PART C – Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the “ministry”) reconsideration decision dated February 22, 2016, which denied the appellant’s request for funding for a Sonic Alert Doorbell/Phone Signaler (the “Doorbell”) on the basis that it was not an eligible item under Schedule C of the Employment and Assistance for Persons With Disabilities Regulation (“EAPWDR”). The ministry found that the Doorbell is not an eligible item under EAPWDR section 62, 69 or Schedule C, and in particular, that it did not meet the criteria for a hearing instrument as defined in EAPWDR Schedule C, section 3.11. PART D – Relevant Legislation EAPWDR, section 62 and 69 and Schedule C Speech and Hearing Health Professionals Regulation, B.C. Reg. 413/2008
PART E – Summary of Facts The information before the ministry at the time of reconsideration included the following: The appellant’s Request for Reconsideration dated February 5, 2016 stating that “[y]ou sent me to a doctor not an audiologist. I got [a] signed paper that I needed doorbell light for my deafness (110 dB loss since age 10…Meningitis!) I’m to get one so I can close my door to safety”. Pictures of a Sonic Doorbell Signaler ($41.95) and Sonic Alert Wireless Door & Phone Signaler ($109.95). Medical Equipment Request and Justification form completed by the appellant’s physician on November 12, 2015 stating that the appellant requires a strobe light doorbell flasher due to deafness. Additional information provided In her Notice of Appeal the appellant states that the ministry’s decision was unreasonable because the ministry has paid for a door flasher in the past, sent her to the doctor, and that she requires the Doorbell for “…social acceptance/company so she can answer the door”. At the hearing the appellant provided oral evidence indicating that the ministry had paid for an alarm in the past and that she needs another one. The appellant stated that she cannot tell if someone is knocking at the door and needs an alarm as she would not be able to hear the door if there was a fire. The appellant brought a manual for a Clarity AlertMaster AL10 Visual Alert System (the “Alert System”) and stated that she does not know if the requested Doorbell will be suitable and would prefer to have the Alert System. The appellant stated that at the time she submitted her initial request she was hurrying to find the information to submit and trying to find the very cheapest option she could, but now that she has looked around a little more, she has found the Alert System which would be better long term, particularly as she is not sure how long she will be living in her current home. The appellant stated that the ministry told her to go and see a doctor and she did not understand that she needed to see an audiologist. The appellant also stated that she has a bone growth in her ear for which surgery is not an option so a hearing instrument is not suitable for her and she needs the Alert System for health and safety reasons and that she is completely isolated without this equipment. Admissibility of New Information The panel has admitted the appellant’s oral testimony into evidence as it is in support of information and records that were before the ministry at the time of reconsideration, in accordance with section 22(4) of the Employment and Assistance Act. In particular, the new information relates to the appellant’s hearing issues and need for the Doorbell or other similar system. The panel has accepted the Alert System manual as a submission. The ministry did not attend the hearing.
PART F – Reasons for Panel Decision The issue on this appeal is whether the ministry’s reconsideration decision denying the appellant funding for the Doorbell 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 Doorbell is not an eligible item under EAPWDR section 62 or 69 or Schedule C and in particular, that it did not meet the criteria for a hearing instrument as defined in EAPWDR Schedule C, section 3.11? The relevant legislation is as follows: 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 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 3.11, other than paragraph (a) of section 3 (1). (B.C. Reg. 61/2010) (B.C. Reg. 197/2012) EAPWDR Schedule C Definitions 1 In this Schedule: "audiologist" means an audiologist registered with the College of Speech and Hearing Health Professionals of British Columbia established under the Health Professions Act; "hearing instrument" has the same meaning as in the Speech and Hearing Health Professionals Regulation, B.C. Reg. 413/2008;
"hearing instrument practitioner" means a hearing instrument practitioner registered with the College of Speech and Hearing Health Professionals of British Columbia established under the Health Professions Act; 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; (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 Health ProfessionsAct 2 chiropractic chiropractor College of Chiropractors of British Columbia under the Health Professions Act 3 massage therapy massage therapist College of Massage Therapists of British Columbia under theHealth ProfessionsAct
4 naturopathy naturopath College of Naturopathic Physicians of British Columbia under the Health Professions Act 5 non-surgical podiatry podiatrist College of Podiatric Surgeons of British Columbia under the Health Professions Act 6 physical therapy physical therapist College of Physical Therapists of British Columbia under the Health Professions Act (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-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. 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 (B.C. Reg. 197/2012) (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. Medical equipment and devices – canes, crutches and walkers
3.1 (1) Subject to subsection (2) of this section, the following items are health supplements for the purposes of section 3 of this Schedule if the minister is satisfied that the item is medically essential to achieve or maintain basic mobility: (a) a cane; (b) a crutch; (c) a walker; (d) an accessory to a cane, a crutch or a walker. (2) A walking pole is not a health supplement for the purposes of section 3 of this Schedule. Medical equipment and devices – wheelchairs 3.2 (1) In this section, "wheelchair" does not include a stroller. (2) Subject to subsection (4) of this section, the following items are health supplements for the purposes of section 3 of this Schedule if the minister is satisfied that the item is medically essential to achieve or maintain basic mobility: (a) a wheelchair; (b) an upgraded component of a wheelchair; (c) an accessory attached to a wheelchair. Medical equipment and devices – wheelchair seating systems 3.3 (1) The following items are health supplements for the purposes of section 3 of this Schedule if the minister is satisfied that the item is medically essential to achieve or maintain a person's positioning in a wheelchair: (a) a wheelchair seating system; (b) an accessory to a wheelchair seating system. Medical equipment and devices – scooters 3.4 (1) In this section, "scooter" does not include a scooter with 2 wheels. (2) Subject to subsection (5) of this section, the following items are health supplements for the purposes of section 3 of this Schedule if all of the requirements set out in subsection (3) of this section are met: (a) a scooter; (b) an upgraded component of a scooter; (c) an accessory attached to a scooter. Medical equipment and devices – bathing and toileting aids 3.5 (1) The following items are health supplements for the purposes of section 3 of this Schedule if the minister is satisfied that the item is medically essential to facilitate transfers of a person or to achieve or maintain a person's positioning: (a) a grab bar in a bathroom; (b) a bath or shower seat; (c) a bath transfer bench with hand held shower; (d) a tub slide;
(e) a bath lift; (f) a bed pan or urinal; (g) a raised toilet seat; (h) a toilet safety frame; (i) a floor-to-ceiling pole in a bathroom; (j) a portable commode chair. Medical equipment and devices – hospital bed 3.6 (1) Subject to subsection (3) of this section, the following items are health supplements for the purposes of section 3 of this Schedule if the minister is satisfied that the item is medically essential to facilitate transfers of a person to and from bed or to adjust a person's positioning in bed: (a) a hospital bed; (b) an upgraded component of a hospital bed; (c) an accessory attached to a hospital bed. Medical equipment and devices – pressure relief mattresses 3.7 (1) A pressure relief mattress is a health supplement for the purposes of section 3 of this Schedule if the minister is satisfied that the pressure relief mattress is medically essential to prevent skin breakdown and maintain skin integrity. Medical equipment and devices – floor or ceiling lift devices 3.8 (1) In this section, "floor or ceiling lift device" means a device that stands on the floor or is attached to the ceiling and that uses a sling system to transfer a person. (2) A floor or ceiling lift device is a health supplement for the purposes of section 3 of this Schedule if the following requirements are met: (a) the minister is satisfied that the floor or ceiling lift device is medically essential to facilitate transfers of a person in a bedroom or a bathroom; (b) the cost of the floor or ceiling lift device does not exceed $4 200 or, if the cost of the floor or ceiling lift device does exceed $4 200, the minister is satisfied that the excess cost is a result of unusual installation expenses. Medical equipment and devices – positive airway pressure devices 3.9 (1) Subject to subsection (4) of this section, the following items are health supplements for the purposes of section 3 of this Schedule if all of the requirements set out in subsection (2) of this section are met: (a) a positive airway pressure device; (b) an accessory that is required to operate a positive airway pressure device; (c) a supply that is required to operate a positive airway pressure device. Medical equipment and devices – orthoses 3.10 (1) In this section:
"off-the-shelf" , in relation to an orthosis, means a prefabricated, mass-produced orthosis that is not unique to a particular person; "orthosis" means (a) a custom-made or off-the-shelf foot orthotic; (b) custom-made footwear; (c) a permanent modification to footwear; (d) off-the-shelf footwear required for the purpose set out in subsection (4.1) (a); (e) off-the-shelf orthopaedic footwear; (f) an ankle brace; (g) an ankle-foot orthosis; (h) a knee-ankle-foot orthosis; (i) a knee brace; (j) a hip brace; (k) an upper extremity brace; (l) a cranial helmet used for the purposes set out in subsection (7); (m) a torso or spine brace. Medical equipment and devices – hearing instruments 3.11 A hearing instrument is a health supplement for the purposes of section 3 of this Schedule if (a) the hearing instrument is prescribed by an audiologist or hearing instrument practitioner, and (b) an audiologist or hearing instrument practitioner has performed an assessment that confirms the need for a hearing instrument. Medical Equipment and devices – non-conventional glucose meters 3.12 (1) In this section, "non-conventional glucose meter" includes (a) a continuous glucose monitoring meter, and (b) a talking glucose meter. (2) A non-conventional glucose meter is a health supplement for the purposes of section 3 of this Schedule if the minister is satisfied that (a) the glucose meter is medically essential to test blood glucose levels, and (b) the person for whom the non-conventional glucose meter has been prescribed is unable to use a conventional glucose meter. Speech and Hearing Health Professionals Regulations Definitions 1 In this regulation: "audiologist" means a registrant who is authorized under the bylaws to practise audiology; "hearing instrument" means an appliance or a device designed or offered for a hearing condition, (a) including any ear molds, boots or other acoustic couplers and any parts or accessories for the appliance or device intended to affect the sound pressure level at the
eardrum, and (b) excluding direct audio input accessories, batteries and any accessories that are attachable to the appliance or device by the wearer and not intended to affect the sound pressure level at the eardrum; "hearing instrument dispensing" means the health profession in which a person provides the services of (a) assessment of hearing using an audiometer, or other methods, to identify hearing loss, and (b) recommending, selecting, preparing, altering, adapting, verifying, selling and offering to sell hearing instruments; "hearing instrument practitioner" means a registrant who is authorized under the bylaws to practise hearing instrument dispensing; "prescribe" means to issue an authorization to dispense for use by a named individual; ******* Eligibility criteria - Schedule C, medical equipment section 3.11 The appellant’s position is that she requires the Doorbell or Visual Alert system for safety and health reasons as she is deaf, socially isolated, and cannot hear the door. The appellant is not certain whether the Doorbell will be suitable and would prefer to have the Visual Alert system. The appellant’s position is that she cannot wear a hearing instrument that directly affects her hearing due to a bone growth in her ear so the Visual Alert system would provide similar assistance. The ministry’s position is that as the appellant is a recipient of disability assistance she is eligible to receive health supplements provided under section 62 and Schedule C of the EAPWDR and that she does not have any other resources for funding as required by EAPWDR Schedule C, section 3(1)(b)(ii). However, the ministry is not satisfied that the item requested was prescribed by an audiologist or hearing instrument practitioner as required by EAPWDR Schedule C, section 3.11. The ministry’s position is that the legislation indicates that audiologist and hearing instrument practitioners are restricted to prescribing and fitting, or prescribing and dispensing, wearable hearing instruments and that the Doorbell is not prescribed by an audiologist or hearing instrument practitioner. The ministry’s position is that a “hearing instrument” is defined to be an appliance or device intended to affect the sound pressure level at the eardrum and the requested Doorbell is not a wearable hearing instrument that directly affects the sound pressure level at the eardrum, so it cannot be considered a hearing instrument for the purposes of EAPWDR Schedule C, section 3.11.
The ministry’s position is that the requested Doorbell is not an item set out in the EAPWDR sections 3.1 to 3.12 as it is not a cane, crutch, walker, wheelchair, wheelchair seating system, scooter, mobility aid, hospital bed, pressure relief mattress, floor or ceiling lift device, positive airway pressure device, foot orthotic, hearing instrument or a non-conventional glucose meter. Panel Decision The panel finds that as the Doorbell was prescribed by the appellant’s physician and not an audiologist and the Doorbell is not a wearable hearing instrument that directly affects the sound pressure level at the eardrum, the ministry was reasonable in determining that the Doorbell cannot be considered a hearing instrument for the purposes of EAPWDR Schedule C, section 3.11. The panel finds that as the requested Doorbell is not one of the other items set out in the EAPWDR sections 3.1 to 3.10 or 3.12, as it is not a cane, crutch, walker, wheelchair, wheelchair seating system, scooter, mobility aid, hospital bed, pressure relief mattress, floor or ceiling lift device, positive airway pressure device, foot orthotic, or a non-conventional glucose meter, the ministry was reasonable in determining that the appellant was not eligible for the Doorbell as medical equipment pursuant to EAPWDR Schedule C, section 3.1 to 3.10 or 3.12. The panel appreciates the appellant’s argument that a wearable hearing instrument is not suitable for her and that the Doorbell or Visual Alert may be the only suitable type of equipment in her circumstances. However, the appellant did not provide any evidence from a physician, audiologist or hearing instrument practitioner to confirm her information regarding the bone growth or to confirm that she cannot wear a “hearing instrument”. In addition the legislation is clear that the requested device must be prescribed by an audiologist or hearing instrument practitioner. The panel also notes that while the appellant is now requesting funding for the Alert System, the panel’s jurisdiction is limited to a determination of whether the ministry’s reconsideration decision was reasonable. The panel does not have jurisdiction to consider the appellant’s request for funding for the Alert System. Eligibility for the Doorbell as a medical supply The appellant states that she requires the Doorbell or preferably the Alert System for medical reasons due to her deafness and inability to use a hearing instrument. The ministry’s position is that the Doorbell is not an eligible item as a medical supply pursuant to EAPWDR section 2(1)(a)(A-F) as it is not an item required for wound care, ongoing bowel care required due to loss of muscle function, catheterization, incontinence, skin parasite care or limb circulation care. The ministry found that the Doorbell does not meet the requirements for a medical or surgical supply as set out in Schedule C section 2(1)(a.1) as the requested item is not one of the listed medical supplies, being lancets, needles and syringes, ventilator supplies required for the operation or sterilization of a ventilator, or tracheostomy supplies.
The ministry found that the Doorbell is not a consumable medical supply as set out in EAPWDR Schedule C, section 2(1)(a.2) or a nutritional supplement set out in EAPWDR Schedule C, section 2(1.1). The ministry also found that the information provided did not establish that the Doorbell is necessary to meet an imminent and substantial danger to health as required by EAPWDR Schedule C, section 2(1)(a)(ii)(c). The panel finds that the ministry’s decision that the Doorbell is not eligible as a medical supply under section 2(1)(a)(A-F) or section 2(1)(a.1) or 2(1)(a.2) or 2(1.1) was reasonable as it is not an item specified in any of those sections. In particular, the Doorbell is not an item required for wound care, ongoing bowel care required due to loss of muscle function, catheterization, incontinence, skin parasite care or limb circulation care, and it is not one of the listed medical supplies, consumable medical supply, or a nutritional supplement. The panel also finds that as there was no information to establish that the Doorbell is necessary to meet an imminent and substantial danger to health, the ministry’s decision that EAPWDR Schedule C, section 2(1)(a)(ii)(c) was not met was reasonable. Eligibility for the Doorbell as an item in any of the other sections of the EAPWDR, Schedule C The appellant did not take the position that the Doorbell is eligible under any of the other sections of EAPWDR Schedule C. The ministry’s position is that the Doorbell does not meet the criteria as a therapy under EAPWDR Schedule C, sections 2(1)(c), 2(2) or 2(2.1) as it is not acupuncture, chiropractic, massage therapy, naturopathy, non-surgical podiatry or physiotherapy treatment. The ministry’s position is that the Doorbell does not meet the criteria as one of the other remaining health supplements set out in EAPWDR Schedule C, sections 2.1, 2.2, 4, 4.1, 5, 6, 7, 8 or 9 as it is not a dental supplement, crown and bridgework supplement, emergency dental supplement, diet supplement, monthly nutritional supplement, natal supplement or infant formula. The panel finds that the ministry’s decision that the Doorbell is not an eligible item in any of the other sections of EAPWDR Schedule C, as it is not a therapy and is not one of the remaining health supplements of a dental supplement, crown and bridgework supplement, emergency dental supplement, diet supplement, monthly nutritional supplement, natal supplement or infant formula was reasonable. EAPWDR section 69 - Eligibility for the Doorbell as a Health Supplement for Persons Facing Life-Threatening Health Need The appellant’s position is that she requires the Doorbell, or preferably the Alert System as she is deaf and that without an alarm that she can see, she faces medical and safety issues. The appellant states that she cannot hear someone knocking at her door and if there was a fire, she would not hear her door, which is a life threatening health need. Although the appellant lives in a facility where there is a building manager, strangers try to and sometimes get in the building and she has been told to
keep her door closed. The ministry’s position is that the appellant’s request for the Doorbell does not meet the legislated criteria as a life-threatening health need under EAPWDR section 69. The ministry states that section 69 applies to health supplements set out under Schedule C, sections 2(1)(a) to (f) and section 3 and is intended to provide a remedy for those persons who are facing a direct and imminent life-threatening health need for these supplements and who are not otherwise eligible to receive them. The reconsideration decision states that the information provided does not establish that the appellant faces a direct and imminent life-threatening health need for the Doorbell. The ministry notes that there is no explanation as to why the appellant is unable to close her door completely and that the facility she lives in has full-time support staff available at all times to come to her assistance in the event of an emergency. The ministry’s position is that even if the information provided established that the appellant faces a direct and imminent life-threatening need for the Doorbell, the Doorbell is not a health supplement set out in Schedule C, sections 2 and 3 and does not meet the requirements of EAPWDR Schedule C, sections 2(1)(a) and (f) and 3 to 3.12. Panel Decision EAPWDR section 69 applies where a person faces a direct and imminent life threatening health need and a health supplement is necessary to meet that need. The term “imminent” requires a degree of immediacy. The panel finds that the information provided does not establish that the appellant faces a direct and imminent life threatening health need. While the appellant may benefit from the Doorbell or Alert System and make access to others easier, the panel finds that the ministry reasonably determined that the information provided does not establish that the appellant faces a direct and imminent life-threatening health need as required by EAPWDR, section 69. Conclusion Having reviewed and considered all of the evidence and the relevant legislation, the panel finds that the ministry’s decision finding the appellant ineligible for funding for the Doorbell is a reasonable application of the legislation in the circumstances of the appellant. The panel therefore confirms the ministry’s decision.
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