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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Garner v. State, Dept. of Health & Social Services (1/31/2003) sp-5661

Garner v. State, Dept. of Health & Social Services (1/31/2003) sp-5661

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

JOHN R. GARNER,                            )
                                 ) Supreme Court No. S-10318
             Appellant,                    )
                                 ) Superior Court No.
     v.                          ) 3AN-00-3674 CI
                                 )
STATE OF ALASKA, DEPARTMENT  )     O P I N I O N
OF HEALTH AND SOCIAL                  )
SERVICES, DIVISION OF                       ) [No. 5661 - January
                                   31, 2003]
MEDICAL ASSISTANCE,                   )
                                 )
             Appellee.                     )
_________________________________ )

          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Kodiak,
          Donald D. Hopwood, Judge.

          Appearances:  James J. Davis, Jr. and  Nikole
          M. Nelson, Alaska Legal Services Corporation,
          Anchorage, for Appellant.  Dawn M. Carman and
          Charles   T.  Huguelet,  Assistant  Attorneys
          General,  Anchorage, and  Bruce  M.  Botelho,
          Attorney   General,  Juneau,  for   Appellee.
          Michael N. Zechman, Disability Law Center  of
          Alaska, Anchorage, for Amicus Curiae.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.





I.   INTRODUCTION

          John   Garner,  a  severely  retarded  state   Medicaid

recipient,  challenges the decision of the Department  of  Health

and  Social Services, Division of Medical Assistance not to cover

the  cost of a routine dental exam which he has characterized  as

medically   necessary.   Because  the   record   has   not   been

sufficiently developed to determine whether the agency failed  to

comply either with its own regulations or with the Americans with

Disabilities  Act,  we  reverse  the  superior  courts   decision

affirming  the agencys denial of services and instruct the  court

to  remand  the  case to the agency for further fact  finding  on

these  issues.   Accordingly, we do not reach  the  questions  of

whether  the  agencys  regulations regarding  adult  dental  care

comply  with  the  federal Medicaid Act or the  equal  protection

guarantee of the Alaska Constitution.

II.  FACTS AND PROCEEDINGS

          Appellant John Garner is a thirty-five year old man who

functions at the level of a two-year old.  He suffers from severe

mental  retardation and developmental abnormalities which  render

him  unable to speak, care for himself, or perform any activities

of  daily life.  As a result of his disability, Garner is  unable

to  verbally express to his caregivers what he is feeling or when

he  is experiencing pain.  In the past, this has resulted in  the

development  of  severe dental problems which went  unnoticed  by

those around him.

          On  May 13, 1999 Garner received a comprehensive dental

examination  and  root  planing  procedure  while  under  general

anesthesia  for an unrelated medical procedure.  A root  planing,

as  described  by  the representative of the  State  Division  of

Medical  Assistance, is an extraordinar[il]y  thorough  cleaning,

beyond  what one would normally receive during a teeth  cleaning.

Garner required this procedure to clear the plaque and gingivitis

from  his upper gums in order to prevent further bone loss.   His

doctors  chose this path due to Garners problems cooperating  and

holding  still while conscious.  The unique problems of providing

otherwise  routine dental care to a severely retarded  adult  are

explained in the report of one of Garners dentists:

               I first examined John Garner when he was
          12  years old.  He soon developed periodontal
          disease at a relatively early age.  His mouth
          accumulates   much  dental  calculus.    This
          calculus  is  of  a  tenacious,  dark,   sub-
          gingival kind; the sort that causes the  gums
          to   hemorrhage  and  destroys   bone.    His
          seizures  and  developmental delay  make  the
          daily  prevention of this calculus  formation
          an  impossible task.  For some years we tried
          removing this calculus and treating his  gums
          in  my office.  He was very resistant to this
          and  it was very traumatic to him.  We  tried
          different sedative drug cocktails and nitrous
          oxide.    We  had  as  many  as  six   people
          restraining him, but were still not  able  to
          effectively   treat   his   bone   destroying
          periodontal disease.
               For  his  gum disease he needs treatment
          by  a gum specialist, a periodontist, not  an
          oral surgeon.  And, the periodontist needs  a
          still   patient  on  which  to   work.    Dr.
          Remaklus,  a periodontist, has been  able  to
          limit   the  destructiveness  of  Johns   gum
          disease  by  prescribing  Peridex,   and   by
          treating  his gums every three or four  years
          while  he is under general anesthesia.  These
          are  less  than ideal arrangements, but  they
          seem  to be showing success at allowing  John
          to not lose all his teeth soon.1
          
          The  Department of Health and Social Services, Division

of  Medical Assistance (the agency) denied Medicaid coverage  for

the   exam   and  root  planing  procedure,  relying  on   Alaska

regulations   limiting  complete  dental  coverage  to   Medicaid

recipients under twenty-one years of age, and offering recipients

older  than twenty-one coverage only for the immediate relief  of

pain and acute infection.2

          Through his mother, Barbara Garner, John Garner  sought

a  hearing before the Division of Medical Assistance, asking  the

agency  to reconsider its decision not to cover his dental  exam.

At   the   hearing,  Barbara  Garner  argued  that  the  Medicaid

regulations  limiting basic dental coverage to  recipients  under

twenty-one  years  of age should contain an exception  for  those

with  severe disabilities whose age may be chronologically beyond

21,  but mentally and physically have an age much under 21,   and

contended  that because the exam constituted a medical  necessity

          for John, it should be covered.  Because he could not locate any

exceptions   in   the  statute,  even  for  those   with   severe

disabilities,  the hearing officer upheld the agencys  denial  of

coverage.   The  director of the Division of  Medical  Assistance

agreed with the hearing officers decision.

          John  Garner, then represented by counsel  through  the

Alaska  Legal Services Corporation, appealed the agencys decision

to  the  superior court.  On appeal, Garner argued  that  Alaskas

Medicaid  laws regarding the provision of dental care  to  adults

violated  the  federal  Medicaid Act and the  federal  and  state

constitutional  guarantees  of  equal  protection.   He   further

maintained that the states failure to modify its Medicaid program

to  accommodate  his need for routine dental care  constituted  a

violation  of the Americans with Disabilities Act  (ADA).   As  a

corollary to his argument regarding the agencys failure to comply

with  the  Medicaid Act, Garner argued that the agency failed  to

follow its own regulations in denying his claim.  Superior  Court

Judge  Donald  D. Hopwood, in a thorough opinion  that  addressed

several difficult issues, upheld the agency decision.

          Garner now appeals.3

III. STANDARD OF REVIEW

          In  an  administrative appeal where the superior  court

acts  as an intermediate appellate court, we directly review  the

agency action in question.4

          We   will  apply  our  independent  judgment  to  legal

question[s]  that  involve[] statutory  interpretation  or  other

legal  issues  where  the courts have specialized  knowledge  and

experience.5   Whether the agency correctly interpreted  its  own

regulations  is  reviewed  on  the  reasonable  basis  standard.6

However, we independently review whether a regulation applies  to

a  case and we may find abuse of discretion where an agency fails

to apply an applicable regulation.7

          Whether  the  agency complied with the requirements  of

the  ADA  is  a  legal question not involving agency  expertise.8

          Accordingly, we will substitute our judgment for that of the

agency,  adopt[ing] the rule that is most persuasive in light  of

precedent, reason, and policy. 9

IV.  DISCUSSION

     A.   Overview of the Adult Dental Services Provided Under Alaskas
          Medicaid Program
          
          A.   Title XIX of the Social Security Act10 established the

Medicaid  program, a cooperative federal-state partnership  under

which   participating  states  provide  federally-funded  medical

services to needy individuals.11  Although participation  in  the

program  by  a  state  is  voluntary, once  a  state  decides  to

participate, it must comply with federal statutory and regulatory

requirements.12  States electing to participate in  the  Medicaid

program must fund a minimum of seven mandatory services.13  States

may  elect  to cover additional optional services and, once  they

do,  those services become part of the states Medicaid  plan  and

are subject to the requirements of federal law.14

          The  State of Alaska has elected to participate in  the

federal  Medicaid  program.15  The state provides  all  mandatory

services  as  well  as  a number of optional services,  including

adult dental services.16  Authority to promulgate regulations and

to administer the program is accorded to the Alaska Department of

Health and Social Services.17

          The  regulations governing dental services provided  to

Medicaid-eligible adults are set out in 7 AAC 43.60018 and 7  AAC

43.620.19  As the regulations clearly state,  dental services for

Medicaid recipients age twenty-one or older are limited to  those

for  the  immediate relief of pain and acute infection.20   Thus,

there  is  no  coverage  for  Medicaid-eligible  adults  desiring

routine dental care.

     B.   The  Agencys Denial of Coverage for Mr. Garners Routine
          Dental Care May Have Been Inconsistent with Its Own Regulations.
          
          In his appeal to the superior court, Garner argued that

the  state  failed to follow its own regulations in  denying  his

claim.21   The  states Medicaid regulations contain  a  provision

          allowing the agency to make exceptions under the appropriate

circumstances.  Thus, 7 AAC 43.080(a) provides:

          The  need for medical care is not subject  to
          inflexible   determination,  which   can   be
          described    completely    in    policy    or
          regulations.  Professional judgment  must  be
          exercised in each case and exceptions granted
          in     those    instances    where    unusual
          circumstances  exist.  Where  undue  hardship
          may  result to an individual if medical  care
          services are denied by strict application  of
          regulations, exceptions to policy may be made
          when considered appropriate by the division.
          
          In  his  decision,  Hearing Officer  James  M.  Leonard

stated that [n]one of the federal or state Medicaid regulations I

reviewed,  which  pertained  to  covered  and  excluded  Medicaid

services, referenced exceptions for any individuals - even  those

who   were   severely   disabled.   When   Garner   pursued   his

administrative  appeal, Bob Labbe, Director of  the  Division  of

Medical  Assistance, concurred with the hearing officers decision

to  deny Garners request for routine dental care.  At no time did

Hearing Officer Leonard or Director Labbe mention section  43.080

of the regulations or inquire into its applicability.

          In  his brief to the superior court, Garner argued that

if  the  agency  [had]  taken  the  proper  action  and  made   a

determination  under  this regulation it would  necessarily  have

determined  that  routine dental care  is  a  necessity  for  Mr.

Garner.   However, as Garner further noted, contrary to  its  own

regulations,  it chose to strictly apply some of its  regulations

and to ignore others.  In reply, the state contended that while 7

AAC 43.080 provides for exceptions based on unusual circumstances

or  undue hardship[,] . . . Mr. Garners routine dental care  does

not qualify for this exception.

          The  state offered no support for its position, and  we

see none in the record.  While there are numerous statements from

Garners  doctors  and  caretakers indicating  that  Garner  would

suffer undue hardship should he be denied these otherwise routine

dental  services,  the  state  has offered  no  evidence  to  the

contrary  and  the agency has made no factual findings  on  which

such  a  conclusion could be based.  While the  decision  whether

denial  of Medicaid coverage for the dental care Garner  received

constitutes  an undue hardship is committed to the discretion  of

the  agency,  we  believe the agency abused  that  discretion  by

failing to even consider whether the exception applied.  We  have

held  it  to  be  legal  error for an agency  to  fail  to  apply

exceptions found in its own regulations or, at the very least, to

inquire into their applicability.22   Because the agency failed to

inquire into the applicability of subsection 43.080(a), we remand

to  the  superior court with instructions to remand to the agency

for  further  findings on whether the agencys denial of  coverage

for  Garners  otherwise routine dental care would  result  in  an

undue hardship for him and, if so, whether the requested services

should be covered under this exception.

     C.   The  Agency  May Have Discriminated Against  Garner  in
          Violation of the ADA by Failing To Reasonably Accommodate Garners
          Disability.
          
          Under Title II of the ADA, no qualified individual with

a  disability  shall, by reason of such disability,  be  excluded

from  participation in or be denied the benefits of the services,

programs,  or  activities of a public entity, or be subjected  to

discrimination by any such entity.23  The regulations  issued  by

the  Department  of  Justice to implement  Title  II  provide  in

relevant part:

          (b)(1) A public entity, in providing any aid,
          benefit,  or service, may not  . . .  on  the
          basis of disability
               (i)  Deny a qualified individual with  a
          disability the opportunity to participate  in
          or benefit from the aid, benefit, or service;
          . . . .
          (3)  A  public  entity may not,  directly  or
          through  contractual  or other  arrangements,
          utilize     criteria    or     methods     of
          administration:
               (i)  That  have the effect of subjecting
          qualified  individuals with  disabilities  to
          discrimination on the basis of disability;
          . . . .
          (7)  A  public  entity shall make  reasonable
          modifications  in  policies,  practices,   or
          procedures   when   the   modifications   are
          necessary  to  avoid  discrimination  on  the
          basis of disability, unless the public entity
          can demonstrate that making the modifications
          would  fundamentally alter the nature of  the
          service, program, or activity.[24]
          
           To  prove  that  a public program or service  violated

Title II of the ADA, it is incumbent upon the individual alleging

discrimination to show that:

          (1)  he  is  a  qualified individual  with  a
          disability;  (2) he was either excluded  from
          participation in or denied the benefits of  a
          public   entitys   services,   programs,   or
          activities,  or  was otherwise  discriminated
          against  by the public entity; and  (3)  such
          exclusion,    denial    of    benefits,    or
          discrimination   was   by   reason   of   his
          disability.[25]
          
Thus,  where a service or benefit is defined in such a way as  to

deny  an  otherwise  eligible disabled  individual  from  gaining

meaningful   access   to   it,  that  individual   has   suffered

discrimination as defined by the ADA.26

          In  order  to  remedy  the discrimination,  the  public

entity  may  be  required  to  provide  the  individual  with   a

reasonable  accommodation.27   A  disabled  individual  who   has

suffered  discrimination under Title II bears the initial  burden

of  demonstrating that a reasonable accommodation exists and that

it  would  enable him to access the services or benefits  he  has

been  denied by virtue of his disability.28  Once he has met this

obligation, the burden shifts to the public entity to demonstrate

that the requested accommodation is unreasonable.29  The answer to

this  question  will  depend  on  a fact-specific  individualized

analysis  of  the  disabled  individuals  circumstances  and  the

accommodations  that  might  allow  him  to  meet  the   programs

standards.30   The  process of ascertaining  what  constitutes  a

reasonable accommodation should be an interactive one,  in  which

the   public  entity  has  an  obligation  to  gather  sufficient

information  from  the  disabled  individual  to  determine  what

          accommodations are necessary and feasible, rather than rejecting

the  request  out  of  hand.31  This process  is  triggered  upon

notification  of the individuals disability and  his  desire  for

accommodation.32   Should the public entity  offer  the  disabled

individual an accommodation the individual believes will  not  be

sufficient  to  accommodate his disability, the  individual  must

demonstrate  that the offered accommodation was  not  reasonable,

and  that  the individual was therefore unable to participate  in

the service in question.33

          Garner  contends that by requiring Medicaid  recipients

to  verbalize  their pain in order to obtain dental services  for

the  immediate  relief of pain and acute infection,  the  agencys

regulations  discriminate against disabled individuals,  such  as

him,  who  are  unable  to express pain and therefore  unable  to

access  these services.  Thus, he argues that because the  agency

has  made  it  a requirement that the proposed recipient  of  the

emergency  dental care be able to verbally express his  need  for

such  care,  and  because he is unable to  do  so,  he  has  been

discriminated  against  by  the  agency  on  the  basis  of   his

disability.   The  agency  responds by alleging  that  Garner  is

asking  for discriminatory treatment based on a disability.   The

agency  claims  that because the same medically necessary  dental

services are provided to disabled and nondisabled individuals, no

discrimination  in  the  provision  of  services  has   occurred.

Finally, the agency contends that requiring it to provide  Garner

with routine dental services in order to determine whether he  is

experiencing  severe pain or acute infection would necessitate  a

fundamental alteration of its program and, as such, is barred  by

the ADA.

          The parties agree that Garner is a qualified individual

with  a  disability and that the agency is an entity  covered  by

Title  II.   Additionally,  the agency concedes  that  Garner  is

unable  to  express  pain  verbally.   Because  these  facts  are

undisputed, Garner has successfully made out a prima  facie  case

          of disability-based discrimination.34 The only remaining

questions,  then,  are whether relying on Garners  caretakers  to

determine  when  he  is  experiencing  pain  or  acute  infection

constitutes  a  reasonable accommodation, or whether  the  agency

should  instead  cover the dental examination  and  root  planing

procedure performed by his doctor.

          The  agencys position appears to be that it is offering

Garner  a reasonable accommodation by allowing his caregivers  to

express  his  pain  for him.  According to the agency,  his  care

providers  may  observe  his  demeanor,  gestures,  reactions  to

stimuli, and other physical manifestations to determine if he may

have  pain  or an infection, and whether he requires  medical  or

dental  attention.   Garner contests the reasonableness  of  this

accommodation, citing the undisputed evidence in the record  that

it is often impossible for his family, doctors, and caretakers to

determine when he is in pain.

          The record evidence of Garners inability to effectively

communicate his status, and the inability of those around him  to

determine when he is in pain, is striking.  For example,  Garners

live-in  caregiver,  Vincent F. Goodsell,  Jr.,  wrote  that  the

complexities of performing a thorough dental exam and cleaning on

someone  in  Garners  condition made it possible  for  Garner  to

afford  such  treatment only every five years or so.   Given  the

infrequency  of these routine visits, Goodsell expressed  concern

because I often would not be able to determine if he was having a

significant  problem until perhaps he was in  need  of  emergency

care.  In come cases, I may not even be able to determine that he

is,  in fact, in need of such care.  Goodsell then described  the

following  situation:  For instance, when John was 29  years  old

his dentist found that he had an abscessed tooth.  This condition

was a surprise to everyone and one can only speculate on how long

he   experienced  the  problem.   Garner  had  been   unable   to

communicate  to  anyone  that he was  experiencing  that  painful

condition.   On another occasion Garner fell in his bathroom  and

          broke his arm, but several hours passed before anyone realized he

was injured (when he was observed wincing trying to get up from a

sofa).  Because his family and caretakers are unable to know when

he is in pain, Garner argues that in order to access the services

provided  to all Medicaid recipients, the agency must  cover  his

otherwise  routine dental services as a reasonable  accommodation

for  the purpose of treating painful conditions that, unlike  the

non-disabled, he is unable to communicate either promptly  or  at

all.

          The  question  of which accommodation   the  states  or

Garners   if either, is to be preferred under the ADA regulations

requires  factual  findings.   Accordingly,  we  remand  to   the

superior  court  with instructions to remand to  the  agency  for

findings on this issue.  As a preliminary matter, it is  for  the

agency  to decide whether a reasonable accommodation exists,  and

if so, what it is.

          Finally,   the   agency  argues  that   providing   the

accommodation requested by Garner  would result in a  fundamental

alteration  in  the  nature of the service provided.   The  state

offers no support for this position, and therefore we decline  to

consider  it at this time.35  The state remains free  to  present

this argument to the agency on remand.

V.   CONCLUSION

          Because the record does not contain sufficient findings
to permit us to determine whether the agency has violated its own
regulations  or  the  ADA by refusing to pay for  Garners  dental
examination and accompanying root planing procedure, we REMAND to
the  superior court with instructions to remand to the agency for
further  factual  development.   Specifically,  we  instruct  the
agency to determine whether the denial of coverage will result in
an undue hardship for Garner under 7 AAC 43.080(a).  If it would,
the agency must consider whether the requested services should be
covered  under this exception.  Should the agency determine  that
denial of coverage would not result in undue hardship, the agency
must  then  ascertain whether, under the ADA, the  accommodations
proposed  by the agency or by Garner are reasonable and,  if  so,
which   is  preferable,  and,  if  not,  whether  an  alternative
reasonable accommodation exists and can be implemented.
_______________________________
     1    Letter from Jim H. Case, D.M.D. (Nov. 24, 1999).

     2    7 AAC 43.600; 7 AAC 43.620.

     3     On  appeal, Garner presents three issues  for  review:
whether  7 AAC 43.600 and 7 AAC 43.620 are inconsistent with  the
federal Medicaid Act or violate the equal protection guarantee of
the  Alaska  Constitution  and  whether  the  agencys  denial  of
Medicaid coverage for routine dental care for Mr. Garner violates
Title  II of the ADA.  Notably, Garner does not pursue his claims
regarding  the  federal equal protection clause  or  the  agencys
failure  to follow its own regulations.  However, for the reasons
set  out  infra  at  note 21, we consider the argument  that  the
agency failed to follow its own regulations in todays opinion.

     4    Matanuska Elec. Assn, Inc. v. Chugach Elec. Assn, Inc.,
53 P.3d 578, 583 (Alaska 2002).

     5     Bauder  v.  Alaska Airlines, Inc., 52  P.3d  166,  174
(Alaska  2002); see also Handley v. State, Dept of  Revenue,  838
P.2d  1231,  1233  (Alaska 1992) (discussing application  of  the
substitution  of  judgment test for questions  of  law  where  no
agency expertise is involved).

     6     Cleaver v. State, Commercial Fisheries Entry Commn, 48
P.3d 464, 467 (Alaska 2002).

     7     Payton  v.  State, 938 P.2d 1036, 1044  (Alaska  1997)
(error  for Board of Fisheries not to explain why regulation  did
not  allow  appellants  actions).  Cf. Cano  v.  Municipality  of
Anchorage,  627  P.2d  660,  663 (Alaska  App.  1981)  (abuse  of
discretion  for court to fail to recognize the legal alternatives
open to it).

     8     See  Blanas v. Brower Co., 938 P.2d 1056, 1060 (Alaska
1997) (reviewing agencys interpretation of AS 23.30.012).

     9     Chizmar  v.  Mackie, 896 P.2d 196, 200  (Alaska  1995)
(citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).

     10    42 U.S.C.  1396.

     11    Beal v. Doe, 432 U.S. 438, 440 (1977).

     12     State,  Dept of Health & Soc. Servs.,  Medicaid  Rate
Commn v. Hope Cottages, Inc., 863 P.2d 246, 248 (Alaska 1993).

     13    42 U.S.C.  1396a(a)(10); 42 U.S.C.  1396d(a).

     14     42  U.S.C.  1396d(a); 42 C.F.R.  440.240.   See  also
Meyers  v.  Reagan, 776 F.2d 241, 243 (8th Cir. 1985) (explaining
that  once a state decides to provide optional services, it  must
comply with the federal regulations that govern those services).

     15    AS 47.07.010.

     16     AS 47.07.030(a)-(b).  Adult dental services under the
Alaska  Medicaid  program  are  defined  by  statute  as  minimum
treatment  for  the immediate relief of pain and acute  infection
provided by a licensed dentist.  AS 47.07.900(1).

     17    AS 47.07.040.

     18    In relevant part, 7 AAC 43.600 provides:

          (a)  Medicaid  will  pay for  routine  dental
          services   for  recipients  under   age   21.
          Medicaid  payment for recipients  age  21  or
          older  is limited to dental services for  the
          immediate relief of pain and acute infection.
          
     19    7 AAC 43.620 provides:

          The  division will not pay for the  following
          dental services:
          (1) dentures, relines, or denture repairs for
          recipients age 21 or older;
          (2)   treatment   for   conditions   of   the
          temporamandibular joint;
          (3)  final  restorations in resin or  amalgam
          for more than five surfaces;
          (4)  treatment  for chronic  dental  disease,
          including  gingivitis  and  periodontis,  for
          recipients age 21 or older;
          (5) indirect pulpcapping;
          (6) endodontic services for recipients age 21
          or older; and
          (7)  dental  services that are  not  for  the
          immediate  relief of pain and acute infection
          for recipients age 21 or older.
          
     20    7 AAC 43.600(a).

     21     Although  Garner briefed this claim that  the  agency
failed  to  follow  its  own regulations in  his  appeal  to  the
superior court, and the state responded to it, the superior court
did  not  decide the matter.  Garner has not raised the issue  in
his  appeal to this court, and we normally would not reach it for
that  reason. Martinson v. Arco Alaska, Inc., 989 P.2d  733,  738
(Alaska  1999);  Adamson v. University of Alaska, 819  P.2d  886,
889  n.3 (Alaska 1991).  But there is an exception to this  rule,
for we have held that an appellants failure to raise an issue  in
this  court  will not preclude our consideration of it  where  it
involves a question of law critical to a proper and just decision
of the case and where the parties have been given the opportunity
to  brief the matter.  Vest v. First Natl Bank of Fairbanks,  659
P.2d  1233, 1234 n.2 (Alaska 1983).  See also Hickel v.  Halford,
872  P.2d  171,  175 (Alaska 1994).  Because we view  this  as  a
potentially  determinative issue and  because  the  parties  have
already briefed it before the superior court, we have decided  to
reach  the  issue  of  the  agencys failure  to  follow  its  own
regulations.

     22    See, e.g., Payton v. State, 938 P.2d 1036, 1044 (Alaska
1997) (citing, as error, the failure of the Board of Fisheries to
explain  why  a regulatory exception allowing residents  to  stop
using  certain  methods  of handling, preparing,  preserving  and
storing  salmon did not apply to Skwentna-area residents decision
to  stop  drying salmon). Cf. Cano v. Municipality of  Anchorage,
627 P.2d 660, 664 (Alaska 1981) (holding that the superior courts
outright  refusal to consider the various alternatives  available
as  a  matter of discretion to the court is a failure to exercise
any discretion at all).

     23    42 U.S.C.  12132.

     24    28 C.F.R.  35.130.

     25     Duvall v. County of Kitsap, 260 F.3d 1124, 1135  (9th
Cir.  2001)  (quoting  Weinreich v.  Los  Angeles  County  Metro.
Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997)).

     26    Alexander v. Choate, 469 U.S. 287, 301 (1985).

     27    28 C.F.R.  35.130(b)(7); Choate, 469 U.S. at 301.

     28    Wong v. Regents of the Univ. of Cal., 192 F.3d 807, 816
(9th Cir. 1999).

     29    Id. at 817.

     30    Id. at 818.

     31     Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002)
(analyzing   public  entitys  obligation  to  provide  reasonable
accommodation under analogous provisions of section  504  of  the
Rehabilitation Act).  Cf. Moody-Herrera v. State, Dept of Natural
Res.,  967  P.2d  79, 88 (Alaska 1998) (adopting  the  reasonable
accommodation  analysis  employed by  federal  courts,  in  cases
brought   under   Title  VII,  which  asks   whether   reasonable
accommodation was available, was provided, or would impose  undue
hardship on the employer).

     32    Vinson, 288 F.3d at 1154.

     33    Duvall, 260 F.3d at 1137.

     34     See  42 U.S.C.  12132 (prohibiting the denial of  the
benefits of a service or program offered by a public entity to  a
qualified  individual  because of that  individuals  disability).
Garners  case resembles in some respects the situation in Crowder
v.  Kitagawa, in which Hawaii subjected all dogs, including guide
dogs  of   visually-impaired individuals, to 120-day  quarantine.
81  F.3d  1480,  1481-82 (9th Cir. 1996). As a  result,  disabled
individuals requiring the aid of guide dogs were unable to  enjoy
meaningful  access to state services and activities  during  that
four-month  period.  Id. at 1482. The court held that  appellants
had   made   out   a   prima  facie  case   of   disability-based
discrimination based on their inability to access state  services
because  of the quarantine requirement and required the state  to
make efforts to reasonably accommodate them. Id. at 1485-86.

     35     Braun v. Alaska Commercial Fishing & Agric. Bank, 816
P.2d  140, 145 (Alaska 1991) (reasoning that issue which has been
insufficiently briefed need not be addressed by this court).