Pennsylvania Dental Hygienists' Ass'n v. State Board of Dentistry

672 A.2d 414, 1996 Pa. Commw. LEXIS 78
CourtCommonwealth Court of Pennsylvania
DecidedMarch 1, 1996
StatusPublished
Cited by14 cases

This text of 672 A.2d 414 (Pennsylvania Dental Hygienists' Ass'n v. State Board of Dentistry) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennsylvania Dental Hygienists' Ass'n v. State Board of Dentistry, 672 A.2d 414, 1996 Pa. Commw. LEXIS 78 (Pa. Ct. App. 1996).

Opinion

NARICK, Senior Judge.

The State Board of Dentistiy and its Chairman, Edwin F. Weaver, III (collectively, Board) has filed preliminary objections to the petition for review filed by the Pennsylvania Dental Hygienists’ Association, its individual members and others (collectively, Association) seeking a declaratory judgment and injunctive relief. We sustain the preliminary objections and dismiss the petition for review.

On June 24, 1995, the Board enacted new regulations amending, inter alia, provisions governing dental hygienists. Under Sections 33.1, 33.205, and 33.302 of the new regulations, 49 Pa.Code §§ 33.1, 33.205 and 33.302, dental hygienists may perform dental hygiene services under either direct supervision1 or general supervision2 of dentists, [416]*416depending on (1) the kinds of services provided; (2) the patients’ medical conditions to be determined utilizing ASA (American Society of Anesthesiologists) Classifications;3 and (3) the location of the dental hygienists’ practice sites, i.e., at dental facilities, at public or private institutions such as schools, hospitals, or nursing homes, or at institutions under the jurisdiction of federal, state or local health agencies. In addition, dental hygienists may perform radiologic procedures only under the direct supervision of dentists. 49 Pa.Code § 302.

On August 4, 1995, the Association filed the petition for review in this Court’s original jurisdiction, challenging the validity of 49 Pa.Code §§ 33.1, 33.205 and 33.302. The Association alleged that the new regulations, which drastically changed the scope of the dental hygienists’ practice, are invalid due to defects in the rulemaking process, including violations of the Sunshine Act,4 the Commonwealth Documents Law,5 and the Regulatory Review Act.6 The Association further alleged that the Board exceeded its rulemak-ing authority granted by The Dental Law,7 that the Board improperly delegated its regulatory authority to the ASA, and that the regulations are too vague and violate its constitutional right to equal protection and due process. The Association requested that this Court declare the regulations invalid and enjoin the Board from enforcing them.8

Subsequently, the Board filed preliminary objections to the petition for review raising lack of this Court’s original jurisdiction over this matter, untimeliness of the challenge to the procedural defects of the regulations, failure to exhaust administrative remedies and failure to state a cause of action. In ruling on preliminary objections, all well-pleaded facts in the petition for review and all inferences reasonably deducible therefrom must be accepted as true. Pennsylvania Association of Rehabilitation Facilities v. Foster, 147 Pa.Cmwlth. 487, 608 A.2d 613 (1992).

The Board first contends that the Association’s action seeking pre-enforcement review of the newly enacted regulations is premature and not ripe for this Court’s decision in its original jurisdiction.

Generally, courts are reluctant to grant a declaratory judgment and injunctive remedies against administrative agencies, unless the controversy is ripe for judicial resolution. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The rationale behind the ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Id. at 148-49, 87 S.Ct. at 1515.

Accordingly, this Court must refrain from exercising its original equitable jurisdiction to consider a pre-enforcement challenge to the validity of an administrative agency’s regulations when there exists an adequate statutory remedy. Arsenal Coal Co. v. Department of Environmental Resources, 505 Pa. 198, 477 A.2d 1333 (1984). A statutory review process of an agency following its application and enforcement of the regulations constitutes adequate remedy for the purpose of determining the propriety of [417]*417this Court’s exercise of its original jurisdiction, if the effect of the challenged regulations upon the industry regulated is not direct and immediate. Id.

Under Section 2 of The Dental Law, the Board is authorized to “issue rules ... defining the procedures that may be performed by dental hygienists ... including those procedures that may be performed under direct and general supervision.” 63 P.S. § 121(f). The Board has powers and authorities to, inter alia, investigate, conduct hearings, discipline and prosecute those guilty of illegal practices, and administer and enforce the laws relating to the practice of dentistry and dental hygienists. Section 3 of The Dental Law, 63 P.S. § 122. Additionally, in the proceedings initiated to enforce its regulations the Board has ancillary jurisdiction to rule on the validity of the regulations, pursuant to Section 703(a) of the Administrative Agency Law, 2 Pa.C.S. § 703(a). Arsenal Coal; Foster.

The Board contends that such statutory post-enforcement remedies are adequate because the Association’s allegations in the petition for review do not establish direct and immediate impact of the regulations upon dental hygienists.

The Association alleged in the petition for review that: (1) the regulations are self-executing and cause dental hygienists to alter their practice and cancel their services; (2) it will experience ongoing uncertainty in the day-to-day operations of dental care; (3) dental hygienists will suffer significant income reduction or in certain cases be unemployed; (4) there will be additional costs for dental hygiene care; (5) the availability of dental hygienists’ services will be reduced; and (6) piecemeal disciplinary actions are inadequate to address its challenge to the regulations. The Association argues that these allegations are sufficient to establish direct and immediate harm under Arsenal Coal and Rouse & Associates v. Pennsylvania Environmental Quality Board, 164 Pa.Cmwlth. 326, 642 A.2d 642 (1994).

In Arsenal Coal, the anthracite coal mine operators alleged that under the regulations promulgated by the Environmental Quality Board, they would suffer ongoing uncertainty in the day-to-day business operations and would sustain substantial expenditure in order to comply with the regulations and impairment of the cash flow. The Pennsylvania Supreme Court held that those allegations were sufficient to establish direct and immediate harm.

In Rouse,

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672 A.2d 414, 1996 Pa. Commw. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-dental-hygienists-assn-v-state-board-of-dentistry-pacommwct-1996.