© Coalition for Fair Access to Psychology
The Coalition for Fair Access to Psychology
The Regulatory Environment:
Is it Anti-competitive?
Is it Anti-competitive?
After trending toward increasing regulations for several decades, the regulatory environment is shifting. Factors leading to this shift are in part the impact of the Supreme Court ruling in the North Carolina Board of Dental Examiners v. Federal Trade Commission case.
Marketplace factors also impact the regulatory environment, with results which sometimes have unintended consequences. For example the American Psychological Association has long maintained "The Doctoral Standard" for licensure, significantly limiting the availability of persons trained in psychology. Meanwhile, the proliferation of Licensed Counselors and Licensed Mental Health Counselors sometimes has put them in the position of having to provide services which would have been better provided by a psychology practitioner.
North Carolina Board of Dental Examiners v. Federal Trade Commission
from the SCOTUSBlog:
Opinion analysis: No antitrust immunity for professional licensing boards
Eric M. Fraser practices appellate, antitrust, and intellectual property law at Osborn Maledon, P.A.
State licensing boards composed of market participants do not enjoy automatic immunity from antitrust laws, the Supreme Court ruled on Wednesday. The decision in North Carolina Board of Dental Examiners v. Federal Trade Commission affirms the Fourth Circuit and deals a setback to an increasingly common form of regulation.
State action antitrust immunity
Since 1943, certain forms of state action have been immune from the antitrust laws. Accordingly, state legislatures may pass laws with anticompetitive effects. Several important Supreme Court cases since then have addressed the doctrine of state action immunity and helped to define its contours, particularly as it applies to actions outside state legislatures.
Antitrust immunity generally covers non-state actors only if the state both (1) clearly articulates the anticompetitive policy, and (2) actively supervises the policy. This case deals with the second requirement. If a professional licensing board is a state agency, must another state actor supervise the agency in order for the agency to be immune from the antitrust laws?
Read more here.
Marketplace factors also impact the regulatory environment, with results which sometimes have unintended consequences. For example the American Psychological Association has long maintained "The Doctoral Standard" for licensure, significantly limiting the availability of persons trained in psychology. Meanwhile, the proliferation of Licensed Counselors and Licensed Mental Health Counselors sometimes has put them in the position of having to provide services which would have been better provided by a psychology practitioner.
North Carolina Board of Dental Examiners v. Federal Trade Commission
from the SCOTUSBlog:
Opinion analysis: No antitrust immunity for professional licensing boards
Eric M. Fraser practices appellate, antitrust, and intellectual property law at Osborn Maledon, P.A.
State licensing boards composed of market participants do not enjoy automatic immunity from antitrust laws, the Supreme Court ruled on Wednesday. The decision in North Carolina Board of Dental Examiners v. Federal Trade Commission affirms the Fourth Circuit and deals a setback to an increasingly common form of regulation.
State action antitrust immunity
Since 1943, certain forms of state action have been immune from the antitrust laws. Accordingly, state legislatures may pass laws with anticompetitive effects. Several important Supreme Court cases since then have addressed the doctrine of state action immunity and helped to define its contours, particularly as it applies to actions outside state legislatures.
Antitrust immunity generally covers non-state actors only if the state both (1) clearly articulates the anticompetitive policy, and (2) actively supervises the policy. This case deals with the second requirement. If a professional licensing board is a state agency, must another state actor supervise the agency in order for the agency to be immune from the antitrust laws?
Read more here.
www.fairpsychology.org
fairpsych@att.net
Resources:
• The text of North
Carolina Board of Dental
Examiners v Federal
Trade Commission, 574
U. S. ____ (2015)
• The Federal Trade
Commission Staff
Guidance on Active
Supervision of State
Regulatory Boards
Controlled by Market
Participants, Oct., 2015
• FTC: The When and What
of Active Supervision,
Oct., 2015
• The Antitrust Attorney
Blog: Active Supervision
and State Action
Immunity for Licensing
Board Controlled
by Market Participants,
Nov., 2015
• ABA/AHLA Antitrust in Healthcare Conference:
"State Action Issues in
the Wake of the North
Carolina Dental Board v
Federal Trade
Commission Case,"
May, 2017
• The State Center’s Primer
for State Regulatory
Board Supervisors and
Counsel, Jan., 2017
• The text of North
Carolina Board of Dental
Examiners v Federal
Trade Commission, 574
U. S. ____ (2015)
• The Federal Trade
Commission Staff
Guidance on Active
Supervision of State
Regulatory Boards
Controlled by Market
Participants, Oct., 2015
• FTC: The When and What
of Active Supervision,
Oct., 2015
• The Antitrust Attorney
Blog: Active Supervision
and State Action
Immunity for Licensing
Board Controlled
by Market Participants,
Nov., 2015
• ABA/AHLA Antitrust in Healthcare Conference:
"State Action Issues in
the Wake of the North
Carolina Dental Board v
Federal Trade
Commission Case,"
May, 2017
• The State Center’s Primer
for State Regulatory
Board Supervisors and
Counsel, Jan., 2017