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 specialization1—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.2 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.

“ By offering teeth cleanings, Ben was risking his license without even knowing it. In Arkansas (and seven other states), it is illegal for dental specialists to practice outside of their area of specialization. ”

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.