An unwarranted antitrust risk for state medical boards

A dispute over who is allowed to whiten teeth in North Carolina has the potential to have a harmful effect on the regulation of physicians in states across the nation.

On May 31, a three-judge panel in the 4th U.S. Circuit Court of Appeals sided with the Federal Trade Commission by ruling that the North Carolina State Board of Dental Examiners overstepped its authority when it tried to stop nondentists from providing teeth-whitening services. The court’s finding of antitrust violations by the board rested on two major issues: that the authority lacked “active supervision” by the state and that board members are “private market participants,” and thus stood to benefit from the decision. The case began when the nondentists complained to the FTC, which then found the board’s conduct an unreasonable restraint of trade.

With these decisions, the FTC and the court have dealt a serious and unnecessary blow to the whole idea of professional regulatory boards. The point of such boards is to have those with training and education in their fields making educated decisions on behalf of patient safety and ethical, professional conduct. The appeals court has opened the door to the final word on professional regulation not lying with knowledgeable boards in the states, but with ill-equipped antitrust tribunals at the federal level.

If the ruling isn’t overturned by either a full panel of the appeals court or by the U.S. Supreme Court (at this story’s deadline, the dental board’s attorneys were weighing appeal options), there is a risk that boards would lose the benefit of the divergent experiences of a diffuse group of physicians, and that antitrust lawsuits — rather that state legislatures — would become the new battleground for scope-of-practice issues.

As the Litigation Center of the American Medical Association and the State Medical Societies warned in a friend-of-the-court brief to the 4th Circuit, a move in favor of the FTC would “greatly impede state regulation of the practice of medicine, with a devastating impact on public health.” Medical societies in North Carolina, South Carolina, Virginia and West Virginia joined in the brief.

In one sense, the North Carolina dental board is different from most in that it is chosen by the state’s practicing dentists, rather than selected through political appointments or general elections. In theory, some legal experts say, most medical boards have a greater layer of protection against antitrust cases because they are not selected by peers.

That theory is a ray of light in this gloomy situation but hardly a guarantee. What we have at this point is the FTC’s determined argument and the 4th Circuit’s decision, both running counter to years of judicial precedent on the authority granted to government organizations to make the decisions they are assigned by political bodies to make, free of antitrust worry.

By reducing medical board members to “private market participants,” the FTC and the court’s ruling ignore the fact that doctors are assigned a task and do so for little or no pay in order to share their technical expertise for the good of patient safety. Given the personal liability that can incur in antitrust cases, opening board decisions to those kinds of challenges would discourage doctors from participating and would inhibit decision-making by those physicians who would step forward.

It’s not the dental board that overstepped its authority, as the Litigation Center wrote in its brief. “The FTC decision is a bureaucratic overreach. It is premised on a misunderstanding of state law and of federal antitrust law. While the issue before the [c]ourt 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.”

It is essential that medical boards be allowed to carry out their duties without the threat of antitrust sanction — just as other government entities are able to. And it is essential that those boards are made up of people with the education, training and clinical knowledge to gauge what will protect patients. Through the political process, means already exist for the public and state government to oversee boards so they meet that goal.