October 13, 2014 — Last week, three Federal Trade Commission (FTC) staff members responded to an invitation for public comments on two rules proposed by the Texas State Board of Dental Examiners with a letter addressed to Simone Salloum, assistant general counsel for the board.
These two proposed codes (22 Tex. Admin. Code § 108.70 and 22 Tex. Admin. Code § 108.74) would "replace new restrictions on the ability of Texas dentists to enter into contracts with "unlicensed persons" for the provision of nonclinical services, such as administrative support and business functions" and "would make dentists who own, maintain, or operate a dental practice that employs a dentist "responsible for all administrative and operational" functions, they wrote.
While the proposed rule changes do not expressly refer to dental service organizations (DSOs), the "rules seem likely to discourage dentists from affiliating with DSOs by mandating that dentists assume responsibility for the types of functions that DSOs typically provide, and by expanding the board’s authority to take disciplinary action against dentists who enter into such prohibited agreements," according to the FTC members.
The letter concluded by saying that "[r]estrictions on the ability of dentists to contract out business functions provided by DSOs may reduce competition by preventing the emergence and expansion of efficient forms of professional practice that could increase the supply of dental services."
It went on to state that the proposed rules "appear unnecessary to address any concerns about the independent judgment of dental professionals" noting that DSO-affiliated dentists retain full control over the clinical aspects of patient care and that Texas already has laws and regulations that prohibit unlicensed persons from influencing a dentist’s professional judgment.