Forsyth School For Dental Hygienists v. Board of Registration in Dentistry

• Citation: 404 Mass. 211,534 N.E.2d 773
• Parties: , 51 Ed. Law Rep. 1337 FORSYTH SCHOOL FOR DENTAL HYGIENISTS v. BOARD OF REGISTRATION IN DENTISTRY.
• Decision Date: 02 March 1989
• Court: United States State Supreme Judicial Court of Massachusetts

Page 773

534 N.E.2d 773

404 Mass. 211, 51 Ed. Law Rep. 1337

FORSYTH SCHOOL FOR DENTAL HYGIENISTS v. BOARD OF REGISTRATION IN DENTISTRY.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 9, 1988.

Decided March 2, 1989.

Ronald F. Kehoe (Ronald R. Cloutier, Boston, and Antoinette D. Hubbard, Malden, with him) for plaintiff.

Alice E. Moore, Asst. Atty. Gen., for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

The plaintiff, Forsyth School for Dental Hygienists (school), appeals from a judgment of a Superior Court judge dismissing its complaint against the Board of Registration in Dentistry (board). The school petitioned the board pursuant to G.L. c. 112, § 51 (1986 ed.), for permission to include in its curriculum a practical course on the administration of local anesthesia and nitrous oxide analgesia. The board denied the school's petition. The school then sought, and was denied, relief in the Superior Court. The school appealed and we transferred the case to this court on our own motion. We affirm.

The school is a private institution located in Boston, offering a two-year, post-high school course of study in dental hygiene. The school attracts students from many States and foreign countries, and its graduates seek employment throughout the country.

In May, 1984, the school petitioned the board for permission to teach a didactic and clinical course on the administration of local anesthesia and nitrous oxide analgesia. Such permission is necessary because, under G.L. c. 112, § 51, and the board's regulations adopted thereunder, a dentist may not delegate either of these procedures to a dental hygienist. See 234 Code Mass.Regs. § 2.04(c) (1986). The school petitioned the board pursuant to G.L. c. 112, § 51, fourth par., however, which provides that a school may petition for permission to teach such nondelegable duties.

With its petition, the school submitted a lengthy affidavit from Dr. Ralph R. Lobene, its dean and chief academic administrator. Dr. Lobene's affidavit described the proposed course of study and emphasized the measures that would assure the safety of the fellow students and clinical patients on whom the students would practice. Dr. Lobene also pointed out that the school had had a similar program from 1972 through 1974. In that program, there were a total of 19,849 anesthetizations by dental hygienists, with "not a single serious adverse effect on any patient participating."

Dr. Lobene's affidavit also set forth the reasons for seeking permission to teach such a course. According to Lobene's affidavit, California now requires that all dental hygienists be trained in the administration of local anesthesia and of nitrous oxide analgesia before they can qualify to sit for the registration examination in that State. The school felt itself ethically bound to pay for postgraduate courses for those students who wished to practice in California and had been unable to get the necessary training at the school. Dr. Lobene stated that twenty-four schools in thirteen States now offer courses in local anesthesia and nitrous oxide analgesia, despite the fact that in those States, as in Massachusetts, those tasks cannot be delegated to dental hygienists. Moreover, at least fifteen other States do permit the delegation of these functions. The school's motive in petitioning the board, thus, was to retain its competitiveness and its standing in its field.

The board met in June, 1984, to consider the school's petition. Before it were the affidavit of Dr. Lobene and an affidavit from Dr. Roland J. Miller, who would teach the proposed course. Dr. Stanley Cohen, president-elect of the Massachusetts Dental Society, and the legal counsel to the society spoke in opposition to the petition. Dr. Cohen testified to the dangers of local anesthesia, which include toxic or allergic reaction, fainting, infection, prolonged anesthesia and clotting; and of nitrous oxide analgesia, which is severe hypoxia, or inadequate oxygenation, resulting in loss of consciousness. Some of these complications can have irreversible effects, including death, if they are not treated on an emergency basis. The board voted the same day to deny the petition. The board did not detail its reasons for refusing permission, until after the school instituted this action.

In its complaint in the Superior Court, and on appeal, the school asserts that the board failed to accord it the adjudicatory proceeding to which it claims it was entitled under G.L. c. 30A, §§ 1 and 11, and that it is entitled to review under the standards of G.L. c. 30A, § 14. The school argues in the alternative that it is entitled to review under G.L. c. 249, § 4, and that the matter should be remanded to the board for a statement of reasons that would permit a reviewing court to ascertain whether the board's action was arbitrary or capricious.

1. The applicability of G.L. c. 30A. The school claims that the board's hearing, after which its petition was denied, was an "adjudicatory" proceeding. "Adjudicatory proceeding" is defined in G.L. c. 30A, § 1, as "a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing." If the proceeding is "adjudicatory," then it must comply with §§ 10 and 11. Further, such a proceeding would be reviewable under § 14. The Superior Court judge found, and the board does not dispute, that the board is an "agency" within the meaning of G.L. c. 30A, § 1. The school, of course, is a "specifically named person." The remaining question, thus, is whether the school has a constitutional or statutory right to have the board act on its petition only after an adjudicatory proceeding. The school asserts that both its right to engage in a lawful occupation and its right to freedom of speech are at stake, and that these constitutional rights require the protection of due process (i.e., an adjudicatory proceeding).

If the school has a "property" right in a favorable board decision, and is "entitled" to favorable action on its petition, it can claim a right to a hearing under the due process provisions of the Fourteenth Amendment to the United States Constitution, under arts. 10, 11, and 12 of the Declaration of Rights of the Constitution of the Commonwealth, and under G.L. c. 30A, §§ 1, 10, and 11. "[T]he right to engage in any lawful occupation is an aspect of the liberty and property interests protected by the substantive reach of the due process clause of the Fourteenth Amendment to the United States Constitution and analogous provisions of our State Constitution." Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing, 379 Mass. 368, 372, 398 N.E.2d 471 (1979).

The school's right to engage in a lawful calling, however, is not equivalent to a right to practice its calling free from State regulation. The State may regulate otherwise lawful occupations as long as the regulations have "a rational tendency to promote the safety, health, morals, and general welfare of the public." Milligan v. Board of Registration in Pharmacy, 348 Mass. 491, 498, 204 N.E.2d 504 (1965), S.C., 350 Mass. 246, 214 N.E.2d 63 (1966), quoting Opinion of the Justices, 322 Mass. 755, 760, 79 N.E.2d 883 (1948). See Blue Hills Cemetery, Inc., supra. General Laws c. 112, § 51, under which the board acted in the present case, enumerates the tasks that a dentist may delegate to a dental hygienist, and provides that an educational institution may apply to the board for permission to teach procedures that may not be delegated to hygienists under § 51. The regulations clearly have a rational relation to the promotion of safety and health, and the school does not challenge their general validity. Because the school was asking in effect for an exemption from the prohibition contained in G.L. c. 112, § 51, it could claim no entitlement. Therefore, the Superior Court judge correctly concluded that the board was not obliged to give the school a full adjudicatory hearing.

The two cases which the school cites in support of its claims for a hearing are distinguishable. In those two cases, applicants for professional licenses established the right to a fair administrative hearing with reasonable procedures and opportunity for judicial review because their right to practice their lawful occupation was in question. In Milligan, supra, a licensed pharmacologist was denied a permit to open a pharmacy at the location of his choice. In Marmer v. Board of Registration of Chiropractors, 358 Mass. 13, 260 N.E.2d 672 (1970), the applicant was denied a chiropractor's license after an allegedly unfair examination. At stake in each case was the "applicant's opportunity to engage at all in a particular occupation." Milligan, supra 348 Mass. at 496, 204 N.E.2d 504. In this case, the school will continue to operate as a school under the same regulations as all other such schools in the State. Thus, it has not been denied its right to engage in its occupation.

The school also argues that its right of free speech is implicated in the board's action and that this constitutional right triggers its right to a hearing and review under G.L. c. 30A. It is hardly tenable, however, that the board's action violated the school's free speech rights. The appropriate standard is the one enunciated in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In O'Brien, the Supreme Court stated that, where governmental regulation has an adverse effect on conduct consisting of both speech and nonspeech, the regulation "is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the...