SCOTUS Ruling on Medical Boards Could Have Telehealth Implications

April 1, 2015 in News

A U.S. Supreme Court decision last month could have a significant effect on the ability of state medical boards to prevent companies from offering telehealth services, according to experts, MobiHealthNews reports.

Background on Case

At issue in North Carolina Board of Dental Examiners v. Federal Trade Commission is whether medical boards comprised of private professionals are exempt from federal anti-trust laws.

The North Carolina Board of Dental Examiners — which includes practicing dentists — had been sending cease-and-desist letters to non-dentists who offer teeth whitening services. FTC argued that such action violated the Sherman anti-trust laws, which prohibit anti-competitive practices such as price-fixing and limits on who can enter the industry. However, the dental board argued that it was protected by the “state actor defense.” 

Stuart Gerson –  a member of Epstein Becker Green and former acting attorney general of the U.S. — said, “A long time ago, the courts crafted the so-called state actor defense, which tolerates what otherwise would be anti-competitive activity in the name of some dedicated state police power interest — generally health, welfare, safety of the population.”

In a 6-3 ruling in February, the Supreme Court concluded that medical boards comprised of private professionals are not exempt from federal anti-trust regulations unless they are directly overseen by full-time agents of the state, MobiHealthNews reports.

Implications for Telehealth

State licensing boards — which generally are comprised of practicing physicians — often are the biggest barriers to interstate telehealth. According to experts, the Supreme Court’s ruling could give more legal standing to telehealth firms that believe state medical boards are putting an unfair burden on them to limit competition.

Gerson said, “What I know is that state medical boards are increasingly interested in telemedicine, and there is at least a threat of undue regulation,” adding, “I don’t know of a specific case. … But I think it’s a plausible threat, depending on the state.”

American Telemedicine Association CEO Jonathan Linkous said the case “didn’t have a direct impact on telemedicine, but the implications can be drawn that questions will be raised about any effort by a medical board to restrain trade only to physicians or only (to certain) types of services” (Comstock, MobiHealthNews, 3/30). 

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