FRANK R. RECKER, DDS, JD

Transcription

1 American Association of Dental Boards October 18, 2017 A PERSPECTIVE ON DENTAL ADVERTISING AND DENTAL SPECIALTIES FRANK R. RECKER, DDS, JD FRANK R. RECKER, DDS, JD 1

2 SPEAKER CV LICENSED DENTIST OH/FL LIFE MEMBER ADA and AADB MEMBER: ACD/ACLM/AGD/ABA FORMER MEMBER, OHIO STATE DENTAL BOARD LEGAL COUNSEL TO DENTISTS AND DENTAL ORGANIZATIONS IN THE BEGINNING THE EVOLUTION OF DENTAL SPECIALTIES THE ADA PROCESS: WHAT IS IT? HOW DOES IT WORK? WHEN THE ADA BEGAN DESIGNATING SPECIALTIES 2

3 1947 TO 2016 THE ADA SPECIALTY RECOGNITION PROCESS LAWS GOVERNING PROFESSIONAL ADVERTISING THE SPECTRE OF FIRST AMENDMENT AND ANTITRUST THE CREATION OF A NEW ENTITY LOOKING FORWARD LONG, LONG AGO ORAL SURGERY, ORTHODONTICS, PEDODONTICS, PERIODONTIA, PROSTHODONTICS ORAL PATHOLOGY PUBLIC HEALTH ENDODONTICS 1999 (36 yrs. Later) -- ORAL RADIOLOGY!! (HAWAII) 3

4 SPECIALTY APPLICATION DENIALS BY ADA: IMPLANT DENTISTRY -- The American Academy of Implant Dentistry (AAID): 1986, 1988, 1993 ORAL MEDICINE The American Academy of Oral Medicine (AAOM): 1996; 1999 ORAL FACIAL PAIN The American Academy of Orofacial Pain (AAOP): 2000 DENTAL ANESTHESIOLOGY The American Society of Dentist Anesthesiologists (ASDA): 1994; 1997; 1999; 2012 Advertising of Dental Specialties (then) Until 1980 s not an issue Prohibitions or restrictions on advertising by professions were common; public had no access to information regarding professional memberships, credentials, specialist, achievements, areas of interest In 1970 s U.S. Supreme Court in several cases found commercial speech, including by members of professions, to be protected by First Amendment 1986 Supreme Court severely limited states ability to restrict commercial advertising; requires showing of legitimate governmental interest in restrictions 4

5 Advertising of Dental Specialties (now) Advertising of specialties is commercial speech protected by the First Amendment Commercial speech can be restricted only if false, deceptive, or misleading Essential concern of the courts in this regard is the protection of the public, not the economic protection of the advertisers Advertising of Specialties Credentials issued by (a) bona fide credentialing organizations, (b) whose standards are rigorous, objectively clear, and verifiable, cannot be inherently or actually misleading because they are statements of objective, verifiable fact, rather than statements of opinion or about quality. Peel v. Attorney Registration & Disciplinary Comm n of Ill., 496 U.S. 91, (1990). 5

6 LEGAL CHALLENGES TO RESTRICTIONS ON SPECIALTY ADVERTISING (AAID) State laws or regulations unduly restricting specialty advertising have been struck down: Bingham v. Hamilton, 100 F. Supp. 2d 1233 (E.D. Cal. 2000) Potts v. Hamilton, 334 F.Supp.1206 (E.D. Cal. 2004) DuCoin v. Viamonte Ros, (Fla. 2d Cir. Ct. 2009) AAID v. Parker, case no (5th Cir. 2017) Limitations to ADA Specialties The cases have specifically held: a state cannot prohibit the advertising of any legitimate specialties not recognized by the ADA, even though many state laws or regulations may still contain this limitation. 6

7 TYPICAL STATE ASSUMPTIONS Consumer Will Believe Dentist Is A Specialist Consumer Attaches A Specific Meaning To Specialist In Dentistry Consumer Will Be Somehow Harmed Because Of Such Belief What Past Surveys Or Polls Have Failed To Establish DECISION JANUARY 21, 2016 SUMMARY JUDGMENT GRANTED TO PLAINTIFFS, NO TRIAL NECESSARY; TEXAS LOWER COURT FOUND: THE RIGHT TO ADVERTISE AS A SPECIALIST SHOWN TO HAVE FINANCIAL VALUE SHORTAGE OF EVIDENCE OF HARM TO CONSUMERS NO EVIDENCE THAT ADVERTISING OF NON-ADA SPECIALTIES WAS DECEPTIVE, FALSE OR MISLEADING RELIANCE ON ADA RECOGNITION UNSUPPORTED WHERE NO SHOWING THAT THE PLAINTIFFS SPECIALTIES WERE NOT LEGITIMATE 7

8 A PROPOSED SOLUTION THE MEDICAL MODEL ABMS: AMERICAN BOARD OF MEDICAL SPECIALTIES ABDS SOUGHT PARTICIPATION WITH CDEL IN FALL 2015 THE AMERICAN BOARD OF DENTAL SPECIALTIES (ABDS) Formed In 2014 To Provide Non Professional Association Controlled Process--similar To ABMS Focus On Recognizing Certifying Boards As Specialty Boards Avoids First Amendment And Antitrust Issues Organized By ABOP, ABOM, ADBA, ABOI/ID Each Board Has Two Representatives 8

9 ABDS Potential New Areas Of Dental Specialties Acknowledge By ADA Resolution 65 that advertising of non-ada specialties not unethical Forensic Dentistry, Cosmetic Dentistry, Special Needs Dentistry, Geriatric Dentistry Will Never Have CODA Approved Post Grad Programs Does Not Diminish Potential Specialty Status By ABDS THE POTENTIAL FIX A Model Regulation To Stimulate The Discussion To Allow Advertising As A Specialist If A Certifying Board In An Area Of Dentistry Recognized By The Ada Or The Abds Avoids Exclusive Deferral To ADA Avoids Antitrust Issues For Individual Board Members 9

10 ABDS LEAVES OPEN DOOR FOR NEW AREAS OF DENTISTRY TO ENTER SPECIALTY ARENA COSMETIC GERIATRIC FORENSIC SPECIAL NEEDS ABGD IMPLANT, ORAL MEDICINE, ORAL FACIAL PAIN, ANESTHESIA WILL PROVIDE EXPEDIENT RECOGNITION OF ADA SPECIALTY BOARDS SIGNIFICANT STATE ASSOCIATION INFLUENCE VERY INFLUENTIAL ON BOARD POLICIES AND REGULATIONS OFTEN INFLUENTIAL IN BOARD MEMBER APPOINTMENTS BOARD MEMBERS/ASSOCIATION MEMBERS STATE ASSOCIATION LOBBYING 10

11 PETITION PROCESS CURRENTLY PENDING IN NEW JERSEY N.J.A.C. 13: MASSACHUSETTS ADOPTED ABDS FALL ENACTMENT IOWA IN PROCESS OF ADOPTING TEXAS, LOUSIANA, MISSISSIPI ADOPTED OTHER STATES UNDER CONSIDERATION SUIT PENDING IN INDIANA Massachusetts/Pending 5.03: Dental Specialties (1) A dentist may hold him/herself out or advertise as an ADA specialist in a particular area of practice only if the dentist: (a) Has completed a specialty education program approved by the American Dental Association (ADA) and the Commission on Dental Accreditation or the Commission on Dental Accreditation of Canada; and one of the following: (b) Is eligible for examination by a national specialty board recognized by the ADA; or (c) Is a diplomate of a national specialty board recognized by the ADA;. (d) Notwithstanding (a) (c) above, a dentist may advertise as a specialist if board certified by a certifying board recognized by the American Board of Dental Specialties 11

12 THANK YOU! Frank R. Recker, DDS, JD VOICE: FAX: