I've always thought that state regulatory boards were in a strange "conflict of interest" situation that made them appear to be working to restrict the supply of people in their profession more than trying to protect the public. Even when their obvious goals were to protect the public, they were always under suspicion and had to go out of their way to avoid the "appearance" of a conflict of interest. Michael Hiltzik's column in today's Los Angeles Times explains how that situation might change a lot based upon the February 25 2015 Supreme Court ruling on
NORTH CAROLINA STATE BOARD OF DENTALEXAMINERS v. FEDERAL TRADE COMMISSION. See Michael's article at this link.
Supreme Court ruling puts state regulatory boards in crosshairs - LA Times
Michael Hiltzik
With respect to this Supreme Court case, it is clear to me that "tooth whitening" does not require the same sort of regulation that dentistry requires. However, It probably does need some sort of regulation to protect the public from poor sanitization etc. The essence of the case is should a state regulatory board be exempt from antitrust law, which would, in effect, protect professionals serving on a state board if they "restrained trade" by monopoly-like practices. See this
SCOTUS Blog. The fact that the Dentist profession wanted to maintain control over that procedure does appear to be an attempt to restrict the supply of teeth-whitening service providers and keep the profits from that service for the Dentists. The same concept could apply to almost every other state licensing board, in every state. Doctors, dentists, contractors, lawyers, hairstylists, swimming pool maintainers, and Realtors all are in the same situation.
One of the problems is that the best people to write laws about a specific profession and enforce those laws are the people who know the most about the field. So, for example, the Dentists propose the laws, serve on the Dental boards, and hole hearings and either perform or recommend discipline when malpractice is determined. Discipline is often very slight and usually very slow, even for egregious offenses. Professionals are viewed as loathe to discipline members of their own ranks.
Another part of the problem is that the top members of a professional hierarchy are often the ones who serve on boards regulating professional requirements for "lower tier" professions. For example Dentists are the board members who write and enforce the rules for dental hygienists and dental assistants. Medical doctors serve on the boards that license physician assistants, nurse practitioners, nurses, and the many other lower-tier medical professionals, such as phlebotomists, or x-ray technicians, General contractors serve on the boards that regulate lower tiers such as plumbers, electricians, carpenters, tile setters etc. In Michael's example, Veterinarians regulate Veterinary Technicians That puts those at the top of the hierarchy in a position where they can restrict what those lower tier professionals are able to do in their state to make sure that the members at the top of the hierarchy continue to get their "cut" of the revenue from those lower tier workers. For example, requiring all dental hygienists to work under the direct supervision of a dentist in a dental office -- as opposed to allowing them to open their own office. To reduce the appearance of this apparent conflict, the boards often have "token" representation from the lower tier professions on the board, such as one Veterinary Technician on a board of Veterinarians.
There is a good argument for having those "top tier" professionals serve on the boards for the lower tier jobs. The top professionals are the best educated, usually have the most experience, and have the most to lose. Since the top profession is dependent upon the lower tier, they do need to make sure that they are protected from poor performance from lower tier employees. In many instances, the top profession's liability insurance acts as an umbrella for the other employees.
Serving on a board is usually in imposition on professional's valuable time. Even though most of the boards do pay members for serving it often doesn't represent the full "opportunity cost" to a professional for attending board meetings. They have to make room in busy schedules, they have to consider their employees, travel time, overnight accommodations near the meeting location (often near state capitol cities). and impact on friendships, professional society positions, and personal liability. The goal of altruism and serving the state to improve their profession could easily be overshadowed by the possibility of increasing total earnings by making minor changes in board rulings, license exams, or laws.
I see this Supreme Court ruling as an opportunity to structurally change how many services are provided and reduce the cost of those services to the public, by reducing the ability of professions to earn excess profits from monopolistic pricing. I'm amazed at how much more reasonably priced similar services are in other countries. Dentists in Thailand go through almost the same sort of training, and require the same types of equipment and office operation as used in the US, but high-quality services are provided at much less than half of the costs in the US. I believe services are cheaper in every country of the world. Why do we pay so much more in the US? Possibly because of this sort of board oversight.
My suggestion is that board structures be changed throughout the US. The Supreme Court ruled against the current structure, but did not suggest how it could be corrected. The only advice was that:
1) the challenged restraint on competition is clearly articulated and affirmatively expressed as state policy and
2) the policy is actively supervised by the state.
I will be greatly interested in hearing what the experts come up with. However here are some of my suggestions:
1. No voting member of a professional state regulatory board should be a member of the profession being regulated.
2. Boards should, however, be made up of state-licensed professionals from other professions, with no two members from the same profession, and none, of course from the profession they are regulating. Board members shall have short term limits to make sure that many have opportunities to serve.
3. States need to provide "active supervision" over the board and the professions. So all boards should serve in an advisory role to a state official. A state civil servant shall be assigned to approve all recommendations from the board, and the civil servant shall be nominated by the executive branch and confirmed by the legislative committee(s) that control the profession. The number of civil servants could vary depending upon the number of legislative committees a state has, the size of the profession, etc.
4. Boards should have a budget, from which they can hire professionals (often from the profession they are regulating) to perform studies and provide recommendations to the board. In general, the budget should be proportional to the number of people in the profession being regulated, and should be funded from fees collected for testing, licensing, and annual license renewal fees.
5. It seems crazy for a state to establish a statutory restraint on competition, so I doubt that would happen. But if for some reason a state wanted to do so, it could. Conversely, I believe states should encourage competition and should include the requirement for the boards to take steps to encourage competition as much as possible.
