For more than three consecutive years, fewer than 80% of the graduates of the Grambling State University School of Nursing (“Grambling”) passed the National Council Licensure Examination for Registered Nurses on their first attempts. In light of this record, and under authority granted it under state law, the State of Louisiana Board of Nursing (“the Board”) “instructed Grambling to cease admitting new students and involuntarily terminate its [nursing] program.” Rodgers v. State of Louisiana Board of Nursing, 16-30023 (5th Cir. 2016), http://caselaw.findlaw.com/us-5th-circuit/1753484.html#footnote_ref_1.
Grambling student Kourtney Rodgers brought suit in federal court, claiming “that the Board violated the Sherman Act, 15 U.S.C. § 1, and the Clayton Antitrust Act, 15 U.S.C. § 15(a), by restraining trade and commerce with respect to nursing education because the Board singularly relied upon an eighty percent passage rate to terminate Grambling’s program.” The Board moved to dismiss, and the court granted the motion.
The trial court first struck the plaintiff-appellant’s response to the Board’s motion to dismiss because a.) her pleadings exceeded local court rules on page limitations and b.) she submitted her papers late. On the basis of its own research, the court nevertheless developed arguments that Rodgers could have offered, and found them wanting.
First, contrary to the plaintiff’s argument, N.C. State Bd. of Dental Exam’rs v. F.T.C., 135 S. Ct. 1101, 1110–12 (2015) (“Dental Board”), discussed at http://medicalawfirm.com/2017/02/03/another-north-carolina-turf-war/, http://medicalawfirm.com/2016/11/30/antitrust-redux/, http://medicalawfirm.com/2016/10/21/whom-are-we-protecting/, and http://medicalawfirm.com/2016/09/13/ftc-competition-and-telemedicine/, did not control the analysis needed to evaluate the Board’s argument that, as an arm of the state, it was sovereignly immune. Relying on Earles v. State Bd. of Certified Pub. Accountants, 139 F.3d 1033 (5th Cir. 1998), the court agreed, and concluded as the Board had argued that it lacked jurisdiction to entertain the plaintiff’s claim.
In its motion to dismiss, the Board also argued that it was immune from suit under the state action immunity (“Parker immunity,” the teaching of Parker v. Brown, 317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 315 (1943)) doctrine analyzed in Dental Board. Having concluded that the Board’s immunity deprived it of jurisdiction of the case, however, the court did not need to nor did it address this argument
On May 22, the Supreme Court declined to review the decision of the 5th Circuit.
Comment
Licensure remains a significant issue for telemedicine professionals. Dental Board stands for the proposition that if a state fails to adequately supervise “market participants” who serve on its regulatory boards, the boards’ decisions may not qualify for immunity from antitrust claims under the Parker “state action” principle. While the Dental Board holding allows unsuccessful applicants for licensure to scrutinize carefully the role of “active market participants” in licensing decisions, it does not abrogate the concept of sovereign immunity, protected by the Eleventh Amendment: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
Traditionally, health care professionals have been regulated by the states. States guard their sovereignty jealously. Given the careful balance struck by the Framers between state and federal power, one should be cautious in anticipating quick or easy federalization of the licensure of health professionals