Willkie, Freshfields Help Score NY Medicaid Dental Expansion

By Marco Poggio | May 19, 2023, 7:03 PM EDT ·

image of a dental hygenist cleaning teeth

Willkie Farr & Gallagher LLP and Freshfields Bruckhaus Deringer LLP recently joined forces to secure a landmark settlement that would expand coverage that Medicaid recipients receive for dental care. (Photo by John Moore/Getty Images)

When Blanca Coreas, a Salvadoran immigrant living in the Bronx, had her upper teeth pulled in 2018, her dentist was optimistic that Medicaid would pay for implants. As it turned out, he was wrong — New York state denied coverage.

In support of her claim, the dentist submitted a letter saying she suffered from a lack of vitamins and needed new teeth to be able to effectively chew food, as well as a letter from a therapist saying her dental condition had worsened her depression — all to no avail. She faced a bill of $24,000, which she had no means to pay.

"I was without teeth for almost one year," Coreas told Law360. "It was a period of great depression and trauma for me. I was frustrated."

Coreas, 62, is one of thousands of low-income New Yorkers who hit a bureaucratic wall seeking certain kinds of dental care under Medicaid. Under state regulations, Medicaid would not cover services such as crowns, root canals, replacement dentures and implants unless patients had fewer than four upper teeth making contact with four teeth below. The "eight points of contact rule," as it is known informally, effectively barred scores of people in the state from fixing their teeth.

But a major settlement reached this month has given Coreas and people with similar needs some hope. The deal, which ends a class action brought by Coreas and nine other plaintiffs, will require the New York State Department of Health to provide expanded dental coverage to roughly 5 million Medicaid recipients.

Under the settlement, which awaits the approval of U.S. District Judge Mary Kay Vyskocil, the Health Department will have 90 days to begin to provide Medicaid coverage for the services it previously denied.

Lawyers with Willkie Farr & Gallagher LLP and Freshfields Bruckhaus Deringer LLP joined forces with the Legal Aid Society of New York in litigating the class action, which was filed in August 2018 in the U.S. District Court for the Southern District of New York.

"We are pleased many of these outdated practices are now eliminated or updated in accordance with current dental practices, so that all New Yorkers have access to appropriate care," Wesley R. Powell, a Willkie partner involved in the litigation, said in a statement on the day the settlement was announced.

Mary Eaton, a partner at Freshfields, said the settlement ended "unlawful barriers" in the state's Medicaid program that prevented people from receiving medically necessary dental care.

"Anyone can appreciate that inadequate dental care leads to unemployability, social isolation and medical complications," she said. "Low-income New Yorkers can now get the care so many take for granted."

As a result of the deal, the eight points of contact rule is eliminated for crowns and root canals, which will now be covered when a dentist deems it medically necessary. The settlement also ends a categorical ban on crown lengthening, a procedure that involves removing excess gum tissue or bone around the upper teeth. In addition, replacement dentures will now be covered without a physician saying they're needed to alleviate a patient's serious health conditions.

"The state has an obligation to provide this basic care to people who need it," Belkys Garcia, an attorney with the Legal Aid Society who represents the class members, told Law360.

Cort Ruddy, a spokesperson for the New York Department of Health, told Law360 in an email that the state's Medicaid program currently provides "comprehensive health coverage" to nearly 8 million people.

"This settlement recognizes the importance of oral health and affirms the state's commitment to those individuals," Ruddy said.

Medicaid Providers Denied Coverage

As a staff attorney with the Legal Aid Society since 2007, Garcia said she had heard countless stories of low-income New Yorkers being denied Medicaid coverage for common services such as root canals and crowns.

People could get coverage for those procedures — for which out-of-pocket costs can range from $500 to $3,000 — only in rare circumstances, such as when a person had a medical condition tied to their dental problem.

Under New York's Dental Manual, which specifies who and how someone is entitled to Medicaid assistance for dental care, people could not get coverage if they had at least four teeth above making contact with four teeth below, even if they were all on the same side of the mouth and regardless of whether they were in a row.

"So if you need a root canal or a crown, what New York does is they just pull those teeth until you've lost eight points of contact, which is essentially more than half of your teeth," Garcia said. "Then New York will pay for a denture."

And under the rules, people who lost or damaged their dentures could not get them replaced for eight years.

Dr. Graziano Giglio, a dentist who testified as an expert on behalf of the plaintiffs, said that the back teeth are essential for chewing, and that people who lack them are severely limited in the kinds of food they can eat.

"Think of a chess set," Giglio said. "If you take out the molars, it's like losing your queen and your king trying to play chess."

State regulations on dental care coverage limited the ability of Medicaid providers like him to fix the teeth of people who badly needed it, he said.

"You had to lose 13 teeth before they would pay for you to get a new tooth. They wouldn't give you implants or crowns," Giglio said. "That was crazy. It's unfair to humans."

dental diagram

Dental diagrams comparing the normal arrangement of the teeth versus that of people with missing premolars and molars, which are considered essential for chewing. (Court Documents)

The Legal Aid Society's lawsuit came on behalf of Frank Ciaramella, then a 57-year-old Medicaid recipient living in Staten Island, and Richard Palazzolo, then 60 and living on Long Island, both of whom had dental needs that were related to serious medical conditions.

At the time the suit was filed, Ciaramella had no teeth in his mouth. He had end-stage renal disease and received dialysis treatment three times a week while awaiting a kidney transplant. He also had hypertension, coronary artery disease and diabetes, and had been diagnosed with protein deficiency. Ciaramella applied for Medicaid coverage of dental implants, but it was denied in August 2016.

The complaint, which sought to force the state to provide Medicaid coverage to Ciaramella and people in similar circumstances, alleged that the state's policies violated several provisions in the Medicaid Act, the Americans with Disabilities Act and the Rehabilitation Act.

Five weeks after the lawsuit, on Sept. 11, 2018, the state's Health Department updated the Dental Manual to shift away from a categorical ban on coverage for patients seeking dentures less than eight years before getting their original pair. Instead, the department started allowing coverage for patients who could document they urgently needed dentures to "alleviate [a] serious health condition or improve employability." Later that month, the state filed a motion to dismiss.

Ruddy declined to say whether the change in the policy was spurred by the lawsuit.

Powell told Law360 the strongest claims in the case were those invoking the Medicaid Act, in part because a similar case litigated in New York's federal courts had interpreted the law in a way that was favorable to the Ciaramella plaintiffs.

In that case, Cruz v. Zucker, Willkie partnered with the Legal Aid Society on class claims that ended with state rulemaking in October 2016 and a subsequent summary judgment ruling removing restrictions on health care for transgender Medicaid recipients under age 18. The ruling made New York one of the few states where minors diagnosed with gender dysphoria — a state of psychological distress caused by a mismatch between a person's gender identity and the sex they were assigned at birth — can have access to health care services including hormone therapy, behavioral therapy, and surgery under Medicaid.

"We were able to bring claims about dental services that followed on to that," Powell said.

The turning point in the Ciaramella litigation came in September 2019 when U.S. District Judge Paul Oetken granted class certification, while granting in part and denying in part New York state's motion to dismiss.

After extensive negotiations, the plaintiffs and the Health Department reached a deal on May 1. But by then, Ciaramella and three other plaintiffs — Antonio Martin, Jody Virtuoso and Yvonne Hawkins — had died.

"It's very heartbreaking. I really wished they had been able to see this victory," Garcia said.

Meanwhile, Coreas is still waiting for the day she will receive the dental care she needs to have a healthy life and eat the food she likes. Limited to a diet of purees and soft food, she said what she really craves is a steak.

"I can't eat anything hard," she said. "It's like I'm a newborn."

She is eagerly waiting to receive upper dentures. Once that's done, dentists will put implants below and install new teeth where she's missing them, she said. Coreas will receive her care under a stipulation filed in December as part of the class action, her attorneys said.

"We need to be patient," she said.

The class members are represented by Wesley R. Powell, M. Annie Houghton-Larsen, Sean R. Lavin and Timothy P. Ryan of Willkie Farr & Gallagher LLP, Mary Jane Eaton and Yilin Chen of Freshfields Bruckhaus Deringer LLP, and Judith Goldiner and Belkys Garcia of the Legal Aid Society of New York.

Dr. James V. McDonald, acting New York state health commissioner, is represented by Tracy Hennige of the New York State Department of Health, and Glenne Ellen Fucci of the Office of the New York State Attorney General.

The case is Ciaramella et al. v. Zucker, case number 1:18-cv-06945, in the U.S. District Court for the Southern District of New York.

--Editing by Robert Rudinger.

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