Sunday December 17th 2017

Who’s smiling now?

Lisa Summers

Sometimes the American Nurses Association’s policy and advocacy work on behalf of advanced practice registered nurses is obvious and easily understandable, such as lobbying for a bill to allow APRNs to order home health services or meeting with a government agency to ensure the inclusion of APRNs in a new health care program. A case recently decided by the Supreme Court regarding the ability of non-dentists to offer teeth-whitening services in North Carolina is a less obvious example. Why did ANA file an amicus brief in North Carolina State Board of Dental Examiners v. Federal Trade Commission, and why do we want our members and state associations to know about it?

ANA was interested in the case because of the potential impact on state regulatory boards, particularly in situations where the actions of a board might be seen to be anticompetitive. In North Carolina, the Dental Board determined teeth whitening to be the practice of dentistry and sent cease-and-desist letters to non-dentists offering teeth whitening services. The Federal Trade Commission (FTC) filed a complaint, alleging that the board’s actions “constituted an anticompetitive and unfair method of competition under the FTC Act.” ANA, along with four other national nursing organizations and the Citizen Advocacy Center, filed an amicus brief in support of the FTC. (Read more in “FTC policy paper examines competition and the regulation of APRNs” on TheAmericanNurse.org.)

The ruling, which is of great interest from an antitrust law standpoint, is difficult to briefly summarize but centers on the concept of “state action immunity.” State action doctrine is grounded in principles of federalism and the recognition that antitrust law was not intended to limit state sovereignty. Consequently, a board’s regulatory action may restrict market entry or restrain rivalry and therefore violate antitrust laws, but the board and its members may be entitled to immunity. In order to claim such immunity, however, the board and its members must meet certain requirements, including “active supervision.” The court ruled that “a state board on which a controlling number of decision-makers are active market participants in the occupation the board regulates must satisfy [the] active supervision requirement in order to invoke state-action antitrust immunity.”

What constitutes active market participants? What constitutes active supervision by the state? How might states respond? And how might this ruling affect future laws and regulations governing the relationship between APRNs and physicians? As is often the case, the answer may be quite different from state to state. And it may take a while before legislators, regulatory boards and other stakeholders are ready to take the next steps.

ANA has prepared a summary of the case to share, continues to engage in conversations with antitrust experts and is monitoring the impact of the ruling.

While the importance of teeth whitening in North Carolina may not have seemed apparent, it has created an important opportunity for ANA to continue its advocacy on behalf of APRNs. While much remains to be seen, this is an opportunity to “level the playing field” and permit APRNs to compete in a health care marketplace that provides for consumer choice and protection.

Read ANA’s statement and watch for forthcoming guidance on www.nursingworld.org.

— Lisa Summers is the senior policy fellow in Health Policy at ANA.

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