Bellwether states are recognizing new dental specialties

The state dental boards of Florida, California, and Texas have all lost lawsuits, costing each state over one million dollars in payment of court costs and legal fees [1]. The plaintiffs maintain that states should accept other specialties besides the nine recognized by the American Dental Association (ADA).

The four “newly recognized” specialties by the American Board of Dental Specialties (2013) are the American Board of Oral Implantology/Implant Dentistry (ABOI/ID), The American Dental Board of Anesthesiology (ADBA), the American Board of Oral Medicine (ABOM), and the American Board of Orofacial Pain (ABOP).

The American Board of Craniofacial Pain (ABCP) and the American Board of Orofacial Pain (ABOP) are in litigation related to the merger of the two boards.

On October 24, 2016, the ADA House of Delegates passed Resolution 65H-2016 that stated, “a dentist may ethically announce as a specialist to the public in any area of the dental specialties recognized by the ADA and any other areas of dentistry for which specialty recognition has been granted under the standards required or recognized in the practitioner’s jurisdiction, provided the dentist meets the educational requirement required for recognition as a specialist adapted by the ADA or accepted in the jurisdiction in which they practice [2].

Until recently, a short few years ago, and for a very long time before that, the only recognized dental specialties were the nine ADA supported specialties. All of my 50 years of dental practice have been associated with the ADA House of Delegate-selected specialties. The current specialties include: Orthodontics (1950), Oral Surgery (1948), Pediatric Dentistry (1948), Periodontia (1948), and Prosthodontics (1948); Oral Pathology (1950), Public Health (1951), Endodontics (1964), and Oral and Maxillofacial Radiology (2000) [3,4]. I can remember when Endodontics became a specialty, and many of us recall when the latest one, Oral and Maxillofacial Radiology was accepted. Other areas have sought recognition as an ADA specialty: Implantology, Orofacial/Craniofacial Pain, Special Needs Dentistry, Oral Biology, Forensic Odontology, Geriatric Dentistry, Oral Medicine, Veterinary Dentistry, and Dental Anesthesiology.

Now, within the span of this decade, three significant states have been challenged by organizations desiring the right to advertise their members’ specialty training. Daniel Orr [5], in his guest editorial in CRANIO in 2014, discussed this. One of the first states to issue a ruling favoring the appellant was Florida [6].

…In Ducoin vs. Viamonte Ros, the Second Judicial Circuit in Florida concluded: “Of great interest to the Court is that the challenged statute delegates to the ADA the sole discretion to designate what specialties or specialty credentialing organizations will be recognized by the Florida Board of Dentistry and enforced under the law of this state”.

Orr [5] continues,

Clearly, the Legislature cannot delegate lawmaking authority to the ADA. This makes the statute unconstitutional on its own. The Court finds that the statutory scheme has effectively granted the ADA the power to regulate a citizen’s right to free speech, and this cannot stand.

Further, Orr quotes,

There is no right to appeal any decisions made by the ADA…The challenged statute compels dentists to abide by the lawmaking determination of the ADA. In this respect, the ADA effectively serves as a regulatory body of the state, and its determinations constitute state action [5].

The American Academy of Implant Dentistry (AAID) filed lawsuits against the states of Florida and California regarding advertising of diplomate credentials. Federal Courts had already ruled the ADA is a “trade organization [1].”

On Friday, October 15, 2010, Judge John Mendez of the United States District Court for the Eastern District of California, ruled unconstitutional the California statute that effectively restricted the advertising of the American Academy of Implant Dentistry (AAID) and American Board of Oral Implantology/Implant Dentistry (ABOI/ID) credentials [7]. According to Amin [7], the Judge stated, in his written opinion “…American Academy of Implant Dentistry and the ABOI/ID are in every facet of the word legitimate, bona fide, well-respected organizations.”

In an editorial by H. Clifton Simmons III [8], he discusses a lawsuit filed against the Texas Board of Dentistry by the American Academy of Implant Dentistry (AAID), the American Society of Dentist Anesthesiologists (ASDA), the American Academy of Orofacial Pain (AAOP), and the American Academy of Oral Medicine (AAOM), along with five individual plaintiffs.

On January 21, 2016, a Summary Judgment court decision from the Texas March 5, 2014 lawsuit stated that, “The right to advertise as a specialist in Texas is undoubtedly a financial boon to dentists in the State. 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 the ADA-recognized specialty areas. Indeed, defendants have produced little more than industry bias in favor of the ADA to support the argument 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. The first amendment demands more [9].”

The Ohio State Dental Board has temporarily suspended specialty rules as of March 19, 2018. The ruling stated that,

not any dentist may claim to be a specialist and advertise as such. The only dentists that may advertise as specialists are diplomates of a national certifying board of a specialty recognized by the American Dental Association (ADA) or a diplomate of a certifying board currently recognized by the American Board of Dental Specialties (ABDS) until the Board revises said rules and the revisions become effective [10].

Other states considering changes in their State Board include: Indiana, Iowa, Massachusetts, and North Carolina. The North Carolina Board of Dentistry is considering changing their advertising as a specialist to include: Programs approved by the (1) ADA, (2) ABDS, (3) The Royal College of Dentists of Canada, or (4) an equivalent specialty board [11].

The ADA has not just been sitting by while all these changes have been occurring. In Denver, a new resolution that passed the ADA House of Delegates permits dentists to announce as specialists recognized in their jurisdictions even if it’s not one of the nine dental specialties recognized by the Association [2].

Dr. Michael Halasz [2], Chair of the ADA Council of Ethics, Bylaws and Judicial Affairs, said, “the legal landscape concerning recognition of specialties has gone through dramatic change in recent years. Compelled by court decisions, states have begun to recognize specialties beyond the nine dental specialties recognized by the ADA.” “The trend of states recognizing specialties in addition to those recognized by the ADA is expected to continue,” he said.

Former ADA President, Gary L. Roberts said, “If we don’t get the specialty recognition process out of the politically charged atmosphere of the House of Delegates, no one will ever come to the ADA for specialty recognition again [12].” “I want to make sure that the ADA’s criteria and process for determining recognized specialties remains the gold standard,” he continued. “This commission will assure that.”

Resolution 30H-2017 called for the amendment to the ADA Bylaws and creates the ADA National Commission on Recognition for Dental Specialties and Certifying Boards [12].

Following the House of Delegates’ decision, in December 2017, the ADA Board of Trustees was expected to consider nominations and make appointments for the ADA’s nine general dentist appointees to the new commission [12]. The ADA is also requesting that the sponsoring organizations of the nine recognized specialties make their appointments. The new commission is expected to hold its first meeting in 2018, likely in spring or summer.

The ADA National Commission on Recognition of Dental Specialties and Certifying Boards is comprised of nine general dentists, appointed by the ADA Board of Trustees, and a dentist from each of the nine recognized specialties, appointed by the sponsoring organization. One citizen member is also on the Commission [13].

The American Medical Association separated specialty recognition and formed the American Board of Medical Specialties (ABMS) in 1933. Now, they have three independent non-profit organizations: The American Board of Medical Specialties, the American Board of Physician Specialties, and the American Osteopathic Associations Bureau of Osteopathic Specialties. These are the associations of diplomat boards that are recognized by state medical boards.

Of course, not all dentists are pleased by the recent turn of events. In Florida, a general dentist and former member of the ADA House of Delegates was unhappy with the Florida and Texas rulings. He thought the biggest losers would be the patients, who would likely be confused and undereducated by all the various additional levels of specialty recognition. This thought was supported by a specialist from another state who had served on the ADA Board of Trustees.

In California, a dental editor, Dan Jenkins, DDS, looked for early signs of increased specialty ads by Implantologists. He found only a few who listed Implantology as a specialty, to date. One of these was a Periodontist.

One newly recognized Orofacial Pain specialist in Texas stated that he has not advertised as such. He only listed this credential on his website. However, in the future, a younger dentist who has purchased his practice will likely promote the “specialty” after he completes all of his qualifying exams.

At a recent meeting in Tennessee, the current ADA president, Joe Crowley, said, “The ADA represents 63.4% of all dentists, whereas, the American Medical Association (AMA) only represents some 20% of physicians.” Therefore, it seems that organized dentistry has prospered from an 80 to 20% generalist to specialist ratio.

Dr. Frank R. Recker [5], an Ohio general dentist who practiced dentistry for 15 years is the attorney who represented most of the plaintiffs in these cases. At one time, he served on the Ohio State Dental Board. He now resides in Florida and is admitted to practice law in Ohio, Kentucky, and Florida. He is also licensed to practice dentistry in Ohio and Florida. “I have litigated dental advertising and First Amendment issues for over 20 years, and this proposed regulation addresses all the concerns related to advertising as a ‘dental specialist,’” Dr. Recker stated, referring to the North Carolina Board of dentistry’s proposed changes [11].

I recommend reading Dr. H. Clifton Simmons III’s “A Journey Through the Specialty Recognition [14].” “Whether a state board recognizes a discipline of dentistry as a specialty almost always depends on whether the ADA recognizes that discipline as a specialty,” he wrote. He continued, “The ADA is a rulemaking and controlling entity and should be as open as state government. The State of Tennessee is “Sunshined.” “This means that, with limited exceptions, every meeting of Tennessee government is open to the citizens of Tennessee.”

Simmons [14] mentions “a component of [the Council on Dental Education and Licensure] CDEL known as the Committee on Specialties, also known as Committee G. The committees of CDEL were named alphabetically, and this committee just happened to be letter G. Committee G is the component of CDEL that first gets a new specialty application, evaluates the need for a specialty and advises the CDEL through recommendations.” According to Simmons, [14], everyone who becomes a member of the CDEL or any other ADA council or committee must sign a confidentiality statement. This statement for the CDEL reads: “I am aware that, as a member to the Council on Dental Education and Licensure, I will have access to information that must remain confidential. I understand this requirement and agree to maintain the confidentiality of any materials, recommendations and discussions before, during and after standing committee and council meetings.”

Also, see how the Oral and Maxillofacial Radiology Group fared over several years with the ADA’s specialty recognition format. In 1993 and 1995, the American Academy of Oral and Maxillofacial Radiology (AAOMR) submitted applications for specialty status [4]. In 1996, Oral and Maxillofacial Radiology (OMR) became a specialty for only one day at the ADA House of Delegates. The next day, the issue was brought up again and the decision overturned. The same application was reconsidered in 1997 and was denied. In 1998, another application for specialty status was submitted, and in 1999, it was approved by the ADA House of Delegates. On October 13, 1999, Oral and Maxillofacial Radiology became the ninth dental specialty recognized by the ADA [4].

And finally, look at the long history of dental anesthesiologists and their contribution to medicine.

Dentistry introduced safe, reproducible anesthesia to the world in 1844 [15]. Dentists have provided thousands of anesthetists in the most challenging circumstances, including the theaters of the Civil War, World Wars I and II, Korea, and Vietnam [16,17]. Dentists have directed cardiac anesthesia units and chaired anesthesia residencies [15]. When President Grover Cleveland needed surgery, dentist Ferdinand Hasbrouck was chosen to administer the anesthetic [18].

The Dental Anesthesiologists were initially afforded a recognized specialty status with MDs and osteopathic practitioners. Then, in the mid 1990s, it was ruled that dentists would no longer be allowed to enter anesthesiology residency programs; only MDs and DOs were allowed [8]. Their parent group is the American Society of Dentist Anesthesiologists (ASDA). According to Simmons [8], this group submitted applications to the ADA for specialty recognition in 1994, 1997, 1999 and 2012, and each of these attempts failed. In the 2012 application, he states,

the ASDA successfully complied with all six requirements from the Council on Dental Education and Licensure and had the approval of the ADA Board of Trustees. It was felt that the ASDA specialty application failed due to political forces in the ADA House of Delegates. The Texas lawsuit was filed soon after the failure of the ASDA application for specialty recognition with the ADA [8].

When asked if there will ever be a TMD specialty recognized in dentistry, my standard answer was that God had made too many orthodontists and oral surgeons to ever have one approved. Now, I recognize, in hindsight, that He made even more attorneys.

Riley H. Lunn, DDS
Editor in Chief, Chattanooga, TN, USA
[email protected]