PART C – Decision under Appeal
The decision under appeal is the Ministry of Social Development and Poverty Reduction (the
“ministry”) reconsideration decision of August 23, 2017 in which the ministry denied the appellant
molded ear plugs for a diagnostic procedure (MRI) as the request did not meet the legislated criteria
pursuant to Schedule C or section 69 of the Employment Assistance for Persons with Disabilities
Regulation (EAPWDR). Specifically, the ministry determined that the appellant, being in receipt of
disability assistance, is eligible to receive health supplements, however is not eligible for molded ear
plugs:
as a hearing instrument pursuant to section 3 of Schedule C;
as any other type of medical equipment pursuant to section 3.1 to 3.12 of Schedule C;
as a medical supply pursuant to section 2(1)(a) of Schedule C;
pursuant to any other sections of Schedule C; and
does not meet the requirements of section 69 of the EAPWDR.
PART D – Relevant Legislation
EAPWDR Schedule C and section 69
PART E – Summary of Facts
The appellant is designated as a single person in receipt of Employment Assistance for Persons with
Disabilities benefits.
The evidence before the ministry at the time of reconsideration consisted of the following:
an audiogram dated May 13, 2016;
a letter dated May 17, 2016 from a hearing clinic to the family physician with the following
recommendations: “to adapt to the hearing condition, that not wearing ear plugs was
recommended and a therapy was also recommended, if the condition remains bothersome and
begins to hinder his quality of life”;
a letter dated October 19, 2016 from a specialist to the family physician noting a hearing
condition with recommendation of therapy;
an audiological record dated April 7, 2017 noting in the case history that the appellant suffered
sudden acoustic trauma and a recommendation of an ENT consult at the discretion of the
family physician;
a letter dated April 11, 2017 from a specialist to the family physician indicating that an MRI is
required;
a letter dated April 12, 2017 from an MRI department to the appellant confirming a June, 2017
appointment date;
a prescription dated June 1, 2017 for molded ear plugs from the appellant’s family physician;
a letter dated June 15, 2017 from an MRI department to the appellant confirming a July, 2017
appointment date;
a letter dated June 19, 2017 from the ministry’s Health Assistance Branch denying the request
for molded ear plugs as a hearing instrument practitioner had not recommended a hearing
instrument;
a letter dated July 18, 2017 from an MRI department to the appellant confirming a September,
2017 appointment date;
a 3 page typewritten note from the appellant, which is undated, explaining:
o
how his hearing condition happened;
o
that he has seen an ear, nose and throat specialist;
o
that his family physician scheduled an MRI for him;
o
that he has spoken to an MRI technician who explained that the ear plugs provided by them
are 29db NRR and are made of foam which did not fit adequately;
o
that the ear plugs used for MRI’s provide less protection than the 31db headset he uses
every day and that because of his condition he could not wear a headset inside the MRI
machine;
o
that he has researched MRI’s on the internet (10 pages of internet research included) and
discovered how his hearing condition could be worsened without proper hearing protection;
o
that only custom molded class A ear plugs would fit his ear canals and provide the proper
protection every time they are put in, and that he requires them specifically to have an MRI
done to identify whether there are any other medical reasons for his hearing condition;
o
that he has had to reschedule the MRI three times because he has not gotten the proper
hearing protection and that a delay could be fatal if other medical conditions are identified
a letter dated August 2, 2017 from the family physician confirming that the appellant has a
pending MRI and requires class A molded ear plugs to prevent further acoustic trauma
secondary to the noise produced by the MRI machine;
In his Notice of Appeal dated September 12, 2017 the appellant argues that he requires class A
molded ear plugs in order to get his MRI done without worsening his medical condition. The
appellant noted that he did not receive his denial in the mail, that he had to go to the office to get it
and that they have delayed his MRI.
At the hearing, the appellant explained that:
he requires Class A molded ear plugs because his ear canal is narrow and that standard foam
ear plugs do not provide him with adequate hearing protection to undergo the MRI that his
physician has ordered for him;
he does have a head set that he normally wears when he knows he will encounter loud noises
but that the MRI technician told him that he cannot wear the head set while in the MRI
machine;
he has had an audiological assessment done and has seen an ear, nose and throat specialist
to confirm his hearing condition and that the specialist recommended that he not wear ear
protection at all times, only when he is to encounter loud noise. The specialist also
recommended a therapy treatment plan for him;
his family physician has ordered the MRI as he needs to rule out other possible medical
conditions and that he has had his MRI appointments delayed three times due to his concern
over not having appropriate hearing protection to wear in the machine as the loud sounds
could worsen his hearing condition; and
he would not wear specially molded ear plugs all the time as they cut out most sounds, which
could be harmful if he were out and didn’t hear traffic, for example, but that he would wear
them when necessary, such as in the MRI machine.
At the hearing, the ministry relied on the reconsideration decision and emphasized that the eligibility
requirements for the provision of a hearing instrument under Schedule C section 3.11 have not been
met. The Ministry allowed that the legislation did not specifically state how a hearing instrument was
to be used, only that it be designed or offered for a hearing condition.
PART F – Reasons for Panel Decision
The issue under appeal is the reasonableness of the ministry decision of August 23, 2017 in which
the ministry denied the appellant molded ear plugs for a diagnostic procedure (MRI) as the request
did not meet the legislated criteria pursuant to Schedule C of the Employment Assistance for Persons
with Disabilities Regulation (EAPWDR). That is, was the ministry reasonable in determining that the
appellant was not eligible for molded ear plugs:
as a hearing instrument pursuant to section 3 of Schedule C;
as any other type of medical equipment pursuant to section 3.1 to 3.12 of Schedule C;
as a medical supply pursuant to section 2(1)(a) of Schedule C;
pursuant to any other sections of Schedule C; and
does not meet the requirements of section 69 of the EAPWDR?
Pursuant to Section 62 of the EAPWDR, the applicant must be a recipient of disability assistance, or
be a dependent of a person in receipt of disability assistance. If that condition is met, Schedule C of
the EAPWDR specifies additional criteria that must be met in order to qualify for various medical
equipment and devices. In this case, the ministry has found that the requirement of Section 62 has
been met in that the appellant is a recipient of disability assistance.
At issue is whether the requested molded ear plugs for a diagnostic procedure is an eligible item
under Schedule C or section 69 of the EAPWDR.
EAPWDR Schedule C:
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.
Medical equipment and devices — hearing instruments
3.11 (1) 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.
(2) The minister may provide a hearing instrument under this section only if the person is
not receiving a hearing assistance supplement under section 70.02 of this regulation.
Schedule C Definitions
1 In this Schedule:
"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;
Speech and Hearing Health Professionals Regulation
Definitions
1 In this regulation:
"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;
EAPWDR Section 69
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).
The appellant’s position is that he cannot use the standard foam ear plugs that are usually provided
during an MRI procedure because he is concerned that his hearing condition could be worsened
unless he uses the Class A molded ear plugs. The appellant argues that his family physician has
ordered the MRI to rule out other possible medical conditions and that he has had an audiological
assessment done that confirms he has a hearing condition.
The ministry’s position is that the eligibility requirements for the provision of a hearing instrument
under Schedule C section 3.11 have not been met. Specifically:
that a hearing instrument is an appliance or a device designed or offered for a hearing
condition. The ministry argues that although they acknowledge that the appellant does have
a hearing condition and that ear plugs are an appliance intended to affect the sound pressure
level at the eardrum, the appellant is requesting them for a diagnostic procedure (MRI) not for
a hearing condition;
that in order to provide funding for a hearing instrument that it must be prescribed by
an audiologist or a hearing instrument practitioner. The ministry argues that, in the
appellant’s situation, it was his family physician who prescribed the molded ear plugs, not an
audiologist or hearing instrument practitioner; and
that an audiologist or a hearing instrument practitioner has performed an assessment
that confirms the need for a hearing instrument. The ministry argues that, in the appellant’s
situation, there is no written evidence to establish that an audiologist or hearing instrument
practitioner has performed an assessment that confirms the need for molded ear plugs and
they note that the hearing instrument practitioner wrote in his evaluation of the appellant that to
adapt to his oversensitive hearing, not wearing earplugs was recommended.
Respecting section 69, the ministry argues that the appellant does not require a remedy under
section 69, because he is eligible to apply for health supplements under Schedule C and that the
information submitted does not demonstrate that the appellant faces a direct and imminent life-
threatening health need for the ear plugs.
The ministry argues that ear plugs are not a health supplement set out in any other section of
Schedule C, and that the request has not met all the requirements specified in those sections.
Panel Decision
Under the EAPWDR, the only health supplements that may be provided by the ministry are those set
out in Schedule C.
EAPWDR section 3 of Schedule C
Section 3(1) allows the minister to provide medical equipment and devices described in sections 3.1
to 3.12 of Schedule C to persons eligible under section 62 providing that they have pre-authorization,
have no resources available to pay the cost and is the least expensive appropriate medical
equipment or device.
The appellant is considered eligible under section 62 as he is a designated as a person with
disabilities, so we can review eligibility to Schedule C supplements, however the panel notes that the
appeal record did not contain sufficient evidence relating to whether there were any resources to pay
the cost of ear plugs or whether it was the least expensive appropriate medical equipment or device
so finds that the ministry reasonably determined the appellant did not meet all the requirements of
section 3(1).
Section 3.1 – 3.12 outlines all the various medical equipment and devices that the ministry may
provide. The panel reviewed all of the sections and find that section 3.11 is specifically related to
providing a hearing instrument.
A hearing instrument is determined to be a health supplement for the purposes of Section 3 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.
The panel first reviewed the definition of a hearing instrument. The Speech and Hearing Health
Professionals Regulation describes it, in part, as being an appliance or device that is designed or
offered for a hearing condition, including ear molds intended to affect the sound pressure level at the
eardrum. The ministry conceded that, in the appellant’s situation, ear plugs are a device that affects
the sound pressure level at the eardrum, however, that because the appellant required the ear plugs
for an MRI procedure and not for his hearing condition, that the eligibility requirement was not met.
The panel finds that this interpretation was not reasonable as there is no stipulation in the definition
about how often, or under what circumstances, the hearing instrument was to be used, only that it be
designed or offered for a hearing condition.
The panel reviewed section 3.11(a) which requires that the hearing instrument be prescribed by an
audiologist or hearing instrument practitioner. In the appeal record there is a prescription for Class A
molded ear plugs from the appellant’s family physician, however not from an audiologist or hearing
instrument practitioner. Because the ear plugs were not prescribed by an audiologist or hearing
instrument practitioner, the panel finds that the ministry reasonably determined the appellant was not
eligible under section 3.11(a).
The panel reviewed section 3.11( b) which requires that an audiologist or hearing instrument
practitioner has performed an assessment that confirms the need for a hearing instrument. The
appeal record does contain audiological assessments confirming the appellant has a hearing
condition, as well as a letter from an ear, nose and throat specialist who recommends a treatment
therapy for the appellant. However, there is no mention in these documents that that confirms the
need for the Class A molded ear plugs, so the panel finds the ministry reasonably determined the
appellant was not eligible under section 3.11(b).
The panel reviewed all the other categories of section 3, which include such items as canes,
wheelchairs, grab bars, hospital beds, airway devices, orthotics and glucose meters and finds that the
ministry reasonably determined that the appellant’s request for ear plugs did not fall under any of
these categories.
The panel also reviewed section 2 which relates to general health supplements for items such as
supplies for wound care, lancets, ventilators and for services such as chiropractic and physical
therapy. The panel finds that the ministry reasonably determined the appellant’s request for ear
plugs does not fall under any of these categories.
EAPWDR section 69
Section 69 allows for the provision of health supplements set out under section 2 and 3 of Schedule
C where a life-threatening health need exists, the requirements of sections 2 or 3 applicable to the
specific health supplement are met, and the applicant is not otherwise eligible for a health
supplement under the EAPWDR. The panel finds that there was not sufficient evidence in the appeal
record that demonstrates there is a life-threatening health need and because the appellant is a
person who is eligible to receive health supplements under Schedule C, providing he meet the
requirements of, in his situation, section 3, that the ministry reasonably concluded that he does not
meet the eligibility requirements of section 69.
Conclusion
In conclusion, the panel finds that the ministry’s reconsideration decision that determined that the
appellant is not eligible for Class A molded ear plugs for a diagnostic procedure (MRI) because the
requirements set out in Schedule C and section 69 of the EAPWDR were not met is a reasonable
application of the legislation in the circumstances of the appellant. The ministry’s reconsideration
decision is confirmed and the appellant is not successful on appeal.
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.