State Supervision of Professional Boards Can Help Prevent Anticompetitive Behavior According to AANA and Other Nursing/Patient Advocacy Groups

Arguing that state supervision of professional boards is feasible and appropriate, the American Association of Nurse Anesthetists (AANA) yesterday filed an Amicus Brief urging the U.S. Supreme Court to uphold a lower court’s decision in the case of The North Carolina Board of Dental Examiners v. Federal Trade Commission.
The case stems from a 2011 Federal Trade Commission (FTC) ruling that the North Carolina Board of Dental Examiners illegally thwarted competition by engaging in anticompetitive conduct to prevent non-dentists, including those offering lower prices, from providing teeth whitening services. The federal appeals court upheld the FTC ruling, prompting the Board of Dental Examiners’ appeal to the U.S. Supreme Court.
The Supreme Court will now decide the issue of whether an official state regulatory board created by state law may properly be treated as a “private” entity simply because state law allows a majority of the board’s members to be practicing professionals elected to their official positions by other practicing professionals. Key to the Court’s deliberations will be determining whether the state-action exemption from federal antitrust law applies in this case.
Joining the AANA as co-Amici in this case are the American Nurses Association, American Association of Nurse Practitioners, American College of Nurse Midwives, National Association of Clinical Nurse Specialists and the Citizen Advocacy Center. The AANA represents more than 47,000 Certified Registered Nurse Anesthetists (CRNAs) and student registered nurse anesthetists across the United States.
The AANA and its co-Amici have a strong interest in this case because “unnecessary restrictions on the practice of any qualified healthcare provider limit patient access to quality care, may increase cost and can compromise the quality of healthcare delivery,” the Brief stated. “The need to provide access to quality and cost effective healthcare is imperative to meet the growing healthcare needs of our aging population. Ensuring that healthcare professionals are working to the full extent intended by the states and without impermissible anticompetitive interference is vital to addressing those public health challenges.”
The Brief urges the Supreme Court to affirm the appellate court’s decision for a number of reasons, including concerns that unsupervised state regulatory boards comprised mostly of practicing professionals have a tendency to act in their own economic self-interest by protecting their competitive position in ways not intended or authorized by the state.
The AANA and its co-Amici further state that regulatory boards, unlike municipalities, require active supervision by an independent state agency to provide assurances that such boards will act in the public’s interest, as opposed to their own private economic interests.
“Active state supervision does not compromise the integrity or soundness of decisions made by professional boards,” said AANA’s Executive Director/Chief Executive Officer Wanda Wilson, PhD, MSN, CRNA. “Active state supervision is necessary to ensure competition in the marketplace and to protect consumers and competitors from falling prey to anticompetitive behavior.”