Should the antitrust laws apply to business practices of doctors, dentists, lawyers, and other professionals?
The Supreme Court said yes in a 1975 case involving price-fixing by lawyers. But this decision and many others applying antitrust laws to professionals may be overturned through a systematic, two-part lobbying effort by some major professional groups.
In the first phase of their strategy, the groups have been actively pressing legislation now pending before Congress. Associations representing doctors, dentists, optometrists, and other professions are lobbying for bills which would exempt state-licensed practitioners from Federal Trade Commission (FTC) jurisdiction.
The groups insist that FTC oversight is unnecessary because the Justice Department and the states, by themselves, can adequately enforce antitrust laws governing professions. However, the second part of the strategy is to push for separate legislation designed to weaken the antitrust authority of the Justice Department and the states.
Each part of the strategy is bad public policy. And together they spell economic disaster for consumers.
The Justice Department and the states alone cannot sufficiently enforce antitrust or consumer protection laws governing professions. FTC enforcement is needed.
The Justice Department has little authority or experience in consumer protection compared to the FTC. And the Justice Department has brought very few antitrust cases against professions. If the FTC loses jurisdiction over professionals, no federal agency will have the authority, resources, or expertise to stop consumer fraud or deception by professionals.
And relying on state antitrust and consumer protection laws to fill the void is very unrealistic.
Recognizing the limitation of their own resources for enforcing such laws, the National Association of State Attorneys General voted overwhelmingly to oppose the pending exemption.
State regulatory boards are controlled by the very same professionals they police. Their decisions are often self-serving rather than self-regulating. Their actions, which honestly aim to protect the public interest, often help professionals rather than consumers.
Perhaps the most compelling evidence of whether FTC oversight is valuable, or merely redundant, came from doctors themselves. The American Society of Plastic and Reconstructive Surgeons this year petitioned the FTC to investigate possible deception by practitioners who claim to remove wrinkles through laser beam technology.
By comparing FTC enforcement with that of the Justice Department and the states, it is easy to understand why professionals say they are content with oversight by the Justice Department and states alone.
But such statements of content are proven specious by the groups' second phase of strategy - lobbying for relief from federal and state antitrust laws.
The American Medical Association's House of Delegates last June voted to seek amendments which weaken federal and state antitrust laws.
Let's look at statements made by the lobbyists.
They claim that the commission is trying to intrude in quality-of-care decisions which only professionals are qualified to make. However, the FTC does not interfere in such issues best left to the practitioners themselves. The agency does not tell surgeons how to operate on their patients and it does not tell state licensing boards which individuals are qualified to extract teeth.
The FTC focuses on only commercial aspects of professional practice. The professions, like all other commercial enterprises, should remain subject to prohibitions on price-fixing, restraints of trade, boycotts, deceptive advertising, and consumer fraud.
The lobbyists complain that the FTC is ''overzealous'' in its regulation. They point to recent cases such as these:
* The commission last March reached agreement with a Florida county medical society to allow its doctors to advertise fees and services, such as speaking Spanish and accepting credit cards. It not only increased competition, but also allowed non-Engish-speaking patients in this Hispanic area to know which physicians they could understand.
* The agency last August ordered the American Dental Association to stop restricting advertising by its members.
* The FTC in 1981 reached agreement with all five physicians in a small town in Texas to end their threat to boycott the hospital's emergency room. The doctors were protesting hospital plans to hire another physician.
* The commission in 1979 intervened to prevent doctors in Pittsburgh from denying hospital privileges to other physicians who were working with Health Maintenance Organizations (HMOs), prepaid medical care plans which help keep costs down.
* The agency issued a rule in 1978 which requires eye doctors to give patients a copy of their lens prescription so they can comparison shop for glasses.
The FTC actions were not ''regulatory'' but ''deregulatory,'' because they removed protective, unnecessary restrictions and other barriers to competition. Deregulation allows market forces to work, encouraging competition which is essential to hold down prices, ensure consumer choice and encourage better service.
And competition among professionals - including nurses, accountants, psychologists, engineers, architects, and many others - is desperately needed to keep their fees from further skyrocketing.
These professional expenses are already consuming more and more of our earnings. Health care costs alone accounted for $255 billion last year, nearly 10 percent of America's gross national product.
The costs for medical and dental checkups, legal bills, accountant's fees, orthodontal work, hospital care, and numerous other services will be pushed even higher if the pending exemption passes Congress.
The only way to prevent this is to oppose such immunity from the law for professionals contained in Senate bill S. 2499 and in House bill H. R. 3722.