Dr. Frank Recker has provided an account of the case and his actions
Frank R. Recker, DDS, moc.w1777126864alsdd1777126864@rekc1777126864erDJ1777126864document.getElementById(“eeb-143636-171546”).innerHTML = eval(decodeURIComponent(“%27%4a%44%72%65%63%6b%65%72%40%64%64%73%6c%61%77%2e%63%6f%6d%27”))*protected email*
Recently, the IAO requested that I provide assistance to a credentialed member of the IAO who was being investigated by the Michigan Department of Licensing and Regulatory Affairs (LARA). The investigation focused on the member’s website and its contents related to orthodontic dental services. The advertisement also listed membership in, and credentials earned through, the IAO. The regulatory investigation had been ongoing, and involved a LARA investigator personally directing deletions and amendments to the dentist’s website. This was facially unusual in that I have never seen any dental board investigator take such a ‘hands on’ approach by personally screening and/or controlling dental advertisements. Even an experienced attorney needs to have a grasp on recent First Amendment case law to make such evaluations.
On behalf of the IAO, I consulted with the member and advised that the situation was verging on, or possibly already constituted, a violation of her civil rights relating to First Amendment protections for commercial free speech. She had already endured several months of ‘scrutiny’ and directives from the LARA investigator, with no end in sight. She had also amended her website at the direction of the investigator on several occasions. The IAO member was instructed to place an asterisk (*) after each time the word ‘orthodontics’ appeared, directing the reader to the disclaimer ‘Dr. X is not a licensed specialist in orthodontics.’ Additionally, the investigator directed that each time ‘IAO’ appeared it must have a similar asterisk and disclosure since the word ‘orthodontics’ was used in the organization’s name!
Dr. X had consulted with her dental malpractice carrier attorney who advised her to change her ads as directed by the investigator. Clearly this ‘legal’ advice indicated no experience in the everyday application of First Amendment case law and no willingness to fight for a dental insured. Even worse, the insurance company attorney also refused to discuss the matter with me, allegedly ‘fearing’ an ethical violation for speaking with another attorney who was not admitted to practice law in Michigan! (Memo: Never blindly accept the advice of an insurance carrier retained malpractice attorney on any non-malpractice related issue.)
With the dentist’s permission and the support of the IAO, I made contact with LARA. In noting my concerns and objections to this ongoing ‘inquiry,’ I also pointed out that I had obtained a document from LARA that indicated their communication with the Michigan Association of Orthodontists (MAO). Indeed, the MAO website has a link to file complaints against ‘general dentists’ relative to advertising. The link directs them to a representative of their governmental lobbying firm: “All advertising complaints should be emailed to moc.m1777126864rifad1777126864k@tta1777126864m1777126864document.getElementById(“eeb-579083-155138”).innerHTML = eval(decodeURIComponent(“%27%6d%61%74%74%40%6b%64%61%66%69%72%6d%2e%63%6f%6d%27”))*protected email*.”
In my communication to LARA, I further pointed out the First Amendment issues at hand, and a potential antitrust scenario if the Board of Dentistry or LARA was working in concert with the MAO to inhibit or ‘chill’ the rights of the IAO member for anticompetitive reasons. I also offered to have the issue decided by the federal court in Lansing if they disagreed with my assertions.
The dentist had no further contact from the LARA investigator after my letter was sent. But, after several months had elapsed, it seemed that there would be no written response to, or acknowledgement of, my letter. Then, just recently, I received a response from the LARA authorities, indicating that there had been no violation of the dental practice act and that the Dental Board had closed the case.
This situation, to which the IAO had rapidly responded on behalf of its member, illustrates how dentists can be intimidated and threatened by competitive groups or outside interests. Although the American Association of Orthodontists (AAO) has recently created its own legal fund for ‘lobbying’ purposes, it is unconscionable that any trade association would even appear to have such influence or control over a state regulatory agency.
In short, I applaud the IAO for supporting both its own name and the constitutional rights of its members. Only by confronting and challenging such actions can dental boards be dissuaded from acting at the behest of outside influences, to the potential detriment of the constitutionally protected property interest in a member’s dental license.
