Ottawa has changed its policies to consider the amount of pain being suffered when approving dental benefits to Indigenous children who need orthodontic work that does not exactly meet the criteria for coverage.
The new rules come into play after a settlement was reached this week in a three-year-old court case launched after Health Canada narrowly interpreted its own guidelines and refused to pay for the treatment of an Alberta girl, named in court documents as Josey Willier, who had a malfunctioning jaw.
Josey’s mother, Stacey Shiner, decided to have the $6,000 orthodontic work done more than a year ago, without federal financial assistance. But she pressed ahead with the much publicized legal action, taking it to the Federal Court of Appeal after losing at Federal Court, to ensure that other children with the same problems as Josey were not denied treatment.
“It wasn’t about being refunded for the costs of the orthodontics. It was about a policy that was outdated and that children were being left in a gap,” Ms. Shiner said in a telephone interview on Tuesday. “The government had come to me to settle on several occasions but I was not settling until something was done about the actual policy and the criteria.”
Indigenous Services Minister Jane Philpott, whose department has taken over the provision of Indigenous Health Services, confirmed in a statement that the settlement had been reached.
“Officials from my department have reviewed Ms. Shiner’s concerns and will be implementing a number of revisions to the Non-Insured Health Benefits [NHIB] orthodontic policy by June 15, 2018, for the purpose of increasing access for First Nations and Inuit children,” Dr. Philpott said.
The settlement ends a dispute that cost the government more than $110,000 in legal bills between January, 2016, and April, 2017.
When she was 9, Josey’s teeth began to emerge sideways in her palate. By the time she was 13, she could not chew properly, found it difficult to open her mouth and was taking pain medicine every day.
A dentist diagnosed her as having a functionally handicapping malocclusion, which meant her jaw was misaligned and not working properly. He said she needed orthodontic work while she was still young and, without it, her jaw would have to eventually be broken in two places and then refastened with screws and plates before being wired shut for eight weeks.
But the federal bureaucrats determined that Josey had none of the symptoms they used to diagnose a severe malocclusion, such as a clear crossbite or severe overbite. Pain was not one of their criteria. So they refused to pay the bill.
The case was taken up by Indigenous rights advocates and became emblematic of the government’s much criticized processes of awarding health benefits to First Nations children – problems the government has spent years trying to fix.
Sarah Clarke, the lawyer for Ms. Shiner who took on the case pro bono, said the best of all results has been achieved through the settlement because the Federal Court of Appeal could not have ordered the government to change its policies.
“Now orthodontists can apply to the program and explain that their patient is experiencing pain and discomfort associated with their jaw problem. And that evidence will be considered relevant to determining whether or not the child is eligible for coverage,” Ms. Clarke said.
In addition, she said, the bureaucrats must consider any clinical evidence associated with the condition, such as the ability to eat, that affects the child’s well-being. “In my view that is a huge win.”
While the policy changes apply specifically to orthodontics, Ms. Shiner said she hopes they will embolden others to challenge the government to close other gaps in optical, medical or prescription benefits for Indigenous children.
“The door’s been opened for the consideration of what is in the best interests of the child,” Ms. Shiner said.