State regulation and licensure started with professions like law and medicine, but now it applies to a wide range of jobs, from hairdressers to florists. The goal is to protect the public, but sometimes the people in charge of these regulations might make decisions that benefit themselves and not the public. A recent court case in North Carolina clarified that regulatory boards can’t make decisions that hurt competition unless they are actively supervised by the state and following state policy. This has important implications for Florida and its regulatory boards. The Supreme Court ruled that the North Carolina State Board of Dental Examiners violated federal antitrust laws by trying to stop non-dentists from offering teeth whitening services. The board can’t claim immunity from antitrust laws unless its actions are based on clear state policy and supervised by the state. This decision has important implications for how states regulate professional licensing. The federal antitrust laws may not apply to state-imposed restraints on competition if the state has a clear policy to allow it and actively supervises the conduct. In a recent case, the Court ruled that a state dental board was not immune from antitrust laws because it was controlled by active market participants without political accountability. The board did not show that its actions were actively supervised by the state. So, the board was not protected from antitrust laws. When deciding on a case, the Court discussed the need for “active supervision” in state regulation. The Court said that the supervision should provide realistic assurance that a nonsovereign actor’s actions promote state policy, not just their own interests. The Court also outlined some requirements for active supervision to be met. The dissenting opinion pointed out that the majority opinion leaves many unanswered questions and may create practical problems in how states regulate professions. The decision has already led to changes in how some states handle regulatory decisions. The FTC provided guidance to state officials on how to avoid antitrust issues after a court case involving the North Carolina Dental Board. The guidance says that a state regulatory board must be actively supervised if it is controlled by people who are actively involved in the industry it regulates. This means that even if board members temporarily stop working in the industry to serve on the board, they are still considered active participants. The guidance also says that it doesn’t matter if active market participants make up the majority of the board – as long as they have control over decisions, active supervision is required. Active supervision means that a supervisor has gotten all the necessary information, evaluated the recommendation, and made a decision about it. Just monitoring or advising the board does not count as active supervision. There haven’t been many cases about this yet, but it’s an important concept in legal cases involving state regulatory boards. In 2016, the Fourth Circuit was faced with a case involving claims against a state regulatory board by a chiropractor who had been disciplined for misleading patients and practicing beyond her license. The chiropractor filed a separate lawsuit against the board for violating the Sherman Act by conspiring to exclude chiropractors from providing certain services. However, the court ruled that antitrust laws are meant to protect competition, not individual competitors, so the chiropractor’s claims were dismissed. In another case, the Texas Medical Board was sued for adopting rules that restricted telemedicine. The court had to decide whether these rules violated antitrust laws. The court granted a temporary order to stop the rules from being enforced. The court later looked at whether the state had the right to make the rules. The court said that the state did not have the right to make the rules because there were not enough checks and balances in place. The people who make the rules are also in the industry they regulate, and the oversight from the courts and government is not enough. The case went to a higher court, and the decision is still pending. This could affect how similar cases are handled in the future. In Florida, there are also boards that make rules for different professions, and they might need more oversight too. In Florida, professional licensing boards are regulated by the Department of Business and Professional Regulation and the Department of Health. Their main goal is to protect the publicâs health, safety, and welfare. The boards can make rules, but the state government can challenge these rules if they harm the public, restrict competition, or increase the cost of services without benefiting the public. This is to make sure the rules are fair and donât create unfair conditions for businesses. Even though the boards are supervised, itâs not clear if this supervision meets all the requirements under the law. Professional licensing and regulatory boards are like gatekeepers for their professions, deciding who can practice and how. They can limit competition by their decisions. In Florida, most boards can’t control unlicensed activity, but there are exceptions. The law says the government should enforce regulations for all professional activities. The NC Dental case has important implications in Florida. The decision in the NC Dental case has left some uncertainty about how it will affect regulatory boards in Florida and elsewhere. There is a possibility that a Florida regulatory board could face an antitrust lawsuit in the future, which could impact their decisions. There are concerns that board members may act in their own self-interest or be hesitant to address anticompetitive issues out of fear of being sued. There are no perfect solutions to these concerns, but it is important to find a balance that includes input from both market participants and consumer members on regulatory boards. Providing indemnification or insurance for board members may be helpful, but it may not prevent antitrust claims from being brought. The state of Florida needs to make sure that its regulatory boards are actively supervised to protect them from being sued for antitrust violations. They may need to create new positions or change the way they operate to ensure they are covered by state immunity. This issue came up in a legal case called NC Dental, where the Supreme Court ruled that the North Carolina dental board was not protected by state immunity because it was not actively supervised by the state. This means that the board could be sued for antitrust violations. It’s important for Florida to learn from this case and take steps to make sure its regulatory boards are protected. The FTC published guidelines for how state regulatory boards, like the Board of Pharmacy and Board of Dentistry in Florida, should be supervised when they are controlled by people in the same profession they regulate. A court case in Texas involved a company called Teladoc suing the Texas Medical Board because they thought the Board was making unfair rules to hurt their business. The court agreed with Teladoc and stopped the rules from taking effect. There are many different professional licensing boards in Florida, and they have to follow certain rules and can be supervised by the state. This is a message from a lawyer who is also a member of the Florida Board of Architecture and Interior Design. They are talking about laws that protect board members from being sued, but they’re not sure if these laws would apply if someone sued them for breaking antitrust laws. The message was written on behalf of a group that focuses on administrative law. The message also includes a quote about the principles of duty and service to the public in the legal profession.
Source: https://www.floridabar.org/the-florida-bar-journal/regulating-regulators-active-supervision-of-state-regulatory-boards-in-the-wake-of-north-carolina-state-board-ofdental-examiners-v-ftc/
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