to the public on its progress.

#12. The Ministry of Education should direct all its staff and all school boards that whenever making digital information public in a PDF format, it must at the same time also be made available in an accessible format such as an accessible MS Word document.

#13. The provincial plans for return to school should include these features:

  1. a) Rather than having all students across Ontario return to school at once, in a one-size-fits-all strategy, the Ontario Government should lead a strategic return to school process, trying out different approaches to see what works most effectively. For example, opening a few schools first to detect recurring problems and plan to prevent them would assist with opening of other schools across Ontario.
  1. b) The COVID-19 IEP of each student with disabilities should tailor their plans for the return to school to meet their individual needs. Students with disabilities who need this accommodation should be afforded a chance to return to the school facility early so they can be oriented to any changes to which they need to adjust in the COVID-19 era.

#14. The Ministry of Education should immediately put in place an effective proactive team to gather teaching strategies for students with disabilities during distance learning from frontline teachers, parents and school boards and make these easily available to the frontlines on an ongoing basis, in formats that are accessible to people with disabilities. These should be supplemented by strategies that the Ministry researches from other jurisdictions that have innovated creative solutions.

#15 The plans for return to school must include measures for ensuring that those who cannot return to school at the same time can secure effective distance learning, including home visits (with social distancing) from teaching staff.

#16. The Ministry of Education should prepare teaching materials for teachers and parents to use, addressing different disability-related learning needs, for preparing students with disabilities for the return to school, to address such changes as social distancing.

#17. The Ministry of Education should create, fund and effectively enforce new standards for safe bussing practices for students with disabilities during any return to school while COVID-19 remains a community threat.

#18. Each school board should ensure that its Special Education Advisory Committee (SEAC) meets at least once per month, and preferably more often, during the COVID-19 crisis, to give its board ongoing input into planning for students with disabilities during the COVID-19 crisis.

#19. To get the most from the volunteer work of SEACs around Ontario, the Ministry of Education should:

  1. a) Create and maintain a listserv or other virtual network of all Ontario SEACs, to enable them to share their efforts with all other SEACs around Ontario, and
  1. b) Frequently gather input from SEACs around Ontario about the experiences of students with disabilities during the COVID-19 crisis.



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Provincial Disability Coalition Urges Ottawa City Council to Reject Impending Proposal to Allow Electric Scooters that Endanger People with Disabilities and Others


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
NEWS RELEASE – FOR IMMEDIATE RELEASE

June 4, 2020 Toronto: In a stunning affront to National AccessAbility Week, and while the COVID-19 crisis persists with no end in sight, Ottawa City Council’s Transportation Committee this week proposes to expose people with disabilities and others in Ottawa to proven dangers posed by allowing public use and rental of electric scooters (e-scooters). E-scooters will lead to personal injuries, including innocent pedestrians. They will create new barriers to accessibility for people with disabilities, especially when left lying in public spaces like sidewalks (as the Ottawa proposal would permit).

Ottawa City Council’s Transportation Committee disregarded concerns in the strong January 22, 2020 open letter to all municipalities co-signed by major disability organizations. Under the Ottawa proposal, uninsured, untrained, unlicensed, unhelmetted e-scooter riders will present dangers to the public that law enforcement won’t be able to prevent. Ottawa officials and politicians never even reached out to the AODA Alliance to learn about our concerns.

“It is a slap in the faces of people with disabilities that Ottawa would even contemplate creating these new barriers against residents and visitors with disabilities during National AccessAbility Week, and in the middle of the COVID-19 crisis,” said David Lepofsky, chair of the non-partisan AODA Alliance, a grassroots disability coalition that has led the campaign on this issue. “It would be better if Ottawa’s City Government spent more time on removing the disproportionate hardships that people with disabilities now suffer during the COVID-19 crisis, rather than working on creating the new accessibility barriers this fall which e-scooters would impose.”

Beyond the dangers that e-scooters already presented in communities that allowed them, leading Montreal to ban them this year after trying them last year, e-scooters now present an additional danger in the COVID-19 era. When rented by one member of the public after the next, without any process in place to ensure they are sanitized, e-scooters risk further community spread of COVID-19. Ottawa City Council should pay less heed to the corporate lobbyists that are relentlessly pressuring politicians and should give priority to the needs of their community’s most vulnerable members.

If Ottawa approves this proposal, any organization that is looking for a place to hold conferences and conventions after the COVID-19 shutdown comes to an end would be wise to rule out Ottawa in favour of safer communities that continue to ban e-scooters.

Contact: AODA Alliance Chair David Lepofsky, [email protected] Twitter: @aodaalliance

For more background, check out:

The January 22, 2020 open letter from disability community organizations to the Ontario Government and Ontario municipalities.
The February 3, 2020 unanimous resolution of the Toronto City Council’s Accessibility Advisory Committee that called for Toronto not to allow e-scooters.
The AODA Alliance’s September 12, 2019 brief to the Ford Government on its proposal to allow e-scooters in Ontario.
The AODA Alliance’s e-scooter web page that sets out the campaign since last summer to protect Ontarians with disabilities from the dangers that e-scooters pose.

CBC News June 3, 2020

Originally posted at https://www.cbc.ca/news/canada/ottawa/transportation-committee-approves-escooter-pilot-1.5596449?__vfz=medium%3Dsharebar Ottawa

E-scooters set to hit Ottawa streets, paths this year
City plans to allow 600 of the dockless standing scooters, but with limits on where they can go Kate Porter CBC News

If Ottawa’s e-scooter pilot gets full council approval, the devices will be allowed on pathways and on roads with speed limits up to 50 km/h, but not on sidewalks, on NCC paths or in Gatineau. (Kyle Bakx/CBC)

Ottawa could soon join other Canadian cities in allowing electric scooters on its multi-use paths, bike lanes and even some streets after its transportation committee approved a pilot project Wednesday.

The pilot, which would run until the end of October, still needs full council’s approval on June 10. The plan would permit up to 600 e-scooters operated by rental companies.

“This is a good time to introduce it. It’s a pilot, we’re starting with a smallish sample,” said Vivi Chi, director of transportation planning.

The battery-powered standing scooters have been illegal in Ottawa, but the Ontario government gave municipalities the right to set up their own pilot projects to test them out back on Jan. 1.

E-scooters coming to Ontario in January as pilot project launches

Under the Ottawa plan, e-scooters could travel on the city’s multi-use pathways, in bike lanes and on roads with speed limits of 50 km/h or lower. The scooters themselves could travel no faster than 20 km/h under the proposed bylaw.

E-scooters would be banned from city sidewalks, and because neither the National Capital Commission nor the City of Gatineau intends to allow them in 2020, the rental companies would need to employ “geofencing” technology that would slow the machines to a crawl and prevent them from being parked in areas that are off limits.

The same goes for Ottawa’s LRT. While the city sees e-scooters as a great way for passengers to travel that “final kilometre” between transit stations and their destination, city lawyers balked at allowing them on buses or trains.

Careless parking a concern
To make room for the e-scooters, Ottawa plans to expand its existing bike-share program, but will charge rental companies much higher fees. Instead of paying one dollar per bike per year, companies such as Bird Canada and Lime Canada will pay $60 per bike or scooter, which are dockless and can be returned anywhere.

A representative from Lime Canada pointed out Wednesday the proposed fees are among the highest in Canada. Sam Sadle also suggested the city allow between 1,200 and 3,600 scooters instead of the proposed 600.

Lime Canada would like to see Ottawa allow more than 600 e-scooters during its pilot phase this year. (Lime)
While e-scooters are seen as an environmentally friendly alternative to driving or ride-hailing apps such as Uber, there are safety concerns.

Ontario clears path for e-scooters as U.S. cities balance convenience, fun and injuries

Stories abound about collisions and injuries, and there are worries about improperly parked e-scooters blocking sidewalks.

In fact, Montreal has decided to ban e-scooters this year after fewer than 20 per cent of users obeyed parking rules during that city’s pilot program. That worries Ottawa’s volunteer accessibility advisory committee.

“This is not just an inconvenience to us,” said the advisory committee’s chair, Phillip Turcotte.

Chi said Ottawa will have more options than Montreal when it comes to parking. The scooters could be left in the area of the sidewalk closest to the street, where benches and trees are located, and the city could also paint some designated parking areas on streets, she said.

The city would also require rental companies to disinfect their scooters to public health standards during the pandemic, although it’s not clear how that will work between users.

Coun. Jeff Leiper has already bought into the scooters, literally. Rather than waiting to rent, he said he’s waiting for his own to be delivered.

“I want to have my own,” Leiper said.




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Provincial Disability Coalition Urges Ottawa City Council to Reject Impending Proposal to Allow Electric Scooters that Endanger People with Disabilities and Others


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Provincial Disability Coalition Urges Ottawa City Council to Reject Impending Proposal to Allow Electric Scooters that Endanger People with Disabilities and Others

June 4, 2020 Toronto: In a stunning affront to National AccessAbility Week, and while the COVID-19 crisis persists with no end in sight, Ottawa City Council’s Transportation Committee this week proposes to expose people with disabilities and others in Ottawa to proven dangers posed by allowing public use and rental of electric scooters (e-scooters). E-scooters will lead to personal injuries, including innocent pedestrians. They will create new barriers to accessibility for people with disabilities, especially when left lying in public spaces like sidewalks (as the Ottawa proposal would permit).

Ottawa City Council’s Transportation Committee disregarded concerns in the strong January 22, 2020 open letter to all municipalities co-signed by major disability organizations. Under the Ottawa proposal, uninsured, untrained, unlicensed, unhelmetted e-scooter riders will present dangers to the public that law enforcement won’t be able to prevent. Ottawa officials and politicians never even reached out to the AODA Alliance to learn about our concerns.

“It is a slap in the faces of people with disabilities that Ottawa would even contemplate creating these new barriers against residents and visitors with disabilities during National AccessAbility Week, and in the middle of the COVID-19 crisis,” said David Lepofsky, chair of the non-partisan AODA Alliance, a grassroots disability coalition that has led the campaign on this issue. “It would be better if Ottawa’s City Government spent more time on removing the disproportionate hardships that people with disabilities now suffer during the COVID-19 crisis, rather than working on creating the new accessibility barriers this fall which e-scooters would impose.”

Beyond the dangers that e-scooters already presented in communities that allowed them, leading Montreal to ban them this year after trying them last year, e-scooters now present an additional danger in the COVID-19 era. When rented by one member of the public after the next, without any process in place to ensure they are sanitized, e-scooters risk further community spread of COVID-19. Ottawa City Council should pay less heed to the corporate lobbyists that are relentlessly pressuring politicians and should give priority to the needs of their community’s most vulnerable members.

If Ottawa approves this proposal, any organization that is looking for a place to hold conferences and conventions after the COVID-19 shutdown comes to an end would be wise to rule out Ottawa in favour of safer communities that continue to ban e-scooters.

Contact: AODA Alliance Chair David Lepofsky, [email protected]

Twitter: @aodaalliance

For more background, check out:

The January 22, 2020 open letter from disability community organizations to the Ontario Government and Ontario municipalities.

The February 3, 2020 unanimous resolution of the Toronto City Council’s Accessibility Advisory Committee that called for Toronto not to allow e-scooters.

The AODA Alliance’s September 12, 2019 brief to the Ford Government on its proposal to allow e-scooters in Ontario.

The AODA Alliance’s e-scooter web page that sets out the campaign since last summer to protect Ontarians with disabilities from the dangers that e-scooters pose.

CBC News June 3, 2020

Originally posted at https://www.cbc.ca/news/canada/ottawa/transportation-committee-approves-escooter-pilot-1.5596449?__vfz=medium%3Dsharebar

Ottawa

E-scooters set to hit Ottawa streets, paths this year

City plans to allow 600 of the dockless standing scooters, but with limits on where they can go

Kate Porter CBC News

If Ottawa’s e-scooter pilot gets full council approval, the devices will be allowed on pathways and on roads with speed limits up to 50 km/h, but not on sidewalks, on NCC paths or in Gatineau. (Kyle Bakx/CBC)

Ottawa could soon join other Canadian cities in allowing electric scooters on its multi-use paths, bike lanes and even some streets after its transportation committee approved a pilot project Wednesday.

The pilot, which would run until the end of October, still needs full council’s approval on June 10. The plan would permit up to 600 e-scooters operated by rental companies.

“This is a good time to introduce it. It’s a pilot, we’re starting with a smallish sample,” said Vivi Chi, director of transportation planning.

The battery-powered standing scooters have been illegal in Ottawa, but the Ontario government gave municipalities the right to set up their own pilot projects to test them out back on Jan. 1.

E-scooters coming to Ontario in January as pilot project launches

Under the Ottawa plan, e-scooters could travel on the city’s multi-use pathways, in bike lanes and on roads with speed limits of 50 km/h or lower. The scooters themselves could travel no faster than 20 km/h under the proposed bylaw.

E-scooters would be banned from city sidewalks, and because neither the National Capital Commission nor the City of Gatineau intends to allow them in 2020, the rental companies would need to employ “geofencing” technology that would slow the machines to a crawl and prevent them from being parked in areas that are off limits.

The same goes for Ottawa’s LRT. While the city sees e-scooters as a great way for passengers to travel that “final kilometre” between transit stations and their destination, city lawyers balked at allowing them on buses or trains.

Careless parking a concern

To make room for the e-scooters, Ottawa plans to expand its existing bike-share program, but will charge rental companies much higher fees. Instead of paying one dollar per bike per year, companies such as Bird Canada and Lime Canada will pay $60 per bike or scooter, which are dockless and can be returned anywhere.

A representative from Lime Canada pointed out Wednesday the proposed fees are among the highest in Canada. Sam Sadle also suggested the city allow between 1,200 and 3,600 scooters instead of the proposed 600.

Lime Canada would like to see Ottawa allow more than 600 e-scooters during its pilot phase this year. (Lime)

While e-scooters are seen as an environmentally friendly alternative to driving or ride-hailing apps such as Uber, there are safety concerns.

Ontario clears path for e-scooters as U.S. cities balance convenience, fun and injuries

Stories abound about collisions and injuries, and there are worries about improperly parked e-scooters blocking sidewalks.

In fact, Montreal has decided to ban e-scooters this year after fewer than 20 per cent of users obeyed parking rules during that city’s pilot program. That worries Ottawa’s volunteer accessibility advisory committee.

“This is not just an inconvenience to us,” said the advisory committee’s chair, Phillip Turcotte.

Chi said Ottawa will have more options than Montreal when it comes to parking. The scooters could be left in the area of the sidewalk closest to the street, where benches and trees are located, and the city could also paint some designated parking areas on streets, she said.

The city would also require rental companies to disinfect their scooters to public health standards during the pandemic, although it’s not clear how that will work between users.

Coun. Jeff Leiper has already bought into the scooters, literally. Rather than waiting to rent, he said he’s waiting for his own to be delivered.

“I want to have my own,” Leiper said.



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Ford Government Acknowledges Ontario Students with Disabilities Face Added Hardships Trying to learn at Home During COVID-19 But Announces No Comprehensive Plan to Remove the Added Disability Barriers that Online Learning Creates for Them


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
NEWS RELEASE – FOR IMMEDIATE RELEASE

May 19, 2020, Toronto: Today, as the first media question at Premier Doug Fords Queens Park COVID-19 briefing, the Toronto Star told the premier that parents of special needs children have told the Star that they are particularly struggling at this time and that the Government needs to take a leading role in making sure that their children are being served during the school shutdown. Since schools are now closed until the end of the school year, the Star asked what the Government is doing to help these families and to ensure that school boards are meeting these students needs. The AODA Alliance commends the Star for raising this issue. We have been pressing the Ford Government on this issue for weeks.

Premier Ford referred the question to Education Minister Stephen Lecce. The Minister commendably stated on behalf of the Government that he absolutely agrees with the premise, … that these families are going to need more support now more than ever to support their children enable them to learn while theyre at home. He said on behalf of the Government that we have great concern about these children He pledged that the Government wants to make sure that all kids with exceptionalities are able to get aheadget the support they need.

It is good, but certainly not news, that the Government has told all school boards to deploy all their special education resources during the shutdown, and that the Government earlier consulted with two provincial advisory committees on this issue. It is not yet possible for us to comment on the Governments amorphous announcement of some sort of two-week summer program aimed at helping orient some students with disabilities, such as those with autism, to a return to school. Todays announcement gave no specifics (such as where this will be offered, or which students or how many students will be eligible for this program.)

However, todays Ministers statement falls far short of the urgent action one-third of a million Ontario students with disabilities immediately need. It is good that the Government now publicly acknowledges that students with disabilities and their families suffer additional burdens with the move to online learning as schools are shut down and that the Government should show leadership. However, The Government has not announced any specific comprehensive plan to remove the added barriers that students with disabilities are facing due to the move to online learning.

It is wrong for the Ford Government to continue to leave it to over 70 school boards to each have to wastefully re-invent the wheel as they struggle with the same recurring disability barriers. It is wrong for the Ford Government to leave over-burdened parents of students with disabilities to have to fight the same battles against these disability barriers, one school board at a time, while isolated at home during the COVID-19crisis.

For example, the Ford Government is not even ensuring that the online platforms that each school board and each school uses to hold virtual classes are fully accessible to students, teachers and parents with disabilities, or even to track which of these platforms are being used. The Government has not announced any plan to fix the significant accessibility barriers in the online learning resources that the Government itself provides to teachers, parents and school boards on its Learn at Home website, such as the TVO online resources that have a series of accessibility problems. It was the AODA Alliance that earlier exposed these accessibility problems.

To help frontline teachers and parents of students with disabilities, the AODA Alliance and Ontario Autism Coalition held a helpful May 4 online virtual town hall to share teaching strategies from experts in teaching students with disabilities, now viewed over 1,300 times. Yet despite our repeatedly asking, weve seen no indication that The Government has taken the simple step of sharing this resource with school boards and encouraging them to watch it, much less has the Government organized similar events to share the creative solutions that frontline teachers and parents are inventing all around Ontario.

The AODA alliance remains ready to assist the government on any and all of these issues.

Contact: AODA Alliance Chair David Lepofsky, [email protected] Twitter: @aodaalliance

Background Resources
The April 30, 2020 letter from the AODA Alliance to Ontario Education Minister Stephen Lecce, which sets out a list of concrete and constructive requests for action that the AODA Alliance presented to Ontarios Ministry of Education.
The May 4, 2020 virtual town hall on teaching students with disabilities during the COVID-19 crisis, organized by the AODA Alliance and the Ontario Autism Coalition.

The AODA Alliances education web page, that documents its efforts over the past decade to advocate for Ontario’s education system to become fully accessible to students with disabilities
The AODA Alliances COVID-19 web page, setting out our efforts to advocate for governments to meet the urgent needs of people with disabilities during the COVID-19 crisis.
The earlier widely-watched April 7, 2020 virtual public forum by the AODA Alliance and Ontario Autism Coalition on the overall impact of the COVID-19 crisis on 2.6 million Ontarians with disabilities.




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Ford Government Acknowledges Ontario Students with Disabilities Face Added Hardships Trying to learn at Home During COVID-19 But Announces No Comprehensive Plan to Remove the Added Disability Barriers that Online Learning Creates for Them


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Ford Government Acknowledges Ontario Students with Disabilities Face Added Hardships Trying to learn at Home During COVID-19 But Announces No Comprehensive Plan to Remove the Added Disability Barriers that Online Learning Creates for Them

May 19, 2020, Toronto: Today, as the first media question at Premier Doug Ford’s Queen’s Park COVID-19 briefing, the Toronto Star told the premier that parents of special needs children have told the Star that they are particularly struggling at this time and that the Government needs to take a leading role in making sure that their children are being served during the school shutdown. Since schools are now closed until the end of the school year, the Star asked what the Government is doing to help these families and to ensure that school boards are meeting these students’ needs. The AODA Alliance commends the Star for raising this issue. We have been pressing the Ford Government on this issue for weeks.

Premier Ford referred the question to Education Minister Stephen Lecce. The Minister commendably stated on behalf of the Government that he “absolutely agrees with the premise, … that these families are going to need more support now more than ever to support their children enable them to learn while they’re at home.” He said on behalf of the Government that “we have great concern about these children…” He pledged that the Government wants to “make sure that all kids with exceptionalities are able to get ahead…get the support they need.”

It is good, but certainly not news, that the Government has told all school boards to deploy all their special education resources during the shutdown, and that the Government earlier consulted with two provincial advisory committees on this issue. It is not yet possible for us to comment on the Government’s amorphous announcement of some sort of two-week summer program aimed at helping orient some students with disabilities, such as those with autism, to a return to school. Today’s announcement gave no specifics (such as where this will be offered, or which students or how many students will be eligible for this program.)

However, today’s Minister’s statement falls far short of the urgent action one-third of a million Ontario students with disabilities immediately need. It is good that the Government now publicly acknowledges that students with disabilities and their families suffer additional burdens with the move to online learning as schools are shut down and that the Government should show leadership. However, The Government has not announced any specific comprehensive plan to remove the added barriers that students with disabilities are facing due to the move to online learning.

It is wrong for the Ford Government to continue to leave it to over 70 school boards to each have to wastefully re-invent the wheel as they struggle with the same recurring disability barriers. It is wrong for the Ford Government to leave over-burdened parents of students with disabilities to have to fight the same battles against these disability barriers, one school board at a time, while isolated at home during the COVID-19crisis.

For example, the Ford Government is not even ensuring that the online platforms that each school board and each school uses to hold virtual classes are fully accessible to students, teachers and parents with disabilities, or even to track which of these platforms are being used. The Government has not announced any plan to fix the significant accessibility barriers in the online learning resources that the Government itself provides to teachers, parents and school boards on its “Learn at Home” website, such as the TVO online resources that have a series of accessibility problems. It was the AODA Alliance that earlier exposed these accessibility problems.

To help frontline teachers and parents of students with disabilities, the AODA Alliance and Ontario Autism Coalition held a helpful May 4 online virtual town hall to share teaching strategies from experts in teaching students with disabilities, now viewed over 1,300 times. Yet despite our repeatedly asking, we’ve seen no indication that The Government has taken the simple step of sharing this resource with school boards and encouraging them to watch it, much less has the Government organized similar events to share the creative solutions that frontline teachers and parents are inventing all around Ontario.

The AODA alliance remains ready to assist the government on any and all of these issues.

Contact: AODA Alliance Chair David Lepofsky, [email protected]

Twitter: @aodaalliance

Background Resources

The April 30, 2020 letter from the AODA Alliance to Ontario Education Minister Stephen Lecce, which sets out a list of concrete and constructive requests for action that the AODA Alliance presented to Ontario’s Ministry of Education.

The May 4, 2020 virtual town hall on teaching students with disabilities during the COVID-19 crisis, organized by the AODA Alliance and the Ontario Autism Coalition.

The AODA Alliance’s education web page, that documents its efforts over the past decade to advocate for Ontario’s education system to become fully accessible to students with disabilities

The AODA Alliance’s COVID-19 web page, setting out our efforts to advocate for governments to meet the urgent needs of people with disabilities during the COVID-19 crisis.

The earlier widely-watched April 7, 2020 virtual public forum by the AODA Alliance and Ontario Autism Coalition on the overall impact of the COVID-19 crisis on 2.6 million Ontarians with disabilities.



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The ARCH Disability Law Centre Sends the Ford Government An Excellent Analysis of the Government’s Seriously Flawed March 28, 2020 Medical Triage Protocol


Hasnt The Government Already Held Its Promised and Overdue Public Consultation on Replacing That Problem-Ridden Protocol?

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities
Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

May 14, 2020

SUMMARY

Yesterday, the ARCH Disability Law Centre sent the Ford Government a letter that provides an excellent analysis of the serious disability rights violations in the Governments widely-condemned March 28, 2020 medical triage protocol. We set it out below and applaud it. It can also be downloaded with all its footnotes from ARCHs website. ARCH has also posted online a plain language guide to its May 13, 2020 letter to the Government on this topic.

With all the many disability concerns during the COVID-19 crisis that we have been rushing to address, what is this one all about, you ask? When the COVID-19 crisis was first exploding, the Ford Government was understandably worried that there was a risk that more people might get COVID-19 than our hospitals could handle. From the experience in some other countries, there was and is a risk that critical care medical services, like ventilators, might have to be rationed, if there were not enough ventilators for all the patients that need them.

As a result, the March 28, 2020 medical triage protocol was written and circulated within the medical and health care community. It was not made public. The disability community was not consulted in its preparation. It is our understanding that those preparing it only consulted physicians and bio-ethics experts. We have seen no indication that either the doctors or bioethicists they consulted had any knowledge or expertise in disability rights or basic human rights.

It is fortunate that within days, a copy of that secret protocol was leaked to some in the disability community. As a result, over 200 community organizations, including many disability organizations (such as the AODA Alliance) rapidly organized to sign the April 8, 2020 open letter to the Ontario Government, spearheaded by ARCH. That open letter identified grave concerns that this secret medical triage protocol would discriminate against some patients because of their disability.

The day before the public release of that open letter, this issue was first publicly revealed by Robert Lattanzio, ARCHs executive director, when he spoke at the widely-viewed April 7, 2020 virtual town hall on COVID-19 and people with disabilities, that was organized by the AODA Alliance and the Ontario Autism Coalition.

One week later, fully one month ago today, one of the Ford Governments lead authors of the secret March 28, 2020 medical triage protocol, Dr. James Downar, said it was a top priority for the Government to consult the public on this medical protocol. He spoke on the April 14, 2020 edition of TVOs The Agenda with Steve Paikin.

The Government later reiterated a commitment to public consultation on this topic in an April 21, 2020 announcement. That Government announcement walked back the March 28, 2020 medical triage protocol, but without explicitly rescinding it and directing that it not be followed or used. The Government claimed the protocol was only a draft. That claim has no credibility, since the document was not marked draft when it was circulated to the medical community and health care system.

Despite those Government commitments, no public consultation has been held. We are waiting for it to start. It is commendable that since then, the Ontario Human Rights Commission took it on itself to reach out for input from some experts from within the disability community last week (including the AODA Alliance). It did so to assist the Commission in preparing for its input to that public consultation, whenever the Government might get it going.

We emphasize the following, building on the ARCH letters excellent points:

1. ARCHs May 13, 2020 letter to the Ford Government reaches this deeply-troubling conclusion about the Governments secret March 28, 2020 medical triage protocol:

In its current version, the Triage Protocol is in conflict with the rights of persons with disabilities pursuant to the Ontario Human Rights Code, the Charter of Rights and Freedoms (the Charter), and the United Nations Convention on the Rights of Persons with Disabilities.

It is inexcusable that the Ontario Government could so seriously run afoul of such basic rights for vulnerable people with disabilities in the midst of a crisis. For it to do so when the Premier of Ontario has pledged to protect the vulnerable during this crisis is even more the case. This amply deserves front page headline coverage.

2. How did this happen? We are eager to know if the Government got legal advice before that protocol was allowed to go in circulation within the medical community and the health care system. Had it not been leaked to the disability community, triggering the shared advocacy efforts from the grassroots, serious human rights violations could have gone undetected and unchecked.

The Government should commit that before it is adopted, any new medical triage protocol will be thoroughly vetted and approved by lawyers with expertise in human and constitutional rights, such as the Constitutional Law Branch at Ontarios Ministry of the Attorney General. If they were not consulted in advance of the March 28, 2020 medical triage protocol being placed in circulation in the medical community, there has been a serious and deeply-troubling break-down in longstanding Government legal safeguards. This is all the more troubling when it relates to discrimination because of disability in relation to life-saving medical care.

The Government should also reiterate the commitment of Health Minister Christine Elliott that no medical triage protocol will be adopted without Cabinet approval.

3. The Government must publicly, immediately, clearly and unequivocally rescind and retract the March 28, 2020 medical triage protocol. AODA Alliance Chair David Lepofsky and CILT executive director Wendy Porch addressed this during their May 8, 2020 interview on TVOs The Agenda with Steve Paikin. The longer the Government fails to clearly rescind this the March 28, 2020 medical triage protocol and direct that it must not be followed, the more confusion it creates for doctors, nurses and others working in the health care system. Moreover, the longer the Government fails to clearly rescind this document and announce that it must not be followed, the longer some people with disabilities will understandably fear going to a hospital, if they are sick and need hospital care.

4. By now, the Government or those it has engaged to help with the medical triage protocol no doubt have developed some sort of a revised draft medical triage protocol. As we have urged in the past, the Government should immediately make that draft public, in whatever state it is now, for input by the public including the grassroots disability community.

5. The Government should now commit that the revised medical triage protocol will include all the key ingredients that the AODA Alliance outlined in its April 14, 2020 Discussion Paper on Ensuring that Medical Triage or Rationing of Health Care Services During the COVID-19 Crisis Does Not Discriminate Against Patients with Disabilities. Since we made it public one month ago, and widely publicized it on social media, we have received no feedback claiming that our proposals are incorrect or inappropriate.

6. The long-overdue public consultation in this area must be entirely open, public and transparent. We have had far too much secrecy from the Government and those it engaged to develop this protocol. More secrecy will engender more public suspicion and distrust. Openness is a vital key to much-needed public confidence.

7. The Government must act quickly to get this overdue public consultation going and to finalize a new medical triage protocol. It is good that Ontario has not yet reached the point of needing to resort to that protocol, because our hospitals have thankfully not been overrun with COVID-19 cases. However, we are certainly not out of the woods. With the Ontario Government moving to re-open the economy and gradually loosen restrictions on the public, the risk of a second or third wave of COVID-19 is a realistic possibility.

We fear that the Governments political strategy in this area had been to wait for the curve to flatten, as it did, and then to offer a protracted public consultation in the hopes that this medical triage protocol issue and the Governments initial serious mishandling of it would fade away and be forgotten. It has not faded away. It required and still requires prompt action. The continued governmental foot-dragging must end now.

For more background on this, we invite you to watch David Lepofskys and Wendy Porchs May 8, 2020 interview on The Agenda with Steve Paikin and encourage others to watch it. In under a week, it has already gotten over 1,600 views on Youtube, in addition to the people who watched it on old-fashion TV or on podcasts. The link to this interview that we invite you to circulate is https://youtu.be/KmMlTrNbud8

Check out the AODA Alliances COVID-19 web page for all the news on our efforts to ensure that the urgent needs of people with disabilities are addressed during the COVID-19crisis.

There have been 469 days since the Ford Government got the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes worse the problems facing Ontarians with disabilities during the COVID-19 crisis.

There have been 50 days since we wrote Ontario Premier Doug Ford on March 25, 2020 to urge specific action to address the urgent needs of Ontarians with disabilities during the COVID-19 crisis. He has not answered. The Premiers office has not contacted us. The ordeal facing Ontarians with disabilities during the COVID-19 crisis is worsened by that delay.

Send us your feedback! Write us at [email protected] Please stay safe!

MORE DETAILS

The May 13, 2020 Letter from the ARCH Disability Law Centre to the Ford Government on the Medical Triage Protocol

ARCH Disability Law Centre
Sent via email to [email protected] and [email protected]

May 13, 2020

Hon. Christine Elliott, Deputy Premier and Minister of Health College Park, 5th Floor
777 Bay Street
Toronto, ON M7A 2J3

Mr. Matthew Anderson
Chief Executive Officer
Ontario Health

Dear Hon. Minister Elliott and Mr. Anderson:

Re: Ontarios Clinical Triage Protocol for Major Surge in COVID Pandemic

We write further to the Open Letter dated April 8, 2020 and which was delivered to Premier Doug Ford, Minister of Health, Christine Elliott, and Minister of Accessibility, Raymond Cho. As you will recall, the Open Letter raised grave concerns regarding the Ontario Clinical Triage Protocol for Major Surge in COVID Pandemic1 (the Triage Protocol), authored by Ontario Health, dated March 28, 2020 but never publicly released.

On April 21, 2020, ARCH Disability Law Centre, amongst other recipients, received a response from the Ontario Government. The Governments letter, undated, stated that the Ministry of Health directed Ontario Health to consult with the Ontario Human Rights Commission (OHRC), as well as key human rights and community experts. In response, ARCH delivered a letter to Ontario Health on April 22, 2020 requesting additional information regarding any consultations, and requesting that a clear statement be made rescinding the March 28, 2020 draft Triage Protocol. ARCH continues to await a response from Ontario Health.

While ARCH welcomes the Governments direction to Ontario Health to consult, little has been made public about the consultations, including the format of consultations, the timeline surrounding consultations, the groups aside from the OHRC that will be consulted, and when a finalized version of the Triage Protocol can be expected.

A further concern is that, despite stating that the current version of the Triage Protocol is a draft, the Government has taken no action to clearly withdraw the draft to ensure that it is not implemented should the medical system become overburdened whilst Ontario Health conducts consultations.

Notwithstanding the Governments assertion that the Triage Protocol is undergoing consultation, ARCH is not aware of any such consultation nor has ARCH received any revised draft. ARCH strongly encourages input from communities of persons with disabilities through a formal and inclusive consultation process, and that any revised version of the Triage Protocol be made widely available to allow for a more fulsome and effective consultation. In the meantime, because time is of the utmost essence in the present circumstances, ARCH is taking this opportunity to provide its own submissions on the issues that must be addressed and resolved in any (newly) drafted Triage Protocol.

To note, ARCH recognizes that health care workers need a pragmatic and practical approach to assist them in making extremely difficult decisions in allocating critical care resources during this pandemic. However, as a collection of United Nations experts have made clear, The scarcity of resources should never be a justification to discriminate against certain groups of patients2. It is imperative that any critical care protocol developed by the Ontario Government, or any of its agencies, be founded upon human rights laws and principles, including the recognition that every person has an equal right to life-saving intervention and the right to be free of discriminatory denial of health care, including persons with disabilities.3

In its current version, the Triage Protocol is in conflict with the rights of persons with disabilities pursuant to the Ontario Human Rights Code,4 the Charter of Rights and Freedoms (the Charter),5 and the United Nations Convention on the Rights of Persons with Disabilities.6 For the purposes of this brief, the discussion that follows focuses primarily on the Charter violations. The analysis then turns to the administrative and implementation considerations the Government must put in place to ensure that any critical care protocol does not infringe upon the rights of persons with disabilities. To conclude this brief, ARCH makes several recommendations that we urge the Ministry of Health, Ontario Health and any other organization that may be involved in drafting, to consider when re-drafting the Triage Protocol.

The Triage Protocol Violates the Charter

Any critical care protocol or health care scheme the Government chooses to put into place must comply with the Charter.7 The Triage Protocol, and the tools it relies on to determine a patients prioritization in receiving critical care, must be considered through this lens.

In particular, the Triage Protocol states that allocation of critical care resources is dependent, in part, on the basis of the 9-point Clinical Frailty Scale (CFS).8 The points range from Very Fit (score of 1) to Terminally Ill (score of 9), by taking into account disability-related factors such as activity levels9 and the requirement for assistance in completing activities, as well as the use of mobility devices by some persons with disabilities, the ability to walk with assistance, and/or the use of a support person for personal care or finances. As will be demonstrated below, the inclusion of the CFS in the Triage Protocol violates the rights of persons with disabilities, pursuant to sections 15, 7, and 12 of the Charter.

Further, the Triage Protocol specifically identifies at least four different categories of disabilities, including cognitive disabilities and advanced or moderate neurodegenerative diseases including Parkinson Disease, Amyotrophic Lateral Sclerosis, and Metastatic Malignant Disease. Persons with these disabilities may in some stages of their disability be deprioritized from receiving critical care.

These tools, on their face and/or in application, do not comply with the Charter.

Section 15 of the Charter: Right to the Equal Protection and Equal Benefit of the Law without Discrimination

The Triage Protocol violates the right of persons with disabilities to be equal before and under the law, and to have equal protection and equal benefit of the law without discrimination, contrary to section 15 of the Charter. The animating norm of section 15 is substantive equality,10 which responds to the reality that persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages.11

In addition to identifying specific disabilities for the deprioritization for critical care, the Triage Protocol draws a clear distinction for critical care on the basis of a CFS score. Persons who score higher on the CFS will be deprioritized from receiving critical care. Persons with disabilities are more likely to score higher on the CFS score, because of their general disability-related care needs and reduced activity levels. Meanwhile, a person without a disability is less likely to receive a high CFS score it is only persons with disabilities who will fall within this scope. In this way, the CFS draws a clear distinction between persons with disabilities and abled-bodied persons.

It is widely recognized that healthcare systems tend to be structurally and systemically ableist.12 Historically, and due to this, persons with disabilities have been denied equal access to health care13 on the basis of stereotypes and the erroneous notion that disability is a flaw inherent in the individual.14 The crux of the issue is in the often subconscious devaluing of the lives of persons with disabilities by medical practitioners.15 This subconscious devaluing stems from the tendency of ableist quality of life presumptions to seep into medical practitioners decision-making process. These inequities persist today, and the pandemic has significantly exacerbated these disparities and erected further barriers; this includes the Triage Protocol which creates a decision-making framework built upon an ableist approach to disability. This is despite the fact that persons with disabilities may be particularly vulnerable16 to COVID-19.

Interestingly, the Triage Protocol purports to be guided by the principal of fairness.17 However, without contemplating substantive equality, the principle of fairness in the Triage Protocol is illusory at best. In this circumstance, fairness is understood as the treatment of all patients on an equal and fair basis by using clinically-relevant criteria to allocate resources. The Triage Protocol, however, fails to understand the difference between formal and substantive equality, and fails to appreciate the lived experience of persons with disabilities in their interactions with the medical system.

The inclusion of the guiding principles in the Triage Protocol leads to the very errors warned against by the Special Rapporteur on the Rights of Persons with Disabilities. As the Special Rapporteur stated, the health care sector has a tendency to reduce ethical debates to an application of rules to situations in an oversimplified and legalistic manner, without a critical reflection of the role of human rights in bioethics and the power dynamics under which decisions are made.18 The inclusion of the guiding principles in the Triage Protocol, including the principle of fairness, is formalistic and fails to consider all the ways in which fairness is eroded by the treatment of persons with disabilities within the healthcare system.

Many persons with disabilities will be deprioritized and at risk of being denied access to critical care simply because the CFS deems them severely frail on the basis of their use of a mobility device, having a support person assisting them with activities of daily living, or having one of the disabilities identified by the Triage Protocol. These characteristics are not, as a rule, relevant to the persons health status nor their overall mortality in the face of COVID-19. These same persons may very well be viable candidates for critical care despite the fact that they need assistance for daily living and personal care and/or use a wheelchair.

Persons with disabilities are not one homogenous group and the grouping of persons with disabilities into pre-determined categories of disability pre-empts and denies individual assessment to determine their need for critical care. For example, the Triage Protocol groups persons with cognitive disabilities19 into one group, ignoring the fact that persons with cognitive disabilities can include persons labelled with intellectual disabilities, persons with developmental disabilities, persons with dementia, persons with acquired brain injuries, persons with fetal alcohol syndrome, etc. This kind of decision-making lends itself to the reliance upon labels, which can be laden with stereotypes and value judgments as to the quality of the patients life. This has the detrimental impact of denying a patient of individual assessment, which is necessary to ascertain their individual needs.20

In this respect, the Triage Protocol clearly has the effect of reinforcing, perpetuating, or exacerbating the disadvantage experienced by persons with disabilities. By deprioritizing persons from receiving care, the Triage Protocol, relying on the CFS, disconcertingly mimics the historical treatment of persons with disabilities in the medical system of isolation and exclusion, and being subject to ableist norms and value judgments about their quality of life. These criteria rely on damaging assumptions about persons who require assistance with aspects of daily living as having a lesser quality of life. This devalues the lives of persons with disabilities.
It is imperative that decisions about who receives critical care should be made using objective, individualized clinical criteria directly associated with mortality risks of COVID-19. Decisions must not be based on stereotypes or assumptions about a persons disability, the value of quality of their life due to their disability, or longer term mortality rates that are not directly related to COVID-19.

Section 7 of the Charter: Right to Life and Security of the Person

The inclusion of the CFS in the Triage Protocol and the identification of specific categories of disabilities violates the rights of persons with disabilities to life and security of the person in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter.

The effect of the Triage Protocol violates the rights of persons with disabilities to life. Persons who use mobility devices,21 those who use support persons for daily living tasks and personal care,22 those who walk with assistance,23 or those who have a disability that is expressly identified, are more likely to be deprioritized from receiving critical care and are more likely to experience negative health outcomes, up to and including death.

Persons with disabilities who use mobility devices or walk with assistance include those who were born with disabilities or acquired them at a young age, such as persons with cerebral palsy, congenital amputations or who have survived childhood cancers. Persons who need assistance for daily living tasks can include persons labelled with intellectual disabilities who are able to live in the community with assistance from support workers. The use of the CFS inappropriately labels persons with these characteristics as frail which then deems them less likely to receive critical care when they most need it.

In identifying specific disabilities, the Triage Protocol invites the application of labels and value judgments to the quality of life of persons with disabilities. Instead of objective and individualized assessment, these labels and value judgements then become the starting point for assessing a patients likely morbidity.

The inclusion of the CFS and the identification of specific disabilities also violates persons with disabilities right to security of the person, contrary to section 7. In particular, knowing that they may be deprioritized or denied access to critical care has caused persons with disabilities psychological distress, and creates a disincentive to seek medical care, putting their security and their community at risk. Persons with disabilities are already experiencing the disproportionate effects of the COVID-19 virus,24 and are more susceptible to the virus depending on the nature of their disability. The Triage Protocol means they must now endure the very real scenario that they may be denied critical care resources, at least in part, because they use a mobility device, require assistance with daily living tasks or require the assistance of a mobility device to walk.

This use of the CFS is overbroad, arbitrary and not in accordance with the principles of fundamental justice. This is especially true considering the purposes for which the CFS was designed and developed: for physicians to use in treating elderly patients.25 It is accepted that the CFS has not been widely validated in populations younger than 65 years of age or for persons with disabilities.26 Moreover, the CFS does not distinguish between frailty and disability, making it wholly inappropriate to apply to a subset of the population that has long-term disabilities, some of which may be progressive in nature.

In fact, several jurisdictions have already recognized the error in including the CFS in their Triage Protocols and have remedied their error by removing the CFS from any COVID-19 protocols and committed to an individualized assessment of each patient. We direct the Governments attention, for example, to the United Kingdom,27 where the use of the CFS has been challenged and the government has conceded the problematic nature of the CFS for the purposes of allocating critical care resources.28 The Government and Ontario Health are encouraged to heed these lessons learned in other jurisdictions.

Section 12 of the Charter: Right Not to be Subjected to any Cruel and Unusual Treatment

The Triage Protocol violates persons with disabilities right to be free from cruel and unusual treatment, contrary to section 12 of the Charter. The CFS and the identification of specific disabilities intentionally targets an already vulnerable, disadvantaged and marginalized group in society that is more than likely to have been, or will be, impacted by the very virus to which this Protocol responds. This is demonstrative of treatment that is cruel and unusual.

The Triage Protocol draws a distinction between persons with disabilities and persons without disabilities for the purposes of allocating critical care resources in a manner that outrages the standards of decency. Again, we point to the disability-related need for assistance to walk as a marker of frailty according to the CFS. This is problematic and neglects the human-rights approach and understanding of disability. The effect of the inclusion of the CFS and identifying specific disabilities is to create a two-tiered access to critical care: one for persons with disabilities and one for persons without disabilities.

It is well established that persons with disabilities are entitled to access health care on an equal basis; this violation of the right to equal access, and by extension to ensure that the human dignity of persons with disabilities is not degraded, cannot be justified in light of the fact that society is currently battling a pandemic.

There is little doubt that the treatment of persons with disabilities, in accordance with this Triage Protocol, would be unacceptable to a large segment of the population, violates public standards of decency and propriety and, overall, shocks the general conscience. In short, the approach adopted by the Triage Protocol deprioritizes persons with disabilities and prioritizes persons without. In effect, this leads to cruel and unusual treatment of persons with disabilities because they have a disability.

The current version of the Triage Protocol is drafted in a manner as to call for a clinical assessment of the chance of survival that is comparative rather than individualized. The removal of critical care from a person with a disability who has a reasonable chance of survival in order to provide it to another patient who, by virtue of not having a disability, is deemed to have a better chance of survival29 also amounts to cruel and unusual treatment. It is clear that the Triage Protocol does not explicitly state that persons with disabilities will be deprioritized or removed from receiving critical care in order for a person without a disability to receive it. However, the cumulative effect of including the CFS, the identification of specific disabilities in the exclusion chart, and the subconscious value-judgments inherent in the health care system that permeate the decisions made pursuant to the Triage Protocol, lead to a eugenic-adjacent approach to the pandemic. This is a clear violation of section 12 of the Charter.

Administrative and Implementation Precautions

The Government must take a number of active measures to ensure that persons with disabilities are not deprioritized in receiving critical care and to ensure that ableism is not perpetuated in emergency and critical care response measures. Without these active steps, the issues that stem from the current Triage Protocol will continue to have devastating consequential effects on persons with disabilities.

It is imperative that the Government is accountable and transparent throughout the development and implementation of the Triage Protocol. The Triage Protocol must include oversight and accountability mechanisms that are effective and timely to ensure that systemic safeguards are in place and operational throughout any period of implementation.

The current Triage Protocol was drafted without any known and public consultation undertaken by the Ministry of Health or by Ontario Health with communities and/or organizations of persons with disabilities who will be disproportionately impacted by the Triage Protocol.

It is beyond a shadow of a doubt that persons with disabilities are disproportionately impacted by COVID-19 and it is equally certain that the current Triage Protocol disproportionately impacts persons from various disability communities. As such, any direction by the Ontario Ministry of Health to Ontario Health to consult with key groups must include consultations with persons with disabilities specifically identified in the Triage Protocol. Any consultation conducted without affected persons with disabilities is ineffective and is more than likely to result in another Triage Protocol that infringes upon the rights of persons with disabilities, rights that are protected provincially, federally and internationally.

The Canadian Human Rights Tribunal has recognized the ways in which greater consultation with persons with disabilities may prevent similar discriminatory practices from occurring again in the future.30 The Ministry of Health and Ontario Health are encouraged to heed this finding and embark on as broad as a consultation as possible by inviting persons with disabilities identified in the Triage Protocol to a seat at the consultation table.

Furthermore, under the CRPD, engagement with persons with disabilities is required in the development of law and policy, unless there is no disproportionate effect on them.31 The preamble explains that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them.32

In addition, article 4(3) elaborates that in the development of legislation and polices that affect persons with disabilities, State parties shall closely consult with and actively involve them through representative organizations.33 This participation is also informed by the concept of intersectionality, to capture the lived experience of persons with disabilities who may experience particular impacts because of a combination of identities.

Recommendations

In light of the concerns raised above, ARCH makes the following recommendations to the Ministry of Health, Ontario Health and any affiliated authors of the Triage Protocol:

(a) Remove any reliance on the Clinical Frailty Scale to make decisions about critical care allocation from the Triage Protocol as it is in violation of the Charter;
(b) Remove any reference to specific disabilities as exclusion criteria from the Triage Protocol for the purposes of critical care allocation as it is in violation of the Charter;
(c) In order to address the inherent inequities and ableism in the health care system, and the discriminatory effects of the Triage Protocol, it is imperative that the Triage Protocol include a clear statement of non-discrimination on the basis of disability;
(d) In order to address the inherent inequities and ableism in the health care system, and the discriminatory effects of the Triage Protocol, it is imperative that the Triage Protocol include a clear statement of the duty to accommodate persons with disabilities in the delivery of critical healthcare services;
(e) Develop oversight and accountability mechanisms through consultation with persons with disabilities. These may include any and all of the following or additional measures as appropriately adapted: systemic measures such as a timely and ongoing process to review and re-evaluate the implementation of the Triage Protocol to address any disproportionate impacts on persons with disabilities, the creation of an oversight committee that includes persons with disabilities, the collection of disability-specific and socio-demographic data and the public release of that data; and individual accountability measures such as a timely and effective process for immediate review of decisions with due process protections (such as reasons for decisions), the provision of advocacy support, and the provision of rights advice to individuals and their families of all available recourses; and
(f) Any consultation undertaken by the Government, by Ontario Health, or any other Government ministry or agency for the purposes of drafting a critical care protocol in response to a health crisis must ensure that persons, or representative groups of persons, who will be disproportionately impacted by said protocol are consulted.

Sincerely,
ARCH DISABILITY LAW CENTRE

Robert Lattanzio
Executive Director

Cc: Raymond Cho, Minister of Accessibility
Todd Smith, Minister of Children, Community and Social Services Renu Mandhane, Ontario Human Rights Commissioner

1 Ontario Clinical Triage Protocol for Major Surge in COVID Pandemic, March 28, 2020 [Triage Protocol].
2 No exceptions with COVID-19: Everyone has the right to life-saving interventions UN experts say, Press Release, March 26, 2020. Available: https://www.ohchr.org/EN/NewsEvents/Pages/NewsSearch.aspx?MID=SR_Disabilities
3 Convention on the Rights of Persons with Disabilities, 30 March 2007, 2515 UNTS 3 at 70, Can TS 2010 No 8 (entered into force 3 May 2008, ratified by Canada 11 March 2010), at Article 25 [CRPD]. 4 RSO 1990, c H.19 [Code]
5 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 6 CRPD, supra note 3.
7 Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 para 506; see also generally, Eldridge v British Columbia (Attorney General), 1997 CanLII 327 (SCC) [Eldridge]. 8 Triage Protocol, supra note 1 at 6.
9 Score 4 on the Clinical Frailty Scale, for example, deems someone who feels tired during the day as being vulnerable; persons with disabilities such as lupus and muscular dystrophy fall within this CFS category since one of the manifestations of their disability is fatigue.

10 See Withler v Canada, 2011 SCC 12 and Andrews v Law Society of British Columbia, [1989] 1 SCR 143. 11 Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 at para 17.
12 Katie Savin & Laura Guidry-Grimes, Confronting Disability Discrimination During the Pandemic, April 2, 2020 available: https://www.thehastingscenter.org/confronting-disability-discrimination-during-the-pandemic/. 13 Eldridge, supra note 7.
14 Eldridge, ibid at para 56.
15 United Nations General Assembly, Report of the Special Rapporteur on the rights of persons with
Disabilities, A/HRC/43/41, 17 December 2019, available: https://undocs.org/en/A/HRC/43/41 [?Report of the Special Rapporteur?]. 16 Savin & Guidry-Grimes, supra note 12.
17 Triage Protocol, supra note 1 at 3.
18 Report of the Special Rapporteur, supra note 15, at 6.
19 The Triage Protocol uses cognitive impairments, which is not human rights language. For the purposes of this document, however, and to ensure clarity, the term cognitive disabilities is used throughout.
20 See, for example: British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) and British Columbia (Public Service Employee Relations Commission) v BCGSEU, 1999 CanLII 652 (SCC).

21 Scoring a 7 on the CFS, see Triage Protocol, supra note 1, at 10. 22 Scoring a 5, 6, or 7 on the CFS, see Triage Protocol, ibid. 23 Scoring a 6 on the CFS, see Triage Protocol, ibid.
24 CBC News, COVID-19 death toll at Ontario long-term care homes nears 1,000, hospitalizations on the rise, May 3, 2020 available: https://www.cbc.ca/news/canada/toronto/ontario-sunday-covid-19-police-memorial-death-total-1.5553859
25 Rockwood K, Song X, MacKnight C, Bergman H, Hogan DB, McDowell I, Mitnitski A. A global clinical measure of fitness and frailty in elderly people. CMAJ. 2005 Aug 30;173(5):489-95; also see: https://www.dal.ca/sites/gmr/our-tools/clinical-frailty-scale.html
26 National Health Service, Specialised Clinical Frailty Network, Frailty and Covid-19, available: https://www.scfn.org.uk/clinical-frailty-scale
27 Hodge, Jones & Allen, News Release, NICE Amends COVID-19 Critical Care Guideline After Judicial Review Challenge, March 31, 2020 available: https://www.hja.net/press-releases/nice-amends-covid-19-critical-care-guideline-after-judicial-review-challenge/
28 The Governments attention is also directed to the states of Alabama, Tennessee and Washington in the United States for similar legal challenges to the identification of specific disabilities to be excluded or deprioritized from receiving critical care. Available: https://adap.ua.edu/uploads/5/7/8/9/57892141/al-ocr-complaint_3.24.20.pdf and http://thearc.org/wp-content/uploads/2020/03/2020-03-27-TN-OCR-Complaint-re-Healthcare-Rationing-Guidelines.pdf

29 See for example, Triage Protocol, supra note 1, a 6, Exclusion Criteria Chart section (J), Triage Levels 1, 2 and 3. 30 Hughes v Elections Canada, 2010 CHRT 4 at para 79.
31 United Nations Committee on the Rights of Persons with Disabilities, General comment No 7 (2018) on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention, 9 November 2018, CRPD/C/GC/7, available: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/7&Lang=en at para 19 [General Comment No 7]. 32 CRPD, supra note 3, Preamble.
33 CRPD, ibid, Art 4(3).




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The ARCH Disability Law Centre Sends the Ford Government An Excellent Analysis of the Government’s Seriously Flawed March 28, 2020 Medical Triage Protocol – Why Hasn’t The Government Already Held Its Promised and Overdue Public Consultation on Replacing That Problem-Ridden Protocol?


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

The ARCH Disability Law Centre Sends the Ford Government An Excellent Analysis of the Government’s Seriously Flawed March 28, 2020 Medical Triage Protocol – Why Hasn’t The Government Already Held Its Promised and Overdue Public Consultation on Replacing That Problem-Ridden Protocol?

May 14, 2020

          SUMMARY

Yesterday, the ARCH Disability Law Centre sent the Ford Government a letter that provides an excellent analysis of the serious disability rights violations in the Government’s widely-condemned March 28, 2020 medical triage protocol. We set it out below and applaud it. It can also be downloaded with all its footnotes from ARCH’s website. ARCH has also posted online a plain language guide to its May 13, 2020 letter to the Government on this topic.

With all the many disability concerns during the COVID-19 crisis that we have been rushing to address, what is this one all about, you ask? When the COVID-19 crisis was first exploding, the Ford Government was understandably worried that there was a risk that more people might get COVID-19 than our hospitals could handle. From the experience in some other countries, there was and is a risk that critical care medical services, like ventilators, might have to be rationed, if there were not enough ventilators for all the patients that need them.

As a result, the March 28, 2020 medical triage protocol was written and circulated within the medical and health care community. It was not made public. The disability community was not consulted in its preparation. It is our understanding that those preparing it only consulted physicians and bio-ethics experts. We have seen no indication that either the doctors or bioethicists they consulted had any knowledge or expertise in disability rights or basic human rights.

It is fortunate that within days, a copy of that secret protocol was leaked to some in the disability community. As a result, over 200 community organizations, including many disability organizations (such as the AODA Alliance) rapidly organized to sign the April 8, 2020 open letter to the Ontario Government, spearheaded by ARCH. That open letter identified grave concerns that this secret medical triage protocol would discriminate against some patients because of their disability.

The day before the public release of that open letter, this issue was first publicly revealed by Robert Lattanzio, ARCH’s executive director, when he spoke at the widely-viewed April 7, 2020 virtual town hall on COVID-19 and people with disabilities, that was organized by the AODA Alliance and the Ontario Autism Coalition.

One week later, fully one month ago today, one of the Ford Government’s lead authors of the secret March 28, 2020 medical triage protocol, Dr. James Downar, said it was a top priority for the Government to consult the public on this medical protocol. He spoke on the April 14, 2020 edition of TVO’s “The Agenda with Steve Paikin”.

The Government later reiterated a commitment to public consultation on this topic in an April 21, 2020 announcement. That Government announcement walked back the March 28, 2020 medical triage protocol, but without explicitly rescinding it and directing that it not be followed or used. The Government claimed the protocol was only a draft. That claim has no credibility, since the document was not marked draft when it was circulated to the medical community and health care system.

Despite those Government commitments, no public consultation has been held. We are waiting for it to start. It is commendable that since then, the Ontario Human Rights Commission took it on itself to reach out for input from some experts from within the disability community last week (including the AODA Alliance). It did so to assist the Commission in preparing for its input to that public consultation, whenever the Government might get it going.

We emphasize the following, building on the ARCH letter’s excellent points:

  1. ARCH’s May 13, 2020 letter to the Ford Government reaches this deeply-troubling conclusion about the Government’s secret March 28, 2020 medical triage protocol:

“In its current version, the Triage Protocol is in conflict with the rights of persons with disabilities pursuant to the Ontario Human Rights Code, the Charter of Rights and Freedoms (the Charter), and the United Nations’ Convention on the Rights of Persons with Disabilities.”

It is inexcusable that the Ontario Government could so seriously run afoul of such basic rights for vulnerable people with disabilities in the midst of a crisis. For it to do so when the Premier of Ontario has pledged to protect the vulnerable during this crisis is even more the case. This amply deserves front page headline coverage.

  1. How did this happen? We are eager to know if the Government got legal advice before that protocol was allowed to go in circulation within the medical community and the health care system. Had it not been leaked to the disability community, triggering the shared advocacy efforts from the grassroots, serious human rights violations could have gone undetected and unchecked.

The Government should commit that before it is adopted, any new medical triage protocol will be thoroughly vetted and approved by lawyers with expertise in human and constitutional rights, such as the Constitutional Law Branch at Ontario’s Ministry of the Attorney General. If they were not consulted in advance of the March 28, 2020 medical triage protocol being placed in circulation in the medical community, there has been a serious and deeply-troubling break-down in longstanding Government legal safeguards. This is all the more troubling when it relates to discrimination because of disability in relation to life-saving medical care.

The Government should also reiterate the commitment of Health Minister Christine Elliott that no medical triage protocol will be adopted without Cabinet approval.

  1. The Government must publicly, immediately, clearly and unequivocally rescind and retract the March 28, 2020 medical triage protocol. AODA Alliance Chair David Lepofsky and CILT executive director Wendy Porch addressed this during their May 8, 2020 interview on TVO’s “The Agenda with Steve Paikin”. The longer the Government fails to clearly rescind this the March 28, 2020 medical triage protocol and direct that it must not be followed, the more confusion it creates for doctors, nurses and others working in the health care system. Moreover, the longer the Government fails to clearly rescind this document and announce that it must not be followed, the longer some people with disabilities will understandably fear going to a hospital, if they are sick and need hospital care.
  1. By now, the Government or those it has engaged to help with the medical triage protocol no doubt have developed some sort of a revised draft medical triage protocol. As we have urged in the past, the Government should immediately make that draft public, in whatever state it is now, for input by the public including the grassroots disability community.
  1. The Government should now commit that the revised medical triage protocol will include all the key ingredients that the AODA Alliance outlined in its April 14, 2020 Discussion Paper on Ensuring that Medical Triage or Rationing of Health Care Services During the COVID-19 Crisis Does Not Discriminate Against Patients with Disabilities. Since we made it public one month ago, and widely publicized it on social media, we have received no feedback claiming that our proposals are incorrect or inappropriate.
  1. The long-overdue public consultation in this area must be entirely open, public and transparent. We have had far too much secrecy from the Government and those it engaged to develop this protocol. More secrecy will engender more public suspicion and distrust. Openness is a vital key to much-needed public confidence.
  1. The Government must act quickly to get this overdue public consultation going and to finalize a new medical triage protocol. It is good that Ontario has not yet reached the point of needing to resort to that protocol, because our hospitals have thankfully not been overrun with COVID-19 cases. However, we are certainly not out of the woods. With the Ontario Government moving to re-open the economy and gradually loosen restrictions on the public, the risk of a second or third wave of COVID-19 is a realistic possibility.

We fear that the Government’s political strategy in this area had been to wait for the “curve to flatten”, as it did, and then to offer a protracted public consultation in the hopes that this medical triage protocol issue and the Government’s initial serious mishandling of it would fade away and be forgotten. It has not faded away. It required and still requires prompt action. The continued governmental foot-dragging must end now.

For more background on this, we invite you to watch David Lepofsky’s and Wendy Porch’s May 8, 2020 interview on “The Agenda with Steve Paikin” and encourage others to watch it. In under a week, it has already gotten over 1,600 views on Youtube, in addition to the people who watched it on old-fashion TV or on podcasts. The link to this interview that we invite you to circulate is https://youtu.be/KmMlTrNbud8

Check out the AODA Alliance’s COVID-19 web page for all the news on our efforts to ensure that the urgent needs of people with disabilities are addressed during the COVID-19crisis.

There have been 469 days since the Ford Government got the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes worse the problems facing Ontarians with disabilities during the COVID-19 crisis.

There have been 50 days since we wrote Ontario Premier Doug Ford on March 25, 2020 to urge specific action to address the urgent needs of Ontarians with disabilities during the COVID-19 crisis. He has not answered. The Premier’s office has not contacted us. The ordeal facing Ontarians with disabilities during the COVID-19 crisis is worsened by that delay.

Send us your feedback! Write us at [email protected]. Please stay safe!

          MORE DETAILS

 The May 13, 2020 Letter from the ARCH Disability Law Centre to the Ford Government on the Medical Triage Protocol

ARCH Disability Law Centre

Sent via email to [email protected] and [email protected]

May 13, 2020

Hon. Christine Elliott, Deputy Premier and Minister of Health

College Park, 5th Floor

777 Bay Street

Toronto, ON M7A 2J3

Mr. Matthew Anderson

Chief Executive Officer

Ontario Health

Dear Hon. Minister Elliott and Mr. Anderson:

Re:       Ontario’s Clinical Triage Protocol for Major Surge in COVID Pandemic

 

We write further to the Open Letter dated April 8, 2020 and which was delivered to Premier Doug Ford, Minister of Health, Christine Elliott, and Minister of Accessibility, Raymond Cho. As you will recall, the Open Letter raised grave concerns regarding the Ontario Clinical Triage Protocol for Major Surge in COVID Pandemic[1] (the “Triage Protocol”), authored by Ontario Health, dated March 28, 2020 but never publicly released.

On April 21, 2020, ARCH Disability Law Centre, amongst other recipients, received a response from the Ontario Government. The Government’s letter, undated, stated that the Ministry of Health directed Ontario Health to consult with the Ontario Human Rights Commission (OHRC), as well as key human rights and community experts. In response, ARCH delivered a letter to Ontario Health on April 22, 2020 requesting additional information regarding any consultations, and requesting that a clear statement be made rescinding the March 28, 2020 draft Triage Protocol. ARCH continues to await a response from Ontario Health.

While ARCH welcomes the Government’s direction to Ontario Health to consult, little has been made public about the consultations, including the format of consultations, the timeline surrounding consultations, the groups – aside from the OHRC – that will be consulted, and when a finalized version of the Triage Protocol can be expected.

A further concern is that, despite stating that the current version of the Triage Protocol is a draft, the Government has taken no action to clearly withdraw the draft to ensure that it is not implemented should the medical system become overburdened whilst Ontario Health conducts consultations.

Notwithstanding the Government’s assertion that the Triage Protocol is undergoing consultation, ARCH is not aware of any such consultation nor has ARCH received any revised draft. ARCH strongly encourages input from communities of persons with disabilities through a formal and inclusive consultation process, and that any revised version of the Triage Protocol be made widely available to allow for a more fulsome and effective consultation. In the meantime, because time is of the utmost essence in the present circumstances, ARCH is taking this opportunity to provide its own submissions on the issues that must be addressed and resolved in any (newly) drafted Triage Protocol.

To note, ARCH recognizes that health care workers need a pragmatic and practical approach to assist them in making extremely difficult decisions in allocating critical care resources during this pandemic. However, as a collection of United Nations experts have made clear, “The scarcity of resources … should never be a justification to discriminate against certain groups of patients[2]. It is imperative that any critical care protocol developed by the Ontario Government, or any of its agencies, be founded upon human rights laws and principles, including the recognition that every person has an equal right to life-saving intervention and the right to be free of discriminatory denial of health care, including persons with disabilities.[3]

In its current version, the Triage Protocol is in conflict with the rights of persons with disabilities pursuant to the Ontario Human Rights Code,[4] the Charter of Rights and Freedoms (the Charter),[5] and the United Nations’ Convention on the Rights of Persons with Disabilities.[6] For the purposes of this brief, the discussion that follows focuses primarily on the Charter violations. The analysis then turns to the administrative and implementation considerations the Government must put in place to ensure that any critical care protocol does not infringe upon the rights of persons with disabilities. To conclude this brief, ARCH makes several recommendations that we urge the Ministry of Health, Ontario Health and any other organization that may be involved in drafting, to consider when re-drafting the Triage Protocol.

The Triage Protocol Violates the Charter

Any critical care protocol or health care scheme the Government chooses to put into place must comply with the Charter.[7] The Triage Protocol, and the tools it relies on to determine a patient’s prioritization in receiving critical care, must be considered through this lens.

In particular, the Triage Protocol states that allocation of critical care resources is dependent, in part, on the basis of the 9-point Clinical Frailty Scale (CFS).[8] The points range from Very Fit (score of 1) to Terminally Ill (score of 9), by taking into account disability-related factors such as activity levels[9] and the requirement for assistance in completing activities, as well as the use of mobility devices by some persons with disabilities, the ability to walk with assistance, and/or the use of a support person for personal care or finances. As will be demonstrated below, the inclusion of the CFS in the Triage Protocol violates the rights of persons with disabilities, pursuant to sections 15, 7, and 12 of the Charter.

Further, the Triage Protocol specifically identifies at least four different categories of disabilities, including cognitive disabilities and “advanced or moderate” neurodegenerative diseases including Parkinson Disease, Amyotrophic Lateral Sclerosis, and Metastatic Malignant Disease. Persons with these disabilities may in some stages of their disability be deprioritized from receiving critical care.

These tools, on their face and/or in application, do not comply with the Charter.

Section 15 of the Charter: Right to the Equal Protection and Equal Benefit of the Law without Discrimination

 

The Triage Protocol violates the right of persons with disabilities to be equal before and under the law, and to have equal protection and equal benefit of the law without discrimination, contrary to section 15 of the Charter. The “animating norm” of section 15 is substantive equality,[10] which responds to the reality that “persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages.”[11]

In addition to identifying specific disabilities for the deprioritization for critical care, the Triage Protocol draws a clear distinction for critical care on the basis of a CFS score. Persons who score higher on the CFS will be deprioritized from receiving critical care. Persons with disabilities are more likely to score higher on the CFS score, because of their general disability-related care needs and reduced activity levels. Meanwhile, a person without a disability is less likely to receive a high CFS score – it is only persons with disabilities who will fall within this scope. In this way, the CFS draws a clear distinction between persons with disabilities and abled-bodied persons.

It is widely recognized that healthcare systems tend to be structurally and systemically ableist.[12] Historically, and due to this, persons with disabilities have been denied equal access to health care[13] on the basis of stereotypes and the erroneous notion that disability is a flaw inherent in the individual.[14] The crux of the issue is in the often subconscious devaluing of the lives of persons with disabilities by medical practitioners.[15] This subconscious devaluing stems from the tendency of ableist quality of life presumptions to seep into medical practitioners’ decision-making process. These inequities persist today, and the pandemic has significantly exacerbated these disparities and erected further barriers; this includes the Triage Protocol which creates a decision-making framework built upon an ableist approach to disability. This is despite the fact that persons with disabilities may be particularly vulnerable[16] to COVID-19.

Interestingly, the Triage Protocol purports to be guided by the principal of fairness.[17] However, without contemplating substantive equality, the principle of fairness in the Triage Protocol is illusory at best. In this circumstance, fairness is understood as the treatment of all patients on an equal and fair basis by using clinically-relevant criteria to allocate resources. The Triage Protocol, however, fails to understand the difference between formal and substantive equality, and fails to appreciate the lived experience of persons with disabilities in their interactions with the medical system.

The inclusion of the guiding principles in the Triage Protocol leads to the very errors warned against by the Special Rapporteur on the Rights of Persons with Disabilities. As the Special Rapporteur stated, the health care sector has a tendency to reduce ethical debates “to an application of rules to situations in an oversimplified and legalistic manner, without a critical reflection of the role of human rights in bioethics and the power dynamics under which decisions are made.”[18] The inclusion of the guiding principles in the Triage Protocol, including the principle of fairness, is formalistic and fails to consider all the ways in which fairness is eroded by the treatment of persons with disabilities within the healthcare system.

Many persons with disabilities will be deprioritized and at risk of being denied access to critical care simply because the CFS deems them “severely frail” on the basis of their use of a mobility device, having a support person assisting them with activities of daily living, or having one of the disabilities identified by the Triage Protocol. These characteristics are not, as a rule, relevant to the person’s health status nor their overall mortality in the face of COVID-19. These same persons may very well be viable candidates for critical care despite the fact that they need assistance for daily living and personal care and/or use a wheelchair.

Persons with disabilities are not one homogenous group and the grouping of persons with disabilities into pre-determined categories of disability pre-empts and denies individual assessment to determine their need for critical care. For example, the Triage Protocol groups persons with cognitive disabilities[19] into one group, ignoring the fact that persons with cognitive disabilities can include persons labelled with intellectual disabilities, persons with developmental disabilities, persons with dementia, persons with acquired brain injuries, persons with fetal alcohol syndrome, etc. This kind of decision-making lends itself to the reliance upon labels, which can be laden with stereotypes and value judgments as to the quality of the patient’s life. This has the detrimental impact of denying a patient of individual assessment, which is necessary to ascertain their individual needs.[20]

In this respect, the Triage Protocol clearly has the effect of reinforcing, perpetuating, or exacerbating the disadvantage experienced by persons with disabilities. By deprioritizing persons from receiving care, the Triage Protocol, relying on the CFS, disconcertingly mimics the historical treatment of persons with disabilities in the medical system of isolation and exclusion, and being subject to ableist norms and value judgments about their quality of life. These criteria rely on damaging assumptions about persons who require assistance with aspects of daily living as having a lesser quality of life. This devalues the lives of persons with disabilities.

It is imperative that decisions about who receives critical care should be made using objective, individualized clinical criteria directly associated with mortality risks of COVID-19. Decisions must not be based on stereotypes or assumptions about a person’s disability, the value of quality of their life due to their disability, or longer term mortality rates that are not directly related to COVID-19.

Section 7 of the Charter: Right to Life and Security of the Person

 

The inclusion of the CFS in the Triage Protocol and the identification of specific categories of disabilities violates the rights of persons with disabilities to life and security of the person in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter.

The effect of the Triage Protocol violates the rights of persons with disabilities to life. Persons who use mobility devices,[21] those who use support persons for daily living tasks and personal care,[22] those who walk with assistance,[23] or those who have a disability that is expressly identified, are more likely to be deprioritized from receiving critical care and are more likely to experience negative health outcomes, up to and including death.

Persons with disabilities who use mobility devices or walk with assistance include those who were born with disabilities or acquired them at a young age, such as persons with cerebral palsy, congenital amputations or who have survived childhood cancers. Persons who need assistance for daily living tasks can include persons labelled with intellectual disabilities who are able to live in the community with assistance from support workers. The use of the CFS inappropriately labels persons with these characteristics as “frail” which then deems them less likely to receive critical care when they most need it.

In identifying specific disabilities, the Triage Protocol invites the application of labels and value judgments to the quality of life of persons with disabilities. Instead of objective and individualized assessment, these labels and value judgements then become the starting point for assessing a patient’s likely morbidity.

The inclusion of the CFS and the identification of specific disabilities also violates persons with disabilities’ right to security of the person, contrary to section 7. In particular, knowing that they may be deprioritized or denied access to critical care has caused persons with disabilities psychological distress, and creates a disincentive to seek medical care, putting their security and their community at risk. Persons with disabilities are already experiencing the disproportionate effects of the COVID-19 virus,[24] and are more susceptible to the virus depending on the nature of their disability. The Triage Protocol means they must now endure the very real scenario that they may be denied critical care resources, at least in part, because they use a mobility device, require assistance with daily living tasks or require the assistance of a mobility device to walk.

This use of the CFS is overbroad, arbitrary and not in accordance with the principles of fundamental justice. This is especially true considering the purposes for which the CFS was designed and developed: for physicians to use in treating elderly patients.[25] It is accepted that the CFS has not been widely validated in populations younger than 65 years of age or for persons with disabilities.[26] Moreover, the CFS does not distinguish between frailty and disability, making it wholly inappropriate to apply to a subset of the population that has long-term disabilities, some of which may be progressive in nature.

In fact, several jurisdictions have already recognized the error in including the CFS in their Triage Protocols and have remedied their error by removing the CFS from any COVID-19 protocols and committed to an individualized assessment of each patient. We direct the Government’s attention, for example, to the United Kingdom,[27] where the use of the CFS has been challenged and the government has conceded the problematic nature of the CFS for the purposes of allocating critical care resources.[28] The Government and Ontario Health are encouraged to heed these lessons learned in other jurisdictions.

Section 12 of the Charter: Right Not to be Subjected to any Cruel and Unusual Treatment

The Triage Protocol violates persons with disabilities’ right to be free from cruel and unusual treatment, contrary to section 12 of the Charter. The CFS and the identification of specific disabilities intentionally targets an already vulnerable, disadvantaged and marginalized group in society that is more than likely to have been, or will be, impacted by the very virus to which this Protocol responds. This is demonstrative of treatment that is cruel and unusual.

The Triage Protocol draws a distinction between persons with disabilities and persons without disabilities for the purposes of allocating critical care resources in a manner that outrages the standards of decency. Again, we point to the disability-related need for assistance to walk as a marker of “frailty” according to the CFS. This is problematic and neglects the human-rights approach and understanding of disability. The effect of the inclusion of the CFS and identifying specific disabilities is to create a two-tiered access to critical care: one for persons with disabilities and one for persons without disabilities.

It is well established that persons with disabilities are entitled to access health care on an equal basis; this violation of the right to equal access, and by extension to ensure that the human dignity of persons with disabilities is not degraded, cannot be justified in light of the fact that society is currently battling a pandemic.

There is little doubt that the treatment of persons with disabilities, in accordance with this Triage Protocol, would be unacceptable to a large segment of the population, violates public standards of decency and propriety and, overall, shocks the general conscience. In short, the approach adopted by the Triage Protocol deprioritizes persons with disabilities and prioritizes persons without. In effect, this leads to cruel and unusual treatment of persons with disabilities because they have a disability.

The current version of the Triage Protocol is drafted in a manner as to call for a clinical assessment of the chance of survival that is comparative rather than individualized. The removal of critical care from a person with a disability who has a reasonable chance of survival in order to provide it to another patient who, by virtue of not having a disability, is deemed to have a better chance of survival[29] also amounts to cruel and unusual treatment. It is clear that the Triage Protocol does not explicitly state that persons with disabilities will be deprioritized or removed from receiving critical care in order for a person without a disability to receive it. However, the cumulative effect of including the CFS, the identification of specific disabilities in the exclusion chart, and the subconscious value-judgments inherent in the health care system that permeate the decisions made pursuant to the Triage Protocol, lead to a eugenic-adjacent approach to the pandemic. This is a clear violation of section 12 of the Charter.

Administrative and Implementation Precautions

The Government must take a number of active measures to ensure that persons with disabilities are not deprioritized in receiving critical care and to ensure that ableism is not perpetuated in emergency and critical care response measures. Without these active steps, the issues that stem from the current Triage Protocol will continue to have devastating consequential effects on persons with disabilities.

It is imperative that the Government is accountable and transparent throughout the development and implementation of the Triage Protocol. The Triage Protocol must include oversight and accountability mechanisms that are effective and timely to ensure that systemic safeguards are in place and operational throughout any period of implementation.

The current Triage Protocol was drafted without any known and public consultation undertaken by the Ministry of Health or by Ontario Health with communities and/or organizations of persons with disabilities who will be disproportionately impacted by the Triage Protocol.

It is beyond a shadow of a doubt that persons with disabilities are disproportionately impacted by COVID-19 and it is equally certain that the current Triage Protocol disproportionately impacts persons from various disability communities. As such, any direction by the Ontario Ministry of Health to Ontario Health to consult with key groups must include consultations with persons with disabilities specifically identified in the Triage Protocol. Any consultation conducted without affected persons with disabilities is ineffective and is more than likely to result in another Triage Protocol that infringes upon the rights of persons with disabilities, rights that are protected provincially, federally and internationally.

The Canadian Human Rights Tribunal has recognized the ways in which greater consultation with persons with disabilities may prevent similar discriminatory practices from occurring again in the future.[30] The Ministry of Health and Ontario Health are encouraged to heed this finding and embark on as broad as a consultation as possible by inviting persons with disabilities identified in the Triage Protocol to a seat at the consultation table.

Furthermore, under the CRPD, engagement with persons with disabilities is required in the development of law and policy, unless there is no disproportionate effect on them.[31] The preamble explains that “persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them”.[32]

In addition, article 4(3) elaborates that in the development of legislation and polices that affect persons with disabilities, State parties “shall closely consult with and actively involve” them through “representative organizations”.[33] This participation is also informed by the concept of intersectionality, to capture the lived experience of persons with disabilities who may experience particular impacts because of a combination of identities.

Recommendations

In light of the concerns raised above, ARCH makes the following recommendations to the Ministry of Health, Ontario Health and any affiliated authors of the Triage Protocol:

  • Remove any reliance on the Clinical Frailty Scale to make decisions about critical care allocation from the Triage Protocol as it is in violation of the Charter;
  • Remove any reference to specific disabilities as exclusion criteria from the Triage Protocol for the purposes of critical care allocation as it is in violation of the Charter;
  • In order to address the inherent inequities and ableism in the health care system, and the discriminatory effects of the Triage Protocol, it is imperative that the Triage Protocol include a clear statement of non-discrimination on the basis of disability;
  • In order to address the inherent inequities and ableism in the health care system, and the discriminatory effects of the Triage Protocol, it is imperative that the Triage Protocol include a clear statement of the duty to accommodate persons with disabilities in the delivery of critical healthcare services;
  • Develop oversight and accountability mechanisms through consultation with persons with disabilities. These may include any and all of the following or additional measures as appropriately adapted: systemic measures such as a timely and ongoing process to review and re-evaluate the implementation of the Triage Protocol to address any disproportionate impacts on persons with disabilities, the creation of an oversight committee that includes persons with disabilities, the collection of disability-specific and socio-demographic data and the public release of that data; and individual accountability measures such as a timely and effective process for immediate review of decisions with due process protections (such as reasons for decisions), the provision of advocacy support, and the provision of rights advice to individuals and their families of all available recourses; and
  • Any consultation undertaken by the Government, by Ontario Health, or any other Government ministry or agency for the purposes of drafting a critical care protocol in response to a health crisis must ensure that persons, or representative groups of persons, who will be disproportionately impacted by said protocol are consulted.

Sincerely,

ARCH DISABILITY LAW CENTRE

 

 

Robert Lattanzio

Executive Director

 

Cc:       Raymond Cho, Minister of Accessibility

Todd Smith, Minister of Children, Community and Social Services

Renu Mandhane, Ontario Human Rights Commissioner

[1] Ontario Clinical Triage Protocol for Major Surge in COVID Pandemic, March 28, 2020 [Triage Protocol].

[2] No exceptions with COVID-19: “Everyone has the right to life-saving interventions” – UN experts say, Press Release, March 26, 2020. Available: https://www.ohchr.org/EN/NewsEvents/Pages/NewsSearch.aspx?MID=SR_Disabilities

[3] Convention on the Rights of Persons with Disabilities, 30 March 2007, 2515 UNTS 3 at 70, Can TS 2010 No 8 (entered into force 3 May 2008, ratified by Canada 11 March 2010), at Article 25 [CRPD].

[4] RSO 1990, c H.19 [Code]

[5] The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[6] CRPD, supra note 3.

[7] Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 para 506; see also generally, Eldridge v British Columbia (Attorney General), 1997 CanLII 327 (SCC) [Eldridge].

[8] Triage Protocol, supra note 1 at 6.

[9] Score 4 on the Clinical Frailty Scale, for example, deems someone who feels tired during the day as being vulnerable; persons with disabilities such as lupus and muscular dystrophy fall within this CFS category since one of the manifestations of their disability is fatigue.

[10] See Withler v Canada, 2011 SCC 12 and Andrews v Law Society of British Columbia, [1989] 1 SCR 143.

[11] Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 at para 17.

[12] Katie Savin & Laura Guidry-Grimes, Confronting Disability Discrimination During the Pandemic, April 2, 2020 available: https://www.thehastingscenter.org/confronting-disability-discrimination-during-the-pandemic/.

[13] Eldridge, supra note 7.

[14] Eldridge, ibid at para 56.

[15] United Nations General Assembly, Report of the Special Rapporteur on the rights of persons with

Disabilities, A/HRC/43/41, 17 December 2019, available: https://undocs.org/en/A/HRC/43/41 [“Report of the Special Rapporteur”].

[16] Savin & Guidry-Grimes, supra note 12.

[17] Triage Protocol, supra note 1 at 3.

[18] Report of the Special Rapporteur, supra note 15, at 6.

[19] The Triage Protocol uses “cognitive impairments,” which is not human rights language. For the purposes of this document, however, and to ensure clarity, the term “cognitive disabilities” is used throughout.

[20] See, for example: British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) and British Columbia (Public Service Employee Relations Commission) v BCGSEU, 1999 CanLII 652 (SCC).

[21] Scoring a 7 on the CFS, see Triage Protocol, supra note 1, at 10.

[22] Scoring a 5, 6, or 7 on the CFS, see Triage Protocol, ibid.

[23] Scoring a 6 on the CFS, see Triage Protocol, ibid.

[24] CBC News, COVID-19 death toll at Ontario long-term care homes nears 1,000, hospitalizations on the rise, May 3, 2020 available: https://www.cbc.ca/news/canada/toronto/ontario-sunday-covid-19-police-memorial-death-total-1.5553859

[25] Rockwood K, Song X, MacKnight C, Bergman H, Hogan DB, McDowell I, Mitnitski A. A global clinical measure of fitness and frailty in elderly people. CMAJ. 2005 Aug 30;173(5):489-95; also see: https://www.dal.ca/sites/gmr/our-tools/clinical-frailty-scale.html

[26] National Health Service, Specialised Clinical Frailty Network, Frailty and Covid-19, available: https://www.scfn.org.uk/clinical-frailty-scale

[27] Hodge, Jones & Allen, News Release, NICE Amends COVID-19 Critical Care Guideline After Judicial Review Challenge, March 31, 2020 available: https://www.hja.net/press-releases/nice-amends-covid-19-critical-care-guideline-after-judicial-review-challenge/

[28] The Government’s attention is also directed to the states of Alabama, Tennessee and Washington in the United States for similar legal challenges to the identification of specific disabilities to be excluded or deprioritized from receiving critical care. Available: https://adap.ua.edu/uploads/5/7/8/9/57892141/al-ocr-complaint_3.24.20.pdf and http://thearc.org/wp-content/uploads/2020/03/2020-03-27-TN-OCR-Complaint-re-Healthcare-Rationing-Guidelines.pdf

[29] See for example, Triage Protocol, supra note 1, a 6, Exclusion Criteria Chart section (J), Triage Levels 1, 2 and 3.

[30] Hughes v Elections Canada, 2010 CHRT 4 at para 79.

[31] United Nations Committee on the Rights of Persons with Disabilities, General comment No 7 (2018) on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention, 9 November 2018, CRPD/C/GC/7, available: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/7&Lang=en at para 19 [General Comment No 7].

[32] CRPD, supra note 3, Preamble.

[33] CRPD, ibid, Art 4(3).



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Watch TVO’s “The Agenda with Steve Paikin” Tonight at 8 or 11 PM for an Interview on the Impact of the COVID-19 Crisis on People with Disabilities – and More News on the COVID-19 and Disability Front


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Watch TVO’s “The Agenda with Steve Paikin” Tonight at 8 or 11 PM for an Interview on the Impact of the COVID-19 Crisis on People with Disabilities – and More News on the COVID-19 and Disability Front

May 8, 2020

          SUMMARY

 1. TVO’s “The Agenda with Steve Paikin” Again Focuses Attention on Disability Issues Tonight

We invite you to watch TVO’s flagship current affairs program “The Agenda with Steve Paikin” tonight at 8 or 11 pm Eastern time for a 20-minute interview on the impact of the COVID-19 crisis on people with disabilities. The guests are AODA Alliance Chair David Lepofsky and Wendy Porch, the Executive Director of the Centre for Independent Living in Toronto (CILT). Ms. Porch was one of the 10 excellent experts who spoke at the first virtual Town Hall on COVID-19 and people with disabilities that the AODA Alliance and Ontario Autism Coalition held on April 7, 2020.

This program will air on good old-fashioned TV (for those who use it). It will also stream tonight at 8 pm on the Twitter feed and Facebook page of The Agenda with Steve Paikin.

We thank The Agenda with Steve Paikin for again focusing attention on our accessibility campaign. Topics addressed in this interview include such things as the disproportionate impact of COVID-19 on people with disabilities, the additional barriers and hardships facing people with disabilities during this crisis in our health care and education systems, the troubling March 28, 2020 provincial medical triage protocol that the Ford Government has failed to categorically rescind and replace, and the pressing need for the Ford Government to quickly create a comprehensive plan to address the urgent needs of people with disabilities as part of its COVID-19 emergency planning. We wish to especially commend The Agenda and Steve Paikin for its and his unremitting journalistic integrity, exemplified by affording us a fair and open opportunity in this interview to speak to accessibility concerns with TVO’s online educational resources.

We encourage you to:

* Spread the word to your friends and family and encourage them to watch this interview.

* Spread the word far and wide about this interview on Twitter, Facebook and other social media. You might wish to retweet the tweets that we will be circulating on this topic. Follow us on Twitter: @aodaalliance. On Facebook: www.facebook.com/AODAAlliance/

* Urge your member of the Ontario Legislature to watch this interview.

Typically, within a day or two after TVO airs this program, it gets posted on Youtube. Good captioning usually gets added then or a short time thereafter. When this gets posted on Youtube, we will share that link in an AODA Alliance Update and on social media for you to use and share with others.

* Urge your local media to cover this issue too. Bring them stories about specific additional hardships that people with disabilities are shouldering during the COVID-19 crisis. Invite them to reach out to us at the AODA Alliance for a comment on the need for the Ford Government to effectively plan to meet the urgent needs of people with disabilities as part of its COVID-19 emergency planning.

 2. Two Glimmers of Some Preliminary Progress on the Education Front

If you have not already watched it, join the hundreds of others who have already watched our May 4, 2020 virtual Town Hall on meeting the urgent learning needs of students with disabilities during the COVID-19 crisis while schools are closed and learning has moved online. We have asked the Ford Government to post a link to that event on its “Learn at Home” website, and to circulate it to all school boards. We await word on what the Government has done or will do to share this important resource with frontline teachers and parents who are trying to cope with the additional disability barriers that students with disabilities face due to the move to online schooling.

Eight weeks into this COVID-19 crisis, here are glimmers of some preliminary progress: First, in yesterday’s May 7, 2020 AODA Alliance Update, we reported to you on our efforts to get TVO to fix the accessibility problems with its online educational content for K-12 students. This is especially important, since the Ford Government points to TVO as its partner in delivering online education during the COVID-19 crisis.

Within hours of writing TVO again about this yesterday, we received a response from TVO’s vice president of digital content, inviting a conversation with us. We are taking TVO up on this offer and will keep you posted.

Second, we are pleased to let you know that the Ford Government has resumed the work of at least some Standards Development Committees. On May 5 and 6, 2020, the K-12 Education Standards Development Committee held productive online virtual meetings. As part of this, Education Minister Stephen Lecce and Accessibility Minister Raymond Cho, as well as three of the relevant Parliamentary Assistants, took part in a one-hour portion of the May 6, 2020 meeting of that AODA Standards Development Committee.

Committee members were given time to share information on the impact of the COVID-19 crisis on students with disabilities and to recommend needed actions. Given the time available, a five-minute time limit was understandably set for each speaker.

AODA Alliance Chair David Lepofsky, as a member of that committee, had five minutes to speak. He emphasized that the Ministry of Education has left it to each school board to reinvent the wheel, figuring out how to serve their students with disabilities. That is extremely inefficient and wasteful. He emphasized the need instead for a provincial plan to meet the urgent needs of students with disabilities. He urged the Government to organize more virtual town halls like we and the Ontario Autism Coalition did on May 4, 2020, to gather good ideas from the frontline teachers and parents, and to share them across all school boards. He reiterated our repeated offers to help the Government. He asked Education Minister Lecce for a chance for the two to speak. Minister Lecce said he was open to a dialogue with AODA Alliance Chair David Lepofsky.

We commend the Government for arranging that Standards Development Committee meeting. We have been pressing for it since as far back as March 25, 2020, when we wrote the Premier.

Third, we are encouraged by the fact that the K-12 Education Standards Development Committee has now set up a sub-committee to address the issue of COVID-19 and the education system. AODA Alliance Chair David Lepofsky will be a member of that sub-committee. We wish that this had happened much sooner, given that it was fully eight weeks ago that the Ford Government announced school closures.

Finally, in the wake of these events, AODA Alliance Chair David Lepofsky has had some exchanges with the Deputy Minister of Education and will be following up on this to press our concerns. For more background, check out:

* The April 30, 2020 letter from the AODA Alliance to Ontario Education Minister Stephen Lecce, which sets out a list of concrete and constructive requests for action that the AODA Alliance presented to Ontario’s Ministry of Education.

* The AODA Alliance’s education web page, that documents its efforts over the past decade to advocate for Ontario’s education system to become fully accessible to students with disabilities

* The AODA Alliance’s COVID-19 web page, setting out our efforts to advocate for governments to meet the urgent needs of people with disabilities during the COVID-19 crisis.

 3. Two More Important Media Reports on COVID-19 and People with Disabilities

We set out below two recent news media reports that address the impact of COVID-19 on people with disabilities, namely:

* A May 6, 2020 report on the Global News website by reporter Emerald Bensadoun on a range of hardships falling on people with disabilities during the COVID-19 crisis. In this article, the Ministry of Education is quoted as giving this response to our concerns about the lack of an effective provincial plan for meeting the urgent learning needs of students with disabilities during the COVID-19 crisis:

“When asked about this, the Ontario Ministry of Education said in a statement to Global News that Education Minister Stephen Lecce had convened two “urgent” discussions with the Minister’s Advisory Council on Special Education where they discussed how best to support students and families during this period and has consulted the K-12 Standards Development Committee struck by the Ministry for Seniors and Accessibility. They said all resources were reviewed for accessibility based on the standards of the Accessibility for Ontarians with Disabilities Act (2005), but that school boards were ultimately responsible for making decisions on the use of digital learning resources and collaboration tools to support students’ learning online.

‘The Ministry has provided clear direction to school boards on how to support students with special education and mental health needs during school closures,’ they said.”

We respond as follows: A cursory review of the online resources that the Ford Government has shared for learning at home reveals a range of accessibility problems. We question how carefully the Government ever checked these for accessibility. The Government’s obligation is not only to obey the weaker AODA accessibility standards but the stronger accessibility requirements in the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.

It is good that the Minister of Education earlier Consulted his Minister’s Advisory Committee on Special Education, but that committee has had a substantial number of vacancies. There is no indication what advice the Government received from that committee or to what extent, if any, the Government acted on that advice.

* A May 7, 2020 Canadian Press article by reporter Michelle McQuigge, appearing on the CityTV News website. In the face of reported serious problems for patients in hospital with communication disabilities, the article reported in part as follows, as a response from the Ford Government:

“The Ontario Ministry of Health confirmed it can only issue guidance to hospitals, which are described as corporations with autonomy to set their own policies.

Current directives from provincial public health officials urge health-care providers to limit visitors to just four narrow categories, none of which address the communication needs of disabled patients.

But a spokeswoman said the ministry will be ‘reviewing the current directives and guidance that have been issued to the health system’ as the province continues to monitor the COVID-19 outbreak.”

We comment that the provincial government has lead responsibility here. The Health Ministry suggests its hands are somewhat tied in what it can direct Ontario hospitals to do. This disregards the reality of what is going on during the COVID-19 crisis. The Ontario Government has ample capacity to direct hospitals and is doing this right now with other facets of the COVID-19 crisis. It is wrong for the Ford Government’s Health Ministry to selectively duck its responsibility when it comes to the vital needs of highly vulnerable hospital patients with communication disabilities.

 4. The Ford Government’s Foot-Dragging Continues

There have now been a disturbing 463 days since the Ford Government received the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes even worse the problems facing Ontarians with disabilities during the COVID-19 crisis.

There have been 44 days since we wrote Ontario Premier Doug Ford on March 25, 2020 to urge specific action to address the urgent needs of Ontarians with disabilities during the COVID-19 crisis. He has not answered. The ordeal facing Ontarians with disabilities during the COVID-19 crisis is worsened by that delay.

Send us your feedback! Write us at [email protected]. Please stay safe!

          MORE DETAILS

 Global News Online May 6, 2020

Originally posted at https://globalnews.ca/news/6906216/coronavirus-canadians-disabilities/

‘I need help’: Coronavirus highlights disparities among Canadians with disabilities – National

BY EMERALD BENSADOUN- GLOBAL NEWS

Prior to the novel coronavirus pandemic, 27-year-old Marissa Blake was rarely ever home. Now, Blake, who lives in Toronto supportive housing and needs assistance to walk, can only have one visitor a week for three hours and can’t see her friends in-person. An appointment to discuss surgery on her legs was cancelled, and her sleep and care schedule are in flux because her personal support workers keep changing.

“It’s difficult,” she said. “I feel like I’m in jail.” Disability advocates say B.C.’s woman’s death shows need for clearer COVID-19 policy Her exercise program with March of Dimes Canada, a rehabilitation foundation for disabled persons, was cancelled, and Blake said she’s been less physically active than usual.

“It’s been really making me tight, really making me feel like I’m fighting with my body,” she said. “I can’t just get up and walk. I need help.”

But for Blake, isolation and exclusion are having the largest impact. “The biggest thing for me is support,” she said.

“I miss my friends. I miss interacting with people. Because when you look at a computer, it’s great but it’s not the same as seeing them face-to-face.”

One in four Canadians — about 25 per cent of the population — has a disability, according to the latest data from Statistics Canada. Despite this, advocates say they are often left out of emergency planning.

David Lepofsky, who chairs the Accessibility for Ontarians with Disabilities Act Alliance, likened the situation to a fire raging inside of an apartment building complex, where the people inside are alerted by a fire alarm and loudspeaker that tells them to exit by taking designated stairs illuminated by clearly-indicated markers.

A person who is deaf wouldn’t hear the fire alarm. A person in a wheelchair would be trapped inside. And those designated markers will do nothing for someone who can’t see. Unless they receive support, Lepofsky said anyone with disabilities living in the building will likely not survive. Similarly, he said the government has applied a mostly one-size-fits-all approach to

COVID-19 measures that offer little support the country’s disabled.

“It’s because of their disability and it’s because no one planned for them in the emergency,” he said.

Often, Canadians with more severe disabilities will get placed in long-term care facilities, where health officials said over 79 per cent of COVID-19-related deaths occur. Lepofsky said that poses a danger to those with disabilities, as well. He said comparable problems arise in Ontario’s virtual elementary and secondary education system, called Learn At Home. The program isn’t user-friendly for students with disabilities who may be deaf, blind or unable to use a mouse, said Lepofsky. Despite making up upwards of one-in-six of the student population, he said much of the program was made with only able-bodied students in mind.

When asked about this, the Ontario Ministry of Education said in a statement to Global News that Education Minister Stephen Lecce had convened two “urgent” discussions with the Minister’s Advisory Council on Special Education where they discussed how best to support students and families during this period and has consulted the K-12 Standards Development Committee struck by the Ministry for Seniors and Accessibility. They said all resources were reviewed for accessibility based on the standards of the Accessibility for Ontarians with Disabilities Act (2005), but that school boards were ultimately responsible for making decisions on the use of digital learning resources and collaboration tools to support students’ learning online.

“The Ministry has provided clear direction to school boards on how to support students with special education and mental health needs during school closures,” they said.

March of Dimes Canada president Len Baker said even before the existence of COVID-19 that people with disabilities were facing “significant” challenges every day, including already-existing barriers like attitudinal ones about disability.

“Those historic barriers become exacerbated during a time such as this pandemic, where now not only do they have to address the issues that they need to be able to complete their goals and feel connected to the community, but with social distancing and the isolation that the pandemic brings, it causes us concern that many individuals are going to feel even a greater sense of isolation and loneliness during this time,” he said.

Baker said around 50,000 students with disabilities rely on the organization for opportunities to read, learn skills, get out in the community, to participate and connect with others. But since the pandemic started, he said they’ve had to revamp their services to be available virtually or over the phone.

Marielle Hossack, press secretary to the minister of employment, workforce development and disability inclusion, said in a statement to Global News the federal government has increased human resources for support services for Canadians with disabilities over the phone and online, and is looking into implementing ALS and LSQ into current and future emergency responses.

The federal government has also established the COVID-19 Disability Advisory Group, which is comprised of experts in disability inclusion, that provide advice on “real-time live experiences of persons with disabilities.” Hossack wrote the group discusses disability-specific issues, challenges and systemic gaps as well as strategies, measures and steps to be taken.

But some advocates don’t think that’s enough.

Karine Myrgianie Jean-François, director of operations at DisAbled Women’s Network Canada, told Global News that despite making up such a large percentage

of the population, many are not getting support services typically provided by provincial health departments or social services. This is due to a lot of factors, she said — because there’s a lack of protective equipment, because people are getting sick, because it’s too dangerous. For children with disabilities, Jean-François said the pandemic means they’re often relying on their parents for mental and physical support they would have received at school.

“A lot of the measures that have been made to prepare for this pandemic have been done to think about the greatest number of people, which often means that we forget about people who are more marginalized and people who have a disability are included in that,” she said.

Jean-François said that includes the Canadian Emergency Response Benefit (CERB). Currently, 70 per cent of Canadians eligible for the disability tax credit will receive the enhanced GST/HST benefit based on their income levels due to COVID-19, but that may not add up to much for Canadians with disabilities who may also need to hire food deliveries, in-house care, or those that would be deemed ineligible for the aid because they’re unable to work.

The money “doesn’t go as far as it used to,” she said. When factored to include the rising cost of living, Jean-François said most Canadians with disabilities — many of whom are already living at or near the poverty line — end up barely scraping by. “We’re not all equal under COVID-19,” she said. “We need to be looking at… who stands up to make sure that people get what they need, and how to make sure that they’re supported in what they’re doing both financially but also mentally, because it’s really hard work to support people who were left alone.”

 City TV News Online May 7, 2020

Originally posted at https://toronto.citynews.ca/2020/05/07/pandemic-highlights-existing-barriers-for-those-with-communication-disabilities/

Pandemic highlights existing barriers for those with communication disabilities

BY MICHELLE MCQUIGGE, THE CANADIAN PRESS

The COVID-19 pandemic has highlighted long-standing barriers preventing Canadians with communication disabilities from fully accessing the health-care system, according to advocates across the country who are calling for governments to address the issue.

Organizations and individuals point to recent cases in which disabled patients were denied access to crucial communication supports while in hospital, leaving them unable to interact with loved ones or medical professionals.

They say the two incidents — one of which involved the death of a 40-year-old woman — highlight the inconsistent approach to such issues in hospitals across Canada and should prompt governments to set uniform standards to protect disabled patients.

Heidi Janz, an Edmonton-based professor at the University of Alberta who has cerebral palsy and uses a wheelchair, said the precautions put in place to limit the spread of COVID-19 have exacerbated the struggles people relying on alternative means of communication face on a daily basis.

“It terrifies me — on an advocacy level, but also on a personal level,” Janz said in an interview conducted with the support of an aide who echoed her words. “I have experience with the kind of inability to communicate with a medical team and the fear that comes with that.”

The two recent cases, which Janz said hint at “a disaster waiting to happen,” played out in different parts of the country and involved patients who were hospitalized for reasons not related to COVID-19.

The family members of both patients either could not be reached or did not respond to request for comment, but advocacy groups familiar with the cases note the similarities.

In one instance, a 40-year-old woman in British Columbia with cerebral palsy died alone in hospital last month. Pandemic-protection policies at the facility barred support workers who usually assisted her in communicating from entering the premises.

In another case, a Toronto man who used an iPad to stay in touch with his relatives saw his use of the device unexpectedly limited to one hour a day. Multiple local media reports cited hospital officials alleging the iPad could be used as a surveillance tool.

Janz and other Canadians with communication disabilities said these cases are horrifying but not surprising.

Janz said she refuses to go to an emergency room without someone there to help her convey her wishes to medical staff, noting health-care workers often make assumptions about her capacity to weigh in on her own care based on her disability.

Anne Borden, co-founder of the autism self-advocacy organization Autistics for Autistics, said people who rely on communication devices face similar barriers.

Medical staff are not always aware of the need to recognize augmentative and alternative communication — tools that supplement or take the place of speech. She said non-verbal patients frequently have their need for assistive technology questioned or ignored, or watch in frustration as medical staff address remarks to a support person rather than directly to the patient.

The issues are compounded, she said, for those living in poverty and without access to technology and other supports.

Both Janz and Borden feel Canadian governments should emulate the state of California, which recently broadened its restricted list of visitors allowed inside during the pandemic to include support people for patients with physical, intellectual and developmental disabilities.

“Communication is a human right,” Borden said. “What we want is an acknowledgment that that is also true for disabled people, and it should be across the board.”

Advocates said there are currently no uniform standards to follow in Canada, leaving hospitals free to develop their own policies.

Barbara Collier, executive director of Communication Disabilities Access Canada, said that has to change. She said health-care facilities across the country should be given direction on everything from establishing a patient’s communication needs during intake to policies around support workers, adding these long-standing gaps take on additional urgency as the COVID-19 pandemic continues to unfold.

“This should have been in place years ago,” she said.

The federal ministry responsible for disability inclusion did not immediately respond to request for comment.

The Public Health Agency of Canada released a document on Thursday addressing various aspects of the COVID-19 pandemic and their impact on disabled Canadians. It said health-care providers should be “ensuring that restrictions account for people with disabilities’ needs and allow essential support staff, sighted guides, interpreters and/or family members to be with them.”

The Ontario Ministry of Health confirmed it can only issue guidance to hospitals, which are described as corporations with autonomy to set their own policies.

Current directives from provincial public health officials urge health-care providers to limit visitors to just four narrow categories, none of which address the communication needs of disabled patients.

But a spokeswoman said the ministry will be “reviewing the current directives and guidance that have been issued to the health system” as the province continues to monitor the COVID-19 outbreak.





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The AODA Alliance Calls on TVO to Take Prompt Action to Fix its Educational Web Content’s Accessibility Problems – and Other COVID Disability News


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

The AODA Alliance Calls on TVO to Take Prompt Action to Fix its Educational Web Content’s Accessibility Problems – and Other COVID Disability News

May 7, 2020

          SUMMARY

As part of its emergency plans for supporting K-12 students while schools are closed due to the COVID-19 crisis, the Ford Government announced that it has partnered with TVO, the Government-owned educational TV network. However, the AODA Alliance has revealed that there are accessibility problems with some of TVO’s educational web content. These hurt students, teachers and parents with disabilities who need accessible web content. We have called on TVO to fix this and to let us know about its plans for this.

On April 27, 2020, the AODA Alliance sent an email to TVO asking some basic questions about its efforts to ensure the accessibility of its educational web content. We set out that email below.

TVO answered us on May 5, 2020, after we had raised concerns about this issue in our May 4, 2020 virtual Town Hall event, in media interviews, and on social media. Below we set out the May 5, 2020 email we received from TVO’s digital content vice president.

We have serious concerns with TVO’s response. We described our concerns in our May 7, 2020 email to TVO’s digital content vice president, which we also set out below. We therefore ask TVO for clear answers to several specific and important questions and urge TVO to dig into this issue and get it fixed.

We also set out below an excellent news article about our May 4, 2020 virtual Town Hall. It appeared in the May 5, 2020 edition of QP Briefing. QP Briefing is an influential publication about key issues and events at Queen’s Park.

Please encourage teachers, parents, school board staff and anyone else you can to watch the archived video of the May 4, 2020 virtual Town Hall that the AODA Alliance and Ontario Autism Coalition organized. It shares practical tips on how to meet the urgent learning needs of students with disabilities during the COVID-19 crisis. Post the link on your Facebook page, on Twitter and on any other social media you use! It is https://www.youtube.com/watch?v=phdtibf5DbM

We are delighted that in under three days, our May 4, 2020 virtual Town Hall has already gotten over 800 views! We have asked the Ministry of Education to circulate this link to school boards and to post it on the Government’s Learn at Home website that shares useful resources for teachers and parents while students must learn at home due to the COVID-19 crisis.

Send us your feedback. Write us at [email protected]

          MORE DETAILS

 April 27, 2020 Email from AODA Alliance Chair David Lepofsky to TVO

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

Email:

[email protected] Visit:

www.aodalliance.org Twitter: @aodaalliance

April 27, 2020

To: TVO Ontario

Via email: [email protected]

The Ontario Government has announced that it has partnered with TVO to provide resources to parents and teachers of school-age children who have to undertake distance learning due to the COVID-19 crisis. Resources for parents and teachers is available at https://openhouse.ilc.org/

It is vital that this educational content is fully accessible to all students with disabilities. This is especially important during the COVID-19 crisis, when students must rely on remote learning.

TVO is an emanation of the Ontario Government. The Ontario Government has said that it is leading by example on accessibility for people with disabilities and is taking an “all of government” approach to accessibility. Over one third of a million students in Ontario are students with special education needs and the vast majority of them have disabilities. As many as one of every six students in Ontario-funded schools have disabilities.

We would like to know if TVO considers all its online courses to be fully accessible to students with disabilities ? This does not simply mean that they comply with accessibility standards enacted under the Accessibility for Ontarians with Disabilities Act . Those standards in a number of ways fall short of what is required by the Ontario Human Rights Code, which guarantees equality without discrimination based on disability in areas like education. For example, the 2011 AODA Information and Communication Accessibility Standard does not effectively address accessibility based on technological developments in the past decade.

What has TVO done to ensure that these online courses are all fully accessible to students, parents and teachers with disabilities? Could you please let us know which of these courses and other online learning resources have captioning for parents, teachers or students with hearing loss, and which have audio description of their visual content for parents, teachers or students with vision loss. For parents, teachers and students with vision loss, reading a program’s transcript (even with description of visual features) is not the same as or as good as watching a program with audio description.

During the COVID-19 crisis, teachers, students and parents are now struggling to find online teaching resources that are accessible to students with disabilities. Can you let us know where on your website a parent, teacher or student can go to quickly ascertain which TVO website content (such as these online courses) is available with captioning and/or audio description, and/or with other accessibility features? For example, we cannot find a link enabling a teacher, parent or student easily search to ascertain which of the TVO online courses have full accessibility, and which, for example, include full captioning and audio description.

Does TVO make available over-the-phone or online help from someone with knowledge about accessibility, for teachers, parents or students with disabilities who need help ensuring that they can use the educational content that TVO offers online? If so, how do they obtain this help? Finally, can you let us know who has lead responsibility and authority for ensuring the full accessibility of TVO educational and programming content, and what process is in place ensure its accessibility. Given the urgency of the situation facing students, parents and teachers with disabilities, we would very much appreciate an answer to our inquiry as soon as possible.

Sincerely,

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

May 5, 2020 Letter to AODA Alliance Chair David Lepofsky from Rashmi Swarup, TVO Vice President Digital Learning

Hi David,

Your note was forwarded to me by our customer service department. Thank you for reaching out, and my apologies for the delay in responding.

I appreciate you contacting us with your questions and to share your thoughts, particularly as we continue to evolve our digital learning resources and content to make them even more accessible for Ontarians.

TVO prides itself in being able to meet a wide variety of the educational needs Ontarians have, and we take care to ensure our approach and policy reflects this objective. We are continuously working to improve the accessibility of our content and resources.

Our videos on tvo.org, tvokids.com and in most of our ILC courses have closed captioning and described video or a DV text alternative (although in some cases where the program is an acquisition there may be a delay in posting the closed captioning and descriptive video while these elements are being created).

While YouTube does not support descriptive video audio or text, we do ensure that captions are present on all of our YouTube channels.

Our TVO ILC courses, including courses accessed through ILC Open House, have been created to meet the accessibility needs of students according to the AODA, and we ensure the course content supports both PC and Mac operating systems as well as a variety of screen readers.

Many of our newer courses offer the ability to choose from a variety of content formats (e.g video and/or article options for study) and assignment options to better cater to individual student needs. As we continue to evolve and update our courses, we are increasingly offering students the ability to choose from a variety of formats. We also ensure that there are transcripts for all of the audio in our TVO ILC courses.

We are proud to offer students completing courses through TVO ILC access to subject-specific academic support through academic advisors and to guidance counsellors who can support individual needs, all of whom are Ontario Certified Teachers.

While I appreciate that our efforts to make our content accessible to as many Ontarians as we can may not meet the level you would propose, please know that we continue to strive for improved accessibility of our digital learning resources for Ontarians.

Thank you again for your letter and feedback. If you have any additional questions, do not hesitate to reach out to me directly.

Sincerely,

Rashmi Swarup

Vice President Digital Learning

647.203.0979

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May 7, 2020 Email from the AODA Alliance to the Vice President of TVO

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

Email: [email protected]

Visit: www.aodalliance.org

Twitter: @aodaalliance

May 7, 2020

To: Rashmi Swarup

Vice President Digital Learning

Via email: [email protected]

Thank you for your May 5, 2020 email that responds to our April 27, 2020 email and for your invitation to reach out to you if we have any further questions. We do. Our April 27, 2020 email inquired into the accessibility of TVO online learning content to students, teachers and parents with disabilities who need adaptive technology to use a computer.

We have serious concerns about accessibility problems with TVO’s educational online content for students, teachers and parents and about your May 5, 2020 answers to our inquiries. We seek your leadership as TVO’s digital content vice president to get these problems promptly solved.

We ask what TVO will do now to quickly address serious accessibility problems with its online content, given your web content’s increased importance for K-12 education during the COVID-19 crisis. The Ontario Government publicly emphasized that it partnered with TVO to provide online educational content for K-12 students during the COVID-19 crisis. The Government’s “Learn at Home” website, a central hub of the Government’s offerings for parents, teachers and students, points to TVO web pages and resources, among other things.

Yet a rudimentary check of some of TVO’s educational online content quickly revealed significant and obvious accessibility problems. We don’t say that TVO has done nothing about online accessibility or has included no accessibility features at all. Where accessibility features are included, we commend this.

However, what TVO has done on the web accessibility front falls far short of what students, teachers and parents with disabilities need to effectively use TVO’s educational offerings. Among the various people with disabilities that these online barriers can hurt are people with vision loss, people with reading disabilities such as dyslexia, and people who need to use alternative technology instead of a keyboard and mouse to interact with a computer.

In the limited time we had available, just a few examples of these accessibility problems were described at the May 4, 2020 virtual Town Hall on the impact of the COVID-19-19 crisis on students with disabilities organized by the AODA Alliance and the Ontario Autism Coalition. We invite you and all TVO’s digital content staff and contributors to watch that virtual Town Hall.

Our Town Hall’s guest speaker on this topic, Ms. Karen McCall, has expertise in digital content accessibility. She explained that it took her very little time to discover these accessibility problems. If Ms. McCall could find those problems so quickly, it should have been easy for TVO or the Ministry of Education to do the same. Given the problems found in this limited review, it is our experience that one could expect an extensive audit to reveal additional problems.

Your email suggests that you believe that TVO’s educational web content complies with AODA (Accessibility for Ontarians with Disabilities Act) requirements. The deficiencies that we discovered with TVO’s educational web content call that into question. In any event, as our April 27, 2020 email to you explained, TVO and the Ontario Government must obey the typically-stronger accessibility requirements in the Ontario Human Rights Code. It cannot simply fall back on the weaker AODA accessibility standards on point, passed nine years ago, as if those were the only accessibility laws that govern here. Moreover, as an Ontario Government-owned public education network, we hope and trust that TVO knows that a Government-appointed Standards Development Committee has been reviewing those accessibility standards for some 2-3 years. Last year it circulated draft recommendations that would call for the 2011 AODA Information and Communication Accessibility Standard to be strengthened and modernized. For more background on the need to strengthen the 2011 Information and Communication Accessibility Standard, visit our accessible information and communication web page.

In light of our preliminary check of TVO’s educational web content, we are troubled by your May 5, 2020 email. It appears that you may not be fully aware of the extent of the problem. You wrote in part:

“While I appreciate that our efforts to make our content accessible to as many Ontarians as we can may not meet the level you would propose, please know that we continue to strive for improved accessibility of our digital learning resources for Ontarians.”

We are also quite concerned that you, TVO’s vice president of digital content, said in your email that it is your understanding that Youtube cannot support audio description for Youtube video content. You wrote:

“While YouTube does not support descriptive video audio or text, we do ensure that captions are present on all of our YouTube channels.”

This statement about including audio description in videos to be posted on Youtube is incorrect. It is quite possible to post content on Youtube that has been created with audio description included. Moreover, after reading your email, it took about 30 seconds and one Google search to find a link to online resources on how to add audio description to a Youtube video. We invite you to do a Google search on the terms “Youtube” and “audio description.”

In our April 27, 2020 email, we asked you if TVO makes available over-the-phone or online help from someone with knowledge about accessibility for teachers, parents or students with disabilities who need help using TVO’s online educational content. We also asked how they can get this help.” You responded:

“We are proud to offer students completing courses through TVO ILC access to subject-specific academic support through academic advisors and to guidance counsellors who can support individual needs, all of whom are Ontario Certified Teachers.”

Can you please let us know how many of these TVO advisors are trained and equipped to assist students, teachers or parents with disabilities if they encounter accessibility problems with your online content, where on your website it might indicate that such accessibility help is available, and how someone can reach a TVO person with that accessibility expertise?

As well, in our April 27, 2020 email we asked you the following:

“Can you let us know where on your website a parent, teacher or student can go to quickly ascertain which TVO website content (such as these online courses) is available with captioning and/or audio description and/or with other accessibility features?”

Your May 5, 2020 email did not answer this inquiry. We could not find this information on TVO’s website. A teacher, looking for audio-described content, would need such information to be able to readily discover what audio-described choices they have among your offerings. We would note that in contrast, Netflix enables a viewer to browse its audio-described content.

Finally, you wrote:

“We are continuously working to improve the accessibility of our content and resources.”

Our April 27, 2020 email asked who has lead responsibility and authority at TVO for ensuring the full accessibility of TVO educational and programming content and what process is in place to ensure its accessibility. Your May 5, 2020 email did not answer this question. We are eager to know who has this responsibility, what staff is allocated to this, and what plans you have in place for the accessibility improvement work that you described as “continuous.”

Given the urgency of these concerns to students, teachers and parents with disabilities who need accessible web content especially now during the COVID-19 crisis, we would welcome your prompt action and response.

Sincerely,

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

CC

Premier Doug Ford

[email protected]

Stephen Lecce, Minister of Education,

[email protected]

Raymond Cho, Minister of Seniors and Accessibility

[email protected]

Nancy Naylor, Deputy Minister of Education

[email protected]

Claudine Munroe, Director of the Special Education/Success for All Branch

[email protected]

Denise Cole, Deputy Minister for Seniors and Accessibility

[email protected]

Susan Picarello, Assistant Deputy Minister, Accessibility Directorate of Ontario

[email protected]

Renu Mandhane, Chief Commissioner, Ontario Human Rights Commission

[email protected]

 QP Briefing May 5, 2020

Some Ontario e-learning doesn’t work for students with disabilities

Jack Hauen

The Ford government’s at-home learning tools require some changes to be fully accessible to students with disabilities, advocates say.

Some TVO and ministry course content isn’t accessible to people with low vision, said Karen McCall, a professor who teaches about accessible media at Mohawk College and owns an accessible design firm. She was one of several experts who spoke at a virtual town hall hosted on Monday by AODA Alliance Chair David Lepofsky, a member of the province’s K-12 AODA standards committee, and Ontario Autism Coalition President Laura Kirby-McIntosh, who is also a high school teacher.

None of the stories in the “math storytime” section worked for McCall, who has low vision herself and uses a screen reader. She couldn’t find any homework in the “homework zone.”

Teachers did a good job of describing what was going on in the videos she watched, until they didn’t, she said. For instance, one math teacher didn’t read out the main formula students were to use.

“She said this formula equates to one quarter, but if I’m a student who’s trying to learn this, I have no idea what equates to one quarter,” McCall said.

Another gap came during a science class. “Everything was fine, everything was explained, until the teacher said, ‘Watch what happens,’ and then did not describe what was happening,” she said.

But the biggest problems came with the ministry of education’s own course preview site, McCall said, where her screen reader couldn’t make heads or tails of what it said.

“If they’re going to rely on this kind of content, they’ve got to make sure it’s properly accessible,” Lepofsky said of the provincial government.

Kirby-McIntosh noted that Zoom is the most accessible streaming service, but some school boards have banned teachers from using it. More top-down direction is needed to avoid these types of errors, she said.

Other experts during the town hall provided tips for educators and parents such as making sure videos were the highest quality possible, so kids with hearing loss can better lip read; and sticking to routines as much as possible, which helps many kids on the autism spectrum.

Education Minister Stephen Lecce has held two meetings with the Minister’s Advisory Council on Special Education (MACSE) during the pandemic, and is also consulting the K-12 standards development committee that Lepofsky sits on, said ministry of education spokesperson Ingrid Anderson.

Lepofsky confirmed that he’ll be speaking with Lecce on Wednesday.

“TVO has been working to make all their online content and resources accessible and compliant to AODA regulations. The Ministry will continue to work with the Agency to consider ways to enhance accessibility beyond the AODA requirements,” Anderson said in a statement. “School boards remain independently accountable for making decisions on the use of digital learning resources and collaboration tools to support students’ learning online.”

The minister’s advisory committee is “no substitute for consulting extensive grassroots disability community participation that is needed,” the AODA Alliance wrote in an April 29 letter to Lecce. A number of positions on the committee remain vacant, the group said. “Also, MACSE is designed to focus on ‘special education’ which is not addressed to students with all kinds of disabilities, due to the Government’s unduly narrow definition of special education students.”

The town hall’s last guest was Jeff Butler, the acting assistant deputy minister of student support and field services in the ministry of education. He pointed to actions the ministry has taken already, like directing school boards to consult with their special education committees and honour individual education plans; as well as working with boards to distribute assistive technology that usually lives in schools to families.

The ministry has also hosted a series of webinars for teachers to learn about special education during the pandemic. About 500 educators have attended them so far, and more are planned, he said.

Responding to McCall’s feedback about sites not working with screen readers, he said: “I absolutely am listening on that and will take that input back. It is important to us that those resources that are there are accessible for students with disabilities and students with special needs.”

He promised to continue to engage with experts, saying that their input has been “incredibly valuable.”

It’s critical for the government to carry these lessons through to when schools eventually re-open, Lepofsky said.

For instance, some students won’t be able to socially distance or wear masks due to their disabilities, if they require a close by aide or are hypersensitive to touch. “We can’t tell those kids, ‘Oh, sorry kid, you stay home, everybody else is going back to school.’”

A “surge” in education hours will be needed for some kids with disabilities, who will have fallen further behind some of their peers, Lepofsky said, giving the example of kids learning to read braille who require hand-over-hand instruction that’s impossible to conduct online.

“This is really something we can’t leave to every single school board again to try to reinvent the same wheel,” he said, calling for the provincial government to “take on leadership here.”

Kirby-McIntosh ended the stream with a message for Lecce: don’t just assemble a “spiffy webpage with a blizzard of links,” but consult with experts and provide school boards with top-down direction on best practices.

“Please learn from this town hall,” she said, and gather ideas from the front-line people teaching kids with disabilities during the pandemic.

“The premier committed at the beginning of this crisis to protecting those who are most vulnerable,” she said. “Well, surely a third of a million Ontario students with disabilities are among those most vulnerable.”



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