FTC Issues Staff Comment Supporting NY Dental Care Amendment

On April 6, 2018, the Federal Trade Commission (“FTC”) submitted a comment to the New York State Education Department (“NYSED”) supporting a proposed regulatory amendment that would allow Canadian dentists to use the same process dentists from other U.S. states use to become licensed in New York. This comment was the result of a unanimous 2-0 vote by the FTC, and came in response to a request from the NYSED for comments regarding the proposed amendment to N.Y. Comp. Codes R. & Regs tit. 8, § 61.4, intended to reduce the barriers for experienced Canadian dentists to become licensed in New York state.

Though New York has a straightforward licensing procedure in place for experienced U.S. dentists coming to the state called “licensure by endorsement,” which allows dentists to become licensed in New York without repeating the examinations and other requirements for an initial license, this procedure has not been available to Canadian dentists. Instead, experienced Canadian dentists have been required to complete New York’s strenuous requirements for initial licensure. These requirements include, among other things, at least a year of clinical residency before being licensed – a requirement maintained by only one other state (Delaware), and a particularly onerous requirement for Canadian dentists, who are not required to complete a residency for licensure in Canada.

The FTC found that by reducing such barriers and allowing experienced Canadian dentists access to licensure by endorsement, New York would increase its pool of qualified dentists, which could have pro-competitive benefits including more competition among New York dentists, as well as “an increased range of choices available to consumers, improved dental outcomes, and reduced dental costs for consumers.” The FTC also foresaw other potential benefits including more access to dental services in currently underserved regions of New York, as well as the possibility of more Canadian faculty at New York dental schools, thereby increasing “access to care in nearby communities” through more student dentists that may choose to serve previously underserved areas.

Another factor in favor of the amendment from the FTC’s perspective was that Canadian conditions for licensure and for accreditation in dentistry were comparable to those in the United States, indicating that Canadian dentists with a few years of practice experience could be expected to be of similar quality to dentists coming from other U.S. states, obviating any need for additional examinations or other requirements.

This comment is certainly not the first time the FTC has taken an interest in competition related to oral health care. A 2010 FTC complaint against the North Carolina State Board of Dental Examiners related to tooth whitening services culminated in the 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission. In addition, in January 2016 the FTC wrote to the Georgia State Senate on the benefits of a bill that would have expanded locations where dental hygienists could work, and in 2003, the FTC sued the South Carolina Board of Dentistry for practices that restrained competition. This comment is yet another indicator that competition in the health care markets continues to be a “key focus” for the FTC.

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