Before the Committee on Consumer Protection and Professional Licensure
The Massachusetts Medical Society (MMS) appreciates the opportunity to provide comment relative to and to express concern about House bill 4188, “An Act Relative to State Oversight of Professional Licensing Boards.” The Medical Society supports the intent of the bill, as indicated on the Governor’s covering letter to legislature and as confirmed by his representatives at this bill’s hearing before your committee, which is to ensure immunity of licensing boards and their board members from anti-trust claims pursuant to the recent Supreme Court decision, North Carolina State Board of Dental Examiners v. FTC (North Carolina Dental Board). The Medical Society values the expertise and dedication of the members of the Board of Registration in Medicine. Assurance that they are free from personal liability is critical to promoting the preservation of good medical practice in the Commonwealth.
The Medical Society has concern about this bill on two fronts: first, we believe that some slight amendments to this bill could help avoid interpretations that could lead to a misapplication of the precedent established by North Carolina Dental Board. Second, the Medical Society has concern with some ambiguous language that we believe is superfluous to the language needed to ensure compliance with the Supreme Court. We believe that these two amendments provide a strengthened bill that is consistent with the Governor’s intent of securing anti-trust immunity for professional licensing boards through legislative mechanisms providing for active supervision.
The Medical Society has concern about the addition in this bill of a new, ambiguous requirement the Board of Registration of Medicine be supervised by the Commissioner of the Department of Public Health. Lines 125-130 of this bill make broad provisions for “supervision of work” with no detail regarding what that oversight entails. The North Carolina Dental Board decision is explicit in the exact question that must be answered to provide “active supervision” required to ensure anti-trust immunity. We do not believe that this new supervisory requirement in lines 125-130 furthers the Governor’s stated intent of this bill which is to ensure “active supervision” pursuant to the Supreme Court case. In fact, the Supreme Court explicitly addresses the distinction between “active supervision” pursuant to anti-trust immunity and supervision of day-to-day activities. The North Carolina Dental Board opinion states, “Active supervision need not entail day-to-day involvement in an agency’s operation or micromanagement of its every decision.” In light of this explicit clarification by the Supreme Court, the Medical Society urges the striking of this general, ambiguous supervisory provision of the bill, as it does not further the intent of the bill to ensure compliance with the Supreme Court decision. The Medical Society also does not believe, in light of the aforementioned quotation from the decision, that lines 130-131 which call for the ability of commissioner to “recommend changes in the methods of conducting examinations and transacting business” are necessary to comply with non-day-to-day active supervision requirement set forth by the Supreme Court.
The Medical Society also has concern that the language in this bill providing supervision of certain board decisions may not fully comply with the “active supervision” requirement as set forth by the Supreme Court. Pursuant to North Carolina Dental Board, the Board of Registration in Medicine, a non-sovereign actor comprised of active market participants, must have an oversight structure that provides for the consistent and substantive enforcement, including the power to veto or amend, of one question: does any anti-competitive conduct of the board promote state policy, rather than merely the Board’s individual interests?
To produce a bill consistent with the question, the Medical Society provides the following suggestions.
In SECTION 10, the first paragraph should appear as follows:
Section 1. The commissioner of public health shall supervise the work of the board of registration in medicine, the board of registration in nursing, the board of registration in pharmacy, the board of registration of physicians assistants, the board of registration of perfusionists, the board of registration of nursing home administrators, the board of registration in dentistry, the board of registration of respiratory therapists, the board of genetic counselors, the board of certification of community health workers. The commissioner shall recommend changes in the methods of conducting examinations and transacting business. Without limiting power conferred upon the commissioner by this section or by any other general or special law, the commissioner shall have authority to approve or to disapprove or to rescind in part or in full any act , rule, regulation, or policy proposer implemented by any board under her supervision the board of registration in medicine, the board of registration in nursing, the board of registration in pharmacy, the board of registration of physicians assistants, the board of registration of perfusionists, the board of registration of nursing home administrators, the board of registration in dentistry, the board of registration of respiratory therapists, the board of genetic counselors, the board of certification of community health workers on determining that whether the act, any rule, regulation, or policy that may restrain competition or potential competition in trade or commerce is inconsistent with the promotion of state policy. Any approval or disapproval or rescission under this section shall be in writing and shall set forth the particular reasons supporting the commissioner’s determination. The commissioner shall make such reports to the governor as the governor may require or the commissioner may deem expedient. The commissioner may, when necessary, delegate her duties under this section to a designee approved by the secretary of health and human services.
Again, to summarize the amendments offered above, the Medical Society does not believe that the first two sentences of this paragraph providing undefined supervision is required because of the explicit assertion by the Supreme Court that day-to-day supervision is not required to achieve “active supervision.” We would further point out that there are other existing supervisory provisions currently in statute including the Governor’s appointment of all Board Members, as well as a statutory provision providing for the Department of Public Health to approve regulations and an executive order requiring the same from the Executive Office of Health and Human Services. Nonetheless, we appreciate that some amendments to the current statutory oversight structure may be necessary to ensure compliance with the recent court decision.
The Medical Society thus supports the third sentence of the paragraph, as amended above, to ensure that the supervisory requirement set forth in this bill is best aligned with the active supervision language of the Court’s decision. We believe these amendments will ensure consistency with the Governor’s intended goals and will provide the requisite active supervision for full board immunity. Lastly, the Medical Society is unsure of the intended definition of “act” and wants to be sure that this does not apply to legislation duly passed by the legislative process.
The Medical Society appreciates the opportunity to provide comment. We strongly value the Board of Registration in Medicine, as well as other trade and professional boards, and we believe the bill will be strengthened by the comments presented.
