Help foster children get braces, court tells the state

A youth-led advocacy group for foster children, Facing Foster Care in Alaska, won a court order requiring the state to loosen its rules. The braces still have to be medically necessary -- you can't get them just for appearance's sake.

But the state rule that you have to have a severe condition such as a cleft palate to be considered for braces is out for now. The judge granted a preliminary injunction against that rule.

"If your teeth are messed up and your dentist says you need braces, then you can get braces. ... It's that simple. That's the way it should be," said Mariah Miller of Kenai, an 18-year-old on Medicaid. She says her jaw hurts from morning until night. Her mouth is overcrowded and she suffers from a joint disorder on both sides of her mouth.

She has needed braces for years but her orthodontist told her Medicaid would not cover the treatment, she said.

Now she's looking forward to getting her problem fixed. Her case is described in the lawsuit.

"This is an incredibly important issue," said Amanda Metivier, statewide coordinator of Facing Foster Care. "When you're in foster care, the state is your parent. As a parent, they have a responsibility to make sure your medical needs are cared for."

The ruling affects more than just the 2,000 or so foster kids, who are almost all eligible for Medicaid. It applies to all youths under 21 and on Medicaid.

Nikole Nelson, an Alaska Legal Services attorney representing Facing Foster Care, estimates hundreds of youths annually are told by their providers they can't get braces because Medicaid doesn't cover them, even though the provider thinks they're medically necessary.

Nelson cites sworn statements from three orthodontia providers who said they see a combined total of about 80 such cases a year that they can't treat for lack of funding, and she says other orthodontists see additional Medicaid patients.

Assistant state attorney general Libby Bakalar, representing the other side of the case, said she doesn't know how many youths might be affected.

Both the state and federal governments contribute money to the Medicaid program and both have rules about who qualifies for particular services under it.

Facing Foster Care is challenging in a lawsuit a state regulation that says orthodontia for Medicaid youths should be limited to those who have severe conditions such as cleft palate, or "skeletal malformations" so bad that it would take both an orthodontist and an oral surgeon to fix them.

That doesn't square with a federal requirement that the program pay for medically necessary services, Facing Foster Care says.

Lawyers for Facing Foster Care argued that Alaskans under 21 and on Medicaid who need braces would be harmed if they can't get them.

The state, in turn, tried to convince the judge that Facing Foster Care does not have the right to bring a lawsuit.

Superior Court Judge William Morse disagreed. In an order made last week and signed Monday, he said the state must pay for orthodontia according to federal code that says the services offered must include, at minimum, "relief of pain and infections, restoration of teeth and maintenance of dental health."

The state cannot use its own regulations to limit services that are required by federal code, the judge said.

The lawsuit is not over, however.

Find Rosemary Shinohara online at adn.com/contact/rshinohara or call her at 257-4340.