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 January 17, 2020 where the ministry denied the applicant’s request for funding of a prescription medicine. PART D – RELEVANT LEGISLATION Employment and Assistance for Persons with Disabilities Regulation (EAPWDR). Section 62 and 69 Employment and Assistance for Persons with Disabilities Regulation (EAPWDR). Schedule C
APPEAL NUMBER PART E – SUMMARY OF FACTS Information before the ministry at reconsideration: 1. On December 4, 2019, the ministry received a prescription note from the appellant’s medical practitioner dated September 24, 2019 for: “ketoprofen 5% + piroxicam 2% + Lidocaine 5% in Lipoderm to be applied externally. Four times daily for one month”. Attached were additional documents: • Pharma Net Claim adjudication form with response code: CD Patient not entitled to drug claim dated 19/10/18 in the amount of $164.34. • Results of a computed tomography of the cervical and thoracic spine: Reason for Exam (CT Spine Cervical and Thoracic) Prolonged neck pain with both arms weakness and Paresthesia and sometimes discoloration presumed to be thoracic Outlet Syndrome Findings: Disc height is relatively well persevered throughout with only minimal degenerative disc disease identified within the mid cervical region. Degenerative facet joint changes are seen throughout, relatively advanced within the upper cervical region on the right. At C2-3 there is mild to moderate foraminal narrowing on the right. The bony foramina are otherwise widely patent. There is no evidence of cervical rib. Impression: Degenerative changes are described. 2. On January 3, 2020, the appellant’s request for funding was denied. The decision in the denial was: “Decision: The Health Assistance Branch does not have regulatory authority to provide prescription medication. Prescriptions are available through the BC Pharma Care program and if not part of the current Pharma-Care formulary, may be eligible for special authorization. Please contact your pharmacist or physician regarding application for special authority or other brands that may be covered. As there is another resource available for medications and the Ministry of Social Development and Poverty Reduction does not have authority to fund these items”. 3. On January 27, 2020, the appellant submitted a Request for Reconsideration which asked for an extension of the period for reconsideration to February 1, 2020 in order for the appellant to see the medical practitioner and submit additional information. The date was extended to February 25, 2020 by the ministry. 4. On February 24, 2020, the appellant provided a letter dated February 22, 2020 which contained the following narrative: The appellant asks that the ministry reconsider the request. This medicine is necessary because the appellant suffers with neck pain that is relatively advanced on the right side of T4Ͳ5 and C2Ͳ3. The appellant is unable to get comfortable when going to bed and is unable to sleep. Inflammation in the appellant’s neck is escalating the tendonitis that is the reason the appellant has PWD status. The appellant feels there must be some part of the ministry’s mandate that covers the relief of pain and believes that helping to relieve pain with a non-addictive solution is the right thing to do. There are other methods to treat this such as sleeping pills and pain pills for the rest of the appellant’s life. The appellant is under the impression that the British Columbia government is in a fight to stop the opioid crisis along with the Medical Association. The statistic on this is 40% of the people that use opiates on the streets all started from a prescription from a medical practitioner. The appellant does not want to be one of these statistics. The appellant believes this cream will last for around 3 months and is the cheapest and best solution for the problem at this time. The appellant sees that the ministry has pointed out that the pharmacy program might offer a solution but the appellant can't pay for a pharma care program. The appellant has exhausted all possibilities of other places covering the cost of this medicine, to no avail. The appellant has enclosed the prescription from a medical practitioner, plus a note stating the appellant needs this cream for the pain and inflammation of the neck. This cream can also be used for the osteoarthritis that the appellant suffers from as well and, if the inflammation is relieved, it will help to relieve the pain in the upper arms and hands and shoulder. The appellant hopes the ministry reconsiders as this condition will not improve. Early treatment of this condition can have favourable results. The ministry inserted the following commentary in parentheses: “[As a recipient of disability assistance, you have an enhanced Medical Services Plan which includes Pharma Care. If the item you are requesting is not in the formulary, your medical practitioner may apply on your behalf for an exception with the Ministry of Health. Prescription medications are beyond the jurisdiction of the Ministry of Social Development and Poverty Prevention.]”.
APPEAL NUMBER • Also included was the document with the results of computed tomography of the cervical and thoracic spine described above. 5. On February 25, 2020, the ministry completed its review and denied the appellant’s request. Notice of Appeal On April 6, 2020, the appellant completed a Notice of Appeal. The Notice of Appeal states that: “The cream is non addictive. Need it for Osteo Arthritis in neck, hands, knees, joints”. Hearing The panel conducted a teleconference hearing at the request of the appellant on April 23, 2020. In attendance at the hearing were the panel, the ministry representative and the appellant. In advance of the hearing date, but subsequent to the date of the reconsideration decision, the appellant submitted additional information for the panel’s consideration in the form of two separate submissions. The 10 page submission collected by the Employment and Assistance Appeal Tribunal (EAAT) office and forwarded to the ministry on March 3, 2020 consisted of copies of a series of emails accompanying the following forms (sent twice): 1. Letter from the appellant’s medical practitioner addressed to whom it may concern and dated Mar 3, 2020 which states: “The appellant has chronic neck pain which has been treated with ketoprofen + piroxicam & lidocaine cream. This treatment method is preferable over narcotic treatment to treat the pain”. 2. Letter from a support organization dated April 1, 2020, forwarding the medical practitioner letter referred to above to the ministry. An 11 page submission collected by the EAAT office and forwarded to the ministry on April 10, 2020 consisted of: 1. Email from the appellant to the EAAT office containing an update to the letter previously provided to the ministry (see above) containing narrative as follows: The appellant asks that the ministry reconsider the request. This medicine is necessary because the appellant suffers with neck pain that is relatively advanced on the right side of T4Ͳ5 and C2Ͳ3. The appellant’s PWD disability is concerned with an inability to use the hands and arms. Over the years the doctors have found that a part of the problem is that the appellant’s neck has a pinched nerve limiting use of the appellant’s arms. Since 2009 the condition has gotten much worse. Being in extreme discomfort and pain is affecting the appellant’s quality of life and ability to sleep. The appellant feels there must be some part of the ministry’s mandate that covers the relief of pain and believes that helping to relieve pain with a non-addictive solution is the right thing to do. There are other methods to treat this such as sleeping pills and pain pills for the rest of the appellant’s life. The appellant is under the impression that the British Columbia government is in a fight to stop the opioid crisis along with the Medical Association. The appellant believes this cream will last for around 3 months and is the cheapest and best solution for the problem at this time. The appellant sees that the ministry has pointed out that the pharmacy program might offer a solution but the appellant can't pay for a pharma care program. The appellant has exhausted all possibilities of other places covering the cost of this medicine, to no avail. 2. The submission contained copies of letters dated April 10, 2017 and November 2, 2017 from a medical practitioner asking for physiotherapy services for the appellant for the treatment of fibromyalgia, general spine degeneration facet joint osteoarthritis, chondrocalcinosis in bilateral knees and bilateral upper extremity pain due to tendonitis and moderate carpal tunnel syndrome. 3. The submission contained a copy of the letter from the appellant to the ministry dated February 22, 2020, which is described above. The panel notes that under the Employment and Assistance Act (EAA) section 22(4), it may consider evidence that is not part of the record as the panel considers necessary for a full and fair disclosure of all matters related to the decision under appeal. The panel considers all of this information to be admissible consisting of material which elaborates and supports material on the record. At the hearing, the appellant repeated much of the information from the appellants two submissions covering the appellant’s health, pain and frustration with an inability to find a funding source for the prescription. The appellant stated that she was very upset in the fact that the ministry is unable to provide a solution to the problem outside of stating they are unable to act because of legislation. The appellant feels this is contrary to the government’s position with the opioid crisis.
APPEAL NUMBER The appellant was asked a number of questions around the situation with Pharma Care and the ability to appeal the decline of the request for a prescription. The appellant stated clearly that the medical practitioner and two pharmacies have been involved with no success. The panel notes that during the hearing, the ministry stressed that prescription medications were addressed under Pharma Care Plan C. The ministry offered to send another Special Authority Request form and also a Compound Coverage Request form to the appellant. The appellant’s medical practitioner could fill them out and send them to Pharma Care to seek approval for coverage.
APPEAL NUMBER 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 prescription is reasonably supported by the evidence or a reasonable application of the legislation in the circumstances of the appellant. Ministry Position The ministry in its reconsideration decision notes that the appellant’s request must be considered in light of the legislated requirements as follows: 1. The appellant has basic eligibility for a health supplement under EAPWDR Schedule C, section 62 as a recipient of disability assistance. 2. In respect of eligibility for prescription medicine as a medical supply, the ministry finds the appellant’s information does not satisfy the specific eligibility requirements as follows: 1. There is no eligibility under EAPWDR Schedule C, section 2(1)(a) covering disposable or reusable medical or surgical supplies for wound care, ongoing bowel care required due to loss of muscle function, catheterization, incontinence, skin parasite care and limb circulation care. Eligibility is further restricted by requirement that the supplies are prescribed by a medical or nurse practitioner, be the least expensive supplies appropriate, is necessary to avoid an imminent and substantial danger to health and there are no resources available to the family unit to pay the cost. 2. There is no eligibility under EAPWDR Schedule C, section 2(1) (a.1) for medical or surgical supplies such as lancets, needles and syringes, ventilator supplies required for the essential operation or sterilization of a ventilator and tracheotomy supplies. Eligibility is further restricted by the requirements noted above. 3. There is no eligibility under EAPWDR Schedule C, section 2(1) (a.2) covering medical supplies that are required to thicken food and the additional requirements noted above are met. 4. EAPWDR Schedule C, section 2 (1.1) states that in respect of (1) (a), medical and surgical supplies do not include nutritional supplements, food, vitamins, minerals or prescriptive medicines. 3. In respect of prescription medicine as a medical supply the ministry concludes: 1. EAPWDR Schedule C, section 2(1.1) states explicitly that for the purposes of 2(1)(a), medical and surgical supplies do not include prescription medicines; prescription medication is not a disposable or reusable medical supply and the prescription is not directly used for the purposes set out in EAPWDR Schedule C, section 2(1) (a) (i). 2. Information has not been provided which establishes that the item requested is necessary to avoid an imminent and substantial danger to health. 3. The ministry is not satisfied there are no resources available to the family unit to pay the cost as the appellant is eligible for the Ministry of Health Pharma Care. The ministry notes there is an option to request an exception for the denial of coverage and there is no evidence this option has been explored. 4. In respect of eligibility for prescription medicine as a medical therapy, the ministry finds the appellant’s information does not satisfy the specific eligibility requirements as follows: • EAPWDR Schedule C, section 2(1)(c) provides the ministry may provide coverage for the following extended therapies: acupuncture, chiropractic, massage therapy, naturopathy, non-surgical podiatry and physical therapy. Provision is restricted in terms of frequency and cost; are required to be prescribed by a medical or nurse practitioner; visits under Medical Protection Act have been utilized and there are no resources available to the family unit to pay the cost. The ministry concludes that a prescription is not a therapy, is not administered by one of the professional bodies described and the further requirements in EAPWDR Schedule C, section 2(1) (c), 2(2) and 2(2.1) are not met. 5. In respect of eligibility for prescription medicine as a health supplement set out in any of the other sections of EAPWDR Schedule C, the ministry finds the appellant’s information does not satisfy the specific eligibility requirements as follows: 1. EAPWDR Schedule C, sections 2(1), 2.1, 2.2, 4, 4.1, 5, 6, 7, 8, and 9 provide coverage for: optical supplements, eye examination supplements, medical equipment, dental supplements, crown and bridgework supplements, emergency dental supplements, diet supplements, monthly nutritional supplements, natal supplements and infant formula. The ministry concludes the item requested is
APPEAL NUMBER not one of these supplements and the information provided does not satisfy the other requirements set out for each specific supplement in the legislation 6. In respect of eligibility for prescription medicine as a health supplement set out in EAPWDR Section 69 as a health supplement for a person facing a direct and imminent life health threatening need, the ministry finds the appellant’s information does not satisfy the specific eligibility requirements as follows: 1. EAPWDR Section 69 sets out the requirements to provide any health supplement set out in sections 2(1)(a) (medical supplies), (f) medical transportation and 3 (medical equipment and devices) of Schedule C if the family unit is otherwise not eligible for the health supplement under the legislation if the minister is satisfied the person faces a direct and imminent life threatening need, the health supplement is necessary to meet the need, the family is receiving premium assistance under the Medical Protection Act and the specific provisions of Schedule C are met: i. paragraph (a) or (f) of section 2 (1); ii. sections 3 to 3.11, other than paragraph (a) of section 3 (1). The ministry notes these provisions are intended for persons who have a direct and life threatening need and are otherwise not eligible. The ministry concludes the appellant is eligible to receive health supplements under 2(1) (a) and (f) and section 3 and notes that the information provided does not establish the appellant faces a direct and life threatening need for the item requested. In addition; the prescription is not a health supplement under Schedule C, sections 2(1)(a) and (f) or section 3 and not all of the requirements specified in EAPWDR Schedule C, sections 2(1)(a) and (f) and 3 to 3.12 have been met. 7. In respect of eligibility for prescription medicine as a crisis supplement set out in EAPWDR Section 57, the ministry notes that section 57(3) sets out that a crisis supplement may not be provided for a supplement described in Schedule C, or any other health care goods or services. The ministry notes that while prescription medication is not a health care supplement described under EAPWDR Schedule C; it is a health care good prescribed by a medical practitioner. Thus the ministry concludes the ministry is not authorized to provide a crisis supplement for the purpose of obtaining a medical prescription. In conclusion, the ministry notes they are sympathetic with the circumstances of the appellant’s case; however, the request for funding does not meet the legislated requirements set out in EAPWDR Section 69 and all of Schedule C and further it is unable to provide a crisis supplement EAPWDR Section 57(3). Applicant Position The appellant has thoroughly described the medical conditions underlying the appellant’s Person with Disability (PWD) status and the extreme discomfort and pain being experienced with what is a deteriorating condition. The appellant states that the prescribed medication is a better alternative to the opioid alternatives and thus there must be an alternative in the legislation to provide it. The appellant feels that all other possibilities have been exhausted to cover the cost of the medicine and the appellant is upset that the ministry is unable to help. Panel Decision The panel agrees with the reconsideration decision which concludes that the appellant satisfies the basic eligibility for a health supplement under EAPWDR, Section 62. The panel also agrees that the appellant’s request has failed to satisfy any of the eligibility requirements for considering the requested item as a health supplement set out in EAPWDR Section 69 and all of Schedule C and as a crisis supplement under EAPWDR Section 57(3): 1. EAPWDR, Schedule C, section 2(1)(a), (a.1), (a.2) lists the medical supply items which are health supplements if all the eligibility requirements noted are met (see above). EAPWDR Schedule C, section 2 (1.1) states that in respect of (1) (a), medical and surgical supplies do not include nutritional supplements, food, vitamins, minerals or prescriptive medicines The panel agrees that the requested item is not in the lists covering disposable or reusable medical or surgical supplies, medical or surgical supplies nor supplies that are required to thicken food and notes EAPWDR Schedule C, section 2 (1.1) specifically excludes prescription medicines. 2. EAPWDR Schedule C, section 2(1)(c) sets out the eligibility requirements for a health supplement as a medical therapy and the panel agrees that the requested item is not any of the extended therapies listed administered by one of the professional bodies listed. 3. EAPWDR Schedule C, sections 2(1), 2.1, 2.2, 4, 4.1, 5, 6, 7, 8, and 9 as well as EAPWDR Section 67.001 provide coverage for the balance of health supplements provided as a medical supply in Schedule C. The
APPEAL NUMBER panel agrees that the requested item is not any of the health supplements listed and the information supplied does not satisfy the other requirements (see above). 4. EAPWDR Section 69 sets out the requirements to provide a health supplement for a person facing a direct and imminent life health threatening need who is otherwise ineligible for a health supplement under legislation. The panel notes that these provisions are intended for persons who have a direct and life threatening need and are otherwise not eligible, and agrees that the information provided does not establish the appellant faces a direct and life threatening need for the item requested, and, further, the panel agrees that the appellant is eligible for a health supplements under 2(1) (a) and (f) and section 3. 5. EAPWDR Section 57 considers the provision of a crisis supplement. The panel agrees that section 57(3), which sets out that a crisis supplement may not be provided for a supplement described in Schedule C, or any other health care goods or services, precludes the requested item. The panel also agrees that, while the requested item is not a health care supplement described under EAPWDR Schedule C; it is a health care good prescribed by a medical practitioner and should be excluded The panel concludes the ministry reconsideration decision was a reasonable application of the legislation and highlights the fact that under EAPWDR, Schedule C, section 2(1)(a) prescriptions are specifically excluded from the list of medical supplies. The panel notes and agrees with the ministry that a prescription medicine is deliberately excluded from the authority of the ministry to provide as it is intended from a legislative standpoint to fall under the Ministry of Health and the Pharma Care program which is under its jurisdiction. Conclusion The panel confirms the ministry reconsideration decision as it was a reasonable application of the legislation in the appellant’s circumstances. The appellant is not successful upon appeal.
APPEAL NUMBER Legislation 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, or (ii)removal of a child under the Child, Family and Community Service Act. (2)A crisis supplement may be provided only for the calendar month in which the application or request for the supplement is made. (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. 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, (AM) Sep 01/17 (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) E a family unit, if the health supplement is provided to or for a person in the family unit who is a continued person. Health supplement for persons facing direct and imminent life threatening health need 69 (1) 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) the adjusted net income of any person in the family unit, other than a dependent child, does not exceed the amount set out in section 11 (3) of the Medical and Health Care Services Regulation, 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). (2) For the purposes of subsection (1) (c), (a) "adjusted net income" has the same meaning as in section 7.6 of the Medical and Health Care Services Regulation, and, (b) a reference in section 7.6 of the Medical and Health Care Services Regulation to an "eligible person" is to be read as a reference to a person in the family unit, other than a dependent child. 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:
APPEAL NUMBER (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. (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, (i) for which a medical practitioner or nurse practitioner has confirmed an acute need, (ii) if the visits available under the Medical and Health Care Services Regulation, B.C. Reg. 426/97, for that calendar year have been provided and for which payment is not available under the Medicare Protection Act, and, (iii) for which there are no resources available to the family unit to cover the cost: Item Service Provided by Registered with 1 acupuncture acupuncturist College of Traditional Chinese Medicine under the Health Professions Act 2 chiropractic chiropractor College of Chiropractors of British Columbia under the Health Professions Act 3 Massage Massage College of Massage Therapists of British Columbia under the therapy therapist Health Professions act 4 naturopathy naturopath College of Naturopatic Physicians of British Columbia under the Health Professions Act 5 Non-surgical podiatrist College of Podiatric Surgeons of British Columbia under the podiatry Health Professions act 6 Physical Physical College of Physical Therapists of British Columbia under the therapy therapist Health professions act (d) and (e) Repealed. (f) the least expensive appropriate mode of transportation to or from: (i) an office, in the local area, of a medical practitioner or nurse practitioner, (ii) the office of the nearest available specialist in a field of medicine or surgery if the person has been referred to a specialist in that field by a local medical practitioner or nurse practitioner, (iii) the nearest suitable general hospital or rehabilitation hospital, as those facilities are defined in section 1.1 of the Hospital Insurance Act Regulations, or, (iv) the nearest suitable hospital as defined in paragraph (e) of the definition of "hospital" in section 1 of the Hospital Insurance Act, provided that, (v) the transportation is to enable the person to receive a benefit under the Medicare Protection Act or a general hospital service under the Hospital Insurance Act, and, (vi) there are no resources available to the person's family unit to cover the cost. (g) Repealed. (1.1) For the purposes of subsection (1) (a), medical and surgical supplies do not include nutritional supplements, food, vitamins, minerals or prescription medications.
APPEAL NUMBER 2) No more than 12 visits per calendar year are payable by the minister under this section for any combination of physical therapy services, chiropractic services, massage therapy services, non-surgical podiatry services, naturopathy services and acupuncture services. (2.1) If eligible under subsection (1) (c) and subject to subsection (2), the amount of a general health supplement under section 62 of this regulation for physical therapy services, chiropractic services, massage therapy services, non-surgical podiatry services, naturopathy services and acupuncture services is $23 for each visit. (3) If the minister provided a benefit to or for a person under section 2 (3) of Schedule C of the Disability Benefits Program Regulation, B.C. Reg. 79/97, the Income Assistance Regulation, B.C. Reg. 75/97 or the Youth Works Regulation, B.C. Reg. 77/97, as applicable, for the month during which the regulation was repealed, the minister may continue to provide that benefit to or for that person as a supplement under this regulation on the same terms and conditions as previously until the earlier of the following dates: (a) the date the conditions on which the minister paid the benefit are no longer met; (b) the date the person ceases to receive disability assistance.
APPEAL NUMBER 2020-00117 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 Keith Lacroix SIGNATURE OF CHAIR DATE (YEAR/MONTH/DAY) 2020/05/06 PRINT NAME Charlie Schellinck SIGNATURE OF MEMBER DATE (YEAR/MONTH/DAY) 2020/05/06 PRINT NAME Margarita Papenbrock SIGNATURE OF MEMBER DATE (YEAR/MONTH/DAY) 2020/05/08
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