Alberta won't fix eligibility rules ombudsman says are 'unfair' to people with disabilities

Alberta's social services minister says the government plans to keep program eligibility rules the province's ombudsman says are "unreasonable and improperly discriminatory" to people with disabilities.

Seniors, Community and Social Services Minister Jason Nixon said on Tuesday his government has no intention of moving away from using intelligence quotient (IQ) testing to determine if applicants are eligible for the Persons with Developmental Disabilities (PDD) program.

"That is the program that we run," Nixon told reporters at the legislature. "It's successful. And we will continue to make sure that PDD continues to serve Albertans who need it for decades to come."

In a report made public on Tuesday, Ombudsman Kevin Brezinski said the PDD program must reconsider a 21-year-old man's application for benefits after unfairly denying him based on the man's IQ test score.

Brezinksi's report said Janice Zenari contacted his office in 2022 after her adult son, Evan, was denied PDD benefits. The report said her son was born with developmental disabilities and autism spectrum disorder. A capacity assessment determined that Evan will always need help from other adults to make major life and financial decisions.

Nixon said the government will not reconsider Evan Zenari's application, and that "the ombudsman is entitled to his opinion."

Brezinski said the government has been aware of this pitfall for more than a decade since a court ruled in 2013 that a woman was unfairly denied benefits based on her IQ test score.

Alberta Ombudsman Kevin Brezinski said the government's Persons with Developmental Disabilities (PDD) program must reconsider a 21-year-old man's application for benefits after unfairly denying him based on the man's intelligence quotient test score. (Submitted by Alberta Ombudsman)

"This, unfortunately, has been going on for way too long," Brezinski said in a Tuesday interview.

The ombudsman said his investigation found the ministry of Seniors, Community and Social Services has reviewed the relevant regulation three times since the 2013 court decision, yet failed to fix the problem.

Furthermore, the majority of people consulted in a 2018 review of the PDD program said they wanted the eligibility criteria changed, because not everyone with an IQ over 70 is able to safely complete daily living tasks on their own.

The PDD program provides financial benefits and programs to adults with developmental disabilities who need help with daily living, finding employment, or who have specialized needs.

The province spent more than $1 billion on the program in 2022-23, which funded around 12,900 adults with developmental disabilities, according to the ministry's annual report. This year's budget is about $1.2 billion.

A regulation that spells out eligibility for the program says an adult must have an IQ score of 70 or lower, which is two standard deviations below average, or the person is unable to complete the test.

Although Evan Zenari's IQ was measured at 79, the psychologist who assessed him said that overall score did not paint an accurate picture, because his deficits were more substantial on some parts of the test.

After Evan Zenari was denied PDD, his mother, Janice Zenari, appealed the decision. A hearing panel concluded his IQ score was unreliable, but said panel members were powerless to change the ministry's decision.

Brezinski called it a "no-win situation," and recommended the ministry revisit Zenari's case.

He said at least four other families have contacted his office in the last few years with the same complaint — that an IQ test result disqualified a person with disabilities from PDD benefits. In some of those cases, the government later granted benefits, pointing to inconsistent standards, he said.

Brezinski recommended immediately amending the rules so the government would assess PDD applicants by current psychological standards.

In an interview, Janice Zenari said her son is floundering without the kind of programming that could help him find long-term employment.

"He's lost a lot of his of confidence," she said. "He gets bouts of depression. It's really affected his mental state and his emotional well-being."

Zenari wonders how Evan will cope in the future when she is gone. For example, Evan would struggle to explain where to get picked up for a ride, or know how to catch a bus on schedule, she said.

"Will he become homeless?" she said. "He becomes such high risk without support that you don't even want to think what may happen. It's it's very sad."

Judge ruled in 2013 regulation was unfair

An Alberta Court of Queen's Bench judge ruled on a similar case in 2013 of a woman with autism denied PDD benefits because her full-scale IQ result was too high.

In that case, the judge said an appeal panel wrongly denied the woman benefits because of her unreliable IQ test result, and called the legislation "flawed."

Brezinski's report called the government's inaction since that court ruling "unreasonable and unfair to vulnerable Albertans."

The College of Alberta Psychologists also told ombudsman investigators that it's outdated practice to rely on IQ tests alone when determining how functional a person on the autism spectrum would be while living independently.

Nixon told reporters ministry staff do rely on criteria other than IQ to determine program eligibility.

NDP MLA Marie Renaud is the critic for community and social services. (Janet French/CBC)

NDP Leader Rachel Notley said the minister is ignoring experts who have been saying it would be better to assess a person's ability to live and work independently than rely on IQ.

"This is classic UCP," Notley told reporters in the legislature Tuesday. "Let's find a way to save money at the expense of the very most vulnerable people within our community and within our society."

At a news conference earlier on Tuesday, NDP community and social services critic Marie Renaud said since elected in 2019, the UCP government has applied the PDD eligibility rules rigidly to save money. She said it costs more if people with developmental disabilities end up in the health-care system or jail.

Zenari said she hopes the government makes its policy more equitable for other families in the same situation.

"I hope they give the vulnerable people the rights that they deserve," she said. "They deserve the right to live like anybody else and have the opportunities as anybody else."