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State-regulated professionals urge court reversal of FTC order

North Carolina State Board of Dental Examiners v. Federal Trade Commission

Richmond, Va.—The Federal Trade Commission lacks jurisdiction over the North Carolina State Board of Dental Examiners, the ADA and associations of state-regulated health care professionals and state dental and medical boards contend in a brief filed May 17 with the U.S. Court of Appeals for the Fourth Circuit.

The eight organization friend of the court brief urges the court to reverse an FTC final order against the North Carolina board. The FTC administrative ruling has drawn congressional and judicial attention.

“Each amicus (interested party) supports the determination by the states that the health professions should be regulated by knowledgeable health care professionals who have practical experience in the profession they are regulating,” says the brief filed on behalf of the American Dental Association, American Osteopathic Association, American Veterinary Medical Association, American Academy of Pediatric Dentistry, American Academy of Periodontology, American Association of Orthodontists and the American Association of Dental Boards and Federation of State Medical Boards.

“Each has a direct interest in assuring that state regulatory boards are able to discharge their statutory responsibilities with accountability to the state legislatures that created them – without intervention and second guessing by the Federal Trade Commission, a federal agency that lacks jurisdiction over these boards, that has no particular expertise in the professions regulated by these boards, and that, by misapplying the federal antitrust laws, seeks to substitute its concept of the public interest for the position taken by the board charged by the state legislature with determining what is in the public interest in the area of its regulatory authority.”

The organizations urge the court to rule that the FTC is “without jurisdiction over such boards and that, even if the FTC has jurisdiction, the federal antitrust laws do not extend to actions of a state board exercising its authority conferred by the state legislature. Such a ruling is necessary to prevent the FTC from interfering with efforts by such boards to protect the public health and to help assure that health care practitioners have the education, training and experience to deliver quality care for patients.”

Rep. Michael Burgess, M.D. (R-Texas), told the ADA Washington Leadership Conference May 8 that he is in "cordial disagreement" with the FTC over this and other Commission interventions in the state regulation of medicine and dentistry. Rep. Burgess is vice chair of the House Energy and Commerce Committee’s health subcommittee.

The eight organizations say the FTC “has repeatedly sought to interject itself into the decision-making process of duly constituted state regulatory boards in medicine and dentistry,” citing in a footnote an FTC staff letter to the Alabama State Board of Medical Examiners on a proposed rule on interventional pain management and cases involving the Virginia Board of Funeral Directors & Embalmers, South Carolina Board of Dentistry, Massachusetts Board of Registration in Optometry and Oklahoma State Board of Veterinary Medical Examiners. The brief was filed by Sidley Austin LLP, counsel for the “amici curiae.”