NCPA - National Center for Policy Analysis

Can State Medical Boards Keep Competitors Out?

July 22, 2014

Modern Healthcare reports that the U.S. Supreme Court will soon address an important question for the medical community: Can state boards of medicine and dentistry make scope-of-practice determinations? 

State medical and dental boards regulate the practice of their respective industries. But as Devon Herrick, senior fellow at the NCPA, explains, members of these boards are usually doctors and dentists -- the very people being regulated by the boards' rules. As such, the boards can produce self-interested regulations.

The Supreme Court case arises out of North Carolina, whose state dental board began issuing cease-and-desist letters to hygienists (not dentists) who were whitening consumers' teeth at spas and mall kiosks. The letters accused the recipients of the illegal practice of dentistry. Dentists offering teeth whitening in their offices, Herrick explains, often supervise the whitening work, which is done by technicians and hygienists. "Allowing those same dental technicians and hygienists to perform the work without the supervision of a dentist undercuts dentists' prices and reduces their profits," Herrick writes.

In response, the Federal Trade Commission accused North Carolina's state dental board of keeping competitors from the teeth-whitening market, insisting that scope-of-practice decisions that affect those making the decisions should be supervised by the state.

Those in the medical community have come out in support of the state boards, insisting that public health should trump antitrust law and claiming that the FTC does not have authority over state medical boards.

While medical licensure is intended to protect the public, Herrick notes that economists often argue that licensure cuts down on supply and limits competition.

Source: Joe Carlson, "Should state medical boards be allowed to set scope-of-practice? Supreme Court will decide," Modern Healthcare, July 15, 2014; Devon Herrick, "Should Doctors and Dentists Regulate Their Competitors?" Health Policy Blog, National Center for Policy Analysis, July 21, 2014.


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