Should state medical boards be allowed to set scope-of-practice? Supreme Court will decide

A critical question in medicine will be before the U.S. Supreme Court this fall: How much power should doctors wield over their peers when the power to regulate also potentially could tamp down competition that benefits consumers?

The court announced Monday that on Oct. 8 the justices will hear oral arguments in the case of North Carolina Board of Dental Examiners v. the Federal Trade Commission.

The title might make it seem like a narrow controversy, but the case will give the court a chance to weigh in on a topic that could affect healthcare pricing, shortages of clinicians and the presumption that medical professionals provide safe care.

All 50 states require the practice of medicine to be regulated by doctors and dentists. But in North Carolina, the FTC accused the dental board of essentially exercising monopoly power by forbidding hygienists in places such as spas and mall kiosks from using hydrogen peroxide solutions to whiten teeth.

The removal of stains from teeth can be a lucrative business for dentists. Starting in 2003, the dental board sent out numerous cease-and-desist orders to competitors who were accused of illegally practicing dentistry. The FTC sought to encourage price competition for peroxide treatments by forbidding the state dental board in 2011 from taking action against lower-cost providers that offer teeth-whitening services. A federal appeals court upheld the FTC decision in 2013.

The agency said that if states wanted to allow practicing dentists to make scope-of-practice decisions that affect their own pocketbooks, then state officials need to actively supervise the boards. “The FTC found the necessary supervision lacking,” the FTC Supreme Court brief says.

The medical community swiftly responded, saying the FTC doesn't have the power to force its will on state medical boards, especially since antitrust law should not trump public health considerations.

If the FTC's power to influence state medical boards is upheld, that would cause states to tinker with the makeup of their boards by having fewer members who are practicing doctors or dentists. It could also expose board members to legal liability under federal antitrust law, which could drive down participation rates by doctors and dentists.

“This result would interfere with a long tradition of regulation of the medical professions by boards composed of experienced and practicing doctors, which stretches back over 150 years and is based on virtually uniform state legislative judgments that such practitioners are best qualified to promote the public health,” says a friend-of-the-court brief signed by the American Medical Association, the American Dental Association and the Federation of State Medical Boards.

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