Supreme Court considers limits on medical boards

Case over teeth-whitening kiosks has national implications, AMA argues

A Supreme Court battle over cut-rate teeth-whitening services operating out of North Carolina malls, stores, and salons could place new restrictions on medical boards nationwide, Modern Healthcare's Joe Carlson reports.

Doctor says he's 'expert witness'—but medical society disagrees

Last week, the high court agreed to hear oral arguments in North Carolina Board of Dental Examiners vs. FTC, though a date has not yet been set for the hearings.

Background on the case

Typically, state boards of medicine and dentistry are immune from federal antitrust statutes because states have a vested interest in ensuring safe health care practices. Under this reasoning, the North Carolina Board of Dental Examiners exercised its authority to send warnings to the non-dentist operators of storefront teeth-whitening operations, arguing that only dentists can provide such care.

According to Modern Healthcare, licensed dentists typically charge double or triple the rates of non-dentists for teeth whitening. Although many dentists had complained about the increasingly popular storefront businesses, the Federal Trade Commission ordered the North Carolina dentistry board to stop issuing warnings to non-dentists, saying it represented "illegal suppression of competition."

The North Carolina board challenged the order, but was defeated before two courts and an administrative law judge. A three-judge panel of the 4th U.S. Circuit Court of Appeals found that the composition of the state's dentistry panel more closely resembles a private party, rather than a state entity, and therefore does not qualify for antitrust immunity. The board's six dentists are appointed by other practitioners in the state, not by state officials, and operate without oversight, Modern Healthcare notes.

"This case is about a state board run by private actors in the marketplace taking action outside of the procedures mandated by state law to expel a competitor from the market," wrote the three-member panel of judges in a unanimous decision.

AMA, national groups weigh in

The case has received support from nationally influential medical organizations, including the American Medical Association (AMA), the American Dental Association, and the Federation of State Medical Boards. The groups have urged the Supreme Court to resolve the debate over whether the dental board should be considered a private entity under antitrust law—an issue they say has national implications.

In a statement this week, AMA President Ardis Dee Hoven said the group was "grateful that the U.S. Supreme Court has agreed to re-evaluate a case in which the federal government is interfering with the ability of state regulatory boards to protect public health and safety."

Further, she argued that medical boards tasked with furthering statewide directives "should be free to make decisions on public health issues without fear of second-guessing under the federal antitrust laws" (Carlson, Modern Healthcare, 3/10 [subscription required]).

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