LAS VEGAS -- Legal and health policy experts applauded the Federal Trade Commission (FTC) for challenging anticompetitive behaviors, and creating a more even playing field for PAs, during a panel discussion at the (AAPA) conference.
"We all know that when the medical board comes up with rules that keep us from doing what we're trained to do, patients suffer. That should be illegal and indeed it is," said Ann Davis, MS, PA-C, vice president of Constituent Organization Outreach and Advocacy for the AAPA during a presentation on competition advocacy and the FTC.
The FTC is a bipartisan law enforcement agency that aims to promote competition without unreasonably restricting legitimate business, explained Stephanie Radix, JD, senior director for Constituent Organization Outreach for the AAPA.
By law, the agency is allowed to gather, compile, and publicize information regarding anti-competitive behavior that is in the public interest.
The FTC issues reports and comment letters, and delivers expert testimony, leveraging its knowledge of competition and economics to intervene, and in some cases prevent, anticompetitive behavior before it starts, she said.
However, in certain cases, litigation may be its only avenue.
Dental Care and the Supreme Court
One significant example of FTC intervention focused on scope of practice issues between dentists and dental hygienist in North Carolina. The outcome of the agency's efforts, and the subsequent Supreme Court decisions, is relevant to PA's own scope of practice laws and regulations.
In the 1990s, dentists, including members of the North Carolina Board of Dental Examiners, began offering teeth whitening services, Radix explained. About 10 years later, non-dentists began providing these same services at a lower price.
In response, the dental board began issuing letters to non-dentists, including dental hygienists, implying or stating that their activities were illegal because they were not licensed by state dental boards. The board sent similar letter to the mall operators who rented kiosks to non-dentists, Radix said.
But North Carolina's Dental Practice Act does not specify that teeth whitening should be restricted to dentists, she added.
So in 2010, the FTC filed an administrative complaint against the the North Carolina Board of Dental Examiners arguing that the board did not have the authority to tell non-dentists their activities were illegal, and that in doing so they had violated anti-trust laws.
The dental board's counter-argument was that it was immune from antitrust violations as "state actors," just as state legislatures are immune.
The FTC responded that the board was not a state actor but a public-private hybrid agency and that it must be supervised by the state in order to have immunity.
An administrative law judge took the side of the FTC, but the case was appealed repeatedly. Ultimately, the Supreme Court, in a 6-3 decision, disagreed with the the dental board's perspective.
While the dental board is indeed an agency of the state, it is a self-regulating body -- not unusual for a state licensing board -- comprised, by law, of a majority of practicing dentists.
Importantly, this self-regulating board is not actively supervised by the state. So, it cannot be granted anti-trust immunity, the Court ruled.
The Court concluded: "Limits on state-action immunity are most essential when the State seeks to delegate its regulatory power to active market participants, for established ethical standards may blend with private anticompetitive motives in a way difficult even for market participants to discern. Dual allegiances are not always apparent to an actor. In consequence, active market participants cannot be allowed to regulate their own markets free from antitrust accountability," according to the (A detailed summary of the case can be found at
"Anytime you've got foxes who are going to be guarding the hen house, there has to be active supervision in order for those foxes ... to be able to claim anti-trust immunity," Radix said, adding that these "foxes" clear conflict of interest can prevent them making fair decisions, that are not necessarily "in their own best interest."
Relevant to PAs
The AAPA cheered the Supreme Court's ruling in the North Carolina Board of Dental Examiners v. the Federal Trade Commission because this concern over the "blending" of ethical standards and anticompetitive motives is relevant to their own practice.
"When the FTC does get involved, people will pay attention and listen to what they have to say," Radix said. As a result of the Supreme Court decision, state agencies that regulate PA practice now know that they risk action by the FTC if they behave unfairly, and PAs now have a more even playing field and new tools to combat anti-competitive behavior.
Radix and her colleagues met with the FTC to better understand the implications of that decision for PAs.
At its meeting with the FTC, the agency recommended that the AAPA review its to see whether its substance relates to PA's own concerns about autonomy and optimizing their practice.
The document underscores how APRNs scope of practice can vary for reasons unrelated to ability, education, or safety concerns, and are often due to the political decisions in a state. The agency spoke of unnecessary limitations and supervision, requirements that stifle innovation, and restrict access to care.
This guidance can be used by state constituent organizations to support efforts to improve PA practice in their states.
In addition, AAPA legal counsel is working with state chapters to leverage the Supreme Court decision when chapter members notice potential anticompetitive behaviors occurring.
Most recently, the AAPA succeeded in lobbying Indiana to allow PAs to perform high school physical examinations, while in Alabama and Tennessee, it is working to pass regulations that would allow PAs to provide these same services.
And in California, the AAPA's state partners are pushing to advance Title XXII regulations which limit the scope of practice for surgical PAs.
The issue of "active supervision" by a state of a medical board or other state agency would likely be decided on a case by case, the FTC told the AAPA, and determining just how much active supervision is needed will require "additional interpretation," according to Radix.
The AAPA has asked the FTC to provide a similar perspective to the one written for APRNs for PAs, and provided the agency with a bibliography of research and analysis on PA practice. They are awaiting a response from the agency, she noted.