FTC Staff Comment Before the Maine Board of Dental Examiners Concerning Proposed Rules to Allow Independent Practice Dental Hygienists to Take X-Rays in Underserved Areas

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Office of Policy Planning
Bureau of Competition
Bureau of Economics
November 16, 2011
Teneale E. Johnson
Executive Secretary
Board of Dental Examiners
143 State House Station
Augusta, ME 04333
Re: Rules to Implement a 2-Year Pilot Project for Independent Practice Dental
Hygienists to Process Dental Radiographs in Underserved Areas of Maine
Dear Ms. Johnson:
The staffs of the Federal Trade Commission’s Office of Policy Planning, Bureau
of Competition, and Bureau of Economics1 appreciate this opportunity to provide
comments to the Maine Board of Dental Examiners (“Board”) regarding its proposed
rules to implement a legislatively mandated two-year pilot project.2 This pilot project
would allow licensed independent practice dental hygienists (“IPDHs”) to process dental
radiographs (“x-rays”) in underserved areas of Maine. We write to address Section II of
the Notice of Agency Rule-making Proposal (“Notice”).3
Section II would restrict IPDHs to independently taking only two types of x-rays:
bitewing and periapical films. It would prohibit IPDHs from independently taking other
types of x-rays, including panoramic and full-mouth series. The pilot project aims to
foster accessible and cost-effective care in underserved areas of Maine, with no stated
limitations on the types of x-rays IPDHs may take independently. The proposed
restrictions in Section II, however, appear to limit IPDH practice under the pilot project
in ways not contemplated by the enabling legislation. We are concerned that Section II,
if adopted, would impede the development of new arrangements for delivering oral health
care services in ways contrary to the very intent of the pilot project. Notably, the Notice
does not provide any statement of the Board’s basis for its proposed restrictions. Nor
does the Notice cite to evidence -- and we are aware of no evidence -- that allowing
licensed IPDHs independently to process the x-rays that the proposed rule would restrict
is likely to harm the public. Absent such evidence, the proposed restrictions could have
the unfortunate effect of harming the members of the public by limiting their choices,
limiting access to oral health care, and impeding price competition. Therefore, FTC staff
at this time believes that the residents of Maine in underserved areas would be better
served if the Board eliminates the restrictions in Section II.
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580

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The U.S. Surgeon General has found that a “‘a silent epidemic’ of oral diseases”
affects our nation’s most vulnerable citizens, such as the underserved communities that
the enabling legislation sought to protect.4 Dental hygienists play an important role in
delivering dental care to these communities.5 Therefore, in implementing the pilot
project, we urge the Board to avoid imposing what appear to be the unnecessary
restrictions of Section II on IPDH practice.
I. 	Interest and Experience of the FTC
The FTC is charged with enforcing Section 5 of the FTC Act, which prohibits
unfair methods of competition and unfair or deceptive acts or practices in or affecting
commerce.6 Competition is at the core of America's economy, and vigorous competition
among sellers in an open marketplace gives consumers the benefits of lower prices,
higher quality products and services, more choices, and greater innovation.7 Competition
in health care markets has long been an area of focus for the FTC’s law enforcement,8
research,9 and advocacy10 activities.
The FTC has examined markets for the provision of dental services in the context
of various law enforcement actions. For example, in 2003 the Commission sued the
South Carolina Board of Dentistry (“SCBD”), charging that the Board had illegally
restricted the ability of dental hygienists to provide preventive dental services in
schools.11 The state legislature in 2000 had eliminated a statutory requirement that a
dentist examine each child before a hygienist could perform preventive care in schools, in
order to address concerns that many schoolchildren, particularly those in low-income
families, were receiving no preventive dental services. In 2001, the FTC’s complaint
charged, the Board re-imposed the dentist examination requirement. 12 The complaint
alleged 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. 13 The Board sought to have the complaint dismissed on
the ground that its actions were exempt from the antitrust laws by virtue of the state
action doctrine, but the Commission denied the motion to dismiss. 14 The Board
ultimately entered into a consent agreement settling the charges.15
FTC staff also has provided comments on competition and consumer protection
matters to other state dentistry boards and state officials.16 In 2009, staff provided
comments to Louisiana legislators and the Louisiana Board of Dentistry (“LBD”) to
highlight competition concerns raised by proposed bills and proposed LBD rules
regarding the practice of in-school dentistry.17 Consistent with staff’s comments, the
LBD ultimately adopted rules for portable and mobile dentistry that more closely align
dental practice requirements in schools and other non-traditional settings with
requirements applicable to the same dentists in traditional settings.18 In December 2010,
staff urged the Georgia Board of Dentistry not to adopt proposed rule changes that would
have required the indirect supervision of a dentist for dental hygienists performing
permitted treatments at approved public health facilities, and which could be interpreted

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to require a dentist’s initial diagnosis of all patients in such settings.19 Staff expressed
concern that the proposed changes likely would raise the cost of such services and reduce
the numbers of consumers receiving dental care, with no evidence that additional
supervision was needed to prevent harm to dental patients. The Georgia Board has tabled
the proposed rules.
II. 	Background on Maine Legislation and the Proposed Rules
In 2008, Maine passed legislation to allow dental hygienists meeting certain
education and experience requirements to be licensed as “independent practice dental
hygienists” and to perform many dental care services independently, without supervision
by a dentist.20
In June 2011, Maine enacted a legislative “Resolve” directing the Board to
implement a two-year pilot project that expands IPDHs’ current scope of practice by
allowing them also to take x-rays within areas designated as dental health professional
shortage areas by the United States Department of Health and Human Services.21 The
Resolve addresses “radiographs,” i.e., x-rays, in general, with no reference to particular
types of x-rays. The Resolve directs the Board to develop protocols for IPDHs to take
x-rays22 and further directs that it adopt “routine technical rules” to implement the
program. 23
The enabling legislation provides that all x-rays taken by IPDHs will be reviewed
by a dentist. Specifically, the Resolve requires that an IPDH performing x-rays must
have a written agreement with a licensed dentist who will interpret all x-rays within 21
days and sign a radiographic review and findings form. 24
Nothing in the Resolve indicates that the legislature contemplated rules that
would prohibit IPDHs from providing particular types of x-rays. Section II of the
Board’s recently proposed rules, however, would alter the pilot project by limiting IPDHs
to taking two types of dental x-rays: bitewing films (vertical and/or horizontal) and
periapical films (when necessary to check for subgingival calculus removal). The
proposed rules would prohibit IPDHs from taking any other types of dental x-rays,
including panoramic images or full-mouth series. The proposed rules indicate no reason
for these restrictions,25 and in fact seem to undermine the very purpose of the pilot
project, which is to test the effects of expanding the current scope of practice of an IPDH.
III. 	Discussion
Maine’s authorization of IPDHs permits the development of an innovative
delivery model for promoting oral health care. Licensed IPDHs serve as the initial point
of contact for patients seeking dental care, are authorized to provide various preventive
services themselves, assess the need for referrals to dentists for additional treatments, and
generate written referral plans. Taking dental x-rays would help IPDHs to fulfill their
responsibilities in this new delivery model by enhancing IPDHs’ ability to detect
abnormalities and determine when referrals are warranted. In dental health professional

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shortage areas, easier and more efficient access to dental care can improve health and
help to avoid costly procedures that may be required when dental conditions go untreated.
Permitting IPDHs to take x-rays in underserved areas under the pilot project also
may encourage more IPDHs to practice in these communities, which is likely to further
benefit Maine consumers. In addition to greater access, more convenient locations, and
potentially expanded hours of operation, an increased supply of dental health
professionals would foster competition in the provision of oral health care, which may
create incentives for all providers to lower prices or enhance the quality of their services.
We are therefore concerned by the Board’s proposal to limit IPDHs to taking only
bitewing and periapical films. If the Board were to adopt Section II, consumers in
underserved areas would lose some of the benefits of competition from the new delivery
model Maine has encouraged. Consumers would continue to absorb the additional travel
costs associated with needing to visit a dentist for certain types of x-rays (e.g., costs
incurred to travel to a dentist, or costs incurred by a dentist traveling to the underserved
area). Further, consumers would continue to pay the costs of a dentist’s time, even in
situations where a hygienist otherwise could provide services safely at a lower cost. Such
costs may cause some consumers to forgo necessary treatments. In addition, consumers
would not receive the other possible benefits of competition by IPDHs, such as more
convenient locations or hours of operation.
While we appreciate the importance of safety considerations regarding the taking
of x-rays,26 we know of no reason why IPDHs should not be expected to be mindful of
safety, and the Board’s proposed prohibitions in Section II do not appear to be tailored to
address any safety concerns. We also note that existing Board rules allow hygienists
working under “public health supervision” to perform the full range of x-rays, without the
need for a dentist to be present or to evaluate each individual patient before the x-rays are
performed. 27 These rules merely require written standing orders by a supervising dentist
who will be available to read them within 21 days. The pilot program already subjects
IPDH x-rays to the same type of review.
In general, sound competition policy calls for competition to be restricted only
when necessary to protect the public from significant harm and, if there is a restriction,
for the restriction to be crafted narrowly to minimize its anticompetitive impact. 28 This is
because consumers benefit from competition, including competition among health care
professionals. 29 Absent evidence of likely harm from the provision of panoramic or full-
mouth series x-rays by IPDHs practicing under the pilot program, the restrictions
proposed in Section II would be unnecessary and overly broad.
Conclusion
By prohibiting IPDHs from providing certain types of x-rays to patients in
underserved areas of Maine, Section II of the Board’s proposed rules threatens to deny
Maine consumers the potential benefits of expanded practice by IPDHs under the pilot
project. We urge the Board to consider whether the restrictions contained in Section II

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may be unnecessarily restrictive, and to limit its final rules to those needed to protect the
public.
Respectfully submitted,
Susan S. DeSanti, Director
Office of Policy Planning
Richard A. Feinstein, Director
Bureau of Competition
Joseph Farrell, Director
Bureau of Economics

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1 	This staff letter expresses the views of the Federal Trade Commission’s Office of Policy Planning,
Bureau of Competition, and Bureau of Economics. The letter does not necessarily represent the views of
the Federal Trade Commission or of any individual Commissioner. The Commission, however, has voted
to authorize staff to submit these comments.
2 	LD 230, 125 th Maine State Legis. (Me. 2011).
3 	Board of Dental Examiners, Notice of Agency Rule-making Proposal Concerning Ch. 16: Rules to
Implement a 2-Year Pilot Project for Independent Practice Dental Hygienists to Process Dental
Radiographs in Underserved Areas of the State (2011), available at
http://www.mainedental.org/forms/Chapter16Proposed.pdf.
4 	D EPARTMENT OF H EALTH AND H UMAN S ERVICES , O RAL H EALTH IN A MERICA: A REPORT OF THE
S URGEON G ENERAL 1 (2000), available at http://silk.nih.gov/public/hck1ocv.@www.surgeon.fullrpt.pdf.
5 	See generally id. at 3, 18.
6 	FTC Act, 15 U.S.C. § 45.
7 	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 generally FTC Staff, Overview of FTC Antitrust Actions in Health Care Services and
Products (Sept. 2011), available at http://www.ftc.gov/bc/healthcare/antitrust/hcupdate.pdf; see also FTC,
Competition in the Health Care Marketplace: Formal Commission Actions, available at
http://www.ftc.gov/bc/healthcare/antitrust/commissionactions.htm.
9 	See, e.g., F ED. TRADE C OMM’ N & U.S. DEP'T OF J USTICE (“DOJ”), I MPROVING H EALTH CARE: A
D OSE OF COMPETITION Ch. 7 (2004), available at
http://www.ftc.gov/reports/healthcare/040723healthcarerpt.pdf.
10 	FTC and staff advocacy may include letters or comments addressing specific policy issues,
Commission or staff testimony before legislative or regulatory bodies, amicus briefs, or reports. E.g., FTC
and DOJ Written Testimony before the Illinois Task Force on Health Planning Reform Concerning Illinois
Certificate of Need Laws (Sept. 2008), available at http://ftc.gov/os/2008/09/V080018illconlaws.pdf; FTC
Amicus Curiae Brief in In re Ciprofloxacin Hydrochloride Antitrust Litigation Concerning Drug Patent
Settlements Before the Court of Appeals for the Federal Circuit (Case No. 2008-1097) (Jan. 2008),
available at http://www.ftc.gov/os/2008/01/080129cipro.pdf; FTC & DOJ, A D OSE OF COMPETITION, supra
note 9.
11 	In re South Carolina State Board of Dentistry, Opinion and Order of the Commission IV. Factual
Allegations and Statutory Framework (2004) (Dkt. No. 9311), available at
http://www.ftc.gov/os/adjpro/d9311/040728commissionopinion.pdf.
12 	Id.
13 	In re South Carolina State Board of Dentistry, Complaint (2003) (Dkt. No. 9311), available at
http://www.ftc.gov/os/2003/09/socodentistcomp.pdf; see also In re South Carolina State Board of
Dentistry, Opinion and Order of the Commission II. Procedural Background.
14 	In re South Carolina State Board of Dentistry, Opinion and Order of the Commission.
15 	In re South Carolina State Board of Dentistry, Decision and Order (2007) (Dkt. No. 9311),
available at http://www.ftc.gov/os/adjpro/d9311/070911decision.pdf.

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16 	FTC, Advocacy Filings by Subject, Dentistry, available at
http://ftc.gov/opp/advocacy_subject.shtm#detg.
17 	FTC Staff Comment to the Hon. Timothy G. Burns Concerning Louisiana H.B. 687 (May 1,
2009), available at http://ftc.gov/os/2009/05/V090009louisianadentistry.pdf; FTC Staff Comment to the
Hon. Sam Jones Concerning Amendments to Louisiana H.B. 687 (May 22, 2009), available at
http://ftc.gov/os/2009/05/V090009louisianahb687amendment.pdf; FTC Staff Comment Before the
Louisiana State Board of Dentistry Concerning Proposed Modifications to Louisiana’s Administrative
Rules Regarding the Practice of Portable and Mobile Dentistry (Dec. 18, 2009), available at
http://ftc.gov/os/2009/12/091224commentladentistry.pdf.
18 	Louisiana Administrative Code, Title 46 § 313 (Portable and Mobile Dentistry), available at
http://www.lsbd.org/applications/dentalact2010.pdf.
19 	FTC Staff Comment Before the Georgia Board of Dentistry Concerning Proposed Amendments to
Board Rule 150.5-0.3 Governing Supervision of Dental Hygienists (Dec. 30, 2010), available at
http://ftc.gov/os/2010/12/101230gaboarddentistryletter.pdf.
20 	LD 2277, 123 rd Maine State Legis. (Me. 2008), codified at M E. REV. S TAT. 32 §§ 1094-I-T.
21 	LD 230, supra note 2.
22 	Id. at § 1.
23 	The pilot project’s enabling legislation directs the Board to implement the project by adopting
routine technical rules, as defined by the Maine Administrative Procedure Act. Id. Routine technical rules
are “procedural rules that establish standards of practice or procedure for the conduct of business with or
before an agency and any other rules that are not major substantive rules. . . .” ME. REV. S TAT. 5 § 8071 2.
A. By contrast, major substantive rules are those that, in the judgment of the Maine State Legislature,
“[r]equire the exercise of significant agency discretion or interpretation in drafting” or impose various types
of “serious burdens on the public or units of local government.” Id. at §§ 8071 2. B.
24 	LD 230, supra note 2, at § 1. As an additional safeguard during implementation of the pilot
project, the Board proposes to require each IDPH to maintain an exposure log to document details for each
patient receiving an x-ray.
25 	Minutes of the Board’s August 19, 2011 meeting simply state that “[t]he majority of the Board
feels that this limitation [on the type of x-rays that can be taken] is needed in order not to exceed the scope
of practice on an IPDH.” Maine Board of Dental Examiners Board Meeting Minutes (Aug. 19, 2011),
available at http://www.mainedental.org/forms/Aug19,2011.pdf.
26 	We understand that the need for and selection of dental x-rays depends on a variety of factors,
including the particular patient’s medical and dental history, symptoms, age, and conditions visible during
an oral examination, as well as the goal of avoiding unnecessary or inappropriate exposure to radiation.
27 	Maine Board of Dental Examiners Ch. 2: Rules Relating to Dental Hygienists Section III. B. (2)
e., available at http://www.maine.gov/sos/cec/rules/02/chaps02.htm#313. See also Maine Board of Dental
Examiners, Frequently Asked Questions . . . About Independent Practice Dental Hygiene 4, Radiographs
(Nov. 1, 2010), available at http://www.mainedental.org/forms/FAQs-IPDH.pdf (referencing this point).
28 	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).
29 	Goldfarb v. Virginia State Bar, 421 U.S. 773, 787 (1975).