Ministry of Social Development and Poverty Reduction

Appeal Number 2022-0312 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the ministry) reconsideration decision dated December 13, 2022, which determined that the appellant was not eligible for an increase of Reactine allergy medication.

Specifically, the ministry determined the appellant was not eligible for the requested increase of Reactine allergy medication under section 2 of Schedule C of the Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) as a medical supply or extended therapy, as a medical supplement under Schedule C, section 3, as a supplement under any other section in Schedule C, as a Monthly Nutritional Supplement under section 67, as a supplement for a life-threatening need under section 69, or as a crisis supplement under section 57 of the EAPWDR.

Part D – Relevant Legislation

Employment and Assistance for Persons With Disabilities Regulation (EAPWDR)Sections 57, 62, 67, 67.001 and 69.

Employment and Assistance for Persons With Disabilities Regulation Schedule C

        EAAT003 (17/08/17) 2

Appeal Number 2022-0312 Part E – Summary of Facts Summary of key dates and information before the minister at reconsideration:  September 27, 2022, the appellant contacted the ministry stating their allergies have worsened and they now require an increase from 40 to 60 Reactine tablets monthly.  October 26, 2022, the appellant’s pharmacy requested the appellant’s standing authority for 40 Reactine be increased to 60 tablets monthly.  November 9, 2022, the ministry denied the appellant’s request.  November 28, 2022, the appellant submitted a Request for Reconsideration. In Section 3 the appellant wrote they disagree with the ministry’s decision to deny their request for 60 pills of 20 mg Reactine a month due to: o Without Reactine their life-threatening allergies would increase resulting in increased risk of anaphylactic shock. o It would increase their need to go to Emergency and Emergency is already in a critical situation. o It would be detrimental to their health. o The doctor has confirmed they must use the brand Reactine due to significant allergic reaction to other brands of allergic medications. o Reactine is their prescribed medication. o They are on Disability Assistance so to pay for the 20 extra pills would be a significant hardship. o Their allergies are a lifetime condition. o They have Asthma and Reactine improves their breathing and lessens their attacks.  December 13, 2022, the ministry completed its review of the Request for Reconsideration.

Documents submitted by the appellant included:  A prescription from the appellant’s doctor dated October 12, 2022, prescribing an increase in extra strength Reactine from 40, 20 mg tablets to 60, 20 mg tablets a month due to life-threatening allergies. The doctor notes, this is a lifetime illness, brand name only, no substitutions.  A fax from the appellant’s pharmacy dated October 12, 2022, requesting new authorization for the appellant’s increase of their standing prescription of 40 tablets of Reactine a month to 60 tablets a month.

Notice of Appeal  In Reasons for Appeal dated December 14, 2022, the appellant states: o They are not able to pay for the increase cost of the additional tablets which are a requirement as their allergies are life-threatening. o Without the increase of tablets, they would have more chance of severe asthma attacks and would end up in the ER.

EAAT003 (17/08/17)

3

Appeal Number 2022-0312 At the hearing the appellant’s advocate stated:  In 1996 a tribunal decision granted the appellant funding for purchasing over-the-counter medication Reactine.  The appellant has severe allergies which requires an increase in the dosage of Reactine.  The appellant’s doctor has prescribed the increased dosage of Reactine to address the appellant’s “life threatening” allergies.  The appellant has other medical issues requiring medications which are not covered, adding additional burden to their finances.  The appellant has been receiving financial help from their sister as they can not meet the monthly expense of purchasing the medication not covered by the ministry and the sister is no longer able to provide financial assistance.  The appellant has a life-threatening condition which will last their lifetime and they require this specific medication, Reactine.  The appellant’s doctor has requested an increase of medication as the appellant’s allergies have worsened causing increased shortness of breath.

Responses to questions asked of the appellant  When asked if the appellant had requested PharmaCare to cover the cost of the new prescription, the appellant responded they did not believe so and could not remember.

At the hearing the ministry representative stated:  The appellant has been covered for the cost of 40 tablets of 20 mg of Reactine since the tribunal decision issued in 1996.  The reconsideration decision is based on the current legislation which does not include the coverage of over-the-counter allergy medication.  The ministry does not have the regulatory authority to cover the cost of the over-the ­counter medication, Reactine.  When considering the request for an increase of the medication Reactine, the ministry must find a category in the regulations that supports the appellant’s request. Although several regulations were considered, the ministry was unable to find a supplement in the regulation that authorizes the appellant eligibility for funding of the medication Reactine.

Responses to questions asked of the ministry representative  When asked if all doctor issued prescriptions are covered for clients designated as a Person with Disabilities and in receipt of disability assistance the ministry representative responded no, only prescriptions which are eligible in the regulations are covered.  When asked if PharmaCare covers the cost if a prescription is given by the appellant’s doctor, the ministry representative responded that PharmaCare decisions do not fall under their jurisdiction. The ministry representative was not familiar with the PharmaCare process and stated it was not the ministry’s position to advocate for or to inform about PharmaCare coverage, rather the appellant could pursue the option to approach PharmaCare to obtain coverage of the new prescription.

EAAT003 (17/08/17)

4

Appeal Number 2022-0312 Part F – Reasons for Panel Decision Appeal Issue The issue under appeal is whether the ministry’s determination the appellant was not eligible for funding of over-the-counter medication was a reasonable application of the legislation in terms the appellant’s circumstances.

Positions Appellant The appellant argued the ministry was not reasonable in their decision to deny funding to cover the cost of the doctor prescribed medication as they have a life-threatening condition that will last a lifetime and they cannot afford to purchase the medication.

Ministry Although the appellant is eligible for 40 tablets monthly for Reactine through a “grandparent” process which maintains the terms and conditions in accordance with a 1996 tribunal decision, there is no legislative provision which would enable the amount of the appeal award provided to be revised or adjusted. Therefore, the appellant’s request for 20 additional tablets of Reactine was considered by the ministry separately from the 1996 appeal award. The request for funding was denied as the appellant did not meet the eligibility requirements of the EAPWD Regulations Sections 57, 62, 67, and 69.

Panel Finding The panel found the ministry’s decision that the grandparented appeal award cannot be revised was a reasonable application of the legislation.

Eligibility for funding for 20 tablets of Reactine 20 mg monthly

 EAPWD Regulation, Section 62, Schedule C, section 2(1)(a), (a.1) and (a.2) o Section 2(1)(a) of Schedule provides for supplements for medical or surgical supplies. However, section 2(1.1) sets out that for the purpose of subsection (1)(a), medical and surgical supplies do not include nutritional supplements, food, vitamins, minerals or prescription medications. The panel finds the ministry was reasonable in denying the appellant funding for Reactine as a medical supply. o Further, medical supplies are only available for certain purposes. The panel finds the ministry was reasonable in determining the appellant does not meet the eligibility criteria set out under section 2(1)(a) Schedule C as the appellant does not require Reactine for wound care, ongoing bowel care required due to loss of muscle function, catheterization, incontinence, skin parasite care, or limb circulation care. o Section 2(1)(a.1) provides for supplements for certain other medical and surgical supplies. The panel finds that the ministry was reasonable in determining the medication Reactine is not lancets, needles and syringes, ventilator supplies required for essential operation or sterilization of a ventilator, or tracheostomy supplies, as permitted under section 2(1)(a.1) of Schedule C.

        EAAT003 (17/08/17) 5

Appeal Number 2022-0312 o Section 2(1)(a.2) provides for supplements for certain consumable medical supplies provided they are required to thicken food. The panel finds that the ministry reasonably determined that Reactine is not a consumable medical supply required to thicken food, as allowed under section 2(1)(a.2) of Schedule C.  EAPWD Regulation, Section 62, Schedule C, section 2(1)(c)- Extended Therapy o Section 2(1)(c) sets out that the ministry may provide coverage for extended therapies. As over-the-counter allergy medication is not a medical therapy the panel finds the ministry was reasonable in determining the appellant’s request could not be met under the legislation for extended medical therapies.  EAPWD Regulation, Section 62, Schedule C, section 3- Medical equipment o Section 3 sets out the general requirements for all equipment/devices. As over-the-counter allergy medication is not medical equipment/device, the panel finds the ministry was reasonable in determining the appellant’s request could not be met under the legislation for medical equipment and devices.  EAPWD Regulation, Section 62, Schedule C, sections 2.1, 2.2, 4, 4.1, 5, 6, 8, and 9 o These sections provide for: optical supplements, eye examination supplements, dental supplements, crown and bridgework supplements, denture supplements, emergency dental supplements, diet supplements, natal supplements, and infant formula. As medication is not included in these sections, the panel finds the ministry was reasonable in determining the appellant’s request could not be met under these legislation sections.  EAPWD Regulation section 67 and 67.001- nutritional supplement o Section 67 provides for a monthly nutritional supplement to alleviate symptoms of a chronic progressive deterioration of health in certain circumstances. Section 67.001 provides for or a short-term nutritional supplement for an acute short-term need. As medication is not included in the supplements, the panel finds the ministry was reasonable in determining the appellant’s request could not be met under section 67 or 67.001of the EAPWD Regulation.  EAPWD Regulation Section 69- health supplement for a person facing specific direct and imminent life-threatening health needs. o Section 69 provides for a supplement for any health supplement listed in sections 2(1)(a) and (f) and 3 of Schedule C where there is a life-threatening need and the applicant is otherwise ineligible. As the appellant request for funding of Reactine is not one of the supplements included in section 3 or section 2(1)(a) of Schedule C as noted above and, is not transportation which is provided in section 2(1)(f) of Schedule C, the panel finds the ministry was reasonable in determining the appellant’s request could not be met under section 69 of the EAPWD Regulation.  EAPWD Regulation Section 57(1)- Crisis Supplement o As no evidence was given that the increased medication was unexpected and as Section 57(3) stipulates a crisis supplement may not be provided for the purpose of obtaining a supplement described in Schedule C, or any other health care goods or services, as over-the-counter medication would be considered a health care good, the panel finds the ministry was reasonable in determining the appellant’s request could not be met under section 57 of the EAPWD Regulation.

        EAAT003 (17/08/17) 6

Appeal Number 2022-0312 Conclusion The panel finds the ministry’s decision to deny the appellant funding for additional over-the-counter medication was reasonably supported by the evidence and confirms the ministry’s reconsideration decision. The appellant is not successful in their appeal.

Applicable Legislation Employment and Assistance for Persons With Disabilities Regulation

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.

(4) A crisis supplement provided for food, shelter or clothing is subject to the following limitations:

(a) if for food, the maximum amount that may be provided in a calendar month is $40 for each person in the family unit;

(b) if for shelter, the maximum amount that may be provided in a calendar month is the smaller of

(i) the family unit's actual shelter cost, and

(ii) the sum of

(A) the maximum set out in section 2 of Schedule A and the maximum set out in         EAAT003 (17/08/17) 7

section 4 of Schedule A, or

Appeal Number 2022-0312

(B) the maximum set out in Table 1 of Schedule D and the maximum set out in Table 2 of Schedule D,

as applicable, for a family unit that matches the family unit;

(c) if for clothing, the amount that may be provided must not exceed the smaller of

(i) $100 for each person in the family unit in the 12 calendar month period preceding the date of application for the crisis supplement, and

(ii) $400 for the family unit in the 12 calendar month period preceding the date of application for the crisis supplement.

(5) Repealed. [B.C. Reg. 248/2018]

(6) Repealed. [B.C. Reg. 248/2018]

(7) Despite subsection (4) (b), a crisis supplement may be provided to or for a family unit for the following:

(a) fuel for heating;

(b) fuel for cooking meals;

(c) water;

(d) hydro.

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.

Nutritional supplement

67 (1) The minister may provide a nutritional supplement in accordance with section 7 [monthly nutritional supplement] of Schedule C to or for a family unit in receipt of disability assistance, if the supplement is provided to or for a person in the

        EAAT003 (17/08/17) 8

family unit who

Appeal Number 2022-0312

(a) is a person with disabilities, and (b) is not described in section 8 (1) [people receiving special care] of Schedule A, unless the person is in an alcohol or drug treatment centre as described in section 8 (2) of Schedule A,

if the minister is satisfied that (c) based on the information contained in the form required under subsection (1.1), the requirements set out in subsection (1.1) (a) to (d) are met in respect of the person with disabilities,

(d) the person is not receiving another nutrition-related supplement, (e) Repealed. [B.C. Reg. 145/2015, Sch. 2, s. 7 (c).] (f) the person complies with any requirement of the minister under subsection (2), and (g) the person's family unit does not have any resources available to pay the cost of or to obtain the items for which the supplement may be provided.

(1.1) In order for a person with disabilities to receive a nutritional supplement under this section, the minister must receive a request, in the form specified by the minister, completed by a medical practitioner, nurse practitioner or dietitian, in which the practitioner or dietitian has confirmed all of the following:

(a) the person with disabilities to whom the request relates is being treated by the medical practitioner or nurse practitioner for a chronic, progressive deterioration of health on account of a severe medical condition;

(b) as a direct result of the chronic, progressive deterioration of health, the person displays two or more of the following symptoms:

(i) malnutrition; (ii) underweight status; (iii) significant weight loss; (iv) significant muscle mass loss; (v) significant neurological degeneration; (vi) significant deterioration of a vital organ; (vii) moderate to severe immune suppression; (c) for the purpose of alleviating a symptom referred to in paragraph (b), the person requires one or more of the items set out in section 7 of Schedule C and specified in the request;

(d) failure to obtain the items referred to in paragraph (c) will result in imminent danger to the person's life. (2) In order to determine or confirm the need or continuing need of a person for whom a supplement is provided under subsection (1), the minister may at any time require that the person obtain an opinion from a medical practitioner, nurse practitioner or dietitian other than the medical practitioner, nurse practitioner or dietitian referred to in subsection (1.1).

        EAAT003 (17/08/17) 9

(3) Repealed. [B.C. Reg. 145/2015, Sch. 2, s. 8.]

Appeal Number 2022-0312

[am. B.C. Regs. 317/2008, s. 8; 68/2010, ss. 1 and 2; 145/2015, Sch. 2, ss. 7 and 8.]

Nutritional supplement — short-term

67.001 The minister may provide a nutritional supplement for up to 3 months to or for a family unit in receipt of disability assistance or hardship assistance, if

(a) the supplement is provided to or for a person in the family unit who is not receiving another nutrition-related supplement, and

(b) a medical practitioner, nurse practitioner or dietitian confirms in writing that the person has an acute short-term need for caloric supplementation to a regular dietary intake to prevent critical weight loss while recovering from

(i) surgery,

(ii) a severe injury,

(iii) a serious disease, or

(iv) side effects of medical treatment.

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).

        EAAT003 (17/08/17) 10

(2) For the purposes of subsection (1) (c),

Appeal Number 2022-0312

(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

General health supplements

2 (1) The following are the health supplements that may be paid for by the minister if provided to a family unit that is eligible under section 62 [general health supplements] of this regulation:

(a) medical or surgical supplies that are, at the minister's discretion, either disposable or reusable, if the minister is satisfied that all of the following requirements are met:

(i) the supplies are required for one of the following purposes:

(A) wound care;

(B) ongoing bowel care required due to loss of muscle function;

(C) catheterization;

(D) incontinence;

(E) skin parasite care;

(F) limb circulation care;

(ii) the supplies are

(A) prescribed by a medical practitioner or nurse practitioner,

(B) the least expensive supplies appropriate for the purpose, and

(C) necessary to avoid an imminent and substantial danger to health;

(iii) there are no resources available to the family unit to pay the cost of or obtain the supplies;

(a.1) the following medical or surgical supplies that are, at the minister's discretion, either disposable or reusable, if the minister is satisfied that all the requirements described in

EAAT003 (17/08/17)

11

Appeal Number 2022-0312 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. [B.C. Reg. 236/2003, Sch. 2, s. 2 (b).]