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ADA opposes legislation that could undermine state dental boards

September 14, 2017

By Jennifer Garvin

Washington — The ADA is opposing legislation that purports to restore antitrust immunity for professional boards because it would have an adverse effect on the ability of state professional boards to regulate in the public interest.

According to bill language, the "Restoring Board Immunity Act of 2017," H.R. 3446, seeks to "help states combat abuse of occupational licensing laws" as well as to promote competition, encourage innovation, protect consumers and "restore antitrust immunity to state occupational boards" believed to have existed prior to 2015. That was the year the U.S. Supreme Court ruled that state professional boards could be exempt from antitrust laws if the state provided active supervision for those actions.

In a letter to Subcommittee on Regulatory Reform, Commercial and Antitrust Law Chair Tom Marino, R-Penn., and Ranking Member David Cicilline, D-R.I., the ADA thanked the legislators for recognizing the need for antitrust immunity in state occupational boards, but said it could not support the bill as "currently written" because the bill would, in fact, undermine the ability of state professional boards to regulate.

"A review of the bill demonstrates that its true primary purpose is to address a perceived 'abuse of occupational licensing laws by economic incumbents' by potentially eliminating the very occupational boards it purports to protect," wrote ADA President Gary L. Roberts and Executive Director Kathleen T. O'Loughlin. "Before immunity is even a possibility under this legislation, the state must adopt a policy of using 'less restrictive alternatives to occupational licensure,' without any distinction among the various occupations and professions for which licensure is currently required."

According to the bill, Drs. Roberts and O'Loughlin noted, occupational licensure, even for such professions as medicine and dentistry, must be the exception, and only in instances where the less restrictive alternatives are inadequate to protect the public.

"The effect of this bureaucratic regimen is to formalize the requirements for immunity set forth in N.C. Dental, but in a manner that is more burdensome and complex," wrote Drs. Roberts and O'Loughlin. N.C. Dental refers to the 2015 U.S. Supreme Court case that ruled in favor of the Federal Trade Commission's claim that the North Carolina Board of Dental Examiners violated federal antitrust laws by engaging in unfair competition in the market for teeth-whitening services in North Carolina.
They also noted that in order for H.R 3446 to achieve its objectives, the bill relies "totally on the willingness of the states to adopt the policies" despite the fact that the requirements imposed are "so substantial that no state is likely ever to attempt to meet them."

"Moreover," Drs. Roberts and O'Loughlin concluded, "the bill is unduly complicated and ambiguous, the immunity that it purports to confer appears to be illusory, and its apparent effect would be to minimize or eliminate occupational licensure. That goal would be better served by taking on the issue in a more direct, considered and, transparent manner. This is not, in our view, legislation that provides real benefit to members of the health care community or to the public in general."

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