Should Doctors and Dentists Regulate Their Competitors?

An article in Modern Healthcare, “Should state medical boards be allowed to set scope-of-practice? Supreme Court will decide,” poses an important question that would seem like a no-brainer at first glance. Yet, the question deserves a second look. State medical boards are typically composed of members from the industry the board regulates. Thus, it’s common for these boards to take positions in the industry’s self-interest. At issue is an effort by the North Carolina Board of Dental Examiners to prohibit dental hygienists from performing teeth whitening services in mall kiosks, day spas and non-dental offices. Dentists who offer teeth whitening in their offices often supervise dental technicians and hygienists, who perform the actual service. Allowing those same dental technicians and hygienists to perform the work without the supervision of a dentist undercuts dentists’ prices and reduces their profits. According to Modern Healthcare:

The removal of stains from teeth can be a lucrative business for dentists. Starting in 2003, the dental board sent out numerous cease-and-desist orders to competitors who were accused of illegally practicing dentistry. The Federal Trade Commission (FTC) sought to encourage price competition for peroxide treatments by forbidding the state dental board in 2011 from taking action against lower-cost providers that offer teeth-whitening services. A federal appeals court upheld the FTC decision in 2013.

As you would expect, the medical community disagrees with the FTC. Professional associations for doctors and dentists argue that public health considerations (for example, letting doctors and dentists regulate who is allowed to compete against them) should take priority over antitrust law and the mere desire to promote competition. The American Dental Association, the American Medical Association and the Federation of State Medical Boards submitted a friend-of-the-court brief, arguing:

This result would interfere with a long tradition of regulation of the medical professions by boards composed of experienced and practicing doctors, which stretches back over 150 years and is based on virtually uniform state legislative judgments that such practitioners are best qualified to promote the public health.

Medical licensure and the state medical boards that govern the practice of medicine within each state has often been described as a self-regulating cartel. Nobel laureate Milton Friedman and many other economists have argued state licensure restricts the supply of physicians and stifles competition. Medical licensure is purportedly maintained for the protection of the public. But, what should be done when, while in the process of protecting the public from providers of dubious quality, the industry also protects itself from competition? That is the question the Supreme Court will decide next fall.

Comments (19)

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  1. Thomas says:

    While I feel there should only be regulations in safety to protect the consumer, regulations should not extend to tamper with competition. If there was no danger in the peroxide treatments for consumers, then they should not be regulated only because they provide an alternative to teeth whitening.

  2. Rick Coker says:

    An interesting question, and a relevant one. One of the hallmarks of any profession is putting the interests of the patient/client above the interest of the provider (doctor/dentist/lawyer, etc). But we all know that is an easy bond to be broken, there is a lot of grey.
    But, to convert to a purely free market economic model, where anyone can buy some dental equipment and start working, you certainly have the potential for damage and harm- I think any reasonable person can see that, as well.
    The legal system isn’t prepared to handle issues and complaints about poor or substandard treatment, so the state Boards seem to be the dumping ground for those concerns. What would be a better way? Isn’t some training and proof of competence important in ANY profession- doctor, airplane pilot, engineer, architect? Does a building have to fall down before questions are asked about the builder? Good questions, hard answers!

    • Jerome Bigge says:

      There are private organizations that can “certify” people for having the knowledge to perform a task. There are also private organizations such as “Consumer’s Union” (Consumer Reports) that actually do review both services and products. So the consumer is not by any means unable to obtain the necessary knowledge to make informed decisions. Government licensing is actually thus unnecessary.

      The necessary degree of skill needed to perform a task depends a great deal upon what the task is. The professions seek to “reserve” for themselves tasks that could be easily performed by lesser skilled or educated people. Effectively the professional organizations function the same way as labor unions such as the UAW and with the same objectives. Better pay and benefits for members… The professions seek a “closed shop” where only the members of their profession are allowed to work. No different in principle from any union.

  3. Buddy says:

    “State medical boards are typically composed of members from the industry the board regulates. Thus, it’s common for these boards to take positions in the industry’s self-interest.”

    When state boards are comprised of people within the industry acting in their own self-interests, you can almost guarantee they will not favor in competition against their practice.

  4. Rick Coker says:

    The dentists I know who have served on State Boards say that most of their time is spent dealing with drug issues, child abusers, insurance manipulation and theft, and that is a true “dirty clean up job”.
    You have to know that awareness is there, but at the same time, you expect for most professionals to rise above it, to take a balanced view.

  5. Devon Herrick says:

    This is a legitimate question: when professional knowledge is needed to regulate the practice of medicine, what can be done to prevent industry insiders from using their power to protect their industry from competition? More simply, what can be done to balance the needs of patients’ access to care and patient safety?

    This is more difficult that it sounds. If you were to ask all the doctors, dentists and veterinarians on all the state medical boards if they are purposely protecting their professions’ turf for the benefit of insiders, most would (honestly) tell you their only interest is protecting the public. That is the nature of medical boards. It is easy to take a position that favors the industry when you honestly believe putting licensed physicians in charge of all lesser-trained medical professionals is the publics’ best interests. The High Court has to decide what much risk Americans should be allowed to accept in the search for lower-cost medical care.

    • Matthew says:

      The difficult decision here is which tradeoff is stronger: patient safety or market competition?

    • Jerome Bigge says:

      Members of labor unions will claim that having union workers (instead of non-union workers) means a better quality of work is performed. Principle is the same in both cases. An economic “carve out” where only the “membership” is allowed to work.

      For those curious, see my blog at “”.

  6. Christa says:

    The decision may have little effect on other states because the issue in the case is whether the dental board can really be considered a “state” entity. North Carolina seems to have a somewhat unusual board structure, in that the members are elected, only by the regulated profession, and upon the nomination of as few as 10 members of the profession. The only political appointee (that is, the only member at least theoretically accountable to the voters) is a non-practitioner consumer member who is prohibited from voting on significant matters like licensure revocation.

    Other states’ boards are more connected to their government identities by gubernatorial appointment of members, legislative confirmation, or approval of board actions by a state appointee or elected official, for example.

    However, an open debate about the anti-competitive aspects of laws on scope of practice and physician supervision of allied health professionals is long overdue. Unfortunately, federal government, rather than states, that initiated it.

  7. Jimbino says:

    There is no justification for licensing of professionals of any kind as long as a 14-year girl can have a baby and attempt to rear it with no licensing whatsoever.

  8. Devon Herrick says:

    This case is specifically about the scope of practice of dental hygienists. I’ve reviewed state laws that govern dental hygienists, which can be summarized thusly. In most states, dental hygienists are only allowed to treat patients that licensed dentists don’t want to treat; hygienists working independently are only allowed to treat those patients who cannot afford to pay for their own care. In many states, dental hygienists working independently are only allowed to provide limited services to poor patients, generally only if provided in a public health setting. Places where dental hygienists can treat patients include, patients at community health centers, schools and nursing homes. Basically dental hygienists can either work for a dentists; work with a dentist; or work for a public health agency, school or nursing home. The rest of us patients — the ones who have dental insurance or can pay out of pocket — we are only allowed access to dental hygienist practitioners that work out of a dentist’s office.

  9. charlie bond says:


    While this is a marvelous academic question, which I can just hear Milton Friedman elucidating, the practical reality today is that themedical board in most states does not view itself as arms of the profession but as an arm of law enforcement. In most states, the medical boards hire retired policemen to investigate cases. In California and many other states, those investigators are lawmen who carry guns and flash badges. The system of enforcement is highly prosecutorial.

    So, the suggestion that professionals might use “inside” power for anticompetitive purposes is not realistic in light of the way licensing boards actually run.
    What is more deeply troubling than possible anticompetitive behavior is the abuse of medical boards to conduct harrassing investigations and sham peer review. In a disturbing number of cases, unfortunately medical staffs conduct baseless investigations and level charges. Once levelled, these charges can take on a life of their own. The hospital, not wishing to be sued for having defamed the accused physician, will do everything possible to make the charges stick. If they do stick, the peer review action is reported to the licensing board, and the prosecutorial powers and inclinations at the Board take over. A physician caught in this cycle is quickly dropped by health plan networks and must watch as everything that he or she worked for over a lifetime is ruined. Even if the physician manages to prevail, he/she must disclose the accusation on all future applications–to licensing boards, medical staffs, malpractice carriers and health plans (about a dozen applications each year).

    As physicians move to the employment model, increasingly hospitals are using this reporting power as leverage in controlling physicians. They thus wield, not only the power to hire and fire, but the power to control the physician’s employabilty in the future.

    So the problem with medical licensure is not croneyism at all, but the opposite. It is an unchecked power to accuse, coupled with prosecutorial zeal. The professions in most states let lay investigators drive disciplinary cases. The result is a system now that has the power to destroy simply by wielding the power to accuse.

    Over my 40-year career, I have represented many medical staffs, and continue to do so. if the staff is conscious of its career-ending power, and is truly acting independently of the administration, with independent counsel, peer review can be constructive and beneficial for all–especially the patient. When it is retributive and adversarial–with the individual professional’s reputation and livelihood hanging in the balance–there is little benefit and the potential for a great deal of harm.

    What Uncle Miltie failed to appreciate fully, is that medical licensure is a part of the overall peer review system, and is not an economic regulator per se. Historically, we put medical boards in place to protect the public from quacks and patent medicines. Medical knowledge is essential in evaluating qualifications and performance. Moreover, many cases turn, not on the medicine, but on an understanding of the medical milieu, which only practitioners with experience can judge.

    Reforms are needed in the licensing system, without question. The public and the professions need to craft a system that is not modeled on criminal justice, but is proactive in protecting the public and upgrading the performance of practitioners. Anyone interested in further discussion or input is most welcome to contact me directly at

    Charlie Bond

  10. Jimbino says:

    I appreciate what Charlie Bond has to say, but I heartily disagree.

    First of all, the Medical, Dental and Legal review boards to not serve the public. I once had a complaint against a dentist for bait-and-switch he pulled on me. I got nary a response when I filed a complaint with the dental board.

    So I filed a lawsuit and got a call from the dentist’s lawyer and we came to a settlement, where they transfered cash to me.

    Secondly, I have participated in the design of nuclear weapons, B1 bomber, F111A and other lethal weapons as a physicist, and I have NEVER been licensed. Maybe the gummint figures that if they make it too hard to practice my profession, there are others willing to hire me.

    Physics you can do on the moon, of course. You can’t practice medicine, dentistry or law there without a license, I suppose. You can’t even practice them in the next state without jumping though the licensing hoops again. Amerikans need to get over the idea that licensing protects the consumer or the patient.

    Like I’m always fearful having my hair cut overseas by an unlicensed “cosmetologist”!!!

    Hooray for Uncle Milton!

    • Jerome Bigge says:

      You will note that many of our representatives and senators are members of the professions. Having so many professionals in government is “putting the fox in charge of the henhouse”. The professions get to write legislation in favor of the professions which in turn means the professions get to “rip off” the rest of us even more than before. They are in total just as much if not more an “exploiter class” much like the infamous 1% and the crooks there on Wall Street.

  11. David says:

    As a consumer, I should have the choice of medical, dental, legal, plumbing, auto repair without the provider having to be licensed. Certified, perhaps, and by the same types of entities that currently license. Actually, word of mouth, Yelp and Angie’s List matter to me more than a license.

  12. Jerome Bigge says:

    The same thing is true of prescription laws which give doctors a legal government enforced monopoly over access to medical drugs. This in turn allows them to require more frequent office visits and lab tests from their patients by holding the threat of withholding renewal of prescriptions if the patients don’t comply.

    While this allows US doctors to earn the highest incomes of doctors anywhere on Earth, it also creates a situation where US health care costs are the world’s highest. While at the same time these “unnecessary” office visit create longer waiting times for those people who really do need a doctor’s services…

  13. Rick Coker says:

    There are a lot of things that have to be considered in this conversation, I think. First of all, the medical, legal and dental boards were started in response to hucksterism and fraud and malfeasance, many years ago, before the telephone, much less the internet! Does someone think that we should do away with consumer protection since we now how Facebook, or Craigslist?

    Secondly, the idea of informed choice is great, but if you take your child to a “doctor” who is unqualified and your child dies, yes, you can take him to court and perhaps get a legal judgement, but you don’t get your child back. A properly functioning system to prove competence is proactive- it acts to prevent disasters. But preventing problems or disasters is not so rewarding- there isn’t any drama in “not dying” from malpractice, we assume things will be okay.

    In a true “free market” system how can you expect people to know every single aspect of quality and reliability of the thousands of things we rely on daily? Just think of the things we take for granted BECAUSE of our systems for inspection and qualification, even though things do happen. Should I get out and personally inspect every bridge and overpass I drive over? How do I know my food is edible and not contaminated? How do you know that airplane will fly? The tort system isn’t set up to handle all those millions of issues that would come up.

    It is a system, and the medical boards are part of the system, and the notion of anti-competitive actions has taken hold in some part, I see a great deal of ingenuity and entrepreneurship in dentistry today- in making dentistry less expensive and more available to more people. Corporate dentistry is simply one of those things- and it has pluses and minuses, as well. In Texas last year, some 70% of the complaints to the State Board were complaints about the behavior of dentists within corporations, for instance.

    There aren’t easy answers to these questions!

    • Jerome Bigge says:

      People can be certified to perform certain tasks. As a former computer technician I was “certified” by a private agency after passing a written test on the subject. (this was back in 1998) Auto mechanics are certified to perform certain repair services. Before you can get a driver’s license, you have to pass both a written test and demonstrate your skills on the road. I do know that lawyers have to pass a “bar exam” regarding their knowledge of the law.

      I should note that a century ago lawyers studied the law under a more experienced lawyer and if they could pass the exam, become lawyers. The same thing was true at one time of medicine. So the idea of a requirement of formal education didn’t exist prior to about the end of the 19th Century.