Defending Healthcare: A Different Perspective


Positive Living I recently read an article under the banner “Fighting Words” entitled “Defending healthcare“.  The authors in that article threw down an interesting jingoistic saying.

Right now, there’s a legal attack before the courts that could turn Canada’s medicare system into the type of system found in the United States.

I understand the authors’ desire to inflame passions and press forward with their point, but of course I thought of the benefits that the US system has over the Canadian system when it comes to those that Canada deems to be “medically inadmissible”. The Canadian Healthcare system covers most people in Canada but in exchange for this universal coverage the Canadian system systematically refuses anyone with certain medical conditions entry into the Canada.  Indeed, the very disease of most interest to the authors and readers of this magazine (HIV positive people) is the one disease that Citizenship and Immigration Canada refuses as a matter of policy. I’m sure there are folks who understand that the written policy is to perform an individualized assessment of people.  But pragmatic experience in helping people with medical issues has taught me that in fact HIV is one of those conditions that are refused as a matter of course. Thus, while the authors view their healthcare system as being a wonderous thing, my perspective is that is is the fundamental justification of a morally bankrupt system intent on classifying anyone with HIV (or Down’s Syndrome, etc.) as being an unmitigated drain on society. The US system does not discriminate in this fashion.  The US immigration system is not tied into the costs of the US healthcare system.  The Canadian immigration system is. And it continues to get worse.  Essentially, anyone immigrating to BC would automatically be excessive demand because the province pays for all drugs (albeit in exchange for your agreement to enter the UBC research study.) Once Canada permits pre-exposure prophylaxis (PReP) not only can a disease condition be used to refuse someone entry into Canada, but even being at high risk could theoretically be used to justify the same thing. While I don’t post too much here anymore, I continue to communicate with people trying to find their way through the medical inadmissibility system.  Recently I communicated with someone who was given a fairness letter without any cost estimates at all. Just the blanket assertion that their treatment was expensive and paid for by the public healthcare system. I must admit, I was incensed at it.  Why?  Because the persons treatment was the only treatment that doesn’t exceed the threshold.  It’s all generics (Neverapine, Lamivudine and Zidovudine).  Using the Quebec published numbers, the cost was something like CAD$2,500 per year. So much for “individualized assessment”.  Hence my claim that, like it or not, it leads to systematic refusal of people with specific health conditions.  Like HIV. If you want a better health care system, stop using it to discriminate against people that want to come here but cannot because they might use it.  At least come up with some mechanism that balances inputs from outputs. In the meantime, pardon me for disagreeing with this blanket rosy self-congratulatory claim of superiority.  It rings hollow.

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Lee v MCI


MP Jason Kenney of the Conservative Party fiel...

Citizenship and Immigration Canada has been doing some major revisions to their website of late.  One area in which things are more interestingly laid out is the area dealing with medical issues, in particular, medical inadmissibility due to excessive demand.

I’m familiar with most of these cases, but I’d never reviewed the oldest of them: Lee v MCI.

Why is this important?  Because in the Lee decision, the court overturned the refusal because the officer failed to consider the applicant‘s request for a Temporary Resident Permit (TRP).  That request was a bit informal from what the record indicates.  Yet it reminded me that in our own original response to the visa office we asked they consider a TRP.  This was never addressed by the visa officer, nor was it raised in the application for leave and Judicial Review we filed.  In my case it didn’t matter (we obtained leave anyway) but it’s important for people going through this process to keep in mind they do have the option to request they be granted a TRP and to raise this as an issue in any legal challenge, as there is case law on-point here.

So if an officer has a concern about something in your plan – for example, perhaps she or he isn’t sure your insurance will cover the cost of prescription drugs – rather than blanket refusing you, she or he could grant a TRP for a period of time, say six to twelve months, with the understanding that in that time the applicant should be able to confirm that the insurance plan is working as intended.

Or let’s revisit Companioni – where the judge was concerned that their plan was inchoate.  To create a viable plan essentially required they be in Canada – after all, even my own plan was viable only because I was already in Canada.  Everything was set up and ready to go.  So to get out of the “chicken and egg” issue here, a TRP could allow someone to come to Canada for a short period of time – a year, for example – and set things up so she or he could show that they really wouldn’t be a burden.

After a year, the applicant could go back and apply for an extension, pointing out that the plan is working and the applicant is not a burden.  If that’s the case, the TRP can be extended again.

After three years of this, the applicant becomes eligible for permanent residency as a member of the “permit holder’s class“.  The medical inadmissibility concern is no longer an issue to CIC – but an officer had two opportunities to review the file and verify that the applicant really was complying with the terms and conditions of the application.

This underscores one more approach that a motivated applicant can pursue.

Schedule F: The Chain Link Fence to Keep Sick People Out of Canada


Permanent Resident CardI recently was discussing the issue of the cost of drugs inside versus outside Canada. One of the side-effects of the strong controls present in the Canadian system is that it forms a fence around Canada further making immigration for someone with a medical condition challenging.  This is because of the way the existing law is written.

The cost of certain drugs is much lower outside Canada.  While we can discuss the relative merits of this, such as this recent Forbes article or this recent book on the topic, the bottom line is that the cost of drugs in Canada is high – in some cases as much as 10x higher than the same drugs are from a reputable manufacturer (Cipla, Teva, etc.) in a different country, such as India, where patent rights differ.  One thing that makes this even more difficult in Canada is the blanket prohibition of the importation of certain drugs, currently on a list known as Schedule F, though this is in the process of being replaced by a similar scheme that makes it easier for Health Canada to manage the list.

The purpose of the list, however, is to prohibit the importation of certain drugs into Canada unless one is a doctor, a pharmacist or a hospital.  A patient may bring in a 90 day supply for personal use – but that doesn’t allow the drugs to be shipped.

So, how does one get around this?  Well there are a few options:

  • You can find a sympathetic doctor willing to receive the medications – essentially to serve as the “importer”.  This can be tricky, as some doctors are not willing to accept the potential liability of these non-Canadian approved drugs.  Still, some doctors are a bit more sympathetic.  It can be difficult to find such a doctor. One good thing about the new regulations is that they would extend the importation ability to anyone with the legal right to prescribe in the province.  Here in BC, for example, naturopathic doctors have prescription rights for many things and thus would be allowed to import drugs in some of these cases.  That increases the potential pool of doctors willing to assist.
  • You can arrange for delivery to the US border and then pick up a 90 day supply every three months.  Services like Kinek charge a modest fee for receiving a package for you in the US.  The US has an exception to the importation ban when the drugs are for personal use, which makes it easier to import them into the US.  Then you can bring them into Canada under the 90 day personal use exception.
  • You can try to find a Canadian pharmacy willing to sell the drugs to you.  For example, here in BC there’s a pharmacy in Surrey (Blue Sky Drugs) that indicates they will ship to Canadian addresses; whether this constitutes importation by a Canadian pharmacy or not is something that I will admit is definitely not clear.
  • You can “take your chances”.  This is what people who don’t have to worry about immigration do.  In my experience these services will reship anything that doesn’t arrive.  This is definitely a grey area, as they are exploiting the fact that CBSA cannot police every package and thus only a small fraction are actually seized.

For someone trying to convince CIC that they have a credible plan this situation can be problematic: some officers at CIC know about Schedule F and can use it as a means to refuse someone from being granted permission to immigrate.  In that case the best thing is to find a sympathetic doctor willing to allow shipments of the meds to them.  The doctor might be more willing if they know the drugs are coming from a foreign charity (NGO) rather than an internet pharmacy;  the patient may need to sign a written release indemnifying the doctor in case the drugs provided are ineffective or contaminated – after all, the doctor has no way of being able to verify the veracity of the drugs any more than the patient.  Were I trying to come to Canada and had a foreign NGO willing to provide me with expensive (or overpriced – depends upon your perspective) drugs, I’d be happy to indemnify a doctor willing to help me get into Canada in the first place!

Of course some types of drugs are worse than others.  In January 2013, Gilead reported they had a 76% profit margin.  AIDS Healthcare Foundation has been calling for moderation of their prices, but at the present time that’s the way the system works – the laws protect the companies’ profits not the health and well being of the actual patients.  For those wishing to immigrate to Canada this creates a real barrier to entry.

Canada in turn only looks at a few diseases very closely.  I personally know of people with heart conditions (requiring multiple surgeries and hospital stays after coming to Canada) who disclosed their conditions but were not subjected to the “excessive demand” fire drill.  But this is what the Canadian public has decided to do.  Immigration is always fraught with this sort of problem – a deep-seated xenophobia.  That’s hardly unique to Canada, sadly.

Happy (belated) Anniversary!


First AnniversaryI meant to finish this up yesterday, but somehow the time just simply got away from me.

December 22, 2011 was the date upon which Ms. Marlene Edmond of the Citizenship and Immigration Canada visa office in New York City, NY, USA officially rejected my application for permanent residency.

Thus, on this the first anniversary date (plus one) of the rejection I am looking back.  Things have changed dramatically in the past year.

When she has to refuse an application I wonder if she worries if she has made a mistake.  Perhaps in a case such as mine she doesn’t – though the subsequent events suggest to me that in fact the rejection – or at least the procedure leading up to that rejection – was a mistake.  I have no idea if such cases are ever reviewed internally at CIC to see if they are actually “doing things correctly” or not. I do know that it seems like once they lose a case, they bend over backwards to correct whatever the fundamental flaw was in the original process.  Still that doesn’t guarantee that the application will be granted.

In Ms. Edmond’s case, my opinion is that her mistake was in not pushing back on the medical officer’s decision.  That even a casual reviewer – let alone an immigration officer of her many years of experience – would look at this and say “wow, how can you reach a conclusion that someone is inadmissible when they have multiple overlapping plans for payment that don’t require on personal promises to pay and cover 100% of more than 4x the estimated current cost?” suggests to me that she should have been asking that question.

Or perhaps another way of looking at it Ms. Edmond: if you were going to reject me simply because of the policy of British Columbia, why did you ask me to submit anything to you in the first place?  I could have saved the thousands of dollars I spent in responding to the fairness letter and you wouldn’t have needed to waste your scarce resources on reviewing that response.   Indeed, looking back at it now, I find it difficult to see how a Federal Judge wouldn’t have asked that question – and therein concluded that there really was no “individualized assessment”.  After all, the decision simply required referring to the provincial policy.

In Sapru, the Court concluded that the immigration officer could not “fix” the poor decision of the medical officer.  In my case, the Medical Officer Hélène Quevillon really didn’t have any other reason in her original written notes to indicate this was related to me – it really was about BC’s public funded drug policy.  Ms. Edmond didn’t even go as far as the officer in Sapru did – she certainly didn’t push back on Ms. Quevillon’s determination and there is absolutely no indication that she reviewed that decision, especially in light of her duty to do so under the Sapru decision.  She certainly didn’t try to invent additional rationale for reaching the decision.  Thus, she acted more like a rubber stamp – with even less “value add” than was the case in Sapru – a case in which the Court overturned CIC’s decision.

So while I seriously doubt that Ms. Edmond will ever review her decision in my case, if I could communicate directly with her I would say that I am disappointed – not in the outcome, but rather in her execution of the process.

I am quite fortunate – I had the drive and resources available to challenge her decision.  Most people in such a position likely just walk away from the decision.  That is why it is so important that people like Ms. Edmond do their best to ensure their decision is fair and equitable.

In the interveningyear, I’ve had the honour to assist several people with their cases, and one is a case similar to mine: a federal skilled worker application in which the spouse was found to be HIV positive.  The medical decision is still pending – they have now furthered it once again, because the test results indicate that without treatment this individual does not require treatment under current guidelines in their intended province.  Of course, if they were coming to BC it would be easier – CIC could just reject them, since the provincial policy is to provide treatment to everyone, regardless of their lab results.  It saddens me to see how difficult this is for people – leaving their lives hanging in the balance for months and years.

So Ms. Edmond, it’s been one year now since you wrote that rejection letter.  Even now as I read the closing (“thank you for your interest in Canada“) I feel a certain degree of bitterness with the snide nature of that closing line. Canada deserves better – it deserves immigration officers and medical officers that remember there are real people behind those files.

While I didn’t win the victory I really wanted, I have managed to achieve sufficient victory for me to be satisfied with the outcome.  I hope both you and Ms. Quevillon do your very best for Canada now and in the future.

Merry Christmas!

 

Passport Request Recieved


So, September 26, one day after the conversation with my lawyer and CIC‘s attorney about the spousal application, my spouse received an e-mail from the immigration section of the Canadian Consulate in Los Angeles requesting that I submit my passport to them for issuance of my IMM 5292 (“Confirmation of Permanent Residency”) form.  The letter said that I must submit it within sixty days.

For me, this marks the real end of the journey.  Initially I was surprised by receiving this e-mail so quickly – one day after my attorney had relayed the conversation with CIC’s attorney (at Justice Canada).  But upon some reflection I wonder if she had been pushing to have it done in time to present this as an argument to the court: “his application for spousal sponsored immigration has been approved, so this issue truly is now moot.”

I’m reasonably certain it has been pushed.  I monitor a number of online immigration forums and I’m the first person in the “March 2012” group to receive a passport request, although several have gone into “In Process“.  I will note that my application probably didn’t require a huge amount of review – I’d already been thoroughly reviewed for the previous application, so a security review by CSIS should have been simple, particularly since I’ve been legally living in Canada for several years now.

Upon reflection, I suspect this is as close to an admission that my JR application had merit as I’ll ever receive under the circumstances.  But no one would have pushed my spousal sponsorship application had there not been at least some merit to the claims in the JR application – thus, CIC gets rid of a troublesome case and I achieve my own ultimate goal.

I don’t really think I’ve “sold out” here.  Legal actions routinely settle all the time, with the parties agreeing to a resolution that leaves each with something they want.  It is nothing more or less than compromise.

If I had been successful with the JR application (as seemed likely) the outcome would have been to send the case back to CIC for reconsideration.  I’d have gone through the same process all over again – medical examination, review of my current health, determination I might be medically inadmissible and then a fairness letter, a fairness response and a second decision.  I cannot honestly say that I wanted to spend another 18 months going through that all over again.  At some point I’d realized the most reasonable thing to do if I had received JR would have been to withdraw the application.  Then instead of “refused” it would have been “withdrawn” and thus not subject to the same level of scrutiny.

But that became moot on September 26th.  CIC has made their determination that I do qualify for immigration in the spousal class, even with the prior rejection in place.

So now my new scramble: to get the passport to CIC in time for them to complete the paperwork and get that passport back to me in time to head to the US in mid-October so that I can testify at trial in the US (“work”).  The process was a bit odd: the only expedited processing they will do is if I sent a USPS Express Mail envelope with a US return address on it.  But I’m in Canada.  Further, I cannot leave the country right now because I’m on implied status, with my work permit renewal in process – so if I leave, my work permit application must be processed at the border or I have to take a VR to return to Canada (preventing me from working).  So instead I sent someone else down in for me; he bought the overnight envelopes, addressed them  and sent the return envelope along with my passport, the completed height and eye colour chart and two photographs of me.  I also enclosed a copy of my travel itinerary showing that I had to leave for the US in mid-October, and requested they return my passport prior to that time.

The return envelope is actually addressed to go to my company’s office in the US.  THEY have no problem sending it to me wherever I am (including Canada) via FedEx.

They had the entire package in LA on Friday 28 September 2012.   I’m going to try to only check once per day (in the evening) to see if the return envelope has been presented.  I don’t really expect anything to happen before the end of this week – I’m hoping it will be done by the end of NEXT week, so that I have the entire bundle of paperwork ready to take with me to the US in mid-October.

If I get it back before mid-October, I’ll probably drive to the border, ask the US side to stamp my passport on entry (I’ve been told they need that on the Canadian side for some reason) and then loop around to head to the Canadian side, have them ask me about my expired work permit and get sent in to secondary inspection, where I can present my COPR and complete the landing process.

If I don’t get it back before mid-October, I’m hoping I’ll have it before I return to Canada on October 27th, so that I can complete the formalities after I land in Canada.  Otherwise, I’ll be back in the “must renew the work permit at the border” case – which I will need to do because I have work meetings in Canada in early November.

So, assuming all goes well, this part of the journey will be ending for me by the end of this month.

Indeed, what a long strange trip it’s been.

Is Discretion the Better Part of Valour?


This is my first post since I converted the blog to be private.  I did so entirely for personal and selfish reasons.  It seems the attorney from Justice Canada found the blog and send a letter to my attorney who was not happy. So, at least until this matter is resolved one way or the other, I’m going to leave the blog private – people who ask for access will be granted but I’m not going to leave it public, at least for now.

Hence the title of this post – I’m being discreet.  At least for now.

Rashid v MCI


This truly is a process that encourages one to scream at times.  I’m reading various cases (this time, using the fabulous search tools at the Canadian Legal Information Institute. I’m finding their linkage tools (“find cases that cite this case”) to be invaluable.

Of course, the downside to this is that I’m likely torturing myself through this process.  Because in this case (Rashid v MCI)  the applicant‘s application was rejected.  A careful reading of the logic suggests that it could be applied to my case.

The judge did certify a question in this case, one that had it been answered would likely have direct bearing upon my case:

When a medical officer has determined that an applicant will be in need of prescription drugs, the cost of which would place the applicant over the threshold of “excessive demand” as set out in the Immigration and Refugee Protection Regulations, must a visa officer assess the applicant’s ability to pay for the prescription drugs privately when those same drugs are covered by a government program for which the applicant would be eligible in the province/territory of intended residence?

This question directly squares with my own situation. Rashid however failed because he did not already have the necessary insurance in place.  Thus, interpreting the current jurisprudence it would seem that in order to be successful proving an insurance based plan to mitigate excessive demand one would have to already be inside Canada and the insurance must already be in place.

The CIC medical officer in my case added an additional requirement: one must already be using the insurance, in order to assuage her (after the fact) concerns that the insurance truly will pay the prospective costs.

Indeed, it is this continual raising of the bar that makes me grudgingly question if this isn’t really not about procedural fairness but rather more about “let’s just make it difficult for anyone ‘undesirable’ to immigrate to Canada.”  Frankly, very few people will take their case to the Federal Court of Canada in a case like this.  I suspect that most abandon their case at the point they get the fairness letter.  “Oh well, we didn’t make it.”  Some respond and of them a few actually work with an experienced attorney to craft an intelligible response.  At that point, how many people will continue to challenge the system?

Finally, even if they are successful at challenging the system, what do they win?  After all, their application is just sent back to CIC for consideration by another officer.  From what I can tell, that doesn’t seem to be successful in most cases anyway.

Is there any wonder that this really looks more like a scheme to provide the veneer of respectability over what is, at its heart, primarily based upon bias?

I just hope that I’m wrong.