Background
On June 11, two practicing Virginia dentists, Dr. Richard Archer and Dr. John L. Harris, filed a lawsuit against the Virginia Board of Dentistry challenging the state’s implementation of the Dentist and Dental Hygienist Compact legislation recently enacted by the Virginia General Assembly. On December 5, Judge McClenney ruled to dismiss the lawsuit. CSG is monitoring for any further activity from the Plaintiffs.
Summary of the Lawsuit
The complaint was based on a mistaken belief about the purpose, function, and practical application of the Compact. Particular concerns regarding state sovereignty, public protection, and compact governance are addressed below. The well-developed compact law in Virginia specifically affirms the constitutionality of the Dentist and Dental Hygienist Compact.
Unconstitutional Delegation of Legislative Authority
Claim: The Plaintiffs allege that by enacting the Compact, the Virginia legislature has unconstitutionally delegated and divested itself of legislative power.
Fact: The Compact establishes the necessary policies and standards by authorizing the Commission to promulgate rules to “implement and administer the purposes and provisions of this Compact”. The Commission has no power to legislate, but only implement and administer the compact. Moreover, the use of compacts and multistate commissions has been well-tested and endorsed by courts throughout history and across the country, as well as Virginia specifically.
Fees and Assessments
Claim: The Plaintiffs argue that the Compact’s authorization of the Commission to “levy on and collect an annual assessment from each participating state” violates constitutional limits on the expenditure of funds without legislative appropriation.
Fact: Importantly, the Compact does not serve as an open-ended or unlimited appropriation of funds by the legislature towards the Commission; it merely affords the Commission the ability to assess fees or dues against the Participating States to fund the function of the Commission, including its Data System. Historically, any commission fees are paid, not by the legislature’s general fund, but by the state board/agency of jurisdiction.
Reduce Authority of State Dental Boards/Public Protection
Claim: The Plaintiffs suggest that the Compact would strip state licensing authorities of their regulatory powers.
Fact: The Compact in fact explicitly preserves the ability of each State Licensing Authority to police the conduct of all practitioners practicing in their State. Existing state regulators will surrender none of their oversight authority and would remain fully empowered to sanction any licensee in their State—whether that person practices under a Compact Privilege or otherwise.
The standards of a practitioner’s conduct will be governed by the laws of the state where they are practicing, regardless of whether that licensee is practicing under a qualifying license or under a compact privilege. Section 4.C specifically requires licensees to comply with the scope of practice applicable in that state.
Section 4.D. of the Compact provides that a Licensee practicing pursuant to a Compact Privilege in a Remote State is subject to that state’s regulatory authority and that said state, in accordance with its own laws and due process, may revoke or remove a compact privilege for a period of time, impose fines and take other necessary action to protect the health and safety of its citizens.
While an individual licensee who holds a Qualifying License in one state may be entitled to practice under a compact privilege in another state, that professional would remain subject to the oversight of the licensing authority in the state where they are practicing. Under the Compact every Participating State retains the full power and discretion to encumber or revoke any licensee’s compact privilege to practice in that state, regardless of that licensee’s qualifications elsewhere.
Participating states are also empowered to take adverse action against a licensee for conduct that occurred in another state. Section 4.D., which requires a Licensee practicing in a Remote State under a Compact Privilege to comply with and be subject to the Licensing Authority in the Remote State, goes on to authorize a Remote State to take Adverse Action against a Licensee’s Compact Privilege to practice in that State, up to and including a full revocation of the Licensee’s Compact Privilege.
In fact, the Compact goes on to provide that when any Remote State “imposes an Adverse Action against a Compact Privilege that limits the Compact Privilege, that Adverse Action applies to all Compact Privileges in all Remote States.” Under this language, any Remote State can prevent a Licensee from practicing in all Remote States. Far from limiting the authority of state regulators, this language significantly increases their power.
Minimum Qualifications and Professional Standards
Claim: The compact will allow unqualified dentists and dental hygienists to practice in Virginia, thus impacting the quality of dental care in Virginia.
Fact: The Compact includes minimum professional qualifications that must be adopted by every participating state before they join. This includes CODA accredited education, passage of the national board exams and completion of a clinical assessment. While Virginia will be required to grant a Compact Privilege to a practitioner that has potentially qualified under a different clinical test, that is a determination of competency made by the legislature of Virginia as a proper exercise of its police powers. There is no evidence to show that taking a hand skills examination improves the quality of the dental care provided by that licensee.
What’s Next?
The Dentist and Dental Hygienist Compact has been enacted by states: Colorado, Iowa, Kansas, Maine, Minnesota, Ohio, Tennessee, Virginia, Washington and Wisconsin. The Compact Commission held its initial meeting in August and will convene again in January 2025. CSG expects the compact to become operational within the next 12-18 months.