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Keene

By Alicia Gallegos

AMNews staff
amednews correspondent — Posted Aug. 20, 2012

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Physicians are urging a U.S. appeals court to overturn a Federal Trade Commission ruling that doctors say strips medical boards of their right to regulate medicine.The appeal comes after a North Carolina dental board was found to have violated federal antitrust regulations by attempting to stop nondentists from operating teeth-whitening centers. The FTC said the board is not exempt from antitrust scrutiny because its members are private professionals who compete with others in the marketplace.
If the FTC decision stands, the ruling would significantly imperil state regulation of medicine and put the public's health at risk, doctors said.
"It would be disruptive to the proper regulation of medicine nationwide," said Stephen Keene, general counsel for the North Carolina Medical Society. "The notion of having government agency bureaucrats regulate a learned profession is not good for the public. There would be no meaningful oversight of practitioners to deliver safe medicine."
The case started when the North Carolina State Board of Dental Examiners received a complaint that unlicensed teeth whiteners were providing services at malls amid unsanitary conditions. From 2006 to 2009, the board issued cease-and-desist letters to the teeth whiteners, warning them about a state ban against stain removal by unlicensed practitioners.
The teeth whiteners complained to the FTC, saying the board's actions were anti-competitive. An FTC administrative law judge found the board's conduct constituted an unreasonable restraint of trade and ordered the dental board to stop.
The board argued that its conduct was protected from antitrust oversight by a legal doctrine that applies to some state board conduct. The doctrine exempts from antitrust scrutiny state agencies that are actively supervised by the state.
However, in a 2011 decision, the FTC said the dental board was not covered under the doctrine. The board falls outside such protections because it is made up of market participants and is not actively supervised by a sovereign part of the state government, the FTC said.
The dental board appealed to the 4th U.S. Circuit Court of Appeals. Oral arguments are expected in the fall. The North Carolina Medical Board said it is monitoring the case.
The FTC defended its position, saying the dental board failed to meet exemption criteria.
"The board is made up of market participants with no accountability except to their fellow dentists," said Imad Abyad, an FTC attorney.
The case is not about whether the teeth whiteners' practices were safe, but it is about the incorrect way in which the dental board handled the whiteners' conduct, he said.
"They decided on their own to interpret state law and decided to issue their own cease-and-desist orders without seeking a court order," Abyad said. "The case the commission brought relates to competition. It does not relate to whether teeth whitening by nondentists is safe or not."
The FTC said the dental board is not prevented from investigating nondentists and whether they have violated the state's Dental Practice Act. However, the board should seek a court order to stop potential violators rather than taking the matter into their own hands, the FTC said.
The FTC's decision directly affects patient safety, said Noel Allen, the board's attorney.
"At the heart of this matter is public protection and who is best positioned to ensure that citizens are not harmed by illegal practitioners operating without proper training, standards, equipment and licensure," Allen said in an email. "The Constitution and the courts are clear and consistent [that] states may continue to regulate the professions within their borders and provide for the composition of occupational licensing boards as they choose."

Is the FTC overstepping its authority?

Members of medical and dental boards are generally appointed by governors and affirmed by state legislators. The boards must answer to and comply with standards set forth by state government.A state "certainly can reappoint the entire board," said Lisa Robin, chief advocacy officer for the Federation of State Medical Boards. "I would say [boards] are under a lot of scrutiny."
The FSMB filed a friend-of-the-court brief, along with several other regulatory boards, asking the appeals court to overturn the FTC decision.
This is not the first time the FTC has inserted itself into the practices of a state board, Robin said. In 2010, the FTC opposed a rule by the Alabama State Board of Medical Examiners preventing certified registered nurse anesthetists from providing interventional pain management services. In a letter to the state, the FTC said the rule was overly restrictive and would reduce the availability of chronic pain management services. The Alabama board later tabled the rule.
"We're concerned that the FTC is intervening on regulatory board decisions and trying to override the authority of medical boards," Robin said. "If the courts don't clarify the FTC's jurisdiction over state licensure boards, this is likely to continue."
If the FTC ruling is affirmed, nonphysicians could potentially oversee medical boards, said a friend-of-the-court brief issued by the Litigation Center of the American Medical Association and the State Medical Societies. Medical societies in North Carolina, South Carolina, Virginia and West Virginia joined the brief.
Under the FTC's reasoning, a medical board would need to be made up of individuals not licensed to practice medicine to comply with the state supervision rule, the medical societies said.
"It takes no special insight . to recognize the danger to the public of placing laypersons in a position where they must assess the qualifications and competence of physicians and decide what services constitute the practice of medicine," the Litigation Center brief said. "The FTC decision is a bureaucratic overreach. . While the issue before this court is couched as a minor modification to the procedures of a dental practice board, in fact this case will impact all professions, especially including the medical profession."
The FTC decision is discouraging to doctors who already face ongoing scope-of-practice challenges, said Evan Jenkins, executive director for the West Virginia State Medical Assn."We are already challenged with scope-of-practice issues where nonphysicians are pushing the limits of their education and training and attempting to be authorized" to practice as doctors, he said. "If we now have the FTC saying that even the board that oversees physicians themselves cannot be made up of physicians, it's just another frustrating trend that is causing all of us concern." u{L}Gallegos{/L} is a staff reporter who covers legal issues. She can be reached at 312-464-4426 or by email {i}([email protected]){/i}.Twitter:
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