High Court to Hear Case on Medical, Dental Board Powers

March 03, 2014

The Supreme Court today announced it will hear a case that could have far-reaching implications for state boards that both regulate physicians, dentists, and other clinicians and police who can do what.

Although the case pertains immediately to dentistry, it promises to stoke the sometimes fiery debate about the proper roles of physicians and nurse practitioners, which the American Medical Association (AMA) and other medical societies raised in a court filing urging the judges to consider the case.

The case that the court agreed to hear pits the North Carolina State Board of Dental Examiners against the Federal Trade Commission (FTC) in a dispute about nondentists who offer teeth whitening services in malls, salons, and spas. The state dental board attempted to shut them down, contending that teeth whitening was the sole purview of dentists.

The FTC intervened to block the dental board in the name of fair competition. It argued that the board, composed mostly of practicing dentists chosen by their peers, functioned more as a trade association than an arm of state government. The board and its "market participants" — who also whitened teeth — acted without the state oversight and authorization that might have otherwise given it immunity from federal antitrust laws, according to the FTC.

A federal administrative judge ruled in the FTC's favor in 2011, and the US Court of Appeals for the Fourth Circuit upheld its decision in May 2013. The dental board then asked the Supreme Court to review the case. It pointed out that other federal appellate courts do not view state regulatory boards as a collection of private "market participants" who require state oversight. The Supreme Court, the board said, should resolve this conflict, as it routinely does in other appellate-circuit splits. It also asked the high court to prevent the federal government from interfering with a state's sovereign right to structure and operate its regulatory agencies as it sees fit. In other words, the case was about federal and state powers as defined by the US Constitution.

Siding with the dental board, the AMA; the American Osteopathic Association; the American Society of Anesthesiologists; the Federation of State Medical Boards; the medical societies of Virginia, West Virginia, North Carolina, and South Carolina; and several other groups filed a "friends of the court" or amici curiae brief asking the Supreme Court to hear the case.

"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 and its allies stated.

Their amici curiae brief warned that if the Fourth Circuit appellate decision was left to stand, state regulatory boards might be loath to act in the public's best interest for fear of an FTC crackdown. For example, a hypothetical medical board might conclude that a nurse practitioner was engaged in "the illegal practice of medicine" because she was providing certain services beyond her qualifications without any physician supervision. However, the board might choose to do nothing about it simply to avoid an antitrust lawsuit filed by the FTC or someone else, according to the brief.

Now that the high court has agreed to hear the case, the various parties will file written briefs arguing their positions. The court then will hear oral arguments and afterward issue an opinion.


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