Overlooked court case puts industry-friendly state medical boards on notice

You can be forgiven for not noticing that the U.S. Supreme Court made a sea-change decision about state regulatory boards, including state medical boards. The courts consideration of major, history-making cases on marriage equality, the Affordable Care Act, and other issues soaked up a lot of ink.

But a coalition of public interest groups is here to help you pay attention to a lesser known decision by the court. This week Consumers Union, the Citizen Advocacy Center, and the Center for Public Interest Law at the University of San Diego School of Law sent letters to every state attorney general in the country telling them that they needed to take action.

The attorneys general, the groups told them, needed to start forcing state medical boards to transform themselves from industry-regulating-industry boards composed mainly of doctors to a model where members from the general public occupy most of the board seats.

Here’s a little background:

In February 2015, the U.S. Supreme Court ruled in the case of North Carolina State Board of Dental Examiners v. Federal Trade Commission. The actual court ruling is so wonky that it even went over the head of most policy wonks. It says, basically, that state agencies cannot be controlled by “active participants” in the regulated trade or profession lest they run afoul of antitrust laws. The coalition of consumer advocates wrote to each state saying:

Accordingly, your board and commission members are theoretically vulnerable to federal felony prosecution and civil treble damages – and your indemnifying state budget may be similarly exposed.

I have not performed an actual count of the makeup of every state medical board. (But the night is young.) From my previous tour of state medical boards coast to coast, I think it is safe to assume that most are dominated by physicians. Let’s just pick a state at random and see.

Ohio.

There are 10 members of the State Medical Board of Ohio. Here’s the breakdown:

Seven are either medical doctors, osteopathic doctors, or podiatrists.

Three are consumer members, meaning they are not medical professionals. To be clear, 70 percent control by medical professionals would constitute a state agency run by “active participants” in the regulated trade or profession.

That may change.

Lisa McGiffert, director of the Safe Patient Project of Consumers Union, the advocacy division of Consumer Reports, said in a prepared statement:

This arrangement of licensees controlling the licensing and regulation of their fellow professionals too often interferes with protecting the interests of the public. The implications of the North Carolina case have not been widely recognized as an opportunity to finally establish unbiased oversight of professionals of all types that puts the consumer first. While trade associations may well resist adding public members or submitting to review from a neutral body, that is exactly what should happen.

The groups have asked each state to review the composition of their various trade boards – including medical boards – and to provide documents to the groups. I will keep tabs on how this unfolds over the next few weeks. As anyone in the legal profession knows, there are always loopholes. As momentous as this sounds, it may result in very little if the states feel no pressure to act.

Photo by Daderot via Wikimedia Commons.