Medical Examinations: Pay to Pass – A Two Tiered System

In late September of this year, Citizenship and Immigration Canada (CIC) published a new Operational Bulletin, OP063, implementing the decisions in the Supreme Court of Canada which opened the door to two-tiered medical examinations for immigrants.

While many Canadians shutter at the notion of two-tiered healthcare in Canada, that is, where a person could use either publicly funded or privately funded healthcare, many new immigrants are embracing the concept in the context of an immigration application. While I am not prepared to argue the pros or cons of two-tiered healthcare, I am eager to point out the new opportunities for would-be Canadian immigrants under the new policy directives.

Generally speaking, an applicant for immigration will be found inadmissible to Canada for the purposes of permanent residence if they fail their medical exam. Certain applicants, such as spouses or dependent children who are being sponsored by a Canadian citizen or permanent resident, refugees and other protected persons are exempted from the minimum health requirements, so long as they do not have a medical condition which would pose a threat to public health or safety. Other applicants, such as sponsored parents and grandparents, skilled workers, entrepreneurs, provincial nominees and the rest are all have to pass their medical examinations in full.

An applicant will fail a medical exam if he or she has a condition which might reasonably be expected to cause excessive demand on health or social services. Excessive demand, as you would imagine, is all about money. Generally, CIC sets a dollar amount each year which forms the threshold for excessive demand. Typically, if an immigration applicant has a condition which would have a treatment and/or care cost more than the set amount over a five year period (in most cases), that applicant will be found inadmissible. In 2007, the excessive demand threshold was set at $4,806 per year ($24,030 over a five year period); a new figure is scheduled to be released on December 1, 2008.

Before the Supreme Court of Canada decision in Hillewitz and de Jong, and the subsequent implementation of OP063, the excessive demand threshold applied equally to all immigrant applicants who were not exempted, even those who said that they had no intention of receiving public money for social services after arriving in Canada.

Under the new guidelines, immigration officers must consider all evidence presented by an applicant, before making a decision of inadmissibility due to excessive demand. Evidence regarding both ability and intent to mitigate the cost of social services in Canada must be considered, if presented. All applicants are entitled to an assessment of the probable demand their disability or impairment might place on social services. An applicant may provide evidence of ability and intent to reduce the cost impact on Canadian social services, and this would have to be considered in making a decision. These principles apply to all categories of applications, including sponsorship of parents.

Basically, if an applicant can assemble and justify a financial plan to cover the cost of social services which would be required by that applicant or his accompanying family once in Canada, an immigration officer may make a finding that an applicant is not inadmissible, despite the existence of a specific condition requiring care that would ordinarily exceed the excessive demand threshold. Such a financial plan would usually take the form of a statutory declaration of ability and intent to cover the costs of social services and will be supplemented by a detailed credible plan, financial documents and commitment letters from those involved in providing the care for the applicant, as needed.

To be clear, OP063 does not allow an applicant to pay for health services, rather only social services; it does not open the door to private healthcare. It does however create two-tiered medical admissibility testing – one for those who can afford and another tier for those who cannot.

BC MSP Coverage

In my practise I am increasingly finding that new immigrants, temporary workers, international students, and family class applicants already in Canada are not aware that they are, in many cases, eligible for coverage under British Columbia’s Medical Service’s Plan (“MSP”).

Basically, the rules provide that in addition to Canadian citizens and permanent residents, some persons temporarily in the province are entitled to apply for care cards.

Eligibility for coverage under MSP is available to persons who are Canadian citizens or who have been lawfully admitted to Canada for permanent residence, as long as the applicant makes his/her home in BC and is physically present in BC for at least 6 months in a calendar year. The coverage extends to persons who are “deemed residents”, and that is where students, workers and family class applicants fit in.

People on work permits or study permits in BC can be “deemed residents”. They will be eligible for MSP coverage if their visas/permits are valid for 6 months or more, if the person remains in status and makes their home in BC and is physically present in BC for at least 6 months in a calendar year.

“Deemed residents” also include non-resident spouses and children (including adopted children) of residents. These people will be eligible if they have applied for status, like work permits or study permits or visitor status, as long as that application remains active and the other requirements set out above have been met. Non-resident spouses and children of residents will also be eligible if the resident spouse has filed a sponsorship application and paid the immigration processing fees for their spouse and or children who wish to apply for MSP coverage.

Basically, those not eligible are those without status or with only visitor status without having a pending sponsorship application filed with immigration Canada.

The requirement to be physically present in BC for at least 6 months in a calendar year is subject to a number of exceptions because not everyone comes to Canada with at least 6 months left in the year. Essentially, if you arrive in Canada after June 30, the 6 month requirement is effectively waived.

Once you file an application for MSP coverage, you must wait for eligibility. The wait period for eligibility is calculated by adding the month in which the applicant arrived in BC plus two additional months. For example, if you arrived on December 25, you would be eligible on March 1. If you arrived on January 1, you would be eligible on April 1.

Some applicants are not subject to the wait period, including babies born to residents, children adopted by a resident and convention refugees.

The rules for eligibility are complicated and confusing. At times, in my experience, HIBC, the private company administering MSP, fails to understand the rules themselves. We have seen a significant decrease in the understanding and application of these rules on the part of HIBC since they received the portfolio from the province.

If you believe you are eligible, persistence may be required to get the results you deserve. Given the cost of health care in this province without MSP coverage, a little hard work is well worth the effort.