By Joanne Spetz, PhD
Last week, the U.S. Supreme Court heard arguments in North Carolina State Board of Dental
Examiners v. Federal Trade Commission (FTC), a case that will have
significant implications for scope of practice regulations across the
country. At the center of this case is
the “state-action doctrine,” which provides immunity from federal antitrust
liability for certain state-mandated activities. In this case, the FTC had
filed a complaint regarding the Board’s efforts to stop non-dentists from
offering teeth whitening services. The North Carolina Dental Board asserted
state-action as a defense. The case centers on how the Board operates and whether
its operations fall under the state-action doctrine. The FTC believes that the
board, which is comprised mainly of practicing dentists, exceeded its authority
and its actions were a private effort to eliminate competition from
non-dentists – a violation of anti-trust law. The Board believes it is acting
as a regulatory body to ensure consumer safety.
Last spring, the 4th Circuit Court of Appeals
agreed with the FTC; the Board appealed to the Supreme Court. This case gives
the Supreme Court an opportunity to decide whether health professions boards in
general, which are usually established by state legislatures but whose members
are private actors, fall under the state-action doctrine. If the Supreme Court
sides with the FTC, it could have a significant impact on the capacity of
dental, medical, nursing, and other boards to regulate health care services,
especially when a compelling public safety argument cannot be made. The Supreme Court’s decision also could provide
clear guidance to states in how their boards can be appointed and function in
order to adhere to anti-trust law. To follow the case’s history, look here.
This same issue was addressed last June at an FTC public
workshop in Washington, DC, titled, “Examining
Health Care Competition.” The workshop topics included professional
regulation of health care providers, health care delivery innovations such as
retail clinics, health information technology, health care quality, and price
transparency. The meeting room was full for most of the two-day event, but
attendance appeared greatest for the first session, “Professional Regulation of
Health Care Providers,” for which I was one of the presenters.
The session did not address any specific legal action
related to health professions regulation, focusing instead on providing an
overview of several important aspects of health professions regulation. Barbara J. Safriet, JD, LLM, a Visiting
Professor of Health Law and Lewis and Clark Law School, discussed the history
of health professions regulation and the potential for legal collusion and
hindrance of competition. Morris Kleiner, PhD, from the University of
Minnesota, discussed health professions regulation in the context of
professional regulation in general. He noted that health professions boards are
often based at the same agencies as many other professions’ boards, so a single
organization is charged with overseeing physicians, nurses, cosmetologists, pet
groomers, and myriad other professions. Gail Finley of the Colorado Hospital
Association discussed particular challenges that state faced regulating nurse anesthetists,
and the battle between physicians and nurses regarding safe anesthesia care in
rural communities. I discussed the impact of scope of practice regulations for
licensed practical/vocational nurses on the demand by hospitals and nursing
homes – we found that in states with stricter regulations, there is lower
demand.
The FTC published a Policy
Perspective paper in March 2014 on “Competition and the Regulation of
Advanced Practice Nurses.” The paper’s
authors reviewed the rationale for establishing scope of practice regulations,
noting that there are valid reasons to control scope of practice, even if it
might reduce competition. However, they wrote: “…the FTC staff has consistently
urged state legislators to avoid imposing restrictions on APRN scope of
practice unless those restrictions are necessary to address well-founded
patient safety concerns. Based on substantial evidence and experience, expert
bodies have concluded that ARPNs are safe and effective as independent
providers of many health care services within the scope of their training,
licensure, certification, and current practice. Therefore, new or extended
layers of mandatory physician supervision may not be justified.”
Unsurprisingly, there is great interest in the Supreme Court
case throughout the health care industry. Among the entities that have filed
amici briefs, are the American Dental Association, Federation of State Boards
of Physical Therapy, American Association of Nurse Anesthetists, Association of
Dental Support Organizations, Cato Institute, Pacific Legal Foundation,
National Governors Association, California Optometric Association, and Public
Citizen, and 23 states. A decision is
expected next year.
Joanne Spetz is a professor at the Philip R. Lee
Institute for Health Policy Studies and associate director of research strategy for the Center for the Health Professions at the University of California, San
Francisco.
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