UNITED STATES OF AMERICA

Federal Trade Commission

WASHINGTON, D.C. 20580

Office of Commissioner

Rohit Chopra

DISSENTING STATEMENT OF

COMMISSIONER ROHIT CHOPRA

Regarding the Commission’s Advocacy to the Department of Veterans Affairs 

Commission File No. V210000 

January 15, 2021 

The Commission has voted to authorize a comment submission in support of a rule by the 

Department of Veterans Affairs (VA). The rule seeks to confirm the VA’s ability to preempt 

certain state patient protection laws for health care professionals employed by the VA in certain

circumstances.

While I have supported efforts for states to offer reciprocity and portability for licensed workers, 

elimination of state patient protections through federal preemption is a different proposition 

altogether and requires a more careful, rigorous analysis.1I am troubled that the staff comment’s

embrace of preemption focuses solely on competition-related issues and does not consider 

important consumer protection issues relating to veterans’ health. I understand the VA’s need to 

deploy its health care professionals across state borders, especially during a national health

emergency, but the comment goes beyond the VA’s rule with regard to preemption. 

In the past, the Commission has taken a more thoughtful approach to balancing federal and state 

laws that protect consumers and competition.2 The Commission has long recognized how state 

laws can play a role in protecting consumer interests. State medical boards, in particular, play a

1 The federal government has a long history of ill-conceived preemption efforts that undermine protections for

families. In finance, efforts by federal banking regulators to preempt state enforcement contributed directly to the 

financial crisis. See Alan White et al., The Preemption Effect: The Impact of Federal Preemption of State AntiPredatory Lending Laws on the Foreclosure Crisis, UNIVERSITY OF NORTH CAROLINA: CENTER FOR COMMUNITY 

CAPITAL (Aug. 2010), https://communitycapital.unc.edu/research/the-impact-of-federal-preemption-of-state-antipredatory-lending-laws-on-the-foreclosure-crisis/. In the airline sector, federal efforts to block state enforcement

have resulted in weakened protection for passengers, and have impeded state attorneys general during this pandemic.

See, Press Release, Off. of the Colorado Att’y Gen., Att’y Gen. Phil Weiser Urges Congress to Adopt New

Consumer Protections for Airline Industry Customers (Oct. 2, 2020), https://coag.gov/press-releases/10-2-20/. And 

when it comes to consumer privacy, tech behemoths are eagerly trying to hit delete on critical state protections, 

knowing that federal legislation if often weaker. See Michael Beckerman, Americans Will Pay a Price for State

Privacy Laws, N.Y. TIMES (Oct. 14, 2019), https://www.nytimes.com/2019/10/14/opinion/state-privacy-laws.html. 

2

In the context of data security, the Commission has determined it would be inappropriate to preempt state laws that 

are more protective of consumers, but do not conflict with federal requirements. See, e.g., Letter from Donald S.

Clark, Sec’y, Fed. Trade Comm’n, to the Hon. John P. Burke, Comm’r, Dep’t of Banking (June 7, 2002),

https://www.ftc.gov/system/files/documents/rules/privacy-consumer-financial-information-financial-privacyrule/response_preemption_connecticut.pdf.
2

critical role when it comes to taking disciplinary actions against medical practitioners who have 

engaged in misconduct and malpractice.

The VA is lucky to attract outstanding physicians among its ranks. However, we shouldn’t lose 

sight of the fact that there have been situations where VA physicians have had their licenses 

revoked by a state medical board, which has been a source of past controversy.3

Unfortunately, the FTC staff comment – which is not joined by the staff of the FTC’s Bureau of 

Consumer Protection – does not address how, under the VA rule, veterans harmed by physician 

misconduct can seek appropriate disciplinary action, as well as other patient protection concerns. 

This failure to outline the full range of impacts of the rule on veterans is a mistake. I am also 

disappointed that the Commission has failed to maintain its traditional bipartisan approach to 

advocacy on competition and consumer protection issues. For these reasons, I dissent.

 3 Donovan Slack, Illegal VA policy allows hiring since 2002 of medical workers with revoked licenses, USA TODAY 

(Dec. 21, 2017), https://www.usatoday.com/story/news/politics/2017/12/21/va-policy-years-allows-hiring-medicalworkers-revoked-licenses-violatiohiring-policy-breaks-breaks-l/971058001/.