FTC Staff Comment To the Louisiana State Board of Dentistry Concerning Proposed Modifications to Louisianas Administrative Rules on the Practice of Portable and Mobile Dentistry

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 	20580
Office of Policy Planning
Bureau of Economics
Bureau of Competition
December 18, 2009
Louisiana State Board of Dentistry
Barry Ogden, Executive Director
650 Canal St., Suite 2680
New Orleans, LA 	70130
Re: 	Proposed Modifications to Louisiana’s Administrative
Rules Regarding the Practice of Portable and Mobile
Dentistry
Dear Mr. Ogden:
Recently, the Louisiana Board of Dentistry proposed amendments to its
rules regarding the practice of “portable and mobile dentistry.” 1 These
amendments would allow dentists to bring their portable, self-contained offices
to the consumer. We are concerned, however, that some of the proposed
amendments discriminate between mobile and office-based dentistry and restrict
competition in an unnecessarily broad manner. 	If the Board of Dentistry adopts
these proposals, they will deny many of Louisiana’s children – particularly
Medicaid-eligible children – access to dental care.
For the reasons detailed below, the staffs of the Federal Trade
Commission’s Office of Policy Planning, Bureau of Economics, and Bureau of
Competition2 urge the Louisiana State Board of Dentistry to modify certain
sections of the proposed rules that are likely to make it more difficult for mobile
dentists to operate, resulting in fewer poor children receiving dental care.
1 The proposed rules would amend Title 46 of the Louisiana Administrative Code by adding a
new Section 313, 46 LAC § 313. The proposed rules are located in the Louisiana Register, October
2009 at p. 2226-30; available at http://www.doa.louisiana.gov/osr/reg/0910/0910.pdf. The
proposed rules make a distinction between portable and mobile dentistry. See proposed 46 LAC
§ 313(A). Aware of this distinction, for remainder of this letter we refer to “mobile and portable
dentistry” collectively as “mobile dentistry.”
2 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 staff to submit these comments.

Louisiana State Board of Dentistry
December 18, 2009
Page 2 of 6
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.3
Competition is at the core of America’s free market economy.4 Aggressive
competition among sellers in an open marketplace gives consumers the benefits
of lower prices, higher quality products and services, more choices, and greater
innovation. 	Anticompetitive conduct in health care markets has long been a
target of FTC law enforcement5 and research. 6 The FTC and its Staff also
encourage competition through advocacy and have urged several states and their
regulatory boards to reject or narrow restrictions on competition in health care
professions.7
3 Federal Trade Commission Act, 15 U.S.C. ' 45.
4 See National Society of Professional Engineers v. United States, 435 U.S. 679, 695 (1978) (“The heart
of our national economy long has been faith in the value of competition.”).
5 For example, in 2002, the 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. 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. 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.
6 See, e.g., FEDERAL TRADE C OMMISSION , FTC A NTITRUST A CTIONS IN H EALTH C ARE 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.
7 See, e.g., Letter from FTC Staff to Hon. Timothy Burns, Louisiana Legislature, (May 1, 2009)
(regarding proposed restrictions on Mobile dentistry); available at
http://www.ftc.gov/os/2009/05/V090009 louisianadentistry.pdf; Letter from FTC Staff to Hon.
Sam Jones, Louisiana Legislature (May 22, 2009) (regarding modifications to bill regulating the
practice of in-school dentistry); available at http://www.ftc.gov/os/2009/05/V090009louisianah
b687amendment.pdf; Letter from FTC Staff to Elain Nekritz, Illinois Legislature (May 29, 2008)
(regarding proposed regulations on limited service health-care clinics); available at
http://www.ftc.gov/os/2008/06/V080013letter.pdf; Letter from FTC Staff to Massachusetts
Department of Health (September 27, 2007) (regarding proposed regulations on limited service
health-care clinics); available at http://www.ftc.gov/os/2007/10/v070015massclinic.pdf. Many
of these advocacy efforts have been successful in preserving competition. For example, following
the above referenced advocacy letters, the Louisiana and Illinois legislatures rejected the
proposed restrictions on competition, and the Massachusetts Board of Health adopted the
guidance recommended by FTC Staff.

Louisiana State Board of Dentistry
December 18, 2009
Page 3 of 6
Discussion
Children need regular oral health exams and treatments8 and can be
severely hurt when denied access to such care.9 Access to care (particularly for
children who qualify for Medicaid) is a common problem nationwide, despite
many efforts to promote access.10 For example, in 2007, Louisiana increased its
public insurance coverage to encourage more dentists to treat children on
Medicaid.11 Still, less than one-third of Louisiana’s dentists treat Medicaid-
eligible patients, and only 37 percent of Medicaid-eligible children received any
dental services at all.12 Getting children and dentists in the same place at the
same time to complete a dental exam poses the greatest barrier to Medicaid-
children receiving dental care.13 A resolution to this issue is to bring the dentist’s
8 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 .
9 See, e.g. Mary Otto, For Want of a Dentist: Pr. George’s Boy Dies After Bacteria from Tooth Spread to
Brain, Washington Post (February, 28 2007); available at http://www.washingtonpost.com/wp-
dyn/content/article/2007/02/27/AR2007022702116.html (discussing how 12-year old Deamonte
Driver of Prince George’s County, Maryland, died when bacteria from a tooth abscess spread to
his brain, and which could have been prevented had he had access to dental care); see also Marian
Wright Edelman, Deamonte Driver Dental Project, Hudson Valley Press (September 23, 2009),
available at http://www.hvpress. net/news/173/ARTICLE/7885/2009-09-23.html (Discussing the
Deamonte Driver case and subsequent efforts in various states to promote mobile dentistry to
Medicaid-eligible children.)
10 Government Accountability Office, MEDICAID: State and Federal Actions Have Been Taken to
Improve Children’s Access to Dental Services, but Gaps Remain, (“GAO Report”) Report No. GAO-09-
723, September, 2009, at 6, 11; available at
http://www.gao.gov/docsearch/locate?searched=1&o=0&order _by=date&search_type
=publications&keyword=gao-09-723.
11 See Louisiana Act No. 407 (2007) available at
http://www.dhh.louisiana.gov/offices/miscdocs/docs-119/Act407.pdf
12 Louisiana Department of Health and Hospitals, Office of Public Health, Oral Health Report
(Fall, 2009), available at http://www.dhh.louisiana.gov/offices/publications/pubs-
267/oralhlthnewpdf.pdf, see also Jan Moller, School Dentistry Debate in House Today, New Orleans
Times-Picayune (June 1, 2009); available at http://www.nola.com/news/index.ssf
/2009/06/school_dentistry_debate_in_hou.html (explaining that more than 400,000 children did
not access the care benefits available to them).
13 GAO Report at 11. According to a 2008-2009 survey, state Medicaid directors cited three
factors most frequently as barriers preventing Medicaid-children from accessing care: (1) locating
a dentist willing to provide care, (2) travel distance to and from a dentist’s office, and (3) parents’
inability to get time off work to take children to the dentist’s office. GAO Report at 17.

Louisiana State Board of Dentistry
December 18, 2009
Page 4 of 6
s
te dental care.
office to the consumer through self-contained mobile offices. Schools are often
the destination for these mobile offices.14
Pursuant to legislative mandate in the Louisiana Dental Practices Act,15
the Louisiana State Board of Dentistry has promulgated proposed rules to
modify the professional standards of the practice of dentistry in mobile
settings.16 	The proposed rules in part ensure adherence to prevailing standard
of care to which all dentists must already comply.17 	The proposed rules,
however, also would impose unnecessary burdens on dentists who offer services
in a mobile setting. Such restrictions on competition are likely to result in fewer
children – especially those who are economically disadvantaged – received
adequa
The largest potential barrier to mobile dentistry is found in proposed
§313(G)(6), which would require dentists to conduct a separate meeting by
telephone or in-person with parents if children will be treated in a portable or
mobile setting. This meeting occurs in addition to the written disclosures all
dentists must already provide to patients and is required despite the signed
14 See D.M. Jackson, et al., Creating a Successful School-based Dental Program, Journal of School
Health, 77:1 at 6 (January, 2007), available at http://www.stdavidsfoundation.org/
downloads/dental_report.pdf (describing a program that provides screening, sealants, treatment
and education, the authors explained, “The school setting is an optimal platform for service
delivery because the ‘captive’ audience is made up of many children who have little or no access
to dental care. Because the Program provides free services in schools, it removes most barriers to
oral healthcare including parents’ inflexible work schedules, lack of transportation, eligibility and
bureaucratic processes, and cost.”); see also, e.g. Wright-Edelman, supra n. 9; see also Sandra
Barbier, Students Get In-School Dental Care, The Mississippi Press, (Nov. 25, 2009); available at
http://www.gulflive.com/news/mississippipress/news.ssf?/ base/news/1259147716297860
.xml&coll=5 (describing mobile dentistry provided in Louisiana schools); Ronald McDonald
House Charities, Ronald McDonald Care Mobile® Bring Dental Care to Area Schools, PR Newswire,
available at http://www.prnewswire.com/news-releases/ronald-mcdonald-care-mobiler-brings-
dental-care-to-area-schools-78799697.html (“Many Northwest Arkansas children will get their
first glimpse of a dentist's chair when the new Ronald McDonald Care Mobile®, the area's first
mobile dental clinic, comes to their schools.”)
15 See R.S. 37:751, et seq. (2009)
16 The existing rules are codified at LAC 46:XXXIII Ch. 3, §§312, 313, 314
17 See proposed Rule §313 (E)(1), et seq., mandating that dentists in mobile and portable clinics,
“shall maintain and uphold the prevailing standard of dental care.” Further, proposed Rule
§313(C), for example, contains provisions that govern certain licensing, notification, and
operation specifications necessary to register and operate a mobile or portable dental clinic,
which appear consistent with certain other operational mandates required when services are
provided in non-mobile settings.

Louisiana State Board of Dentistry
December 18, 2009
Page 5 of 6
parental authorization all dentists must obtain before treating children. We are
unaware of a parent-dentist conference requirement when a dentist treats a child
in an office. Because all practicing dentists must adhere to the same standards of
conduct and care, there seems to be no consumer benefit from this requirement.
Rather, this requirement will render it more difficult for dentists to provide these
services by erecting an additional hurdle to bringing a dentist to a child.
Two other parts of the proposed rules also may make it harder to provide
mobile dentistry to children. First, proposed §§313(J)(1) and (2) establish a
means by which any member of the Board of Dentistry, which is composed
mostly of competing dentists, may punish dentists for providing services in
portable and mobile settings. Under Rule §§313(J)(1) and (2), every member of
the Board may make an unannounced inspection of a dentist providing services
in a portable or mobile setting. Dentists cannot be subject to an unannounced
inspection when services are limited to the office; such inspections require at
least 48 advance notice.18 This authority could be seen as an invitation for Board
members to act individually or in concert to punish dentists when they compete
by providing mobile services. Subjecting dentists to the threat of an
unannounced inspection when they treat patients in mobile settings, but not in
office settings, may reduce dentists’ willingness to treat patients in mobile
settings.
Second, proposed §313(G)(1), requires dentists providing services in a
portable or mobile setting to include in their consent form a statement “that if the
minor already has a dentist, the parent or guardian should continue to arrange
dental care through that provider.” A dentist does not need to give this advice if
the patient seeks treatment in an office. 19 It is unclear why this requirement is
based on the setting of such services, especially because all dentists treat patients
in accordance to the same prevailing standards of quality, safety and
competence, regardless of setting.20 Further, a rule mandating that one
competitor advise a patient to return to another competitor is a form of market
allocation that undermines the fundamental principles of competition,
particularly because it is applied only in this setting.
18 See Rule §1204(A). Under §1204(B), the Board may conduct unannounced inspections of
dentists only if “bona fide complaints have been received regarding non-adherence to Federal
Centers of Disease Control guidelines or other issues involving sanitation.
19 It may be the prevailing practice to advise patients in the midst of on-going treatments, to
maintain the relationship with the dentist until such treatments are completed.
20 Id.

Louisiana State Board of Dentistry
December 18, 2009
Page 6 of 6
By making access to dental treatment in a mobile setting more difficult,
the proposed rules are likely to reduce the number of poor children in Louisiana
who receive dental care. 	At the same time, we are not aware of any evidence to
suggest that the restrictions in the proposed rules identified above are likely to
provide Louisianans with any benefits. Moreover, if the proposed amendments
are necessary to assure patient safety, it is unclear why mobile dentistry offered
by federal, state, and local government agencies, as well as free dental care
provided in mobile settings are exempt from the rules.21
Conclusion
As detailed above, certain sections of the proposed rules are likely to
make it more difficult for poor children to access dental care. Further, these
proposals do not seem to be calculated to provide Louisiana citizens with any
countervailing benefits. Accordingly, FTC Staff urges the Louisiana Board of
Dentistry to modify the proposed rules.
We appreciate your consideration of these issues.
Respectfully submitted,
Susan S. DeSanti
Director
Office of Policy Planning
Richard A. Feinstein
Director
Bureau of Competition
Howard Shelanski
Deputy Director for Antitrust
Bureau of Economics
21 See proposed Rule §313 (B)(1) & (3).