Supreme Court Ruling Could Limit Medical Board Authority

By Robert Lowes

State medical boards may find it harder to fence off the practice of medicine from nonphysicians — think nurse practitioners — in the wake of today’s Supreme Court decision in a case about teeth whitening.

In a 6–3 vote, the high court ruled that North Carolina’s dental board violated the Sherman Antitrust Act when it shut down nondentists who were whitening teeth in malls and beauty shops because the board, composed mostly of practicing dentists, was not actively supervised by the state. Active supervision, the court said, would have shielded the board from a Sherman violation.

“[The Sherman Act] does not authorize the states to abandon markets to the unsupervised control of active market participants, whether trade associations or hybrid agencies,” the court said, upholding a move by the Federal Trade Commission (FTC) to block the dental board’s actions in the name of fair competition.

Dissenting from the majority opinion were Associate Justices Samuel Alito Jr, Antonin Scalia, and Clarence Thomas.

The American Medical Association (AMA) and other medical societies had asked the Supreme Court to hear the case — and uphold the decision of the North Carolina dental board — in light of the antitrust implications for state medical boards.

“If state licensing decisions are subject to invalidation by federal agencies with no particular expertise in the healing arts, then those federal agencies will become the final arbiters of matters of public safety, tasks that they are ill-equipped to perform,” the AMA and its allies stated.

The medical societies warned that if the FTC got its way, medical boards might be loath to crack down on nonphysicians engaged in “the illegal practice of medicine” for fear of triggering an antitrust suit. They cited the example of nurse practitioners who provide services that were beyond their qualifications without any physician supervision.

Rallying behind the FTC in the Supreme Court case were the American Nurses Association, the American Association of Nurse Practitioners, the American Association of Nurse Anesthetists, the American College of Nurse Midwives, and the National Association of Clinical Nurse Specialists. In a friend-of-the-court brief, these associations said that active state supervision was needed for physician-dominated medical boards because they have a history of unfairly limiting the scope of practice for nurses.

In response to today’s ruling, AMA President Robert Wah, MD, said that his organization would work with other medical societies “to secure policy changes to reinforce long-held antitrust protections” for state medical boards.

“The AMA agrees with Justice Alito, speaking for the three dissenting justices, that today’s decision ‘will spawn confusion’ by creating far reaching-effects on the jurisdiction of states to regulate medicine and protect patient safety,” Dr. Wah said in a statement emailed to Medscape Medical News.
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Cite this article: Supreme Court Ruling Could Limit Medical Board Authority. Medscape. Feb 25, 2015.