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State Board Report

July 2016

In response to the Supreme Court’s decision in the North Carolina Dental Board case, NASBA is engaged in a three-prong approach to support State Boards of Accountancy, said NASBA Director of Legislative and Governmental Affairs John Johnson. This effort consists of: (1) Education, awareness, and training – including a webpage dedicated to the NC Dental Board case that features webinars, white papers and other materials, as well as conducting meetings with individual Boards; (2) State legislative support that identifies, tracks and works with Boards when related legislation is filed; and (3) Support of a federal solution through participation in the Professional Licensing Coalition.

Accountancy Boards should not assume that they have the statutory authority to issue "cease and desist" letters or orders, Nathan Standley, Esq., advised at the Regional Meetings. However, there may be public protection and regulatory efficiency reasons for sending letters to non licensees during or following a Board’s investigation. In the North Carolina Dental Board case, the U.S. Supreme Court ruled against the Board’s practice of sending out letters which appeared to be orders to non-licensees offering teeth whitening services. Instead, Mr. Standley advised each Board to check with their legal counsel as there are many considerations that are specific to each jurisdiction. He also advised that Board members undergo training to stay current in antitrust law as it affects State Boards of Accountancy. NASBA has created a 42-minute webinar for State Boards for that purpose.

NASBA staff and legal counsel have been tracking approximately 24 court cases, Brenner Allen, Esq., reported. Ms. Allen outlined how the Eleventh Amendment intersects with antitrust law and described the significance to State Boards of: Petri v. Virginia Board of Medicine (4th Cir. May 16, 2016), Robb v. CT Board of Veterinary Medicine (D. Conn. Jan. 20, 2016), Teladoc, Inc. v. TX Medical Board (W.D. Tex. Dec. 14, 2016), Rodgers v. Louisiana State Board of Nursing (M.D. La. Dec. 18, 2015) and Eastern Railroad Presidents Conference v. Noerr Motor Freights, Inc. (365 U.S. 127, 137 – 1961). Ms. Allen told the Western Regional that additional cases had just come in the previous week; however, she noted no case based on the NC Dental Board decision has been brought against a Board of Accountancy yet.

NASBA is one of the eight groups supporting the Professional Licensing Coalition (PLC). The others are: the Association of State and Provincial Psychology Boards, Council of Landscape Architectural Registration Boards, Federation of State Medical Boards, Federation of State Boards of Physical Therapy, National Board for Certification in Occupational Therapy, National Council of Architectural Registration Boards, and Federation of Associations of Regulatory Boards, Mr. Johnson reported. The PLC has been educating members and staff of the House/Senate Judiciary Committees on a surgical approach to amend the Local Government Antitrust Act. This would remove the threat of treble damages, and in most cases attorney fees, for professional licensing boards and board members.

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