Scope of practice refers to the rules that determine what services a licensed profession may provide and, conversely, what services are reserved to that profession alone. In the excerpts, the term appears both as a general feature of state occupational licensing and as the specific instrument used by dentists against teeth-whitening entrepreneurs.
The teeth-whitening case
Dick Carpenter described teeth whitening as a cosmetic process using very mild chemicals that consumers can buy over the counter in a grocery or department store. Entrepreneurs opened small businesses, sometimes in mall kiosks, using those same materials to perform the whitening for customers — providing a convenience the customer could otherwise do at home. Dentists, who had for years made a good living doing teeth whitening alongside regular dental services, saw the businesses as a threat New data shows that occupational licensing does nothing to increase quality (2022).
Carpenter explained that the dentists used scope of practice: defining what a practice is, what services somebody who does the job may provide, and — by defining it — what someone else cannot do because the service is reserved to the licensed person. The dentists said teeth whitening fell within the exclusive scope of practice of dentists, so anyone engaging in it was practicing dentistry without a license and had to cease and desist or face fines or other civil penalties New data shows that occupational licensing does nothing to increase quality (2022).
Carpenter said the Institute for Justice represented entrepreneurs who just wanted to provide a service. Bob Zadek observed that the dentists did not have to persuade the legislature; they only had to persuade their fellow dentists on the dental board, which they had captured The Presumption of Liberty & Occupational Licensing (2022). Carpenter agreed the pattern is not limited to dental boards — cosmetologists, interior designers and dietitians do it, with boards policing their fence partly by having people in the occupation report on unlicensed providers The Presumption of Liberty & Occupational Licensing (2022).
Zadek framed the outcome as showing the dental board exists not to protect the public but to protect the dentists. Carpenter said the Supreme Court found the dental board was in fact engaged in anti-competitive activity, and that occupational licensing is one of the rare public policies that achieves exactly what it intends: it keeps people out The Presumption of Liberty & Occupational Licensing (2022).
Licensing boards and regulatory capture
Carpenter described the licensing board as overseeing everything about the license itself: the requirements, the fees, the policing of the fence and the gatekeeping function. A board is created by enabling legislation, and once a bill is passed and signed by a governor, the board is immediately populated by people already in the occupation, often the same people who lobbied for the license. The result, he said, is regulatory capture: the occupation is overseen by people from the occupation itself, who are given government power to regulate who may enter it. Boards typically have five, nine or eleven members, almost always people in the occupation or licensed in it, possibly with one or two non-occupational or public members New data shows that occupational licensing does nothing to increase quality (2022).
Zadek characterized licensing as a series of statutes that are by definition anti-competitive — declaring an activity unsusceptible to competition — with costs, time and standards designed to discourage entry rather than invite it New data shows that occupational licensing does nothing to increase quality (2022).
Scope of practice in health care
The pandemic episode treated scope of practice as one of several state-level licensing obstacles. The guest said states not only determine who is a licensed healthcare practitioner but decide the scope of practice of each profession. In some states nurse practitioners may practice without supervision from a physician to the extent they are trained, and a lot of excellent primary care is given by nurse practitioners and physician’s assistants; in other states they may not. In some states nurse anesthetists cannot provide anesthesia without an anesthesiologist present, while in others they may, deciding for themselves whether to have someone with more training on standby Here comes “the spike…” (2020).
The same episode placed scope of practice alongside other licensing rules that obstructed response to the emergency. State medical and occupational licensing laws made it difficult for healthcare personnel to move between states, prompting many governors to give temporary recognition to licenses held elsewhere — for example, telling a nurse or doctor licensed in Texas that their license was acceptable in Massachusetts because help was needed. More than 35 states have Certificate of Need laws requiring permission from a government committee, usually made up mostly of competitors, to add beds, build a hospital or open a surgery center; the guest compared this to requiring a restaurant to win approval from other restaurants. In his state of Arizona, which he said has no Certificate of Need law, hospitals could convert sections of the hospital and add ICU beds without permission Here comes “the spike…” (2020).
The guest’s conclusion was that governors waived all of these restrictions as problems were encountered, and posed the lesson as a question: whether to reinstate the restrictions after the crisis and have the same flat-footed response, or to ask whether the restrictions are really needed Here comes “the spike…” (2020).
Across episodes
Two episodes — the November 2022 conversations with Dick Carpenter, which substantially repeat the teeth-whitening example and the account of licensing boards and regulatory capture — treat scope of practice through the case of entrepreneurs excluded by a captured dental board; the June 2020 episode presents it instead as one of the licensing obstacles that governors waived during the pandemic, with nurse practitioners, physician’s assistants and nurse anesthetists as the examples. The excerpts show no development of the argument between the earlier and later treatment: the same anti-competitive characterization is advanced by Carpenter in 2022 and by the pandemic guest in 2020, and Zadek supplies the framing in both.
What the sources do not cover
The excerpts do not identify the parties, the court, or the procedural path of the teeth-whitening case beyond Carpenter’s statement that the Supreme Court found the dental board engaged in anti-competitive activity. Nor do they state which state’s board was at issue; Zadek guesses at North or South Carolina and Carpenter refers to North Carolina. The excerpts do not give the statutory text of any scope-of-practice or Certificate of Need law, nor the terms of any governor’s waiver.