US District Court ruling for expansion of ‘dental specialties’


United States District Court ruling sets stage for expansion of ‘dental specialties’, practitioner independence from ADA restrictions

January 25, 2016

By Michael W. Davis, DDS; Apex360 Editors

Federal court rules dentists in Texas can advertise as ‘specialists’ in anesthesia, implantology, and non-American Dental Association (ADA) specialties.

Arguments from associations representing non-ADA speciaities prevail. Plaintiffs include American Academy of Implant Dentistry (AAID), American Society of Dental Anesthesiologists (ASDA), American Academy of Oral Medicine (AAOM), and American Academy of Orofacial Pain (AAOP).

On Thursday, in a decision that will likely shape the future of dental practice in the United States, the United States District Court for the Western District of Texas, Austin Division, ruled that the Texas State Board of Dental Examiners could not prohibit two dentists, Drs. Jay E. Elliot and Monty Buck, from advertising themselves to the public as “specialists” in implant dentistry. Although Drs. Elliot and Buck had received credentials from the American Academy of Implant Dentistry (AAID), the Texas State Board, under Texas Administrative Code §108.54, had prohibited them from advertising as such because implantology was not among the nine officially recognized specialties of the American Dental Association (ADA). The court found §108.54 to be unconstitutional, as it violated the defendants’ First Amendment rights to engage in truthful, non-misleading commercial speech.

The ruling was particularly significant in that it potentially weakened the scope of authority held by the ADA, the United States’ largest and most prominent dental association. The Texas State Board had invoked the authority of the ADA to differentiate between legitimate and illegitimate specialties, but in his decision, Judge Sam Sparks found the dental board had an obligation to consider the authority of other associations representing non-ADA specialties.

In his ruling, Sparks wrote:

“While ostensibly promulgated to protect consumers from misleading speech, it appears from the dearth of evidence that Rule 108.54’s true purpose is to protect the entrenched economic interests of organizations and dentists in ADA-recognized specialty areas. Indeed, Defendants have presented little more than industry bias in favor of the ADA to support the argument [that the] Plaintiffs’ desired speech is deceptive, false, or misleading or that the State Dental Board can trust the ADA to carve out specialty areas without the need to make any substantive determination of whether the Plaintiffs’ dental organizations are actually bona fide.”

In addition to Drs. Elliot and Buck, plaintiffs in the case were the AAID, the American Society of Dentist Anesthesiologists (ASDA), the American Academy of Oral Medicine (AAOM), the American Academy of Orofacial Pain (AAOP), and three private dentists. The plaintiffs provided evidence that their represented groups required significant standards for membership credentialing, all seemingly equal to other ADA-specialty groups.

Defendants in the case included members of the Texas State Board of Dental Examiners and the Texas Society of Oral and Maxillofacial Surgeons (TSOMS), which intervened as a party defendant. TSMOS, a private organization representing the interests of oral surgeons in an ADA-recognized specialty, held that the elimination §108.54 would harm its members and do a disservice to patients, who would be misled in their understandings of treatment quality.

Another important issue considered in the ruling was the protection of public welfare. In this area, the court found: “The issue here is not whether the state is entitled to protect consumers from misleading information by conditioning specialty advertisements on meeting some uniform standards of competency; the issue is instead whether the standards chosen by the state are immunized from constitutional review. In this case, it is clear they are not.”

Furthermore, the court found the “[d]efendants have produced no evidence of actual deception associated with advertising as specialists in non-ADA-recognized fields, there is no evidence to suggest any of the Plaintiffs’ fields are illegitimate or unrecognized, and there has been no accusation any of the Plaintiffs’ organizations are shams.”

The court seemed largely unimpressed with the case put forth by defendants: “For whatever reason, Defendants have been content not to offer any competent evidence and have instead essentially asked the Court to ‘trust them’ based their common sense and experience in the dental field. Such a meager showing cannot carry the day.”

Michael Mashni, DDS, past president of the American Society of Dentist Anesthesiologists, who was active in a failed effort to pass dental anesthesiology as an ADA-recognized specialty within the ADA House of Delegates, issued this statement:

“As a dentist anesthesiologist, this decision allows me to advertise truthfully about my training, education, and experience. Every state mandates additional post-graduate training to provide general anesthesia, yet restricts me from advertising as a specialist in anesthesia solely because the American Dental Association does not recognize anesthesia as a specialty. The recently formed American Board of Dental Specialties (ABDS) has approved anesthesia as a specialty based on training and testing validated by the American Dental Board of Anesthesiology. This decision will allow all dental specialties to advertise truthfully without limitations by the American Dental Association.”

Frank Recker, DDS, JD, who served as lead counsel for the plaintiffs, was asked about future implications relating to the decision. Dr. Recker stated, “The decision was a victory for the First Amendment,” and that there is “[a] change in the way the dental profession views ‘specialties.’ [This] must evolve from turf wars and economic protectionism to a free market place choice by consumers.”

Dr. Recker also stated that the ABDS was formed to circumvent the problematic process of becoming an ADA specialty, and to make that process more fair and reasonable for doctors and the public alike. “I would hope that the changes needed in our profession are devised by our profession, not the FTC.”

Jacquelyn Stanfield, DDS, a director with Concerned Dentists of Texas, an advocacy group of dentists seeking protections for the public interest noted, “After reading the decision, I was surprised at the lack of expertise the defendants brought to the table. While it may help implant dentistry, et. al, in the short term, be careful what you ask for.”

Editor’s note: The office of Texas Attorney General Ken Paxton, which represented the defendants in this case, could not be reached for comment as of press time. If comments are received they will be published here.

About the author: Michael W. Davis, DDS, maintains a general dentistry practice in Santa Fe, New Mexico. He is currently chairperson for the Santa Fe District Dental Society peer-review. Dr. Davis is frequently consulted by the legal profession for expert witness work. He may be contacted at MWDavisDDS@comcast.net.

RELATED:

Texas U.S. District Court sides with AAID on specialization lawsuit (Source: AAID via DentistryIQ.com)

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