ADEA State Update

Fifth Circuit Affirms Texas Dental Specialties Regulation Is Unconstitutional

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5AppealsCourtSealOn June 19, the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) affirmed a lower court’s decision finding that it is unconstitutional to prevent dentists from advertising as specialists in areas not recognized as specialties by the American Dental Association (ADA).

Background

The American Academy of Implant Dentistry (AAID) filed suit challenging the constitutionality of a regulation promulgated by the Texas State Board of Dental Examiners that restricts dentists from advertising to the public certain specialties unless those specialties are recognized by the ADA.[1]

The Board enacted language that states “a dentist may advertise as a specialist or use the terms ‘specialty’ or ‘specialist’ to describe professional services in recognized specialty areas that are: (1) recognized by a board that certifies specialists in the area of the specialty; and (2) accredited by the Commission on Dental Accreditation of the American Dental Association [CODA].” The restrictive language is the focus of the lawsuit. 

Plaintiffs asserted that the regulatory provision infringed on their First Amendment right to engage in “truthful, non-misleading commercial speech and violated their Fourteenth Amendment due process and equal protection rights by impermissibly delegating power over who may advertise as a specialist to the ADA, a private organization comprised of members in competition with [them] and with a direct financial stake. . .” Also, plaintiffs complained that even when dentists had received training and certification in areas of dentistry represented by the organizational plaintiffs, Texas rules restricted them from “expressing or implying a specialization in these disciplines because they are not ADA-recognized specialties.” 

On Jan. 21, 2016, the U.S. District Court for the Western District of Texas ruled that dentists in Texas had the right to let patients know their practice specialty. Furthermore, the District Court prohibited the Texas State Board of Dental Examiners from enforcing the regulatory restriction. The District Court’s decision was appealed. 

Ruling

On June 19, the Fifth Circuit upheld the District Court’s ruling that the restriction against advertising as specialists violated the First Amendment right to free commercial speech for individual dentists and dental associations.

In the Fifth Circuit’s opinion, the court stated that for commercial speech to be protected under the First Amendment, it “must concern lawful activity and not be misleading.” In this case, all parties agree that advertising as a “specialist in the fields of implant dentistry, dental anesthesiology, oral medicine and orofacial pain” is lawful. As a result, the issue before the Fifth Circuit was whether the term specialist was “devoid of intrinsic meaning,” and thus inherently misleading as used by the plaintiffs. The term “specialist,” the court found, “conveys a degree of expertise or advanced ability” and its use was not misleading. 

Impact 

The following is the result of the decision by the Fifth Circuit:

  • Right to advertise as specialist: Dentists in Texas have the right to let patients know their practice specialty as a result of the Fifth Circuit’s opinion. Dentists who have earned board certification from the certifying board sponsored by the AAID or those of the plaintiff’s organizations may advertise that they are specialists in Texas. 
  • Recognized as specialist by jurisdiction: The ADA House of Delegates, during its 2016 annual meeting in Denver, passed Resolution 65, which conforms to the District Court’s ruling that specialists should be able to practice outside their announced specialties if educationally qualified and recognized as a specialist—either adopted by the ADA or accepted in the jurisdiction in which they practice.

[1] This case involves several plaintiffs. The organizational plaintiffs include the American Academy of Implant Dentistry, the American Society of Dental Anesthesiologists, the American Academy of Oral Medicine, and the American Academy of Orofacial Pain. The individual plaintiffs include five dentists, three of whom are in private practice and two of whom are professors at the University of Texas Health Science Center [at San Antonio] School of Dentistry. The individual plaintiffs limit their practice to one of the following practice areas: implant dentistry, dental anesthesiology, oral medicine, and orofacial pain.

Duggan Dental