Scope of practice at center of Supreme Court case

Authority of professional licensing boards in question

Published: June 24, 2014
By Christy Corp-Minamiji, DVM

Photo courtesy of Dr. Fraser Hale
A dental explorer is used to confirm pulp exposure on a fractured premolar in an anesthetized dog. Dental pathologies such as tooth fractures, damaged roots and periodontal disease require a trained eye to identify. Veterinarians maintain that allowing unlicensed personnel to hand-scale teeth in an unsedated pet increases the risk of such diseases going untreated.
Veterinary regulators' ongoing struggle to rein in lay practice soon will meet its most significant challenge to date: U.S. Supreme Court scrutiny.
Justices agreed in March to review a Fourth Circuit ruling that backs a Federal Trade Commission (FTC) antitrust case against the North Carolina Board of Dental Examiners. The board, overseeing the practice of dentistry in people, sent cease-and-desist letters to unlicensed practitioners who removed stains from teeth. FTC officials accused the board of illegally excluding non-dentists from the teeth-whitening market.  

North Carolina regulators insisted that FTC laws didn't apply to the agency. The Fourth Circuit Court of Appeals, however, disagreed: "The board’s actions are those of a private actor and are not immune from the antitrust laws under the state action doctrine," Judge Dennis Shedd wrote in his opinion.

While the conflict involves a dental board, the outcome potentially could affect all professional licensing boards, whose job is to interpret state laws governing professions, including veterinary medicine. If the Supreme Court upholds the lower court ruling, the authority of any licensing board to define practice could be in question.  

“Sometimes definitions in a state practice act are broad — for instance, what is dentistry,” said Adrian Hochstadt, assistant director of state legislative and regulatory affairs at the American Veterinary Medical Association (AVMA). “Boards do a lot of interpreting what (a) practice act means. This is a traditional power, now being challenged by the Supreme Court case.”  

While the authority to regulate the practice of licensed professionals clearly rests with licensing boards or professional colleges, the question of who decides what procedures fall under boards’ jurisdiction — an area often called “scope of practice” — and who oversees lay practitioners is murky.  

Certain procedures in the mouths of human and veterinary patients alike frequently are done by unlicensed practitioners. For example, teeth-whitening services commonly are available at day spas and even mall kiosks in the United States. Pet groomers often offer non-anesthetic dental scaling, scraping tartar off of the surfaces of teeth with hand instruments. The equine field has a long tradition of lay “teeth floaters,” people who file down the sharp points that can develop on horses' teeth, cutting into the cheeks and tongue.  

These lay practices dismay licensed dentists and veterinarians, who maintain that these procedures put patients at risk of injury to the mouth, and decrease the opportunities for existing disease to be diagnosed and treated. Lay practitioners and business advocates in turn argue that requiring a professional license to perform less-invasive procedures restricts trade and drives up prices.  

The Supreme Court is scheduled to hear North Carolina Board of Dental Examiners v. Federal Trade Commission during its next term, which begins in October and runs until June or July 2015.  

The AVMA was one of a number of professional organizations to file an amicus brief in the case. “We think the boards have a role in defining practice and making sure that only qualified people are practicing,” Hochstadt said. “It impacts animal and public health.”

But to what extent the decision will influence veterinary medicine is unknown, Hochstadt said.

“It will be interesting to see what they will say as far as antitrust goes,” he said. “There are a lot of aspects to this, including how a state board is selected. In the North Carolina case, the board is selected by the profession. I don’t believe that is the case with most veterinary boards. We have to see to what degree veterinary boards will be affected directly.”  

A central question is whether the North Carolina dental board is exempt from the Sherman Antitrust Act. Generally, government entities, such as boards whose members are chosen and/or whose activities are regulated by a state, are exempt. But the dental board in North Carolina is composed almost entirely of practicing dentists. The appellate court did not consider it to be under sufficient government oversight to qualify for an antitrust exemption.

In Canada, concerns around who may provide dental procedures are similar, but recent court action there came out differently. In March, the College of Veterinarians of Ontario obtained an order from the Ontario Superior Court of Justice against a groomer performing dental cleanings on dogs and cats. The order states that the groomer, her business and any employees of the groomer must refrain from scaling or polishing the teeth of and/or performing dental hygiene on an animal, although brushing, flossing and using a non-clinical breath spray are not prohibited, according to the college.

College Registrar and CEO Jan Robinson said in an interview: “I can’t speak for all provinces, (but) in Ontario, we do have scope-of-practice protection as well as title-of-practice protection. Anyone practicing veterinary medicine or using the title of veterinarian … can be investigated."  

Trade protections are handled differently in Canada from the United States, Robinson said: "In Canada, we have a federal agency known as the Competition Bureau. They conduct reviews of regulators and their rules related to business practice. My experience has been that they generally don’t move in direction of what … defines the scope of practice of a profession; certainly not as vigorously as some things get pursued in the U.S."  

However, Robinson said, the college’s motivation for seeking an order against the grooming business Pup Star was less about protecting veterinarians’ scope of practice and more about protecting animals and their owners.  

“In the short term, the external cleaning and polishing (done by groomers) gives the public an uninformed view that all is well in the mouth,” Robinson said. But an untrained cleaner could well miss “trigger signs” of problems that a licensed practitioner would know to look for, she said.  

Dental and veterinary groups in the United States make the same argument that restricting all dental procedures to licensed professionals protects patients and consumers.  

David Kirkpatrick, an AVMA spokesman, highlighted in an interview the potential for untrained individuals to damage the teeth or other tissues of the mouth, or to be bitten themselves by an inadequately sedated or restrained patient.  

The AVMA’s Model Veterinary Practice Act categorizes dentistry as a veterinary procedure. “We firmly believe that (dentistry) is the practice of veterinary medicine,” said Dr. Patricia Wohlferth-Bethke, assistant director of the AVMA membership division.  

But the AVMA’s model practice act is just that — a model. Individual states’ veterinary practice acts may or may not match.  

Some states’ practice acts do include dentistry and dental procedures in the list of veterinary services. For example, the Vermont Board of Veterinary Medicine defines “dental operations” as:  

(i) The application or use of any instrument or device to any portion of an animal’s tooth, gum, or any related tissue for the prevention, cure, or relief of any wound, fracture, injury, or disease of an animal’s tooth, gum, or related tissue; and

(ii) Preventive dental procedures, including the removal of calculus, soft deposits, plaque, or stains or the smoothing, filing, or polishing of tooth surfaces.  

Under the definition of “practice of veterinary medicine,” it lists “To perform a dental operation on an animal.”  

The wording of this legislation would make hand-scaling of a pet’s teeth by a layperson in Vermont illegal.  

The issue is treated differently in other states. In Oklahoma and in Texas, for example, efforts to restrict equine teeth floating to veterinarians were met with pushback from lay practitioners, consumer groups and the FTC.  

A proposal by the Texas Board of Veterinary Medical Examiners to include teeth floating in the definition of veterinary practice was quashed by a court ruling after the FTC objected to the new regulation.

Today, the Texas Veterinary Licensing Act contains a definition of equine dentistry and stipulates that these procedures must be performed by a veterinarian or a “licensed equine dental provider.” At the same time, the section detailing the powers and responsibilities of the Texas board states, “The board may not adopt rules that unreasonably restrict the selection by the owner or other caretaker of an animal of a licensed equine dental provider who is in good standing to provide equine dental services.”  
Update: In February 2015, the U.S. Supreme Court upheld the Federal Trade Commission's assertion that professional licensing boards are not immune from antitrust laws when their members participate in the occupation they regulate. The court ruled that an exemption applies only if a board’s conduct is actively supervised by its respective state.

The FTC subsequently posted guidance for regulatory boards on what constitutes antitrust compliance. The guidance addresses when a board requires active supervision by its state in order to invoke an antitrust exemption; and what factors are relevant to determining whether the active-supervision requirement is satisfied.

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