Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

2024-0032

The decision under appeal is the Ministry of Social Development and Poverty Reduction (the “Ministry”) reconsideration decision of January 16, 2024 (the “Reconsideration Decision”). The Ministry determined that the Appellant was not eligible for a dental supplement in respect of crowns and restorations because:

• the types of crowns and restorations requested are not provided for in the codes set out for basic or emergency dental services in the Schedule of Fee Allowances – Dentist; • the Appellant did not establish that she is unable to use a removeable prosthetic, as required to be eligible for services under the Schedule of Fee Allowances – Crown and Bridgework; and • the Appellant is not eligible for a dental supplement as a life-threatening need or as a crisis supplement.

Part D – Relevant Legislation

Employment and Assistance for Persons with Disabilities Act (the “Act”)- section 25

Employment and Assistance for Persons with Disabilities Regulation (the “Regulation”)- sections 57, 63, 63.1, 64, and 69, Schedule C- sections 1, 4, 4.1, and 5

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Part E – Summary of Facts

2024-0032

Information before Ministry at the Reconsideration Decision

The Appellant is a recipient of disability assistance.

The information before the Ministry at the time of the Reconsideration Decision included the following:

• the Ministry’s Dental Supplement, which includes the following schedules: o Fee Allowances -- Dental (the “Dental Schedule) o Fee Allowances – Emergency Dental (the “Emergency Schedule”); and o Fee Allowances – Crown and Bridgework (the “Crown Schedule”);

• The requests for: o Restoration, Tooth Coloured, Bonded, Core, in Conjunction with Crown under fee code 23602; and o Crown, Porcelain/Ceramic/Polymer, Fused to Metal Base under fee code 27211 For each of the Appellant’s number 26 and 46 teeth; and

• The Appellant’s Request for Reconsideration, dated December 26, 2023, which included:

o

o o o

o o

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a referral, dated November 9, 2023 (the “Referral”), from a dental clinic which noted that crowns were recommended for the Appellant to preserve the structural integrity of the Appellant’s teeth; X-rays of the Appellant’s teeth; an application for benefits for a local health authority; and an estimate for crowns and restorations for the Appellant’s number 26 and 46 teeth with the codes 23602 and 27211 in the amounts of $160.00 and $845.00, respectively, for each tooth; two receipts, dated December 5, 2023, in respect of crowns for tooth 26; an invoice, dated December 5, 2023, in respect of the same crowns for tooth 26, indicating that the Appellant still owed $237.00 in respect of a ceramic crown; a handwritten note from the Appellant setting out that:  the Appellant has two very painful teeth needing treatment, including crown replacement;

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o

2024-0032 t e A  h ppellant could not e at due to pain and teeth chipping;  the Appellant has breast cancer and the chemotherapy made her dental issues worse; and  the Appellant’s dental issues were causing her significant stress;  the Appellant could not afford the required treatments due to being on disability; a note from the Appellant’s doctor, dated December 19, 2023 (the “Note”) in which the doctor refers to the Appellant’s breast cancer and the impact of chemotherapy on the Appellant’s dental health, including the risk of increased infections due to immunodeficiency; and the summary from the Ministry’s insurer, denying the Appellant’s claims for restorations and crowns under fee codes 23602 and 27211, respectively, as well as for a Porcelain/Ceramic/Polymer Glass Crown under fee code 27201 for teeth 26 and 46.

Information Submitted after the Reconsideration Decision

In the Notice of Appeal, filed January 26, 2024, the Appellant wrote that:

• she has breast cancer and underwent surgery, chemotherapy, and radiation treatment; • she had two broken teeth after chemotherapy; • she had severe pain, difficulty chewing, and could only eat soft foods; and • she was warned by her dentist that her teeth could break and was at increased risk of infection.

The Appellant also submitted, with the Notice of Appeal, a certificate of health status from her family doctor, dated January 26, 2024 (the “First Certificate”) which set out that she was at risk of having dental disease due to chemotherapy and an increased risk of suffering complications from dental infections due to her immunodeficiency.

The Appellant submitted two letters after filing the Notice of Appeal:

• a second certificate from her family doctor, dated March 5, 2024 (the “Second Certificate”), which reiterated the points in the First Certificate and also noted that one of the complications from a dental infection for which she is at an increased risk is endocarditis; and • an e-mail from the director of a clinic, dated February 27, 2024 (the “February E-Mail”) where the Appellant was attending for treatment which indicated that the

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2024-0032 structure of the Appellant’s number 46 t ooth was severely undermined, due to recurrent caries surrounding a previous direct composite filling and that the best-case treatment to retain the tooth was a crown.

The Ministry made no new submissions to the Tribunal after the Reconsideration Decision.

Admissibility

The Ministry did not object to the admissibility of any of the new documents, all of which address the Appellant’s dental health, which is the subject matter of her request for the supplement which the Ministry has denied. In the result the panel admits the First Certificate, the Second Certificate, and the February E-Mail, as evidence that is not part of the record but which is reasonably required for a full and fair disclosure of all matters related to this appeal, pursuant to section 22(4) of the Employment and Assistance Act.

The Hearing

Present at the hearing of the appeal were the Appellant, an advocate for the Appellant, an interpreter, and, via teleconference, a representative of the Ministry.

The Appellant’s Evidence and Submissions

The Appellant stated that her dentist had originally told her that she required a crown and reconstruction for the two affected teeth about 5 or 6 years ago but that she did not have enough money at the time. Two previous crowns on the affected teeth have been chipping away since she began her cancer treatment and her dentist advised her that they should be fixed immediately.

The Appellant stated that she had done some shopping around but that the cost of the services were about $1,300.00 per tooth everywhere that she looked. She eventually decided to have students in a dental program perform the services as the cost was about half of what the dentists she contacted charged.

She has already completed the crown and restoration for one of the teeth and has paid the full cost for that procedure. For the second tooth, she has paid the first installment but not the balance which is due prior to the crown being installed.

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2024-0032 To pay for the procedures, she has used her cr edit cards and borrowed from friends to pay her card balance. She has also been trying to connect with the Ministry between making the first and second payments but has had no success yet.

The Appellant is also attending physiotherapy so her expenses are mounting and she is worried about her finances.

The Appellant described having sleepless nights and eating poorly, due to the stress, all of which is impacting her health.

The Appellant described that the cancer treatments are affect her bone structure, including to her jaw.

The Appellant stated that the best solution for her situation is a post and crown as she already has dental health issues and wants to keep her teeth. The Appellant will be susceptible to infection and an increased risk of endocarditis if the dental issues are not resolved.

The Appellant stated that she did not want any of her teeth to be removed unless it was absolutely necessary and a removable bridge would require the removal of the affected teeth and parts of neighbouring teeth.

The Appellant confirmed that she was given options by her dentist for what could be done if the affected teeth needed to be removed and what could be done if the teeth didn’t need to be removed. The Appellant did not recall any discussion with her dentist about removable dentures as an option.

The Ministry’s evidence and submissions

The Ministry stated that the regulations surrounding dental supplements left it with almost no legislative discretion.

The fee codes for the crowns and restorations being sought are simply not in the schedules for regular dental services and emergency dental services, and, as such, the Ministry stated that they can’t be covered as either a dental or emergency dental supplement.

To be eligible for a crown and bridge supplement, the Ministry noted that it was governed by section 4.1 of Schedule C to the Regulation which required that it be established that a

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2024-0032 removable prosthetic was not a viable option f or the Appellant for one of the reasons set out in subsection (2) and, in this case, the evidence did not establish that. In particular, the evidence of the doctors and dental professionals didn’t address the option of a removable prosthetic or any other options for repairing the Appellant’s dental issues.

In effect, for a crown or bridge supplement, the legislation does not require that the treatment be the least expensive option but, instead, that the dental issue being addressed can’t be corrected by anything other the crown.

The Ministry gave examples of scenarios where it might find that a removable prosthetic was not a viable option, including where there was a physical impairment or mental impairment which made it difficult or impossible for an individual to remove and replace a removable prosthetic dental device.

The Ministry also confirmed that it had no authority to provide a supplement directly to an individual which could then be applied by the individual to an item which was not approved by the Ministry under the Regulation. In other words, the Ministry can only provide a supplement for an item which was actually approved and provided so, for example, the Appellant could not receive a supplement in the amount available for a removable device and apply that supplement to the cost of a crown.

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Part F – Reasons for Panel Decision Issue on Appeal

2024-0032

The issue in this appeal is whether the Ministry was reasonable in its determination that the Appellant was not eligible for a dental supplement in respect of crowns and restorations because:

• the types of crowns and restorations requested are not provided for in the codes set out for basic or emergency dental services in the Schedule of Fee Allowances – Dentist; • the Appellant did not establish that she is unable to use a removeable prosthetic, as required to be eligible for services under the Schedule of Fee Allowances – Crown and Bridgework; and • the Appellant is not eligible for a dental supplement as a life-threatening need or as a crisis supplement.

Positions of the Parties

Position of the Appellant

The Appellant’s position is that her doctor and dental providers have confirmed the need for crowns and restorations for her number 26 and 46 teeth, that failure to obtain the crowns and restorations is negatively impacting her health, and that she has located the lowest cost treatment that should be covered by the Ministry.

Position of the Ministry

The Ministry’s position is that the restorations and crowns are not covered under the Dental Schedule or the Emergency Dental Schedule and that the conditions for coverage under the Crown Schedule have not been met by the Appellant.

Panel Decision

Section 25 of the Act authorizes the Ministry to delegate its authority under the Act. In the case of the provision of dental benefits, the Ministry has delegated its authority to its insurers who sets out what services may be provided under the Dental Schedule, the Emergency Dental Schedule, and the Crown Schedule and at what rates.

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2024-0032 Basic eligibility for a dental supplement or an e mergency dental supplement is governed by sections 63 and 64 of the Regulation. The Appellant meets the basic eligibility criteria in both of those sections.

Basic dental services, as contemplated in section 4 of Schedule C to the Regulation, however, are defined in section 1 of Schedule C to the Regulation as those services that have fee codes in the Dental Schedule. The Dental Schedule does not provide for coverage in respect of the restorations and crowns being sought by the Appellant as the fee codes for those services do not appear anywhere in the Dental Schedule. In other words, the Ministry does not have the legislative authority to provide a supplement in respect of those treatments as a basic dental service.

Likewise, emergency dental services, as contemplated in section 5 of Schedule C to the Regulation, are defined in section 1 of Schedule C to the Regulation as those services that have fee codes in the Emergency Schedule. The Emergency Schedule also does not provide for coverage in respect of the restorations and crowns being sought by the Appellant as the fee codes for those services do not appear anywhere in the Emergency Schedule so the Ministry also does not have the legislative authority to provide a supplement in respect of those treatments as an emergency dental service.

In view of the foregoing, the panel finds that the Ministry was reasonable in its determination that it could not provide a supplement for the restorations and crowns as either a basic or emergency dental service.

Basic eligibility for a crown and bridgework supplement is governed by section 63.1 of the Regulation and the Appellant meets the basic eligibility criteria. However, the Appellant must also satisfy the criteria under section 4.1 of Schedule C to the Regulation and, more specifically, subsection (2) which requires the existence of one of the following circumstances:

• a dental condition precludes the use of a removable prosthetic; • an applicant has a physical impairment that makes it impossible for him or her to place a removable prosthetic; • an applicant has an allergic reaction or other intolerance to the composition or materials used in a removable prosthetic; or • a person has a mental condition that makes it impossible for him or her to assume responsibility for a removable prosthetic.

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2024-0032 While the information in the documentation pr ovided by the various treating practitioners and the evidence of the Appellant is that a restoration and crown is the best treatment for the Appellant, particularly if she wants to retain all of her teeth, none of that information addresses the above-noted criteria directly or even infers that the Appellant could not tolerate the type of removable prosthetic contemplated by the legislation. While it is admirable that the Appellant has located an inexpensive means of having the treatments done, finding the least expensive cost is not a criteria in the legislation and the Ministry does not have the authority to pay any amount towards a supplement that an applicant is found to not be eligible for, including the amount that may be payable in respect of another dental item for which an applicant might be eligible (for example, in this case, a removable prosthetic). Instead, an applicant must satisfy the above-noted criteria set out in section 4.1(2) of Schedule C to the Regulation. Given the available evidence, the panel finds that the Ministry was reasonable in its determination that the Appellant had not met that criteria.

While section 57 of the Regulation permits the Ministry to issue a crisis supplement to eligible recipients of disability assistance, section 57(3), expressly precludes the Ministry from providing a crisis supplement in respect of any of the items described in Schedule C to the Regulation and “any other health care goods or services.” All dental supplements that the Ministry is authorized to provide are described in Schedule C. As a result, the Ministry also has no legal authority to provide coverage for the restorations and the crowns as a crisis supplement. As a result, the panel finds that the Ministry reasonably determined that it was not able to provide a supplement for those items to the Appellant under section 57 of the Regulation.

Likewise, section 69 of the Regulation permits the Ministry to provide a health supplement to persons facing an imminent and life-threatening health need. However, the items for which such a supplement can be provided are limited to those described in sections 2(1)(a), 2(1)(f), and 3 through 3.12, but not section 3(1), of Schedule C. None of those sections deal with dental items. Section 2(1)(a)(f) refers to surgical supplies, Section 2(1)(f) refers to medical transportation, and section 3 through 3.12 refer to a variety of medical items including canes, crutches, and walkers, wheelchairs, wheelchair seating systems, scooters, toileting, transfers and positioning aids, hospital beds, pressure relief mattresses, floor or ceiling lift devices, breathing devices, orthoses, hearing instruments, and non-conventional glucose meters. As none of the items that are referred to in section 69 of the Regulation apply, the panel finds that the Ministry was also reasonable in its determination that it was not able to provide a supplement for the restorations and crowns under this section of the Regulation.

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Conclusion

2024-0032

As the panel has found that the Ministry was reasonable in its determination as to the Appellant’s eligibility in respect of all of the legislative provisions under which dental ­related supplements could potentially be provided, the Appellant is not successful in this appeal.

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Relevant Legislation

2024-0032

Employment and Assistance for Persons with Disabilities Act

Delegation of minister's powers and duties 25 (1) Subject to the regulations, the minister may delegate to any person or category of persons any or all of the minister's powers, duties or functions under this Act except (a) the power to prescribe forms, and (b) the power to enter into an agreement under section 21 (2) or (2.1), unless section 21 (2.2) applies in relation to the agreement. (2) A delegation of the powers, duties or functions of the minister must be in writing and may include any limits or conditions the minister considers advisable.

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:

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2024-0032 (a) if for food, the maximu m amount that may be provided in a calendar month is $50 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, the maximum set out in section 4 of Schedule A and any supplements provided under section 54.3 [pre-natal shelter supplement] or Division 7 [Housing Stability Supplement] of Part 5 of this regulation, or (B) the maximum set out in Table 1 of Schedule D, the maximum set out in Table 2 of Schedule D and any supplements provided under section 54.3 or Division 7 of Part 5 of this regulation, as applicable, for a family unit that matches the family unit; (c) if for clothing, the maximum amount that may be provided in the 12 calendar month period preceding the date of application for the crisis supplement is $110 for each person in the family unit. (5) and (6) Repealed. [B.C. Reg. 248/2018, App. 2, s. 2.] (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.

Dental supplements 63 The minister may provide any health supplement set out in section 4 [dental supplements] 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

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2024-0032 (c) a family unit, if the hea lth supplement is provided to or for a person in the family unit who is a continued person.

Crown and bridgework supplement 63.1 The minister may provide a crown and bridgework supplement under section 4.1 of Schedule C to or for (a) a family unit in receipt of disability assistance, if the supplement is provided to or for a person in the family unit who is a person with disabilities, or (b) a family unit, if the supplement is provided to or for a person in the family unit who (i) is a continued person, and (ii) was, on the person's continuation date, a person with disabilities.

Emergency dental and denture supplement 64 The minister may provide any health supplement set out in section 5 [emergency dental supplements] of Schedule C to or for (a) a family unit in receipt of disability assistance, (b) a family unit in receipt of hardship assistance, 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.

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

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