May 02, 2014
ASA Urges FTC to End State-Level Overstep
On April 30, the American Society of Anesthesiologists® (ASA®) submitted formal comments to the Federal Trade Commission (FTC) strongly urging the FTC to modify its current position on the application of the state action doctrine to state licensing authorities and end its related enforcement policies against those agencies. The comments provided “The FTC has no particular expertise in regulating health care and risks inflicting serious harm on patients by adopting enforcement policies that appear intended to promote competition over quality of treatment and patient safety.” ASA’s comments further explained the importance of states being able to regulate health professionals, promoting competition that leads to high quality patient care and protects patient safety.
The comments were submitted in response to the FTC’s March 2014 Public Workshop “Examining Health Care Competition.” The purpose of the Workshop was to examine trends and activities potentially impacting competition in the growing health care industry.
While commending the FTC for its efforts to learn more about the importance of professional regulation, ASA’s comments focused on the positive impact of professional regulation in anesthesiology and pain medicine and the need for FTC deference and application of the state action doctrine to professional regulation by state medical boards. The comments provided in part “There are important patient safety reasons to limit the full practice of anesthesiology to physician anesthesiologists and to require physician supervision of nurse anesthetists. These regulations are actually pro-competitive in that they reduce costs to patients and society, and enhance informed patient decision-making.”
The state action doctrine provides immunity for certain policy actions by state and local authorities. Historically, the FTC has honored the state action doctrine regarding health care. Unfortunately during recent years, the FTC has become increasingly more activist, seeking to interject itself in state health statutory and regulatory matters. The ASA is ensuring the FTC is aware of physician anesthesiologists’ profound patient safety related concerns with the agency’s expanding involvement in state-level legislative and regulatory activity.
In March, the FTC released a policy paper titled “Policy Perspectives: Competition and the Regulation of Advanced Practice Nurses” (APRN). The paper opined that broader APRN scope of practice is good for consumers and competition.
Also in March, the U.S. Supreme Court announced it would hear arguments in North Carolina State Board of Dental Examiners v. FTC. At issue is whether the antitrust state action doctrine protects the work of state licensure boards. Previously, ASA joined the American Medical Association, the American Dental Association, and other health care groups in a friend of the court brief in support of the North Carolina State Board of Dental Examiners’ request for review of the appellate court’s decision. That brief was filed November 27, 2013.
In correspondence and a face-to-face meeting, ASA had previously expressed grave concern to the FTC about the Commission’s letters to state medical boards and legislatures inducing boards and legislatures to take action contrary to patient safety.