Supreme Court Scrutinizes Dentist Regulating Dentists - Ruling Could Affect Other Regulatory Boards

Wednesday, October 22, 2014
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The United States Supreme Court is currently hearing arguments in North Carolina Board of Dental Examiners v. Federal Trade Commission. The justices will determine whether professional regulatory boards should be exempt from federal antitrust laws and thus be allowed to eliminate low-cost competitors. This case will also decide whether U.S. states can delegate the regulation of professionals, such as dentists and physicians, to boards of practitioners drawn from those occupations. This is an interesting case for professional regulatory boards across the nation should watch, due to the possible widespread implications. On October 14, 2014, the U.S. Supreme Court justices offered a few hints into how they may rule.

Click here to read the FTC's complaint.


Details of the Case.

The North Carolina Dental Board (The Board), oversees the practice of dentistry in North Carolina and is almost entirely composed of practicing professionals. The Board is elected by practicing peers and holds the authority to grant dental licenses and discipline against North Carolina dentists. Nationally, it is common for states to establish regulatory boards consisting of members of the profession being regulated.

In this case, the Board stated it was immune to antitrust laws as a defense to a Federal Trade Commission (FTC) complaint regarding the Board's efforts to block non-dentists from offering teeth-whitening services at a significantly lower price. The Board is accused of sending cease-and-desist letters to the non-dentists providing teeth whitening services. In response, most unlicensed providers stopped offering the services.

The FTC believes the Board's actions were an illegal suppression of competition. The FTC said the Board should not be immune from antitrust laws because North Carolina does not actively supervise The Board's actions. However, the Board states it is acting as a state regulatory body to ensure patient safety.

In 2011, the 4th U.S. Circuit Court of Appeals found that the Board did not qualify for immunity under antitrust laws. The 4th Circuit came to this decision by pointing out that the Board was elected by the same individuals likely to benefit from reduced competition. The state of North Carolina does not have a roll in the oversight or appointment of the Board members. Therefore, 4th Circuit held that the Board was a private actor, selected by market participants to protect their own interests.


Supreme Court Insinuates Decision.

According to Modern Healthcare, some of the Supreme Court justices hinted they may agree with the court of appeals decision. Justice Ruth Bader Ginsburg asked, "Why should there be an antitrust exemption for conduct that is not authorized by state law?" Justice Sonia Sotomayor also contemplated what about the state's treatment of the Board should make it exempt from antitrust laws. The justices are also pondering whether or not allowing practicing dentists to be members of the Board creates a conflict of interest. Click here to read the entire article on Modern Healthcare.


Future Implications for Regulatory Boards.


The Supreme Court will decide whether these regulatory boards are state or private actors. This ruling will be significant to the healthcare field, since all 50 states require physicians on their medical board and dentists on their dentistry boards. It is important to note that not all states follow North Carolina's appointment process for physicians and dentists.

If the Supreme Court believes such boards are private actors, the Court may use this as a chance to suggest to courts and state legislatures how to structure oversight to avoid antitrust scrutiny of state-authorized private actors.

The Supreme Court could rule actions by state agencies are exempt from antitrust laws as long as the state has a clearly articulated anti-competitive policy. Or it could rule that such board actions are only exempt if they're actively supervised by that state. I will continue to follow this case. Check our blog regularly for updates.


Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Board of Dentistry and other types of investigations of health professionals and providers.

Our firm also routinely represents physicians, dentists, orthodontists, medical groups, clinics, pharmacies, home health care agencies, nursing homes and other health care providers in AHCA investigations, audits and recovery actions, as well as Medicare and Medicaid investigations, audits and recovery actions.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


Comments?

What are your thoughts on this case? How do you think more supervision by the state would affect your practice? Please leave any thoughtful comments below.

Sources:

Schencker, Lisa. "Dental Board Case Could Have Wide Implications for Medical Regulatory Boards." Modern Healthcare. (October 16, 2014). From: http://www.modernhealthcare.com/article/20141016/NEWS/310169935/

Dalesio, Emery. "US Supreme Court to Hear Case Over Filling State Boards With Those Who Regulate Own Occupation." Star Tribune. (October 13, 2014). From: http://www.startribune.com/lifestyle/health/279014191.html

United States of America Before the Federal Trade Commission in the Matter of The North Carolina Board of Dental Examiners. Docket No. 9343. Complaint. (February 17, 2011). From: http://www.ftc.gov/sites/default/files/documents/cases/2010/06/100617dentalexamcmpt.pdf


About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.


Tag Words: Supreme Court, North Carolina dental regulatory board, Board of Dentistry, dentist, Board of Dental Examiners, Federal Trade Commission, FTC, teeth whitening services, teeth whitening, federal appeals, administrative law judge, ALJ, American Medical Association, suppression of competition, illegal suppression of competition, state board of medicine, state board of dentistry, non-dentist, American Dental Association, Federation of State Medical Boards, North Carolina Board of Dental Examiners v. FTC, federal antitrust laws, defense attorney, defense lawyer, dentist attorney, dentist lawyer, health law firm. The Health Law Firm



 
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George F. Indest III 10/22/2014

Comments:

Response to: Supreme Court Scrutinizes Dentist Regulating Dentists - Ruling Could Affect Other Regulatory Boards
Tuesday, November 11, 2014
DR PETER L SCHAEFER DDS says:

would like to review a dental problem with NLRB I fired my dental assistant at the recommendation of the OHIO DENTAL BOARD INSPECTOR suggestion and i filed the charge and the patient gave the details which did not match those of the employee OF COURSE THAT WOULD BE SELF INCRIMINATING AND TELLING THE TRUTH. WHILE WAITING ONE OF THE EMPLyOEE HUSBAND WHO IS REPRESENTATIVE OF A UNION GOT THE NLRB TO FILE A charge AGAINST MY COMPANY for concerted effort to not allow the employees to form a union or speak of wages which was the first i heard of it , The says i owe back wages and have to admit to a list of staements which would make me perjure myself as well. The NLRB own exceptions disqualify me and the employee because of sabatoge in the practice and criminal activity. I AM WAITING TO SEE IF ONE OF THEM IS CHARGED WITH PRACTICING DENTISTRY by the OHIO DENTAL BOARD and if their attorneys will along with the GOVERNOR KASIK try to protect me and possibly the from being undermined by the NLRB

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