July 31, 2008

Coleman's IQ Defense

Rich Coleman, Minister of Housing and Community Development, has been busy with damage control over his decision to reintroduce an IQ requirement in order to be considered as having a "developmental disability".

Community Living British Columbia, the crown agency responsible for $687 million to assist those who are developmentally disabled, published its newsletter on July 30th without saying a single word about the government's unilateral decision to reinstate a test of IQ 70 for eligibility. The newsletter included an interesting letter from Coleman. He wrote:

"First and foremost, I want to assure all individuals and families there will be no disruption in services for adults with developmental disabilities as responsibility for the programs transfer to the new ministry. … I am proud to be part of a change that will create numerous opportunities in the way we deliver services to adults with developmental disabilities."

Coleman is technically correct in that no adults currently receiving services will be denied services as a result of the Campbell government's decision to introduce a maximum IQ requirement of 70 for eligibility, because they have IQs under 70, that being the policy before the current regulation to the Community Living Authority Act was adopted.

On July 18th a cabinet order introduced a new section 2.1 which said:

"For the purposes of the definition of "developmental disability" in section 1 of the Act, intellectual functioning that, when tested according to one or more standardized intelligence tests by a qualifying practitioner, attains a score of 70 or less is a prescribed criterion."

The Act defines "developmental disability" as meaning significantly impaired intellectual functioning that:

(a) manifests before the age of 18 years,
(b) exists concurrently with impaired adaptive functioning, and
(c) meets other prescribed criteria;

The new regulation added the criterion of an IQ of 70 or less under "other prescribed criteria". Coleman has been busy with letters to the editor and talk show appearances doing damage control on the Campbell government's mean spirited approach to dealing with those who are developmentally disabled. He insists that the IQ test simply put in regulations what previously existed in policy, and that the regulation is only a temporary measure until the government comes up with a better definition.

The previous policy which called for an IQ test of 70 or less was challenged in the BC Supreme Court when a young adult, Neil Fahlman, was denied assistance after turning 19. On March 22, 2006, The Honourable Mr. Justice Chamberlist wrote: "In conclusion I am satisfied that utilizing its own determination of appropriate IQ cutoff criteria the Board has denied Neil important benefits in the absence of any legislative authority and also without considering the merits of Neil's case, which included the recommendation of its own expert, being Dr. Burnside, that he receive continued benefits."

The Campbell government could have accepted that decision and worked to develop a definition of developmentally disabled that did not depend on IQ, but it instead decided to appeal the decision of the BC Supreme Court. On January 9, 2007 the Court of Appeal for British Columbia ruled in favour of the original decision by BC's Supreme Court; however, it essentially provided the government with instructions on how to amend the regulations so as to continue to apply the IQ test. In paragraph 35 the Appeal Court said IQ level cannot be determinative of the existence of "significantly impaired intellectual functioning"; however it paragraph 55 it said:

In the instant case, had the legislature intended IQ to be partially determinative of "significantly impaired intellectual functioning" and, therefore, "developmental disability", it could have invoked s. 29 of the Act. Namely, the Lieutenant Governor in Council could have specifically prescribed the IQ threshold as an additional criterion "for the purpose of paragraph (c) of the definition of 'developmental disability' in section 1".

On July 18th the Lieutenant Governor in Council, the cabinet, did precisely what the judge noted; it passed an order in council making the IQ threshold an additional criterion for in the definition of developmental disability. It could have used the last two years since the original court decision to develop an alternative. That is why advocates find it hard to believe that the reintroduction of the IQ criterion is "an interim measure".

According to the annual report (page 20) for Community Living, "CLBC provides services to 11,407 adults, 31% of an estimated 36,950 adults (based on the accepted prevalence rate used in developmental disability) who may meet the definition of developmental disability." It looks like the Campbell government reintroduced the IQ of 70 criterion so as to keep more than 25,000 people who may need benefits from getting them, not to mention depriving some of those who receive benefits as children from continuing to receive them after they turn 19.