Individual members of state medical boards can be sued for antitrust violations thanks to the Supreme Court’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, which has now led to at least five such suits against health licensing boards across the country, according to POLITICO.
The 2015 ruling said state medical boards could only claim immunity from antitrust suits when the board is actively supervised by state government and its regulation is “a clear expression of state policy.” The Court’s decision was meant to prevent a state board made up of active participants in the market the board regulates, in this case dentists, from using its authority to benefit individual members.
Telehealth companies have begun using this ruling to their advantage in challenging state boards’ regulations. In one example, Dallas-based Teladoc successfully argued to the U.S. District Court for the Western District of Texas that the Texas Medical Board couldn’t require “a face-to-face visit” with a physician before any prescription can be written, a regulation Teladoc argued amounted to a ban on seeing Texas patients.
The Teladoc suit named all 14 members of the board individually, a development which worries groups like the Federation of State Medical Boards.
“This is something that’s certainly going to have a chilling effect on people’s willingness to serve on professional licensing boards because they’re basically volunteers,” Lisa Robin, the group’s chief advocacy officer, said to POLITICO.
The federation had submitted written testimony to Congress about the issues raised in the NC Dental case in February, arguing that since all 50 state medical boards include practicing physicians “it is in the best interest of the public for the medical profession to be regulated by knowledgeable health care professionals who have practical experience in the profession that they are regulating.”
The Court’s decision may be challenged within the Teladoc suit, which is still making its way through federal courts. The Texas board’s deadline to file a brief in the case has been extended several times, POLITICO reported, with the latest due date set for June 2.