APPEAL I PART C -Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the "Ministry") reconsideration decision dated February 4, 2014 which held that the Appellant was not eligible for funding for a compression pump with leg garments as the items do not comply with Schedule C of the Employment and Assistance for Persons with Disability Regulation ("EAPWDR"). PART D -Relevant Legislation Sections 62 and 69 of the EAPWDR Schedule C of the EAPWDR EMT 003(10/06/01)
APPEAL I PART E -Summary of Facts The evidence before the Ministry at reconsideration was as follows: 1) Letter from the Appellant's medical practitioner to the Ministry dated May 30, 2013 stating that the Appellant has recurrent leg edema secondary to a post phlebitis limb and that the Appellant must wear stockings continuously and have them replaced every three to four months. The medical practitioner suggested that the Appellant would benefit from the leg wrap. 2) Form from the ยท _,Health Rehabilitation Services dated April 10, 2013 recommending that the Appellant ,c1Ke a home compression program. The form states that the Appellant has severe bilateral leg edema. 3) Letter from the Appellant's medical practitioner to another medical practitioner dated April 11, 2013 stating that the Appellant has still not received compression treatment for her legs with the compression devices ordered in November of the previous year. 4) Email from a maker of Circulation Improving Leg Wraps to an unknown recipient with attached reviews for the product. The email stated the gross cost of the product is $262.84. 5) Medical Equipment Request and Justification dated August 29, 2013 completed by the Appellant's practitioner stating that the medical condition the Appellant has is severe edema of the legs which affects her walking. The practitioner states that the compression device is necessary to keep her walking. 6) Letter from the Ministry to the Appellant dated December 24, 2013 stating that the Appellant's request for the health supplement has been denied. The Ministry stated that the eligibility requirements were not met. Under explanation the Ministry concluded: "The requested Flowtron Hydroven Intermittent Pneumatic Compression Pump is not listed under section 3.1 to 3.11." 7) Quote from a local garment store dated October 3, 2013 for one (1) flowtron compression pump and two (2) hydroven leg garments in the total amount of $3,312.98 8) Request for Reconsideration form dated January 21, 2014 (the "Request for Reconsideration"): Section 3 of the Request for Reconsideration signed by the Appellant on January 21, 2014 stating the following: i) the garment is the appropriate 3 stage pump and the cheapest one available in Canada; ii) the one suggested was from a US based company that the Ministry said they could not deal with and she was told to "[f]ind someone to get it from the US and we will reimburse you."; iii) the device is a single stage compression and not what is needed to be effective as stated by her doctor; iv) onqoinq therapy is needed to keep her walkinq and the swellinq is persistent; and EAA T003(10/06/01)
APPEAL I v) the Appellant has no means of purchasing the inferior garment and pump from the US. For the hearing, the appellant provided the following additional written submission and documentary evidence: 1) Notice of Appeal dated February 18, 2014 (the "NOA") completed and signed by the Appellant which stated the following: a. the Ministry approved the "garment" portion of this device and that the garment is "useless" without the pump. b. the Appellant's physician supplied his support of the "necessary item" as the Appellant suffers "gross swelling which occurs and cause pain and extreme difficulty in movement" and c. increased mobility causes and increase in her symptoms; d. the "cheapest" garment is not available in Canada; e. the non-Canadian garment does not feature the "stages" of compression needed; f. the Appellant needs the compression pump "almost nightly;" and g. the compression program available to the Appellant is available only intermittently and only on three day intervals. At the hearing, the Appellant reiterated the information in her submissions. The Panel finds that the additional evidence provided by the Appellant clarified her current situation and was admissible under section 22(4) of the Employment and Assistance Act as it was in support of the records before the Ministry at reconsideration. EAAT 003( 10/06/01)
I APPEAi PART F -Reasons for Panel Decision The issue is whether the Ministry's decision, which held that the Appellant was not eligible for funding for a compression pump with leg garments as the health supplement did not fall under Schedule C of the EAPWDR, is reasonably supported by the evidence or a reasonable application of the applicable legislation in the circumstance of the Appellant. Section 62(1) Section 62(1) of the EAPWDR allows the Ministry to provide any health supplements that are set out in sections 2 (general health supplements) and 3 (medical equipment and devices) of Schedule C of the EAPWDR to or for a family unit if the health supplement is provided to or for a person in the unit who meets the legislative requirements of the relevant section. Section 62(1) of the EAPWDR states as follows: 62 (1) Subject to subsections (1.1) and (1.2), the minister may provide any health supplement set out in section 2 [general health supplements] or 3 [medical equipment and devices} of Schedule C to or for a family unit if the health supplement is provided to or for a person in the family unit who is (a) a recipient of disability assistance, (b) a person with disabilities who has not reached 65 years of age and who has ceased to be eligible for disability assistance because of (i) employment income earned by the person or the person's spouse, if either the person or the person's spouse (A) is under age 65 and the family unit is receiving premium assistance under the Medicare Protection Act, or (B) is aged 65 or more and a person in the family unit is receiving the federal spouse's allowance or the federal guaranteed income supplement, (ii) a pension or other payment under the Canada Pension Plan (Canada), (iii) money received by the person or the person's spouse under the settlement agreement approved by the Supreme Court in Action No. S50808, Kelowna Registry, or (B.C. Reg. 92/2005) (iv) money or value received by the person or the person's spouse that is maintenance under a maintenance order, maintenance agreement or other agreement, if either the person or the person's spouse (A) is under age 65 and the family unit is receiving premium assistance under the Medicare Protection Act, or (B) is aged 65 or more and any person in the family unit is receiving the federal spouse's allowance or the federal guaranteed income supplement Section 62(1) of the EAPWDR provides coveraqe to or for a family unit if the health suoolement is EAAT003(10/06/01)
provided to or f o r a p ers o n in th e u n i t who is a recipient age and has not ceased to be eligi ble for disability assis by the applicant or their spouse . Sche d u l e C Sec tio n 2 -Ge neral Health Supplements Schedule C sec tio n 2 of t he EAPWDR lists the 'general' health supplements Ministry to a family uni t that is eligib le u n der section 62. 2 (1 ) Th e followin g a r e the health suppl e ments that may be paid f under section 62 {g e neral h ealth supplements] of t his regulation ( a) medical or surgical supplies that are, at the minister's discretion, satisf i e d tha t all of the follow ing requirements are met: (i) the sup pli es ar e r equired for one o f the (A) wound c a r e; (B) ongo ing bo w el c are re quired due to (C) ca theteri zati o n ; ( D) incontin ence; (E ) sk in parasite car e ; (F) limb cir cula t ion care; (ii) the su ppl ies are (A ) prescribed b y a me dical prac ti tione (B) the least expensi ve supp l ies app (C) nece ssa ry t o av oi d a n immin ent (iii) there are no resources available to t he fam (a.1) th e f ollowing medical or surgical supp lies reusable, if the minister is satisfied that all the requirements described in paragraph (a) (ii) and (iii) are met in relati on to the supplies: (i) lancets; (ii) needles and syri nges; (iii) ventilator supplies required for the essentia (iv) tracheostomy supplies; (a.2) consumable medical supplies, if the minister is satisfi (i) the supplies are required to thicken food; (ii) all the requirements descri b ed in paragraph (a) (ii) and (iii) are met in relation to the supplies; (b) Repealed (B.C. Reg. 236/2003) EAAT 003( 10/06/01) APPEAL I o f disability assistance, not y et 65 yea rs of tance because of employme nt income earned t hat m a y be paid for the Section 2 states the foll ow ing: o r by t he minister if provide d t o a fa mily u nit that is eligi b le : either disposable or reu s ab le , if the minister is followin g purpo s es: lo s s of m uscl e fu nction; r or nurse p ractitioner, ro priate for the pur pose , and and s u bs tanti al danger to health; il y u nit to pay t h e cost of or obt ain the supp lie s. that are, a t t h e mini ster's discretion, ei th er dis p osable or l op eration or sterilization o f a v e ntilat o r; e d that all of t h e fol lowing requirements a re met:
Section 2(1)(a) (i) defi nes me d i c al a nd s urgical supplies EAPWDR states that the pu rpo se of the supplies has to be for ca t heterization, incontinence, skin pa rasite care or limb care. S ect i o n 2(1 ) ( a)(ii)(iii) state s t h at t h e medical and s u medical o r nu r se pr actiti o n er, th e least e xpensive s upplies appropriat to avoid imm inent and subst an t ia l danger to health. family uni t to pay the cost of the supp li e s. Section 2(1 )( a.1 ) further lists accept a ble 'medic al or surgi the Minist ry finds the s upply r eq ueste d is r eu sable or disposable syringes, ventilator suppl ies, tracheostomy s upplies satis f ied. Section 2(1) (a.2) l i s ts acceptable 'c on s um providing the Minis try is satisfied t he s up plies are requir are satisfied. S ec tion 2(1) (c ) f urt h e r a d dresses acceptable servic e acupuncture, chiro pr actic, mas sag e ther a p y, nat uropa Sec tion 2( 1)( 2. 1 ) (2.2 ) a r e related to opti cal and eye Sch ed u le C S e ct i on 3 -Medical Equi pment and Devices S chedul e C s ec tion 3 of the EAP WDR li sts the ' me d th at may b e paid fo r b y t h e Min ist ry t o a fa m ily unit that supplements, u nd e r o f the EAPWDR. S e cti on 3 states the f 3 ( 1) S ubject to su bsections (2) t o (5) of th is section, th e medical eq t hi s Schedule a re th e h e a lth su p ple m e nts that m ay be pro vided (a) the s u pple ments ar e pro vi ded t o a fam ily u n i t that is e re gulat ion, and (b) all of the following requi rements are met: (i) the fa m i l y u nit h a s received the pre-authorization of the minister for the medical equipment or device requested; (ii ) there are n o resources available to the family unit to pay th device; (iii) the medical equipment or device is the least exp (2) For medical equipment or devices referred to in sections 3.1 to 3.8 or section 3.12, i sections and subsection (1) of this section, the family unit must provide to the minister one or both of the following, as requested by the minister: (a) a prescription of a medical practitioner or nurse practitioner for the medical equipment or device; /bl an asses sment bv an o c cu oational thera nis t o r ohv EMT 003(10/06/01) APP EAL I that a re either d isp o s a ble or reusa ble. The woun d care , ongoing bowel ca re, r gi c a l supp ly must add it io nal ly be prescribed by a e for the purp o s e and neces sary Th e re must also be no re sources avai l a bl e to the c a l supplies' th at may be paid for provi d i ng which include lancets, needles and and the r equ i rements in section 2(1 )(a)(i )(ii) are able medica l supplies ' that may b e pai d for ed to thicke n foo d a nd s ections 2(1 )(a)(i) (ii) s supplied b y v ari ous t h erapists i nclu di ng thy, n on-surgica l pod iatry a n d phy s i ca l t he rapy. rela ted supplement s. ica l eq uip me nt and dev i c es' he a lt h su p p le ments is eligib le unde r sectio n 62, ge neral hea lth ollowing: u ipm ent a nd de v ice s d escribed in sections 3.1 t o 3.12 o f by t he mi n is te r if li g ib l e under section 62 [general he a lt h s u p ple m ent s ] of th is e cost of or obtain the medical eq u ipment or ensive appropriate med ic al eq uipment or device. n addition to the r eq u irements in those s i ca l theraoist con f irminQ the m edical ne ed fo r the m e d ical
I APPEAL equipment or device. (2.1) For medical equipment or devices referred to in section 3.9 (1) (b) to (g), in addition to the requirements in that section and subsection (1) of this section, the family unit must provide to the minister one or both of the following, as requested by the minister: (a) a prescription of a medical practitioner or nurse practitioner for the medical equipment or device; (b) an assessment by a respiratory therapist, occupational therapist or physical therapist confirming the medical need for the medical equipment or device. The medical equipment or device may be provided by the Ministry if the supplement is listed in section 3.1 to 3.12 and the family unit has received a pre-authorization of the Ministry for the health supplement, there are no resources available to pay the cost of or obtain the medical equipment or device and the medical equipment and device is the least expensive appropriate of its kind. Schedule C section 3.1 to 3.12 of the EAPWDR lists the health supplements that may be provided for by the Ministry if all the relevant sections of the EAPWDR have been satisfied. The medical equipment and devices that may be provided by the Ministry include the following: 3.1. canes, crutches, walkers; 3.2. wheel chairs; 3.3. wheel chair seating systems; 3.4. scooters; 3.5. bathing and toilet aids; 3.6. hospital bed; 3.7. pressure relief mattress; 3.8. floor or ceiling lift devices; 3.9. positive airway pressure devices; 3.10. orthosis; 3.11. hearing instrument; and 3.12. non-conventional glucose meter. Section 69 of the EAPWDR Section 69 of the EAPWDR applies to health supplements for person facing direct and imminent life threatening health need and states the following: 69 The minister may provide to a family unit any health supplement set out in sections 2 (1) (a) and (f) [general health supplements] and 3 [medical equipment and devices] of Schedule C, if the health supplement is provided to or for a person in the family unit who is otherwise not eligible for the health supplement under this regulation, and if the minister is satisfied that (a) the person faces a direct and imminent life threatening need and there are no resources available to the person's family unit with which to meet that need, EAAT003(10/06101)
I APPEAL (b) the health supplement is necessary to meet that need, (c) the person's family unit is receiving premium assistance under the Medicare Protection Act, and (d) the requirements specified in the following provisions of Schedule C, as applicable, are met: (i) paragraph (a) or (f) of section (2) (1 ); (ii) sections 3 to 3.12, other than paragraph (a) of section 3 (1). Section 69 allows the Ministry to provide any health supplements set out in sections 2( 1) (a) and (f) (health supplements) and 3 (medical equipment and devices of Schedule C if the recipient is not eligible for the health supplement under the EAPWDR and the person is facing direct and imminent life threatening need and there are no resources available to the recipient to meet that need; the health supplement is necessary to meet that need; the person's family is receiving premium assistance under the Medicare Protection act, and the requirement in Schedule C (2)(1) (i)(a) or (f) are met. Discussion The Ministry determined that the Appellant was eligible under section 62 of the EAPWDR for health supplements that are set out in section 2 and/or section 3 of Schedule C, but that the compression pump and leg garments were not listed under Schedule C sections 2 and 3 of the EAPWDR. The Ministry also determined that the Appellant was not eligible for the compression pump and leg garments under section 69 of the EAPWDR. Schedule C section 2 of the EAPWDR In finding that the compression pump with leg garments did not comply with section 2(1)(2) the Ministry stated the following: The ministry finds that [t]he item requested is not a disposable or reusable medical supply, such as compression stockings. It is medical device. The information provided does not establish that the item requested is necessary to avoid an imminent and substantial danger to health. The item requested in not set out in the EAPWD Regulation, Schedule C, subsection 2(1 )(a.1) or 2(1 )(a.1) The Ministry submitted that the item requested was not a disposable or reusable medical supply arguing that the compression pump with leg garments was a "medical device." The Ministry also stated that the Appellant did not provide any evidence to substantiate the item was necessary to avoid imminent and substantial danger to her health. The Appellant stated that she needs the compression pump "almost nightly" due to her excessive swelling which makes it extremely difficult, if not impossible, for the Appellant to get out of bed. She claimed that onqoinq theraov is needed to keep her walkinq as her swellinq is persistent and EAAT003(10/06/01)
in c rea sed m o bility ca u s es h er s ym pto ms to f lare up. The s eriou sness of th e Appell a nt' s c o ndi tio n i s s ubst the Appellant submitte d. The pra c titi oner confirmed that affects her walking . Th e practitioner su g ge s ted t h a t t he Appellant we ar A p pell ant would bene fi t fr om a l eg w r a p. Th e pra c ti r e c e ive comp ressio n tre atm e n ts off e red by heal th r ehab T h e Appellan t explaine d th a t s h e ne ed ed th e three sta le g wr a p a s the three stage p ump compre sso r is t h e all ow s for better circula ti on. The A ppell a nt was op posed to reco m me nded by her pract i tio n e r and exp lained tha co mpressi on pump. I n order for the c o mp res sion pump wi th leg garment a gen e r al healt h su p plement, the su p plement mus t be, m edi cal/surgi cal supp l y and necessary to a void an i The Ministry argued that t h ey d id not h ave th e l egi with leg ga r m en t bec au se i t d id not fall un d er sect device unde r section 3 not a medi c a l s up pl y u nde r se Upon exa m ination of se c ti on 2 it app e ar s t hat t h is secti re lati o n t o disp osable or reus abl e supp lies such as bowel ca not n e c e ss arily a comp res sion pump with leg ga rments. resembles a "me dical dev ic e " that wo uld b e fo und w hi c h dea l s with sup plies. The Ministry also argued that the Appellant did not est imminent and substantial danger to the Appellant's health. in extreme discomfort and the compression pump with leg garmen swelling in her legs allowing her to be more mobile. the Appellant had severe leg edema. While the item would undoubtedly improve the Appellant's condition, the evidence does not establish "imminent and substantia l danger '' t o the Appellant's health. in tremend o us pain on a daily basis but this does not am Section 2(1)(a.2) lists acceptable 'consumable medical supplies' that may be paid for providing the Ministry is satisfied the supplies are required to thicken food and sections 2(1)(a)(i)(ii) are satisfi while section 2(1 )(c) addresses acceptable services supplied by various therapists including acupuncture, chiropractic, massage therapy, naturopathy, non-surgical podiatry and physical therapy. Sections (2.1) (2.2) are related to optical and eve related suoolements. EAAT003(10/06/01) I AP PEAL ant i a te d b y the practitioner in lett e rs and f o rm s th e Appellant h a s se ver e leg edema which st oc k ings continu ously a n d c laimed that th e tioner also r ec omm e nded th a t the App el lant ilitation p rog r a m. ge pump compress or with t he g arm e nts n ot th e s u p erio r p ro du ct and the three st age moti on the les s expensive leg wraps t the w raps we r e not as e ffective as the s to be cov ered under secti on 2 of Sch edule C as among ot her th i ngs, a d ispo sable or r e usable mmi nent a nd substa n ti al d an ger to heal t h. s lative a uth ority to c over the compress ion pump ion 2 of Sc hed u le C and the ite m was a med ical c ti on 2. on was inte n d ed to cove r ite ms t hat are in re p r oducts, lanc e t s, needl es o r sy r i n g es, As argued by the M i nistry , this item more in S chedule C sect i on 3 as oppose d to section 2 abl i sh that the item was need ed to a void The Appellant gave evidence that she is t s would significantly reduce the The Appellant's practition er also confirmed that T here is no denying tha t t h e A ppellant is ount to "i mminent and substantial danger." ed
The compres sio n p u mp with leg g ar ments c ann ot be c n or is it related to thera py t re at me nt s or optic a l and sec tion 2 ( 1 ) (a. 2) or s e c tions 2 .1 and 2 .2. S chedu le C se ction 3 of t he E AP W D R In fi n di n g that the compr e s sio n pump with le g g ar ments th e Mi n is try n o t ed items 3.1 to 3 .12 a nd stat e d that the "c one of these [li sted medical e q uip ment o r devi ces]." not provid e any information t o "establ i sh t he other legislative criteria se On review o f t h e items listed under med i cal equipm pu mp and le g g arments d o no t fall unde r any of the e specific and the M i nis try i s not given discret i onar y a categor ies. The com pression pump an d leg garme nts listed in sec t ion 3.1 to 3.12 a nd t h eref o r e do n ot fall and devices as items that ar e covered b y the Ministr Sect ion 69 of the EA PWDR S e c tio n 69 sets ou t that the Mi nist ry may p rovide t o sect io ns 2( 1)(a ) medical s u pplies a nd (f) m edic al t r an devi ce s o f Schedule C p roviding the recipien t is fa cing a di ne ed a nd who are not eli gib l e to re c eive it und er the T he M in is try fou nd t hat Appe llant wa s n ot eligible un w a s inten ded for t hos e individuals who are facing a for t hos e supplements and who ar e no t ot herwise e T he Mi n i stry st ated th a t the App ell an t does "not re quire "i s e l igible to receive h ealt h supplemen t s under sections 2(1 further ar gued that the comp r e s sion pump w ith leg garm Sc h edule C, s e c tion 2(1 )(a) and (f) and sect i on 3. The Appellant as alread y discussed is eligibl e under section 62 f Schedule C. The compression pump and leg garments, however, are not listed in any of the relevant s e c t ions in Schedule C. The evidence also does not support that the Appellant is in a situation if she does not obtain the compression pump with leg garments pursuant to sec While the seriousness of the A p pellant's c o ndition is practiti oner and the compression pump with l eg ga rme condition there is nothing to support the failure to obtain the device is a "direct and life threatening need." The Panel ther efore find s t he Ministry's decisi on which held fundina for a compression pump with lea aarments as the health supplement did not fall under EAAT003(10/06/01) A PPEAL I harac t eri zed as a con sum abl e med i ca l s u ppl y ey e r el a ted supplemen ts and doe s n o t fall within did n o t c o mply with se c t i o n 3 of Schedule C, ompres sion pu mp w i t h leg g a r m ents i s not T he Minis t r y further foun d that the A ppe llant did t out i n these sec t ion s." ent a nd devices, it is cle ar that a comp ress io n q uipme nt an d de vices. T he catego rie s are u thority to e x p and or broaden the existin g cannot be ch aracte ri ze d as any o f the item s under S che dule C sec tion 3 , medical equip me nt y . a r ecipien t any healt h supp lemen t s e t out in s p ort a ti o n and 3 me d ical equipment an d rec t a nd imminent l i fe -t h reatening hea lt h regu la tio n. der s ecti on 6 9 of the EAP WDR a s the s ecti on di rec t and imminent life-threatening healt h need l igible to re ceiv e them . a remedy u nder section 69" as t h e A ppe l lant )(a) an d (f) and s ection 3." The Mi nist ry ent is not a heal t h s uppl ement set o ut in o r h e alth supp l e ments liste d in di re ct an d im minent l ife threatening t ion 6 9. con f i rmed by bo th the Appellant and the nts woul d likely i mprove the A p pellant's that the Appellant was not eligib le for
Schedule C or section 69 of the EAPWDR is reasonably supported by the evidence in the circumstance of the Appellant and confirms the decision. EM T003(10/06/01} I APPEAL
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