AOA calls for antitrust protection before Supreme Court case

October 10, 2014
Supreme Court case could impact regulation of state boards

With a Supreme Court case looming that could affect how state boards regulate professions—including optometry—the AOA is taking action. The AOA contends that state optometry and other licensing boards should not be subjected to federal antitrust scrutiny and oversight.

On Oct. 14, the United States Supreme Court is scheduled to hear North Carolina State Board of Dental Examiners vs. Federal Trade Commission, a case with implications for regulations on professions and on nonlicensed professionals.

An earlier ruling by the Fourth Circuit Court of Appeals determined that North Carolina's state dental board was a "private actor," meaning it would not qualify for exemption from federal antitrust laws unless it followed certain provisions, such as being actively supervised by the state.

Depending on how the high court rules on the earlier decision by the appeals court, the case could affect all state licensing boards, not just dentistry.

AOA calls for antitrust protection

The AOA opposes the Fourth Circuit Court's decision on the basis that it would subject state optometry boards and the ODs who serve on them to unnecessary antitrust liability.

In September, the AOA, in conjunction with 49 state affiliates, submitted an Amicus Curiae or "friend of the court" brief to the Supreme Court expressing those views. The California Optometric Association in the meantime submitted a similar, separate brief to the high court.

The brief makes the argument that state regulatory boards do qualify as "state actors" and should therefore be protected from federal antitrust laws and oversight by the Federal Trade Commission.

According to the brief, subjecting state licensing boards to this type of scrutiny would create a chilling effect where qualified ODs, for example, might not want to participate. "Doctors are the best qualified and necessary individuals to establish the minimum standards to protect the public health and welfare," the brief stated.

As with dentistry, state boards regulate optometry in all 50 states, with the requirement that ODs participate in these boards. For more than 30 years, antitrust liability has never been an issue for members of these boards, according to the AOA's brief.

If the high court upholds the appeals court's ruling, the decision is narrow enough that it's unlikely to reach beyond the North Carolina Dental Board. However, if it expands the decision to look at boards regulating nonlicensed professionals, it could have an impact on state optometry boards.

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