The Federal Trade Commission and Professional Licensure Boards

The Federal Trade Commission (FTC) protects consumers from unfair or deceptive acts or practices as well as false or misleading claims. The FTC has taken several actions in recent years that indicates their increased interest in the manner in which telehealth is being regulated at the state level. 

In March 2016 the FTC sent comments in support of Alaska Senate Bill 74 (now enacted) which allows Alaska licensed physicians located out-of-state to provide telehealth services in the same manner as Alaska licensed in-state providers and allows certain Alaska licensed behavioral health professionals to provide services remotely. The FTC wrote that it believes the bill “would likely increase the supply of telehealth providers, enhance competition, and reduce health care costs, thereby benefiting Alaskans, especially underserved populations with limited access to health care.” 

The FTC also raised concerns in the letter over another aspect of the bill requiring that relevant professional boards adopt regulations establishing special standards of care for physicians and behavioral health practitioners who provide services remotely.  The FTC writes, “A telehealth provider who has not made a physical examination is already subject to the state’s licensure requirements, including an obligation to meet the state’s existing standard of care. The development of additional ‘safeguards’ solely for telehealth providers might lead to the adoption of unnecessary restrictions that would only serve to restrict competition, and thereby undermine SB 74’s goal of enhancing access to telehealth services.”  These comments in particular raise the question of whether the latest actions by many state professional boards to create standards associated with providing care via telehealth could be considered anti-competitive by the FTC.

Additionally, it was an FTC Supreme Court case that became the basis of the argument in a current (as of January 2017) lawsuit in Texas involving the Texas Medical Board and the telehealth provider company, Teladoc (Teladoc, Inc. et al, v. Texas Medical Board). Teledoc alleges that the TX Medical board’s face-to-face consultation requirement illegally limits competition from telemedicine companies, citing the Supreme Court decision in North Carolina Board of Dental Examiners v. Federal Trade Commission (FTC) which ruled that medical boards comprised of private professionals (active market participants) are not exempt from federal anti-trust laws unless there is direct supervision by the state.  In response to the case, the FTC released a report in October 2015 clarifying the meaning of an “active market participant” and “active supervision”.  Then in Sept. 2016, the FTC, in conjunction with the US Department of Justice, filed an amicus brief urging the U.S. Court of Appeals for the 5th Circuit to reject a motion made by the Texas Medical Board (TMB) to dismiss the suit, which argued that in fact there is direct supervision.  Consequently, the TMB withdrew their appeal. The case continues to be litigated in court.

The FTC also commented in 2016 on regulations proposed by the Delaware Occupational Therapy Board, signaling that the Boards are under the watchful eye of the FTC going forward.