AMA Asks Supreme Court to Protect Medical Board Powers

February 20, 2014

It might be hard to imagine that teeth whitening kiosks at the local mall would become a constitutional controversy like the Affordable Care Act, in which states' rights square off against federal control.

It also might be hard to imagine that the American Medical Association (AMA) would support the North Carolina dental board in its attempts to shut down teeth whitening businesses operated by nondentists in the face of opposition from the Federal Trade Commission (FTC).

Or that the AMA would go so far as to ask the Supreme Court to overturn a lower-court decision and let the dental board engage in such a crackdown after all.

Then again, the AMA is worried about nurse practitioners (NPs) wresting jobs away from physicians by performing duties above their license, and if a state medical board cannot prevent something like that from happening, the AMA contends, woe is healthcare.

In the next several weeks, the Supreme Court is expected to announce whether it will review this bright-smile case or let the lower court decision stand. The AMA and other medical societies hope that the high court will put the case on its docket and uphold the power of state medical boards to regulate who can do what in an exam room.

"If state licensing decisions are subject to invalidation by federal agencies with no particular expertise in the healing arts, then those federal agencies will become the final arbiters of matters of public safety, tasks that they are ill-equipped to perform," the AMA stated in a friend-of-the-court brief filed with the Supreme Court recently.

Joining the AMA in the brief were the American Osteopathic Association; the American Society of Anesthesiologists, at odds with nurse anesthetists seeking independent practice; the medical societies of Virginia, West Virginia, North Carolina, and South Carolina; and the Federation of State Medical Boards.

Who Gets to Brighten Smiles?

Teeth whitening has become a classic turf battle in healthcare, although whether it should be a turf battle at all is debatable. After all, anyone can legally remove stains from his or her own teeth with over-the-counter products. It is as simple as someone going into a drug store, paying $30 to $60 for a set of peroxide-containing strips, and applying them to their teeth back at home.

Consumers also can get their teeth whitened by a dentist, who may use a peroxide-based product as well. Or, they can patronize any number of spas, salons, and mall kiosks operated by nonphysicians that offer this service. Typically, employees at these businesses do not put peroxide-containing strips on the customer's teeth. Customers do that themselves, although staffers sometimes may position an "enhancing" light-emitting diode in front of their teeth.

The difference in what dentists and nondentists charge for teeth whitening is a salient point in the case involving the North Carolina dental board. Institute for Justice (IJ), a civil liberties law firm, estimates that dentists charge 2 to 6 times as much as kiosks and other nondentist teeth whiteners.

IJ represents 2 teeth whitening entrepreneurs who have sued the state of Alabama for amending its dental practice law to make stain removal the sole purview of dentists. At least 13 other states since 2005 also have rewritten their laws and regulations to make it illegal for nondentists to whiten teeth, according to IJ, which calls this trend a matter of government protecting "politically favored insiders from honest competition." Dental boards and associations counter that they are protecting the public from unlicensed, unqualified practitioners and their unsafe work environments.

Dental boards in at least 25 states have ordered teeth whitening businesses to close up shop. One of those states is North Carolina. However, the FTC intervened to stop the North Carolina State Board of Dental Examiners from issuing cease-and-desist letters. It contended that the board, consisting mostly of dentists elected by other dentists, acted more as a trade association than an official arm of state government. That distinction is important: However economically unfair their policies might appear, state governments enjoy immunity from federal antitrust laws that forbid unfair competition. However, because the state dental board amounted to a "private actor," it did not qualify for this protection unless it was actively supervised by the state, which was not the case, according to the FTC.

A federal administrative judge ruled in the FTC's favor in December 2011, a decision upheld by the US Court of Appeals for the Fourth Circuit in May 2013. The judges wrote that the cease-and-desist letters "were sent out without state oversight and without the required judicial authorization." Dentists on the board, it noted, whitened teeth themselves, and therefore had a personal stake in getting rid of competitors. The judges also agreed with the FTC that the dental board did not produce convincing evidence of the safety risks allegedly posed by teeth whitening businesses.

The Case of the Unqualified NP

Last fall, the North Carolina dental board filed a "writ of certiorari" with the Supreme Court, asking it to review the appellate court decision. It said that the appellate court erred when it characterized the board as a private actor that required active supervision by the state. The decision, the board said, runs counter to the positions taken by 2 other federal appeals courts on antitrust immunity for state regulatory agencies. These courts did not treat them as private actors even though their members were "market participants" chosen by other market participants, the board noted.

Because federal appellate courts on split on this issue, the board said, the Supreme Court should review the case and resolve the conflict.

The board also urged the court to take up the case for the sake of restoring the Constitutional balance of federal and state power. "The Fourth Circuit's novel and erroneous decision violates the fundamental principles of subjecting to federal scrutiny a state's sovereign choices concerning how to structure its own regulatory agencies and thereby enforce its own anticompetitive policies," the board wrote.

The AMA concurred in its friend-of-the-court brief, saying that the Fourth Circuit was "trampling on the sovereignty of states in our federal system." If left to stand, the appellate decision could discourage professionals of any kind to serve on state regulatory boards because they could be exposed to antitrust litigation, according to the AMA. States also would feel pressure to change how they select board members to stay in the good graces of the FTC.

Another "perverse" consequence of the appellate decision would be regulatory boards too scared of the FTC's second guessing to act in the public's best interest, according to the AMA. The hypothetical example it chose for this problem reflects the medical professional's own turf battles with NPs, feared in some quarters as low-cost competitors.

The AMA painted a picture of a state medical board asked to rule on whether "certain services" provided by NPs not under physician supervision represent "the illegal practice of medicine." The board might conclude that, yes, unsupervised NPs are indeed unqualified to perform these services, and therefore pose a risk to patients. Even so, it might allow NPs to provide these services anyway to avoid a lawsuit filed by the FTC or someone claiming to be the victim of an anticompetitive policy.

As a result, "state health policy is subordinated to federal antitrust policy," the AMA stated.


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