PART C – Decision under Appeal
The decision under appeal is the Ministry of Social Development and Social Innovation (the
ministry) reconsideration decision dated March 1, 2017 wherein the ministry determined the
appellant’s request for a health supplement for a CPAP machine and accessories did not meet
the eligibility requirements set out in the Employment and Assistance for Persons with
Disabilities Regulation (EAPWDR) Schedule C, Sections 3 and 3.9(2).
PART D – Relevant Legislation
Employment and Assistance for Persons with Disabilities Regulation, Section 62
Employment and Assistance for Persons with Disabilities Regulation, Schedule C, sections 3 and 3.9
PART E – Summary of Facts
With the consent of both parties, the hearing was conducted as a written hearing pursuant to section
22(3)(b) of the Employment and Assistance Act.
The information before the ministry at the time of reconsideration included the following:
The appellant is in receipt of disability assistance and is therefore eligible to receive health
supplements set out under Section 62 of the EAPWD Regulations.
On November 8, 2016, the ministry received a request for a CPAP machine and accessories. The
request included the following documents:
Price Quote prepared by a respiratory service company dated November 8, 2016 listing the
price for the CPAP machine and accessories totaling $2,627.00.
The appellant’s CPAP Trial Summary Report prepared by a Respiratory Therapist for the date
range of March 31, 2016 to September 26, 2016 noting an Apnea-Hypopnea Index (AHI)
average of 0.8.
Medical Equipment Request and Justification form dated October 1, 2015. Section 2 was
completed by a medical practitioner indicating the appellant has been diagnosed with
obstructive sleep apnea. Section 3 was completed by a Respiratory Therapist recommending
a CPAP machine with heated humidifier, mask, tubing and filters to meet the appellant’s
needs.
Letter written by a Nurse Practitioner dated September 7, 2016 in which is stated: “[He] has a
diagnosis of sleep apnea. He was suffering with increased fatigue, depressed mood and
increased irritability. He has been using CPAP therapy successfully for nearly a year. His sleep
has improved, he is much less irritable and his mood has improved with the use of CPAP
therapy. I recommend that he continue with CPAP therapy and that it is necessary for his long-
term health.”
Letter dated September 9, 2016 from a Respiratory Therapist stating: “This patient has been
diagnosed with Obstructive Sleep Apnea requiring the nightly use of CPAP/BiPAP therapy and
requires a new CPAP machine with heated humidifier, mask, filters and cleanable tub. I have
examined their equipment in question. [He] presented with many difficulties, including fatigue
and worsening anxiety, arising from his untreated sleep apnea, although his original DEI was
only ~ 13. This patient has been treated successfully with CPAP therapy for the past several
months. It is the hope of myself and [the patient’s] primary healthcare team that he can get
funding for ongoing treatment. This patient does use their CPAP therapy continuously and
compliance has been 100%. These recommendations are consistent with instances of
prescribed use and are necessary for this patient to continue with their therapy. We would
appreciate your consideration in providing funding approval for the purchase(s) as noted.”
Oximetry: Summary Report prepared by the respiratory service company for the study date of
September 18, 2016 describing the appellant’s saturation levels as ranging from a high of 98%
to a low of 83.4% with an average of 84%. The time with saturation level less than 90% was 3
minutes, 40 seconds, or 0.8% of the time.
Respiratory Report dated August 21, 2015 prepared by a medical practitioner who wrote in the
Comments section: “Epworth Sleepiness Score measures 0/24 which is normal for daytime
sleepiness. Patient’s STOP-Bang Score measures 4/8, which puts him at moderate risk for
OSA based in clinical features. The study was conducted for a total valid sampling time of 5
hours and 42 minutes on room air. Based on quantitative assessment, the desaturation event
index is elevated at 12.1 events per hour. 2.4% of the night was spent with an oxygen
saturation less than 88%. Qualitative pattern assessment reveals baseline oxygen saturation
throughout the night at about 92% with some desaturation events clustered at intervals
potentially related to REM sleep. In the Impression section, the practitioner noted: “Repetitive
cyclical desaturation pattern consistent with sleep apnea. Differential diagnosis includes
obstructive and central apnea/hypopnea. If there is high pre-test probability of obstructive
sleep apnea, a trial CPAP may be reconsidered. If not, a referral to a sleep specialist or clinic
is suggested for further evaluation and therapy.
On January 12, 2017, the ministry denied the appellant’s request for a CPAP machine and
accessories. The denial summary states: “The Polysomnogram (PSG) shows [the appellant’s]
Apnea Hypopnea Index (AHI) at 12.1 events per hour which is consistent with mild sleep
apnea test values. The report by the Interpreting Respirologist confirms mild obstructive sleep
apnea. Ranges for this test value are 0-5 normal, 5-15 moderate and 30+ severe, as per the
current consensus of the American Academy of Sleep Medicine. As per Schedule C, Section
3.9(2), CPAP therapy is funded by the ministry for moderate to severe sleep apnea. It is for
this reason that [the appellant’s] request for a CPAP trial is denied. In addition, a CPAP buyout
has been submitted for a CPAP machine; however, because the ministry has never approved
the initial CPAP trial the ministry has also denied the CPAP buyout.
The appellant submitted a Request for Reconsideration on February 15, 2017 in which he
state: ”I wish to be reconsidered because I do not sleep without it, causing depression, fatigue
and anger. I had to leave my job of three years because of it when I was in a stable position to
no longer require assistance. I had to start over again somewhere else and not stable enough
on my own to function without a machine. I am also attending a sleep lab to further prove my
need but please reconsider.”
In the Reconsideration Decision, the ministry found that the appellant’s request does not meet the
eligibility requirement set out in Subsection 3.9(2)(c) of the EAPWDR. This legislation sets out that
the ministry must be satisfied that the item is medically essential for the treatment of moderate to
severe sleep apnea.
The ministry provided the following description of factors used in diagnosing and assessing sleep
apnea including the Apnea-Hypopnea Index (AHI), the Respiratory Disturbance Index, daytime
sleepiness, as well as strong indicators for the presence of sleep apnea such as BMI, impaired
cognition, mood disorders, insomnia, hypertension, ischemic heart disease or stroke.
The AHI is an index used to assess the severity of sleep apnea based on the total number of
apnea (complete cessations in breathing) and hypopnea (any partial obstruction of the airway)
occurring per hour of sleep. To count the AHI, these pauses in breathing must last for 10
seconds and be associated with a decrease in the oxygen levels of the blood or an awakening
called an arousal. In general, the AHI can be used to classify the severity of disease (normal 0-
5, mild 5-15, moderate 15-30 and severe greater than 30.)
The AHI overlaps with the Respiratory Disturbance Index (RDI) though the RDI differs as it
includes other minor breathing difficulties. Although AHI is the standard measurement for
severity of sleep apnea, RDI is also used to classify the severity of disease (normal 0-5, mild
5-15, moderate 15-30 and severe greater than 30.)
Another measure used is the Desaturation Event Index (DEI) which is the number of times per
hour of sleep that the blood’s oxygen level drops by a certain degree from baseline. It is noted
the DEI is not a measurement of the frequency of apneas or hypopneas. DEI may also be
used to classify the severity of disease (normal 0-5, mild 5-15, moderate 15-30 and severe
greater than 30.)
The ministry explained that, as set out in its decision of January 12, 2017, it was not satisfied the
information submitted with the appellant’s initial application was indicative of the presence of
moderate to severe sleep apnea. It provided the following:
The appellant’s CPAP Trial Summary Report shows an AHI of 0.8 which is in the normal range
for sleep apnea. Ranges for this test value are 0-5 normal, 5-15 mild, 15-30 moderate and 30+
severe as per the current consensus of the American Academy of Sleep Medicine. It was
noted that this AHI measurement was based on breathing while wearing a CPAP as opposed
to normal room air breathing.
The Oximetry Summary Report indicates the total time spent with a saturation level less than
90% was 3 minutes, 40 seconds or 0.8% of the time.
The Respiratory Report dated August 21, 2015 indicates an Epworth Sleepiness Scale Score
of 0, which is the normal range. The Report also indicates a DEI of 12.1 events per hour. The
report states: “Repetitive Cyclical Desaturation pattern consistent with sleep apnea. […] If
there is a high pretest probability of obstructive sleep apnea, a trial CPAP may be
reconsidered. If not, a referral to asleep specialist or clinic is suggested for further evaluation
and therapy.” The Report further states: “Patient’s STOP-Bang Score measures 4/8 which puts
the appellant at moderate risk for OSA based in clinical features.” It is noted the Respiratory
Report summarizes a study conducted on room air.
The ministry stated that although the CPAP Trial Summary Report printed September 26, 2016
indicates the appellant benefited from the use of a CPAP machine, the findings of the practitioner as
noted in the Respiratory Report of August 21, 2015 are not indicative of moderate to severe sleep
apnea. The Respiratory Report states the appellant’s Epworth-Sleepiness Score was 0/24, which is
normal. The Report further states that the appellant’s STOP-Bang Score was 4/8, and although it
indicates a moderate risk for Obstructive Sleep Apnea, it does not establish the presence of
moderate to severe sleep apnea. Furthermore, the Respiratory Report indicates a DEI of 12.1 events
per hour, which is in the mild range.
The ministry noted that the report states “If there is a high pretest probability of obstructive sleep
apnea, a trial CPAP may be reconsidered. However, the Epworth-Sleepiness Score, the STOP-Bang
Score and the Desaturation Event Index represent pre-tests which are not indicative of a high
probability of obstructive sleep apnea.”
The ministry stated that while it is sympathetic with the circumstances of the appellant’s case and
acknowledges that he may benefit from using the requested equipment, it found there is not enough
evidence to demonstrate that a CPAP machine and accessories are medically essential for the
treatment of moderate to severe sleep apnea.
On March 13, 2017, the ministry received the appellant’s Notice of Appeal dated March 7, 2017. In
the Reasons for Appeal the appellant wrote: “I disagree with the definition; it’s not just fatigue. I am
depressed to the point of suicide before I started my treatment. If my treatment stops this it could start
again and I don’t want this.”
The appellant also submitted a letter in which he wrote: “Because you do not believe my problem is
not life threatening enough I will be attending a sleep lab in two-three weeks’ time to prove the
seriousness of my condition. During this time, they have discontinued my treatment to remove any
residue treatment. I found additional information from my doctor for resubmission in the meantime in
hopes I am not denied again because my depression, fatigue and frustration has returned. I am no
longer able to drive myself to work in fear of my own and others’ safety.”
As the statement contains information that was not before the ministry at the time of reconsideration,
the panel has determined that the statement is not admissible as evidence under Section 22(4) of the
Employment and Assistance Act.
The appellant submitted the following documents with the Notice of Appeal:
A copy of the Respiratory Report dated August 21, 2015 that was submitted to the ministry at
the time of the original request for medical equipment.
A Fax from a Respiratory Therapist to a Nurse Practitioner dated September 6, 2016 stating
that the appellant has been treated with CPAP therapy successfully for nearly a year and
requesting a short letter explaining that this therapy is necessary for his long-term health and
that he needs to be on CPAP therapy.
A letter from the Nurse Practitioner dated March 29, 2017 stating that the appellant has been
diagnosed with sleep apnea and was suffering with increased fatigue, depressed mood and
increased irritability. He has been using CPAP therapy successfully for nearly 1.5 years. His
sleep has improved, he is much less irritable and his mood has improved significantly with the
use of CPAP therapy. The practitioner strongly recommends that the appellant continues with
CPAP therapy and that it is necessary for his long-term health and well-being.
The panel finds the information in the documents submitted go to argument and do not contain new
information but are in support of the evidence before the ministry at the time of reconsideration. The
panel admits them as evidence under Section 22(4) of the Employment and Assistance Act.
PART F – Reasons for Panel Decision
The issue under appeal is the reasonableness of the ministry’s reconsideration of March 1,
2017 wherein the ministry determined the appellant’s request for a health supplement for a
CPAP machine and accessories did not meet the eligibility requirements set out in the
Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) Schedule C,
Sections 3 and 3.9(2).
The legislation considered:
EMPLOYMENT AND ASSISTANCE FOR PERSONS WITH DISABILITIES REGULATION
Part 5 Supplements
Division 4 — Health Supplements
General health supplements
62 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) a family unit in receipt of disability assistance,
(b) a family unit in receipt of hardship assistance, if the health
supplement is provided to or for a person in the family unit who is a
dependent child, or
(c) a family unit, if the health supplement is provided to or for a person
in the family unit who is a continued person.
[en. B.C. Reg. 145/2015, Sch. 2, s. 4.]
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) a person in the family unit is eligible to receive 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).
[en. B.C. Reg. 61/2010, s. 4; am. B.C. Regs. 197/2012, Sch. 2, s. 8;
145/2015, Sch. 2, s. 12.]
Schedule C
Health 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 provided by the minister, and
(b) the period of time, if any, set out in sections 3.1 to 3.12 of this
Schedule, as applicable, for the purposes of this paragraph, has passed.
Medical equipment and devices — breathing 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:
(a) if all of the requirements set out in subsection (2) of this section are
met,
(i) a positive airway pressure device,
(ii) an accessory that is required to operate a positive airway
pressure device, or
(iii) a supply that is required to operate a positive airway pressure
device;
(b) if the minister is satisfied that the item is medically essential to
monitor breathing,
(i) an apnea monitor,
(ii) an accessory that is required to operate an apnea monitor, or
(iii) a supply that is required to operate an apnea monitor;
(c) if the minister is satisfied that the item is medically essential for
clearing respiratory airways,
(i) a suction unit,
(ii) an accessory that is required to operate a suction unit, or
(iii) a supply that is required to operate a suction unit;
(d) if the minister is satisfied that the item is medically essential for
clearing respiratory airways,
(i) a percussor,
(ii) an accessory that is required to operate a percussor, or
(iii) a supply that is required to operate a percussor;
(e) if the minister is satisfied that the item is medically essential to avoid
an imminent and substantial danger to health,
(i) a nebulizer,
(ii) an accessory that is required to operate a nebulizer, or
(iii) a supply that is required to operate a nebulizer;
(f) if the minister is satisfied that the item is medically essential to
moisturize air in order to allow a tracheostomy patient to breathe,
(i) a medical humidifier,
(ii) an accessory that is required to operate a medical humidifier,
or
(iii) a supply that is required to operate a medical humidifier;
(g) if the minister is satisfied that the item is medically essential to
deliver medication,
(i) an inhaler accessory device,
(ii) an accessory that is required to operate an inhaler accessory
device, or
(iii) a supply that is required to operate an inhaler accessory
device.
(2) The following are the requirements in relation to an item referred to in subsection
(1) (a) of this section:
(a) the item is prescribed by a medical practitioner or nurse practitioner;
(b) a respiratory therapist has performed an assessment that confirms
the medical need for the item;
(c) the minister is satisfied that the item is medically essential for the
treatment of moderate to severe sleep apnea.
(3) The period of time referred to in section 3 (3) (b) of this Schedule with respect to
replacement of an item described in subsection (1) of this section is as follows:
(a) in the case of an item referred to in subsection (1) (a) (i), 5 years
from the date on which the minister provided the item being replaced;
(b) in the case of an item referred to in subsection (1) (a) (ii) or (iii),
one year from the date on which the minister provided the item being
replaced;
(c) in the case of an apnea monitor, suction unit, percussor, nebulizer or
medical humidifier, 5 years from the date on which the minister provided
the item being replaced;
(d) in the case of an inhaler accessory device, one year from the date on
which the minister provided the device being replaced;
(e) in the case of an accessory or supply for an item referred to in
paragraph (c) or (d), one year from the date on which the minister
provided the device being replaced.
Ministry’s Position
As per Section 3.9(2)(c), the minister can provide a health supplement for a breathing device
if the minister is satisfied that the item is medically essential for the treatment of moderate to
severe sleep apnea.
The appellant provided the ministry with reports of several assessments conducted over a
period of more than a year. The CPAP Trial Summary Report describes the appellant’s
Polysomnogram results, which show the appellant’s Apnea-Hypopnea Index (AHI) Score of
12.1 events per hour which is consistent with mild sleep apnea test values. The AHI is an
index used to assess the severity of sleep apnea based on the number of complete
cessations in breathing and any partial obstructions of the airway. Ranges for this value are 0-
5 normal, 5-15 mild, 15-30 moderate and 30+ severe.
The Oximetry Summary Report describes the Desaturation Event Index level of the appellant,
which is the number of times per hour of sleep that the blood’s oxygen level drops by a
certain degree from baseline. It can be used to classify the severity of disease (normal 0-5;
mild 5-15, moderate 15-30, and severe greater than 30. The appellant’s Score was 0.8%
which is mild.
The Respiratory Report shows an Epworth Sleepiness Score of 0/24 which is normal for
daytime sleepiness, and a STOP-Bang Score of 4/8 which puts the appellant at moderate risk
for Obstructive Sleep Apnea. This report also states that if there is a high pre-test probability
of obstructive sleep apnea, a trial CPAP may be considered. However, the Epworth-
Sleepiness Score, the STOP-Bang Score and the Desaturation Event Index level represent
pre-tests that are not indicative of a high probability of obstructive sleep apnea.
Based on the above information, the ministry found there is not enough evidence to
demonstrate that a CPAP machine and accessories are medically essential for the treatment
of moderate to severe sleep apnea.
Appellant’s Position
The appellant’s position is that he needs the CPAP machine because without it he is not able
to sleep. As a result, he suffers from fatigue, depression and anger. He lost a good job
because of his condition. He was depressed to the point of suicide before he originally started
using CPAP therapy and he is concerned that if his treatment stops, he could feel that way
again.
Panel Decision
Section 3.9(2) of the EAPWDR stipulates that the minister may provide a health supplement
for a breathing device if the item has been prescribed by a medical practitioner or nurse
practitioner, and a respiratory therapist has performed an assessment confirming a medical
need for the item, and the minister is satisfied that the item is medically essential for the
treatment of moderate to severe sleep apnea.
In the case of this appellant, a nurse practitioner has recommended that the appellant use a
CPAP for his long-term health and well-being. The test results performed by a respiratory
therapist show values that range from normal to moderate, not severe. The respiratory
therapist stated in a Fax to the ministry that “the client does NOT meet the [above listed]
screening criteria”, referring to the Sleep Disturbance Index the ministry considers to
determine funding for CPAP therapy.
There is no evidence to show that the item requested is medically essential for the treatment
of moderate to severe sleep apnea as required by legislation.
The panel finds the ministry’s decision that the appellant has not met the legislated criterion
was reasonable.
The panel confirms the ministry’s position.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.