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March 3, 2015



Orthopaedic PAC Sets Records Under Leadership of PAC Chair Stuart L. Weinstein, MD

Ways and Means, Energy and Commerce Committees Advance Legislation

Sports Medicine Licensure Clarity Act Introduced

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New EHR Attestation Deadline for Medicare Eligible Professionals:
March 20, 2015

Governor Bob Ehrlich to Headline 2015 Orthopaedic PAC Luncheon

2015 Washington Health Policy Fellows Announced

Supreme Court Rules Against NC Dental Board

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Supreme Court Rules Against NC Dental Board

While not directly affecting orthopaedics, many have speculated that state medical boards may find it harder to “fence off the practice of medicine from nonphysicians” in the wake of last month’s ruling by the Supreme Court that North Carolina’s dental board violated antitrust laws when it shut down non-dentists from providing teeth whitening services (see this Medscape article). According to the American Medical Association (AMA), though the issue may be “couched” as a minor modification to the procedures of a dental practice board, “in fact this case will impact all professions, especially including the medical profession. If sustained, the FTC decision will infringe on the states’ powers, and it will undermine public health.”

The case centered on the issue of whether an official state regulatory board created by state law may be properly treated as a private actor because a majority of the board’s members are market participants. In North Carolina, the board, charged with regulating the practice of dentistry in North Carolina, had issued cease and desist letters to non-dentist teeth whitening service providers and distributors of teeth whitening products and equipment. In response, the Federal Trade Commission (FTC) claimed that it was violating Section 5 of the FTC Act, 15 USC § 45 and for purposes of the antitrust laws, should be deemed a private person rather than part of a state government. The dental board, on the other hand, argued that it should not be subject to antitrust regulation under the immunity for state regulatory agencies.

Ultimately, the Supreme Court sided with the FTC, stating that “[antitrust rules do] not authorize the states to abandon markets to the unsupervised control of active market participants, whether trade associations or hybrid agencies.” The Court explained that even though the dental board is an agency of the state, its actions must still be supervised by the state in order to enjoy antitrust immunity. And because the dental board’s actions were not supervised by any state officials from North Carolina other than the members of the dental board itself, the board could not invoke the defense of state action immunity.

“Medical boards thrive when they can bring together physicians from different specialties and practice backgrounds,” stated the AMA. “These physicians can contribute their expertise both in clinical knowledge and in the practical aspects of patient care. A requirement that physicians must be state employees, while it might satisfy the FTC mandate that decisions of board members could not benefit the financial interests of the individuals making those decisions, would lose the benefits arising from members’ divergent experiences.”

Read more on here.