Appeal Number 2023-0381 Part C – Decision Under Appeal The decision under appeal is the Ministry of Social Development and Poverty Reduction (the “ministry”) reconsideration decision (the “decision”) dated November 27, 2023, which denied the appellant the Monthly Nutritional Supplement (MNS) for vitamins/minerals and nutritional items.
Specifically, the ministry determined that the appellant did not meet the eligibility criteria set out in the Employment and Assistance for Persons With Disabilities Regulation, subsections 67(1.1) (a), (b), (c) and (d) and Schedule C, subsection 7 (a).
Part D – Relevant Legislation
Employment and Assistance for Persons with Disabilities Regulation (the “Regulation”) Section 67 (1) and (1.1), Schedule C section 7
The relevant text of the Regulation is included at the end of this decision.
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Appeal Number 2023-0381 Part E – Summary of Facts Evidence at the time of reconsideration As part of the application for the MNS, the appellant submitted: 1) Several lab reports dated August 22, 2023, September 6, 2023, where the results “white blood cells present” and “probable iron deficiency” had been highlighted 2) A nuclear medicine requisition dated January 26, 2021 with the appellant’s weight and height entries circled 3) A lab report dated June 27, 2023 with the cholesterol result highlighted 4) A specialist report dated November 30, 2021 with the paragraph on cholesterol results highlighted 5) Two prescriptions dated January 26, 2021 6) A receipt for Pedialyte dated November 3, 2023. 7) A referral for an Internal Medicine and Gastroenterology specialist dated October 31, 2023 8) An Infectious Disease specialist report (undated) with the following highlighted: “[the appellant] try using loperamide for symptomatic relief. Another agent to consider would be cholestyramine in case [the appellant] has bile acid malabsorption”. A sentence recommending a colonoscopy was also highlighted. 9) An undated statement from the appellant explaining that they had not received “Imodium or high dose probiotics as recommended by healthcare practitioners” and that their current BMI was 19.1 with “prolonged worsening high” cholesterol and “prolonged worsening GI issue white blood cells, uncontrolled diarrhea, specialist investigation required and ongoing treatment”. 10) An application for MNS (the “Application”) dated July 25 2023 where a physician had listed the appellant’s severe medical conditions as Gastroesophageal Reflux (GERD), Hiatal Hernia, and Irritable Bowel Syndrome (IBS) with the direct results of these listed as “having progressive nausea, weakness, abdominal pain, dizziness with fluctuations in weight, constipation“. The physician requested iron and magnesium supplements to address dizziness, fatigue and constipation, and Gatorade and Boost to address weight loss associated weakness and fatigue. The physician indicated the appellant displayed the symptoms of underweight status, noting the appellant’s BMI as “low normal” at 19, and significant weight loss described as “fluctuating weight gain/loss”. When asked if the applicant had a medical condition that results in an inability to absorb sufficient calories, the physician wrote “no”. Under the section related to a description of how the items (vitamins/minerals and nutritional items) will prevent imminent danger to the applicant’s life, the physician wrote: “There is no current imminent danger to the applicant’s life”.
EAAT003 (17/08/17)3
Appeal Number 2023-0381 According to the Ministry’s decision, the follow ing is a chronology of events, which is not disputed by the appellant:
The ministry advised the appellant that they were not eligible for an MNS on September 26, 2023.
The appellant initiated a Request for Reconsideration on October 27, 2023.
The ministry completed its decision on November 27, 2023.
In the decision, the ministry found that:
1) The appellant is in receipt of disability assistance and is eligible for the MNS. 2) The evidence did not support a chronic progressive deterioration of health on account of a severe medical condition as outlined in Regulations 67 (1.1)(a) 3) Two or more symptoms set out under the Regulation 67 (1.1) (b) were not present 4) Regarding vitamin/mineral supplementation, malnutrition, chronic progressive deterioration was not evident 5) Regarding nutritional items, the need for caloric supplementation was not evident 6) Imminent danger was not evident 7) Based on the above factors, the appellant was ineligible.
The appellant submitted a Notice of Appeal to the Tribunal on December 7, 2023.
Testimony at the hearing The appellant did not attend the hearing and at the start of the hearing advised Tribunal staff that the hearing should proceed without them.
The ministry explained the criteria needed for receiving an MNS. The ministry confirmed the criteria included that the MNS should address a chronic, progressive deterioration on account of a severe medical condition, and there must be imminent danger. The ministry stated that, in this case, without enough evidence, they were not able to conclude that the MNS was addressing such and that there was imminent physical danger to the appellant.
EAAT003 (17/08/17)4
Appeal Number 2023-0381 Part F – Reasons for Panel Decision The issue on appeal is whether the ministry’s reconsideration decision that the appellant was ineligible for an MNS was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant.
Specifically, did the ministry reasonably determine that the appellant was ineligible for an MNS because they did not meet the criteria?
Ministry position In the decision, the ministry found that the appellant was not eligible for an MNS because they were not satisfied that the appellant was being treated for a chronic, progressive deterioration of their health due to a severe medical condition. The ministry determined that the appellant did not qualify for either vitamin/mineral supplementation or nutritional items. The ministry also determined that there was no evidence presented to support the requirement of an imminent danger to the appellant’s life.
The ministry acknowledged the “ongoing medical concerns” experienced by the appellant but could not conclude that they were progressive or deteriorating or being treated currently. In the Application, the physician did not provide any details about treatments, such as clinical or diagnostic reports. Based on the information provided by the physician in the Application, the ministry concluded that there was no evidence of a chronic, progressive deterioration of health as required in the Regulation.
The ministry reviewed the physician’s input regarding at least two symptoms in the Application, which were noted as being “underweight status” and “significant weight loss” and determined that the evidence did not support either finding. The ministry stated that a review of the evidence indicates that the appellant’s BMI was underweight in 2021, but has more recently increased to “low-normal”, which indicated fluctuating weight loss and gain, but not weight loss or underweight status. The ministry noted that fluctuating weight loss and gain, as reported by the physician, is not included in the list of symptoms.
The ministry also reviewed the MNS application and the physician’s report in regard to nutritional items, noting that this is for caloric supplementation to a regular dietary intake, and the physician replied “no” on the Application when asked if the appellant had any issues with the absorption of calories. Also, the information did not confirm the symptoms of underweight status, significant weight loss, or significant muscle mass loss, which would indicate the need for caloric supplementation.
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Appeal Number 2023-0381 Regarding Vitamin/Mineral Supplementation, t he physician did not report “malnutrition” as a symptom, and the physician did not specify how the MNS would alleviate one of the identified symptoms but instead related the supplementation to dizziness, fatigue and constipation which are not listed in the legislation.
The ministry stated that respecting both vitamins/minerals and nutritional items, in regard to an imminent danger to the appellant’s physical health, the physician had stated that “there was no imminent danger” to the appellant’s life, and could not conclude that imminent danger to the appellant was otherwise evident.
Appellant’s position The appellant states that they have a BMI of 19.1 and suffer from “prolonged worsening high cholesterol” and a “prolonged worsening GI issue white blood cells, uncontrolled diarrhea, specialist investigation required and ongoing treatment”.
The appellant also provides a specialist report that outlines their GI issues. They also provide lab reports which indicate their cholesterol levels.
Panel’s reasons Section 67(1) of the Regulation states that an MNS may be provided to a person with disabilities as long as the requirements in Section 67 (1.1) are met. The requirements set out in Section 67 (1.1) states that a medical practitioner has confirmed the following:
1) They are being treated for “chronic, progressive deterioration of health on account of a severe medical condition” 2) As a direct result of this condition, they display two or more of the following symptoms: a. Malnutrition b. Underweight status c. Significant weight loss d. Significant muscle mass loss e. Significant neurological degeneration f. Significant deterioration of a vital organ g. Moderate to severe immune suppression 3) In order to alleviate one of the symptoms above, they require nutritional items or vitamins and mineral supplementation 4) Failure to obtain these nutritional items will result in “imminent danger to the person’s life”.
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Appeal Number 2023-0381
The ministry concluded that the above criteria were not met.
In regard to a chronic progressive deterioration, the ministry stated that GERD, hiatal hernia and IBS were “not considered severe” medical conditions as they could be alleviated. Although the physician reported both “progressive nausea” and “progressive weight loss” in the MNS Application, neither was supported by diagnostic or clinical reports to support how any of the symptoms are chronic, progressive or deteriorating. The physician reported that there was “no current imminent danger” to the applicant. The Regulation requires that a medical practitioner “has confirmed” the chronic progressive deterioration of health. Such a confirmation is not present in the application or evidence presented at the hearing. The panel finds, based on the evidence provided, it was reasonable that the ministry concluded that there was no evidence of a chronic, progressive deterioration of health as required in the Regulation.
Relating to the criteria that an applicant has a minimum of two symptoms listed in the Regulation, the physician reported “underweight status” and “significant weight loss”. The physician added that the BMI was “low-normal” and “fluctuating weight gain/loss”, neither of which appear to support either of the two symptoms. The ministry concluded that the appellant’s BMI “low-normal” measure did not support “underweight status” and the addition of the words “weight gain” by the physician did not support the criteria of “significant weight loss”. The panel finds that, based on the evidence as presented, it is difficult to conclude that the criteria that two symptoms are displayed, as required by the Regulation.
Regarding the nutritional items, the panel notes the physician replied “no” on the Application when asked if the appellant had any issues with the absorption of calories. The panel found the evidence did not establish symptoms that may relate to the need for additional calories and that the Regulation requires the MNS is needed to help on of the listed symptoms.
Regarding Vitamin/Mineral Supplementation, the Application did not report “malnutrition” as a symptom, and the physician did not specify how vitamin D and magnesium would address any of the symptoms listed in section 67(1.1)(b). Instead, the physician related the need for vitamins/minerals to symptoms not listed in the Regulation. In this case, the panel finds that the ministry acted reasonably in determining that a medical practitioner has not demonstrated the requirement for either nutritional items or vitamin/mineral supplementation.
EAAT003 (17/08/17)4
Appeal Number 2023-0381 In regard to the criteria relating to imminent d anger to the appellant’s life, the physician had stated on the MNS application that “there was no imminent danger” to the appellant’s life. The Regulation requires that “a medical practitioner… has confirmed …failure to obtain the items … will result in imminent danger to the person’s life.” In this case, the physician has confirmed that an imminent danger does not exist. The panel finds that the appellant has not provided information to support that an imminent danger exists related to the need for an MNS.
All the criteria must be met in order to obtain an MNS. In this case, the panel finds that the ministry’s reconsideration decision is reasonably supported by the evidence and a reasonable application of the legislation. The panel confirms the ministry’s decision. The appellant is not successful in the appeal.
EAAT003 (17/08/17)5
Appeal Number 2023-0381 Schedule of Legis lation
Employment and Assistance for Persons with Disabilities Regulation
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 family unit who
(a) is a person with disabilities, and (b) is not described in section 8 (2)(b) [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 a 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
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Appeal Number 2023-0381 obtain an opinion from a medical practitioner, nurse pr actitioner or dietitian other than the medical practitioner, nurse practitioner or dietitian who completed the form referred to in subsection (1.1).
SCHEDULE C Health Supplements Monthly nutritional supplement
7 The amount of a nutritional supplement that may be provided under section 67 [nutritional supplement] of this regulation is the sum of the amounts for those of the following items specified as required in the request under section 67 (1) (c): (a) for additional nutritional items that are part of a caloric supplementation to a regular dietary intake, up to $180 each month; (b) Repealed
(c) for vitamins and minerals, up to $45 each month.
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Part G – Order The panel decision is: (Check one)
APPEAL NUMBER 2023-0381
☒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) ☒ Section 24(2)(a)☒ or Section 24(2)(b) ☐
Part H – Signatures Print Name Robert McDowell Signature of Chair
Print Name Warren Fox Signature of Member
Print Name Richard Franklin Signature of Member
EAAT (26/10/22)
Date (Year/Month/Day) 2024/01/05
Date (Year/Month/Day) 2024/01/05
Date (Year/Month/Day) 2024/01/05
Signature Page