Indiana Federation of Dentists

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IN THE MATTER OF INDIANA FEDERATION OF DENTISTS Doket 9118. Interlocutory Order, Feb. 5, 1979 ORDER DENYING PETITION OF STATE OF INDIANA To INTERVENE The State of Indiana, by its Attorney General, has appealed from a decision of Administrative Law Judge Paul R. Teetor (the "ALJ" denying its application to intervene in this proceeding. Because we do not believe that there has been a suffcient showing of the necessity for intervention, we cannot grant the petition.' The State of Indiana, however, is granted leave to appear in the proceeding as amicus curiae and to submit such briefs as it deems necessary to adequately represent the interests of the State on its own behalf and as parents patriae for its citizens. The complaint in this matter was issued in October, 1978, and charges the respondent Indiana Federation of Dentists with inter alia, ilegally conspiring to frustrate cost control programs administered by a number of insurance companies. In essence, the respondent and its members, a small group of Indiana dentists, are alleged to have agreed among themselves to refuse to submit X-rays and other diagnostic tests to insurers, who seek such information in order to assure that a dentist's proposed treatment is the least expensive treatment adequate to remedy a patient' s dental ils. Respondent has raised as an affrmative defense the assertion that its members are proscribed by Indiana law from submitting diagnostic materials, such as X-rays, to third party insurance payers, because such companies may employ non-dentists to review the Xrays. Respondent notes that Indiana law forbids the practice of dentistry by non-dentists, and contends that review of X-rays constitutes the practice of dentistry. Under this so-called "state action" defense, respondent in effect asserts that it is acting as private attorney gen"ral to enforce Indiana law. The State of Indiana apparently agrees with respondent about what constitutes the "practice of dentistry,'" and seeks permission , Unlike the AL , we do not believe that the propose intervenor s status as a state bars it. application here. Section 5() of the Federal Trade Comm ion Act provides: "Any person, partnen;hip, or corporation mly make application, and upon goo cause shown may be allowed by the Commision to intervene and appear in sad proceeding by counselor in pernn." The term "person" as us in the antitrust laws may emcompas a state Lafayette v. !..louisiana Power Light Co.. 435 U.S. 389 (1978). A consistent interpretation should be given to the implementing provision of the CommiBon s Rules of Practice, Section 3. , albeit slightly different phraslogy is use there. Inde-, the Commision haa previously permitted intervention by sovereign state, see e.g, Flori Citrus Mu.tu.o.l.Dkt. 6074 (February J2, 1953). . Se Unoffcial Advisory Letter, date March 14, 1974, from Curtis PJopper, Deputy Attorney General of the (Continued) Interlocutory Order 93 F. to intervene both to press this point and, as parents patriae, to protect its citizens from the unauthorized practice of dentistry in Indiana. While we appreciate the State s concerns, we are not convinced that Indiana must be made a party to this proceeding in order for that State to present effectively its views on the proper interpretation of Indiana law. No witnesses need be examined, nor any documentary evidence introduced, to establish Indiana s point of statutory construction, and as the State itself recognizes in its Memorandum in Support of Application for Review (p. 4), amicus curiae. . . is the traditional role accorded to those concerned with the precedential impact of adjudicative decisions." Where, as here, Indiana s arguments are wholly legal' in nature and wil relate more to such concerns as legislative history than to respondent's challenged practices, amicus curiae status should satisfactorily protect the State s interest.

Even assuming arguendo that some evidentiary inquiry or undertaking is necessary to properly present the "state action" defense the State of Indiana has advanced no reason why that defense cannot adequately be presented by counsel for respondent. Were the State intending to raise different or even supplemental concerns, our response might be otherwise, but the Deputy Attorney General candidly concedes that "(t Jhe State does not contemplate raising issues distinct from those raised in the Complaint and the Answer. Memorandum in Support of Application for Review, p. 8. As we said in Firestone Tire and Rubber Co., 77 F. C. 1666, 1668 (1970), persons seeking intervention must raise substantial issues "which would not otherwise be properly raised or argued." Given the apparent identity of interest between respondent and the State, and given that the State has not even contended that respondent will not adequately present the "state action" defense, we cannot say that the Firestone test has been met.

Weare sympathetic to the concerns raised by the State and appreciate its interest in assisting the Commission in reaching a just result in this adjudicative proceeding. We hope that the State will avail itself of the opportunity to fie amicus briefs as the need arises so that both the AL and the Commission can have the benefit of its views on the proper application of Indiana law to the facts at bar. It is ordered, That the application for intervention filed by the State ofIndiana be, and it hereby is, denied. State of Indiana, to Dr. Raymond Rothaar, President, Indiana Board of Dental Examinero, in which the author apparently concludes that review of dental X-rays constitute the "practice of dentistry" under Indiana law- The letter concludes by stating that "It Jhe views CJlpre hcreifJ an: thos of the writer and are not to be considered to 00 the opinion of the Attorn.ey General ofIndiana, nor a prceedent ofthe Attorney General's offce. 233 Interlocutory Order