FTC Staff Comment Before the Louisiana House of Representatives Concerning Louisiana House Bill 687 on the Practice of In-School Dentistry

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
Office of Policy Planning
Bureau of Economics
Bureau of Competition
May 1, 2009
Hon. Timothy G. Burns
State Representative
Louisiana House of Representatives
900 Third Street
Baton Rouge, LA 	70804
Re: 	Louisiana House Bill 687
Dear Representative Burns:
The staffs of the Federal Trade Commission’s Office of Policy Planning, Bureau
of Economics, and Bureau of Competition1 are pleased to provide our comments on
House Bill 687 (“HB 687,” “the Bill” or “the proposed legislation”).2 The Bill, as
drafted, will prohibit the practice of most forms of in-school dentistry throughout
Louisiana.3
We are concerned that if the proposed legislation becomes law, fewer students –
especially the indigent and economically disadvantaged – will receive dental care.
According to the Surgeon General, “a ‘silent epidemic’ of oral diseases” is affecting our
most vulnerable citizens—poor children, the elderly, and many members of racial and
1 This letter expresses the views of the Federal Trade Commission’s Office of Policy Planning, Bureau of
Economics, and Bureau of Competition. The letter does not necessarily represent the views of the Federal
Trade Commission or of any individual Commissioner. The Commission has, however, voted to authorize
us to submit these comments.
2 The proposed legislation is available at http://www.legis.state.la.us/billdata/streamdocument.asp?
did=645549
3 See Bill at §796(A) (“Subject to the exceptions set forth in this Section, the practice of dentistry on any
patient within any building, improvement, other construction, or upon the grounds of any elementary or
secondary school within the state of Louisiana is prohibited.”). The Bill allows: (1) services provided
specifically through the Louisiana State University and University of Louisiana System, (2) dental
screenings, cleanings, radiographs, and fluoride treatments only if performed at no charge to the patient, the
patient’s parents, or any Third Party Payor; and (3) treatment provided within any federally qualified health
center.

Hon. Timothy G. Burns
May 1, 2009
Page 2 of 6
ethnic minority groups.4 The lack of dental care is a particular problem for children in
rural and low-income urban communities;5 only 37 percent of Louisiana’s children who
qualify for Medicaid have seen a dentist.6 We urge the Louisiana legislature to scrutinize
carefully any assertion that the Bill will improve the quality of dental care for this
population in light of the fact that the United States Surgeon General, the United States
Centers for Disease Control and Prevention, and the Louisiana Department of Health and
Hospitals have all advocated for more school-based dental services.7
Interest and Experience of the Federal Trade Commission
The FTC is charged under the FTC Act with preventing unfair methods of
competition and unfair or deceptive acts or practices in or affecting commerce. 8
Anticompetitive conduct in health care markets has long been a target of the FTC’s
research, advocacy and law enforcement mission.9 For example, in 2002, the
4 U.S. Department of Health and Human Services, Oral Health in America: A Report of the Surgeon
General; Rockville, MD: U.S. Department of Health and Human Services, National Institute of Dental and
Craniofacial Research, National Institutes of Health, 2000; available at http://silk.nih.gov/public
/hck1ocv.@www.surgeon.fullrpt.pdf, (internal quotations omitted).
5 See Centers for Disease Control and Prevention ; Health Resources and Services Administration; Indian
Health Service; National Institutes of Health, Healthy People 2010: Oral Health, Ch. 21 (November, 2000)
(“In some rural areas and urban neighborhoods, where health and social problems are concentrated and few
residents have health insurance or the personal means to pay for private health care, most children do not
receive timely preventive procedures.”); available at http://www.healthypeople.gov/Document/
HTML/Volume2/21Oral.htm.
6 See Oral Health Program, Office of Public Health, Louisiana Department of Health and Hospitals,
Brushing Up on Children’s Oral Health in Louisiana: A Policy Brief, 5 (2006) (“In Louisiana, children ‘s
oral health is in a state of crisis. Only 37% of Medicaid -eligible children received dental services during
the last year.”); available at http://www.dhh.louisiana.gov/offices/publications/pubs-
267/oralhlthnewpdf.pdf
7 See Oral Health in America: A Report of the Surgeon General, supra n 4, at 167, 254 (explaining that
the, “Lack of access to dental services for Medicaid recipients is perceived as the greatest pediatric health
care problem in many states” and describing the success of school-based fluoride, sealant, and other dental
programs); see also CDC Task Force on Community Preventive Services; Recommendations on Selected
Interventions to Prevent Dental Caries, Oral and Pharyngeal Cancers, and Sports Related Craniofacial
Injuries; 17 AM. J. P REV M ED (2002); (recommending school-based dental sealant programs, particularly
for high risk children), available at http://www.thecommunityguide.org/ oral/oral-ajpm-recs.pdf; see also
Brushing Up on Children’s Oral Health in Louisiana: A Policy Brief, supra n. 5, at 6-7 (Describing that
most school health clinics, which are “ideal settings to address health needs,” do not have access to
dentists, and recommending an increase in the number of school-based dental programs in Louisiana).
8 Federal Trade Commission Act, 15 U.S.C. ' 45.
9 See F EDERAL TRADE C OMMISSION , FTC A NTITRUST A CTIONS IN H EALTH CARE S ERVICES AND P RODUCTS
(Mar. 2008), available at http://www.ftc.gov/bc/0608hcupdate.pdf ; see also Competition in the Health
Care Marketplace: Formal Commission Actions, available at http://www.ftc.gov/bc/healthcare/
antitrust/commissionactions.htm.

Hon. Timothy G. Burns
May 1, 2009
Page 3 of 6
Commission brought suit against the South Carolina Board of Dentistry (“SCBD”), a
regulatory body composed largely of practicing dentists, alleging that the Board had
illegally restricted dental hygienists from providing preventive dental care services in
schools.10 The South Carolina legislature had previously eliminated a statutory
requirement that a dentist must examine a child prior to receiving dental hygiene services
such as cleanings and applications of sealants.11 The complaint charged that the Board’s
action unreasonably restrained competition in the provision of preventive dental care
services, deprived thousands of economically disadvantaged schoolchildren of needed
dental care, and that its harmful effects on competition and consumers could not be
justified.12 In 2007, the SCBD entered into a consent agreement with the FTC.
Discussion
Competition is the hallmark of America’s free market economy. The United
States Supreme Court has observed, “ultimately competition will produce not only lower
prices, but also better goods and services. ‘The heart of our national economy long has
been faith in the value of competition.’”13 Consumers benefit from competition,
including competition among professionals.14 These benefits accrue in both price and
non-price dimensions: “[A]ll elements of a bargain – quality, service, safety, and
durability – and not just the immediate cost, are favorably affected by the free
opportunity to select among alternative offers.” 15
We understand that presently there are dentists who provide in-school dental
services, primarily to Louisiana’s poorest children.16 The Bill will restrict competition to
provide underserved juvenile populations routine dental services by making it illegal for
anyone to provide in-school dental services for a fee. Accordingly, HB 687 will force
many families to seek dental care for their children outside of the school setting. But as
proponents of school-based dental programs have explained, low-income families face
various obstacles to obtaining dental services outside school settings, including locating a
10 See Opinion of the Commission, In re South Carolina Board of Dentistry (July 30, 2004), at
http://www.ftc.gov/os/adjpro/d9311/040728commissionopinion.pdf. In 2007, the SCBD entered into a
consent agreement with the FTC. See In re South Carolina Board of Dentistry, Decision and Order (Sept.
7, 2007), at http://www.ftc.gov/os/adjpro/d9311/070911decision.pdf.
11 Id. at ¶1.
12 Id. at ¶¶ 11-17 (Prior to lifting the restraint, the law required that students receiving hygienists services
must have seen a dentists in the 45 days prior to seeing the hygienist.).
13 National Society of Professional Engineers v. United States, 435 U.S. 679, 695 (1978).
14 See Goldfarb v. Virginia State Bar, 421 U.S. 773, 787 (1975).
15 Prof’l Eng’rs, 435 U.S. at 695 .
16 See, e.g. Mark Ballard, Off-site Dentistry Challenged, Advocate Capital News Bureau (April 22, 2009)
(describing a mobile dentistry program providing in-school dental services); available at
http://www.2theadvocate.com/news/43406382.html.

Hon. Timothy G. Burns
May 1, 2009
Page 4 of 6
provider who accepts Medicaid or other assistance programs and arranging transportation
and time off from work to take a child to an appointment. Further, although we
understand that Medicaid covers many of these children’s payments, requiring children
not covered by Medicaid, but who nonetheless receive dental care from in-school
providers, to seek dental care outside of school is likely to raise the prices that the
families of these children pay for dental care. Faced with such obstacles, it is likely that
many children will not receive dental care at all.17
In general, sound competition policy calls for competition to be restricted only
when necessary to protect the public from significant harm, and for the restriction to be
narrowly drawn to minimize its anticompetitive impact.18 We are not aware of any
evidence to suggest that the sweeping restrictions on competition found in HB 687 will
provide any benefits.
Evidence suggests that children benefit from access to school-based dental
programs. The Centers of Disease Control (CDC), for example, has studied the issue,
and concluded:
School-based and school-linked dental sealant delivery
programs are strongly recommended on the basis of strong
evidence of effectiveness in reducing [cavities] on occlusal
surfaces of posterior teeth among children.19
The CDC report has detailed how school-based dental intervention brings dramatic health
benefits, particularly to children who otherwise do not receive adequate dental care.20 In
17 See William Sage, David A. Hyman & Warren Greenburg, Why Competition Law Matters to Health
Care Quality, 22 H EALTH A FFAIRS 31, 35 (March/April 2003) (“when costs are high, people who cannot
afford something find substitutes or do without.”). We understand that only a small proportion of Medicaid
eligible children in Louisiana have ever been treated by a dentist. See Louisiana Department of Health and
Hospitals, supra note 6; see also Ballard, supra note 13 (reporting that only 32 percent of Louisiana’s
753,000 Medicaid children have seen a dentist at least once in their lifetimes, according to Louisiana
Department of Health and Hospital statistics). Further, a provider of in-school dental services reports that
of the 435 referrals he has made for children who are suffering serious dental maladies to see dentists who
work in permanent offices, only 90 children have gone. See id.
18 Cf. FTC. v. Ind. Fed’n of Dentists, 476 U.S. 447, 459 (1986) (“Absent some countervailing
procompetitive virtue,” an impediment to “the ordinary give and take of the market place . . . cannot be
sustained under the Rule of Reason.”) (internal quotations and citations omitted).
19 See Preventing Dental Caries: School-Based or –Linked Sealant Delivery, United States Centers of
Disease Control, 2002, available at http://www.thecommunityguide.org/oral/supportingmaterials/
RRschoolsealant.html citing Recommendations on Selected Interventions to Prevent Dental Caries, Oral
and Pharyngeal Cancers, and Sports Related Craniofacial Injuries; supra n. 7, at 23 (1S).
20 Id.

Hon. Timothy G. Burns
May 1, 2009
Page 5 of 6
many cases, these are children who qualify for Medicaid benefits, or are from indigent
care settings.21
The FTC is unaware of any evidence that children are harmed from in-school-
based dental services.22 Further, like all other states, Louisiana has passed laws that
protect dental consumers through regulation of the practice of dentistry such that
consumers have several means by which to protect their interests from harmful dental
practices.23 Dentists treating children, like all health care providers, are also subject to
additional standards of care and observation, and face additional liabilities for failing to
perform these duties.24 Those who provide health care services through Medicaid,
moreover, are subject to specific Medicaid standards.25
We also note that by allowing dentists to perform certain services as long as they
are affiliated with one of two state universities or otherwise do not charge for their
services, the Bill does not appear concerned with the location of the services, or the
competence of the provider, but rather the profit motive of the provider. The FTC Staff is
unaware of any evidence that for-profit health care providers provide inferior care to that
provided by non-profit providers.26 Indeed, profit-seeking dentists may have a greater
incentive to provide higher quality of services given the financial risk at stake for
providing shoddy service.
Conclusion
HB 687 restricts competition among dentists and does not appear to provide any
countervailing benefits. If enacted, this Bill is likely to make the most vulnerable of
21 Id. The CDC’s web-site details many advantages of in-school dental care for children, as well as policy
implications arising from disparities in dental health due to ethnic and racial make-up. See CDC, Division
of Oral Health, available at http://www.cdc.gov/OralHealth/.
22 We also understand that some in-school dental care providers refer children that require more substantial
care to dentists who work in permanent offices. See, e.g., Ballard, supra note 16.
23 See Louisiana R.S. 37:751. et. seq. (defining the role of dentists, the qualifications necessary to perform
such services (including failing to follow adequate safety, infection control, and other service protocols),
and the penalties for failing to do so, including loss of license).
24 See, e.g. Louisiana Children’s Code; CHC 603 and 609 (defining, among others, dentists and dental
hygienists as mandatory reporters and subject to civil and criminal penalties for failing to report to
appropriate authorities if they have cause to believe a child under their care is the victim of child abuse).
25 See generally United States Department of Health and Human Services, Guide to Children’s Dental Care
in Medicaid, Appendix A and Appendix B; October 2004, (detailing the proper dental diagnostic
procedures for children receiving benefits under Medicaid, and detailing the unique set of benefits to be
provided to children receiving Medicaid benefits); available at http://www.cms.hhs.gov/medicaiddental
coverage/downloads/dentalguide.pdf..
26 See Karen Eggleston et al., Hospital Ownership and Quality of Care: What Explains the Different Results
in the Literature?, 17 H EALTH ECON. 1345 (2008).

Hon. Timothy G. Burns
May 1, 2009
Page 6 of 6
Louisiana’s children worse off by denying many the opportunity to receive dental care.
According, the Staff of the Federal Trade Commission urges the Louisiana legislature to
reject HB 687.
Respectfully submitted,
James C. Cooper
Acting Director
Office of Policy Planning
Pauline Ippolito
Acting Director
Bureau of Economics
David Wales
Acting Director
Bureau of Competition