APPEAL# I PART C -Decision under Appeal This is an appeal of the reconsideration decision of the Ministry of Social Development and Social Innovation ("ministry") dated July 31, 2014, in which the ministry denied the appellant's request for distilled water to use in the humidifier of his positive airway pressure machine on the basis that the request did not meet the criteria set out in the relevant parts of section 3.9 of Schedule C of the Employment and Assistance for Persons with Disabilities Regulation ("EAPWDR"). The ministry determined that the appellant's request for distilled water did not meet the legislative criteria for the following reasons: • The humidifier is not a positive airway pressure device and distilled water is not "required to operate" a positive airway pressure device, as required by subs. 3.9(1)(a); • A respiratory therapist has not performed an assessment that "confirms the medical need" for the distilled water for the humidifier, as required by subs. 3.9(2)(b); and • The ministry was not satisfied that the distilled water for the humidifier is "medically essential for the treatment of moderate to severe sleep apnea," as required by subs. 3.9(2)(c). PART D -Relevant Legislation Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) section 62 and Schedule C -Health Supplements, sections 3 and 3.9. EAAT 003(1 0/06/01)
APPEAL# I PART E -Summary of Facts The appellant did not attend the hearing, but was represented at the hearing by his spouse (his legal representative) and an advocate. The information before the ministry at reconsideration consisted of the following: • Documentation of the ministry's approval of the appellant's request for his positive airway pressure ("PAP") machine (letter from the ministry dated June 12, 2013 approving an ASV Advanced BiPAP machine with humidifier, the humidifier, and a 6 pack of white ultrafine filters; purchase authorization dated June 12, 2013 for the appellant's PAP machine with humidifier and filters; medical equipment request tracking sheet for CPAP dated April 10, 2013; a fax cover sheet from a respiratory service provider together with a sales quote, the appellant's oxiometry tests summary reports, a letter from a doctor at a sleep clinic to the appellant's physician regarding the evaluation of the appellant for obstructive and central sleep apnea, and information approving the appellant for a trial of the PAP machine); • A copy of a letter dated March 13, 2014 prepared by a clinical technician and certified respiratory educator ("Clinical Technician"), discussed below; • A copy of a sales quotation from a drug store dated June 12, 2014, indicating that the cost f o r 6 bottles of distilled water is $11.1 0; • A copy of a letter dated July 7, 2014 prepared by the Clinical Technician, discussed further below; • The appellant's request for reconsideration dated July 17, 2014; • A copy of the telephone log of the ministry's reconsideration officer regarding the officer's conversation with a respiratory therapist on July 31, 2014, discussed below; and • A copy of a fax cover sheerdated July 31, 2014 from the respiratory therapist to the ministry's reconsideration officer with 2 attached pages copied from a PAP machine manual with information about "climate control: keeping you comfortable throughout the night," "adjusting ramp time", "easy maintenance", "maximum benefits" and "achieving the perfect fit" with photos, one of which shows water being poured into the humidifier of the PAP machine. In the March 13, 2014 letter, the Clinical Technician indicates that, "part of [the appellant's] ASV machine is a heated humidifier that does require a sufficient supply of distilled water." The Clinical Technician indicates that the humidifier will consume at least a gallon of distilled water per month, more during cold months when the appellant will require "more humidity to give him comfort and avoid dryness on his mouth and throat." He writes that, "distilled water is strictly required to ensure that his heated humidifier water chamber will not accumulate any mineral residue if ordinary water or even bottled drinking water" is used. In the July 7, 2014 letter, the Clinical Technician responded to the ministry's original denial of the appellant's request on the basis that distilled water is not required to operate the appellant's PAP machine. The Clinical Technician writes that, "it is technically correct that you would not require distilled water or any type of fluid to operate the ASV [PAP] machine as it does not require one to run it BUT you will definitely require distilled water to add on to the water chamber of the heated humidifier." The Clinical Technician indicates in this letter that the heated humidifier is a "separate unit that works in tandem with" the appellant's PAP machine to prevent excessive dryness and EAAT 003( 10/06/01 )
I APPEAL# provide the appellant comfort. The Clinical Technician writes, "1 in a 1000 will or might experience epistaxis [nose bleeds] if there is insufficient or lack of humidity during any PAP therapy. The Heated Humidifier component is an integral part of this therapy, without it a patient might experience nasal congestion like symptoms which could lead to mouth opening thus ending their therapy abruptly." The Clinical Technician discusses the use of distilled water in the humidifier, how it is just like a kettle, and writes, "manufacturer stated that distilled water is strongly recommended, if you use any type of water other than that and it causes his unit to stop functioning, warranty will be voided." In the telephone log of the reconsideration officer's conversation with a respiratory therapist on July 31, 2014, the officer indicates that he or she asked about the appellant's PAP machine (what it looked like) and the respiratory therapist indicated she would send photos (pages from a user manual were faxed as noted earlier). The log indicates the reconsideration officer asked the respiratory therapist, "how important is the use of distilled water in the humidifier? Will the use of tap water result in voiding the warranty on the machine?" and that the respiratory therapist responded as follows: Use of distilled water in the humidifier is a manufacturer's specification. Use of tap water may affect the longevity of the humidifier, and the warranty on the humidifier may be impacted. It certainly would not lead to the warranty on the ASV being voided. Distilled water allows for optimum usage. The water is placed in a plastic container at the base of the humidifier. The formation of sediment in the container would depend on the minerals present in the water where the client is living. If the rate of sedimentation was high, only the container would need to be replaced, at a cost of $40.00. The warranty on the entire humidifier or the ASV machine would not be affected. I receive complaints from clients about paying for distilled water. However, I inform them that the ministry is more generous than [an extended health care provider] when supplying positive airway pressure devices and related equipment/supplies. It is also more generous with repairs and replacements. I tell them that distilled water can be purchased ... for a little less than a "toonie" a week. I think this is a small investment considering the cost of the equipment has provided (Note: in this case $4,615.00) and its importance to their health. At the hearing, the appellant's advocate provided a one-page letter dated September 11, 2014 from a respiratory therapist who was not the one who had the conversation with the ministry reconsideration officer on July 31, 2014. In this letter, the respiratory therapist writes that "distilled water is recommended to be used in all PAP machines by all manufacturers ... When water is heated, the minerals separate from the water and form a coat on the humidifier's heating plate. Over time this coat affects the ability of the machine to provide proper humidification to the patient which may compromise their treatment. The use of distilled water in all PAP machines is standard practice in and out of all hospitals." The respiratory therapist attached to the September 11, 2014 letter a copy of 2 pages from the manual f o r the appellant's PAP machine, with instructions for "filling the water tub" on the first page, and "maintenance checklists", "reassembling and filling the water tub" and "replacing the air filter" on the second page. The respiratory therapist has underlined the instructions, "fill the water tub (through the center hole) with distilled or de-ionized water up to the maximum water level mark (380 ml)" EAAT 003(10/06/01)
APPEAL# I under the instructions for filling the water tub, and underlined the words, "Fill the water tub with distilled or de-ionized water up to the maximum water level mark" under the instructions for reassembling and filling the water tub. The ministry did not object to the admission of the September 11, 2014 letter from the respiratory therapist with attached copies of manual pages. The panel admits the letter of September 11, 2014 and its attachments under section 22(4)(b) of the Employment and Assistance Act as written testimony in support of the information and records before the ministry when the decision under appeal was made. In the letter, the respiratory therapist addresses the use of distilled water in the humidifier of the appellant's PAP machine, which was inf o rmation before the ministry at reconsideration set out in the March and July 2014 letters of the clinical technician and the telephone log conversation of the other respiratory therapist of July 31. The ministry confirms that the appellant is a designated person with disabilities in receipt of disability assistance and meets the criteria under section 62 of the EAPWDR. The appellant requires a PAP machine for his severe complex sleep apnea and the ministry's documentation indicates that the ministry provided the appellant his PAP machine, humidifier and a 6-pack of filters together in 2013. The appellant's spouse says that the appellant must use his PAP machine daily, often up to 15 hours per day as he sleeps a great deal, and the humidifier of the PAP machine runs at the same time. The appellant's spouse described that the humidifier for which the distilled water is requested is part of the appellant's PAP machine -it is not an independent humidifier. She said that she refills the humidifier regularly. The appellant's spouse said that although the appellant had a tracheostomy a few years ago, he is not receiving treatment for it at this point-the sleep therapy provided by the PAP machine is f o r his severe sleep apnea. EAAT 003( 10/06/01)
APPEAL# I PART F -Reasons for Panel Decision The issue on this appeal is whether the ministry's decision to deny the appellant's request f o r distilled water to use in the humidifier of his positive airway pressure ("PAP") machine was reasonable based on the evidence or a reasonable application of the legislation in the appellant's circumstances. The ministry denied the appellant's request on the basis that a humidifier is not a positive airway pressure device and distilled water is not "required to operate" a PAP device (as required by subs. 3.9(1)(a) of Schedule C EAPWDR), a respiratory therapist has not performed an assessment that "confirms the medical need" for the distilled water for the humidifier (as required by subs. 3.9(2)(b) of Schedule C EAPWDR), and the ministry was not satisfied that the distilled water for the humidifier is "medically essential for the treatment of moderate to severe sleep apnea" (as required by subs. 3.9(2)(c) of Schedule C of the EAPWDR). Legislation The following are the relevant provisions of the legislation (the EAPWDR) applicable to the appellant's request for distilled water for the humidifier attached to his PAP machine. 62. General health supplements (1) Subject to subsections (1.1) and (1.2), the minister may provide any health supplement set out in section 2 [general health supplements] .... 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, Schedule C -Health Supplements 3. Medical equipment and devices (1) Subject to subsections (2) to (5) of this section, the medical equipment and devices described in sections 3.1 to 3.12 of this Schedule are the health supplements that may be provided by the minister if (a) the supplements are provided to a family unit that is eligible under section 62 [general health supplements] of this regulation, and (b) all of the following requirements are met: (i) the family unit has received the pre-authorization of the minister for the medical equipment or device requested; (ii) there are no resources available to the family unit to pay the cost of or obtain the medical equipment or device; (iii) the medical equipment or device is the least expensive appropriate medical equipment or device. Subsection 3(2) applies to medical equipment or devices referred to in sections 3.1-3.8 and 3.12 of Schedule C, which does not apply to the appellant's request for distilled water for the humidifier for his PAP machine. Subsection 3(2.1) applies to medical equipment or devices referred to in section 3.9(1)(b) to (g). In this case, the ministry considered the appellant's request f o r distilled water under subs. 3.9(1 )(a) of EMT 003(10/06/01)
[APPEAL# Schedule C of the EAPWDR. Subsection 3(2.1 ), which requires the provision to the minister, as requested, of one or both of a prescription from a medical or nurse practitioner for the equipment or device, or an assessment by a respiratory, occupational or physical therapist confirming the medical need for the equipment or device, does not apply to the appellant's request for distilled water. Subsection 3(3) sets out the requirements for replacement of medical equipment previously provided by the minister under this section, subsection 3(4) sets out the requirements for the repair of medical equipment previously provided by the minister, and subsection 3(5) sets out the requirements for repairs of medical equipment not previously provided by the minister. These sections are not relevant to the appellant's request for distilled water. 3.9 Medical equipment and devices -positive airway pressure devices (1) Subject to subsection (4) of this section, the following items are health supplements for the purposes of section 3 of this Schedule: (a) if all the requirements set out in subsection (2) of this section are met: (i) a positive airway pressure device, (ii) an accessory that is required to operate a positive airway pressure device, or (iii) a supply that is required to operate a positive airway pressure device; (b ) .. . (c) .. . (d) ... . (e) .. . (f) if the minister is satisfied that the item is medically essential to moisturize air in order to allow a tracheostomy patient to breathe, (i) a medical humidifier, (ii) an accessory that is required to operate a medical humidifier, or (iii) a supply that is required to operate a medical humidifier (2) The following are the requirements in relation to an item referred to in subsection (1) (a) of this section: (a) the item is prescribed by a medical practitioner or nurse practitioner; (b) a respiratory therapist has performed an assessment that confirms the medical need for the item; (c) the minister is satisfied that the item is medically essential for the treatment of moderate to severe sleep apnea. Submissions The appellant is a designated person with disabilities in receipt of disability assistance and he meets the requirement set out in section 62(1)(a) of the EAPWDR. The appellant suffers from severe sleep apnea and a medical practitioner prescribed a PAP machine for him (criteria set out in subs. 3.9(2)(a) of Schedule C of the EAPWDR). The ministry purchased the appellant's PAP machine for him in 2013 and the PAP machine came with a humidifier and filters. The focus of this appeal is the appellant's request for distilled water to use in the humidifier of his PAP machine. In their submissions, the appellant's advocate and spouse argued that the humidifier is an integral part of the appellant's PAP machine -the humidifier came with the PAP machine and the PAP EAAT 003(10/06/01)
APPEAL# I machine is not operated without the humidifier. The appellant's spouse and advocate point to the letters from the Clinical Technician in which he wrote that the humidifier is part of the appellant's PAP machine (March 13, 2014 letter), that the humidifier is a "separate unit that works in tandem with" the appellant's PAP machine (July 7, 2014 letter) to provide comfort when using the PAP machine, and to prevent excessive dryness which could lead to health problems. The appellant's spouse and advocate argue that distilled water is required to operate the humidifier of the appellant's PAP machine and point to the following information provided by the Clinical Technician, as well as the information provided by the respiratory therapist in his letter regarding the required use of distilled water in these machines: • "humidifier that does require a sufficient supply of distilled water" (March 13, 2014 letter); • "distilled water is strictly required to ensure that his heated humidifier water chamber will not accumulate any mineral residue if ordinary water or even bottled drinking water [is used]." (March 13, 2014 letter); • "it is technically correct that you would not require distilled water or any type of fluid to operate the ASV [PAP] machine as it does not require one to run it BUT you will definitely require distilled water to add on to the water chamber of the heated humidifier." (July 7, 2014 letter); and • "Distilled water is recommended to be used in all PAP machines by all manufacturers ... The use of distilled water in all PAP machines is standard practice in and out of all hospitals." (September 11, 2014 letter). The appellant's spouse and advocate argue that the use of distilled water in the humidifier of the appellant's PAP machine is medically necessary. They argue that the Clinical Technician noted in his July 7, 2014 letter that epistaxis (nose bleeds) could result if there is insufficient humidity resulting from a faulty humidifier, and that the respiratory therapist in his September 11, 2014 writes that the use of distilled water in PAP machines is standard practice in and out of all hospitals. The appellant's spouse and advocate say that if distilled water is not used in the humidifier of the appellant's PAP machine and it affects the performance of the humidifier, it will compromise the appellant's health, as noted by the respiratory therapist in his September 11, 2014 letter: "when water is heated, the minerals separate from the water and form a coat on the humidifier's heating plate. Over time this coat affects the ability of the machine to provide proper humidification to the patient which may compromise their treatment." The ministry says that the appellant's request for distilled water for the humidifier of his PAP machine does not meet all of the criteria set out in subsection 3.9 of Schedule C of the EAPWDR. The ministry determined that distilled water is not a supply that is required to operate a PAP machine (as set out in subs. 3.9(1) (a)(iii)) because the distilled water is for the humidifier of the PAP machine. The ministry says that the humidifier is operated in tandem with the PAP machine and is not integral to the actual operation of the appellant's PAP machine, unlike the PAP machine's mask, tubing or filters. The ministry also says that the Clinical Technician indicates that distilled water is for the humidifier, but that the PAP machine does not need the humidifier to operate. The ministry determined that a respiratory therapist has not performed an assessment that confirms the medical need for distilled water for the humidifier, which is required by subs. 3.9(2)(b) of Schedule C of the EAPWDR. The ministry relies on the information provided by the respiratory therapist documented in the reconsideration officer's July 31, 2014 telephone loQ notes. The respiratory EAAT 003(1 0/06/01)
APPEAL# I therapist indicates that using distilled water in the humidifier of the PAP machine is a manufacturer's specification for the optimum operation of the humidifier. The ministry says that a respiratory therapist does not confirm that distilled water for the humidifier is medically necessary. The ministry also determined that it was not satisfied that distilled water for the humidifier of the PAP machine is medically essential for the treatment of the appellant's severe sleep apnea, as required by subs. 3.9(2)(c) of Schedule C of the EAPWDR. The ministry says that the information provided by the Clinical Technician is that the humidifier prevents nasal congestion and dry or sore throat, and makes the sleep therapy using the PAP machine more comfortable, but that this does not demonstrate that distilled water for the humidifier is medically essential to treat the appellant's apnea. Panel Decision Under section 3(1)(b) of Schedule C of the EAPWDR, the minister may provide the medical equipment and devices listed in sections 3.1 through 3.12, if the minister is satisfied that all of the f o llowing requirements are met: the family unit has received the pre-authorization of the minister for the medical equipment or device requested; there are no resources available to the family unit to pay the cost of or obtain the medical equipment or device; and the medical equipment or device is the least expensive appropriate medical equipment or device. In addition to the requirements set out in subsection 3(1)(b), the appellant's request must meet the relevant requirements set out in subsection 3.9, and subs. 3.9(1 )(a) requires that all of the requirements of subs. 3.9(2) must also be met. The panel stresses that the legislation requires that the minister must be satisfied that all of the requirements of the legislation must be met before the requested medical equipment will be provided. Requirement of subsection 3.9(1)(a) When the ministry provided the appellant his PAP machine, the documentation illustrates that the humidifier was provided together with the PAP machine. The panel notes that in his March 13, 2014 letter, the Clinical Technician indicated that "part of [the appellant's] ASV machine is a heated humidifier" and in his July 7, 2014 letter, he describes the humidifier as "a separate unit that works in tandem with" the PAP machine and is "an integral part" of the therapy provided by the PAP machine. The appellant's spouse confirmed that the humidifier of the PAP machine operates at the same time and together with the PAP machine. The panel notes that the appellant does not argue -and no evidence was provided to support the argument-that the humidifier with the appellant's PAP machine is itself a positive airway pressure device (as set out in subs. 3.9(1 )(a)(i) of Schedule Co of the EAPWDR) or an accessory that is required to operate a positive airway pressure device (as set out in subs. 3.9(1 )(a)(ii) of Schedule C). The ministry found that the appellant did not meet the requirement of subsection 3.9(1)(a)(iii) of Schedule C of the EAPWDR -that is, that the requested distilled water for the humidifier of the appellant's PAP machine is "a supply required to operate a positive airway pressure device." The ministry's reconsideration decision referred to the inf o rmation in the July 7, 2014 letter from the Clinical Technician stating that fluid (any type, including distilled water) is not required to operate the PAP machine as the PAP machine does not require the humidifier to run it. The panel notes that the exact wording of the Clinical Technician in his July 7, 2014 letter is as f o llows: "it is technically correct that you would not require distilled water or any type of fluid to operate the ASV [PAP] machine as it EAAT 003(10/06/01)
APPEAL# I does not require one to run it BUT you will definitely require distilled water to add on to the water chamber of the heated humidifier." The panel notes that the Clinical Technician writes in his March 13, 2014 letter that distilled water is "required" and in the July 7, 2014 letter that distilled water is "needed" for the humidifier, but not for the appellant's PAP machine. The panel finds that the ministry's determination that appellant's request does not meet the requirement of subs. 3.9(1)(a)(iii) -that the use of distilled water in the humidifier of the PAP machine is not required to operate the PAP machine -is reasonable based on the evidence. Requirement of subsection 3.9(2)(b) The ministry found that the appellant did not meet the requirement of subsection 3.9(2)(b) that a respiratory therapist had performed an assessment confirming the medical need for distilled water for the humidifier of the appellant's PAP machine. The ministry based this aspect of its decision on the inf o rmation it obtained directly from a respiratory therapist contacted by the reconsideration officer as documented in the telephone log. In the log, it is noted that the respiratory therapist indicated that the use of distilled water in the humidifier of the PAP machine is a manufacturer's recommendation for the optimal operation of the humidifier. The panel notes that subsection 3.9(2)(b) requires a respiratory therapist confirm the medical need for the requested item (in this case, distilled water) and that information in the March 13 and July 7, 2014 letters is from a clinical technician and respiratory educator, who is not a respiratory therapist. The panel notes that the pages of the manual provided by the respiratory therapist to the reconsideration officer on July 31, 2014 do not address the filling of the humidifier of the PAP machine. In the September 11, 2014 letter from the respiratory therapist submitted by the appellant's advocate at the hearing, the respiratory therapist wrote that "distilled water is recommended to be used in all PAP machines by all manufacturers" because regular tap water can leave a coating on the hum idifier's heating plate which "affects the ability of the machine to provide proper humidification to the patient which may compromise thei[ treatment." The respiratory therapist also wrote that, "use of distilled water in all PAP machines is standard practice in and out of all hospitals." Subsection 3.9(2)(b) requires that the respiratory therapist's assessment confirm the medical need for the requested item (in this case, distilled water for the humidifier of the PAP machine). The panel notes that the assessment provided by the respiratory therapist to the ministry's reconsideration officer on July 31, 2014 does not confirm the medical need for distilled water, but that it is a manufacturer's recommendation. The panel also notes that the September 11, 2014 letter from the respiratory therapist does not expressly confirm a medical need for the use of distilled water in the humidifier of the appellant's PAP machine. The respiratory therapist's September 11, 2014 letter states in general terms that it is standard practice to use distilled water in the humidifiers of PAP machines in and out of hospitals, and that the build up of minerals on the heating plate of the humidifier affects the humidifier's ability to properly humidify which "may compromise" the patient's treatment. Accordingly, the panel finds that the ministry's determination that the appellant's request does not meet the requirement of subs. 3.9(2)(b) is reasonable based on the evidence provided by the respiratory therapists. EAAT 003(1 0/06/01)
APPEAL# I Requirement of subsection 3.9(2)(c) I The ministry found that the appellant did not meet the requirement of subsection 3.9(2)(c) which provides that the minister must be satisfied that distilled water is medically essential for the treatment of moderate to severe sleep apnea. The ministry noted that the Clinical Technician and the manufacturer of the PAP machine indicated that using the humidifier prevents nasal congestion, prevents the user's throat from becoming sore or dry, and makes sleep therapy more comf o rtable. The panel notes that in his July 7, 2014 letter, the Clinical Technician writes that, "1 in a 1000 (users of the PAP machine] will or might experience epistaxis if there is insufficient or lack of humidity during any PAP therapy .... (and that] without [the humidifier] a patient might experience nasal congestion like symptoms which could lead to mouth opening thus ending their therapy abruptly." The panel notes that the Clinical Technician does not refer to the use of distilled water in the humidifier in the context of it being medically essential to treat sleep apnea, rather to the functioning of the humidifier. In the September 11, 2014 letter, the respiratory therapist writes that use of distilled water in the humidifiers of PAP machines is standard practice in and out of hospitals; however, the panel notes that the respiratory therapist does not assert that the use of distilled water in the humidifiers is medically essential to the treatment of sleep apnea. The panel also notes that in the telephone log notes of the ministry's conversation with the respiratory therapist on July 31, 2014, the respiratory therapist did not indicate that distilled water in the humidifier of the PAP machine is medically essential to treat sleep apnea. Accordingly, the panel finds that the ministry's determination that the appellant's request does not meet the requirement of subs. 3.9(2)(c) is reasonable based on the evidence provided by the Clinical Technician and respiratory therapists. Therefore, the panel confirms the ministry's decision to deny the appellant's request for distilled water to use in the humidifier of his PAP machine as the legislative requirements set out in subsections 3.9(2)(b) and 3.9(2)(c) of Schedule C of the EAPWDR were not met. EAAT 003( 10/06/01)
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