Justices to rule on authority to set scope of practice

How much power should dentists and doctors wield over competitors who aren't doctors when the power to regulate also potentially could reduce competition that benefits consumers?

The U.S. Supreme Court announced last week that it would hear oral arguments in October in North Carolina Board of Dental Examiners v. the Federal Trade Commission. The case could affect consumer access to healthcare services, pricing and physicians' control over determining who's qualified to provide services.

All 50 states require the practice of medicine and dentistry to be regulated by doctors and dentists. But in North Carolina, the FTC accused the dental board of essentially exercising monopoly power by forbidding dental hygienists in 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 FTC said if states wanted to allow practicing dentists to make scope-of-practice decisions that affect their own pocketbooks, state officials need to actively supervise the boards.

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

If the FTC's power to influence state medical boards is upheld, that could cause states to appoint fewer board members who are practicing doctors or dentists. It could also expose board members to legal liability under federal antitrust law.

“This result would interfere with a long tradition of regulation of the medical professions by boards composed of experienced and practicing doctors, which … 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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