Sisters win out-of-province health coverage appeal

After eight years and three denials, Manitoba’s highest court handed twin sisters Kelsey and Kelly Fehr a long-overdue win in their fight for out-of-province health coverage for a debilitating chronic illness.

In Fehr v. Manitoba (Health Insured Benefits, Insurance Division), 2026 MBCA 52, the Manitoba Court of Appeal ruled that the province wrongly denied coverage for follow-up surgeries that the sisters needed. The necessary surgeries are after their first successful procedure at Stanford University Medical Center in Palo Alto, California.

This decision sets a new legal standard for how provincial health authorities must assess treatment coverage claims, and it cuts straight to the bone.

A case of out-of-province health coverage

Kelsey and Kelly Fehr, both 38 and residents of Winnipeg, Manitoba, suffer from a severe form of lipedema, which is a genetic disease causing abnormal buildup of dense fibrotic fatty tissue in the limbs. Because no surgeon in Manitoba or anywhere in Canada performed the recommended surgery, the sisters sought provincial insurance coverage for treatment at Stanford.

Manitoba Health approved their first surgery in 2020, which removed approximately 12 to 14 litres of diseased tissue from each sister’s thighs and produced significant pain relief and improved mobility. After being advised that four to five surgeries would be needed, Manitoba Health reversed course in June 2022 and denied coverage for follow-up procedures, calling the surgery an “emerging treatment.”

The sisters appealed. The Manitoba Health Appeal Board dismissed their case in May 2023. A Court of King’s Bench judge upheld that dismissal in December 2024. However, the Manitoba Court of Appeal disagreed with both.

Why the board applied the wrong legal test

According to the court, the central problem was that the Manitoba Health Appeal Board collapsed a two-step legal test under section 2(18)(b) of the Excluded Services Regulation into one.

This provision excludes coverage for services that are:

• an emerging treatment or diagnostic procedure, and
• one for which the efficacy of the service has not been established

As found by the court, the board stopped at step one, finding the surgery was not the standard of care in Manitoba, and treated that as the end of the analysis. It was also held that this was a fundamental error, especially when the board never asked whether efficacy had been established, which was the legally required second question.

Efficacy vs. effectiveness: a distinction that changes everything

The court also drew a firm line between two terms that Manitoba Health used interchangeably throughout:

• efficacy asks whether a treatment can work under ideal conditions
• effectiveness asks whether it works in real-world clinical settings

The Regulation requires proof of efficacy only. Manitoba Health’s demand for a randomised controlled clinical trial was an effectiveness standard, not the efficacy standard the legislation actually prescribed, and that, the court found, was an error.

What happens when health policy bypasses the law

The court in Fehr also took direct aim at how Manitoba Health made its exclusion decision: through a two-page internal memo by Deputy Minister of Health Karen Herd, rather than by formal regulation under section 113(1) of The Health Services Insurance Act, CCSM c H35.

Broad decisions about which medical services all Manitobans can access must be made openly by regulation, not through opaque bureaucratic channels. Added by the court, the board is meant to be an independent check on Manitoba Health, not a rubber stamp for its decisions.

The matter has been remitted to a differently constituted panel of the Manitoba Health Appeal Board for reconsideration. The sisters have been advised they likely need five more surgeries.

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