Ministry of Social Development and Poverty Reduction

Appeal Number 2021-0221

Part C – Decision Under Appeal The decision under appeal is the Reconsideration Decision (RD) of the Ministry of Social Development and Poverty Reduction (the Ministry) dated October 27, 2021 which denied the Appellant’s request for the full cost of the fees related to her complete upper and lower dentures because the requested coverage was for services that exceed the maximum rates specified in the Ministry’s “Schedule of Fee Allowances - Dentist” (the Fee Schedule) and are therefore amounts above the maximum rates that the Ministry may provide.

In addition, the Ministry determined that the Appellant is not eligible for coverage of complete upper and lower dentures as an emergency dental service, an orthodontic treatment, or a crisis supplement. The Ministry also determined that the information provided does not establish a direct and imminent life threatening health need.

Part D – Relevant Legislation Employment and Assistance for Persons with Disabilities Act (EAPWDA), Section 25(1) Employment and Assistance for Persons with Disabilities Regulation (EAPWDR), Sections 57, 62, 63, 64, 65, and 69

EAPWDR, Schedule C, Sections 1, 2(1), 3.1 – 3.12, 4, and 5 Schedule of Fee Allowances – Dentist, Emergency Dental – Dentist, Parts A and B - effective September 1, 2017

The relevant legislation is provided in the Appendix

Appeal Number 2021-0221 Part E – Summary of Facts The Appellant is a sole recipient of disability assistance. The evidence before the Ministry at reconsideration included the Appellant’s Request for Reconsideration (RFR) dated October 12, 2021 which included:

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The Appellant’s reasons for the RFR and annotated copies of photographs of the Appellant, provided by a Dental Consultant at the Regional Health Authority (RHA) in the Appellant’s home community who is a Registered Dental Hygienist (RDH) and who also serves as the Appellant’s Advocate (the Advocate). The notes included with the copies of the photographs describe abnormal conditions present in each of the photographs;

A two-page letter to the Ministry dated October 5, 2021 from the Advocate arguing that the Appellant’s dentures should be considered medical devices;

A one-page letter to a Medical Specialist dated June 1, 2021 from a Family Physician regarding a referral of the Appellant to the Medical Specialist;

A two-page letter to the Ministry dated May 31, 2021 from a Prosthodontist (the Prosthodontist’s Letter) in which the Prosthodontist, writing on behalf of the Appellant, explains the Appellant’s medical condition and why specialized dentures are required;

A one-page letter to the Ministry dated October 13, 2021 from a Registered Nurse explaining the Appellant’s medical condition and why correct fitting dentures are required; and,

Three pages of email correspondence dated July 12, 2021 between a Registered Speech Language Pathologist and a Clinical Practice Educator at the RHA referring to recent problems that the Appellant has experienced with her new dentures and discussing the possible need for the Appellant to repeat an instrumental swallowing assessment.

Additional Information In the Notice of Appeal (NOA) dated November 10, 2021, the Advocate, on behalf of the Appellant, provided the following additional evidence:

1. A two-page letter dated November 17, 2021 from the Advocate (the November 17 Letter) in which the Advocate provides a medical history of the Appellant, including current difficulties the Appellant has with eating and swallowing which have resulted in her being hospitalized three times over a six month period for aspiration pneumonia. As a result, a medical team determined that specialized dentures should be made “to cover the (Appellant’s) fistula … and (to) cover (her) cleft palate”, with an extension of the denture toward the throat “to help reduce the many medical issues and reduce risk of mortality”. The Advocate also says that a lower denture is also needed “for many mouth processes to work correctly”, and that “if the vertical … (and horizontal) jaw dimensions … (are) not maintained there would be jaw joint ... issues leading to jaw pain, headaches and the lack of chewing ability just to mention a few”;

2. Two pages of copies of photograph’s of the Appellant’s mouth (reproduced more clearly in the Appellant’s November 18 Submission referred to below). Unattributed hand-written notes are included beside several of the photographs;

Appeal Number 2021-0221 3. Two pages from the BC Dental Association’s (BCDA) 2014 Abbreviated General Practitioner’s Suggested Fee Guide (the 2014 Fee Guide), showing suggested fees for upper and lower dentures of $736.00 and $834.00 respectively;

4. Two pages from the BCDA’s 2021 Abbreviated General Practitioner’s Suggested Fee Guide (the 2021 Fee Guide) showing suggested fees for upper and lower dentures of $828.00 and $903.00 respectively;

5. A two page letter dated November 10, 2021 from the Practice Manager at the Appellant’s Prosthodontist’s office, the second page of which is a fee table showing the total cost of the Appellant’s treatment as $4,600 of which PBC reimbursed $935.39. The cover letter says that a further $756.69 is expected to be paid by PBC; and,

6. A two page letter from the Ministry dated October 27, 2021 confirming that on reconsideration PBC and the Ministry have approved coverage for a complete lower denture for the Appellant in the amount of $759.69. Included with the letter is an undated two-page document showing Pacific Blue Cross (PBC) dental claim information for the Appellant, including claim information and the total amounts claimed and paid by PBC for complete standard maxillary and mandible dentures.

The Appellant also provided a Submission on November 18, 2021 (the Appellant Submission). The Appellant Submission comprised clearer quality images of the photographs identified under the list of NOA evidence under item 2 above.

Evidence Presented at the Hearing The Advocate represented the Appellant at the hearing. At the hearing, the Advocate relied on the Appellant’s evidence contained in the RFR and the NOA, emphasizing that the dentures in this case had been significantly modified by a medical team and more reasonably fit into the category of medical equipment than dentures (specifically the Advocate said that they were a type of orthosis because they also addressed the Appellant’s congenital deficits). The Advocate also said that dental extractions that occur in a hospital get billed to the Medical Services Plan (MSP) but if done by a dentist they are considered dental work, which the Advocate suggested did not make sense. In response, the Ministry said that a patient in a hospital receives additional care in a hospital that is not provided in a dentist’s office, so if the dental work had been done in a hospital “it might have been covered”.

The Advocate also pointed out that the available funding for dentures has not kept up with inflation. She said that the fee schedule amounts have not been increased since 2009, despite an 18.46% increase in the consumer price index since then. The fact that the maximum claim amounts for dentures have not increased in line with the increase in the suggested BCDA fees together with the increased cost of the required denture customization in this case, has resulted in a situation where the Appellant was covered for $1,756.69 of the cost of her specialized dentures and left with a bill for $2,986.31 which she can’t afford. The Advocate also said that wheelchairs and hearing aids were covered at much higher rates.

In response to a question from the Ministry, the Advocate said that the Appellant had not sought preauthorization for the required treatments because the medical team thought that it was necessary to begin treatment “before there was a full answer” due to the seriousness of the Appellant’s medical

Appeal Number 2021-0221 condition. The Advocate said that the Appellant had been hospitalized 6 times in a 3 month period and asked, “why risk the Appellant’s life by delaying?”

In response to another question from the Ministry, the Advocate said that work started on the specialized dentures on June 30, 2021 and a claim for the cost was submitted to PBC on August 19, 2021. The Ministry said that the dentist is supposed to calculate and submit an approval request to PBC in advance, and that the Ministry “does not have control over rates” as the BCDA does that.

In response to another question from the Ministry, the Advocate said that no estimates from other medical or dental practitioners for the specialized dentures would have been available to submit to PBC because there was only one prosthodontist in the Appellant’s community.

In response to a question from the Panel as to why the Appellant had not had her dentures replaced for 40 years, the Advocate said that for much of that time the Appellant was in a “different living arrangement” and didn’t have the funds to manage replacement of her existing dentures.

In response to another question from the Panel about whether there was any written evidence available from anyone on the medical team to confirm that the Appellant’s life was at risk without the specialized dentures, the Advocate said that there were documents in the Appellant’s file that suggested that the Appellant’s condition without treatment might be life threatening but that she was unable to release any other documents without the approval of the medical practitioners who had written them.

At the hearing, the Ministry relied on its RD, and stressed that PBC has a list of what dental services are covered and what services are not covered, and that “there is a different pot for ears, eyes, etc.” The Ministry explained that the dentures would not have qualified as an emergency dental service because there was not an imminent life threatening need.

In response to a question from the Advocate, the Ministry said that “replacement dentures” were dentures that replace previous dentures, not dentures that replace missing teeth.

In response to a question for the Panel, the Ministry said it did not know whether PBC would have realized that it was reviewing something other than a normal denture if a claim came in at $4,600.

Admissibility of New Evidence Section 22(4) of the Employment and Assistance Act (EAA) says that a panel may consider evidence that is not part of the record that the panel considers to be reasonably required for a full and fair disclosure of all matters related to the decision under appeal. Once a panel has determined which additional evidence, if any, is admitted under EAA Section 22(4), instead of asking whether the decision under appeal was reasonable at the time it was made, a panel must determine whether the decision under appeal was reasonable based the requirements set out in the legislation and on all admissible evidence.

The Panel considered most of the information submitted by the Appellant in the NOA to be part of the record when the RD was made. The Panel finds the new evidence contained in the documents submitted by the Appellant in the NOA, which comprised the 2014 Fee Guide and the 2021 Fee Guide, to be admissible as the Panel considers this new information to be reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

Appeal Number 2021-0221 As the Appellant Submission comprises better quality copies of photographs of the Appellant’s mouth than were included in the RFR, the Panel finds that there was no new evidence included in the Appellant Submission.

Regarding the 2014 Fee Guide and the 2021 Fee Guide, the Panel assigns moderate weight to the new evidence. The two fee guides demonstrate that the fees suggested by the BCDA for upper and lower dentures have increased by 12.5% and 12% respectively between 2014 and 2021, which the Panel finds is a matter related to the decision under appeal as it supports the Appellant’s argument that Fee Schedule rates for dentures have not kept up with inflation. However, the fact remains that the maximum amount that the Ministry can provide under the Fee Schedule for an eligible adult for these services is $757.50 and $780.75 respectively.

New evidence presented at the hearing comprised the dates on which work commenced and was completed on the specialized dentures and the fact that the Appellant did not seek pre-approval for the specialized dentures before a claim was initiated. The Panel admits this new evidence as it is potentially reasonably required for a full and fair disclosure of all matters related to decision under appeal. However, the Panel assigns no weight to any of the new evidence presented at the hearing as the only dental or medical services that require the prior authorization or approval from the Ministry are anticipated claims for orthodontics and crown and bridgework, which aren’t at issue in this appeal. In any event, the Ministry did not deny coverage because preauthorization was not obtained.

Neither party objected to the admittance of any of the new evidence in the 2014 Fee Guide and the 2021 Fee Guide or at the hearing.

Appeal Number 2021-0221 Part F – Reasons for Panel Decision The issue under appeal is whether the Ministry’s RD dated October 27, 2021, which denied the Appellant’s request for the full cost of the fees related to her complete upper and lower dentures was reasonably supported by the evidence or was a reasonable application of the applicable enactment in the circumstances of the Appellant.

Was it reasonable for the Ministry to deny the additional coverage because the additional cost exceeded the maximum amounts set out in the appropriate Fee Schedule? Was it reasonable for the Ministry to deny the additional coverage because the Appellant is not eligible for coverage of complete upper and lower dentures as an emergency dental service, an orthodontic treatment, or a crisis supplement? Was it reasonable for the Ministry to deny the additional coverage because the dentures were not required to meet a life-threatening need?

Position of the Parties The Appellant’s position is that the dentures provided to the Appellant have been specialized to address the Appellant’s congenital deficits and therefore should be more accurately considered to be “medical devices”, and that if they are considered to be dentures the Ministry’s rates in the Fee Schedule for dentures are significantly below the rates currently charged by dentists and certified specialists for both upper and lower dentures.

The Ministry’s position is that it can only provide assistance up to the maximum amounts provided for dentures as set out in the Fee Schedule, which are set by PBC, unless the applicant qualifies for additional assistance when applicable medical or dental services are for the immediate relief of pain or due to a life threatening need, neither of which apply in this case.

Panel Decision The Panel notes that EAPWDR Schedule C, Section 1 defines "denture services" as services and items that, if provided by a dentist, are set out under fee numbers 51101 to 51302 in the Fee Schedule, which accordingly is determined by the Ministry and published on the Ministry’s website. The Panel also notes that EAPWDA Section 25(1) permits the Ministry to “delegate to any person or category of persons any or all of the minister's powers, duties or functions under this Act”, and that the review of insurance claims on behalf of Ministry to determine the amount of coverage for dental services has been delegated to PBC by the Ministry. Therefore, while PBC manages the review of claims for payment, it is the Ministry, not PBC, that sets the limits to the rates of reimbursement for dental services that appear in the Fee Schedule.

In the Prosthodontist’s Letter, the Prosthodontist writes: “(The Appellant) has an oroantral fistula in the premaxillary region. Surgical correction of this was attempted multiple times to correct her cleft palate. … (She) is in need of new dentures to achieve a proper fit, proper support of her jaw and to help obturate the oroantral fistula and to allow her to chew properly.

Due to the complexity of her anatomy a referral was made to (me), for optimal treatment. Obturation of the oroantral fistula can be completed using a specialized denture which would significantly reduce the risk of future aspiration pneumonia. A specialized lower denture is needed to make sure that the temporal mandibular joint functions at proper angulations as she has significant bone loss on the

Appeal Number 2021-0221 mandibular ridge. Without all the specialized attention a loss in jaw function could create other medical and health concerns such as the wearing down of the mandibular condyles and debilitating headaches.

This request is sent with the hope that the full treatment cost can be considered for coverage as these needs are due to medical and health needs.”

The Panel finds that this information, which is provided by a certified dental specialist, clearly confirms that the Appellant’s “specialized dentures” provide functionality beyond what a conventional denture is designed to do. The Panel notes that there is no definition in the EAPWDR to distinguish conventional dentures from any other types of dentures that might have been modified or customized to meet the needs of an individual with congenital deficits, or for dentures that have been customized for any other reason.

Eligibility for Coverage of Services in Excess of the $1,000 Limit for Basic Dental Services In its original decision, the Ministry determined that the Appellant’s coverage for the lower denture was limited to $102.14. In the RD, the Ministry increased the maximum amount by $756.69 to equal the maximum amount available for a lower denture with the 10% premium ($858.33) as the lower denture was provided by a certified specialist, and because the Appellant is entitled to an additional amount under EAPWDR Schedule C Section 4(3)(c).

“Basic dental services” are defined in EAPWDR Schedule C, Section 1 as any dental service appearing in the Fee Schedule. The Panel notes that both upper and lower dentures are listed in the Fees Schedule and are covered to a maximum amount of $757.50 and $780.75 respectively for an eligible adult. The Panel also notes that the Fee Schedule says that a 10% premium can be applied if the amount of coverage for both upper and lower dentures if the services are provided by a certified specialist. The services in this case were provided by a Prosthodontist and the Ministry acknowledges that a prosthodontist is a certified specialist. When the 10% premium is applied, the maximum amounts for an upper denture and a lower denture are $833.25 and $858.83 respectively.

EAPWDR subsections 4(1) and 4(1.1) set the limits for basic dental services at $1,000 every 2 years for an eligible adult. Subsections 4(3) and 4(6) say that regardless of whether an eligible adult has received any other basic dental services toward the basic dental services biannual $1,000 limit, additional coverage up to “an amount necessary to provide any dentures” can be provided if an eligible adult has been receiving disability assistance for at least 2 years, up to the additional limit for dentures as set out in the Fee Schedule.

The Panel finds that the Ministry reasonably determined that the Appellant was entitled to dental coverage of $833.25 for upper dentures and $858.33 for lower dentures based on the eligibility criteria set out in the Fee Schedule and EAPWDR Schedule C Section 4.

Eligibility for Coverage of Dental Fees in Excess of Ministry Rates for a Complete Set of Replacement Dentures

Subsection 4(2) says that a full set of replacement dentures can be covered every 5 years. The Panel notes that, as explained by the Ministry at the hearing, replacement dentures are dentures that replace a previous set of dentures, not initial complete or partial dentures that are provided to replace all or some of a person’s missing teeth. While the term “replacement dentures” is not defined in the EAPWDR, the Panel finds that the Ministry’s interpretation of the meaning of the term is reasonable. The Panel also notes that the Appellant has not had replacement dentures for 40 years.

Appeal Number 2021-0221 While not at issue in this appeal, the Panel finds that the Ministry reasonably determined that the Appellant is entitled to both upper and lower replacement dentures.

Eligibility for Coverage of Dentures as an Emergency Dental Service EAPWDR Schedule C Section 1 defines "emergency dental service" as a dental service necessary for the immediate relief of pain. The Panel notes that no evidence has been presented to indicate that the Appellant requires the dentures to immediately relieve pain.

The Panel finds that the Ministry reasonably determined that the Appellant was not eligible for coverage of dentures as an emergency dental service.

Eligibility for Coverage of Dentures as Orthodontic Treatment EAPWDR Section 65 says that the Ministry can provide orthodontic supplements to a disability assistance recipient who is a person with disabilities who does not have the resources available to cover the cost of the orthodontic supplements if they have severe skeletal dysplasia with jaw misalignment by 2 or more standard deviations, and if they have obtained the prior authorization of the Ministry. “Orthodontic” is not defined in the legislation, but the Cambridge Dictionary defines it as “relating to the job or activity of correcting the position of teeth and dealing with and preventing problems of the teeth”.

In the RD, the Ministry determined that the Appellant was not eligible for coverage of dentures as an orthodontic supplement under EAPWDR Section 65 because dentures are considered a basic dental service. The Panel notes that dentures are not teeth, and because orthodontics deals with correcting the position of teeth and dealing with or preventing problems with teeth, it would not be reasonable to consider that dentures could be covered under the legislative provisions for an orthodontic supplement.

Eligibility for Coverage of Dentures as a Life-Threatening Health Need EAPWDR Section 69 says that the Ministry may provide a prescribed health supplement or prescribed medical device or piece of medical equipment if it is provided to a person receiving disability assistance who is otherwise not eligible for that supplement and if the Ministry is satisfied that, provided other specified conditions are met, the person faces “a direct and imminent life threatening need”.

Before addressing the requirement that a person is facing a direct and imminent life threatening need, the Ministry must determine if the medical device in question is an eligible device. A medical device must be one of those that are listed in EAPWDR Schedule C Sections 2(1)(a) and (f) and Section 3. Those devices are medical or surgical supplies, transportation to or from a specified type of medical facility, canes, crutches, walkers, wheelchairs and wheelchair seating systems, scooters, toileting and transfer positioning aids, hospital beds, pressure relief mattresses, floor or ceiling lift devices, breathing devices and orthoses.

In the RD, the Ministry determined that it was unable to provide coverage for the Appellant as a life-threatening health need because dental treatments and dentures are not listed in EAPWDR Schedule C Sections 2(1)(a) and (f) and Section 3.

The Panel notes that most of the health supplements and medical devices or equipment identified in EAPWDR Schedule C Sections 2(1)(a) and (f) and Section 3 would clearly not include dentures that have been modified to meet the needs of an individual with congenital deficits. However, two classes of

Appeal Number 2021-0221 medical equipment and devices listed there should be considered in the circumstances of the Appellant:  breathing devices and orthoses.