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FSMB Endorses Federal Legislation to Protect State Licensing Boards from Antitrust Damages

Protects board members, staff and tax payers from financial burden of antitrust lawsuits

WASHINGTON, D.C. (August 2, 2018) –The Federation of State Medical Boards (FSMB) has endorsed the “Occupational Licensing Board Antitrust Damages Relief and Reform Act of 2018 (H.R. 6515),” introduced by Rep. Mike Conaway (R-TX) and Cosponsored by Rep. Lamar Smith (R-TX). 

H.R. 6515 eliminates fiscal antitrust damage liability for state licensing boards-including state medical boards- their members, and staff who are acting within their statutory mandate to protect the public. Currently, board members and staff are exposed to personal liability and treble damages for actions taken as part of their service on a board. The lack of protection has had a chilling effect on the willingness of some individuals to serve on boards, causing some board members to resign for fear of personal financial liability.   

“State medical boards are an integral component of the nation’s health care system and rely on committed volunteers to carry out their mission,” said FSMB President and CEO, Humayun Chaudhry, DO, MACP. “We need to ensure that board members are given the protections they need and are not dissuaded from serving in a position that benefits the health and safety of patients. We are pleased to support this bill and commend Rep. Conaway for his efforts to safeguard those who voluntarily serve on state boards.”  

“State licensing boards provide an invaluable service to the state,” said Rep. Conaway. “Individuals who serve on these boards should enjoy the same legal protections for working on behalf of the state as all other state officials do. Having served on the Texas State Board of Accountancy myself, I understand that serving on a licensing board is performing an important public service. This legislation ensures that members of state licensing boards will continue to serve the state without fear of personal liability.”

 

In 2015, the U.S. Supreme Court issued a decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission that has left state professional and occupational licensing boards, their staff members, and the taxpayers in a state of fiscal uncertainty and vulnerability. 

Before the Supreme Court’s 6-3 ruling in NC Dental, state licensing boards were considered actors of the state and were not subject to liability under federal antitrust laws, so long as their actions were taken in accordance with state policy. However, the NC Dental case ruled that state licensing boards comprised of “active market participants,” can be considered private organizations and thus are subject to antitrust liability if they are not actively supervised by the state. 

In an effort to further the conversation surrounding occupational licensing reform, H.R. 6515 requires a GAO report and recommendations to states on the following: the use of cost-benefit analyses in sunrise and sunset reviews, evaluating occupational licensing against less restrictive alternatives including certifications, how states can support license portability, particularly for veterans and military service members and spouses, and the impact of occupational licensing on low-income workers, the unemployed, immigrants with work authorizations, and individuals with criminal records. 

H.R. 6515 was introduced on July 25, 2018 and has been referred to the House Judiciary Committee and the House Committee on Education and the Workforce. 

About the Federation of State Medical Boards
The Federation of State Medical Boards (FSMB) is a national non-profit organization representing all medical boards within the United States and its territories that license and discipline allopathic and osteopathic physicians and, in some jurisdictions, other health care professionals. The FSMB serves as the voice for state medical boards, supporting them through education, assessment, research and advocacy while providing services and initiatives that promote patient safety, quality health care and regulatory best practices. To learn more about FSMB, visit www.fsmb.org. You can also follow FSMB on Twitter (@theFSMB).

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