PART C – Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (the “ministry”) reconsideration decision of April 12, 2017 which denied the appellant’s request for a shower Bidet (“Bidet”). The ministry found that as the appellant is a person with disabilities (PWD), and she is eligible to apply to the ministry for health supplements under the Employment and Assistance for Persons with Disabilities Regulation (EAPWDR). However, the ministry found that the Bidet was not an eligible item, as it is not listed under EAPWDR Schedule C, so the ministry does not have the legislative authority to provide funding for the Bidet. PART D – Relevant Legislation EAPWDR section 62, 69 and Schedule C, section 3
PART E – Summary of Facts The ministry did not attend the hearing. The panel being satisfied the ministry was notified of the time and date of the hearing, the hearing proceeded under section 86(b) Employment and Assistance Regulation. The evidence before the ministry at the time of reconsideration: Medical Equipment Request and Justification form for a Bidet. The form was signed by the appellant and an occupational therapist (OT) on August 9, 2016. The appellant requires the Bidet for personal hygiene. Quote for Bidet from commercial source is $383.04; Letter of response from the ministry dated February 8, 2017; Request for Reconsideration dated March 23, 2017 with 3-page letter outlining her situation. In the appellant’s letter, she stated that throughout her disability she has always provided for herself until now by modifying items that she needed and now she needs help as the items are breaking down and she can’t fix them. She stated the most important item she needs has been denied. She stated that it is embarrassing for her to ask her husband to help her clean herself after toileting as she can’t do it herself. She stated she built a rubber hose sink adapter that has worked for almost 4 years. The adapter has broken and the stores no longer sell the parts she needs. The rubber adapter that she has been using has dried and is beginning to chip and a black ugly substance is growing in the cracks. Also, the adapter doesn’t fit properly anymore and water has leaked into the apartment below and with a proper Bidet she wouldn’t have this problem. She stated she was blessed with short arms so she needed her husband’s assistance to keep herself clean. She stated the small parts required to make her Bidet functional would cost less than $150.00. This is the one she wants because she can take it apart and take it with her if she ever moves from her current apartment. Letter of support from OT dated March 30, 2017 in which she states the appellant needs assistance for basic personal care and hygiene. The OT states this is a serious medical need as the appellant has had infections in the past and is due to have surgery in very near future and keeping herself clean is very important. The OT stated the Bidet recommended is the most economical solution for the task and situation. Additional Information Attached to her Notice of Appeal were: A letter of support from the appellant’s surgeon dated April 18, 2017 which states, “due to her mobility issues and surgical post op requirements, I am requesting that she be considered for the Bidet. This will ensure property hygiene for her postoperative healing and assistance in keeping her from infection.” Pictures of the appellant depicting her inability to reach behind herself; Pictures of the apparatus (home-made Bidet) the appellant used, which is now broken. At the hearing the appellant expressed her need for the shower Bidet as this is the only way she can attend to her personal hygiene without calling on her husband to assist her. She told the panel she is literally housebound because she cannot schedule when she may need to use a toilet and public facilities are not equipped to assist people with her particular problems. The appellant stated that she has experienced several infections because she is not able to properly clean herself and a shower Bidet will alleviate this issue. She also stated that with her pending surgery she is very worried and concerned that she may contract infections in her genital area again. The appellant’s husband told the panel that he willingly assists his wife with her toileting but not having the shower Bidet or being able to address her personal hygiene herself takes away her dignity. He stated that he can feel her embarrassment and having the Bidet is very important to her
and her independence. The OT told the panel she has been employed in her profession for over 20 years and certainly empathizes with the appellant and her need for the shower Bidet. The OT told the panel that she could arrange for home care to come in and assist the appellant with bathing and other items but she cannot schedule home care to attend when the appellant needs them, for example after a bowel movement. The OT stated that she realizes a shower Bidet is not an item listed in the legislation but she thought the ministry should be providing basic medical care and provide basic medical needs. The OT stated the cost of one home care visit is $35.00 and the total cost of the shower Bidet is less than $400. The shower Bidet would be portable so that the appellant could go shopping or just leave her home and provide her with independence. Admissibility of New Information The ministry did not provide an opinion on the information attached to the appellant’s Notice of Appeal and were not present at the hearing to provide a position on the evidence provided by the appellant or her witnesses. The panel has admitted the information contained in the appellant’s Notice of Appeal and the oral testimony of the appellant and her witnesses into evidence as the evidence 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 information in the Notice of Appeal refers to the letter from the OT dated March 30, 2017 and the letter dated April 18, 2017 from her physician supporting her request for the Bidet and corroborates to the appellant’s position with respect to her inability to help herself when toileting and the assistance she needs to attend to her personal hygiene.
PART F – Reasons for Panel Decision The issue on this appeal is whether the ministry’s decision to deny the appellant funding for the Bidet 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 was not eligible for a Bidet as it is not an eligible item as it is not listed under EAPWDR Schedule C? EAPWDR Section 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; Section 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). EAPWDR Schedule C - Health Supplements Section 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 Professions Act 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 the Health Professions Act 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 3.11 of this Schedule are the health supplements that may be provided by the minister if … 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. (k) a standing frame for a person for whom a wheelchair is medically essential to achieve or maintain basic mobility; (l) a positioning chair for a person for whom a wheelchair is medically essential to achieve or maintain basic mobility; (m) a transfer aid for a person for whom the transfer aid is medically essential to transfer from one position to another. 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 mattress 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. (3) The period of time referred to in section 3 (3) (b) of this Schedule with respect to replacement of a non-conventional glucose meter is 5 years from the date on which the minister provided the glucose meter being replaced. Eligibility for a Bidet as a bathing and toileting aid - Schedule C, section 3.5(1) The ministry’s position in the reconsideration decision is that a shower Bidet is not set out for as a health supplement under EAPWDR regulation, Schedule C, section 3.5(1) for the purposes of section 3 Schedule C. The ministry’s position is that is a Bidet is not one of the following items that are authorized: a grab bar in a bathroom, a bath or shower seat, a bath transfer bench with hand held shower, a tub slide, a bath lift, a bed pan or urinal, a raised toilet seat, a toilet safety frame, a floor-to-ceiling pole in a bathroom or bedroom, a portable commode chair, a standing frame for a person for whom a wheelchair is medically essential to achieve or maintain basic mobility, a positioning chair for a person for whom a wheelchair is medically essential to achieve or maintain basic mobility, or a transfer aid for whom the transfer aid is medically essential to transfer from one position to another. The appellant’s position is that she cannot clean herself when she goes to the toilet and needs the Bidet to avoid infection.
Panel Decision The panel finds that a Bidet is not one of the items listed in EAPWDR Schedule C section 3.5(1). The panel finds that the ministry may only provide items listed in schedule C, and is not legislatively authorized to provide an item not specifically listed. The panel finds that the ministry was reasonable in determining that the appellant was not eligible for the Bidet as a bathing and toileting aid. Eligibility for a Bidet as another type of medical equipment and devices- Schedule C, section 3 The ministry’s position, as set out in the reconsideration decision, is that while the appellant would benefit from the need for a Bidet, a Bidet is not one of the items set out in EAPWDR Schedule C, section 3 so the ministry does not have the authority to consider approval for the Bidet. The reconsideration decision states that a Bidet is not an item listed in EAPWDR Schedule C, sections 3.1 to 3.12 as it is not one of the following: cane, crutch, walker, wheelchair, scooter, hospital bed, pressure relief mattress, floor or ceiling lift device, positive airway pressure device, custom made or off the shelf foot orthotic, custom-made footwear, hearing instrument, or non-conventional glucose meter. The ministry’s position is they do not have any discretion on these matters and are not authorized to provide items that are not scheduled in the legislation. The appellant’s position is that she requires the Bidet to keep herself clean after toileting and prevent infection. The appellant argues that she is scheduled for surgery soon and she will need the Bidet to assist with her personal hygiene. The appellant’s position is that both her physician and the OT support her request so the ministry should fund the Bidet even if it does not fit within the legislated items. Panel Decision The evidence is that the appellant has utilized a home-made Bidet which she made herself for several years and now it can no longer be repaired and she needs to replace it. The appellant’s physician and the OT both recommend the appellant have a Bidet to assist her. However, the ministry is not able under the legislation to approve the appellant’s request because a Bidet is not an item listed as a Health Supplement in Schedule C that the ministry is authorized to provide. The panel finds that even if the appellant had met all the legislated criteria set out in Schedule C, section 3, a shower Bidet is not one of the items listed in EAPWDR Schedule C section 3.1 to 3.12. The panel finds that the ministry was reasonable in determining that the appellant was not eligible for the Bidet as medical equipment or device. Eligibility for the Bidet as a medical supply – Schedule C, section 2(1) The ministry found that the appellant is not eligible for the Bidet as a medical supply pursuant to EAPWDR section 2(1)(a)(i)(A-F) as it is not a disposable or reusable medical or surgical supply required for one of the itemized purposes being wound care, ongoing bowel care required due to loss of muscle function, catheterization, incontinence, skin parasite care or limb circulation care. The ministry’s position is that information was not submitted to establish that the Bidet is necessary to avoid an imminent and substantial danger to the appellant’s health as required in EAPWDR section 2(1)(a)(ii)(c). The ministry’s position is that the requested item (Bidet) does not meet the requirements for a medical or surgical supply as set out in Schedule C section 2(1)(a.1) as it is not one of the specified items such as a lancet, needle or syringe, ventilator supplies, or tracheostomy supplies.
The ministry’s position is that the Bidet is not a consumable medical supply set out in Schedule C section 2(1)(a.2) that is required to thicken food and meet the other requirements in relation to medical supplies as required by EAPWDR, Schedule C, section 2(1)(a.2). The ministry’s position is that pursuant to EAPWDR, Schedule C, section 2(1.1) medical and surgical supplies do not include nutritional supplements, food, vitamins, minerals or prescription medications so the requested items are not approved under that section of the legislation either. The appellant’s position is that the Bidet is not required to address a condition of incontinence. The Bidet is needed to assist her with cleaning herself after she has used the toilet. Panel Decision The EAPWDR, Schedule C, section 2(1)(a)(i) sets out that the ministry may provide either disposable or reusable medical or surgical supplies for wound care, ongoing bowel care, catheterization, incontinence, skin parasite care or limb circulation care if the supplies are prescribed by a medical practitioner, the least expensive supplies appropriate for the purpose and necessary to avoid an imminent and substantial danger to health, and there are no resources available to the family unit to pay the cost of or obtain the supplies. The panel finds that the ministry was reasonable in determining that the Bidet is not a medical supply required for one of the legislated purposes, being wound care, ongoing bowel care required due to loss of muscle function, catheterization, incontinence, skin parasite care or limb circulation care. The panel also finds that although the appellant’s concerns about her pending surgery are understandable and that she had endured previous infections, there is no medical evidence to indicate that the Bidet is necessary to avoid an imminent and substantial danger to health as required by EAPWDR Schedule C, section 2(1)(a)(ii)(c). The panel also finds that the ministry was reasonable in determining that the Bidet is not a medical or surgical supply for any of the purposes prescribed by EAPWDR, Schedule C, section 2(1)(a.1), (a.2) or 2(1.1) as it is not lancets, needles and syringes, ventilator supplies, tracheostomy supplies, or required to thicken food. The panel finds that the ministry’s decision that the appellant was not eligible to receive funding to purchase the Bidet as a medical supply was a reasonable application of the legislation in the circumstances of the appellant. Eligibility for the Bidet as a therapy – Schedule C, section 2 EAPWDR, Schedule C, sections 2(1)(c), 2(2) and 2(2.1) set out that the ministry may provide no more than 12 visits per calendar year in the amount of $23 for acupuncture, chiropractic, massage therapy, naturopathy, non-surgical podiatry and physiotherapy treatments. However, as the Bidet is not one of these therapies the panel finds that the ministry was reasonable in determining that the appellant is not eligible for funding for the Bidet as a therapy. Eligibility for health supplements under EAPWDR Schedule C, sections 2.1 to 9 EAPWDR, Schedule C, sections 2.1, 2.2, 4, 4.1, 5, 6, 7, 8, and 9 set out that the ministry may provide: optical supplements, eye examination supplements, dental supplements, crown and bridgework supplements; emergency dental supplements, diet supplements; monthly nutritional supplements; natal supplements; and infant formula. EAPWDR section 67(3) sets out that the
ministry may provide a nutritional supplement for an acute short-term need. The panel finds that as the Bidet is not one of the other health supplements specified in EAPWDR Schedule C, sections 2.1, 2.2, 4, 4.1, 5, 6, 7, 8 or 9, the ministry’s decision that the appellant was not eligible for funding for the Bidet as a health supplement was reasonable. Eligibility for Shower Bidet under Life-Threatening Health Need, section 69 EAPWDR The ministry’s position is that section 69 EWAPDR is intended to provide a remedy to those persons who are facing a direct and imminent life threatening health need for these supplements listed in Schedule C section 3 and are not otherwise eligible to receive them. The ministry’s position is that the appellant is a recipient of disability assistance and eligible to receive health supplements listed in Schedule C section 3 and therefore does not require the remedy of section 69 EAPWDR. The ministry’s position is the appellant’s application did not demonstrate that she faces a direct and imminent life-threatening health need for the Bidet. The appellant did not provide any information to the panel that she needs the Bidet to address a direct and imminent life-threatening need. The panel finds the ministry’s decision that the appellant does not have a direct and life-threatening need for a Bidet was reasonable. Conclusion The panel acknowledges that the Bidet has been recommended for the appellant and would be very beneficial in assisting her with her personal hygiene and toileting needs. However, having reviewed and considered all the evidence and the relevant legislation, the panel finds that the ministry’s reconsideration decision, which found that the appellant is not eligible for funding for the Bidet, was reasonably supported by the evidence and a reasonable application of the legislation in the circumstances of the appellant. The panel therefore confirms the ministry’s decision.
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