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Dental Board Case Before SCOTUS Has Far-Reaching Implications

 |  By John Commins  
   October 29, 2014

The outcome of a case before the Supreme Court has the potential to extend far beyond teeth whitening and mall kiosks to state regulatory boards governing the actions of physicians, says a healthcare antitrust lawyer observing the case.

It's always risky to predict how the U.S. Supreme Court will rule on a case simply by interpreting a transcript of the oral arguments.

So, let's get started.

On Oct. 14, the high court heard from both sides in North Carolina Board of Dental Examiners v. Federal Trade Commission. The justices are being asked to decide if a state regulatory board is exempt from federal antitrust laws under the state action doctrine if its members are "market participants" elected by other market participants.

The eight-member North Carolina board, which includes six dentists elected by other dentists, had been the subject of a complaint by the FTC in 2010 for violations of the FTC Act after the board banned non-dentists operating in mall kiosks from performing discount teeth-whitening procedures.

Jay L. Levine, a Washington, D.C.-based healthcare antitrust lawyer and disinterested observer of the case, says the high court's ruling is expected early next year, and the implications of the ruling extend far beyond teeth whitening and mall kiosks.

"If the FTC wins and this board is considered a private actor and you'll always need state supervision for such boards, then obviously a lot of regulatory boards that are made up of practitioners of that industry, doctors, lawyers, etc., will need to have active supervision," he says.

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John Commins is a content specialist and online news editor for HealthLeaders, a Simplify Compliance brand.

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