Ministry of Social Development and Poverty Reduction

I APPEAL NUMBER PART C - DECISION UNDER APPEAL The decision under appeal is the Ministry of Social Development and Poverty Reduction (the "Ministry") reconsideration decision dated February 15, 2019 which held that the appellant was not eligible for a raised toilet seat and TENS machine and accessories because the requests did not meet the requirements set out in Schedule C Employment and Assistance for Persons with Disabilities Regulation ("EAPWDR"). Specifically, the Ministry found that the appellant was not eligible for the raised toilet seat by reason that the request did not meet the eligibility requirements set out in s.3(2)(a) or 3(2)(b) or 3.5(1) of Schedule C EAPWDR. The Ministry found, with respect to the TENS machine, the device is not an eligible health supplement funded pursuant to Schedule C, ss.3.1 to 3.12 EAPWDR. Further the Ministry determined that the TENS machine was not a medical supply pursuant to s.2(1)(a) of Schedule C, and didn't fall into any other category in Schedule C. The Ministry also determined that the appellant was not eligible by reason of a life-threatening health need pursuant to s.69 EAPWDR.

PART D - RELEVANT LEGISLATION s. 22 Employment and Assistance Act ("EAA") s.62, s.69, Schedule C Employment and Assistance for Persons with Disabilities Regulation ("EAPWDR")

I PART E - SUMMARY OF FACTS The evidence before the Ministry at reconsideration was: On November 16, 2019 the appellant submitted an application for a raised toilet seat o The application came from a medical supply store which stated "client requested these items for recurring hip issues and injuries associated with ankle, leg and hip problems. These items help mitigate pain and further problems. Please provide approval at your earliest convenience." o Price quote from the medical supply store listing the cost for a tall walking boot, black adjustable cane, and 4 inch raised toilet seat On February 13, 2019 the appellant submitted an application for a TENS machine (with accessories) o Letter from an Occupational Therapist stating: • The appellant has mobility limitations due to Legg-Calves Perthes disease in her left hip since childhood, tibia/fibula fracture dislocation to right ankle in 2015 requiring surgical plates/screws, post traumatic arthritis in right ankle, psoriatic arthritis, depression, anxiety and paranoid psychosis (2013). • The appellant has difficulty mobilizing due to left leg pain and right ankle pain. • The appellant found the TENS to be effective for pain relief and she requires the TENS unit, electrodes and wall charger. • She requires the bath seat and back rest for her safety and independence with showering and personal care activities. • The appellant relies on a cane to mobilize safety over short distances. • The recommended equipment is a raised toilet seat with armrests. Price quote from the Medical Supply store listing the cost of a TENS machine, TENS accessories, bath seat with back rest and cane for $319.12. March 1, 2019 handwritten note: o The appellant's current TENS machine no longer works o The appellant has experienced chronic pain for 30 years and the TENS machine has provided effective pain management o She has a possible left fibulae fracture and torn muscles around both knees o She has been diagnosed with a vascular necrosis (left hip), compressed spinal cord, 4 herniated discs, and cervical stenosis January 18, 2019 letter from the appellant's Physician o Long standing history of left hip arthritis secondary to Legg Calve Perthes disease o States x-ray findings: advanced and severe left hip degenerative changes with marked narrowing. She has complex hip arthritic joint with chronic pain on the background of possible ongoing infection. March 19, 2019 handwritten statement from the appellant: o She requests reconsideration for funding of a raised toilet sheet and TENS machine o Detailed description of his medical history, history of treatments, medical conditions, the impacts of chronic pain, the benefits of treatment by TENS machine and the need for a raised toilet seat

At the hearing, the appellant provided evidence that: The appellant stated that a TENS machine was prescribed because the Ministry would not cover the appellant in physiotherapy payments. The appellant was not able to see a chiropractor. The massage therapist was also not able to assist the appellant. The appellant was on 17 medications for pain to control pain. The appellant had braces, canes, walkers, and a borrowed wheelchair. The appellant stated that this TENS machine and the raised toilet seats are not luxury items to her. They are items that are necessary. The firstTENS machine was replaced in 1999 and the second was replaced in January 15, 2009.

The appellant says that in 2014 or 2015 she was told by the Ministry that the TENS machine would be reolaced.

I APPEAL NUMBER The appellant states that she asked the Ministry to repair the TENS machine but was told that it was too costly to repair the TENS machine and that ii would need to be replaced. Over the last 3.5 years the TENS machine slopped working. In April 16 two letters were sent from occupational therapists to the Ministry.

At the hearing the Ministry relied on their reconsideration decision. The Ministry did indicate that the appellant's request for a raised toilet seat was being reviewed. The Ministry confirmed that they do stand by their reconsideration decision denying the raised toilet seat at the time of their reconsideration decision.

The panel finds that the evidence from the appellant indicating that she originally asked the Ministry to repair her TENS machine is additional evidence that is in support of information before the Ministry at reconsideration, being that her TENS machine was no longer functioning. The panel admits this evidence pursuant to s.22(4)(b) EAA.

I APPEAL NUMBER I PART F - REASONS FOR PANEL DECISION The issue on appeal is whether the Ministry's decision to deny the appellant a raised toilet seat and TENS machine and accessories because the requests did not meet the requirements set out in Schedule C EAPWDR was reasonably supported by the evidence or a reasonable interpretation of the legislation in the circumstances of the appellant.

Specifically, was ii reasonable for the Ministry to determine that the appellant was not eligible for the raised toilet seat by reason that the request did not meet the eligibility requirements set out in s.3(2)(a) or 3(2}(b) or 3.5(1) of Schedule C EAPWDR. The Ministry found, with respect to the TENS machine, the device is not an eligible health supplement funded pursuant to Schedule C, ss.3.1 to 3.12 EAPWDR. Further the Ministry determined that the TENS machine was not a medical supply pursuant to s.2(1)(a) of Schedule C, and didn't fall into any other category in Schedule C. The Ministry also determined that the appellant was not eligible by reason of a life-threatening health need pursuant to s.69 EAPWDR.

The legislation provides: 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, (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 under 19 years of age, 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. 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 lime, 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 lime 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.

Medical equipment and devices - canes, crutches and walkers 3.1 (1) Subject to subsection (2) of this section, the following items are health supplements for the purposes of section 3 of this Schedule if the minister is satisfied that the item is medically essential to achieve or maintain basic mobility:

(a) a cane; (b) a crutch; (c) a walker; (d) an accessory to a cane, a crutch or a walker. (2) A walking pole is not a health supplement for the purposes of section 3 of this Schedule. Medical equipment and devices - wheelchairs 3.2 (1) In this section, "wheelchair" does not include a stroller.

(2) Subject to subsection (4) of this section, the following items are health supplements for the purposes of section 3 of this Schedule if the minister is satisfied that the item is medically essential to achieve or maintain basic mobilitv:

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I APPEAL NUMBER (a) a wheelchair; {b) an upgraded component of a wheelchair; (c) an accessory attached to a wheelchair. (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 (2) of this section is 5 years after the minister provided the item being replaced.

(4) A high-performance wheelchair for recreational or sports use is not a health supplement for the purposes of section 3 of this Schedule.

Medical equipment and devices - wheelchair seating systems 3.3 (1) The following items are health supplements for the purposes of section 3 of this Schedule if the minister is satisfied that the item is medically essential to achieve or maintain a person's positioning in a wheelchair:

(a) a wheelchair seating system; (b) an accessory to a wheelchair seating system. (2) 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 2 years from the date on which the minister provided the item being replaced.

Medical equipment and devices - scooters 3.4 (1) In this section, "scooter" does not include a scooter with 2 wheels.

(2) Subject to subsection (5) of this section, the following items are health supplements for the purposes of section 3 of this Schedule if all of the requirements set out in subsection (3) of this section are met:

(a) a scooter; (b) an upgraded component of a scooter; (c) an accessory attached to a scooter. (3) The following are the requirements in relation to an item referred to in subsection (2) of this section: (a) an assessment by an occupational therapist or a physical therapist has confirmed that it is unlikely that the person for whom the scooter has been prescribed will have a medical need for a wheelchair during the 5 years following the assessment;

(b) the total cost of the scooter and any accessories attached to the scooter does not exceed $3 500 or, if subsection (3.1) applies, $4 500;

(c) the minister is satisfied that the item is medically essential to achieve or maintain basic mobility. (3.1) The maximum amount of $4 500 under subsection (3) (b) applies if an assessment by an occupational therapist or a physical therapist has confirmed that the person for whom the scooter has been prescribed has a body weight that exceeds the weight capacity of a conventional scooter but can be accommodated by a bariatric scooter.

(4) The period of time referred to in section 3 (3) (b) of this Schedule with respect to replacement of an item described in subsection (2) of this section is 5 years after the minister provided the item being replaced.

(5) A scooter intended primarily for recreational or sports use is not a health supplement for the purposes of section 3 of this Schedule.

Medical equipment and devices -toileting, transfers and positioning aids 3.5 (0.1) In this section:

"positioning chair'' does not include a lift chair; "transfer aid" means a transfer board, transfer belt or slider sheet. (1) The following items are health supplements for the purposes of section 3 of this Schedule if the minister is satisfied that the item is medically essential to facilitate toileting or transfers of a person or to achieve or maintain a person's positioning:

(a) a grab bar in a bathroom; (b) a bath or shower seat; (c) a bath transfer bench with hand held shower; (d) a tub slide; (e) a bath lift; (f) a bed pan or urinal; (g) a raised toilet seat; (h) a toilet safety frame; (i) a floor-to-ceiling pole in a bathroom or bedroom; (j) a portable commode chair; (k) a standing frame for a person for whom a wheelchair is medically essential to achieve or maintain basic mobility; (I) a positioning chair for a person for whom a wheelchair is medically essential to achieve or maintain basic mobility;

(m) a transfer aid for a person for whom the transfer aid is medically essential to transfer from one position to another.

(2) 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 5 years from the date on which the minister provided the item being replaced.

Medical equipment and devices -hospital bed 3.6 (1) Subject to subsection (3) of this section, the following items are health supplements for the purposes of section 3 of this Schedule if the minister is satisfied that the item is medically essential to facilitate transfers of a person to and from bed or to adjust or maintain a person's positioning in bed:

(a) a hospital bed; (b) an upgraded component of a hospital bed; le\ an accesSO"' attached to a hos□ital bed;

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(d) a positioning item on a hospital bed. (2) 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 5 years from the date on which the minister provided the item being

replaced.

(3) The following items are not health supplements for the purposes of section 3 of this Schedule: (a) an automatic turning bed; (b) a containment type bed. Medical equipment and devices - pressure relief mattresses 3. 7 (1) A pressure relief mattress is a health supplement for the purposes of section 3 of this Schedule if the minister is satisfied that the pressure relief mattress is medically essential to prevent skin breakdown and maintain skin integrity.

(2) 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 5 years from the dale on which the minister provided the item being replaced.

Medical equipment and devices - floor or ceiling lift devices 3.8 (1) In this section, "floor or ceiling lift device" means a device that stands on the floor or is attached to the ceiling and that uses a sling system to transfer a person.

(2) A floor or ceiling lift device is a health supplement for the purposes of section 3 of this Schedule if the following requirements are met:

(a) the minister is satisfied that the floor or ceiling lift device is medically essential to facilitate transfers of a person in a bedroom or a bathroom;

(b) the cost of the floor or ceiling lift device does not exceed $4 200 or, if the cost of the floor or ceiling lift device does exceed $4 200, the minister is satisfied that the excess cost is a result of unusual installation expenses.

(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 (2) of this section is 5 years from the date on which the minister provided the item being

replaced.

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 accessorv that is reouired to onerate an annea monitor, or

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I APPEAL NUMBER (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.

(4) A ventilator is not a health supplement for the purposes of section 3 of this Schedule. Medical equipment and devices - orthoses 3.10 (1) In this section:

"off-the-shelf', in relation to an orthosis, means a prefabricated, mass-produced orthosis that is not unique to a particular person;

..o rthosis" means (a) a custom-made or off-the-shelf foot orthotic; (b) custom-made footwear; (c) a permanent modification to footwear; (d) off-the-shelf footwear required for the purpose set out in subsection (4.1) (a); (e) off-the-shelf orthopaedic footwear; (f) an ankle brace; (g) an ankle-foot orthosis; (h) a knee-;;mkle-foot orthosis; (i) a knee brace; U) a hip brace; (k) an upper extremity brace; (I) a cranial helmet used for the purposes set out in subsection (7); (m) a torso or spine brace; (n) a foot abduction orthosis; (o) a toe orthosis; In\ a walkina boot.

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I APPEAL NUMBER (2) Subject to subsections (3) to (11) of this section, an orthosis is a health supplement for the purposes of section 3 of this Schedule if

(a) the orthosis is prescribed by a medical practitioner or a nurse practitioner, (b) the minister is satisfied that the orthosis is medically essential to achieve or maintain basic functionality, (c) the minister is satisfied that the orthosis is required for one or more of the following purposes: (i) to prevent surgery; (ii) for post-surgical care; (iii) to assist in physical healing from surgery, injury or disease; (iv) to improve physical functioning that has been impaired by a neuro-musculo-skeletal condition, and (d) the orthosis is off-the-shelf unless (i) a medical practitioner or nurse practitioner confirms that a custom-made orthosis is medically required, and (ii) the custom-made orthosis is fitted by an orthotist, pedorthist, occupational therapist, physical therapist or podiatrist.