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Dental case appears in Alaska Law Review

by Rhonda McBride
Monday, July 2, 2007

ANCHORAGE, Alaska -- The Alaska Law Review is actually published in North Carolina at Duke University. One of its editors has never been to Alaska, but is intrigued by Alaska's dental therapy debate and its national implications.    

A June 15 debate in an Alaska courtroom was one that's being watched across the nation. It is also summarized in the June's issue of the Alaska Law Review in a piece written by a Duke University School of Law graduate.

Alaska Dental Society attorney Thomas Van Flein argued against the therapist program.

"Let's get better health care to those communities. Better health care on the reservations. Better health care in rural Alaska. Not worse care, or unlicensed care," Van Flein said.

Anchorage Superior Court Judge Mark Rindner disagreed with Van Flein's assessment.

"I'm not sure you can equate the fact of what's going on in this system to worse care," Rindner said.

Alaska Law Review Editor Erik Smith believes competition is at the root of the controversy.

"Because dentists don't really have much competition, whereas you do see doctors with a lot of competition. Because this happened in Alaska is amazing. It's something that would never happen anywhere else," Smith said.

That's because dentists, as a profession, have a tight grip on who can practice. But the Alaska Native Tribal Health Consortium, through its unique federal status, bypassed state regulation and licensing to use dental health aide therapists. The therapists, or d-hats, were trained in New Zealand to perform basic procedures that in the past had only been performed by dentists.

They are extreme measures for extreme need. In rural Alaska, 68 percent of children between 2 and 5 years old have untreated tooth decay. In the general population of the U.S., the average rate of untreated tooth decay is 19 percent.  

Native health groups said it would take an army of dentists to win the battle against dental disease, so Congress gave them the authority to use dental aides.

"You know, are we going to allow people to do open heart surgery, because there's not enough cardiac surgeons in Bethel? The state has drawn a line and said you have to meet certain provisions," Van Flein said.

Rindner did not agree with Van Flein's arguments and ruled that federal law preempts the need for state regulation.

"It's just a matter of time before a d-hat will find out it wasn't a simple extraction," Van Flein said.  

The Alaska Dental Society and the American Dental Association have argued all along that their primary goal in suing the therapists is to protect the public.

"This isn't that type of case, where somebody can fix the problem writing a check. It came down to a very principled decision here and both sides have their principles," Van Flein said.

Principles that the Duke University analysis said may be more about the marketplace and fear of competition.

"Because dental therapists are now present in Alaska, it's conceivable that they could spread to the rest of the United States and provide dental care to many people in need," Smith said.

Van Flein said that's not the case.

"The concept of self interest in this case is a fallacy," Van Flein said.  

Urban dentists say they would never compete for business in the Bush anyway. Their main concern is an erosion of standards.    

Longtime Alaska dentists like Dr. Bill Theobald have worked in the Bush and know the risks.

"It took me four years of college, four years of dental school, two years in a residence and a whole lot of experience to get to where I am now, Theobald said. "The technical part of dentistry can be taught to anyone. But, the artistic part -- knowing what to do when something doesn't happen -- this is what I question."

Alaska Native Tribal Health Consortium attorney Marissa Flannery said the old regulations prevented some people from getting care.

"It seems to be that they've made the standard so high, that for the public, you have a choice between getting the Cadillac version of care, or no care at all," Flannery said.      

As for Smith's opinion, Van Flein doesn't think very much of it.

"I've written several myself. It's the opinion and recommendations, in this case, I think of a student," Van Flein said.    

But proponents of dental therapy said the article makes an important point: Alaska's program has broken the monopoly on dental care and may lead the way to more consumer choice.

"At the very least, they'll force the ADA and dentists to look at better solutions to give care to underserved populations. So, the rest of the U.S. is going to benefit from this in some way," Smith said.

For now, the practice is limited to Alaska and to Native patients and a judge has ruled their work can continue without state interference.

The ADS and the ADA said they're weighing their options, one of which might be appealing last week's ruling.

Contact Rhonda McBride at rmcbride@ktuu.com