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Texas court ruling allows non-ADA-recognized specialty dentists to advertise as ‘specialists’

January 26, 2016

Dentists who don’t practice one of the nine specialties recognized by the ADA may still advertise as “specialists” in Texas if they meet certain conditions, according to a Jan. 21 ruling by the U.S. District Court for the Western District of Texas, the ADA Division of Legal Affairs reported.

In ruling for the plaintiff dental organizations, the court interpreted the Texas Dental Board’s advertising regulations as permitting use of the term “specialty” and “specialist” only in connection with one of the ADA recognized specialties. The court held that the restriction violates the First Amendment rights of dentists who have earned credentials in other dental practice areas from competent, bona fide credentialing boards.

The court found that the dental board failed to show any compelling state interest in limiting dental specialty areas to those designated by the ADA.

In addition, the court observed that the specialty advertising rule was enforced by the Board without the Board ever considering “whether the non-ADA-recognized fields are actually bona fide and meet standards of minimum competency.” According to the court, this creates confusion and may even ban truthful claims from being made because “Texas dentists may specialize in non-ADA-recognized fields, they are just prohibited from saying so.”

The court rejected the plaintiffs dental organizations’ claims that the board had violated their rights under the 14th amendment, noting that the record contained virtually no evidence that plaintiffs had been denied equal protection under the law or that they had been denied due process.

The court’s disposition of this case occurred at the pre-trial phase in response to motions for summary judgment brought by the respective sides. To obtain summary judgment, a party must show that the pleadings, and any affidavits and other evidence of record at the time the motion is made, clearly demonstrates that “there is no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law.”

The plaintiffs in the case are the American Academy of Implant Dentistry, American Society of Dental Anesthesiologists, American Academy of Oral Medicine and the American Academy of Orofacial Pain. The original defendants in the case are the executive director of the Texas State Board of Dental Examiners and the Board’s members. After the case was filed, the Texas Society of Oral and Maxillofacial Surgeons was granted leave by the court to join the case as a defendant.

There is a significant question as to whether the board’s advertising regulation is really as restrictive as the court interpreted it to be. It does not appear, however, that the board challenged the court’s narrow interpretation.

At this time, it is not known whether the Board will appeal the decision.

The nine ADA-recognized dental specialties are: dental public health; endodontics; oral and maxillofacial pathology; oral and maxillofacial radiology; oral and maxillofacial surgery; orthodontics and dentofacial orthopedics; pediatric dentistry; periodontics; and prosthodontics.