PART C – Decision under Appeal
The decision under appeal is the Ministry of Social Development and Social Innovation (the
“Ministry”) reconsideration decision of July 17, 2017 (the “Reconsideration Decision”), which denied
the Appellant a supplement for the funding of fleet enemas, as the Appellant’s request did not meet
the eligibility requirements for a medical supply, pursuant to section 2(1) of the Employment and
Assistance For Persons with Disabilities Regulation (“EAPWDR”), for medical equipment, pursuant to
section 3(1)(b) of Schedule C to the EAPWDR, or under any of the other sections of Schedule C to
the EAPWDR. The Ministry also determined that the Appellant was not eligible for a health
supplement under section 69 of the EAPWDR for the fleet enemas.
PART D – Relevant Legislation
EAPWDR, sections 62 and 69
EAPWDR, Schedule C, sections 2, 3, 3.1 through 3.12, 4, 4.1, and 5 through 11
PART E – Summary of Facts
Information before the ministry at reconsideration
The following information was before the Ministry at the time of reconsideration:
A purchase authorization, dated May 30, 2017, for a sitz bath;
Surgery instructions, received by the Ministry on May 26, 2017, in respect of the Appellant’s
June 2, 2017 surgery for a fistula repair;
A prescription, dated May 26, 2017, from the Appellant’s doctor, prescribing two fleet enemas
for “colon surgery”, a donut cushion for “post fistula repair”, and a sitz bath pain for “perineal
maintenance post surgery”;
The Health Assistance Branch decision, which denied the Appellant funding for the fleet
enemas and the donut cushion;
The Appellant’s Request for Reconsideration, dated June 30, 2017, to which was attached an
undated four page typed submission by the Appellant;
Information provided on appeal
The Appellant’s Notice of Appeal, received by the tribunal on July 28, 2017 to which was
attached:
A prescription, dated July 28, 2017, from a doctor who was filling in for the Appellant’s
regular doctor; and
An undated one page typed submission by the Appellant.
The Appellant suffers from Crohn’s Disease and has previously had her colon removed, due to her
Crohn’s Disease and Colon Cancer. The Appellant was scheduled for a fistula repair on June 2,
2017, as she has a history of fistula wound infection and inflammation because of her Crohn’s
Disease. Fleet enemas were prescribed by her doctor for use prior to surgery in order to ensure that
the area of the fistula repair would be clear of fecal matter at the time of the surgery.
PART F – Reasons for Panel Decision
The issue on this appeal is whether the Ministry’s decision to deny the appellant a medical
supplement for fleet enemas was reasonably supported by the evidence or was a reasonable
application of the relevant statutory provisions in the circumstances of the appellant. In particular, the
issue on appeal is whether the Ministry reasonably determined that the Appellant was not entitled to
the supplement because the Appellant did not meet the criteria set out under Schedule C to the
EAPWDR for the provision of health supplements for medical supplies and equipment and did not
meet the criteria under section 69 of the EAPWDR either.
The relevant legislation is found in sections 62 and 69 of the EAPWDR, which authorizes the Ministry
to provide medical supplements generally, and sections 2, 3, 3.1 through 3.12, 4, 4.1, and 5 through
11 of Schedule C to the EAPWDR, which set out the specific eligibility requirements for supplements
for various types of medical supplies and equipment.
Section 62 of the EAPWDR authorizes the Ministry to provide health supplements in section 2 or
section 3 of Schedule C as follows:
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.
Sections 2 and 3 of Schedule C of the EAPWDR set out the criteria for eligibility for health
supplements and medical equipment and devices as follows:
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:
Ite
Service
Provided by
Registered with
m
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
massage
College of Massage Therapists of British
therapy
therapist
Columbia under the Health Professions Act
4
naturopathy
naturopath
College of Naturopathic Physicians of British
Columbia under the Health Professions Act
5
non-surgical
podiatrist
College of Podiatric Surgeons of British
podiatry
Columbia under the Health Professions Act
6
physical
physical
College of Physical Therapists of British
therapy
therapist
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
(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.
(4) Subject to subsection (6), the minister may provide as a health supplement
repairs of medical equipment or a medical device that was previously provided by
the minister if it is more economical to repair the medical equipment or device than
to replace it.
(5) Subject to subsection (6), the minister may provide as a health supplement
repairs of medical equipment or a medical device that was not previously provided
by the minister if
(a) at the time of the repairs the requirements in this section and
sections 3.1 to 3.12 of this Schedule, as applicable, are met in respect of
the medical equipment or device being repaired, and
(b) it is more economical to repair the medical equipment or device than
to replace it.
(6) The minister may not provide a replacement of medical equipment or a medical
device under subsection (3) or repairs of medical equipment or a medical device
under subsection (4) or (5) if the minister considers that the medical equipment or
device was damaged through misuse.
The specific medical equipment and devices for which the Ministry may provide supplements under
section 3 are enumerated in sections 3.1 through 3.12 of Schedule C to the EAPWDR. Likewise,
sections 4, 4.1, and 5 through 11 set out additional health supplements which the Ministry is
authorized to provide under Schedule C to the EAPWDR.
Finally, section 69 of the EAPWDR sets out the criteria for a health supplement where there is an
imminent life threatening health need:
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).
Appellant’s position
The Appellant’s position as expressed in her oral evidence and in the written attachment to her Notice
of Appeal is that the purpose of the fistula repair itself was wound care as her fistula would not be
able to heal without the surgery and the wound from an abcessed fistula carries with it a risk of
sepsis, which can be life threatening.
In the result, the Appellant argues that the fleet enemas, because they were required prior to the
fistula repair procedure, are a form of wound care for which she should be eligible for a health
supplement.
Ministry Position
Although the Ministry was satisfied that:
The fleet enemas were prescribed by the Appellant’s doctor;
The fleet enemas were the least expensive supplies appropriate in the Appellant’s
circumstances;
The fleet enemas were necessary to avoid an imminent and substantial danger to the
Appellant’s health; and
The Appellant had no other resources available to pay the cost of the fleet enemas,
the position of the Ministry is that the Appellant nevertheless does not meet the criteria for a health
supplement under section 2(1)(a) of Schedule C to the EAPWDR because it was not satisfied that the
fleet enemas were directly required for wound care or ongoing bowel care, as fleet enemas were
used only once in preparation for the Appellant’s fistula repair surgery.
The Ministry also denied the Appellant funding for the fleet enemas under sections 2(1)(a.1) and
2(1)(a.2) of Schedule C to the EAPWDR as those sections authorize the Ministry to provide a health
supplement for supplies which did not include fleet enemas. Likewise, the Ministry’s position is that
section 3 of Schedule C to the EAPWDR is not applicable as it authorizes the Ministry to provide a
health supplement in respect of the medical equipment specifically enumerated in sections 3.1
through 3.12 of Schedule C to the EAPWDR, which does not include fleet enemas.
The Ministry also set out that fleet enemas are not covered items under any other sections of
Schedule C to the EAPWDR.
Finally, the Ministry also took the position that the Appellant was not eligible for a health supplement
for the fleet enemas under section 69 of the EAPWDR because the Appellant was otherwise eligible
to receive health supplements under section 2(1)(a) and (f) of Schedule C to the EAPWDR.
Panel Decision
Section 2(1)(a)(i)(A) of Schedule C to the EAPWDR authorizes the Ministry to provide disposable or
reusable medical or surgical supplies where such supplies are required for “wound care.” In the
Appellant’s circumstances, the fleet enemas were prescribed by the Appellant’s doctor for use prior to
the fistula repair and the Appellant’s evidence is that she was required to use them in order for the
fistula repair procedure to be done. However, the purpose of the fleet enemas themselves does not
appear to have been “wound care.”
Section 2(1)(a)(i)(B) of Schedule C to the EAPWDR authorizes the Ministry to provide disposable or
reusable medical or surgical supplies where such supplies are required for “ongoing bowel care
required due to loss of muscle function.” At the time of the Reconsideration Decision there was no
information before the Ministry which indicated that the Appellant required ongoing bowel care due to
loss of muscle function. There was no indication in the information submitted by the Appellant with
her Notice of Appeal that she required ongoing bowel care due to loss of muscle function.
Subsections (C) through (F) of 2(1)(a)(i) of Schedule C to the EAPWDR concern health purposes not
applicable in the Appellant’s circumstances.
Sections 2(1)(a.1) and 2(1)(a.2) of Schedule C to the EAPWDR authorize the Ministry to provide
supplements for specific medical or surgical supplies and consumable medical supplies, respectively,
which do not include fleet enemas.
In view of the foregoing, the panel is satisfied that the Ministry reasonably determined that the
Appellant was not eligible for a health supplement for fleet enemas pursuant to sections 2(1)(a),
2(1)(a.1), and 2(1)(a.2) of Schedule C to the EAPWDR.
Section 3 of the EAPWDR authorizes the Ministry to provide a health supplement in respect of the
medical equipment specifically set out in sections 3.1 through 3.12 of Schedule C to the EAPWDR.
Specifically, sections 3.1 through 3.12 authorize the provision of health supplements in respect of the
following items, respectively:
Section
Items Authorized
3.1
Canes, crutches and walkers, including accessories to a
cane, crutch, or walker.
3.2
Wheelchairs, including an upgraded component of a
wheelchair and an accessory attached to a wheelchair.
3.3
Wheelchair seating systems, including an accessory to a
wheelchair seating system.
3.4
Scooters, including an upgrade component of a scooter and
an accessory attached to a scooter.
3.5
Toileting, transfers and positioning aids, including 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, and
a transfer aid for a person for whom the transfer aid is
medically essential to transfer from one position to another.
3.6
Hospital beds, including an upgraded component of a
hospital bed, an accessory attached to a hospital bed, and a
positioning item on a hospital bed.
3.7
Pressure relief mattresses.
3.8
Floor or ceiling lift devices.
3.9
Breathing devices, including a positive airway pressure
device, an apnea monitor, a suction unit, a percussor, a
nebulizer, a medical humidifier, an inhaler accessory device,
and accessories or supplies required to operate the items set
out under section 3.9.
3.10
Orthoses, including a custom-made or off-the-shelf foot
orthotic, custom-made footwear, a permanent modification to
footwear, off-the-shelf footwear required for the purpose set
out in subsection (4.1) (a), off-the-shelf orthopaedic footwear,
an ankle brace, an ankle-foot orthosis, a knee-ankle-foot
orthosis, a knee brace, a hip brace, an upper extremity
brace, a cranial helmet used for the purposes set out in
subsection (7), a torso or spine brace, a foot abduction
orthosis, a toe orthosis.
3.11
Hearing instruments.
3.12
Non-conventional glucose meters.
Sections 4, 4.1, and 5 through 11 of Schedule C to the EAPWDR concern dental supplements, crown
and bridgework supplements, emergency dental supplements, diet supplements, monthly nutritional
supplements, natal supplements, infant formula, and alternative hearing assistance supplements,
respectively.
Given that the fleet enemas do not fall under any of the items set out in sections 3.1 through 3.12 or
sections 4, 4.1, and 5 through 11 of Schedule C to the EAPWDR, the panel finds that the Ministry
was reasonable in its determination that the Appellant was not eligible for a health supplement in
respect of the fleet enemas under any of those sections of Schedule C to the EAPWDR.
Section 69 of the EAPWDR authorizes the Ministry to provide a health supplement to a person who is
not otherwise eligible for the supplement under the EAPWDR provided the Ministry is satisfied that:
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,
the health supplement is necessary to meet that need,
a person in the family unit is eligible to receive premium assistance under the Medicare
Protection Act, and
the requirements specified in the following provisions of Schedule C, as applicable, are met:
paragraph (a) or (f) of section (2)(1);and
sections 3 to 3.12, other than paragraph (a) of section 3 (1).
As the Ministry acknowledged, the Appellant met the first three criteria set out in section 69. However,
as set out above, the Appellant did not meet the criteria set out in section 2(1)(a) of Schedule C to the
EAPWDR as the fleet enemas were not directly prescribed for wound care or any of the other
purposes set out in subsections (A) through (F) of section 2(1)(a)(i) of Schedule C to the EAPWDR.
As section 2(1)(f) and sections 3 to 3.12 are inapplicable to the Appellant’s circumstances, the panel
finds that the Ministry reasonably determined that the Appellant was also not eligible for a health
supplement under section 69 of the EAPWDR.
Conclusion
Having reviewed and considered all of the evidence and the relevant legislation and for the reasons
provided above, the panel finds that the Ministry’s decision that the Appellant is not eligible for a
health supplement for fleet enemas is a reasonable application of the relevant statutory provisions in
the circumstances of the Appellant. In the result, the panel confirms the Ministry’s decision. The
Appellant is not successful on appeal.
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