Feds flex regulatory muscle on health care mergers, board authority
FTC plays role in recent high-profile health care industry legal entanglements
With increasing frequency, the Federal Trade Commission (FTC) exerts its influence on issues that impact the practice of medicine and patient access to care, including health system and payer mergers, facility regulation, and non-physician provider scope of practice. All of this activity falls under the agency's strategic goal to maintain competition by preventing anticompetitive mergers and exploitative business practices.
The ability of state medical boards to regulate the profession was thrown into flux when the U.S. Supreme Court upheld an FTC challenge to the North Carolina Board of Dental Examiners' authority to prohibit non-dentists from offering tooth-whitening services. The Court's 2015 decision declared that professional regulatory boards are immune from antitrust disputes only if their regulations directly coincide with state law and the board itself is "actively supervised.”
While the Supreme Court ruling left many questions unanswered, October 2015 FTC guidance has since shed light on what it means to be actively supervised by the state. The FTC stated that, in addition to being comprised of members with no financial interest in the decision, the supervising entity must obtain all relevant facts, collect data and evidence, and receive public comment.
According to the FTC, a professional regulatory board cannot be supervised by an entity that:
- falls under the control of the board
- lacks authority to disapprove board actions
- includes members who serve on the board.
Deviation from these directions does not necessarily mean that a board's action will be considered anticompetitive and state regulators are stepping very gingerly when it comes to restricting the activities of non-physician providers. Already, telemedicine companies, pain clinics, and others have filed at least five antitrust lawsuits against health licensing boards since the Supreme Court decision.