APPEAL NUMBER
PART C – DECISION UNDER APPEAL
The decision under appeal is the Ministry of Social Development and Poverty Reduction (the “Ministry”)
reconsideration decision of November 19, 2019 (the “Reconsideration Decision”), which denied the
Appellant’s request for a health supplement in respect of a replacement custom mattress for the
Appellant’s enclosure bed on the basis that a custom mattress is not eligible medical equipment or an
eligible medical supply under section 3 of Schedule C to the Employment and Assistance For Persons
With Disabilities Regulation (“EAPWDR and the Appellant had not established eligibility for a
replacement custom mattress as a life threatening need, pursuant to section 69 of the EAPWDR, or as a
crisis supplement, under section 57 of the EAPWDR.
P
ART D – RELEVANT LEGISLATION
EAPWDR, sections 57, 62, and 69
Schedule C to the EAPWDR, sections 2 and 3
APPEAL NUMBER
PART E – SUMMARY OF FACTS
The Appellant is a sole recipient of disability assistance who has cerebral palsy.
The information before the Ministry at the time of the Reconsideration Decision included the following:
•
A
funding request to a local health authority, dated April 25, 2019 and completed by t
he
A
ppellant’s occupational therapist (the “OT”), for replacement of the flip down side of
the
Appellant’s enclosure bed and a mattress for the Appellant’s enclosure bed;
•
a quotation, dated April 16, 2019, (the “Quotation”) for the cost of a custom mattress for
the
A
ppellant’s enclosure bed and repair of the enclosure bed’s rail pad;
•
a referral, dated March 5, 2019, from the Appellant’s doctor, recommending replacement of the
Appellant’s current mattress (the “Mattress”) due to the Mattress no longer being in “working
or
der” as it was “ripped and lacking support”;
•
the Appellant’s Medical Equipment Request and Justification (the “Request”) to the Ministry,
dated Febr
uary 15, 2019 and completed by the OT, setting out that the Appellant’s doctor was
recommending a “foam mattress for custom enclosed bed”;
•
the Ministry’s letter to the Appellant, dated October 3, 2019, denying the Appellant’s request for a
c
ustom gate pad and custom made mattress;
•
the Appellant’s Request For Reconsideration (“RFR”), dated November 1, 2019, which included:
•
all of the above documentati
on;
•
a new
letter from the Appellant’s doctor, dated October 22, 2019, recommending a custom
mattress and gate pad and noting that a mattress for a hospital bed was not appropriate
bec
ause the Appellant requires a bed with high railings;
•
a subsequent funding request to a local health authority, dated October 22, 2019 an
d
completed by the OT, noting that the Appellant’s current enclosure bed was working well for
the Appellant, who had cerebral palsy with regular athetoid movement, but that the Mattress
was ripped and the foam was compressed;
•
a letter from the Appellant’s parents, dated October 15, 2019, which included photos of the
Mattr
ess, the enclosure bed, and the Appellant, and set out that:
•
the Appellant has cerebral palsy, is wheelchair bound, non-verbal, and suffers from
cognitive impairments;
•
the Appellant’s enclosure bed and the Mattress was funded 15 years ago;
•
hospital bed rails are not high enough to keep the Appellant from falling out of bed an
d
potentially suffering injury;
•
the Appellant’s parents are both in their 70s, have purchased many assistive devices
for the Appellant, including, a van with custom built add-ons that is kept at
the
Appellant’s residence and used by the Appellant’s caregivers.
In the Reconsideration Decision, the Ministry reversed its earlier decision with respect to the replacement
of the custom gate pad on the Appellant’s enclosure bed and held that it was legislatively authorized to
provide repairs to the enclosure bed, which included replacement of the upper pads inside the gate of
the enclosure bed.
At the hearing of the appeal, the Appellant’s parents both gave evidence on the Appellant’s behalf. They
described the extent to which they continue to care for the Appellant so that the Appellant can live
somewhat independently. The Appellant currently resides in a townhome which was built, to an extent, to
accommodate the Appellant’s disabilities. The Appellant’s parents described the Appellant as having
been approved for the enclosure bed and the Mattress at around the same time that the Appellant
APPEAL NUMBER
moved into the townhouse. The Appellant’s parents also described experiencing health difficulties of their
own and the difficulty that they and an organization they are part of have had in hiring staff to care for the
Appellant. The Appellant’s parents reiterated many of the concerns about the condition of the Mattress,
noting that it is old and ripped and that it has occasionally been stained with urine and vomit, which
obviously makes it particularly unhygienic. When asked how long the Mattress had been degrading, the
Appellant’s parents confirmed that it has been a process that has transpired over time and was not
sudden. The Appellant’s parents also confirmed that the Appellant’s enclosure bed is not a hospital bed
and that a hospital bed is not appropriate as a hospital bed generally does not have high enough railings
to prevent the Appellant from falling on to the floor and potentially suffering an injury.
At the hearing of the Appeal, the Ministry representative confirmed that the Appellant’s enclosure bed
had been funded by the Ministry under a previous version of the EAPWDR which appears to have
afforded the Ministry a greater degree of flexibility and discretion insofar as the approval of health
supplements was concerned. This was confirmed by the Ministry representative who, at the hearing of
the appeal, indicated that prior to changes being made to the EAPWDR in 2010, the EAPWDR did not
itemize the medical supplies, equipment, and devices that were eligible for funding as health
supplements, unlike sections 2 and 3 of Schedule C to the current version of the EAPWDR.
In the r
esult, the Ministry representative stated that the Ministry was not authorized to provide funding for
a replacement mattress because after the EAPWDR was amended in 2010, only hospital beds were
itemized as an eligible health benefit and containment beds and automatic turning beds were expressly
excluded from being eligible for funding as health supplements.
APPEAL NUMBER
PART F – REASONS FOR PANEL DECISION
The issue in this appeal is whether the Reconsideration decision, which denied the Appellant’s request
for a supplement in respect of a replacement custom mattress for the Appellant’s enclosure bed because
the request did not meet the requirements of sections 2 or 3 of Schedule C to the EAPWDR or sections
57 and 69 of the EAPWDR, was reasonably supported by the evidence or was a reasonable application
of the legislation in the circumstances of the Appellant.
The Legislation
Section 62 of the EAPWDR authorizes the Ministry to provide health supplements set out in sections 2
and 3 of Schedule C to the 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
© a family unit, if the health supplement is provided to or for a person in the
family unit who is a continued person.
Section 57 of the EAPWDR authorizes the Ministry to provide crisis supplements:
Crisis supplement
57 (1)The minister may provide a crisis supplement to or for a family unit that is eligible for
disability assistance or hardship assistance if
(a)the family unit or a person in the family unit requires the supplement to meet
an unexpected expense or obtain an item unexpectedly needed and is unable to
meet the expense or obtain the item because there are no resources available to
the family unit, and
(b)the minister considers that failure to meet the expense or obtain the item will
result in
(i)imminent danger to the physical health of any person in the family unit
…
(3)A crisis supplement may not be provided for the purpose of obtaining
(a)a supplement described in Schedule C, or
(b)any other health care goods or services...
APPEAL NUMBER
Section 69 of the EAPWDR authorizes the Ministry to provide health supplements in cases where
persons may be facing a direct and imminent life threatening 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).
The heal
th supplements which the Ministry is authorized to provide under section 62 are set out in
sections 2 and 3 of Schedule C to the EAPWDR:
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
APPEAL NUMBER
(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;
…
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:
APPEAL NUMBER
(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.
...
(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.
…
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;
(c)an accessory attached to a hospital bed;
(d)a positioning item on a hospital bed.
APPEAL NUMBER
(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 date on which the minister provided the item
being replaced.
P
anel Decision
S
ection 57
A crisis supplement can be provided for in respect of items that are not provided for under Schedule C
and are not health care goods or services. On that basis alone, it would appear that section 57 is
inapplicable to the Appellant’s request for a replacement custom mattress, given that the
recommendation for same came from the Appellant’s doctor and the OT.
However, even if a replacement mattress could be characterized as something other than a health care
good or service, in order to be eligible for funding as a crisis supplement, the request must also be the
result of an unexpected expense. Alternatively, the need for a replacement mattress must have been
unexpected. There also have to be no other resources available to the Appellant to cover the cost of the
replacement mattress and the Ministry must be satisfied that failure to meet the expense of a
replacement mattress will result in imminent danger to the Appellant’s physical health. The Appellant’s
parents specifically confirmed, however, that the Mattress had degraded over time and that it was not
unexpected that it would do so. At the same time, while there was evidence about the extent to which
continued use of the Mattress was unhygienic, the evidence did not go so far as to indicate that the
Appellant faced an imminent physical health danger. In the result, the panel finds that the Ministry was
reasonable in its determination that the request for a replacement mattress did not meet the criteria for
funding as a crisis supplement.
Section 69
Section 69 of the EAPWDR authorizes the Ministry to provide a health supplement for persons facing a
direct and imminent life threatening health need. However, a health supplement under this section is
limited to a person or family unit who is not otherwise eligible for a health supplement under this
regulation. In addition to the lack of evidence about the imminent life threatening need for a new
mattress, the Appellant is eligible for health supplements under the EAPWDR and, in the result, the
APPEAL NUMBER
panel finds that the Ministry was reasonable in its determination that the request for a new mattress did
not meet the requirements for an emergency health supplement under section 69 of the EAPWDR.
Sections 2 and 3, Schedule C
Sections 2 and 3 of Schedule C to the EAPWDR itemize a number of types of medical equipment and
surgical supplies that are eligible for funding as health supplements to recipients of assistance who meet
the requirements for health supplements under section 62 of the EAPWDR.
Section 2(1) of Schedule C to the EAPWDR provides for a number of medical and surgical supplies
which are eligible for funding as health supplements. These supplies are lancets, needles and syringes,
ventilator supplies, tracheotomy supplies, and consumable medical supplies. In order to be eligible for a
health supplement for one of these items a recipient of assistance must demonstrate that there are no
other resources available to pay for the cost of the supply, that it is necessary to prevent imminent and
substantial danger to health, and that it is necessary for one of the purposes set out in section 2(1)(a)(i)
of Schedule C. Namely, it must be required for wound care, ongoing bowel care, catheterization,
incontinence, skin parasite care, limb circulation care. In addition to the lack of evidence that the
replacement mattress was required for any of the purposes set out in section 2(1)(a)(i) of Schedule C to
the EAPWDR, the evidence before the Ministry also did not indicate any imminent or life threatening
need for a replacement custom mattress. As a replacement custom mattress is also not among the
medical or surgical supplies itemized under section 2(1)(a.1) and 2(1)(a.2) of Schedule C to the
EAPWDR, the panel finds that the Ministry’s determination that the Appellant’s request for a new
mattress did not meet the requirements for a general health supplement under section 2 of Schedule C
was also reasonable.
Sec
tion 3 of Schedule C to the EAPWDR itemizes the medical equipment and devices that are eligible
for funding as health supplements. The general requirements for the equipment itemized in sections 3.1
through 3.12 of Schedule C are set out in section 3(1) of Schedule C and section 3(2) of schedule C for
items specifically referred to in sections 3.1 through 3.8 and 3.12 of Schedule C.
As the request for a replacement mattress could potentially fall under sections 3.6 or 3.7 of Schedule C,
the Appellant would need to provide a prescription of a medical practitioner or nurse practitioner and an
assessment by an occupational therapist, both of which were provided by the Appellant with the request
for a replacement custom mattress.
Sec
tion 3.6 of Schedule C to the EAPWDR authorizes the provision of a supplement in respect of a
hospital bed, an upgraded component of hospital bed, an accessory attached to a hospital bed, a
positioning item on a hospital bed, or the replacement of any of those items. However, section 3.6(3) of
Schedule C expressly excludes an “automatic turning bed” and a “containment type bed” from eligibility
for health supplements under section 3.6 of Schedule C. The evidence before the Ministry and the panel
is that the Appellant’s bed is not a hospital bed and, in the result, the panel finds that the Ministry’s denial
of the Appellant’s request for a replacement custom mattress for the Appellant’s enclosure bed was
reasonable, having regard to section 3.6 of Schedule C.
In order to be eligible for a health supplement in respect of a pressure relief mattress or the replacement
of same, which is provided for under section 3.7, the Ministry must be satisfied that the mattress is
medically essential to “prevent skin breakdown and maintain skin integrity.” In the case of the Appellant,
outside of a reference in the October 22, 2019 from the OT to “pressure redistribution”, the type of
mattress being requested by the Appellant does not appear to be a pressure relief mattress. In addition,
the evidence before the Ministry did not indicate that the mattress being requested by the Appellant was
required to prevent skin breakdown and maintain skin integrity. The panel finds that the Ministry was
APPEAL NUMBER
reasonable in its determination that the Appellant did not meet the requirements for a health supplement
under section 3.7.
In addition to being authorized to provide supplements for the equipment and devices described in
sections 3.1 through 3.12 of Schedule C, section 3(3) of Schedule C to the EAPWDR authorizes the
replacement of medical equipment or a medical device that had previously been provided by the Ministry
under section 3 if it was damaged, worn out, or not functioning where it was more economical to replace
the item than to repair it. This provision contrasts with section 3(4) of Schedule C to the EAPWDR which
authorizes the Ministry to repair medical equipment or a medical device that was previously provided by
the Ministry irrespective of whether it had been provided under section 3 of the EAPWDR.
C
onsequently, the legislative changes to the EAPWDR in 2010 produces the incongruous result that the
Ministry held, in the Reconsideration Decision, that it is authorized to repair the Appellant’s enclosure
bed, as the bed itself is medical equipment or a medical device previously provided by the Ministry, but
that it is not authorized to replace the Appellant’s enclosure bed or the Mattress because the Mattress is
medical equipment or a medical device that had previously been provided by the Ministry but not under
section 3 of Schedule C to the EAPWDR. In addition, the current version of the EAPWDR expressly sets
out that a containment type bed is not an eligible item under section 3 of Schedule C. In effect, the
legislation, in its current form, authorizes the Ministry to repair the Appellant’s enclosure bed under
section 3(4) of Schedule C but renders it seemingly useless because replacing the Mattress with the type
of custom mattress that is required by the Appellant for use in the enclosure bed is not authorized under
section 3(3) of Schedule C. Underscoring the irony of this is the possibility that the Appellant might meet
the criteria for a health supplement in respect of a hospital bed and upgraded components to a hospital
bed were such a supplement to be requested. However, such a bed could well be more expensive than
the replacement of the Mattress and would result in the Appellant having a bed that did not provide as
effective protection against falls.
This Panel is limited in its jurisdiction to determine if the Ministry acted in accordance with the provisions
of the applicable legislation. Because Section 3.6(3)(b) of Schedule C to the EAPWDR specifically
prohibits funding for a containment type bed and because section 3(3) of Schedule C to the EAPWDR
precludes the replacement by the Ministry of items that were not previously approved under section 3 of
Schedule C to the EAPWDR, the panel finds that the Ministry is simply not legislatively authorized to
approve replacement of the Mattress as a health supplement, even where the panel may find the result
unfair and illogical in these circumstances. Despite the foregoing, the panel is nevertheless bound to
confirm the Ministry’s decision.
While the Panel does not have any jurisdiction over decisions made by the provincial government
outside of the legislation as set out in the Employment and Assistance for Persons with Disabilities Act
(EAPWDA) and the EAPWDR, given the Appellant’s need for a replacement of the Mattress and the
history summarized above, the panel supports any decision that might be made by the Ministry that
would allow it to continue to fund the costs relating to the acquisition and maintenance of a containment
type bed for use by the Appellant.
APPEAL NUMBER
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)
PA
RT H – SIGNATURES
PRINT NAME
Adam Shee
SIGNATURE OF CHAIR
DATE (YEAR/MONTH/DAY)
2019/12/17
PRINT NAME
Simon Clews
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2019/12/17
PRINT NAME
David Handelman
SIGNATURE OF MEMBER
DATE (YEAR/MONTH/DAY)
2019/12/17
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.