Dentist's office/photo by Nedopekin Yuriy/iStockphoto.com

New York health officials will allow its Medicaid program to provide coverage for a New York City man who was suing the Department of Health for denying coverage for new dentures and dental implants, which he said he needs to maintain his overall health.

But the state agency is not off the hook as part of the settlement. Attorneys have moved to certify a class in the lawsuit, which also has another named plaintiff who was denied coverage for replacement dentures by the state.

The plaintiffs are represented by Belkys Garcia, a staff attorney at the Legal Aid Society, and Wilkie Farr & Gallagher partners Mary Eaton and Wes Powell. Other attorneys at LAS are also on the case, along with Timothy Fleming, an associate at Willkie.

Frank Ciaramella and Richard Palazzolo are the two named plaintiffs in the case. Both are Medicaid recipients from New York City and Suffolk County, respectively.

The settlement involves Ciaramella, who sought new dentures after his upper dentures did not fit and his lower dentures were run over by a car when they fell out of his mouth.

An oral surgeon told Ciaramella he would need dental implants to support the new set, but the service was apparently not eligible for coverage since he had already been fitted for his initial dentures, the original complaint said. He was also denied coverage of new dentures because a rule from New York's Medicaid program requires eight years to pass before a new set is covered in most cases.

His settlement with the state was on a motion for a preliminary injunction filed shortly after the complaint was introduced in August. According to the agreement, Ciaramella will be allowed to obtain coverage for a full dental assessment over the next month to determine how he can get a new set of dentures, which will also be covered.

“The way it's structured is that Mr. Ciaramella will receive a complete assessment that will outline the necessary dental care that he requires to have upper and lower teeth,” Garcia said.

The agreement requires Fidelis Care, his insurer through Medicaid, to grant prior approval for the assessment and following procedures. If Fidelis, for whatever reason, rejects the coverage, DOH has agreed to pay for the treatment directly.

The settlement does not put an end to the lawsuit, which the state moved to dismiss last week. Ciaramella had claimed in his complaint that not having dentures will affect his overall health because he has end-stage renal disease, diabetes, and was diagnosed as protein malnourished. He argued that his condition could get worse without dentures.

Attorneys for DOH wrote that his claims against the state should be dismissed because there's no guarantee that his health will deteriorate without dentures. The state called his claims “speculative allegations” in its filing.

Then there's the other plaintiff, Richard Palazzolo, who allegedly had his dentures stolen while living in a supportive housing facility. The state wrote that his claims should be dismissed because he never provided any proof that his dentures were stolen. It also said Palazzolo's claims should be rendered moot because he has since been given authorization to receive new dentures.

Attorneys for the plaintiffs said the case is about more than just approving treatment for Ciaramella and Palazzolo, it's a question about whether DOH is complying with federal law.

“I think the fundamental issue here is that federal law requires the state Medicaid program to cover medically necessary care,” Eaton said. “Any additional restriction, substantively, that the Department of Health imposes on that is not consistent with federal law from our perspective.”

The agency has since promulgated new rules around Medicaid coverage for dental implants to eliminate an outright ban on replacement dentures before eight years has passed, Powell said. That change takes effect next month, but Garcia said they don't see it affecting the lawsuit going forward.

“In this case, they made this change to the manual presumably in mooting out this case,” Garcia said. “But I have concern that if nothing's stopping them, tomorrow they could make a different change.”

It's not the first time they've gone to bat against the state over what services are deemed medically necessary and subsequently covered under the state Medicaid program. Powell, Eaton and Garcia also litigated a case against the state that lifted a ban on Medicaid coverage for transgender health care.

Eaton said she wants to convince the agency through the litigation to loosen regulations on what's considered medically necessary so attorneys don't have to challenge the state on a case-by-case basis.

“The issue is, from our perspective, that they've already been confronted by these kind of blanket coverage exclusions,” Eaton said. “It isn't justifiable as a matter of federal law and it shouldn't take additional litigation for the DOH to address these issues.”

They haven't ruled out a trial in the lawsuit at this point, but Powell said they're willing to seek relief in whatever form necessary to benefit the proposed class.

“I think we want the state to grant the relief that we've sought for the class,” Powell said. “What we want to see is a clear change in policy whether it be memorialized in some version of this dental manual or otherwise, the substance of which is that the state will cover medically necessary dental treatment.”

A spokesman for the DOH said they were satisfied with the terms of Ciaramella's settlement and lauded the state's Medicaid coverage for dental services.

“We are pleased with the terms of the settlement. New York State Medicaid includes some of the most comprehensive dental services in the country, and we are always reevaluating our programs and making changes as appropriate,” the spokesman said. “The Department of Health is committed to reviewing policies and unique cases to determine if changes to coverage are warranted. We will continue to work with affected individuals to ensure the State is being responsive to their needs.”

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