Dental Examiners Case Study

Indemnification may be needed to adequately protect state board members. In Dental Examiners, the Supreme Court choose not to address whether board members could be personally liable for monetary damages as individuals, but they did suggest it was possible. Scholars have found that individual damages against board members is likely given antitrust law on this subject. This raises real concerns because it may make it harder for the state to recruit board members if potential members fear they could be subject to lawsuits for personal damages. Indemnification represents a method to protect members by ensuring they would not be personally liable for damages. In Dental Examiners, the Supreme Court mentioned that indemnification was a …show more content…
The goal of increasing supervision is to ensure that state boards meet the Midcal test for state action, ensuring that boards have state action immunity. The biggest question with active supervision is whether the supervision is “active” enough to meet Midcal. As previously explained, the basic requirements of “active supervision” are: 1) there is a review of substance, 2) the reviewer can modify or rescind the decision, and 3) the review is significant enough to ensure it follows state policy. The main advantage of this response is that it can ensure immunity for state boards, while not disrupting the membership makeups of the boards. The response also has potential downsides. Increasing supervision may be both costly for the state and burdensome for state boards. For example, under the Oklahoma executive order, the Oklahoma Attorney General will have to review every single licensing decision made by state boards, and this review will be far greater than just procedure, instead it will require a review of substance for each decision. This could mean serious costs for the Oklahoma Attorney General Office. Nevertheless, every state that has so far taken concrete action on this issue has chosen to increase