Bringing the ABMS MOC Program Before the FTC

Looks like the new Federal Trade Commission Chairwoman Maureen K. Ohlhausen might take an interest in the onerous and costly American Board of Medical Specialties' Maintenance of Certification (MOC) program:

Testifying on behalf of the FTC before the Subcommittee on Antitrust, Competition Policy and Consumer Rights, Commissioner Maureen K. Ohlhausen noted that while occupational licensing can help protect consumers from health and safety risks and support other valuable public policy goals, unwarranted restrictions can harm competition, leaving consumers with higher-priced, lower-quality, and less convenient services.

“From, a competition standpoint, occupational regulation can be especially worrisome when regulatory authority is delegated to a board composed of members of the occupation it regulates,” Commissioner Ohlhausen said.

According to the testimony, this type of board may make regulatory decisions that serve the private economic interests of its members and not the policies of the state (emphasis mine). Such decisions could result in occupational restrictions that discourage new entrants; deter competition among licensees and from providers in related fields; and suppress truthful, nondeceptive advertising, and innovative products or services that could challenge the status quo.

The testimony notes that while the principles of federalism embodied in the state action doctrine limit the reach of federal antitrust laws when a restraint on competition is imposed by a state, this does not mean that all state regulators are exempt from antitrust scrutiny. Through its enforcement and advocacy work, the Commission has helped to define the contours of the state action doctrine for actions taken by state boards composed of private actors – culminating in last year’s decision by the Supreme Court in North Carolina State Board of Dental Examiners v. FTC.

-Wes