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Members of Congress see 'chilling precedent' in FTC proceedings

March 05, 2012

By Craig Palmer, ADA News staff

Washington—Five bipartisan members of Congress urged the Federal Trade Commission March 2 “to cease any further intrusion in the state regulation of the practice of medicine or dentistry and withdraw from the actions you have already taken.”

The FTC issued an opinion and final order Dec. 2, 2011, asserting that the North Carolina State Board of Dental Examiners “sought to, and did, exclude nondentist providers from the market for teeth whitening services.” The board Jan. 13, 2012, filed an application for “stay of order” pending review by the U.S. Court of Appeals, which the Commission granted Feb. 10, an action temporarily delaying the administrative proceedings for judicial review.

The five lawmakers from three committees of the House of Representatives cited this and other recent FTC actions “which we respectfully submit are a direct interference with the state regulation of the practice of medicine and dentistry. Specifically, the FTC’s targeting of state legislatures’ and state health regulatory boards’ decisions, proposed rules and legislation regarding who may provide certain services to patients are of serious concern,” they told Commission Chair Jonathan Leibowitz.

The letter asserts congressional interest in the administrative proceedings, which are subject as well to judicial review. The five House members are on the Appropriations, Energy and Commerce and Judiciary Committees.

“All health care providers are threatened by the FTC’s apparent willingness to issue rulings that, if permitted to stand, would overturn state statutes directed to the provision of health care,” the lawmakers wrote. “If the FTC continues actions such as the one in North Carolina to file complaints, in clear violation of state law and state established scope of practice, all health care practitioners could potentially be impacted. We strongly urge you to cease any further intrusion in the state regulation of the practice of medicine or dentistry and withdraw from the actions you have already taken.”

The letter also said the FTC “overstepped its role by attempting to make specific suggestions as to the care delivery services that the FTC believed nurse and physician practitioners may or may not offer to Texas patients” and cited “similar examples of the FTC overreaching its authority and imposing its lack of expertise in the regulation of the practice of medicine” in Alabama, Florida and Tennessee.

“The actions of the FTC not only violate states’ rights by infringing on their traditional jurisdiction in these matters but also blatantly ignore the State Action Doctrine that limits the reach of federal antitrust law in deference to state decision making,” the lawmakers said. “This threatens to set a chilling precedent for permitting the federal government to dictate scope of practice issues, which are under the jurisdiction of the states for good reason.”

Signing the letter were Reps. Michael Burgess, M.D. (R-Texas), Steve Chabot (R-Ohio), Tom Graves (R-Ga.), Jim Matheson (D-Utah) and Betty McCollum (D-Minn.)