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.


Decision time


So I am now faced with a very difficult decision, one that pits my personal interests against my sense of duty and obligation to others.

I’ve been forced to really carefully review my current situation and attempt to determine what is my best course forward, because the decision I make now has potentially long-term consequences for me and for others in the future.

So where am I right now.  At the present time I technically have four different applications ongoing with respect to some aspect of my immigration status in Canada.

The oldest is my original application to be an immigrant to Canada in the Federal Skilled Worker category.  I applied in that because I seemed to be qualified.  I don’t think I fit the typical skilled worker model – I wasn’t looking to go to work for an existing company.  I’m already established in my field, I’ve written books, I give lectures and talks, I work with companies all over the world. Thus, no matter where I live, I bring my skills and my customers with me.  I actually made the decision to apply back in 2006.  Had I not waited three years to do so, none of this would have happened, because I’d have been done in 2008, even with the 18 month processing time typical at that time.

But I didn’t – I applied in June 2009.  By the time they got around to doing my medical I tested HIV positive and while not an “automatic” failure to qualify for FSW, based upon the rejection I did receive it is for all intents and purposes an automatic failure for anyone planning on immigrating to British Columbia.  The attorney I was using at the time basically gave up on me at that point, once I received the follow-up medical request.  I hadn’t thought much about this honestly, until my conversation with my current attorney – but it did profoundly impact my willingness to trust anyone else, something I had not seriously thought about until after my conversation with my current attorney on Friday.

I’m the one who found my current attorney.  I did so by finding the Companioni decision and then looking through other decisions.  There are only a handful of attorneys with serious experience in medical inadmissibility and mine seems to specialize in the HIV cases. I’d been preparing the path to a solid response for quite some time.  Being an American I’m used to the idea of buying private insurance – indeed, it’s one of the very first things I did once I moved up here to work, which is quite fortunate because I wouldn’t qualify for personal private insurance any more.  I organized a group insurance policy as well and worked with my employer to set up a Personal Health Savings Plan (PHSP), which is a form of “health savings account”.  Thus, by the time I started working with my current attorney I’d put together all the fodder necessary to present a strong, credible, and current plan.

Behind all of this is my own fundamental distrust of the very paradigm that one must assume is true in order to create such a strong, credible, and current plan.  While I’m sure it marks me as a heretic, I find mounting evidence that the model of pharmaceutical intervention is deeply flawed.  I did write up a document to that effect and I even circulated it to my attorney and he did so to the expert who wrote up the report for me.  There was some feedback on it, but it was essentially negative – no surprise coming from someone who is deeply plugged into the current paradigm.  But the model for medical inadmissibility here doesn’t allow you to refuse the preferred treatment paradigm, no matter what the basis: religious, moral, philosophical or even scientifically based.  So while I can (and did) point to papers that say “um, this treatment paradigm doesn’t really work the way we’re telling people it works” (much like the article in the Guardian to which I linked earlier) that isn’t a winning strategy – and I did want to win.

Of course, in parallel with all of this I have the growing relationship with my now husband.  I’ve had previous relationships, and I was even married for quite some time, but this time my feeling is I’ve really found something quite special and that feeling has only grown and intensified.  When I received my fairness letter in early April 2011 it was actually upsetting, even though I had expected it.  I was very grateful for his strength and support and that was the final push and I asked him to marry me.  He agreed instantly.  We married six weeks later, after a week of actual planning – we literally were at breakfast (Dim Sum) and I said “so, you busy, because if you aren’t how about we get married?”  We didn’t get married that morning, but we did pick up our marriage licence.  We spent some time online looking at wedding bands and found several we liked at a local jewelry store, which is where we went the next day after he got home from work.  After looking at over a dozen different bands we narrowed it down to three.  He wanted me to pick, but I said, no, you pick one, and I’ll pick one and then we’ll figure it out from there.  We picked the same ring.  Even more amazing, they just happened to have two of those rings in stock.  Given that usually they have to order these things, it was surprising.  I’ll just say that it lent it that magical sense.  I contacted a wedding commissioner here, found she was available on the date we wanted (one week from getting the licence) and so we booked with her, made arrangements for two close friends to accompany us.  The day was an amazing spring day – sunny, bright, warm.  A true rarity in Vancouver in spring.  I even won the lottery that day!

The deadline for the initial submission was a Sunday, May 27.  My attorney indicated he had asked for an extension, but I’d not heard anything back, so I sent a copy of the document I had written, along with a cover letter saying that my attorney had asked for an extension and I wanted to make sure something was on file.  I also indicated that I’d been married, since I’m under an ongoing obligation to do so.

When the marriage certificate came in mid-June, I forwarded a copy to my attorney (although it turns out it was forwarded to my previous attorney, not my new attorney) and to CIC in NYC.

So, we submittted the mitigation plan.  My attorney did an excellent job of clearly laying out the issues and pointing to the case law, and my hat is off to him. When I noticed the change on the online CIC tracking system (to “decision made”) I was initially elated, thinking that this meant we were done.  But as I read a bit more and considered it a bit further I began to realize that it was most likely a rejection – my FBI clearance letter would have been expired by then, along with my medicals, both of which have a one year expiration date.  Thus, if they had decided to move my application forward, they would have ordered new medicals and a new FBI clearance letter.   Of course the rejection letter was sent to my attorney.  Since I was in NYC  – working in the same building as the Canadian Consulate – I tried to get a copy but they refused to even give me a copy.   So I had to wait until he returned from vacation to find out what was going on.

I still remember that early conversation and the questions without clear answers.  I even went so far to consult with a second attorney about one burning question: is it possible I might be rejected at the border?  Nobody really knew.  As a foreign national I do not have a legal right to enter Canada – it is discretionary and thus any border officer could look at my information and say “you’re inadmissible”.   I know this is not not a rational thought, but I am deeply in love with my spouse.  The thought of being forced to live apart is not a pleasant one for me.

So I studied and filed for a Temporary Resident Permit.  That’s my second oldest active application. Nobody knew if I was inadmissible, so asking for one would answer the question.  There were three possible outcomes:

  1. I’m not inadmissible and hence do not need a TRP;
  2. I’m inadmissible and am eligible for a TRP;
  3. I’m inadmissible and not eligible for a TRP

Of course, after everything that has happened since then I think (1) is the most likely outcome, but (2) is still not entirely unreasonable.

I’d also moved along with my spousal application.  That is my third application and I’ve talked about it (and these others) extensively.

The most recent is my work permit renewal. That’s just so I can remain in Canada while we sift through all of this.

Wow… so my situation is this – to move forward with the Judicial Review application I have to make sure my application is withdrawn.   That means sending my withdrawal letter via FedEx to them in LA (versus ahem, mailing it to them, a process that looks like it’s led to the loss of that letter).  But that raises the likelihood I will have to deal with the temporary inadmissibility issue.

A win on the Judicial Review will send my application back to CIC for reconsideration, which will mean going through the process again: a new medical, a new fairness letter, a new response to the fairness letter, etc.  At least another year.  Thus, the only “gain” here might be the positive legal decision.  But will it move the “state of the case law” forward enough to justify the personal inconvenience.

What I’d do most likely is just withdraw the application once it was returned to CIC.  That would make processing the spousal application simpler.  Ah, but I’ve been told that the spousal application is all but done – so there’s no reason to try and make it simpler, since it’s already over.

Thus my decision: do I declare a symbolic victory and move on with my life, or do I continue the fight?

Not an easy decision.



Ovalle v MCI

Court Decision (Gavel)It’s been several weeks since I reviewed the recent court decisions.  I was glad to see a new one that is pertinent to my case: Ovalle v MCI (2012 FC 507).  It was argued by the same attorney that I am using and – interestingly enough – the government was represented by the same attorney as well.  At some point I suspect these two will feel like old friends (or perhaps rivals at least.)

At any rate, in this case, Mr. Ovalle applied for immigration, was HIV positive when he applied, was taking drugs provided to him by a non-profit known as Aid for AIDS International and they agreed to continue providing him with the drugs, even if he were to immigrate to Canada.  He also showed that he was stable and other than the meds, he would not be an excessive demand on the health services of Canada.

The medical officer reviewed the additional evidence and said that it did not change the diagnosis or prognosis.  The visa officer relied solely upon the feedback from the medical officer, discounted everything submitted by Mr. Ovalle, and rejected him.

The Court was not happy with this decision – this was reviewed strictly on the “fairness” of the actual decision (an admittedly challenging basis on which to win a decision):

While the officer had detailed information before him about the medication Mr. Ovalle would require, its cost, and his ability to meet that cost, the officer merely reiterated the medical officer’s opinion that Mr. Ovalle’s diagnosis and prognosis had not changed. But neither the prognosis nor the diagnosis was the issue. There was no dispute about that. The issue was whether Mr. Ovalle would impose an excessive demand on Canadian resources. The officer did not address that issue in his reasons. It is not possible, therefore, to understand the basis for his conclusion that Mr. Ovalle’s plan was not satisfactory.

(Paragraph 9).

As a result, the judge decided the decision was not reasonable.   Kudos to Justice O’Reilly in holding CIC accountable to the standards as set forth in Sapru v MCIas I previously discussed.

The decision in this case is a narrow one (e.g., it applies to the specifics of this case) but it does demonstrate that the Courts are not allowing the Minister to simply reject people without a reasonable explanation as to why they are being rejected.

My own case has now been pending a decision on my application (to see if we even get to have a hearing) for 27 days.  While there is no guarantee of any specific time frame, it is now longer than most decisions of this type based upon my review of other cases – I have seen as long as two months to make a decision (twice – once it was granted, once it was denied).

Only time will tell.

The least expensive treatment option

One of the most difficult parts of formulating a response to the fairness letter in my particular case was even determining what the actual costs are to the Canadian Government.  It took me a while to find a source for such information, but it turns out that the Government of Quebec publishes a complete list of what they are willing to pay; my understanding is that this in turn is based upon the actual negotiated prices of the Canadian Government.  The liste de médicaments provides exactly this information.

By using this information I have been able to find what would be the least expensive option for treating an HIV infection in Canada at the present time.  While not the “preferred first line” treatment, it is still listed as a valid first line treatment and thus should be an option for anyone arguing the fairness letter.

Specifically, the combination of lamivudine, zidovudine and nevirapine (also known as Combivir and Viramune) now involves two drugs that are off patent (zidovudine and nevirapine) in Canada as well as the third (lamivudine) for which the patent expires June 2, 2012 (it is already off patent in the United States).

The current cost (as I write this) according to the Quebec price list is:

Zidovudine (100mg x 3) twice per day = $6.32/day

Lamivudine 150 mg twice per day = $9.30/day

Nevirapine 200mg twice per day = $2.47/day

Total cost per day = $18.09/day

$542.70 per month.  At $6,512.40 per year, this is above the maximum allowed, albeit only slightly over that limit.  With the impending generic status of Lamivudine, I would expect those prices to fall so they are below the threshold.

For a comparison, I used an online Canadian pharmacy (based in Quebec) to determine the price of generic equivalents.(Canadian Family Pharmacy – Your Cart)

Canadian Family Pharmacy

Canadian Family Pharmacy

It is a bit of a challenge to put this all together cleanly, but let’s go through the math:

Zidovudine is $4.56/day

Lamivudine is $2.00/day

Nevirapine is $3.40/day

Total per day: $9.96.

That’s $298.80 per month for this treatment option.  I did not combine the first two drugs together because that combination is covered by a patent still (“Combivir”) that has not yet expired.  However, my point is that all of these drugs are available as generics staring June 2, 2012.  This is a Canadian based company selling these drugs.  Note that this company will not ship products to Canada.  This is due to the Canadian rules that these drugs may not be imported (they are “Schedule F”) but for the purposes of computing the cost of generics, this is a reasonable place to start – if the government wishes to disagree, they can but they would need to be in a position to explain how they reached their conclusion.

Bottom line: if you find yourself arguing against a fairness letter due to your HIV positive status, obtain a letter from your doctor indicating that this combination is an acceptable starting therapy for you.  Then use this cost analysis to point out that the total cost of treatment is now under $3600 per year.  Even with periodic testing, your total costs will be well under the current limit (just over $6000 per year).

I didn’t make this argument because the emphasis by CIC in the past was on insurance.  Their response to me was “your insurance doesn’t matter, all that matters is the total cost of treatment, which is paid for by the provincial government”.  If I had known insurance didn’t matter, I’d have focused on costs.  Hopefully, if you find yourself in the same situation you can avail yourself of this argument.

Good luck!