NORTH CAROLINA DENTAL BOARD OF EXAMINERS v FTC (2015)
Extremely Important Read
The North Carolina Dental Board of Examiners v FTC (2015) (NCDB v FTC (2015)) is a landmark SCOTUS decision regarding State regulatory agencies/boards.The language is clear and straight forward. It simply states that State licensing boards - medical or nonmedical - DO NOT have immunity and in reality are simply trade associations because of how they are structured. Being that these so called "boards" are nothing but private trade associations, the Individual "board" members and administrators can be sued in their person - they have no immunity.
A perfect example of this is the Oregon Medical Board (OMB). There are 13 private individuals on the OMB, 11 of which are private "doctors":
- 7 of 13 are Medical Doctors (MD)
- 2 of 13 are Doctors of Osteopathy (DO)
- 1 of 13 is a Doctor of Podiatry
- 1 of 13 is a Physician’s Assistant (PA)
- 2 of 13 are considered public positions who typically have close associations with healthcare.
- Therefore, 11 of 13 OMB members are “doctors” chosen from specific "doctor" trade associations.
- Three, former board members, all of them MDs, serve as "Emeritus board members" – “fill ins” for any absent board member. These Emeritus board members are involved in licensee case analysis and supervision of disciplined victim doctors.
.Midcal’s “two-part test provides a proper analytical framework to resolve the ultimate question whether an anticompetitive policy is indeed the policy of a State
- The first requirement - clear articulation - rarely will achieve that goal by itself, for entities purporting to act under state authority might diverge from the State’s considered definition of the public good and engage in private self-dealing.
- The second requirement - active supervision - seeks to avoid this harm by requiring the State to review and approve interstitial policies made by the entity claiming immunity. The clear lesson of precedent is that Midcal’s active supervision test is an essential prerequisite of Parker immunity for any nonsovereign entity - public or private - controlled by active market participants…”
If you are being "threatened" by a healthcare licensing board, or any board for that matter, you need to aggressively attack these board individuals before they draw you into their administrative law dead end. You need to find a lawyer who understands the magnitude of your situation, the Federal Courts system and how to utilize this gift given to us by the SCOTUS. There is no longer a reason to live in fear. You no longer have "no alternative". These criminals are not immune to justice in any State at this time. None of them come close to following the Midcal Rules - in particular the second requirement - and therefore have no immunity.
‘The similarities between agencies controlled by active market participants and such [trade] associations are not eliminated simply because the former is given a formal designation by the State, vested with a measure of government power, and required to follow some procedural rules.’ North Carolina State Bd. of Dental Examiners v. FTC 574 U. S.(2015) (See Hallie, supra, at 39). When a State empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest. Thus, the Court holds today that a state board on which a controlling number of decision makers are active market participants in the occupation the board regulates must satisfy Midcal’s active supervision requirement in order to invoke state-action antitrust immunity.
“The Court has identified only a few constant requirements of active supervision: The supervisor must review the substance of the anticompetitive decision, see id., at 102 - 103; the supervisor must have the power to veto or modify particular decisions to ensure they accord with state policy, see ibid.; and the “mere potential for state supervision is not an adequate substitute for a decision by the State,” Ticor, supra, at 638. Further, the state supervisor may not itself be an active market participant.” North Carolina State Bd. of Dental Examiners v. FTC 574 U.S. (2015).
And if you still don't believe the NCDB decision has had an impact then read this March 2018 STATEMENT OF INTEREST ON BEHALF OF THE UNITED STATES OF AMERICA written by the head of the U.S. DOJ Antitrust Division AAG Makan Delrahim in regards to the Florida State Bar claiming they have immunity. They don't.
Attached Documents:
1. NCDB v FTC 2015 decision. THIS IS EXTREMELY IMPORTANT TO READ. Pay special attention to these previous Supreme Court decisions mentioned throughout the NCDB decision:
- California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 105
- Goldfarb v. Virginia State Bar, 421 U. S. 773
- Parker v. Brown, 317 U. S. 341
- Patrick v Burget 486 U.S. 94 (1988)
3. State of Connecticut - self evaluation of whether the State is in compliance with NCDB v FTC (2015)
4. Opinion Piece regarding NCDB v FTC. - New Hampshire former FTC lawyer.
5. Louisiana Senate Bill for Physician Due Process - why would a bill be needed to insure something that is a God given right, let alone a Constitutional Right?
- passed in Senate, but the House wouldn't move it out of committee.
6. DOJ Antitrust Division letter to Florida State Bar - this "STATEMENT OF INTEREST ON BEHALF OF THE UNITED STATES
OF AMERICA" from 3/12/2018 states that the Florida State Bar has no legal immunity based upon the NCDB v FTC decision.
Eric Dover is not a lawyer.
north_carolina_dental_board_decision_2015.pdf | |
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univ_of_san_diego_letter_to_state_ags.pdf | |
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connecticut_and_the_nc_dental_board_decision.pdf | |
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opinion_piece_maynard_f_thomson.pdf | |
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louisiana_senate_bill_for_physician_due_process.pdf | |
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doj_antitrust_division_letter_florida_state_bar.pdf | |
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