I PART C -DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (the ministry) reconsideration decision dated October 3, 2018, which denied the appellant's request for a hip cushion because a hip cushion does not meet the legislated criteria as a health supplement set out in the Employment and Assistance for Persons with Disabilities Regulation (EAPWDR). PART D-RELEVANT LEGISLATION EAPWDR sections 62 and 69 and Schedule C.
I PART E -SUMMARY OF FACTS In her Notice of Appeal dated October 9, 2018 the Appellant requested a written appeal. By way of an Email dated November 9, 2018 the Ministry indicated that its submission is the reconsideration decision. Information before the Ministry at reconsideration: On July 18, 2018 the Appellant requested the ministry provide a hip cushion in advance of a visit to an orthopedic surgeon on August 16, 2018 and an expected surgery to follow thereafter. On July 27, 2018 the ministry received a quote for a hip cushion in the amount of $69.60 from a medical supplier. The Appellant provided the Ministry with the Request for Reconsideration dated October 4, 2018 with an excerpt from a surgical preparation booklet highlighting the need to, amongst other measures, "add pillow or raise cushion to l ow cha i rs " , and a Prescription from a medical doctor for a cushion. The Appellant stated that the hip cushion is required for recovery after her surgery to sit on and to assist with standing. She has been advised not to use regular pillows because they do not have any spring. On August 31, 2018 the ministry denied the request citing the requested hip cushion is not listed as an eligible health supplement funded under the EAPDWR Schedule C. Notice of Appeal On October 9, 2018 the Appellant submitted a Notice of Appeal. The Appellant stated that she would be having surgery on October 29, 2018 and will need the hip cushion for recovery. She stated that the hip cushion was not available through the Red Cross and it was vital for recovery and that this was too much for her small budget Hearing The Panel conducted a written hearing as requested by the Appellant pursuant to section 22(3) (b) of the Employment and Assistance Act In accordance with section 22(4) of the Employment and Assistance Act, the Panel can only admit evidence that was before the Ministry at the time of reconsideration and evidence that is in support of the information and records that were before the Ministry at the time of reconsideration. The Panel determined there was no additional information outside of that available to the Ministry at the time of reconsideration.
I PART F -REASONS FOR PANEL DECISION The issue in this appeal is whether the Ministry's decision to deny the Appellant's request for a hip cushion because the request does not meet the legislated requirements of the EAPWDR is reasonably supported by the evidence or a reasonable application of the legislation in the circumstances of the Appellant. 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, 67 Nutritional-supplement 69 Health-supplement for persons facing direct and imminent life-threatening health need 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 receiving premium assistance under the Medicare Protection Act, and (d) the requirements specified in the following provisions of Schedule C, as applicable, are met: (i) paragraph (a) or (f) of section (2) (1 ); (ii) sections 3 to 3.12, other than paragraph (a) of section 3 (1). Schedule C 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;
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3 . 9 p o s i t i v e a i r w a y p r e s s u r e d e v i c e s 3 . 1 0 o r t h o s e s 3 . 1 1 h e a r i n g i n s t r u m e n t 3 . 1 2 n o n c o n v e n t i o n a l g l u c o s e m e t e r s ( 1 ) I n t h i s s e c t i o n , " n o n c o n v e n t i o n a l g l u c o s e m e t e r " i n c ( a ) a c o n t i n u o u s g l u c o s e m o n i t o r i n g m e t e r , a n d ( b ) a t a l k i n g g l u c o s e m e t e r . ( 2 ) A n o n c o n v e n t i o n a l g l u c o s e m e t e r i s a h e a l t h s u p p l e m S c h e d u l e i f t h e m i n i s t e r i s s a t i s f i e d t h a t ( a ) t h e g l u c o s e m e t e r i s m e d i c a l l y e s s e n t i a l t o t e s t b l o o d ( b ) t h e p e r s o n f o r w h o m t h e n o n c o n v e n t i o n a l g l u c o s e m c o n v e n t i o n a l g l u c o s e m e t e r . 4 D e n t a l s u p p l e m e n t s 4 . 1 C r o w n a n d b r i d g e w o r k s u p p l e m e n t 5 E m e r g e n c y d e n t a l s u p p l e m e n t s 6 D i e t s u p p l e m e n t s 7 M o n t h l y n u t r i t i o n a l s u p p l e m e n t s 8 N a t a l s u p p l e m e n t s 9 I n f a n t F o r m u l a M i n i s t r y P o s i t i o n T h e M i n i s t r y ' s p o s i t i o n i s t h a t t h e A p p e l l a n t ' s r e q u e s t f o r a c a t e g o r i e s o f h e a l t h s u p p l e m e n t . T h e M i n i s t r y a c k n o w l e d S e c t i o n 6 2 a n d S c h e d u l e C o f t h e E A P W D R e g u l a t i o n b e M i n i s t r y a c k n o w l e d g e s t h e A p p e l l a n t ' s n e e d f o r a h i p c u s h c o v e r e d h e a l t h s u p p l e m e n t s u n d e r t h e E A P W D R e g u l a t i o c o v e r e d i t e m : 1 . T h e A p p e l l a n t i s n o t e l i g i b l e f o r a h i p c u s h i o n a s a 2 . A h i p c u s h i o n i s n o t o n e o f t h e l i s t e d h e a l t h s u p p l S c h e d u l e C , s e c t i o n s 3 . 1 t o 3 . 1 2 . 3 . A h i p c u s h i o n i s n o t a M e d i c a l S u p p l y u n d e r S c h e f o r o n e o f t h e l i s t e d p u r p o s e s a n d i t i s n o t o n e o f 4 . A h i p c u s h i o n i s n o t c o n s i d e r e d a T h e r a p y u n d e r h e a l t h s u p p l e m e n t a s p r o v i d e d u n d e r S c h e d u l e C 5 . A h i p c u s h i o n d o e s n o t m e e t t h e r e q u i r e m e n t s o f I l u d e s e n t f o r t h e p u r p o s e s o f s e c t i o n 3 o f t h i s g l u c o s e l e v e l s , a n d e t e r h a s b e e n p r e s c r i b e d i s u n a b l e t o u s e a h i p c u s h i o n i s n o t c o v e r e d u n d e r a n y o f t h e l e g i s l a t e d g e d t h e A p p e l l a n t i s e l i g i b l e f o r a h e a l t h s u p p l e m e n t u n d e r c a u s e s h e i s i n r e c e i p t o f d i s a b i l i t y a s s i s t a n c e a n d t h e i o n . H o w e v e r , t h e M i n i s t r y n o t e d t h a t a r e v i e w o f a l l o f t h e n S c h e d u l e C r e v e a l e d t h a t a h i p c u s h i o n w a s n o t a n O r t h o s i s u n d e r S c h e d u l e C , S e c t i o n 3 . 1 0 e m e n t s u n d e r M e d i c a l E q u i p m e n t a n d D e v i c e s u n d e r d u l e C , s e c t i o n 2 ( 1 ) ( a ) b e c a u s e i t i s n o t d i r e c t l y r e q u i r e d t h e m e d i c a l s u p p l i e s l i s t e d u n d e r s e c t i o n 2 ( 1 ) ( a . 1 ) . S c h e d u l e C , s e c t i o n s 2 ( 1 ) { c ) , 2 ( 2 ) a n d 2 ( 2 . 1 ) , a n d i s n o t a , s e c t i o n s 2 . 1 , 2 . 2 , 4 , 4 . 1 , 5 , 6 , 7 , 8 o r 9 . S c h e d u l e C , s e c t i o n 6 9 ( l i f e t h r e a t e n i n g n e e d ) .
I Appellant's Position The Appellant's position as stated in the Notice of Appeal is that she disagrees with the Ministry position because she requires a hip cushion for recovery and this is not available from the Red Cross and her budget is too small to allow for it. In the Request for Reconsideration the Appellant noted the need for a hip cushion for recovery after surgery and to be used in the vehicle home. She has been advised not to use a pillow as there is no spring in them like a hip cushion which will also help in standing after sitting. After paying bills from monthly PWD and CPP there are no funds available to purchase a hip cushion. The Appellant provided copies of a prescription from her doctor for a hip cushion and an excerpt from a surgery preparation booklet where the need to "add pillow or raised cushions to low chairs" was highlighted. Panel Decision The decision under appeal is that the Ministry denied the Appellant's request for a hip cushion under the provisions of the EAPDWR. The panel reviewed the analysis and decisions for each of the legislative criteria the Ministry said were not met. Under Schedule C section 3.10 the Ministry argues that a hip cushion cannot be considered an Orthosis in its various forms specified such as a hip brace as it is not worn on the body. Noting that a hip cushion is not include d in the defined list of an Orthosis, the Panel finds the Ministry's conclusion to be reasonable. Under Schedule C sections 3(1) to (12) Medical Equipment and Devices, the Ministry concludes that a hip cushion is not one of those listed. The panel finds this to be reasonable. In particular, under subsection 3.5 which permits the Ministry to provide items which are intended to maintain a person's positioning such as a positioning chair for a wheelchair, the Ministry reasonably concludes that the Appellant has not demonstrated a need for a wheelchair to achieve or maintain basic mobility or that the requested item is required to achieve or maintain positioning in a wheelchair. Additionally, the Ministry was also reasonable in concluding that a hip cushion is not a "transfer aid" which is defined as a transfer board, transfer belt or slider sheet. Subsection 3.6 authorizes the Ministry to provide a positioning item on a hospital bed and, the Ministry reasonably concludes that there is no indication the requested item will be used on a hospital bed. Subsection 3.7(1) allows for a pressure relief mattress that is medically necessary to prevent skin breakdown and maintain skin integrity. The Ministry has reasonably concluded that there is no evidence of such a requirement for the Appellant and that the item requested is not a mattress for sleeping and further there is no evidence that the hip cushion will be used for a wheelchair. In reviewing Schedule C section 2(1 )(a) Medical Supply, the Ministry notes the authority to provide medical or surgical supplies required for purposes including wound care, ongoing bowel care, catheterization, incontinence, skin parasite care and limb circulation care subject to a number of qualification requirements and has reasonably concluded that the item requested is not directly required for one of those purposes and that the information does not establish that the item requested is necessary to avoid an imminent and substantial danger to death. Subsection 2(1) (a.1) sets out a number of medical and surgical supplies and subsection 2(1 )(a.2) consumable medical supplies that may be provided but a hip cushion is not one of these supplies. The Ministry reviewed the remaining sections of Schedule C and finds the item requested does not meet the requirement of a therapy (sections 2(1 )(c), 2(2), 2(2)(1) and does not meet the criteria as one of the remaining supplements (sections 2(1), 2(2), 4, 4.1, 5, 6, 7, 8 and 9). This conclusion is reasonable as the supplements described in those sections, which includes dental and natal supplements, are clearly not hip cushions. Finally, the Ministry has reasonably concluded that a hip cushion does not meet the legislated eligibility requirements contained in section 69 life-threatening need. In reaching this conclusion, the Panel notes that this provision would only be applicable if the applicant was not eligible to receive health supplements under section 62 of the EAPDWA, which she is, and that section 69 also only allows for the provision of health supplements set out in Schedule C
The Panel has reviewed each of the relevant and applicable provisions of the EAPDWR in the context of the request of the Appellant and the Ministry's reasoning under each applicable section and finds that the Ministry has reasonably applied the provisions of the legislation. Conclusion The panel confirms the ministry's reconsideration decision as it was a reasonable application of the legislation. The appellant is not successful on appeal.
PART G -ORDER THE PANEL DECISION IS: (Check one) [8JUNANIMOUS □BY MAJORITY THE PANEL [8JCONFIRMS 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) D or Section 24(1)(b) 18] and Section 24(2)(a) 18] or Section 24(2)(b) D PART H -SIGNATURES PRINT NAME Keith Lacroix SIGNATURE OF CHAIR DATE (YEAR/MONTH/DAY) 2018-11-20 PRINT NAME Lowell Johnson SIGNATURE OF MEMBER DATE (YEAR/MONTH/DAY) 2018-11-20 0:> CP � :J:k,_ ...,...,.__ PRJNTNAME Jane Nielsen SIGNATURE OF MEMBER DATE (YEAR/MONTH/DAY) 2018-11-20
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.