Health Promotion Specialists, LLC v. S.C. Bd. of Dentistry

• Decision Date: 12 June 2013
• Docket Number: No. 27263.,27263.
• Parties: HEALTH PROMOTION SPECIALISTS, LLC, and Palmetto Dental Care, LLC, Plaintiffs, of which Health Promotion Specialists, LLC, is Appellant, v. SOUTH CAROLINA BOARD OF DENTISTRY, Respondent. Appellate Case No. 2011–200626.
• Court: South Carolina Supreme Court

403 S.C. 623

743 S.E.2d 808

HEALTH PROMOTION SPECIALISTS, LLC, and Palmetto Dental Care, LLC, Plaintiffs,of which Health Promotion Specialists, LLC, is Appellant,

v. SOUTH CAROLINA BOARD OF DENTISTRY, Respondent.Appellate Case No. 2011–200626.

No. 27263.

Supreme Court of South Carolina.

Heard May 1, 2013.

Decided June 12, 2013.

Desa Allen Ballard and Stephanie Nichole Weissenstein of Ballard Watson Weissenstein, of West Columbia, for Appellant.

Andrew F. Lindemann, Kenneth P. Woodington, and William H. Davidson, II, of Davidson & Lindemann, PA, of Columbia, for Respondent.

Justice BEATTY.

Health Promotion Specialists, L.L.C. (Health Promotion), a corporation employing dental hygienists that contract with supervising dentists, brought suit against the South Carolina Board of Dentistry (the Board) ¹ based on the Board's enactment and enforcement of an emergency regulation addressing the authorization required for certain procedures performed by dental hygienists in school settings. Health Promotion appeals the circuit court's order granting summary judgment in favor of the Board. Health Promotion contends the circuit court erred in: (1) concluding the Board is immune from suit pursuant to the South Carolina Tort Claims Act (TCA) ² ; (2) finding Health Promotion could not sustain a cause of action for violation of the South Carolina Unfair Trade Practices Act (SCUTPA) ³ as the Board is not a “person” and its actions were not within “trade or commerce” for the purposes of the SCUTPA; and (3) denying Health Promotion's motion to amend its Complaint. This Court certified this appeal from the Court of Appeals pursuant to Rule 204(b), SCACR. We affirm as we find the Board proved as a matter of law that it is entitled to immunity from suit.

I. Factual/Procedural History

In 1988, the General Assembly amended the Dental Practice Act (DPA) ⁴ to authorize, subject to certain restrictions, dental hygienists to provide various oral health services in public settings, including schools. Act No. 439, 1988 S.C. Acts 2921. Section 40–15–80 of this legislation authorized dental hygienists to apply topical fluoride and perform oral screenings in a school setting “without the presence of a dentist on the premises.” S.C.Code Ann. § 40–15–80(B) (2001). The 1988 law permitted dental hygienists to apply sealants and oral prophylaxis in a school setting, but only if the following conditions were met: (1) the student had written permission from a parent or guardian; (2) a licensed dentist authorized the treatments; (3) the student was not an active patient of another dentist; and (4) the authorizing dentist had examined the student's teeth and given written authorization within 45 days before application of the sealant or oral prophylaxis. Id. § 40–15–80(C).

In 2000, the General Assembly amended the DPA to impose fewer restrictions on dental hygienists to perform preventive dental services in schools. Act No. 298, 2000 S.C. Acts 2088. As amended, the DPA authorized dental hygienists to perform oral prophylaxis and to apply sealants and topical fluoride in schools under a dentist's “general supervision,” which was defined to mean that a licensed dentist or a state public health dentist “authorized the procedures to be performed but does not require that a dentist be present when the procedures are performed.” S.C.Code Ann. §§ 40–15–80(B), –85(B) (2001 & Supp.2002). ⁵ Thus, other than the parental-consent requirement, the 2000 amendments did not preserve the requirements set forth in the prior version of section 40–15–80(C)(3), specifically the 45–day dentist pre-examination requirement.

In signing the 2000 amendments, Governor Jim Hodges issued a statement that the “new law removes a regulation that hindered access to dental care” and noted that it would “allow[ ] dental hygienists to offer preventative dental care in places such as schools ... [where] [d]entists rarely practice full-time.”

In January 2001, Health Promotion began providing cleanings, sealants, topical fluoride treatments, and other preventive dental hygiene services onsite to children in South Carolina schools. As a result, Health Promotion established working relationships with twenty-one school districts in South Carolina. According to its records, Health Promotion had screened over 19,000 children and had provided services to over 4,000, of whom almost 3,000 were Medicaid-eligible.

On July 13, 2001, the Board promulgated Emergency Regulation 39–18, to “clarify” the authorization required for dental hygienists to administer care in school settings. The Emergency Regulation stated in relevant part:

(A) A clinical examination must be conducted by the supervising dentist for each patient not more than forty-five (45) days prior to the date the dental hygienist is to perform the procedure for the patient.

Emergency Regulation 39–18, State Register, Vol. 25, Issue No. 7 (July 27, 2001). Upon approval of the Board, the Emergency Regulation was put into effect and was to expire in January 2002, 180 days after it was promulgated. ⁶

Immediately thereafter, Health Promotion sought a temporary restraining order to prohibit the Board from enforcing the Emergency Regulation.⁷ Additionally, Health Promotion sought damages as it contended the enactment of the Emergency Regulation would effectively force it out of business.

By order dated August 21, 2001, Special Circuit Court Judge Joseph M. Strickland denied the motion on the grounds that: (1) Health Promotion failed to exhaust its administrative remedies; and (2) the Board acted within “its power and authority as conferred by statute” to promulgate the Emergency Regulation, which reasonably clarified the term “general supervision” in the 2000 amendment to include a pre-examination by a licensed dentist. Judge Strickland further determined that Health Promotion failed to establish any irreparable harm for which there was not an adequate remedy at law as it had alleged “lost business from eleven school districts that would have resulted in revenue of five million ($5,000,000.00) dollars.” On appeal, the Court of Appeals affirmed the decision solely on the ground that Health Promotion failed to exhaust its administrative remedies. Health Promotion Specialists, L.L.C. v. S.C. Bd. of Dentistry, Op. No. 2003–UP–232 (S.C. Ct.App. filed Mar. 26, 2003).

On August 24, 2001, the Board published a proposed permanent regulation that was essentially identical to the Emergency Regulation. As required by statute, ⁸ an Administrative Law Judge held a public hearing to determine the “need and reasonableness” of the proposed regulation.

On February 11, 2002, Administrative Law Judge Marvin Kittrell issued a report wherein he concluded that “the proposed regulation, as written, is unreasonable to the extent that it reinstates a requirement the legislature purposely eliminated when enacting 2000 S.C. Acts 298.” In so ruling, Judge Kittrell effectively found the proposed regulation contravened the legislature's intent, in amending section 40–15–80 in 2000, “to provide for quicker and more accessible dental care to be given to these low-income children and adults.” Ultimately, the Board elected not to submit the proposed permanent regulation to the General Assembly.

In June 2003, the General Assembly again amended the DPA to clarify the permissibility of certain acts by dental hygienists in public health school settings. Act No. 45, 2003 S.C. Acts 210–15. As amended, dental hygienists were authorized to provide preventive dental care in certain public health settings without a requirement for pre-examination by a dentist. S.C.Code Ann. § 40–15–102(D), –110(A)(10) (2011).

On September 12, 2003, the Federal Trade Commission (FTC) instituted an administrative complaint against the Board alleging the Board violated Section 5 of the Federal Trade Commission Act by “restrain[ing] competition in the provision of preventive dental care services by unreasonably restricting the delivery of dental cleanings, sealants, and topical fluoride treatments in school settings by licensed dental hygienists.”

After protracted adjudicative and appellate proceedings, the FTC issued a Consent Agreement on September 6, 2007. The Consent Agreement mandated that the Board submit written notice to the FTC thirty days prior to any action of the Board “relating to the provision by dental hygienists of preventive dental services in a public setting.” The Consent Agreement was for “settlement purposes only” and did not constitute an admission by the Board as to the law or facts alleged in the FTC Complaint.

During the pendency of the adjudication of the FTC complaint, Health Promotion filed a case in federal court essentially based on the same facts as the state court action.⁹ By agreement of the parties, the state court action was stayed pending the outcome of the federal court case. Ultimately, the Board was dismissed from the federal case and the remaining parties reached a settlement. On November 1, 2007, the state court case was restored to the Richland County circuit court docket with Health Promotion and the Board as the remaining parties.

Subsequently, Health Promotion moved to amend its Complaint to include a claim alleging the Board conspired to violate the SCUTPA. The Board renewed its previously filed motion to dismiss and filed a motion for summary judgment. In its motion, the Board maintained it was entitled to summary judgment primarily based on the following grounds: (1) it was immune from suit pursuant to the TCA as well as common law legislative and quasi-legislative immunity; (2) Health Promotion could not maintain a cause of action under the SCUTPA; and (3) Health Promotion's claim for injunctive relief was moot.

After a hearing, Circuit Court Judge William P. Keesley issued an order granting summary judgment in favor of the Board. In so ruling, Judge Keesley found: (1) Health Promotion could not maintain a cause of action for violation of the...