Access Denied

Orthodontist’s Low-Cost Teeth Cleaning Program Shut Down Under Archaic Law That Limits Access to Care

When is it illegal for a licensed dentist in Arkansas to clean teeth? When he also happens to be a licensed orthodontist. In 2013 Dr. Ben Burris ran afoul of Arkansas’ law when he started offering low-cost teeth cleanings at his orthodontic offices. Ben’s practice Braces By Burris has 11 offices around the state. In part because of his success Ben feels a strong need to give back to the community so he started offering simple teeth cleanings for $99 for adults and $69 for kids, a fraction of what other dentists charge for the same service. He saw the program as a great way to expand access to care for Arkansans.

Within weeks, Ben was told by the Arkansas State Board of Dental Examiners that he was breaking the law and that his license would be revoked if he continued offering the cleanings. Arkansas prohibits licensed dental specialists like orthodontists from doing work outside of their specialty even though they are qualified to practice general dentistry. These kinds of restrictions arbitrarily limit access to care and drive up prices for consumers. Faced with the threat of seeing his practice ruined and his 100+ employees out of work, Ben suspended the program. Now Ben and his colleague Dr. Elizabeth Gohl are fighting back. Together with the Institute for Justice they filed a federal lawsuit on May 27, 2014 to defend their right—as licensed dentists—to perform basic dental services. The 14th Amendment protects the right of professionals to offer services that they are perfectly qualified to perform. This case is about eliminating irrational protectionist laws and expanding access to affordable dental and medical care for Americans everywhere.

Dr. Ben Burris: Determined to Expand Access to Care

Dr. Ben Burris is a licensed dentist and orthodontist in Arkansas. He owns Braces By Burris, an Arkansas orthodontic practice with 11 offices across the state. After completing his undergraduate work at The Citadel, Ben completed his Doctor of Dental Surgery, Master of Dental Science and three-year dental residency at the University of Tennessee in Memphis. He opened Braces By Burris in 2004. Since then, it has grown to become one of the largest orthodontics practices in the U.S. Orthodontists are licensed dentists who also specialize in a particular area. (Other areas of specialization include oral surgery, oral radiology and pediatric dentistry.) After they finish dental school, dental specialists complete a three-year residency in their area of specialization. They then obtain both a dental license and a specialty license from the state they’ll be practicing in. Ben has long believed in expanding access to dental care. That’s why, in 2008, he established Smile for a Lifetime, which provides free braces to kids who cannot afford them. Smile for a Lifetime has grown rapidly. It now has over 150 chapters across the country and gives away approximately $6 million in free braces every year.

The State Dental Board Extinguishes Ben’s Effort to Expand Access to Care

As a continuation of his mission to expand access to care, Ben started offering low-cost teeth cleanings at his orthodontic practice in June 2013. Nearly three-quarters of low-income Arkansas children do not have regular access to preventative dental care.  Among adults, the number is nearly four in ten. The cleanings Ben offered were performed by licensed dental hygienists, whom Ben supervised, for $99 for adults and $69 for children. These were the same hygienists who perform cleanings for patients getting braces. The price was roughly one-third to one-half the rate charged by other dentists in Arkansas to patients without insurance. Within weeks of offering his low-cost cleanings, Ben was contacted by the Arkansas State Board of Dental Examiners and informed that he was violating state law. In Arkansas (and seven other states), it is illegal for dental specialists to practice outside of their area of specialization[i]—despite the fact that orthodontists and other dental specialists are dentists who have completed dental school plus a three-year residency.

By offering teeth cleanings, Ben was risking his license without even knowing it. No patients had complained about Ben nor had he ever run afoul of the Dental Board before. The complaints were coming, instead, from licensed dentists who were more interested in protecting their turf than expanding access to care for patients. At the Dental Board meeting, Board members and general dentists condemned Ben for offering the cleanings. There was no allegation that Ben had endangered, much less harmed, anyone. The “problem” was simply that he was doing something he wasn’t supposed to do, even though he was perfectly qualified to do it.

Ben was told that if he did not shut down the low-cost cleanings, he faced revocation of both his dentist and orthodontist licenses. That would ruin Braces By Burris and put Ben’s 100+ employees out of work. Faced with this threat, Ben agreed to suspend the program, but he continues to believe that anyone who is competent to provide care should be able to provide it and that allowing them to do so would expand access and lower costs for patients. Dental specialists are qualified to offer general dentistry services, like cleanings and X-rays.

They are, after all, licensed dentists in addition to being licensed in their area of specialization. And the hygienists that Ben was supervising were likewise qualified to perform the work. A licensed dental hygienist is qualified to work in a dental office or a specialist office without restrictions. (Indeed, they polish the teeth of patients before braces are applied.) The problem, in the Dental Board’s eyes, was simply that Ben had dared to practice anything other than orthodontics. The government cannot prohibit licensed professionals from doing things that they are perfectly qualified to do, simply to protect the economic interests of certain members of that profession—like general dentists.

The 14th Amendment to the U.S. Constitution protects the right of everyone to practice the occupation of their choice free from unreasonable governmental interference. Nothing is more unreasonable than telling a licensed dentist (who also happens to be a licensed orthodontist) that he or she cannot provide simple dental services. That is why, on May 27, 2014, Ben joined the Institute for Justice to file a major economic liberty lawsuit in the U.S. District Court for the Eastern District of Arkansas to protect the right of everyone to work in the occupation of their choice, free from protectionist laws. This lawsuit has implications not only for dental specialists, but also for every patient who needs greater access to care in a world of rising and uncertain medical costs.

Dr. Elizabeth Gohl: A Former Navy Dentist Forbidden From Volunteering Her Services

Dr. Elizabeth Gohl is a colleague of Ben’s and an employee of Braces By Burris. She has joined him in his fight. Like Ben, she is a licensed dentist and licensed orthodontist in Arkansas. Prior to becoming an orthodontist, Elizabeth was a dentist in the U.S. Navy. She was first licensed in 2000, after earning her B.S. and M.S., in neurobiology and a Doctor of Dental Surgery from the University of Southern California. From 2000 to 2008, she performed dental work on sailors, including teeth extractions and complex procedures.

In 2008, after an honorable discharge from the Navy, she became licensed as an orthodontist in California, where she practiced until 2010, when she moved to Arkansas. In addition to her work in the Navy, Elizabeth has done dental charity work around the world. It seemed natural, then, that she would volunteer her services when she arrived in Arkansas. She therefore attempted to sign up to help at a “Free Extraction Day,” where low-income individuals can have troublesome teeth extracted for free. But Elizabeth was told that she could not volunteer her services—despite the fact that she had performed hundreds of extractions in the Navy and despite the fact that she was a licensed dentist—because she was also a licensed orthodontist.

Unnecessary Restrictions on Dental Care Harm Consumers and Drive Up Prices

Arkansas is not unique in prohibiting specialists like Ben and Elizabeth from helping people they are perfectly qualified to help. Seven other states prohibit specialists from practicing outside of their area of specialization.[iv] An additional two states require specialists to spend a majority of their time practicing in their area of specialization.[v] These restrictions represent only a fraction of the vast array of laws that restrict who can offer dental services across the country. Collectively, they raise the price of dental care by an estimated 12 percent nationwide,[vi] which reduces access to dental care among low-income populations.[vii] And there is ample evidence that many of these restrictions do nothing to protect consumers.[viii] As one study notes: “data suggest that restrictive licensure laws in oral health are not tied to better health outcomes or supported by scientific evidence; in fact, stringent laws have been tied to increased consumer costs, which may restrict an individual’s access to care.”[viiii] If Ben and Elizabeth are successful, this case would help eliminate laws that put profit before patients.

The Plaintiffs

Dr. Ben Burris and Dr. Elizabeth Gohl are each licensed both as dentists and licensed orthodontists in the state of Arkansas. Dr. Burris is a resident of Fort Smith, Arkansas. Dr. Gohl is a resident of Fayetteville, Arkansas.

The Defendants

The Defendants are the members of the Arkansas State Board of Dental Examiners and the Board’s executive director, all of whom are sued in their official capacities.

The Legal Claims

Ben and Elizabeth have brought a constitutional challenge in federal court in the Eastern District of Arkansas. Specifically, they claim that Arkansas cannot prohibit dental specialists—who are licensed dentists in addition to being licensed specialists—from practicing outside of their area of specialization. These claims are brought under the Equal Protection, Due Process and Privileges or Immunities Clauses of the 14th Amendment to the U.S. Constitution, which protects economic liberty—the right to earn an honest living free from unreasonable government interference. It is irrational to prevent a licensed dentist from offering simple services like teeth cleaning, or participating in a free clinic, just because that person is also a licensed dental specialist. These laws exist to protect general dentists. They are unconstitutional, and they are part of the reason why so many people go without even basic dental services. The government cannot pass laws in order to protect the profits of certain groups.

The Litigation Team

This case is being litigated by Institute for Justice Texas Chapter Executive Director Matt Miller.

About the Institute for Justice

The Institute for Justice is the national law firm for liberty and has represented African hair braiders, casket-making Catholic monks, cottage food producers and other entrepreneurs in state and federal lawsuits nationwide. For more on the Institute for Justice and its work, visit www.ij.org.

For more information, contact:
Shira Rawlinson
Assistant Director of Communications
(703) 682-9320 srawlinson@ij.org
[i]Arkansas Dental Practice Act § 17-82-305(g)(2).
[ii] Arkansas Dental Practice Act § 17-82-305(g)(3).
[iii] Idaho, Minnesota, Nevada, New Mexico, Ohio, Oklahoma and West Virginia.
[iv] Iowa and Tennessee.
[v] Coady Wing and Allison Marrier, Effects of occupational regulations on the cost of dental services: Evidence from dental insurance claims, Journal of Health Economics 34 (2014).
[vi] Peter G. Fitzpatrick and Susan I. Duley, Lack of Access in Healthcare Delivery: A Model for Using Dental Hygienists in a Cost Effective Manner to Help Address the Oral Healthcare Problem, Hospital Topics, 90(3), 2012.
[vii] Id.
[viii] Id.
[viiii] Id.