Reason for PR application rejection on medical grounds

[alexure]

Hi all,

My son 2 years and 4 months old has congenital pulmonary stenosis. He underwent initial repair at the age of 5 months, consisting of pulmonary balloon valvotomy. The procedure was successful, without any complications. Currently he is well developing boy. He has mild to moderate gradient on pulmonary valve [40mmHG]. The value of gradient is constant since he underwent the procedure above.

Due to his condition he was referred to pediatric cardiologist by CIC doctor.
The doctor executed echocardiogram and his summary was as follows:
1. My son's cardiac condition graded as 1 according to NYHA.
2. ECG - normal study.
3. He detected mild to moderate gradient on pulmonary valve [40mmHG].
4. Right ventricle function is ok.
I'm concerned about his prognosis: "In the future (possibly within the next few years) he may need another valvotomy (most probably balloon catheterization) to repair the pulmonic valve".

I understand that the prognosis above means that may be we will need to undergo additional procedure or may be not, but of course I don't have any idea what CIC's doctor will decide ???.

What do you think or may be someone have similar experience?

Thanks,
Alex.

 

[Ponga]

Hi,

I'm sorry to hear that your little man has had health challenges and I hope that he never needs to have this issue corrected.

From what I have read, the medically inadmissible issues are much more relaxed for members of the Family Class sponsorship programs, so if that's how you have applied for PR, this may not be a reason for rejection. Hopefully a senior member here will chime in and let you know for sure.

Good luck!

 

[alexure]

Hi,

I'm sorry to hear that your little man has had health challenges and I hope that he never needs to have this issue corrected.

From what I have read, the medically inadmissible issues are much more relaxed for members of the Family Class sponsorship programs, so if that's how you have applied for PR, this may not be a reason for rejection. Hopefully a senior member here will chime in and let you know for sure.

Good luck!

Thanks for your reply.
We applied under provincial nominee program at Manitoba strategic initiative stream, so CIC might reject the application if they consider us as an excessive demand immigrants.

 

[scylla]

From what I have read, the medically inadmissible issues are much more relaxed for members of the Family Class sponsorship programs, so if that's how you have applied for PR, this may not be a reason for rejection. Hopefully a senior member here will chime in and let you know for sure.

I don't think this is a Family Class PR application - so medical inadmissibility is a real concern in this case.

Unfortunately I think it's quite likely that CIC will challenge the medical admissibility of the child due to the expenses associated with this type of surgery. alexure - if you receive the letter, you'll be able to respond and try to prove that your son will not be a burden. I would recommend that you start preparing your response now since you won't be given very much time to respond once the letter is received. If you search on this forum, you will find a number of good threads where this issue is discussed and what people have done to respond to such letters. Good luck.

 

[alexure]

I don't think this is a Family Class PR application - so medical inadmissibility is a real concern in this case.

Unfortunately I think it's quite likely that CIC will challenge the medical admissibility of the child due to the expenses associated with this type of surgery. alexure - if you receive the letter, you'll be able to respond and try to prove that your son will not be a burden. I would recommend that you start preparing your response now since you won't be given very much time to respond once the letter is received. If you search on this forum, you will find a number of good threads where this issue is discussed and what people have done to respond to such letters. Good luck.

Thanks for your answer.
Could you please recommend me search words for topics you mentioned?
What do you think, is CIC will accept my commitment that we will do the surgery on our own (in case that the doctor is right and my son really will need the procedure again)?

 

[scylla]

I would search on the word "fairness" since the letter is call the Response to Fairness letter.

 

[Leon]

If they give you problems, there is not much you can do except get more specialist opinions trying to prove them wrong. In the meantime, you stay on your work permit and your child is covered by health care anyway. If he does end up getting the 2nd operation while you are on your work permit, you would be clear to apply for PR again because then the operation is already done and paid for and he is no longer excessive demand. Sometimes the system is a little stupid :-/

 

[alexure]

Hi, thanks a lot to all of you for your answers.
From what I understood I should hope for good end of this story but it is better to be well prepared to worst.
So my plan is to prepare an answer to fairness letter (if such will be received) that will include:
1. Second opinion by prof. who actually did this procedure. Last time ,(1/2 a year ago) his prognosis was very good so it is a quite good chance that his prognosis will not change this time also. In addition, according to his previous visit summaries, the best sign that additional procedure is not needed is that my son's weight increased by 3 times since the initial procedure and that the gradient on pulmonary valve is constant.
2. In order to convince CIC that my son will not put an excessive demand on Canada's health services I'm planning to give them a couple of options:
2.1 In my native country my son will be eligible for all medical treatments until we hold country's citizenship (and it will not be taken from us). The fact that such procedures are planned in advance grants me the possibility to travel to my home country in order to undergo the procedure if its needed.
2.2 According to what I found in the net such procedure costs about 20,000CAD (I'll try to insure that with Manitoba health services). I'll send a request for quotation to health insurance companies in Canada in order to show to CIC that I'm covered.
2.3 I will suggest them to invest 20,000CAD in Canada for 5 years term. And if during this period of time no procedure needed they will return me my money.

What is your opinion, maybe you have another ideas?

Thanks in advance,
Alex.

 

[scylla]

Getting the second opinion is an excellent idea.

I think you're too low on the cost. The cost should not just factor in the surgery itself, but also the hospital stay, any outpatient treatments required (e.g. medications, rehab therapy) and also pre and post surgery consultations with specialists.

Canada doesn't have a process in place for what you've suggested in 2.2 and 2.3. So while you can put this in the letter - I don't think CIC will consider this option. I would focus on 1 and 2.1

 

[OhCanadiana]

Alex - look up computergeek's posts and take a look at his website for some approaches to consider. He did quite a bit of research on medical inadmissibility and historic cases.

 

[computergeek]

This is the area known as "excessive demand" in IRPA Section 38(1)(c):

A foreign national is inadmissible on health grounds if their health condition ...

c) might reasonably be expected to cause excessive demand on health or social services.

CIC has defined "excessive demand" as the average cost of medical and social service care in Canada. The period of evaluation is either five or ten years, depending on the choice of CIC.

This is entirely driven by costs. Since you haven't received a fairness letter yet, they have not yet determined what those costs will be. Since your child has had this procedure done previously, you should know what the cost of it is. In addition, the medical officer can consider any and all other costs (including drug treatments, which can often be quite expensive).

OP 15 now clearly requires that the officer cannot just say "... and this treatment will be expensive ..." - they are supposed to explain their estimate of costs. Note that you are not bound by the CIC medical officer's opinion, either in terms of costs or in terms of prognosis or medical condition.

Assuming that the cost's for his care in the five or ten year period will be less than $32k (5 year) or $64k (10 year) period, then he would not create an excessive demand. I did a quick search and could not find cost data for this procedure, which is a common problem I've experienced when trying to estimate actual costs.

If the medical officer determines your child would be excessive demand, I think you have several potential courses of action:

(1) You can challenge the medical determination. That is, you can have your own doctors provide a different evaluation of your child's condition and course of treatment.
(2) You can challenge the estimate of costs. This is usually done by hiring an expert medical practitioner to provide you with a different estimate of costs.
(3) You can present a "mitigation plan" that demonstrates how some third party agency will cover some portion of the costs involved. A personal promise to pay for treatment is not enforceable and thus is not considered by CIC (though they still require that you submit a "declaration of ability and intent"). Third party insurance, a bonding program (such as Manitoba used to have and is referenced in the Deol decision, a health trust, etc.

In addition, in your case another option might be to determine if the procedure can be done now. If so, and the determination is that the procedure won't be required again in the five to ten year period, you would have strongly mitigated against CIC's position in an irrevocable way.

If you are in a position to retain legal counsel, I would strongly advise doing so if you are presented with a fairness letter. There are only a handful of attorneys with significant experience in this narrow field but they have an excellent track record of assisting people in crafting a fairness response. In cases where CIC has still refused and the applicant has moved forward with a legal challenge, CIC's track record of success is surprisingly poor, particularly for skilled worker applications. Your options for laying out arguments that could be used to successfully challenge a refusal is something that an experienced attorney can do. For example, someone who is already in Canada (e.g., as a temporary foreign worker) may raise Charter challenges that someone outside Canada cannot. An argument that we put forward in my JR application related to the very right of CIC to make decisions in this area - especially for PNP applicants - is that health care is an exclusively provincial domain and any Federal law regarding it (including IRPA 38(1)(c) is ultra vires. This argument has not been reviewed by the court but the case law for it is surprisingly compelling.

It requires investigation to put together a credible response to a fairness letter, including familiarity with the province's specific rules and coverage, and the obligation to do this investigation is entirely the burden of the applicant. CIC will not advise you nor even disclose potentially useful information to bolster your position. Thus you (or your advocate) must do the research necessary.

 

[alexure]

This is the area known as "excessive demand" in IRPA Section 38(1)(c):

CIC has defined "excessive demand" as the average cost of medical and social service care in Canada. The period of evaluation is either five or ten years, depending on the choice of CIC.

This is entirely driven by costs. Since you haven't received a fairness letter yet, they have not yet determined what those costs will be. Since your child has had this procedure done previously, you should know what the cost of it is. In addition, the medical officer can consider any and all other costs (including drug treatments, which can often be quite expensive).

OP 15 now clearly requires that the officer cannot just say "... and this treatment will be expensive ..." - they are supposed to explain their estimate of costs. Note that you are not bound by the CIC medical officer's opinion, either in terms of costs or in terms of prognosis or medical condition.

Assuming that the cost's for his care in the five or ten year period will be less than $32k (5 year) or $64k (10 year) period, then he would not create an excessive demand. I did a quick search and could not find cost data for this procedure, which is a common problem I've experienced when trying to estimate actual costs.

If the medical officer determines your child would be excessive demand, I think you have several potential courses of action:

(1) You can challenge the medical determination. That is, you can have your own doctors provide a different evaluation of your child's condition and course of treatment.
(2) You can challenge the estimate of costs. This is usually done by hiring an expert medical practitioner to provide you with a different estimate of costs.
(3) You can present a "mitigation plan" that demonstrates how some third party agency will cover some portion of the costs involved. A personal promise to pay for treatment is not enforceable and thus is not considered by CIC (though they still require that you submit a "declaration of ability and intent"). Third party insurance, a bonding program (such as Manitoba used to have and is referenced in the Deol decision, a health trust, etc.

In addition, in your case another option might be to determine if the procedure can be done now. If so, and the determination is that the procedure won't be required again in the five to ten year period, you would have strongly mitigated against CIC's position in an irrevocable way.

If you are in a position to retain legal counsel, I would strongly advise doing so if you are presented with a fairness letter. There are only a handful of attorneys with significant experience in this narrow field but they have an excellent track record of assisting people in crafting a fairness response. In cases where CIC has still refused and the applicant has moved forward with a legal challenge, CIC's track record of success is surprisingly poor, particularly for skilled worker applications. Your options for laying out arguments that could be used to successfully challenge a refusal is something that an experienced attorney can do. For example, someone who is already in Canada (e.g., as a temporary foreign worker) may raise Charter challenges that someone outside Canada cannot. An argument that we put forward in my JR application related to the very right of CIC to make decisions in this area - especially for PNP applicants - is that health care is an exclusively provincial domain and any Federal law regarding it (including IRPA 38(1)(c) is ultra vires. This argument has not been reviewed by the court but the case law for it is surprisingly compelling.

It requires investigation to put together a credible response to a fairness letter, including familiarity with the province's specific rules and coverage, and the obligation to do this investigation is entirely the burden of the applicant. CIC will not advise you nor even disclose potentially useful information to bolster your position. Thus you (or your advocate) must do the research necessary.

Thank you for so detailed answer.
Currently I'm preparing myself to option that I will need to appeal CIC decision and steps that already taken are:
1. I have an appointment to my son's DR on next Monday. The only thing that concerns me is that during medical exam I provided CIC last visit summary made by the same DR (we visited him on June 2013). What do you think, maybe it is better to visit another DR? (In referral letter from CIC they asked for recent echo).
2. I found 3 insurance Canadian companies that provide coverage for such procedures. Currently I'm waiting for their quotations.
3. I sent an enquiry of cost estimation to Manitoba health Minister (I found her e-mail on Manitoba government website). I already have a response from them which tells me that soon I will get the required information. In addition to this query I sent the same e-mail to Health Sciences Centre Winnipeg which have kid's cardiologic department.
4. I found an attorney which already processed case with pulmonary stenosis, but in addition his client had additional health problems and he was above 60 years old (found on testimonials page on his website). Could you please recommend me additional attorney?

Thank you again,
Alex.

 

[computergeek]

Thank you for so detailed answer.

I think the current excessive demand medical inadmissibility process of CIC is a clear and direct violation of Canada's Charter (protecting people with disabilities from discrimination) as well as the duties and obligations of the Canadian government under the UN Convention on the Rights of Person's with Disabilities (https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=iv-15&chapter=4&lang=en) to which Canada became a signatory in 2010. Sadly, it would seem that signing a treaty is mostly about symbolism and not about honouring the treaty. Plus, it's a horribly dehumanizing system (not that immigration isn't in many ways a dehumanizing system) of making people feel they are worthless because of their disability.

Currently I'm preparing myself to option that I will need to appeal CIC decision and steps that already taken are:

1. I have an appointment to my son's DR on next Monday. The only thing that concerns me is that during medical exam I provided CIC last visit summary made by the same DR (we visited him on June 2013). What do you think, maybe it is better to visit another DR? (In referral letter from CIC they asked for recent echo).

You should consider both options. You are bound by the previously submitted opinion from his current doctor, but if you find another doctor with a different opinion, you can certainly introduce that to CIC as well.

2. I found 3 insurance Canadian companies that provide coverage for such procedures. Currently I'm waiting for their quotations.

This is exactly the kind of thing you need to have. The questions CIC will raise is about why an insurance company would agree to provide coverage in such a case as insurance companies are not known for writing policies where they know they will lose money.

In my case I was already in Canada and already had in-place insurance coverage via three overlapping plans (two insurance plan and an employer provided health savings trust) and the final rationale for ignoring this given by the medical officer was: "The Applicant in this case, failed to provide me with any evidence that any of his health insurers would actually fund the cost of his medication, if he submitted a claim as a resident of British Columbia who was entitled to receive those drugs free of charge under British Columbia's PharmaCare Plan."

She ignored the fact that one portion of he coverage was a health insurance trust (which is non-discretionary). Further, since that time I've learned that the characterization of the coverage in BC was completely incorrect and that British Columbia does not cover any of the cost of any medications for my particular condition. Rather, the province provides funding to a research group that enrolls patients voluntarily. Such patients waive their privacy rights (so the research group can use the information from their treatment) and restricts their treatment options (to only those things of interest to the research group) - which sounds like a quid-pro-quo exchange of rights for drugs.

Subsequent to the officer's after-the-fact recitation of these concerns (none of which were ever expressed to me prior to an affidavit filed with the Federal Court) I've actually confirmed that insurance coverage works just fine in BC in my case and precisely for the reason I cited: the drugs for my condition are not covered by the BC Fair Pharmacare program.

My point: for anyone facing medical inadmissibility by CIC make sure you do not trust any of the claims that CIC makes. Not only are they are under no obligation to provide information (as per Deol) but based upon my own experience they can present post hoc information that is blatantly untrue. Whether they did that via ignorance or malice isn't clear to me.

So you do well to be your own advocate. No one, not even the best attorney, can do a better job of looking out for your interests than you.

3. I sent an enquiry of cost estimation to Manitoba health Minister (I found her e-mail on Manitoba government website). I already have a response from them which tells me that soon I will get the required information. In addition to this query I sent the same e-mail to Health Sciences Centre Winnipeg which have kid's cardiologic department.

Excellent - this is an important piece of information. You might also wish to inquire to the Manitoba Health Minister why they did away with the medical bonding program (referenced in the Deol decision because CIC didn't mention it to the applicant and the Court agreed CIC had no obligation to disclose that information to the applicant.)

4. I found an attorney which already processed case with pulmonary stenosis, but in addition his client had additional health problems and he was above 60 years old (found on testimonials page on his website). Could you please recommend me additional attorney?

I will send you a private message with my suggestions. The people I suggest have good track records in Federal Court (e.g., the Companioni decision that extended the principles in Hilewitz to health care as well as social services and the Sapru decision that said a medical officer has to write clear reasons for rejection and the visa officer cannot "back fill" in post hoc justifications).

If you are comfortable with this attorney, by all means stick with him. If he has been successful in assisting others with a similar medical condition, he will have relevant contacts and expertise for constructing strong responses to CIC.

 

[alexure]

Computergeek, thank you so much for your help .
I will update this post as soon as I'll have a new info.

 

[alexure]

Hi,
Today I visited with my son prof who did the initial catheterization.
After I saw todays visit summary I saw some light at the end of the tunnel. The new report completely changes the picture of future prognosis given by pediatric cardiologist (to whom we was referred by CIC).
The main issue arising from new report is that the gradient on pulmonary valve is 36mmHG instead of 40mmHG. The difference is not big but after I reviewed technical data sheets of echocardiography machines published by their manufacturers I realized that I have additional argument related to these machines precision and repeatability if I will need to prepare an response to fairness letter.
In addition he stated that the prognosis is very good according to echocardiography that he performed.
Since the doctor who performed our medicals came back today from his vacation and since he still did not uploaded pediatric cardiologist's (to whom we was referred by CIC) report I will take the new report to him and will try to force him to upload it to eMedical together with pediatric cardiologist's report.
Alex.