FTC Staff Comment to the Kentucky House of Representatives Regarding House Bill 77, Which Would Recognize and Regulate Denturists

UNITED STATES OF AMERICA
FEDERAL TRADE C OMMISSION
WASHINGTON, D.C. 20580
Office of Policy Planning
Bureau of Economics
Bureau of Competition
March 25, 2016
The Honorable Tom Burch
House of Representatives
Kentucky General Assembly
4012 Lambert Avenue
Louisville, KY 40218
Re: Kentucky House Bill 77
Dear Representative Burch:
The staffs of the Federal Trade Commission’s Office of Policy Planning, Bureau of
Economics, and Bureau of Competition1 appreciate the opportunity to respond to your invitation
for comments on Kentucky House Bill 77 (“HB 77” or the “Bill”). As described in your letter,
HB 77 “would recognize and regulate denturists.”2 Denturists are trained to make and fit
removable partial and full dentures (“dentures”). Currently, Kentucky patients in need of
dentures must obtain them through a dentist.3
FTC staff recognize the critical importance of patient health and safety. We also
appreciate the role of state legislators and regulators in determining the optimal balance of policy
priorities when defining the appropriate scope of practice for health care professionals, including
dentists. We note, however, that unnecessarily broad scope of practice restrictions can impose
significant competitive costs on health care consumers and other payors.4 For this reason, we
generally have encouraged legislatures and regulators to avoid restrictions that are not necessary
1 This staff letter expresses the views of the FTC’s Office of Policy Planning, Bureau of Competition, and Bureau
of Economics. The letter does not necessarily represent the views of the FTC or of any individual Commissioner.
The Commission, however, has voted to authorize staff to submit these comments.
2 Letter from the Tom Burch, State Representative, Ky. General Assembly, to Ellen Connelly, Office of Policy
Planning, Fed. Trade Comm’n (Feb. 11, 2016).
3 See K Y. REV. STAT. ANN. § 313.010(11) (2015) (defining the practice of dentistry as including work done to
provide patients with removable dentures).
4 For example, a 2014 FTC staff policy paper details the competition concerns with unnecessarily broad scope of
practice regulations governing advanced practice nurses. See FED. T RADE COMM ’N STAFF, P OLICY P ERSPECTIVES:
COMPETITION AND THE REGULATION OF ADVANCED P RACTICE N URSES (2014),
https://www.ftc.gov/system/files/documents/reports/policy-perspectives-competition-regulation-advanced-practice-
nurses/140307aprnpolicypaper.pdf [hereinafter FTC S TAFF P OLICY P ERSPECTIVES].

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to address well-founded patient safety concerns.5 It is based on this longstanding policy approach
that staff provide these comments for your consideration. We encourage the legislature to include
a consideration of the potential benefits of competition in its analysis of HB 77, in addition to the
important due diligence it will perform on the safety consequences of the Bill.6
I. 	The FTC’s Interest and Experience in Health Care Competition
Competition is the core organizing principle of America’s economy,7 and vigorous
competition among sellers in an open marketplace gives consumers the benefits of lower prices,
higher quality goods and services, increased access to goods and services, and greater
innovation.8 Because of the importance of health care competition to the economy and consumer
welfare, this sector has long been a key focus for the FTC’s law enforcement, research, and
advocacy activities.9
The FTC has examined markets for the provision of dental services in the context of both
law enforcement actions and policy initiatives. For example, in 2010, the Commission sued the
North Carolina Board of Dental Examiners alleging that the Board illegally thwarted lower-
priced competition by engaging in anticompetitive conduct to prevent non-dentists from
providing teeth whitening services. In that case, the Supreme Court upheld a Commission ruling
5 See, e.g., Letter from FTC Staff to Valencia Seay, Senator, Ga. State Senate (Jan. 29, 2016),
https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-georgia-state-senator-valencia-
seay-concerning-georgia-house-bill-684/160201gadentaladvocacy.pdf [hereinafter 2016 Georgia Letter] (regarding
removal of direct supervision requirements for dental hygienists); Letter from FTC Staff to Kay Khan,
Representative, Mass. House of Representatives (Jan. 14, 2014),
https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-massachusetts-house-
representatives-regarding-house-bill-6-h.2009-concerning-supervisory-requirements-nurse-practitioners-nurse-
anesthetists/140123massachusettnursesletter.pdf (regarding removal of supervision requirements for nurse
practitioners and nurse anesthetists); Letter from FTC Staff to Maine Bd. of Dental Exam’rs (Nov. 16, 2011),
https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-maine-board-dental-
examiners-concerning-proposed-rules-allow-independent-practice/111125mainedental.pdf [hereinafter Maine
Letter] (regarding proposed limitations on the type of x-rays taken by independent practice dental hygienists); FED.
T RADE COMM ’N & U.S. D EP’ T OF J USTICE , I MPROVING H EALTH C ARE : A D OSE OF C OMPETITION, Ch. 2, at 25-33
(2004), https://www.ftc.gov/sites/default/files/documents/reports/improving-health-care-dose-competition-report-
federal-trade-commission-and-department-justice/040723healthcarerpt.pdf (considering the competitive impact of
licensing restrictions in the health care context).
6 Our comments are limited to the competition issues raised by professional licensure and scope of practice
restrictions. We take no position on the specific mechanisms through which HB 77 attempts to license and regulate
denturists and do not comment on any particular health or safety considerations potentially implicated by HB 77.
7 See, e.g., N.C. State Bd. of Dental Exam’rs v. FTC, 135 S. Ct. 1101, 1109 (2015) (“Federal antitrust law is a
central safeguard for the Nation’s free market structures.”); Standard Oil Co. v. FTC, 340 U.S. 231, 248 (1951)
(“The heart of our national economic policy long has been faith in the value of competition.”).
8 See, e.g., Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679, 695 (1978) (noting that the antitrust laws
reflect “a legislative judgment that, ultimately, competition will produce not only lower prices but also better goods
and services. . . . The assumption that competition is the best method of allocating resources in a free market
recognizes that all 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.”).
9 A description of, and links to, the FTC’s various health care-related activities can be found at Competition in
the Health Care Marketplace, FED. T RADE COMM ’N, https://www.ftc.gov/tips-advice/competition-
guidance/industry-guidance/health-care.

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that the North Carolina Board’s actions were illegal under the antitrust laws.10 In another
enforcement action, in 2003, the Commission alleged that the South Carolina Board of Dentistry
illegally had restricted the ability of dental hygienists to provide preventive dental services in
schools without prior examination by a dentist,11 thereby unreasonably restraining competition
and depriving thousands of economically disadvantaged schoolchildren of needed dental care.12
The South Carolina Board ultimately entered into a consent agreement settling the charges.13
On the policy side, FTC staff comments have addressed the competitive implications of
licensure and scope of practice restrictions relating to oral health professions. For example, most
recently, staff urged the Georgia legislature to consider broadening the settings in which dental
hygienists are permitted to provide care without the supervision of a dentist.14 This staff
comment followed a 2010 comment to the Georgia Board of Dentistry in which staff urged the
Board to fully weigh the costs and benefits of proposed rule changes that would have required
indirect supervision by a dentist for dental hygienists providing dental hygiene services at
approved public health facilities.15 Similarly, a 2011 FTC staff comment urged the Maine Board
of Dental Examiners to consider the impact of proposed rule changes that would have prevented
Independent Practice Dental Hygienists participating in a pilot project designed to improve
access to care in underserved areas of the state from taking certain radiographs without a dentist
present.16
II. 	House Bill 77
Kentucky law currently allows only licensed dentists to treat patients in need of
dentures.17 A non-dentist may make dentures only upon a written work order from a licensed
dentist and only by using models made from impressions taken by a licensed dentist.
Additionally, fitting or adjusting dentures is reserved to licensed dentists.18
10 See N.C. Dental, 135 S. Ct. 1101.
11 See S.C. State Bd. of Dentistry, 138 F.T.C. 229, 233-40 (2004).
12 See id. at 232, 268-80.
13 S.C. State Bd. of Dentistry, 144 F.T.C. 615, 628-635 (2007) (decision and order).
14 See 2016 Georgia Letter, supra note 5.
15 Letter from FTC Staff to the Georgia Bd. of Dentistry (Dec. 30, 2010),
https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-georgia-board-dentistry-
concerning-proposed-amendments-board-rule-150.5-0.3-governing-supervision-dental-
hygienists/101230gaboarddentistryletter.pdf (concerning proposed amendments to Board Rule 150.500.3 governing
supervision of dental hygienists).
16 See Maine Letter, supra note 5.
17 See K Y. REV. STAT. ANN. § 313.010(11) (2015) (defining “dentistry” as “the evaluation, diagnosis, prevention,
or surgical, nonsurgical, or related treatment of diseases, disorders, or conditions of the oral cavity, maxillofacial
area, or the adjacent and associated structures and their impact on the human body provided by a dentist within the
scope of his or her education, training, and experience” and defining the practice of dentistry as including the taking
of impressions of teeth for the purpose of making “any intraoral appliance,” or the making, supplying, reproducing,
or repairing of “any prosthetic denture, bridge, artificial restoration, appliance or other structure to be used or worn
as a substitute for natural teeth . . . .”).
18 Id. Under certain conditions, a licensed dentist may delegate some activities to other dental professionals,
provided the dentist directly supervises the auxiliary personnel. See Id. § 313.050.

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We understand that HB 77 is intended to recognize and license another type of oral health
professional – the “denturist” – to directly treat people in need of dentures. Licensed denturists
would be permitted to examine a patient’s mouth, take impressions, take bite registration, and
make and fit “full or partial dentures or other removable nonorthodontic dental appliance[s].”19
Patients whom a denturist reasonably believes are in need of medical or dental treatment would
be referred to a physician or dentist.20
The Bill would create the Kentucky Denturity Board to govern the practice of denturity.21
The Board would comprise five denturists and two independent members of the public. The
Board would issue licenses and would be responsible for approving the educational requirements
for licensure.22
III. 	Competitive Considerations Regarding House Bill 77
FTC staff recognize that professional scope of practice regulations may be important to
ensure quality and patient safety, and regulation of oral health professionals is no exception.
Competition consistent with patient safety, however, also has important consumer benefits.
Generally, competition in health care markets benefits consumers by containing costs, expanding
access and choice, and promoting innovation. Conversely, unnecessarily strict scope of practice
restrictions can suppress these important benefits by limiting the supply of qualified care
providers. Additionally, they can inhibit the development of new, collaborative models of care
that rely on a continuum of providers to efficiently provide quality care. For these reasons, we
recommend that the Kentucky legislature consider the extent to which the Bill may facilitate
enhanced competition among qualified providers of dentures, in ways that may benefit
consumers. We urge the legislature to maintain only those scope of practice limitations necessary
to ensure patient health and safety.
Additional competition among qualified providers of dentures could help to alleviate two
important barriers to oral health that are a particular challenge in Kentucky: access and cost.23
19 H.B. 77, 2016 Leg., Reg. Sess. § 2(4)(b) (Ky. 2016). We note that there is some inconsistency in the Bill
regarding the scope of denturists’ licensure. For instance, Section 2(4)(a) refers to “prosthetic oral appliances,”
which are not defined and which it seems could be read broadly to include, for instance, devices meant to treat
medical conditions such as sleep apnea as well as fixed prosthetics. Other parts of Section 2 refer to “removable
nonorthodontic dental appliances” and “immediate full or partial dentures.” These terms could potentially be
interpreted to encompass different ranges of dental products. We respectfully suggest clarification of these terms.
We limit our comments to address only the licensing of denturists to treat patients in need of removable full or
partial dentures.
20 Id. § 2(4)(a)2.
21 Under the state action doctrine, private actors or state agencies controlled by regulated persons may be
immune from the antitrust laws for certain activities when there is a clearly articulated state policy to displace
competition and there is active state supervision of the policy or activity. See Parker v. Brown, 317 U.S. 341 (1943),
FTC v. Phoebe Putney Health Sys., Inc., 133 S. Ct. 1003 (2013), and N.C. State Bd. of Dental Exam’rs v. FTC, 135
S. Ct. 1101 (2015). This advocacy comment is limited to the competition issues raised by scope of professional
licensure and does not address any issues relating to the state action doctrine.
22 See H.B. 77 §§ 4, 8.
23 See O RAL H EALTH P ROGRAM , K Y. D EP’T FOR P UBLIC H EALTH, H EALTHY K ENTUCKY SMILES 3-6, 12-13, 35
(2006), http://chfs.ky.gov/NR/rdonlyres/67ED0872-8504-43A0-8165-8739F320CAC9/0/StrategicPlan.pdf
(Kentucky’s Oral Health Strategic Plan, highlighting tooth loss as a significant oral health concern in Kentucky,

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With respect to access, it is well documented that certain populations in the United States – the
elderly, those living in rural areas, and the poor – often have inadequate access to dental care.24
These populations also tend to suffer the most from tooth loss.25 As FTC staff and others
previously have noted, allowing additional oral health professionals to work to the full range of
their training and experience could help alleviate the unmet need for care in these underserved
areas.26
To the extent the Bill would facilitate market entry by additional oral health
professionals, it may help Kentucky prepare for even more critical dental care access issues in
the future, which a number of experts have predicted. For instance, in a recent report, the Health
Resources and Services Administration (“HRSA”) analyzed dental workforce needs. According
to the HRSA report, the United States can expect an increasing shortage of dentists, which could
“exacerbate access problems for underserved populations who forego basic oral health care
because of lack of proximity to a provider, inability to pay for care, and limited oral health
literacy.”27 Thus, if denturists can competently serve as substitute providers for patients in need
finding access to dental care to be a significant problem, and suggesting, among other things, policies to “[c]reate a
variety of mid-level dental practitioners for extension of services to underserved areas.”). See also CTR . FOR H EALTH
W ORKFORCE STUDIES, SCHOOL OF P UBLIC H EALTH, SUNY A LBANY, O RAL H EALTH IN K ENTUCKY 4 (2016),
http://chws.albany.edu/archive/uploads/2016/02/Oral_Health_Kentucky_Technical_Report_2016.pdf (finding that
“[d]espite statewide initiatives to improve oral health status in Kentucky’s population, there remain populations with
poor oral health outcomes attributed to a lack of oral health literacy, residence in rural areas, and limited resources to
pay for care,” the populations at greatest risk included the poor and the elderly, and the supply of oral health workers
is “not evenly distributed with the population.”).
24 See COMM . ON O RAL H EALTH ACCESS TO SERVS., I NST. OF M ED., IMPROVING ACCESS TO O RAL H EALTH C ARE
FOR V ULNERABLE AND U NDERSERVED P OPULATIONS 1 (2011) (Report Brief),
https://iom.nationalacademies.org/~/media/Files/Report%20Files/2011/Improving-Access-to-Oral-Health-Care-for-
Vulnerable-and-Underserved-Populations/oralhealthaccess2011reportbrief.pdf (“While the majority of the U.S.
population routinely obtains oral health care in traditional dental practice settings, oral health care eludes many
vulnerable and underserved individuals—including racial and ethnic minorities, people with special health care
needs, older adults, pregnant women, populations of lower socioeconomic status, and rural populations, among
others. Lack of access to oral health care contributes to profound and enduring oral health disparities in the United
States.”). See also D EP’T OF H EALTH AND H UMAN SERVICES, O RAL H EALTH IN AMERICA: A REPORT OF THE
SURGEON G ENERAL vii (2000), http://silk.nih.gov/public/hck1ocv.@www.surgeon.fullrpt.pdf [hereinafter SURGEON
G ENERAL’S REPORT] (finding a “silent epidemic” of dental and oral diseases disproportionately affecting “the poor
of all ages, with poor children and poor older Americans particularly vulnerable.”).
25 See SURGEON G ENERAL’S REPORT, supra note 24, at 66 (noting that “[o]verall, a higher percentage of
individuals living below the poverty line are edentulous than are those living above” and that the rate of edentulism
increases with age.). Tooth loss appears to be an important oral health issue in Kentucky. According to 2012 data
from the Centers for Disease Control and Prevention, 24.7% of Kentuckians over 65 reported complete tooth loss,
and 51.5% reported a loss of six or more teeth. See Oral Health Data, CNTRS. FOR D ISEASE CONTROL &
P REVENTION, http://www.cdc.gov/oralhealthdata/ (last updated Apr. 1, 2015) (Select Kentucky under “Explore Oral
Health Data By Location.” Kentucky data is from 2012.).
26 See generally 2016 Georgia Letter, supra note 5; FTC STAFF P OLICY P ERSPECTIVES, supra note 4; David A.
Nash, Envisioning an Oral Healthcare Workforce for the Future, 40 COMMUNITY D ENTISTRY & O RAL
E PIDEMIOLOGY (SUPP. 2) 141, 143 (2012) (“Delegation of an appropriate level of clinical care responsibilities must
occur if cost-effective care is to be provided.”); COMM . ON ORAL H EALTH ACCESS TO SERVS., supra note 24.
27 See N AT ’ L C TR . FOR H EALTH W ORKFORCE ANALYSIS, H EALTH RES. & SERVS. A DMIN., N ATIONAL AND S TATE
LEVEL P ROJECTIONS OF D ENTISTS AND D ENTAL H YGIENISTS IN THE U.S., 2012-2025, at 15 (2015),
http://bhpr.hrsa.gov/healthworkforce/supplydemand/dentistry/nationalstatelevelprojectionsdentists.pdf (predicting a
significant unmet demand for dentists nationally) [hereinafter HRSA Report]. See also Daniel M. Saman, Oscar
Arevalo & Andrew O. Johnson, The Dental Workforce in Kentucky: Current Status and Future Needs, 70 J. P UB .

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of dentures, the availability of denturists may enable more patients to obtain and maintain
treatment. Further, to the extent that denturists can serve as complementary providers of oral
health services – for example, by safely and competently providing certain types of dental care,
while identifying and referring patients in need of treatment by a dentist – both dentists and
patients may benefit from a regulatory structure that supports and encourages efficient
collaboration between the two types of providers.28
In addition to access challenges, many observers have noted that cost can be an additional
barrier to oral health care.29 Certain patients in need of treatment may forego or delay needed
care if it is too costly. Cost may be particularly relevant to the patient populations most in need
of dentures. For example, dentures may be excluded from Medicaid coverage for adults,30 and
Medicare generally excludes dental coverage.31 Allowing competent oral health professionals,
such as denturists, to deliver care at a level commensurate with their training and experience
could help to ensure that more patients have access to affordable providers. Conversely,
unnecessarily excluding oral health professionals, such as denturists, from providing care at a
level consistent with their training and experience may limit price competition among providers
serving these patients, which may result in patients going without needed care.32
For these reasons, we encourage the legislature to consider whether patient welfare can
be appropriately promoted by allowing denturists to treat patients in need of dentures. We note
that, for many years, a number of other states have allowed denturists to make and fit dentures,
H EALTH D ENTISTRY 188, 193-94 (2010) (finding fewer dentists in rural and poorer Kentucky counties and
suggesting the creations of additional types of mid-level dental providers as a possible partial solution to Kentucky’s
disparities in dental care).
28 See Nash, supra note 26, at 145 (“Replacement of missing teeth with partial or complete dentures should be
delegated to oral prosthetists to enable dentists to provide the level of care that only they are educated and trained to
provide.”).
29 See HRSA Report, supra note 27, at 15 (listing cost as one of several reasons patients forego dental care).
30 See M EDICAID AND CHIP P AYMENT & ACCESS COMM ’N, REPORT TO CONGRESS ON M EDICAID AND CHIP 24
(2015), https://www.macpac.gov/wp-content/uploads/2015/06/June-2015-Report-to-Congress-on-Medicaid-and-
CHIP.pdf. It appears that Kentucky’s Medicaid program does not cover dentures for adults. See D EP’T FOR
M EDICAID SERVS., COMMONWEALTH OF K Y., M EMBER H ANDBOOK 18 (2014),
http://chfs.ky.gov/nr/rdonlyres/f6b5f330-ee69-4cc8-83a8-1a1c0dc4bf46/0/finalhandbook62014.pdf. See also Dental
Services, K Y.: C ABINET FOR H EALTH & F AMILY SERVS., http://chfs.ky.gov/dms/dental.htm.
31 See COMM. ON O RAL H EALTH ACCESS TO SERVS., I NST. OF M ED., IMPROVING ACCESS TO O RAL H EALTH C ARE
FOR V ULNERABLE AND U NDERSERVED P OPULATIONS 197-98, 210 (2011) (Report),
http://www.nap.edu/catalog/13116/improving-access-to-oral-health-care-for-vulnerable-and-underserved-
populations (click “Download Free PDF”; registration required) (noting “strong evidence that dental coverage is
positively tied to access to and utilization of oral health care” even if the causal relationship is unclear, that millions
of Americans, in particular children and the elderly, lack dental coverage, and that Medicare excludes dental care.).
See also Medicare Dental Coverage, CTRS. FOR M EDICARE & M EDICAID SERVS.,
https://www.cms.gov/Medicare/Coverage/MedicareDentalCoverage/index.html?redirect=/MedicareDentalcoverage/
(last updated Nov. 19, 2013).
32 We note that the Kentucky Legislative Research Commission, in a 2000 study of denturity, cited research from
other states that seemed to support the notion that denturists provide lower cost services. See M ICHAEL G REER &
ANN M AYO P ECK, LEGISLATIVE RESEARCH COMM ’N, A STUDY OF D ENTURITRY 20-21 (2000),
http://www.lrc.ky.gov/lrcpubs/RR292.pdf. More recent reliable data on the cost differential between dentists and
denturists was not available.

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sometimes with limitations or other requirements.33 The experience of these other states may be
informative as the legislature considers the Bill.
IV. 	Conclusion
Competition among oral health care professionals has the potential to benefit consumers
by improving access to care, containing costs, and encouraging the development of more
effective care delivery models. If denturists can provide safe, quality care to patients, allowing
them to practice at a level commensurate with their training may bring benefits to Kentuckians in
the form of increased access to care, more choice in how their care is delivered, and more cost-
effective treatment. Because these benefits of competition could be significant to Kentuckians
who need dentures, we encourage the legislature to carefully consider whether denturists can
appropriately provide dentures, consistent with patient health and safety.
We appreciate this opportunity to present our views.
Respectfully submitted,
Marina Lao, Director
Office of Policy Planning
Ginger Jin, Director
Bureau of Economics
Deborah L. Feinstein, Director
Bureau of Competition
33 Currently, Arizona, Idaho, Maine, Montana, Oregon, and Washington recognize denturists as a profession and
allow them to make and/or fit dentures to some degree. A RIZ . R EV . S TAT . A NN . § 32-1293 (2016); I DAHO C ODE §
54-3303 (2016); M E . S TAT . tit. 32, § 1100-B (2016); M ONT . C ODE A NN . § 37-29-101, et seq. (2016); O R . R EV .
S TAT . § 680.500 ( 2016); W ASH . R EV . C ODE § 18.30.010 (2016).