Ark. orthodontists file lawsuit against state dental board

2014 03 14 15 01 02 730 Law Books 200

Two orthodontists have filed a civil rights lawsuit against the Arkansas State Dental Board of Examiners, seeking "declaratory and injunctive relief" and trying to change Arkansas' Dental Practice Act, which prevents dental specialists from providing teeth-cleaning services. They claim that the board's actions violate their 14th Amendment rights.

The lawsuit was filed on May 27 in the U.S. District Court for the Eastern District of Arkansas by Benjamin Burris, DDS, MDS, of Fort Smith, and Elizabeth Gohl, DDS, of Fayetteville and an employee of Dr. Burris, against Donna Cobb, the executive director of the dental board, and other members of the board.

“More than half the people in Arkansas don't see a dentist regularly -- the cost in health, lives, and money are staggering.”
— Benjamin Burris, DDS, MDS

In Arkansas, dental specialists may not practice outside of their area of specialization, even to offer basic services such as teeth cleanings, except in emergencies, the complaint notes. Specialists who practice outside of their specialty may have their license revoked or suspended, according to the Dental Practice Act.

Last November, DrBicuspid.com reported that Burris agreed to stop offering prophylaxes to the general public after the Arkansas State Board of Examiners asserted that he violated the act. At the time, Dr. Burris cited other instances in which general dentists have ventured into such work, such as braces. He said that the prophies, which were done by staff hygienists, help address access-to-care issues in areas where it is lacking.

The dental board's actions "arbitrarily deprive Dr. Burris and Dr. Gobi of their right to pursue the occupation of their choice," and the orthodontists seek a declaratory judgment that the Arkansas Dental Practice Act "as applied to the cleaning, x-ray, and other services that Dr. Burris offered and which he and Dr. Gobi would like to continue offering, and to the pro bono dental service programs that Drs. Burris and Gohl would like to participate in," violates clauses of the 14th Amendment to the U.S. Constitution, according to the complaint.

Patients' rights and access to care

This is both a patients' rights and an access-to-care issue, Dr. Burris said in a statement emailed to DrBicuspid.com.

"This is a patients' rights issue plain and simple," he wrote. "More than half the people in Arkansas don't see a dentist regularly -- the cost in health, lives, and money are staggering. How many cases of diabetes, heart disease, and premature death could be prevented with access to regular care?"

Dr. Burris further stated that, in his opinion, the Dental Practice Act is not being applied consistently.

"If primary care dentists (PCDs) were not allowed to render specialty treatment like braces, oral surgery, or sedation, I would agree that I should not do hygiene," he said. "But the fact that PCDs can practice up with no formal training while I cannot do things I was trained for in dental school, like supervise a licensed hygienist is nonsensical. We are suing the state board members and will show that the law and their actions violate the Constitution."

Protecting the rights of professionals

Drs. Burris and Gohl are seeking a "permanent injunction forbidding future enforcement of [the] Arkansas Dental Practice Act" against them and other dental specialists practicing outside of their area of specialization. They are not asking for a settlement award but attorneys' fees and expenses in this case.

In a release from the Institute of Justice (IJ), a public advocacy group that is representing the two orthodontists, Dr. Burris said his motivation is to offer high-quality dental care. The IJ contends that the 14th Amendment protects the right of professionals to offer services that they are qualified to perform.

"The dental board is going after me because I want to shake up an industry that desperately needs innovation," Burris said. "As a dentist, I took an oath to help people, and offering top-notch dental care at an affordable price is how I want to do that. I should not be punished because I chose to get a specialty license."

Legislative change needed

The suit follows a March meeting between Arkansas state Sen. Jeremy Hutchinson (R-Benton) and the State Board of Dental Examiners to further discuss the Dental Practices Act and to try to find a way to alter the state law so that orthodontists can provide basic teeth cleanings, according to a story by Arkansasbusiness.com.

Hutchinson had received some complaints from constituents regarding this issue, so he placed a legislative "hold" on the dental board's budget. The issue seemed to violate the dental board's role of protecting consumers and increasing access to care, which it didn't appear to be doing, he stated.

After meeting with board's executive director, Hutchinson released the hold and the budget was passed. The senator said he was told the state's law can only be changed by the Legislature, not by the dental board.

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