Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2023-0323

The Ministry of Social Development and Poverty Reduction (ministry) determined on October 5, 2023 that the appellant is not eligible for coverage of the modifications to his standing frame which were completed in July 2022 and February 2023.

Part D – Relevant Legislation

Employment and Assistance for Persons with Disabilities Regulation, section 62.

Employment and Assistance for Persons with Disabilities Regulation, Schedule C, sections 3, 3.5.

Please see a copy of this legislation in Appendix A.

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Part E – Summary of Facts

Appeal Number 2023-0323

The appellant has been designated as a Person with Disabilities (PWD) and is in receipt of disability assistance. His mother advocates for the appellant. A Certificate of Representative agreement (under the Representation Agreement Act) is in the hearing record; this document allows her to speak and make decisions on the appellant’s behalf.

Information Before the Ministry at Reconsideration:

• On July 11, 2023, the ministry received a request from the appellant’s physiotherapist, for modifications to his standing frame, including:

o Physiotherapy Consultation Report and Letter of Justification dated June 30, 2023. Repairs to the appellant’s supine stander were needed as it was very old and there were fit issues with leg length discrepancy as well as with support of the appellant’s very significant thoracic kyphosis. The recommended alterations were made in July 2022 and then adjusted in February 2023 to have the stander work for the appellant.

• Supplier quote for the alterations ($2,151) dated September 9, 2022.

• On August 23, 2023, the ministry denied the appellant’s request. The adjudicator wrote:

Your request does not meet the criteria under section 3(1)(b)(i) of the Employment and Assistance for Persons with Disabilities Regulation, Schedule C Health Supplements. This section states that funding may only be provided by the Ministry if your family unit has received the pre­authorization of the Ministry for the requested medical equipment or device.

The Occupational Therapist assessment states the repairs, alterations and adjustment to your e300 supine standing frame was [sic] completed on 2 different occasions - July 2022 and February 2023. As your family unit did not receive the pre-authorization of the Ministry for this request prior to completing the modifications, we are unable to provide funding for this item at this time.

• On September 20, 2023, the appellant’s mother submitted a Request for Reconsideration on behalf of the appellant, and a letter that reads:

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1. The denial of funding is based on the lack of pre-approval for this equipment. [My son] was already in possession of the stander and the initial plan was for repair and refurbishment of an existing piece of equipment that he had been using. He had stopped using this only due to the condition of the equipment. The stander had to be taken to the shop for assessment and repair. The fact that the treating therapist did not proceed in the correct sequent [sic] for submission for funding does not change the fact that this is medically necessary equipment for [my son.] The treating therapist understood that repairs are not in requirement for pre-approval.

2. [My son] requires the stander to support maintaining his ROM and bone health. He was unable to use his existing stander due to disrepair and poor support of his body alignment. This was assessed by the treating OT/PT who decided that it was not safe to be used in its current state.

3. Since repair and refurbishment, [my son] has successfully returned to a regular supported standing program that benefits his overall health and wellbeing. This supports regulation of his bowel routine, supports respiratory health, allows for an alternate position that supports maintenance of skin health. He also has strong dystonia that places him at risk of ongoing losses in his ROM that may affect his overall positioning. Ongoing use of the stander support maintenance of his ROM for his long term [sic] health.

4. [The supplier] is a valued resource for [my son] and many, many other clients living with significant physical impairments. Ensuring they are properly remunerated for their work is essential to maintaining their long term [sic] viability, to provide specialized service to the community they provide service to.

Information Submitted After Reconsideration

• On October 18, 2023, the appellant’s mother (and legal representative) filed a Notice of Appeal, a copy of the Legal Representative document, and wrote the following letter to the Tribunal:

In the ministries [sic] review of our request for reconsideration, the ministry acknowledges our family meets all the eligibility requirements for modifications to [my son’s] standing frame except the preauthorization of modifications that were undertaken. The details of dates & paperwork submitted is not something our family was aware of; nor are we familiar with policies around funding.

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Now, due to the oversight of supporting therapists, we are expected to pay a substantial sum which we are not budgeted for – monies that were allocated for other supports to help us care for [my son] at home.

In future, our family will make every effort to ensure we have pre-approval for all requests for funding from the ministry. We certainly hope the Appeal Tribunal will approve our request for funding for modifications to [my son’s] standing frame.

During the hearing, the appellant’s mother summarized the information that she had provided prior to the hearing and reiterated that the appellant’s family has never been involved in the necessary “paperwork” for securing or repairing the appellant’s medical equipment. This process has always been handled entirely between the appellant’s physiotherapists and the ministry.

In response to a question from a panel member, the appellant’s mother clarified that the standing frame was approved and purchased by the Ministry several years ago.

A panel member asked the appellant’s mother if she had ever had a conversation with the appellant’s physiotherapist about the physiotherapist’s error in not seeking pre-authorization. The appellant’s mother stated that she and the physiotherapist had a conversation about this, and the physiotherapist had apologized to the appellant’s mother for the error. The appellant’s mother further explained that there had been staffing changes at the physiotherapist’s office in 2022, including due to a maternity leave, and that this may have contributed to the error. The appellant’s mother reiterated her appreciation for the hard work of the physiotherapists on her son’s behalf over many years.

A panel member asked the ministry representative if the ministry has definitions for “repairs” to medical equipment and “modifications” to medical equipment as the Regulation appears to be silent on this distinction. The ministry representative explained that they use the terms “repairs” and “modifications” of medical equipment interchangeably.

Admissibility of Additional Information

The panel accepted the appellant’s mother’s letter enclosed with the Notice of Appeal, the appellant’s mother’s oral testimony during the hearing, and the ministry representative’s oral testimony during the hearing as evidence under section 22(4) of the Employment and

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Appeal Number 2023-0323 Assistance Act, which allows for the admission of evidence reasonably required for a full and fair disclosure of all matters related to the decision under appeal.

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Part F – Reasons for Panel Decision

Appeal Number 2023-0323

The issue under appeal is whether the ministry decision that the appellant is not eligible for coverage of the modifications to his standing frame (completed in July 2022 and February 2023) is reasonably supported by the evidence or is a reasonable interpretation of the legislation.

The appellant’s position is that the ministry has provided the appellant with health supplements for various medical equipment over many years. The appellant’s family has never had any involvement in the paperwork or payment for the purchase of medical equipment because the appellant’s physical therapist has always dealt directly with the ministry. Accordingly, the appellant’s family was not aware of the ministry’s pre-authorization requirement for medical equipment and repairs. The appellant’s physical therapist told the appellant’s mother that they did not know that pre­authorization was required from the ministry for medical equipment repairs.

The ministry’s representative relied primarily on the reconsideration decision. The ministry’s position is that the appellant did not meet the Regulation requirement to secure pre-authorization before repairs and modifications were made to the appellant’s standing frame. The ministry representative reiterated that the ministry does not have discretion in requiring pre-authorization as this is a legislative requirement.

Panel Decision

Section 62 of the Regulation allows the ministry to provide a recipient of disability assistance any health supplement set out in section 3 [medical equipment and devices] of Schedule C, if the requirements under Schedule C are met.

The appellant is a recipient of disability assistance.

Eligibility Criteria

Schedule C, sections 3(1) to (6) of the Regulation identify the requirements that must be met for the provision of medical equipment and devices. Schedule C, section 3.5 identifies the specific eligibility criteria that must be met to be approved for a toileting, transfer or positioning aid.

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Appeal Number 2023-0323

Schedule C, section 3(1)(b) of the Regulation states that the ministry may provide the least expensive appropriate medical device described in Section 3.1 to 3.12, subject to sections 3(2) to 3(5) [emphasis added], if

(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.

The wording of Schedule C, section 3(1)(b) above outlines that eligibility for a health supplement for medical equipment is determined by the appellant fulfilling the requirements listed in Schedule C, section 3(1)(b) and sections 3(2) to 3(5).

1. Pre-Authorization

The panel notes that the appellant did not receive pre-authorization from the ministry for the repairs and modifications that were completed to the appellant’s standing frame by the supplier in July 2022 and February 2023.

2. No resources

In its Reconsideration Decision, the ministry agrees that the appellant does not have resources to pay for repairs and modifications to his standing frame.

3. Least Expensive Appropriate Medical Equipment.

In its Reconsideration Decision, the ministry does not dispute that making repairs and modifications to the appellant’s standing frame was the least expensive appropriate medical equipment.

Schedule C, section 3(2) of the Regulation sets out that for medical equipment and 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 section 3, the appellant must provide one or both of the following to the ministry, as requested:

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(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.

In its Reconsideration Decision, the ministry acknowledged that an assessment was provided by the appellant’s physical therapist. The assessment is not dated but this document was faxed from the physiotherapist’s office to the ministry on July 11, 2023, along with a quote for “refurbishment” of the appellant’s standing frame (dated September 9, 2022.)

Health Supplement for Repairs of Medical Equipment

The Regulation, Schedule C, section (3)(4) sets out that, unless damaged through misuse, 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.

Equipment Eligibility Section 3.5 (1) of the Regulation specifies items that are health supplements for the purpose of section 3 of Schedule C if the ministry is satisfied that the item is medically essential to facilitate toileting, or transfers of a person, or to achieve or maintain a person’s positioning. In its Reconsideration Decision, the ministry acknowledges that the appellant’s standing frame is considered eligible medical equipment, under Section 3.5 (1) (k).

The only outstanding issue for the panel to consider in this appeal, is the absence of a pre­authorization request from the appellant’s legal representative or supplier.

Majority Panel Analysis

Neither party to this appeal disputes whether pre-authorization was requested and/or received for repairs and modifications to the appellant’s standing frame. Through an oversight, the appellant’s physiotherapist did not make a pre-authorization request prior to the initial work being completed on the appellant’s standing frame in July 2022 and again in February 2023.

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Appeal Number 2023-0323

Schedule C, section 3(1)(b)(i) of the Regulation states that pre-authorization must be received before new medical equipment is purchased or repairs made to existing medical equipment. This is a legislative requirement, and the ministry does not have discretion in this regard.

The panel notes that the Regulation is silent on the definitions of “repairs,” “modifications,” or “refurbishment” of medical equipment. This lack of definition creates the question of whether medical equipment modifications and/or refurbishment, in effect, creates a “new” medical equipment item. However, even if modifications and/or refurbishment could be seen as creating “new” medical equipment, this would not change the Regulation’s requirement for pre-authorization from the ministry.

Therefore, the panel finds the ministry was reasonable to determine that the appellant is not eligible for coverage of the modifications to his standing frame which were completed in July 2022 and February 2023 and without pre-authorization.

Minority Panel Member Analysis While the minority comes to the same conclusion as the majority, it is via a very different route.

The panel majority and the ministry interpret the Regulation as the majority has paraphrased it: “The Regulation states that pre-authorization must be received before new medical equipment is purchased or repairs made to existing medical equipment.”

It is the opinion of the minority that this interpretation is incorrect and unreasonable. It would be better paraphrased as, “The Regulation states that the Ministry must have pre-authorization for a medical equipment or device before it can be purchased, or repairs can be made to it.”

If the ministry has already recognized that a person needs a medical device, and has approved its purchase, it would be unreasonable to deprive the individual of its use while approval for repairs or maintenance was sought. Also, if, as the majority state, pre-authorization was required for all repairs, there would be no need to differentiate between equipment which the ministry provided (Schedule C Section 3(4)), and equipment they did not provide (Section 3(5)). Because these two situations are identified separately, it is reasonable to assume they were meant to be treated

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differently. In the opinion of the minority, it indicates that repairs can be made without further pre-authorization if the equipment was provided, and therefore pre-authorized, by the ministry but, if the ministry had not authorized the acquisition of the equipment, the need for the equipment would have to be assessed and authorized before any repairs could be made.

In the circumstances of this case, there is no dispute that the standing frame was authorized and provided by the ministry many years ago. Therefore, the requirement in Schedule C Section 3(1)(b)(i), which states, “the family unit has received the pre­authorization of the minister for the medical equipment or device requested,” has been satisfied. The Ministry does not dispute that the repairs are more economical than replacement. Therefore, repairs would then be eligible under Section 3(4).

However, the appellant has stated that the work done on the equipment included modifications, not just repairs. The legislation is silent on the handling of modifications and because the ministry has required pre-authorization for all work, it has not been a concern. Neither repair nor modification is defined in the legislation but, in common language, a repair would normally be a fix made to return equipment to its original functional specifications, and a modification would be a change to the functional specifications to meet a new or expanded requirement.

A piece of equipment, or a device, is defined by a specific set of functional specifications. When the ministry approves the use of equipment by an individual, its decision is based on these functional specifications. If these specifications are modified, essentially a new device or equipment is being defined. Therefore, it would be reasonable that the ministry would require pre-authorization under Section 3(1)(b)(i) before the modifications could be performed.

Because the equipment was modified without pre-authorization, the Ministry has no authority to provide a supplement to cover any costs relating to these modifications.

Conclusion

The panel finds the ministry’s reconsideration decision, which determined that the appellant was not eligible for coverage of the modifications to his standing frame was a reasonable application of the legislation and therefore confirms the decision. The appellant is not successful in his appeal.

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Appendix A

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.

[en. B.C. Reg. 145/2015, Sch. 2, s. 4; am. B.C. Reg. 161/2017, App. 2, s. 2.]

Schedule C

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:

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(a) a prescription of a medical practitioner or nurse practitioner for the medical equipment or device; (b) an assessment by an occupational therapist or physical therapist confirming the medical need for the medical equipment or device.

(2.1) For medical equipment or devices referred to in section 3.9 (1) (b) to (g), in addition to the requirements in that section and subsection (1) of this section, the family unit must provide to the minister one or both of the following, as requested by the minister:

(a) a prescription of a medical practitioner or nurse practitioner for the medical equipment or device; (b) an assessment by a respiratory therapist, occupational therapist or physical therapist confirming the medical need for the medical equipment or device.

(3) Subject to subsection (6), the minister may provide as a health supplement a replacement of medical equipment or a medical device, previously provided by the minister under this section, that is damaged, worn out or not functioning if (a) it is more economical to replace than to repair the medical equipment or device previously provided by the minister, and (b) the period of 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.

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(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 — toileting, transfers and positioning aids 3.5 (0.1) In this section:

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

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

(2) The period of time referred to in section 3 (3) (b) of this Schedule with respect to replacement of an item described in subsection (1) of this section is 5 years from the date on which the minister provided the item being replaced.