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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).
