PART C – DECISION UNDER APPEAL
The decision under appeal is the Ministry of Social Development and Poverty Reduction’s (“ministry”)
reconsideration decision dated May 14, 2018 in which the ministry found that the appellant was not
eligible for brush toothettes (“toothettes”) and nutricia phlexy-vits (“phlexy-vits”) as health supplements
under Schedule C of the Employment and Assistance for Persons with Disabilities Regulation
(“EAPWDR”) or as a life-threatening health need under section 69.
PART D – RELEVANT LEGISLATION
Employment and Assistance for Persons with Disabilities Regulation - EAPWDR - section 69 and
Schedule C
PART E – SUMMARY OF FACTS
The evidence and documentation before the minister at the reconsideration consisted of:
1. A Request for Reconsideration (“RFR”) signed by the appellant on April 23, 2018, with a hand-written
submission describing the appellant’s symptoms and medical need for the items requested. The
submission explains that toothettes are a dental hygiene product for people who are unable to use a
regular toothbrush (toothettes are used mainly in hospital settings and not available over the counter),
while phlexy-vits are a “medical food.” The following documents were attached to the RFR:
• A copy of the package label for phlexy-vits indicating the product is a “concentrated, powdered vitamin,
mineral and trace element preparation” and a “medical food” designed for older children and adults with
phenylketonuria and similar amino acid disorders.
• A letter from a registered dietitian dated March 20, 2018, describing the appellant’s medical need for
phlexy-vits. The dietitian notes that the appellant receives all of her nutrition “via g-tube,” and the
appellant has received “vitamin and mineral supplementation” with phlexy-vits “to eliminate her micro-
nutrient deficits.” The dietitian notes that the phlexy-vit powder mixes easily with water “and is given as a
medication.” The dietitian explains that the appellant cannot tolerate a regular a vitamin-mineral tablet
because even when crushed and mixed with water, any remaining grains result in a high risk of blockage
within the appellant’s feeding tube. The dietitian explains the required dosage, indicating the appellant
needs 4 boxes of phlexy-vits per year.
• A letter from a paediatrician dated July 15, 2016 (written in support of the appellant’s request for home-
schooling). The paediatrician identifies the appellant’s primary diagnosis as “Severe perinatal hypoxic
ischaemic encephalopathy” and her medical problems include cerebral palsy, recurrent pneumonias,
poor oro-motor skills (risk of aspiration), and long term gastrostomy tube feeding, among other things.
The paediatrician notes that the appellant’s condition has deteriorated since an episode of acute
pancreatitis in 2014, with more frequent infections, reduced recovery, and increased risk of aspiration.
2. Information from the ministry’s record of decision which included:
• A letter dated May 14, 2018 in which the ministry advised the appellant she was not eligible for
toothettes and phlexy-vits upon reconsideration of the ministry’s decision to deny these items.
• The reconsideration decision which indicates the appellant has Persons with Disabilities (“PWD”)
designation. On February 22, 2018, the ministry received the appellant’s request for toothettes and
phlexy-vits. On February 22, 2018, the ministry denied the request; and on April 20, 2018 the appellant
submitted the RFR which was reviewed by the ministry on May 14, 2018.
• A letter dated February 22, 2018 (with attached Decision Summary) in which the ministry advised the
appellant she was not eligible for toothettes and phlexy-vits as health supplements.
• A letter dated February 22, 2018 in which the ministry advised the appellant that her request for a
number of health items/ medical supplies (including “Tube Feed Supplies and Nutrition”) was approved
based on the appellant’s history of receiving the items under a separate ministry program when the
appellant was a minor child. The letter states that toothettes and phlexy-vits are not eligible items.
Additional information
On May 28, 2018, the Tribunal received the appellant’s Notice of Appeal with attached type-written
submission from an advocate (family member). The panel accepts the content of the submission as
argument.
The ministry did not submit any new evidence.
Procedural matter
The appellant did not attend the hearing. Upon confirming that she was notified of the date and time for
the hearing, the panel considered the appeal in the appellant’s absence as it is authorized to do under
section 86(b) of the Employment and Assistance Regulation.
PART F – REASONS FOR PANEL DECISION
The issue on appeal is whether the ministry reasonably determined that the appellant was not eligible for
toothettes and phlexy-vits as a health supplement under Schedule C of the EAPWDR or as a life-
threatening health need under section 69. In particular, was the ministry’s finding that the legislative
criteria were not met, reasonably supported by the evidence or a reasonable application of the
legislation?
The ministry based its reconsideration decision on the following legislation:
EAPWDR
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,
Nutritional supplement — short-term
67.001 The minister may provide a nutritional supplement for up to 3 months to or for a family unit in
receipt of disability assistance, if
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).
Schedule C - Health Supplements
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, [panel note: concerning various therapies]
(d) and (e)Repealed. [B.C. Reg. 75/2008, s. (a).]
(f) [panel note: concerning medical transportation]
2(1.1) For the purposes of subsection (1) (a), medical and surgical supplies do not include nutritional
supplements, food, vitamins, minerals or prescription medications.
2.1 Optical supplements
2.2 Eye examination 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 [panel note: pertaining to equipment/ devices
set out in sections 3.1 to 3.12]
3.1 Medical equipment and devices — canes, crutches and walkers
3.2 Medical equipment and devices — wheelchairs
3.3 Medical equipment and devices — wheelchair seating systems
3.4 Medical equipment and devices — scooters
3.5 Medical equipment and devices — toileting, transfers and positioning aids
3.6 Medical equipment and devices — hospital bed
3.7 Medical equipment and devices — pressure relief mattresses
3.8 Medical equipment and devices — floor or ceiling lift devices
3.9 Medical equipment and devices — breathing devices
3.10 Medical equipment and devices — orthoses
3.11 Medical equipment and devices — hearing instruments
3.12 Medical equipment and devices — non-conventional glucose meters
4 Dental supplements
4.1 Crown and bridgework supplement
5 Emergency dental supplements
6 Diet supplements
(2) A diet supplement under subsection (1) (d) may only be provided if the diet is
confirmed by a medical practitioner or nurse practitioner as being necessary for one of
the following medical conditions:
(a)cancer
(b)chronic inflammatory bowel disease;
(c)Crohn's disease;
(d)ulcerative colitis;
(e)HIV positive diagnosis;
(f)AIDS;
(g)chronic bacterial infection;
(h)tuberculosis;
(i)hyperthyroidism;
(j)osteoporosis;
(k)hepatitis B;
(l)hepatitis C.
Monthly nutritional supplement
7 The amount of a nutritional supplement that may be provided under section
67 [nutritional supplement] of this regulation is the sum of the amounts for those of the
following items specified as required in the request under section 67 (1) (c):
(a)for additional nutritional items that are part of a caloric
supplementation to a regular dietary intake, up to $165 each
month;
(b)Repealed. [B.C. Reg. 68/2010, s. 3 (b).]
(c)for vitamins and minerals, up to $40 each month.
8 Natal supplement
9 Infant formula
***
Analysis
The ministry was satisfied that the appellant is eligible to receive health supplements under section 62
and Schedule C of the EAPWDR as a person in receipt of PWD assistance. Thus, the criterion of basic
eligibility is not in dispute. Upon reviewing the eligibility requirements for specific health supplements
under Schedule C of the Regulation, and the criteria for life-threatening health need under section 69,
the ministry determined that it is not authorized to provide toothettes and phlexy-vits.
The panel provides the following analysis and decision for each of the legislative criteria the ministry
determined were not met:
Schedule C
Phlexy-vits is not a disposable of reusable medical supply under section 2(1)(a) of Schedule C
and toothettes and phlexy-vits are not required for one of the purposes listed in the
corresponding subsections
At the reconsideration, the ministry argues that phlexy-vits is not a disposable or reusable supply as
required by section 2(1)(a) of EAPWDR Schedule C. The ministry argues that the information submitted
by the appellant and her doctor does not establish that toothettes and phlexy-vits are directly required for
any of the purposes listed in section 2(1)(a)(i) A to F of Schedule C.
In the appeal submission, the advocate argues that the requested supplies are necessary to avoid
imminent and substantial danger to health. The advocate argues that toothettes should be considered in
the same category as cleansing products which the ministry already provides in terms of other items
such as gloves and wet wipes. Regarding phlexy-vits, the advocate argues they are necessary as part
of the appellant’s “G-tube feeding regimen” and are a “necessary health supplement to maintain bone
strength and normal organ function.” The advocate notes that the ministry provided the items when the
appellant was a minor child. The advocate argues that the appellant still requires the items “to prevent
detrimental health effects.”
Panel’s decision
Section 2(1)(a) of Schedule C requires medical or surgical supplies to be either disposable or reusable
and also for one of the purposes listed under section 2(1)(a)(i). The legislated purposes include wound
care, bowel care, catheterization, incontinence, skin parasite care, and limb circulation care. The
ministry accepted that toothettes are a disposable medical supply but was not satisfied that toothettes
are required for one of the purposes listed in the Regulation. The appellant indicates toothettes are for
the purpose of dental hygiene. Neither of the letters from medical professionals provide information
about toothettes. Based on the appellant’s evidence that toothettes are a dental hygiene specialty
product, the panel finds that the ministry reasonably concluded that toothettes are not required for wound
care or for any of the purposes listed in section 2(1)(a)(i) of Schedule C.
The appellant describes phlexy-vits as a “medical food.” The letter from the dietitian explains that flexi-
vits is used for vitamin/mineral supplementation: mixed with water and given as a medication. There is
insufficient evidence to establish that phlexy-vits is a disposable or reusable medical supply, necessary
for wound care or for any of the other purposes listed in section 2(1)(a)(i) of Schedule C. The panel
therefore finds that the ministry reasonably applied the legislation in concluding that toothettes and
phlexy-vits are not eligible items under section 2(1)(a) of EAPWDR Schedule C.
In addition, the ministry argues that for the purposes of section 2(1)(a), medical and surgical supplies do
not include a nutritional supplement or vitamin or mineral. The ministry bases its argument on section
2(1.1) of Schedule C which states: for the purposes of subsection 1(a), medical and surgical supplies do
not include nutritional supplements, food, vitamins, minerals or prescription medications. Under the
ministry’s interpretation of the legislation, phlexy-vits (“a vitamin, mineral and trace element preparation”
and “medical food” according to the package label) cannot be considered as a medical or surgical supply
for the purposes of Schedule C. The panel finds the ministry’s application of the legislation in
determining that phlexy-vits is not a medical or surgical supply was reasonable under section 2(1.1) as
well as section 2(1)(a) of Schedule C.
Phlexy-vits is not eligible as a consumable medical supply under section 2(1)(a.2) of Schedule C
The ministry argues that phlexy-vits is “for nutritional intake” and is not required to thicken food pursuant
to the legislative criteria. The ministry notes that the appellant does not argue that phlexy-vits is eligible
as a consumable medical supply.
Panel’s decision
Section 2(1)(a.2) of Schedule C authorizes the minister to provide consumable medical supplies as a
health supplement if the supplies are required to thicken food (among other criteria being met which are
are not in dispute). While the dietitian confirms that phlexy-vits is clearly consumable, she indicates it is
a nutritional supplement. There is insufficient evidence to establish that phlexy-vits is used to thicken foo
and the information in the record indicates the appellant is exclusively tube fed. Based on the evidence
as a whole, the panel finds that the ministry reasonably applied the legislation in the circumstances of the
appellant and reasonably found that phlexy-vits is not an eligible health supplement under section
2(1)(a.2) of Schedule C.
Toothettes and phlexy-vits are not eligible items under sections 3.1 to 3.12 of Schedule C and the
legislated criteria in these sections and in section 3 (for each of the items listed) have not been
met.
The ministry argues that toothettes and phlexy-vits are not among the health supplements listed in these
sections and the legislative criteria for each specific item are also not met. The appellant does not
provide an argument for eligibility under sections 3.1 to 3.12 of Schedule C.
Panel’s decision
The panel notes that in addition to the specific eligibility requirements for each item described in these
sections, the general requirements under sections 3(1) and 3(2) of Schedule C must also be met. The
panel finds that the ministry reasonably concluded that toothettes and phlexy-vits are not among the
items listed in sections 3.1 to 3.12. These sections set out eligibility criteria for medical equipment and
devices such as mobility aids, medical beds, and breathing apparatus among other things. Given that
toothettes and phlexy-vits are not listed as medical equipment in sections 3.1 to 3.12 of Schedule C, the
panel finds that the ministry reasonably determined they are not eligible health supplements under these
sections of the Schedule and that the other legislative criteria in section 3 were not met.
Toothettes and phlexy-vits are not an item set out in any other sections of Schedule C [sections
2(1)(c), 2(2), 2(2.1), 2(1)(f), 2.1, 2.2, 4, 4.1, 5, 6, 7, 8 and 9] or in section 67.3, and the other
legislated criteria for each of these health supplements have not been met
The ministry argues that toothettes and phlexy-vits do not meet the criteria for a therapy or for any of the
other health supplements listed in Schedule C or section 67.3 [sic: section 67.001] of the Regulation and
that the other legislated criteria for each of the supplements in these sections have not been met. The
ministry notes that the health supplements covered by these sections include therapies, medical
transportation, dental supplements, diet supplements, monthly nutritional supplements, and natal/infant
supplements. The ministry states that toothettes and phlexy-vits “are not one of these.” Regarding a
nutritional supplement under section 67.001, the ministry argues that phlexy-vits does not meet the
criteria for acute short-term need. The appellant argues that phlexy-vits is a “medical food”, necessary to
maintain bone strength and normal organ function as part of the appellant’s tube feeding regimen.
Panel’s decision
The ministry is authorized to fund therapies [sections 2(1)(c), 2(2), and 2(2.1)]; eye care [sections 2.1
and 2.2], medical transportation [section 2(1)(f)], and dental procedures [sections 4, 4.1, and 5] provided
that the specific eligibility criteria for each of these items are met. While toothettes are for the purpose of
dental hygiene, there is insufficient evidence to establish that toothettes are a “dental service” set out in
sections 4, 4.1, and 5 of Schedule C. The panel finds the ministry reasonably determined that toothettes
and phlexy-vits are not health supplements under these sections and that the specific criteria for each of
the supplements set out in these sections were also not met.
The remaining sections of Schedule C [sections 6 to 9] as well as section 67.001 of the EAPWDR allow
the ministry to provide nutrition-related supplements for adults, pregnant women, and infants where
specific eligibility criteria are met. Section 67.001 authorizes the minister to provide a short-term
nutritional supplement for 3 months or less. The dietitian states that the appellant has used phlexy-vits
“for many years”. The panel therefore finds that the ministry was reasonable in determining that phlexy-
vits is not a short-term nutritional supplement.
Regarding diet and nutritional supplements for adults, sections 6 and 7 of Schedule C set out the specific
eligibility criteria for these supplements. Under section 6, the ministry may provide a diet supplement if it
is necessary for one of the medical conditions listed in section 6(2) of Schedule C. The paediatrician’s
letter lists the appellant’s medical conditions but does not mention any of the conditions that are set out
in section 6(2). The panel therefore finds that the ministry reasonably determined that phlexy-vits is not
a health supplement under section 6 of Schedule C.
Regarding the monthly nutritional supplement under section 7 of Schedule C, the legislation requires
specific criteria to be met including the criteria that are set out in section 67 of the EAPWDR. The
section 67 criteria require, among other things, an application for the monthly nutritional supplement to
be completed by a medical or nurse practitioner [section 67(1.1)]. The letters from the dietitian and
paediatrician do not specifically request a monthly nutritional supplement. The dietitician prescribes
phlexy-vits to meet the appellant’s nutrition needs. Other criteria for a monthly nutritional supplement
such as the alleviation of specific symptoms under section 67(1.1)(b) are not addressed by the dietitian.
At the hearing, the ministry confirmed it did not receive an application for the monthly nutritional
supplement. Based on the evidence as a whole, the panel finds that the ministry reasonably determined
that phlexy-vits is not eligible as a monthly nutritional supplement under section 7 of Schedule C.
Toothettes and phlexy-vits are not eligible as a life-threatening health need under section 69
The ministry found that the appellant is not eligible to receive toothettes and phlexy-vits as a health
supplement for a person facing a direct and imminent life-threatening health need. The ministry argues
that the appellant is eligible to receive health supplements under the EAWDR, Schedule C [general
health supplements and medical equipment and devices] and, therefore, she does not require a remedy
under section 69. The ministry argues that the information submitted with the RFR does not establish
that the appellant faces a “direct and imminent” life-threatening need for toothettes and phlexy-vits. The
ministry also argues that toothettes and phlexy-vits are not health supplements as set out in sections 2
and 3 of EAPWDR Schedule C.
The advocate argues that toothettes and phlexy-vits are “necessary to avoid imminent and substantial
danger to health”. The advocate explains that toothettes help prevent life-threatening aspiration
pneumonia which the appellant “is extremely prone to” and phlexy-vits is necessary to prevent bone
fractures which are “potentially life-threatening” given the appellant’s medical condition. The advocate
argues that both items are necessary to “prevent detrimental health effects.”
Panel’s decision
In order to be eligible for a health supplement under section 69, the person must not only be facing a
direct and imminent life-threatening health need. There is also a requirement to be ineligible for health
supplements under sections 2(1)(a) and (f) and section 3 of EAPWDR Schedule C. As a PWD recipient,
the appellant meets the basic eligibility requirement for health supplements. The appellant is therefore
eligible to receive the health supplements set out under section 2(1)(a) and (f) and section 3 of Schedule
C provided that the specific criteria for each of the items in these sections are met. Accordingly, the
panel finds that the ministry reasonably determined the appellant does not require a remedy under
section 69.
In addition, the panel found that the ministry reasonably determined that toothettes and phlexy-vits are
not health supplements as described in sections 2(1)(a) and (f) of Schedule C [disposable and resusable
medical supplies, and medical transportation], nor are they included as eligible items under sections 3
and 3.1 to 3.12 of Schedule C. Without these criteria being met, the ministry has no legal authority to
provide toothettes and phlexy-vits even where a life-threatening health need is established. The panel
therefore finds that the ministry reasonably determined the appellant is not eligible for these items to
meet a direct and imminent life-threatening health need under section 69.
Conclusion
The panel finds that the ministry reasonably applied section 69 and Schedule C of the EAPWDR to find
the appellant ineligible for toothettes and phlexy-vits. The panel confirms the ministry’s reconsideration
decision. The appellant is not successful in her appeal.
PART G – ORDER
THE PANEL DECISION IS: (Check one)
UNANIMOUS
BY MAJORITY
THE PANEL
CONFIRMS THE MINISTRY DECISION
RESCINDS THE MINISTRY DECISION
If the ministry decision is rescinded, is the panel decision referred back to the Minister
for a decision as to amount?
Yes
No
LEGISLATIVE AUTHORITY FOR THE DECISION:
Employment and Assistance Act
Section 24(1)(a)
or Section 24(1)(b)
and
Section 24(2)(a)
or Section 24(2)(b)
PART H – SIGNATURES
PRINT NAME
Margaret Koren
SIGNATURE OF CHAIR
DATE (YEAR/MONTH/DAY)
2018-06-15
PRINT NAME
Kulwant Bal
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2018-06-15
PRINT NAME
Kim Polowek
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2018-06-15
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