Ministry of Social Development and Poverty Reduction

APPEAL # PART C – Decision under Appeal The decision under appeal is the reconsideration decision of the Ministry of Social Development and Social Innovation (the “ministry”) dated January 28, 2015 which held that the ministry was not able to approve the appellant’s request for a Rifton Pacer Gait Trainer (RPGT) because the appellant did not meet the eligibility requirements set out in the Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) section 69, and Schedule C sections 2(1)(a), 2(1)(c), 2(1.1), 2.1, 2.2, 3, 3.1 - 3.12, 4, 4.1, 5, 6, 7, 8, and 9. PART D – Relevant Legislation EAPWDR sections 62 and 69 EAPWDR Schedule C sections 2(1)(a), 2(1)(c), 2(1.1), 2.1, 2.2, 3, 3.1 to 3.12, 4, 4.1, 5, 6, 7, 8, and 9.

APPEAL # PART E – Summary of Facts The documentary evidence before the ministry at reconsideration included the following: 1. A quote dated June 3, 2015 from a supplier of medical equipment for the purchase of a RPGT and attachments/accessories. 2. A Medical Equipment Request and Justification form submitted on behalf of the appellant by her Physical Therapist. It was signed and dated by the Physical Therapist on June 18, 2014 and describes the appellant’s medical condition as “Acquired brain injury, craniotomy, cortical visual impairment and gastro-esophageal reflux, and long QT – syndrome”. It was also signed by a physician (signature illegible) on July 7, 2014 who wrote ‘’Rifton Pacer Gait Trainer K544 517C XL” in response to the question “What type of medical equipment is recommended?” Accompanying this form was a 4-page letter from the appellant’s Physical Therapist (PT) that listed the appellant’s equipment as follows (items not associated with basic mobility are not included): • Quickie Iris Wheelchair (tilt in space) with custom seating • Overhead Lift and 6-point sling • Easy-Stand Evolv • Rifton Pacer gait trainer –size large- on loan from (a rehabilitation facility) May 2014, will have to be returned Sept 2014 – quote for purchase has been obtained • Bilateral AFO’s • Suitcase ramp • Wheelchair Accessible Vehicle (make/model) • BHM Junior folding floor lift. The PT explained that the appellant experienced an anoxic brain injury secondary to cardiac arrest in August, 2009. She was in care facilities until May of 2010 when she returned home. Since that time she has been receiving rehabilitation and has made significant gains. Her family, caregivers and therapists have seen definite changes in her alertness and improvement in her motor skills. Additionally, her medications are being gradually reduced. The appellant can move her right leg independently, and is starting to be able to bear weight considerably on this side She has the head and trunk strength to maintain a sitting position with stand-by supervision for at least 20 minutes, and to sit in her wheelchair for up to 4 hours. She has tolerated 1 hour pool sessions where she is quite active the majority of the time. This has been a . . . successful therapeutic activity for her, to the point that she is able to “walk” independently in chest deep water . . . her progress with hydrotherapy over several years has allowed her to progress to the point of successfully trialling a gait trainer. The appellant is moved between her bed, wheelchair, recliner, commode, and stander via overhead mechanical lift and 6-point universal sling. Recently, she has progressed her weight bearing ability to the point of being able to do a partial weight bearing pivot transfer with mod/max assistance from one helper who is familiar with her. This was previously a heavy two person transfer. If this is continued to be practiced it is very possible that this could become a reasonable or moderate assistance from one person. She has also been using the Easy Stand Evolv mechanical sit-to-stand stander for bilateral lower extremity weight bearing. Currently, she is standing over a 20-minute period. She has also been weight bearing to some extent in the pool, and most recently has been using a gait trainer at home. The PT describes the RPGT and states “(I)t is the minimal equipment necessary in this category to achieve a safe and satisfactory result”. She adds that the appellant “ . . . is doing quite well in the gait trainer; she is still taking a lot of weight via the seat, but is able to propel the device on her own, and is tolerating being in the gait trainer for periods of around 20 minutes. She concludes that the appellant “ . . . has made great gains over the past five years and is continuing to make

APPEAL # strides and progress. In the first several years following her brain injury, (the appellant) was quite medically fragile, and also quite heavily medicated; as such her rehabilitation was limited by these factors. As (the appellant) has been able to tolerate medication decreases recently, she has been much more alert, and has had much more reserves of energy to make functional gains. It is the general feeling of her team that (the appellant) has not yet reached her rehabilitation potential. The gait trainer will allow her and her family to keep progressing her ambulatory status, and will ultimately help her to become more independent in her transfers, etc.” 3. A letter to the appellant from the ministry dated December 9, 2014 advising that the ministry has denied the appellant’s request for a RPGT. 4. The appellant’s Request for Reconsideration signed and dated January 13, 2015 that includes the following statement: “This request was denied because it was not shown that the RPGT would be used for Functional Mobility. It was stated that it would improve (the appellant’s) weight bearing ability. This is partially correct; however with the continued use of the RPGT, (the appellant) would develop the physical strength to stand on her own and transfer more easily from bed to chair, without the constant use of an overhead lift. She does use the RPGT that was on loan from (a medical facility) to go on walks with other family members and care givers. Just with the short time she had a loan of the RPGT she can walk without assistance other than the RPGT up to approximately 1 km. She can also stand on her own with little support for short periods. Attached are three pictures showing (the appellant) in the RPGT using it for functional mobility and one showing the direct results of its use. Unfortunately there are no other means of physical therapy for (the appellant) as she was denied due to (a specified hospital’s) policies. I respectfully request that you review the materials and reconsider your decision. Thank you for your time. I look forward to your reply.” The appellant’s Notice of Appeal was signed and dated February 8, 2015 and listed the following reasons for appeal: - “Definition of gait trainer/walker by Wikipedia. (wikipedia is not a reliable source and can be edited.) - I and others believe it is a piece of medical equipment and is funded as such by some health care insurances. - There is a medical need for (the appellant) to use a Gait trainer as stated by her PT to progress her ambulatory status. Attached to the Notice of Appeal was a 4-page submission that included a statement of policy of one health care provider (Aetna). The submission describes “Medical Benefits” provided by the RPGT and presents “Business Cases” which argue that the RPGT can save on costly medical and surgical interventions that might otherwise be needed. Prior to the hearing, the appellant submitted a Release of Information form authorizing her father and her mother as her representatives. In addition, she submitted a Representation Agreement form that listed her mother as her representative and her father as her alternate representative. At the hearing, the appellant ‘s father (AF) reported that he had recently had a conversation with someone who had until recently been one of the appellant’s physical therapists. He learned that the ministry had contacted this individual and had a telephone conversation with him regarding the appellant and her needs. The AF noted that there was nothing in the appeal record concerning this

APPEAL # conversation. He also reported that the therapist allowed that he had not provided enough information in the written justification he provided in the appellant’s request for the RPGT, to clearly establish the need for this equipment. He noted that the appellant is trapped in a wheelchair and she wants to regain (as much as possible of) the function she had before her acquired brain injury (ABI). The appellant has progressed so far with the use of the RPGT that she is now able to walk 1.67 kilometers in it. As a consequence of its use, the appellant has regained more regular functioning including more regular elimination. In addition, for some time after the ABI, she was mute but she has regained an ability to vocalize. The appellant’s gains in ambulatory status have been significant and this has lead to her requiring far fewer medications. Accordingly, she is now much more alert and has greater cognitive abilities. In response to a question from the panel, the AF confirmed that the RPGT would provide stability, balance and support for the appellant in ambulating. In response to another question, the AF indicated that the RPGT does not allow the appellant to go to places that cannot be reached with the wheelchair. He explained that the RPGT is lighter and more mobile than the wheelchair but its size is not smaller than the dimensions of the wheelchair. The AF added that there is one way in which the RPGT has provided enhanced mobility and function for the appellant. Since her ABI she has required a lift and crane to transfer from the wheelchair to the bed and vice versa. But due to her progress since using the RPGT she is now sometimes a ble to sit on the side of the bed and move from the bed to the wheelchair or to the RPGT, with the assistance of (just) one person, but without the need for the lift. The AF explained that the wheelchair does provide basic mobility in some situations where the RPGT would not work as effectively such as on rough terrain or on beaches. In response to a question from the panel, the AF concluded that the appellant would not be able to use a “regular” walker. The ministry representative stated that she had consulted with the ministry’s Supervisor of Medical Equipment on the matter of whether the RPGT was a “walker”. She reported that they had concluded that “ . . . they had no problem calling it a walker” and that it was “OK to call it (the RPGT) a walker”. She noted that the essential issue in this appeal centers around the interpretation of the phrase “ . . . medically essential to achieve or maintain basic mobility”. She explained that the ministry considers basic mobility to be getting from point A to point B. The ministry does not deny that the appellant has had a clear and significant benefit from the use of the RPGT but that is not what the legislation covers. She noted that there are occasions in which an individual on disability assistance may be funded to receive and use two pieces of equipment as mobility aides – although she indicated that this is rare – but where a wheelchair is not meeting the person’s need to get from A to B then a second device such as a scooter might be provided. She stated that the legislation doesn’t deal with rehabilitation. In some cases, she noted the equipment provided for basic mobility might be a more expensive option than another mobility aid but if the more expensive option meets the eligibility requirement and the less expensive option does not then the more expensive option will be chosen. She concluded by stating that she felt the reconsideration decision wasn’t clear enough on the reasons that the RPGT was denied. It was not clearly explained.

APPEAL # PART F – Reasons for Panel Decision The issue in this appeal is whether the ministry’s decision to deny the appellant’s request for a Rifton Pacer Gait Trainer was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the appellant. In particular, was the ministry reasonable in determining that the appellant did not meet the criteria set out in the EAPWDR? The relevant legislation is as follows: From the EAPWDR: General health supplements 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, Health supplement for persons facing direct and imminent life threatening health need 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, (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). Schedule C Health Supplements General health supplements 2 (1) The following are the health supplements that may be paid for by the minister if provided to a family unit that is eligible under section 62 [general health supplements] of this regulation: (a) medical or surgical supplies that are, at the minister's discretion, either disposable or reusable, if the minister is satisfied that all of the following requirements are met: (i) the supplies are required for one of the following purposes: (A) wound care; (B) ongoing bowel care required due to loss of muscle function; (C) catheterization; (D) incontinence; (E) skin parasite care; (F) limb circulation care; (ii) the supplies are (A) prescribed by a medical practitioner or nurse practitioner, (B) the least expensive supplies appropriate for the purpose, and (C) necessary to avoid an imminent and substantial danger to health;

APPEAL # (iii) there are no resources available to the family unit to pay the cost of or obtain the supplies; (a.1) the following medical or surgical supplies that are, at the minister's discretion, either disposable or reusable, if the minister is satisfied that all the requirements described in paragraph (a) (ii) and (iii) are met in relation to the supplies: (i) lancets; (ii) needles and syringes; (iii) ventilator supplies required for the essential operation or sterilization of a ventilator; (iv) tracheostomy supplies; (a.2) consumable medical supplies, if the minister is satisfied that all of the following requirements are met: (i) the supplies are required to thicken food; (ii) all the requirements described in paragraph (a) (ii) and (iii) are met in relation to the supplies; (b) Repealed. [B.C. Reg. 236/2003, Sch. 2, s. 2 (b).] (c) subject to subsection (2), a service provided by a person described opposite that service in the following table, delivered in not more than 12 visits per calendar year, (i) for which a medical practitioner or nurse practitioner has confirmed an acute need, (ii) if the visits available under the Medical and Health Care Services Regulation, B.C. Reg. 426/97, for that calendar year have been provided and for which payment is not available under the Medicare Protection Act, and (iii) for which there are no resources available to the family unit to cover the cost: Item Service Provided by Registered with 1 acupuncture acupuncturist College of Traditional Chinese Medicine under the H 2 chiropractic chiropractor College of Chiropractors of British Columbia under th 3 massage therapy massage College of Massage Therapists of British Columbia u therapist 4 naturopathy naturopath College of Naturopathic Physicians of British Columb 5 non-surgical podiatrist College of Podiatric Surgeons of British Columbia un podiatry 6 physical therapy physical therapist College of Physical Therapists of British Columbia un (d) and (e) Repealed. [B.C. Reg. 75/2008, s. (a).] (f) the least expensive appropriate mode of transportation to or from (i) an office, in the local area, of a medical practitioner or nurse practitioner, (ii) the office of the nearest available specialist in a field of medicine or surgery if the person has been referred to a specialist in that field by a local medical practitioner or nurse practitioner, (iii) the nearest suitable general hospital or rehabilitation hospital, as those facilities are defined in section 1.1 of the Hospital Insurance Act Regulations, or (iv) the nearest suitable hospital as defined in paragraph (e) of the definition of "hospital" in section 1 of the Hospital Insurance Act, provided that (v) the transportation is to enable the person to receive a benefit under the Medicare Protection Act or a general hospital service under the Hospital Insurance Act, and (vi) there are no resources available to the person's family unit to cover the cost. (g) Repealed. [B.C. Reg. 75/2008, s. (a).] (1.1) For the purposes of subsection (1) (a), medical and surgical supplies do not include nutritional supplements, food, vitamins, minerals or prescription medications. (2) No more than 12 visits per calendar year are payable by the minister under this section for any combination of physical therapy services, chiropractic services, massage therapy services, non-

APPEAL # surgical podiatry services, naturopathy services and acupuncture services. (2.1) If eligible under subsection (1) (c) and subject to subsection (2), the amount of a general health supplement under section 62 of this regulation for physical therapy services, chiropractic services, massage therapy services, non-surgical podiatry services, naturopathy services and acupuncture services is $23 for each visit. (3) If the minister provided a benefit to or for a person under section 2 (3) of Schedule C of the Disability Benefits Program Regulation, B.C. Reg. 79/97, the Income Assistance Regulation, B.C. Reg. 75/97 or the Youth Works Regulation, B.C. Reg. 77/97, as applicable, for the month during which the regulation was repealed, the minister may continue to provide that benefit to or for that person as a supplement under this regulation on the same terms and conditions as previously until the earlier of the following dates: (a) the date the conditions on which the minister paid the benefit are no longer met; (b) the date the person ceases to receive disability assistance. 2.1 Optical supplements 2.2 Eye examination supplements Medical equipment and devices 3 (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. (2) For medical equipment or devices referred to in sections 3.1 to 3.8 or section 3.12, in addition to the requirements in those 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; (b) an assessment by an occupational therapist or physical therapist confirming the medical need for the medical 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. (3) Subject to subsection (6), the minister may provide as a health supplement a replacement of medical equipment or a medical device, previously provided by the minister under this section, that is damaged, worn out or not functioning if (a) it is more economical to replace than to repair the medical equipment or device previously