MLM Counties News. Notices. Need-to-know Information.
States are taking a closer look at boards and commissions regulating everything from dentists to dietitians after the U.S. Supreme Court said some panels could be violating antitrust laws.
The concern is that boards made up of practicing professionals could be trying to put competitors out of business through cease-and-desist letters and other actions.
Oklahoma Gov. Mary Fallin ordered boards in July to begin submitting proposals to crack down on potential licensing violators to the state Attorney General for review. California Attorney General Kamala Harris said in September the composition of boards might have to be changed. And in October, the office of Ohio Gov. John Kasich told boards to take any questions about regulatory action to their lawyers.
“If advised by your assigned legal counsel that the proposed action raises serious antitrust concerns, the proposed regulatory action should not be taken,” Megan Fitzmartin, Kasich’s director of boards and commissions, wrote in an Oct. 29 memo.
Not nearly as visible as state agencies, boards play a big role in consumers’ lives, regulating dozens of professions such as cosmetology, engineering, medicine, dentistry, optical dispensing and many others.
Boards are typically a mix of professionals in the field they regulate — nurses, chiropractors or funeral home directors, for example — along with public members not associated with that profession.
The U.S. Supreme Court ruled in February that the North Carolina State Board of Dental Examiners, a panel made up mostly of dentists, violated federal law against unfair competition when it tried to prevent lower-cost competitors in other fields from offering teeth-whitening services.
By a 6-3 vote, the justices rejected arguments from the board that it was acting in the best interests of consumers when it pressured nondentists to get out of the lucrative trade in teeth-whitening services.
Similar antitrust lawsuits have been filed elsewhere. In September, the ride-hailing service Uber sued St. Louis’ Metropolitan Taxicab Commission, saying the “taxi-dominated commission” was protecting its financial interests in trying to block the company from entering the market.
In Texas, a Dallas-based telemedicine provider has accused the Texas Medical Board of antitrust violations by requiring patients to have a “face-to-face visit or in-person evaluation” before a prescription can be dispensed.
Last year, a judge in Alabama rejected a complaint against that state’s dental board and upheld restrictions on teeth-whitening services as “reasonably designed to protect the health of Alabama citizens.”
Consumers Union, a consumers’ advocacy group, has warned Ohio and other states it could be violating antitrust laws.
Ohio, like many other states, “has created ‘state’ boards that are directly controlled by members of the very trade or profession they purport to regulate,” Consumers Union said in a May 4 letter to Ohio Attorney General Mike DeWine also signed by the Center for Public Interest Law and the Citizen Advocacy Center.
Advocates for regulatory boards are urging states not to adopt a knee-jerk reaction to the Supreme Court ruling.
Boards staffed by licensed professionals play a valuable role in protecting the public, the Federation of Associations of Regulatory Boards said in a May 22 letter to attorneys general across the country.
“Governmental boards and their volunteer members must be protected in carrying out these vital public protection mandates,” Dale Atkinson, FARB’s executive director, said in the letter.
