Health Canada denied an Stacey Shiner application for $6,000 to cover the cost of her daughter’s braces, which were need to fix her malfunctioning jaw that was causing her pain.karelnoppe/Getty Images/iStockphoto
Health Canada narrowly interpreted its own rules on dental coverage for indigenous people to refuse payment for an Alberta girl's braces even though her malfunctioning jaw caused pain and, without the orthodontic work, she would have required invasive corrective surgery, according to court documents.
The girl's mother, Stacey Shiner, launched the court action against the government last year, saying the decision to deny her application for $6,000 to cover the cost of the braces was "unreasonable," that it did not take the girl's best interests into account and that it violated her right to procedural fairness.
The federal government's non-insured health-benefits program for indigenous people pays for braces in cases where a child is experiencing something called a severe and functionally handicapping malocclusion which, in broad terms, means the child's jaw is misaligned and does not function properly.
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But the government has no standard clinical definition for the malady, just a list of four criteria, including a clear crossbite, a severe overbite that causes a soft-tissue injury, a severe open bite and a severe open jet, that are used for diagnosis. The bureaucrats determined Ms. Shiner's daughter had none of those, according to the affidavit Ms. Shiner filed in Federal Court this week.
As of July 26, the government had spent more $32,832.17 in legal fees to defend its case against Ms. Shiner, according to documents obtained by the First Nations Child and Family Caring Society of Canada under Access to Information legislation. More has been spent in the interim. And the legal costs will go up even further when the parties go before a judge later this year, said Ms. Shiner's lawyer, Sarah Clarke.
Last fall, the Liberal government, which came to office in 2015 promising to reset the relationship with Canada's aboriginal people, gave unanimous support to an NDP motion that said it would stop fighting indigenous families in court who are seeking access to services covered by Ottawa.
"That vote was on a Wednesday and on Friday they were back in court fighting against this teenager," Cindy Blackstock, the Caring Society's executive director, said Thursday.
Ms. Shiner's daughter, who is identified as Josey Willer in the affidavit, is now nearly 16 years old. When she was 9, her teeth began to emerge sideways in her palate.
When she was 13, an orthodontist said she had a functionally handicapping malocclusion. She had constant pain and headaches, could not chew properly and found it difficult to fully open her mouth. That orthodontist said that, without braces, she would need surgery. But the government denied the claim saying she had no "soft tissue injury."
By the summer of 2015, she was being treated by another orthodontist who made a similar diagnosis. Without braces, he said, her jaw would have to be broken in two places and then refastened with screws and plates before being wired shut for about eight weeks. The only way to avoid that, he said, was braces while she was still young.
Ms. Shiner made the decision to have the orthodontic work done and paid for it herself.
She appealed the denial of the dental benefits up through the ranks of Health Canada's non-insured health-benefits program and eventually to the director-general, but the answer was always rejection. According to Ms. Shiner's affidavit, the bureaucrats failed to consider any other criteria beyond those specifically listed in their dental policy, which orthodontists have "criticized as being too severe and limited."
"In this case we have two pediatric orthodontists saying, without treatment, the child is going to have difficulty eating and difficulty talking and chronic pain," Dr. Blackstock said. "And it's just the humanity of it. I mean come on. We are spending a half billion dollars on a birthday party [for Canada's Confederation] and we can't afford enough for a child to eat and talk."
The government has argued that it can't pay for the braces because it would have to pay for braces for other First Nations children in similar circumstances, Dr. Blackstock said. "But if there is any other child who can't eat or talk unless they get medical treatment, they are welcome to every one of my tax dollars."
Questions put to the government about the case on Wednesday were not answered by deadline on Thursday.
Although the amount in dispute in not large, "the family made this decision to go to court because they feel they were treated unfairly by both the process and the outcome in this case," said Ms. Clarke, the lawyer. "They don't want other families to experience the same kind of outcome that they experienced."
Charlie Angus, the NDP critic for indigenous affairs, has written to Health Minister Jane Philpott to demand that the cost of the braces be covered. Mr. Angus said the denial rates for emergency orthodontic surgeries for First Nations youth run at nearly 100 per cent. "If they are going to deny every child who needs it, why even offer it?" Mr. Angus asked. "This is systemic denial."