15.01.13.03

.03 Secretary’s Supervision Responsibilities.

A. The Secretary is responsible for supervising each unit within the Department that is composed in whole or in part of individuals participating in the occupation or profession regulated by the unit to:

(1) Prevent unreasonable anticompetitive actions by the unit; and

(2) Determine whether the decisions and actions of the unit with anticompetitive effect further an affirmatively expressed and clearly articulated State policy to displace competition in the unit’s regulated market (as opposed to serving the private interests of the market participant regulators).

B. For purposes of the Secretary’s responsibilities under this chapter, the following types of decisions and actions of a unit generally are not unreasonable anticompetitive actions by the unit:

(1) Ministerial or nondiscretionary acts undertaken in good faith implementation of the unit’s enabling legislation;

(2) An investigation, charge, or disposition of a disciplinary charge against a single individual subject to the regulatory authority of a unit involving an issue such as standard of care; and

(3) The initiation and prosecution of a lawsuit by a regulatory board unless it falls within the “sham exception.” Professional Real Estate Investors v. Columbia Pictures Industries, 508 U.S. 49 (1993); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972).

C. For purposes of the Secretary’s responsibilities under this chapter, the types of decisions and actions for which anticompetitive consequences should be evaluated, include, but are not limited to:

(1) Decisions or actions governing the scope of a licensed individual’s practice;

(2) Requirements for granting a license;

(3) Pricing regulations;

(4) Restrictions on advertising or soliciting customers;

(5) Territorial allocations;

(6) Restrictions on market participation or actions against nonlicensees;

(7) Restrictions on competitive bidding; and

(8) Patterns of disciplinary action by a unit against similarly situated licensees.