Received Fairness Letter......Seeking guidance for reply

[jen3014]

I agree that personal promises to pay don't hold much weight. Third party provided insurance policies have much greater weight - in my case I had a group plan through my company, a personal plan that covered many things, and a PHSP (a tax advantaged plan for paying for any medical expenses, including the premiums of the personal policy). I also submitted a declaration of ability and intent (to which I continue to adhere, as it was submitted unconditionally, even though I was refused).

Will they hold weight even though there is no opt out policy in Saskatchewan and I have been claiming provincial benefits since 2012?

Just reading some of your other posts. This letter is because of the medicals we did in march 2014. We had previously done medicals in July 2012, which granted us TWPs before we moved to Canada and we transferred these results to our PR application in February 2013 and got an email from CIC to say they had been "assessed positively" At this point we got the line on our ECAS "medical results have been received". Due to the strike last year our file was delayed and they would not extend the results of our medicals so we repeated them this year and now they have issued the fairness letter. My medical situation has remained the same since 2012, and my medications has not changed since 2012. Do you think it's worth ordering our case notes to see if they accepted one medical and not the other?

 

[computergeek]

Just reading some of your other posts. This letter is because of the medicals we did in march 2014. We had previously done medicals in July 2012, which granted us TWPs before we moved to Canada and we transferred these results to our PR application in February 2013 and got an email from CIC to say they had been "assessed positively" At this point we got the line on our ECAS "medical results have been received". Due to the strike last year our file was delayed and they would not extend the results of our medicals so we repeated them this year and now they have issued the fairness letter. My medical situation has remained the same since 2012, and my medications has not changed since 2012. Do you think it's worth ordering our case notes to see if they accepted one medical and not the other?

Absolutely you should order your case note. Further, you want your medical notes (they used to have a different checkbox on the form, not sure about that now).

It does seem strange that with no change in your medical condition you have suddenly become inadmissible, though they could argue the prior approval was in error I suppose - but it is this sort of thing that should be mentioned in a good fairness response letter.

 

[jen3014]

I'm just wondering what the stats are on submitting a reply to procedural fairness and getting an successful outcome?

I've been putting together our reply, I can show the cost of the medication is covered by 2 insurance policies, both paid for by employers covering 100% of cost of medication. We also have a back up coverage of financial assistance from the manufacturer of the medication and the financial ability to pay should something go wrong. So we can show that we have offset the excessive demand, and we are not out of pocket and the provincial health is not being held responsible either. As we've lived in Canada almost 2 years I have pharmacy receipts, confirmation letters from insurers, support letters from employers and details of our own finances as part of our reply. I've also discovered that I passed my first medical without any problems. The case notes say "no health impairment sufficient to prevent admission for medical reasons" I've been on the same medication for 5 years so nothing has changed between one medical and the other so I don't know why they're finding a problem now, all of which I've summarised in a letter of reply.

I feel we have a strong case but unsure as to what our chances are, I researched a lot online and can't find if people have submitted replies and then had the decision overturned or if it's inevitable that we will face refusal. I know they have to consider the evidence but concerned that they still come out and say they're not satisfied it's enough?

Thanks in advance for any info and advice

 

[computergeek]

I'm just wondering what the stats are on submitting a reply to procedural fairness and getting an successful outcome?

I have never seen such statistics. Based upon my personal (small) sample size, it would seem that it's better than 50% for people who submit a credible response - CIC knows this is a swamp and thus they try very hard to avoid getting into it.

I've been putting together our reply, I can show the cost of the medication is covered by 2 insurance policies, both paid for by employers covering 100% of cost of medication. We also have a back up coverage of financial assistance from the manufacturer of the medication and the financial ability to pay should something go wrong. So we can show that we have offset the excessive demand, and we are not out of pocket and the provincial health is not being held responsible either. As we've lived in Canada almost 2 years I have pharmacy receipts, confirmation letters from insurers, support letters from employers and details of our own finances as part of our reply. I've also discovered that I passed my first medical without any problems. The case notes say "no health impairment sufficient to prevent admission for medical reasons" I've been on the same medication for 5 years so nothing has changed between one medical and the other so I don't know why they're finding a problem now, all of which I've summarised in a letter of reply.

The Companioni decision established that insurance could be used as an important factor for mitigation (though in their specific case they didn't have the insurance yet and thus the plan was "inchoate"). I presented 100% coverage (two employer provided plans, one of which was a PHSP that is a non-discretionary health savings plan that pays any medical expense as defined by CRA, and one private plan - that was paid for via the PHSP) with a total coverage level of ~$68k and was still refused. Then again, when we challenged in Federal Court the court granted the application for leave (which means they agreed to hear the case) and the medical officer was left making up post facto explanations for why she ignored the insurance entirely ("I was not convinced that it would cover in this case"). That's probably why my second application was granted so quickly.

I worked with an attorney who indicated to me that he routinely was able to assist people in obtaining a reconsideration of a fairness letter. Indeed, he was shocked when I was refused, as I had an extremely strong mitigation plan.

I feel we have a strong case but unsure as to what our chances are, I researched a lot online and can't find if people have submitted replies and then had the decision overturned or if it's inevitable that we will face refusal. I know they have to consider the evidence but concerned that they still come out and say they're not satisfied it's enough?

From what you've said you do have a strong case. You should submit it. But if you want to reserve the ability to challenge a negative decision, I'd suggest working with an attorney specializing in excessive demand medical inadmissibility because they can also frame information that would be suitable for legal arguments.

If you have 100% employer funded insurance and sign off on the declaration of ability and intent there is no reason for them not to find you admissible.

 

[shemrock]

Dear Computergeek
I am pleased to convey you that my medicals have been passed and I have received Visa too.
I have overcome successfully the fairness letter of medical inadmissibility and the response came from VO came early than I had expected.
You gave me the right direction, made me clearly focused as what needs to be addressed to overcome the fairness letter.
This could not have been possible without your great guidance and assistance. I am indebted and highly thankful to you.
Would like to see you personally in Canada.


I got a call from VO if he can issue visa as just one month was there in its expiry or extend the same but in case of extention I would have to redo medicals. I preferred to get the same issued though mine medical inadmissibility had been addressed and it would not have been an issue in remedicals. The next very day my ECAS changed from In Process to Decision Made and after another 3-4 days I received the Visa.

Thanks and regards
Shemrock

 

[future_canadian]

Dear Computergeek
I am pleased to convey you that my medicals have been passed and I have received Visa too.
I have overcome successfully the fairness letter of medical inadmissibility and the response came from VO came early than I had expected.
You gave me the right direction, made me clearly focused as what needs to be addressed to overcome the fairness letter.
This could not have been possible without your great guidance and assistance. I am indebted and highly thankful to you.
Would like to see you personally in Canada.


I got a call from VO if he can issue visa as just one month was there in its expiry or extend the same but in case of extention I would have to redo medicals. I preferred to get the same issued though mine medical inadmissibility had been addressed and it would not have been an issue in remedicals. The next very day my ECAS changed from In Process to Decision Made and after another 3-4 days I received the Visa.

Thanks and regards
Shemrock

awesome congrats

 

[salem10]

Dear Computergeek
I am pleased to convey you that my medicals have been passed and I have received Visa too.
I have overcome successfully the fairness letter of medical inadmissibility and the response came from VO came early than I had expected.
You gave me the right direction, made me clearly focused as what needs to be addressed to overcome the fairness letter.
This could not have been possible without your great guidance and assistance. I am indebted and highly thankful to you.
Would like to see you personally in Canada.


I got a call from VO if he can issue visa as just one month was there in its expiry or extend the same but in case of extention I would have to redo medicals. I preferred to get the same issued though mine medical inadmissibility had been addressed and it would not have been an issue in remedicals. The next very day my ECAS changed from In Process to Decision Made and after another 3-4 days I received the Visa.

Thanks and regards
Shemrock

Hi shemrock ,
Congratulation for your success.

I have one question. How long CIC take from receiving your response until they called you and inform you about positive decision?
My case took forever. I have submitted my fairness letter response in Oct 16, 2013. Yet, no response. Now its 10 months and no one called me. The problem, now, my medical is expired and I don't know what CIC will ask for.
The original application was submitted in May 2010. I did medical in June 2012, and they extended it for one year. I believe now its expired in June 2014.

 

[shemrock]

Thanks Futue canadian

Regards

 

[shemrock]

Thanks salem10

I had gathered information that such cases are not on their priority and takes minimum 4-6 months review it. However, in my case, I too expected it would take about the same time but I found my ECAS updated with line "Your Medicals ahve been received" after about two months time and another 15 days I received Visa.
I think it may depend upon the Visa Office you have applied, their load of cases pending or may be some delays on account of certain typical issues involved in such medical inadmissable cases where they need to be cautious enough.
The most can you do is write a reminder after a reosonable intervals to your concerned VO.
Rest All Leave it to God......

Regards
Shemrock

 

[computergeek]

A challenge to a preliminary finding of excessive demand medical inadmissibility is largely gated by the amount of time it takes for the medical officer to review it. I know in my own case, the medical officer issued her decision on December 20 and the visa officer sent the final rejection letter on December 22 - thus the delay was clearly not the visa officer, it was the medical officer (who took approximately 5 months to render her decision).

This certainly could depend upon the workload of the regional medical centre involved.

In shemrock's case the analysis was quite clear: the costs did not constitute excessive demand. My suspicion is that the medical officer looked at the response, saw the figures and felt comfortable with the source information to conclude that the finding of excessive demand was not correct and thus update it to M2 ("some demand, not excessive") in short order.

From what I've seen (a handful of such cases) the medical officers do tend to err on the side of a positive determination here. This is likely because CIC has learned (through a series of negative legal decisions) that's really the best policy. The scheme of excessive demand determination is a known weak spot for CIC based upon my readings of prior annual reports. Note that the current report merely notes that 0.1-0.2% of cases are expected to fall under A38 rejections (so threats to public health, safety or excessive demand).

 

[Shaja]

This letter does not meet the requirements of OP 15. You should quote the relevant section of OP 15 back as a response to the visa office: they are supposed to provide you with estimated costs that have permitted them to reach this decision.

In addition, you should also order your medical case notes - not the usual electronic case notes, but the medical records because that may contain additional information and insight into how the medical officer reached that conclusion.

Since they didn't provide you with cost estimates for these drugs, I would suggest that you determine them on your own. The best source of information I know of is published by Quebec (https://www.prod.ramq.gouv.qc.ca/DPI/PO/Commun/PDF/Liste_Med/Liste_Med/liste_med_cor1_2014_04_24_en.pdf) as this is the price that they pay and it seems to be similar to costs in other provinces.

I would also suggest that you ask for more time to respond to the fairness letter - 60 days (the usual time) is probably not enough time to construct a complete response. Ideally, you should contact an attorney specializing in excessive demand medical inadmissibility (I can suggest two but I won't do so publicly and your mail box is full on here).

A good response would include:

* A challenge to the medical opinion (if appropriate). In other words, if you don't need those drugs for 5-10 years, have your doctor say so. If you do need those drugs in that period, you may choose not to challenge the medical opinion

* A challenge to the blanket claim that these costs are paid for "at the public expense". Since health care is a provincial concern, not a federal one, the details here will depend upon the specifics of coverage in the province where you intend to land. For example, here in BC the formulary is quite restrictive and the provincial drug treatment program won't pay for drugs not in the formulary. I found this out in my own case after the fact - none of the drugs they claimed were paid for by Fair Pharmacare are actually covered by Fair Pharmacare.

* Mitigation plans. If you have arranged employment in Canada, find out what the group coverage includes from your employer. While you won't be able to get private coverage, group coverage is often not so restrictive. You should also include a Declaration of Ability and Intent (it's not enough by itself, but as part of a comprehensive response it says you won't use the services they claim are excessive demand and may be enough to overcome the M5 rating proposed by the medical officer). Also, review the drug coverage for the province. Do they really cover 100% of the cost? Or is there some sort of floor? If you have arranged employment then you can point to the proposed salary you have been offered to determine the amount not paid for by the provincial drug plan.

* Prospective objections - this is about lining up for a legal challenge of a refusal. This would include: (1) a request they grant you a TRP and permit you to come to Canada temporarily to show your willingness not to exploit the health care resources over that time frame - failing to consider your TRP request is sufficient to overturn the refusal; (2) Point out that because health care is the exclusive domain of the provinces in Canada, CIC could only be making this decision as an agent of the province and are thus bound by provincial non-discrimination laws (look them up - they pretty much all disallow discrimination due to disability); (3) point to the UN declaration on people with disabilities to which Canada is a signatory. This was signed after IRPA and thus woudl supersede IRPA.

Note: none of the prospective objections are likely to win your case with CIC. But by raising them now, you make them ripe for consideration by a Federal Court if you are refused (and this is where a good attorney earns their keep).

I looked up your drug costs.

Prednisolone: $95 for 100 16mg pills
Mycophenolate Mofetil: $51.55 for 100 250mg pills
Tacrolimus: $1249 for 100 5mg pills

I don't know your dosing, but you might wish to speak with your doctor to see if there is some other drug that you could use other than Tacrolimus as it seems to be likely to be driving the cost here. The Tacrolimus patent expires in 2019, at which point the cost will drop considerably (e.g., generic versions will become available). Oddly, though, I did notice that Ontario recently added a Sandoz version of Tacrolimus. I'm not sure

Cyclosporine, for example, might be an acceptable alternative and it has a cost that is vastly lower.

Mycophenolate is another alternative to Tacrolimus and appears to be potentially less expensive.

Bottom line: work with your physician. Do your homework on insurance coverage and costs.

Good luck!

Hi computergeek/everyone,
Wow this is a great response! I also would like to ask your help regarding my case. I also received a fairness letter due to my daughter's heart problem. How can I get the medical notes that you mentioned in this post? Here's a brief details of my personal profile:
- currently studying and working in BC
- our company has comprehensive group health insurance plan
- applied for PR on May 2013 under FSW
- sought advise of highly-experienced heart surgeons in the country and they will do further tests (cardiac catheterization) for further evaluation. He said CIC's evaluation is a worse case scenario and might be able to change upon seeing the cath's result.

Doctor said if based on the result of cardiac cath, our home country doesn't have enough facilities to perform the surgery and it's riskier for the patient to undergo surgery, he could recommend doing it here in Canada instead. Will this be a valid ground for Humanitarian and Consideration? Our initial plan is to have the procedure done in our country.

Please advise what other course of action we need to make. What would my employer do on my behalf? They're willing to help as well I just don't know what specific documents I would ask from them. Also, can the Member of Parliament's intervention be of help as well?

Hoping for your kind reply. Here's the Fairness Letter I got from CIC & I think they also violated the OP15 since no calculations are provided:
========================================================================================================

I have received a medical notification stating that your dependent has the following medical condition or diagnosis: Complex Cyanotic Congenital Heart Disease, which in the opinion of a medical officer:

A cardiologist’s report confirms that she has multiple cardiac anomalies – Tetralogy of Fallot (four abnormalities of the heart) with Pulmonary Valve Atresia (abnormal closure of the valve), Ventricular Septal Defect and compensatory cardiac abnormalities. These defects cause her to be cyanotic due to low circulating oxygen levels. To date, despite several previous assessments by specialists, she has not had any corrective cardiac procedures to treat her heart disease. This report recommends further investigations to better assess what corrective surgery is required. The report states that without treatment her condition will deteriorate. These types of complex defects require ongoing specialized treatment and usually multiple complicated surgeries to correct the defects. These treatments are expensive and publically funded.

The prognosis for medical condition is likely poor if not surgically repaired. She will need to be followed by cardiac specialists and will require surgery. These health services are expensive and are covered by provincial plans. Based upon my review of the results of this medical examination and all the reports I have received with respect to her health condition, I conclude that she has a health condition that might reasonably be expected to cause excessive demand on health services. Specifically, this medical condition might reasonably be expected to require health services, the costs of which would likely exceed the amount spent on the average Canadian over a five year period. Thea is therefore deemed inadmissible under Section 38(1)(c) of the Immigration and Refugee Protection Act.

This information raises concerns that your dependent can be expected to cause excessive demand on health or social services in Canada. For this reason, your family member may be a member of the inadmissible class under section A38(1) and section 42(a) in the case of a family member of the Immigration and Refugee Protection Act and your application for permanent residence could be refused.

Before I make my final decision, you may submit additional information or documents relating to the above medical condition, diagnosis or opinion.

You have until 22 October 2014 to submit additional information to our office at the address shown below. Please ensure that you quote the file number indicated at the top of this letter on any information you submit. We will then forward the information to the appropriate medical officers who will review the material and advise us of their conclusions.

You are responsible for any fees charged by doctors or other professionals you consult as a result of this opportunity to submit new information.

You must provide any additional information within sixty days from the date of this letter. If you choose not to respond with additional information, a decision will be rendered on your application based on the information before us.

 

[Shaja]

Hi shemrock ,
Congratulation for your success.

I have one question. How long CIC take from receiving your response until they called you and inform you about positive decision?
My case took forever. I have submitted my fairness letter response in Oct 16, 2013. Yet, no response. Now its 10 months and no one called me. The problem, now, my medical is expired and I don't know what CIC will ask for.
The original application was submitted in May 2010. I did medical in June 2012, and they extended it for one year. I believe now its expired in June 2014.

Hi Salem,
So it's really possible to extend our medical? Mine will be expiring this October 2014 as well but we are still working out on the response and surgical procedure for my daughter.

 

[computergeek]

So it's really possible to extend our medical? Mine will be expiring this October 2014 as well but we are still working out on the response and surgical procedure for my daughter.

If appropriate, the visa officer will ask that the medicals be extended, but that's not something you can control.

 

[computergeek]

Hi computergeek/everyone,
Wow this is a great response! I also would like to ask your help regarding my case. I also received a fairness letter due to my daughter's heart problem. How can I get the medical notes that you mentioned in this post? Here's a brief details of my personal profile:
- currently studying and working in BC
- our company has comprehensive group health insurance plan
- applied for PR on May 2013 under FSW
- sought advise of highly-experienced heart surgeons in the country and they will do further tests (cardiac catheterization) for further evaluation. He said CIC's evaluation is a worse case scenario and might be able to change upon seeing the cath's result.

You are already covered by MSP. Thus, your best option would be to have the condition resolved as part of your response - if it had already been repaired, she wouldn't be inadmissible (assuming that only routine costs associated with such care were required).

Search for "privacy act" on the CIC website. That will link you to the information about ordering case notes. In your case you want the electronic case notes and the medical file/notes. That means two requests. Since you are inside Canada, it is a "privacy act" request and there is no fee for requesting this information.

Doctor said if based on the result of cardiac cath, our home country doesn't have enough facilities to perform the surgery and it's riskier for the patient to undergo surgery, he could recommend doing it here in Canada instead. Will this be a valid ground for Humanitarian and Consideration? Our initial plan is to have the procedure done in our country.

If doing it in Canada is an option, I don't see why you wouldn't do that. Again, the fairness analysis is a forward analysis and as long as there are no future costs in your case, it would not represent excessive demand.

Please advise what other course of action we need to make. What would my employer do on my behalf? They're willing to help as well I just don't know what specific documents I would ask from them. Also, can the Member of Parliament's intervention be of help as well?

If you can at all afford to consult with an attorney, I would strongly suggest that you do so. But you really need someone familiar with excessive demand medical inadmissibility. A good attorney can help you respond to the fairness letter as well as set up your response for a fair (and adequate) basis for challenging a refusal in Federal Court.

Note: I am not an attorney. My understanding of A38(1)(c) rejections is based upon my own experience and readings. With that said, there are both practical arguments and legal arguments that can be presented in a case such as yours.

Practical arguments: the best one here is "nothing other than routine monitoring is required". That's why I'd say "if it can be corrected now then the fairness argument becomes moot, because fairness is about future costs.

In addition, though, you might be able to argue that the cost does not constitute excessive demand. To do this you would need to show that the cost over the next 5 (or 10) years would not exceed $6327 per year (the excessive demand number as of June 2014). That's a total cost of $31635 over the next five years. If the doctor states that in his professional opinion the costs will not exceed that threshold, then the onus will be on CIC to argue to the contrary.

Excessive demand is all about costs. That's it.

There are legal arguments that can be made as well:

(1) A38(1)(c) violates the Canadian Charter because it discriminates on the basis of a disability. Note: there have been some limited cases arguing this, but the courts tend to avoid Charter issues when they can rule on narrower grounds.

(2) CIC is subject to a British Columbia Human Rights Tribunal complaint because the authority to administer health care is the exclusive domain of the Province. CIC has an agreement with British Columbia to do this, but is thus bound by British Columbia anti-discrimination law and they would be subject to a tribunal complaint. Note: this is a novel argument and as far as I know has never been tested.

(3) Canada is a signatory to a UN convention on the treatment of people with disabilities; the ratification of that UN convention antedates A38(1)(c) and thus overrules the language of A38(1)(c) insofar as it conflicts with the UN convention; while Canada did sign with reservations, those reservations do not appear to cover cases like this one. Note: this is a novel argument and as far I can know has never been tested.

(4) The Federal Government does not have the authority to decide the issue. Because health care is (under the Charter) the domain of the Provinces, A38(1)(c) overreaches the authority of the Federal Government and is thus ultra vires and null and void. While we raised this issue, it was never heard by the Court.

(5) The excessive demand amount is incorrectly computed. They are using the costs of a single person (your daughter) to rule that an entire group (your family) is inadmissible. But the excessive demand threshold is an average of total costs, so it violates natural justice in "cherry picking" the worst case for one group (your family) and then comparing it against the average of another group (the Canadian population). I've proposed this argument before, but never seen anyone use it. I actually think it could be compelling if properly argued.

You can also ask for H&C considerations. In any case, I would advise you to request that you be considered for a TRP (Temporary Resident Permit). H&C grounds could be argued (e.g., these medical services are not available to her in her home country so a refusal is a veritable death sentence by CIC). In my experience, CIC ignores such requests, but the Courts have ruled that a failure to do so is grounds for overturning the refusal.

Hoping for your kind reply. Here's the Fairness Letter I got from CIC & I think they also violated the OP15 since no calculations are provided:

Failure to meet their own procedural manual in this area seems to be standard procedure, unfortunately.

Have you reviewed the website information about this issue?

http://www.cic.gc.ca/english/resources/tools/medic/admiss/excessive.asp


If you do not think you will be able to respond by October 22, 2014, you should request an extension of time to respond. I'd suggest that it might be more reasonable to request a response date of January 22, 2015, but again, you really would be best served by working with an attorney that has experience in this area.

 

[Leon]

Thanks salem10

I had gathered information that such cases are not on their priority and takes minimum 4-6 months review it. However, in my case, I too expected it would take about the same time but I found my ECAS updated with line "Your Medicals ahve been received" after about two months time and another 15 days I received Visa.
I think it may depend upon the Visa Office you have applied, their load of cases pending or may be some delays on account of certain typical issues involved in such medical inadmissable cases where they need to be cautious enough.
The most can you do is write a reminder after a reosonable intervals to your concerned VO.
Rest All Leave it to God......

Regards
Shemrock

Shemrock, your inbox is full but here is your reply:

Landing happens in the first city you arrive in. The flight from Montreal to Toronto is a domestic so you don't pass through immigration in Toronto. 4 hours should be plenty of time.