An article in Modern Healthcare, “Should state medical boards be allowed to set scope-of-practice? Supreme Court will decide,” poses an important question that would seem like a no-brainer at first glance. Yet, the question deserves a second look. State medical boards are typically composed of members from the industry the board regulates. Thus, it’s common for these boards to take positions in the industry’s self-interest. At issue is an effort by the North Carolina Board of Dental Examiners to prohibit dental hygienists from performing teeth whitening services in mall kiosks, day spas and non-dental offices. Dentists who offer teeth whitening in their offices often supervise dental technicians and hygienists, who perform the actual service. Allowing those same dental technicians and hygienists to perform the work without the supervision of a dentist undercuts dentists’ prices and reduces their profits. According to Modern Healthcare:
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 Federal Trade Commission (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.
As you would expect, the medical community disagrees with the FTC. Professional associations for doctors and dentists argue that public health considerations (for example, letting doctors and dentists regulate who is allowed to compete against them) should take priority over antitrust law and the mere desire to promote competition. The American Dental Association, the American Medical Association and the Federation of State Medical Boards submitted a friend-of-the-court brief, arguing:
This result would interfere with a long tradition of regulation of the medical professions by boards composed of experienced and practicing doctors, which stretches back over 150 years and is based on virtually uniform state legislative judgments that such practitioners are best qualified to promote the public health.
Medical licensure and the state medical boards that govern the practice of medicine within each state has often been described as a self-regulating cartel. Nobel laureate Milton Friedman and many other economists have argued state licensure restricts the supply of physicians and stifles competition. Medical licensure is purportedly maintained for the protection of the public. But, what should be done when, while in the process of protecting the public from providers of dubious quality, the industry also protects itself from competition? That is the question the Supreme Court will decide next fall.