Supreme Court case may impact state scope of practice laws

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Earlier this spring, the U.S. Supreme Court agreed to review the case of North Carolina State Board of Dental Examiners v. Federal Trade Commission, a case arising out of the North Carolina State Board of Dental Examiners’ (NC Dentistry Board) attempt to enforce the state’s scope of practice laws against a group of non-dentists. At issue in the case is whether the NC Dentistry Board is subject to Federal Trade Commission antitrust enforcement or whether it is immune from FTC authority under the “state action doctrine.”

While this case arises out of a dispute between North Carolina dentists and non-dentists, its outcome is being watched by state dental and medical boards throughout the country for its impact on their ability to regulate the practice of dentistry and medicine within their own states, particularly with respect to scope of practice.

Under the North Carolina Dental Practices Act (the Act), a person “shall be deemed to be practicing dentistry” if that person, among other things, “[r]emoves stains, accretions or deposits from the human teeth.” While the NC Dentistry Board does not have authority to discipline non-dentists or order them to stop violating the Act, it can bring an action in court to enjoin a group of non-dentists from practicing dentistry or refer the matter to a District Attorney. Here, the NC Dentistry Board learned that non-dentists were offering teeth-whitening services at mall kiosks and other places, and as a result issued a number of cease and desist letters requesting that the non-dentists stop all activities that constitute the practice of dentistry. Though these letters did not have the force of law behind them, in most cases, they had their intended effect.

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The FTC got wind of these letters and filed a complaint against the NC Dentistry Board, alleging that it was unlawfully engaging in unfair competition under the FTC Act when it sought to stifle the services of the non-dentists. One of the arguments the NC Dentistry Board made in response to this complaint was that it was immune from FTC enforcement under the state action doctrine, described in a prior Supreme Court case, which states that antitrust laws do not apply to anticompetitive actions by states. The NC Dentistry Board asserted that it is a state agency created by statute and thus its actions are by necessity state actions not subject to the FTC Act. The FTC, however, reasoned that the NC Dentistry Board, as composed, is essentially a private actor, as six out of the eight individuals who comprise the NC Dentistry Board are practicing dentists (something required by statute) and are thus active participates in the market for dentistry services. Important to this reasoning was the fact that the dentistry board members are elected to serve by their own peers.

In addition, the FTC found that as private actors, the NC Dentistry Board was not sufficiently “actively supervised” for the state actions doctrine to apply, and ultimately ruled against the NC Dentistry Board. Subsequently, the NC Dentistry Board petitioned the U.S. Court of Appeals for the Fourth Circuit to review the FTC’s decision. The Fourth Circuit denied the petition, siding with the findings and reasoning of the FTC. The NC Dental Board then petitioned the Supreme Court for review, which it granted.

State boards have been regulating the practice of medicine and dentistry for over 100 years. Physicians and dentists are members of these boards in every state. If state dental and medical boards can be found to be “private actors” subject to the reach of the FTC, a federal agency, their ability to regulate the practice of dentistry and medicine in their owns states, as they are charged to do under state law, would be called into question. They, like the NC Dentistry Board, could expose themselves to violations of the FTC Act and subject themselves to federal scrutiny depending on what actions they take to regulate the practice of dentistry and medicine, particularly in the context of scope of practice laws.

A number of professional associations, including the American Medical Association, have filed Amici Curiae (friend of the court) briefs in support of the North Carolina State Board of Dental Examiners. A decision could come out next year.

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