One of the major, 20th-century body blows to free enterprise was delivered by the U.S. Supreme Court in 1955, via a decision against Oklahoma opticians in a case brought by rival optometrists and ophthalmologists.  The latter had convinced the state legislature to pass a law limiting the ability of opticians to provide consumers with corrective lenses.  Liberal Associate Justice William O. Douglas wrote for the High Court that state legislators no longer would need to provide a clear, or even a rational basis for restricting one class of business or profession in order to benefit another. 

The reasoning in that decision (Williamson v. Lee Optical ) remains to this day one of the favored legal shields with which established business and professional interests protect themselves from real or perceived rivals seeking to enhance competition or lower costs. The 60-year old decision came to my mind recently as I reflected on a pair of articles relating to the practice of dentistry in my home state of Georgia and nationally.

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The first catalyst for jogging my legal memory was a recent study about DSOs (Dental Service Organizations) referenced in an opinion piece in Forbes.  

According to the article by Wayne Winegarden, DSOs have been around since the late 1990s, as a business model allowing for licensed dentists to band together their individual practices in order to enjoy economies of scale and reduce administrative costs.  One benefit noted by Winegarden is that such arrangements allow dentists to provide services to children in underserved communities through Medicaid –- service the dentists would be unable financially to provide if they were practicing on their own.

In fact, as Winegarden further notes, and as reflected in a study by the firm Dobson, DaVanzo & Associates, such a model results in huge, multi-million dollar savings to the Medicaid program administered jointly by the federal government and the states.  These savings are in addition to the benefits accruing to underprivileged children who receive dental care under Medicaid; services they would not otherwise enjoy without access to DSOs such as Kool Smiles, a DSO active in 15 states including Georgia.

Yet, despite the clear health and fiscal benefits of DSOs, these organizations continue to be criticized and targeted by plaintiff lawyers and others; critics who claim that dentists who practice in DSOs perform procedures on children covered by Medicaid that are unnecessary or too costly, or both. The reality, of course, is that dentists who practice in DSOs are all fully licensed professionals who own the DSOs in which they practice.  They are bound by the very same laws and professional standards to which their colleagues are subject; including performing only those services that are necessary and appropriate for the patient.

As I was pondering the situation revealed by Winegarden’s opinion piece in Forbes regarding Kool Smiles and other DSOs, I came across a news account of an effort by a group of legislators in Georgia to pass a bill permitting dental hygienists to clean patients’ teeth in clinics without a licensed dentist being physically present, as required now under state law.  This common-sense and what would seem uncontroversial change to Georgia’s law, would simply bring the Peach State into conformity with the laws of 45 other states.  Not!  The forces of the status quo – in this instance, Georgia dentists – pressured the legislature into shelving the measure.

Sadly, even in 21st-Century Georgia (now, a very “red” Republican state), the regulator’s old friend, Lee Optical, is alive and well – reflected here in a law having far less to do with protecting patients, than with shielding the interests of a profession from less costly treatment.

Interestingly, this debate about dental hygienists attracted what some would consider an unlikely ally.  One of the regulatory arms of the Obama administration, the Federal Trade Commission (FTC), openly supported the dental hygienists’ effort to reduce unnecessary restrictions on their ability to clean children’s teeth.  In a lengthy letter dated January 29th, the FTC noted that the current restrictions in Georgia impede competition, and result in making it more difficult and costly for patients, especially children in underserved areas of the state, to receive beneficial oral cleanings.

While the Georgia legislation failed this year, it likely will be presented again next year.  If so, it will be very interesting to see whether the next administration in Washington – especially if the 45th President is a Republican – will be as supportive of enhanced competition in the field of dentistry and dental hygiene as is the current FTC.  All of us as taxpayers and dental patients have a very real stake in the outcome of these legislative and regulatory battles.

Barr served in the House from 1995 to 2003.