PART C – Decision under Appeal The decision under appeal is the reconsideration decision dated December 13, 2016 in which the ministry denied the appellant’s request for a monthly nutritional supplement (MNS) for additional nutritional items. In its decision, the ministry determined the appellant did not meet the qualifying criteria set out in Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) section 67(1.1) (c) and (d). The ministry was not satisfied that the appellant requires nutritional items as part of a caloric supplementation to a regular dietary intake to alleviate symptoms as set out in subsection 67(1.1)(b) due to a progressive deterioration of health and to prevent imminent danger to life. PART D – Relevant Legislation Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), section 67(1.1) Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Schedule C, section 7
PART E – Summary of Facts The information before the ministry at the time of reconsideration included the following: An Application for Monthly Nutritional Supplement dated September 20, 2016, in the name of the appellant completed by her physician. The physician diagnoses the appellant with Myalgic Encephalomyelitis (ME) and Fibromyalgia (FM). The appellant’s physician writes: o the appellant’s condition contributes to malabsorption and increased nutrient needs. o The nutritional supplementation will increase muscle mass, strengthen immune system, and help with blood sugar, which helps with energy. o Without these items requested the patient will be at significant risk of further deterioration. o Weight is not a good indicator of health for ME/FM patients with low income, as it does not reflect food quality consumed. An interdisciplinary assessment report in the name of the appellant. The report includes an Occupational Therapist assessment, a detailed consultation, and a nutritional assessment form. A letter written by the appellant’s physician dated November 28, 2016. The physician writes: o The appellant is not able to meet her estimated protein and total nutrient needs with her current income. o Based on a diet history, the appellant is getting <50% protein goal therefore has protein energy malnutrition. o Appellant has an iron deficiency. o Malnutrition is a direct result of the chronic progressive, deterioration of health due to the patient’s severe medical conditions. o Appellant has limited ability to complete activities of daily living. o Appellant reports trouble thinking or remembering, attention difficulties, planning difficulties, confusion, bumping into objects, dropping objects, and difficulty with decision-making. o Appellant suffers from immune suppression. o Based on a dietitian assessment, the appellant requires higher protein and nutrient needs than a person without these conditions. A letter written by the appellant dated November 14, 2016. The appellant writes: o Her treatment protocol is based on extensive supplementation and high protein intake but she is unable to afford this treatment based on basic PWD assistance. o Her goal is to stabilize her health through the treatment protocol for her to be able to work part-time. In her notice of appeal dated December 26, 2016 the appellant writes she is unable to interpret the reason given for the denial of her MNS application and she requires the assistance of an advocate.
PART F – Reasons for Panel Decision The decision under appeal is the reasonableness of the ministry’s decision to deny the appellant’s application for Monthly Nutritional Supplements for additional nutritional items. The ministry determined the appellant did not meet the qualifying criteria set out in Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) section 67(1.1) (c) and (d). The ministry was not satisfied that the appellant requires nutritional items as part of a caloric supplementation to a regular dietary intake to alleviate symptoms as set out in subsection 67(1.1)(b) due to a progressive deterioration of health and to prevent imminent danger to life. The applicable legislation is the EAPWDR section 67and the EAPWDR Schedule C section 7: Nutritional supplement 67 (1) The minister may provide a nutritional supplement in accordance with section 7 [monthly nutritional supplement] of Schedule C to or for a person with disabilities in a family unit who receives disability assistance under (a) section 2 [monthly support allowance], 4 [monthly shelter allowance], 6 [people receiving room and board] or 9 [people in emergency shelters and transition houses] of Schedule A, or (b) section 8 [people receiving special care] of Schedule A, if the special care facility is an alcohol or drug treatment centre, if the minister is satisfied that (c) based on the information contained in the form required under subsection (1.1), the requirements set out in subsection (1.1) (a) to (d) are met in respect of the person with disabilities, (d) the person is not receiving a supplement under section 2 (3) [general health supplement] of Schedule C, (e) the person is not receiving a supplement under subsection (3) or section 66 [diet supplements], (f) the person complies with any requirement of the minister under subsection (2), and (g) the person's family unit does not have any resources available to pay the cost of or to obtain the items for which the supplement may be provided. (1.1) In order for a person with disabilities to receive a nutritional supplement under this section, the minister must receive a request, in the form specified by the minister, completed by a medical practitioner or nurse practitioner, in which the practitioner has confirmed all of the following: (a) the person with disabilities to whom the request relates is being treated by the practitioner for a chronic, progressive deterioration of health on account of a severe medical condition; (b) as a direct result of the chronic, progressive deterioration of health, the person displays two or more of the following symptoms: (i) malnutrition; (ii) underweight status; (iii) significant weight loss; (iv) significant muscle mass loss; (v) significant neurological degeneration; (vi) significant deterioration of a vital organ; (vii) moderate to severe immune suppression; (c) for the purpose of alleviating a symptom referred to in paragraph (b), the person requires one or more of the items set out in section 7 of Schedule C and specified in the request; (d) failure to obtain the items referred to in paragraph (c) will result in imminent danger to the person's life. (2) In order to determine or confirm the need or continuing need of a person for whom a supplement is provided under subsection (1), the minister may at any time require that the person obtain an opinion from a medical practitioner or nurse practitioner other than the practitioner referred to in subsection (1) (c). (3) The minister may provide a nutritional supplement for a period of 3 calendar months to or for a family unit if the supplement is provided to or for a recipient of disability assistance or a dependent child of a recipient of disability assistance if (a) the recipient or dependent child is not receiving a supplement under subsection (1) of this section or section 2 (3) of Schedule C, and (b) a medical practitioner or nurse practitioner confirms in writing that the recipient or dependent child has an acute short term need for caloric supplementation to a regular dietary intake to prevent critical weight loss while recovering from (i) surgery, (ii) a severe injury,
(iii) a serious disease, or (iv) side effects of medical treatment. Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Schedule C, section 7 Monthly nutritional supplement 7 The amount of a nutritional supplement that may be provided under section 67 [nutritional supplement] of this regulation is the sum of the amounts for those of the following items specified as required in the request under section 67 (1) (c): (a) for additional nutritional items that are part of a caloric supplementation to a regular dietary intake, up to $165 each month; (b) Repealed. [B.C. Reg. 68/2010, s. 3 (b).] (c) for vitamins and minerals, up to $40 each month. Arguments of the Parties The argument of the appellant is that she requires extra money to buy nutritious food in order to maintain her health. The appellant states that without these items her health is in imminent danger. The position of the ministry is that the appellant did not provide sufficient evidence to establish that, for the purposes of alleviating a symptom referred to in EAPWDR 67 (1.1)(b) the appellant requires one or more of the items set out in EAPWDR Schedule C as part of a caloric supplementation to a regular dietary intake. Furthermore, the ministry holds that the appellant has not provided sufficient evidence that failure to obtain the requested items will result in imminent danger to her life. Panel Decision and Reasons The panel will review the reasonableness of the ministry’s decision to find the appellant failed to meet the three criteria EAPWDR 67(1.1) (c), and (d). EAPWDR 67(1.1) (c) and EAPWDR Schedule C s. 7 (a) The ministry is satisfied that the appellant displays the following symptoms: malnutrition, significant muscle mass loss, moderate to severe immune suppression, and significant neurological loss. However in order for the ministry to approve her for a nutritional supplement, the appellant must also meet other criteria. EAPWDR 67(1.1) (c) requires that for the purposes of alleviating a symptom noted above, the appellant require one or more of the items set out in EAPWDR Schedule C s.7. This section requires that the additional nutritional items are part of a caloric supplementation to a regular diet. In its decision the panel considered the evidence and augments submitted by the parties including the following details. The ministry argues that the appellant’s BMI is 34.6, which is in the obesity range, which is inconsistent with a person in need of caloric supplementation. The appellant’s physician writes in the application that weight is not a good indicator of health however the ministry argues that the BMI is a factor in determining if a person needs caloric supplementation. The physician has indicated the appellant is experiencing malnutrition and significant muscle mass loss. The ministry argues that the appellant’s muscle mass loss is more likely due to her inactivity caused by her documented fatigue versus being caused by lack of calories in her diet. The ministry relied on the evidence from the physician that the appellant needs high protein foods, organic vegetables, whole grains, healthy fats, and dairy foods. The ministry argues that these dietary recommendations suggest a need for a healthy diet and improved choices about her diet as opposed to a need for caloric supplementation. The ministry notes that the mal-absorption of nutrients reported by the physician will be addressed by the appellant’s approved application for Monthly Nutritional
Supplement, vitamin and minerals, and that there is insufficient evidence that caloric supplementation will address the issue of nutritional absorption. After its review of the evidence, the panel finds the ministry was reasonable when it determined the appellant did not meet the criteria set out in EAPWDR 67(1.1) (c) EAPWDR 67 (1.1) (d) The criteria set out in EAPWDR 67 (1.1) (d) that failure to obtain the items set out in EAPWDR 67 (1.1)(c) will result in imminent danger to the person’s life. The appellant’s physician writes that without the requested items the appellant will be at significant risk of further deterioration leading to the risk of infection and danger. The ministry writes the appellant has not provided sufficient evidence that she requires caloric supplementation nor that she has a medical condition that results in the inability to absorb sufficient calories to satisfy her daily requirements. The panel finds the ministry was reasonable to determine that the appellant has not provided sufficient evidence to confirm her life will be in imminent danger if she does not receive the requested items as set out in EAPWDR 67(1.1)(d). The panel finds that the ministry’s decision was reasonably supported by the evidence and therefore confirms the ministry’s decision.
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