FTC Charges South Carolina Board of Dentistry

The Federal Trade Commission today issued a complaint against the South Carolina State Board of Dentistry alleging that it violated federal laws by illegally restricting the ability of dental hygienists to provide preventive dental services, including cleanings, sealants, and fluoride treatments, on-site to children in South Carolina schools. The agency alleges that the Board’s actions hindered competition in the delivery of preventive dental services to school-aged children and deprived thousands of school children – particularly economically disadvantaged children – of the benefits of preventive oral health care. If a violation occurred, the Commission could prevent the Board from instituting similar anticompetitive restrictions.

Many children in South Carolina, especially those from low-income families, suffer from dental problems because they do not receive adequate preventive dental care. In 1988, the South Carolina General Assembly enacted legislation to enable children to receive dental care in school from licensed hygienists. At that time, the law stated that hygienists could administer care in schools only to those children who had been examined by a dentist within the previous 45 days. The 1988 law did not significantly increase the delivery of dental hygienists’ services in South Carolina schools.

In 2000, the General Assembly amended legislation to make it easier for dental hygienists to provide preventive dental care services to children in schools, by removing the requirement of a pre-examination by a dentist within 45 days of the treatment. In January 2001, hygienists began providing cleanings, fluoride treatments, and sealants in South Carolina schools. In the six months that followed, licensed hygienists had screened over 19,000 children and provided cleanings, fluoride treatments, and other services to more than 4,000 children, including nearly 3,000 Medicaid-eligible children. The school-based services were more convenient for families, thereby dramatically increasing the number of children receiving adequate preventive dental care.

The South Carolina State Board of Dentistry is the regulatory body charged with supervising the practices of dentistry and dental hygiene in South Carolina. The Board is not composed of disinterested regulators, however; instead, it consists of seven dentists, six of whom are elected by the licensed dentists in South Carolina, one dental hygienist, and one public member. Thus, the Board is dominated by members of the industry it regulates.

The FTC alleges that in July 2001, the Board passed an emergency regulation that contradicted the General Assembly’s amendments by reinstating the requirement that a dentist examine a patient before the patient is eligible for treatment in school. A South Carolina administrative law judge determined that the dentist examination requirement was unreasonable and contravened state policy because it reinstated requirements that the General Assembly had removed. According to the FTC’s complaint, the Board was not acting pursuant to any clearly articulated state policy to displace competition.

“By reinstating the pre-exam requirement the legislature had eliminated only the year before, the Board denied the very preventive dental care to children that the General Assembly had sought to provide,” said Susan Creighton, Director of the FTC’s Bureau of Competition. “In so doing, the Board members, contravening state policy, eliminated cost-effective competition for the provision of preventive dental services and deprived thousands of children of the care that they needed. The Board’s action was particularly egregious in that the harm it inflicted fell most heavily on the most vulnerable children – children whose only realistic access to dental care may well be through in-school preventive dental services.”

The General Assembly has passed a new statute that specifically states that dentist examination requirements do not apply to dental hygienists administering preventive care in public health settings as long as the dental hygienists are working under the direction of the South Carolina Department of Health and Environment Control. The FTC complaint alleges that the Board, in considering this statutory language, maintained that in all settings a dentist must examine the patient before a dental hygienist may provide preventive care.

The FTC’s complaint charges that by restraining competition in the delivery of dental services to South Carolina children, the Board has deprived thousands of school children – especially economically disadvantaged children – of the preventive care they need. If a violation is found, the Commission could prohibit the Board from requiring a dentist examination before a child could receive preventive dental care from a dental hygienist working under the direction of the Department of Health and Environmental Control, unless the South Carolina General Assembly re-adopts such a requirement.

Pending further Commission order, the Commission will retain adjudicative responsibility for this matter. The FTC’s vote to issue the complaint was 5-0.

Copies of the complaint are available from the FTC’s Web site at http://www.ftc.gov and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. The FTC’s Bureau of Competition seeks to prevent business practices that restrain competition. The Bureau carries out its mission by investigating alleged law violations and, when appropriate, recommending that the Commission take formal enforcement action. To notify the Bureau concerning particular business practices, call or write the Office of Policy and Evaluation, Room 394, Bureau of Competition, Federal Trade Commission, 600 Pennsylvania Ave., N.W., Washington, D.C. 20580, Electronic Mail: antitrust@ftc.gov; Telephone (202) 326-3300. For more information on the laws that the Bureau enforces, the Commission has published Promoting Competition, Protecting Consumers: A Plain English Guide to Antitrust Laws, which can be accessed at http://www.ftc.gov/bc/compguide/index.htm.