FTC Investigates Texas Medical Board for Possible Antitrust Violations

In a significant development for state medical boards, the Federal Trade Commission (FTC) has confirmed it is investigating the Texas Medical Board (TMB) over antitrust concerns, POLITICO reports.

Earlier this month, the FTC and Department of Justice filed a joint amicus brief siding with Teladoc in its federal antitrust lawsuit against the Board.  The brief contained a footnote that said, “FTC staff is investigating the underlying actions that are the subject of this appeal and also issued guidance regarding the application of the state action doctrine to state regulatory boards controlled by market participants.”

On Thursday, an FTC spokeswoman told POLITICO’s Morning eHealth, “The report is public and the footnote confirms the investigation. We don’t have anything else to add.”

The FTC filed the amicus brief with the U.S. Court of Appeals in connection with the medical board’s appeal of a lower court decision that denied its motion to dismiss Teladoc’s antitrust claims.  The FTC brief argues that the appeals court should affirm the district court’s order and reject the Board’s argument that its rules are shielded from federal antitrust scrutiny by the “state action” doctrine, “because the ‘active supervision’ requirement of the doctrine is not satisfied.”

According to the FTC’s brief, a “critical feature of state regulatory boards, for purposes of the state action doctrine, is whether the board is controlled by active market participants, because this feature triggers a requirement that the board’s actions be supervised by a disinterested state actor.” The FTC brief contends that the TMB is controlled by active market participants and that it has not shown that the State actively supervised the challenged rules.

Click here to read the FTC’s amicus brief.


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