D.H. v. L.H., 2013 ABQB 197

Court of Queen ’ s Bench of Alberta Citation: D.H. v. Persons with Developmental Disabilities, South Region Community Board, 2013 ABQB 197 Date: 20130403 Docket: 1203 14599 Registry: Edmonton Between: D.H. and L.H. Applicants - and - Persons With Developmental Disabilities, South Region Community Board and Persons With Developmental Disabilities Appeal Secretariat Appeal Panel Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice V.O. Ouellette _______________________________________________________ I.

Summary [ 1 ] This is an application for judicial review of a decision of the Appeal Panel under the Persons with Developmental Disabilities Community Governance Act , RSA 2000

chapter P-8. The Appeal Panel dismissed the appeal of J.H. and her parents, D.H. and L.H.. The judicial review was heard on February 15, 2013 and the Court rendered its decision orally on that day. The decision of the Appeal Panel was quashed and remitted the matter for a new hearing with direction. All of the parties requested that the Court render its decision in writing. This is the written decision. The Court reserved the right to amend, vary or delete any or all of the oral reasons given on February 15, 2013.

The parties were also informed that this written decision would not repeat the oral reasons provided in relation to the applicable standard of review which was determined to be reasonableness.

II. Issue [ 2 ] Did the Appeal Panel ere in its

interpretation of the Regulations and guidelines regarding persons with developmental disabilities? III.

Facts [ 3 ] On August 26, 2011, D.H. and L.H. applied for funding supports on behalf of their adult daughter, J.H. (born January 29, 1994) in accordance with the Persons with Disabilities Community Governance Act and the Developmental Disabilities Regulation , AR 183/209. [ 4 ] The Developmental Disabilities South Region Community Board denied J.H.’s application on October 12, 2011 on the basis that she was not eligible for persons with developmental disabilities (PPD) supports because she did not meet the eligibility criteria of having a significant limitation in intellectual capacity. [ 5 ] The decision of the Community Board was appealed to the Appeal Panel, who upheld the Community Board’s decision on February 15, 2012. [ 6 ] Both the Community Board and the Appeal Panel have agreed that J.H. has a lifelong diagnosis of developmental disability with severe learning disability (autism) and that she will continue to require supports in order to function appropriately in the community throughout her life.

As a result of J.H.’s disabilities, she had been receiving and was eligible for supports through the Family Support for Children with Disabilities, which were provided. However, this function ceased upon J.H. attaining the age of 18. [ 7 ] In order to continue to receive PPD supports as an adult, J.H. is required to meet all of the eligibility criteria provided for in the Act .

In that regard, both the Community Board and the Appeal Panel found that, as an adult, J.H. met all of the requirements of having a state of functioning that began in childhood and that it was characterized by significant limitation in adaptive skills. However, both the Community Board and Appeal Panel found that J.H. did not have a significant limitation in an intellectual capacity. [ 8 ] J.H. has undergone several types of assessments throughout her life.

The Appeal Panel confirmed that in 1998, she was diagnosed with autistic disorder and subsequently classified in the education system as “severe physical or medical/neurological disability, including autism”. The Appeal Panel went on to find that J.H. has received supports throughout her life which have greatly benefited her in her daily living.

The Appeal Panel also found that although she was now 18 years of age, she was functioning as a 9 year old. [ 9 ] The Appeal Panel relied on a psychological-educational assessment report dated June 28, 2011, which provided a full scale intellectual quotient (FSIQ) of 75, thereby not meeting the requirements of having a significant limitation in intellectual capacity because J.H.’s FSIQ score was not two standard deviations below the mean which would require a score of 70. IV.

Legislation & Regulations [ 10 ] S. 1(1) (c), the Persons with Developmental Disabilities Community Governance Act provides the following definition of developmental disability:

Developmental disability means a state of function that (

i) began in childhood, and (ii) is characterized by significant limitation, described in the Regulations, in both intellectual capacity and adaptive skills. [ 11 ] The Developmental Disabilities Regulation , 183/209 provides the following definition of intellectual capacity in s. 3: 3(1) In the case of a service applied for on or after August 1, 2009, a significant limitation in intellectual capacity is an intellectual capacity that (

a) on a full-scale score is 2 standard deviations or more below the mean for a standardized intellectual assessment, or (

b) is so diminished the individual is unable to complete a standardized intellectual assessment as determined in accordance with the Developmental Disabilities Guidelines published by the Minister as amended from time to time. [ 12 ] The relevant portions of the Developmental Disability Guidelines as published by the Minister are as follows: A significant limitation in intellectual capacity is an intellectual capacity that:

a) on a full-scale score is 2 standard deviations or more below the mean for a standardized intellectual assessment, ... ... This document articulates the guidelines established by the Minister, which are to be used in applying the regulation. These guidelines apply to all individuals who apply for PDD supports and services as of the coming into force date for the regulation.

Part 1: Significant limitation in Intellectual Capacity ∙ The test must be a recognized standardized intelligence quotient (I.Q.) tool consistent with the Professional Guidelines for Psychologists - The Control and Use of Tests by Psychologists published by the College of Alberta Psychologists. ... ∙ The full-scale score of the I.Q. test must be two standard deviations or more below the mean, using a confidence interval of 95% while considering the standard error for measurement (SEM) for the specific assessment instruments used, and the instrument’s strengths and limitations. ... [ 13 ] As it relates to how significant limitation and intellectual capacity and adaptive skills are determined, the Guidelines reiterate the wording of the Regulation regarding intellectual capacity.

The guidelines go on to state that they are to be used in applying the Regulation. Further, that the guidelines apply to all individuals who make applications for PPD supports.

[ 14 ] In discussing significant limitation and intellectual capacity, the guidelines state the following regarding the full scale score of the IQ: The full scale score of the IQ test must be to standard deviations or more below the mean, using a confidence interval of 95% while considering the standard error for measurement (SEM) for the specific assessment instruments used, and the instrument’s strengths and limitations. [ 15 ] The guidelines go on to define which types of tests will be recognized: The test must be a recognized standardized intelligent quotient (I.Q.) tool consistent with the Professional Guidelines for Psychologists - The Control and Use of Tests by Psychologists published by the College of Alberta Psychologists. [ 16 ] The Professional Guidelines for Psychologists - The Control and Use of Tests by Psychologists provides direction and guidelines as it relates to the

interpretation of test scores. The guideline reads as follow: The

Interpretation of Scores: Psychologists should avoid using a single test score as the sole determinant of decisions about test takers and interpret test scores in conjunction with other information about individuals. Psychologists will use tests developed for screening purposes only for identifying test takers who may need further evaluation. Results of screening tests alone should not be used to make any decision about a person, unless adequate reliability and validity for those other uses can be demonstrated. V.

Position of the Parties [ 17 ] It is H.’s position that the Appeal Panel has misinterpreted the Regulations and the Guidelines as it relates to intellectual capacity, and that the Regulations and Guidelines provide for discretion to the Appeal Panel. Further, that the Appeal Panel specifically failed to consider the test instrument’s strengths and limitations. Also, that the Appeal Panel failed to exercise its discretion by finding that it was limited to a strict consideration of a numerical value of J.H.’s FSIQ score alone, as opposed to considering the validity of the score itself in J.H.’s particular case.

Lastly, the H.’s argue that the Appeal Panel’s decision is not reasonable nor justifiable, both on the facts that were available before it and its application of the law regarding the

interpretation of the statute itself. [ 18 ] It is the Respondent’s position that the language of the Regulations and Guidelines are mandatory and as a result, neither the Community Board nor the Appeal Panel has any discretion whatsoever. Specifically, there is no provision in the Regulations or guidelines that allows any discretion to the Community Board or the Appeal Panel to determine intellectual capacity. Lastly, that the decision of the Community Board and the Appeal Panel is within the range of reasonable outcomes and is justifiable and defensible. VI.

Analysis [ 19 ] As stated above, there is no dispute on the facts, however, in order to properly understand the following analysis, some of the facts need to be repeated. J.H. was administered an IQ test in June, 2011. Her FSIQ score came in at 75 with a 95% confidence interval of 71 to 81.

[ 20 ] The Appeal Panel decided at paras 44 and 45 of its decision that on the plain wording of the Regulation, the Appeal Panel had no discretion in relation to its

interpretation that they had to rely on the requirement that the assessment be based on a full scale score.

The Board went on to say the following at para. 45: Since the appellant’s full scale IQ score is not to standard deviations or more below the mean using a 95% confidence interval, the Panel finds she does not have a “significant limitation in her intellectual capacity” as defined under the PDD Act, Regulation and guidelines. [ 21 ] The psychological educational assessment report in question (tab 11D of the certified record of proceedings) is signed by Anna Schlosser, a provisional psychologist, and Paul Jerry, registered psychologist.

This assessment report was supplemented by Paul Jerry in a letter dated February 16, 2012 (tab 20B of the certified record of proceedings). [ 22 ] In relation to the supplemental followup report of Dr.

Jerry, the Appeal Panel stated the following at para. 20: A registered psychologist, asked to provide his expert opinion on the point discrepancy between the Appellant’s scores on the Verbal Comprehension Index and Perceptual Reasoning, states: ∙ Table B.1 of the Canadian Manual for the WAIS-IV lists the differences in scores; for the Appellant’s age, any scores between any of the four indices that range from about 11 to 14 points would be significant and invalidate the Full Scale IQ score; ∙ Table B.2 of the same manual shows that to be unusually large, the split needs to be 23 points; ∙ the Appellant’s split of 34 points between her Verbal and Perceptual IQ makes it an anomaly with less than 1% likelihood that it is an artifact of the test or the testing process; and ∙ when you have extreme variations in index scores, the full-scale IQ’s weighted average becomes meaningless. [ 23 ] Further, in relation to the IQ test itself, the Appeal Panel said the following: A June 28, 2011 Psychological-Educational Assessment Report using the Wechsler Adult Intelligence Scale - Fourth Edition (WAIS-IV) notes: ∙ the 36 point difference between the Appellant’s extremely low range Verbal Comprehension Index of 60 percentile (range of 56- 68 percentile using a 95% Confidence Interval) and her average range Perceptual Reasoning (Non Verbal) Index of 94 percentile (range of 88-101 percentile using a 95% Confidence Interval) stating her overall cognitive ability cannot easily be summarized because of this significant difference in abilities; ∙ it is difficult to summarize her overall intelligence with a single score because of her unique set of thinking and reasoning abilities; and ∙ of the Appellant’s four Composite Scores, three of them noted that the degree in variability in the subtests composing them is unusual and worthy of further investigation as well as looking closer at her performance on the individual subtests. [ 24 ] The Appeal Panel stated that J.H.’s score was not two deviation points below the mean, which would require a score of 70. [ 25 ] At para. 44 of the decision, the Appeal Panel refers to the other information and evidence it had before it, including finding that where there is a significant difference between verbal and non-verbal scores, a full scale score may not provide a true picture of an individuals intellectual abilities.

Yet, at para. 45, the Appeal Panel said, in essence, that their own observations as noted in para. 20, 23 and 44 were irrelevant because they were still left with an FSIQ at 75, or 71 to 81, and as a result had no choice but to deny J.H.’s application for benefits.

[ 26 ] The decision of the Appeal Panel is not justifiable nor defensible for the reasons that follow. [ 27 ] It is clear that the Appeal Panel stopped and limited its decision process in applying the guidelines to specifically looking whether the IQ result was two standard deviations or more below the mean using a confidence interval of 95%. The Appeal Panel did in fact refer to the Regulations and guidelines as stated in para. 12 of their decision.

The problem is that the Appeal Panel did not actually consider the testing instrument’s strengths and limitations even though they clearly made reference to them in para. 12 of their decision. [ 28 ] The language of the guidelines is mandatory, especially having regard to the use of the word “must” as it relates to the test and the consideration to the test instrument’s strengths and limitations.

Even though the Appeal Panel clearly understood and enumerated what were clear limitations or weaknesses in the testing as they identified in paras. 20 and 23 of their decision, they still proceeded to not question the raw FSIQ score of 75. [ 29 ] Therefore, what this means is that although they laid out the requirements of the Regulations and the guidelines, they actually didn’t apply them. The guidelines clearly require the Appeal Panel to consider the strengths and limitations of the testing instruments.

Further, the guidelines require that their use be consistent with the Professional Guidelines for Psychologists - The Control and Use of Tests by Psychologists.

The guideline states: “The test must be a recognized standardized intelligent quotient (IQ) tool consistent with The Professional Guidelines for Psychologists - The Control and Use of Tests by Psychologists published by the College of Alberta Psychologists.” [ 30 ] Although the Appeal Panel was clearly aware of the guidelines requirement that the IQ tests be consistent with The Control and Use of Tests by Psychologists (para. 12 of the decision - first bullet), it makes no reference nor comment as to what is contained in The Professional Guidelines for Psychologists - The Control and Use of Tests by Psychologists.

A review of the certified record of proceedings also appears to show that the Appeal Panel only had before it the guidelines and not the Control and Use of Tests by Psychologists as can be seen in tab 10F in the certified record of proceedings. [ 31 ] The Control and Use of Tests by Psychologists (found at tab 17 of the appellant’s brief) provides that a single test should not be the sole determinant regarding the

interpretation of a test score result. The

interpretation of scores reads as follows: “Psychologists should avoid using a single test score as the sole determinant of decisions about test takers and interpret test scores in conjunction with other information about individuals.” (Emphasis added) [ 32 ] In this case, even though the Appeal Panel was aware of the other information about J.H.’s intellectual capacity (para. 20, 23 and 44 of the decision), which would have assisted in ensuring reliability and validity of the testing, it found that it couldn’t consider it. I find that the Appeal Panel’s

interpretation as to its lack of ability to consider other information is incorrect. [ 33 ] The Guidelines and the Professional Guidelines for Psychologists - The Control and Use of Tests by Psychologists are mandatory. What is clear and unambiguous from a plain reading of the guidelines and the Control and Use of Tests by Psychologists is that FSIQ scores are subject to scrutiny. This means that there is a specific requirement to look at and consider the strengths and limitations in each individual case.

Further, that it is not usually sufficient to simply rely on one test without considering other information, to properly determine the reliability and validity of the testing. The plain wording of the Control and Use of Tests by Psychologists specifically states that the test scores should be in conjunction with other information about the individual. [ 34 ] What this means to me is that it is the obligation and duty of the Appeal Panel to determine the reliability and accuracy of the FSIQ that is before it.

This requires the Appeal Panel to make a determination as to reliability and accuracy of the test before it. [ 35 ] In this case, the Appeal Panel ignored all questions relating to the reliability and accuracy and simply decided the issue of eligibility on the basis of the raw score that was in the June 2011 psychological-educational assessment. They did this notwithstanding their own observations of this test result’s shortcomings as they outlined in the decision at para. 20 and 23.

[ 36 ] The error of relying on the June 2011 report, notwithstanding the unreliability or validity as noted in paras 20 and 23, was compounded by the Appeal Panel in ignoring the following statement made by Paul Jerry (the registered psychologist in the initial report of June 2011).

The psychologist stated the following (follow up report dated February 16, 2012, tab 20B of the certified record of proceedings, p.2, 1 st para., last sentence): “Because of the extremity of these values, Anna was correct in saying that we cannot take the FSIQ as a reliable and accurate measure of your daughter’s overall ability.” (Emphasis added) The follow up report also stated at page 1: “When you have extreme variations in index scores (as is the case with J.H.), the FSIQ’s “weighed average” becomes meaningless .” (Emphasis added) [ 37 ] It was agreed by all parties that the members of the Appeal Panel were not experts nor psychologists and I agree.

It is therefore an error and unreasonable and not justifiable or defensible for an Appeal Panel to rely on a test score when the person who has provided that test score has clearly indicated that it is not reliable or accurate. The registered psychologist, in providing this opinion, is clearly following the mandated Control and Use of Tests by Psychologists, when he states that the single test has to be interpreted in conjunction with other information about the particular individual.

Further, that the use of the test alone should not be relied upon unless there has been adequate reliability and validity demonstrated. In this case, the Appeal Panel was told that the single test was not adequate or valid or reliable, yet the Appeal Panel ignored that part of the report. [ 38 ] The Appeal Panel has misinterpreted the extent of the application of the regulations, the guidelines and the Control and Use of Tests by Psychologists.

The Appeal Panel is required to not simply make its determination on a single FSIQ score, irrespective of the limitations, weaknesses, reliability, or accuracy of the score. It must consider all the facts and evidence and make a determination as to the reliability and accuracy of the raw score before they can rely upon it. [ 39 ] If after proper consideration and analysis, the Appeal Panel determines that the FSIQ score before them is not reliable or accurate, than their decision can’t be to simply deny the application.

The Appeal Panel’s decision in such circumstances must be that there is not reliable evidence before them to make a determination whether or not s. 1(1)(

c) of the PPD and s. 3(1)(

a) of the Regulations have been satisfied (i.e. a full scale score of two standard deviations below the mean).

That was precisely the suggestion made by the psychologists who prepared the June 2011 assessment, which the Appeal Panel relied upon and in fact, was noted by them in para. 23: June 28, 2011 Psychological-Education Assessment Report using the Wechsler Adult Intelligent Scale - Fourth edition (WAIS-IV) notes: ∙ the 36 point difference between the Appellant’s extremely low range Verbal Comprehension Index of 60 percentile (range of 56- 68 percentile using a 95% Confidence Interval) and her average range Perceptual Reasoning (Non Verbal) Index of 94 percentile (range of 88-101 percentile using a 95% Confidence Interval) stating her overall cognitive ability cannot easily be summarized because of this significant difference in abilities; ∙ it is difficult to summarize her overall intelligence with a single score because of her unique set of thinking and reasoning abilities; and ∙ of the Appellant’s four Composite Scores, three of them noted that the degree in variability in the subtests composing them is unusual and worthy of further investigation as well as looking closer at her performance on the individual subtests. [ 40 ] The Appeal Panel was clearly aware of this issue of reliability as a result of its clearly referencing another psychology assessment report from 2005 as noted in para. 24: The March 30, 2005 Psychology Assessment Report using the Weschler Intelligence Scale for Children - Fourth Edition (WISC-IV): ∙ The Appellant’s full-scale score is of little use due to the significant difference of 23 points between the Verbal Comprehension

Index and her Perceptual Reasoning Index scores and therefore did not report a full-scale score. [ 41 ] The Appeal Panel’s decision is not justifiable nor defensible for the reasons noted above. It is the duty and obligation of the Appeal Panel to insure the reliability and validity of the full scale score of the adult before making any determination.

This requires the Appeal Panel to follow the Regulations, Guidelines and the Control and Use of Tests by Psychologists by not only considering a single test score, but considering all other relevant and pertinent information, which would assist in determining the reliability and validity of the test score. [ 42 ] In this case, the Appeal Panel incorrectly interpreted the Regulations, Guidelines and Control and Use of Tests by Psychologists as not allowing any form of analysis or scrutiny of the evidence before them. The Appeal Panel’s

interpretation of the Regulations, Guidelines and Control and Use of Tests by Psychologists would require determinations of ineligibility based only on the FSIQ score even though they were aware that the score was not valid and should not be relied upon. [ 43 ] If the legislature had intended that the sole determinant regarding eligibility was the FSIQ score without more, than they would not have had to make any reference to the mandatory application of the guidelines and the Control and Use of Tests by Psychologists.

If all that was intended by the legislature is reliance on a raw score irrespective of its limitations, weaknesses, reliability or accuracy, then it would not have added to para. 3(1) of the Regulations the following: “As determined in accordance with the development disabilities guidelines published by the Minister as amended from time to time.” Further, the legislature would not have then added in the guidelines that the testing for intellectual capacity must be consistent with the Professional Guidelines for Psychologists - The Control and Use of Tests by Psychologists.

If the legislature only intended blind reliance on a raw test score, there would have been no need for consideration to the specific assessment instruments strengths and limitations. Further, there would be no requirement that psychologists not only rely on one test but also other information of the particular individual to determine reliability and validity (para. 8 - The Control and Use of Tests by Psychologists). [ 44 ] This in fact is a clear indication that the current Legislation is flawed.

The results of an applicant not being able to satisfy the Board as to admissibility because of an unreliable or valid FSIQ (Full Scale Intelligent Quotient) could have the result of an applicant simply going out and getting tested by a number of psychologists until such time as one or more provide an FSIQ which would qualify under the Legislation and Regulation. This obviously cannot be what the Legislature intended. [ 45 ] It is clear that the intent of the Legislation is that as contained in the

preamble of the Act . The

preamble provides the following: Whereas the people of Alberta honour and respect the dignity and equal worth of adults with developmental disabilities; Whereas it is important that adults with developmental disabilities have opportunities to exercise self-determination and to be fully included in community life; Whereas the individual needs of adults with developmental disabilities are most effectively met through the provision of services that are based on equitable opportunity, funding and access to resources; Whereas the Government of Alberta recognizes the values and supports, the ability of communities to respond to the needs of adults with developmental disabilities; Whereas the Government has ongoing responsibility to ensure and oversee the provision of statutory programs, resources and services to adults with developmental disabilities. [ 46 ] Under the current scheme, the Community Board or Appeal Panel appears to be limited in its application of the qualification of applicants to the s. 3(1)(

a) of the regulations. Unfortunately, the regulations and the guidelines and the Control and Use of Tests by Psychologists do not assist the Community Board or Appeal Panel in arriving at a valid and reliable FSIQ. The current scheme simply

allows the Community Board or Appeal Panel to make a determination as to whether or not the FSIQ number should be relied upon as I stated earlier. [ 47 ] As identified by the experts who presented evidence in this case, there are situations where an individual is capable of completing a standardized intellectual assessment and that the form of testing may be following protocol, but that does not automatically mean that the test result itself is reliable or valid.

Therefore, there is a step that is missing in that where an individual is capable of completing the standard intellectual assessment but because of the individual disabilities and limitations, an accurate and reliable FSIQ is not available.

In fact, this is clearly identified by the Control and Use of Tests by Psychologists, which clearly states that decisions regarding applicants should not be based on the test score alone, but in conjunction with other information about the individual applicant. [ 48 ] In light of the goals and objectives of the Act as I’ve identified above (preambles in the Act ), it is suggested that the way to meet the objective of timely and the proper assessment of applicants requires that the regulations provide to the Community Board or Appeal Panel a third alternative to the two existing ones.

Presently, the Act only has two options. Firstly, the FSIQ score (s. 3(1)(

a) of the Regulation) or if an individual is unable to complete a standard intellectual assessment to get an FSIQ score (s. 3(1)(

b) of the Regulation), and the third option that is necessary in order to actually reflect the parameters and restrictions and obligations that are placed on psychologists who actually conduct the standardized intellectual assessments, would be that in the event that a person is capable of completing the test but the test result is clearly unreliable or valid because of the variances, then the Community Board or Appeal Panel would be entitled to look at the whole of the evidence and make a determination not solely based on an FSIQ score which is not below 70. VII. Conclusion [ 49 ] In

summary, I find that the Appeal Panel’s decision is not justifiable nor defensible for the reasons stated above. I quash the decision of the Appeal Panel and remit the matter for a new hearing before an Appeal Panel that is properly constituted. [ 50 ] The Appeal Panel is directed to apply the Regulations guidelines and Control and Use of Tests by Psychologists to ensure the reliability and accuracy of the FSIQ. Only once an FSIQ has been found to be reliable and accurate can the Appeal Panel proceed with its decision regarding eligibility. Heard on the 15 th day of February, 2013.

Dated at the City of Edmonton, Alberta this 3 rd day of April, 2013. V.O. Ouellette J.C.Q.B.A. Appearances: Amy Abbott Ackroyd LLP for the Applicants Susan Turner

Alberta Justice for the Respondent (South Region Community Board) Teresa Meadows Miller Thompson LLP for the Respondent (Appeal Secretariat Appeal Panel)