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ACLM February 24, 2017

Dental Advertising The (R)evolution FRANK R. RECKER DDS, JD

DENTAL SPECIALTIES

A PERSPECTIVE ON DENTAL ADVERTISING AND DENTAL SPECIALTIES THE EVOLUTION OF THE LEGAL ISSUES

FRANK R. RECKER, DDS, JD SPEAKER CV

n  DDS, JD (OSU 1971/NKU 1981) n  LICENSED DENTIST OH/FL; BAR OH/FL/

KY n  LIFE MEMBER AMERICAN DENTAL

ASSOCIATION/AMERICAN ASSOCIATION OF DENTAL BOARDS

n  MEMBER: ACD/ACLM/AGD/ODA/FDA/ABA n  FORMER MEMBER, OHIO STATE DENTAL

BOARD n  LEGAL COUNSEL TO AAID, AAOM,

ASDA, AAOP

IN THE BEGINNING

n THE EVOLUTION OF ‘DENTAL SPECIALTIES’

n THE ADA PROCESS: WHAT IS IT?

HOW DOES IT ‘WORK’? WHEN DID IT COLLAPSE?

n WHEN THE ADA BEGAN DESIGNATING ‘SPECIALTIES’

1947 TO 2016

n  THE ADA SPECIALTY RECOGNITION PROCESS

n  THE LAWS GOVERNING PROFESSIONAL ADVERTISING

n  THE SPECTRE OF FIRST AMENDMENT AND ANTITRUST CONCERNS

n  THE CREATION OF THE ABDS n  LOOKING FORWARD

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LONG, LONG AGO n  1947-ORAL SURGERY, ORTHODONTICS,

PEDODONTICS, PERIODONTIA, PROSTHODONTICS

n  1949-ORAL PATHOLOGY n  1950-PUBLIC HEALTH n  Seven by 1950—NO HOOPLA! n  1963-ENDODONTICS-Then 36 years pass n  1999-ORAL RADIOLOGY—CDA V FTC

SPECIALTY APPLICATION DENIALS: 1986-2012

n  IMPLANT DENTISTRY-THE AMERICAN ACADEMY OF IMPLANT DENTISTRY (AAID): 1986; 1988; 1993

n  ORAL MEDICINE-THE AMERICAN ACADEMY OF ORAL MEDICINE (AAOM): 1996; 1999

n  ORAL FACIAL PAIN-THE AMERICAN ACADEMY OF OROFACIAL PAIN (AAOP): 2000

SPECIALTY APPLICATION DENIALS: 1986-2012

n  DENTAL ANESTHESIOLOGY-THE AMERICAN SOCIETY OF DENTIST ANESTHESIOLOGISTS (ASDA): 1994; 1997; 1999; 2012

n  THE COMPLETE LOSS OF CREDIBILITY AND RELATED ANTITRUST CONCERNS

ADVERTISING SPECIALTIES PRE 1980’S

n  PROFESSIONAL ADVERTISING DID NOT EXIST FOR PRACTICAL PURPOSES

n  CREDENTIALS AND SPECIALTIES WERE AN ‘INTRA PROFESSIONAL’ ISSUE

n  WHAT THE LAW ALLOWED RELATIVE TO PROFESSIONAL ADVERTISING, AND WHEN?

n  THE EVOLUTION OF THE LAW

Virginia Board of Pharmacy 1976

n  Supreme Court decides that advertising price, although commercial speech, should receive freedom protections under the First Amendment; public is entitled to have knowledge about competitive pricing terms.

n  OPENS THE DOOR FOR PROFESSIONAL ADVERTISING

BATES V STATE BAR 1977

n  ARIZONA ATTORNEYS NOT ALLOWED TO ADVERTISE

n  COMMERCIAL SPEECH MERITS FIRST AMENDMENT PROTECTION, PROVIDING CONSUMERS INFORMATION ABOUT SERVICES AND PRODUCTS

n  WOULD NOT HARM LEGAL PROFESSION

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BOARD REGULATIONS

n  PRIOR TO 1980’S MOST STATES SIMPLY PROHIBITED PROFESSIONAL ADVERTISING, EXP OHIO

n  THE PUBLIC HAD NO ACCESS TO INFORMATION REGARDING PROFESSIONAL MEMBERSHIPS, CREDENTIALS, ‘SPECIALIST’, ACHIEVEMENTS, AREAS OF INTEREST

STATE RESTRICTIONS

n  COURTS BEGIN TO ANALYZE THE POWER OF THE STATE TO RESTRICT COMMERCIAL SPEECH

n  SUPREME COURT ISSUES PIVOTAL DECISION IN MID 1980’S; COMMERCIAL FREE SPEECH ENTITLED TO PROTECTION UNDER FIRST AMENDMENT

n  BURDEN ON STATE TO JUSTIFY RESTRICTIONS

SUPREME COURT DECISIONS EVOLVE TO CLARIFY HOW STATE

RESTRICTIONS MUST BE JUSTIFIED

COMMERCIAL FREE SPEECH

CENTRAL HUDSON V PUBLIC SERVICES COMMISSION 1986

n  FOUR STEP ANALYSIS DEVELOPED: n  SPEECH AT ISSUE MUST CONCERN LAWFUL

ACTIVITY AND NOT BE MISLEADING n  ASSERTED GOVERNMENTAL INTEREST MUST

BE SUBSTANTIAL n  DOES REGULATION DIRECTLY ADVANCE

GOVERNMENTAL INTEREST ASSERTED? n  IS REGULATION MORE EXTENSIVE THAN

NECESSARY TO SERVE THAT INTEREST?

PEEL V. ILLINOIS (1991)

n  ATTORNEY DISCIPLINED FOR USING ‘CERTIFIED’ BY NBTA ON LETTERHEAD

n  NBTA IS ‘NATIONAL BOARD OF TRIAL ADVOCACY,’ A PRIVATE ORGANIZATION

n  NBTA NOT RECOGNIZED BY ILLINOIS SUPREME COURT AS CERTIFYING ENTITY

n  SUPREME COURT HELD IT WAS A BONA FIDE CERTIFYING ENTITY; STATE FAILED TO MEET BURDEN UNDER CENTRAL HUDSON TEST

IBANEZ V FLORIDA DPR, 1994

n  IBANEZ, PRACTICING ATTORNEY n  ADVERTISED CPA AND CFP n  BOARD OF ACCOUNTANCY CHARGED HER WITH

FALSE ADVERTISING (‘CPA’ BUT DIDN’T PRACTICE PA)

n  CFP NOT APPROVED AS ‘SPECIALTY’ DESIGNATION

n  USSC REVERSED, NO EVIDENCE THAT PUBLIC COULD BE, WOULD BE, OR WAS HARMED IN ANY WAY

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AAID CHALLENGES RESTRICTIONS ON

ADVERTISING CREDENTIALS n  SUITS FILED IN CALIFORNIA FEDERAL

COURT, BINGHAM V DCA: ‘BINGHAM I’… n  (1998) SUIT FILED AGAIN, ‘BINGHAM II’…

HOW THAT CASE PROCEEDED n  POTTS V DCA…..DECISION

2010..VICTORY FOR AAID

FLORIDA DURING SAME TIME

n  BORGNER I, DECIDED 1998; STRUCK DOWN STATUTE DEFERRING TO ADA; PROHIBITED ADVERTISING MEMBERSHIPS OR CREDENTIALS NOT RECOGNIZEED BY ADA. DECISION NOT APPEALED BY STATE

n  FEE RECOVERY UNDER 42 USC 1988 n  BORGNER II UPHELD AMENDED STATUTE n  PLAINTIFFS GO TO STATE COURT

HOLDING IN STATE COURT ‘DUCOIN’ DECISION-2009

n  ‘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 FBD AND ENFORCED UNDER THE LAW OF THIS STATE.’

DUCOIN (CONT) n  ‘IN FACT, UNDER FLORIDA LAW, THE

LEGISLATURE MAY NOT DELEGATE UNGUIDED AND UNCONTROLLED AUTHORITY TO A PRIVATE ORGANIZATION TO DETERMINE PROSPECTIVELY THE LAWFULNESS OR UNLAWFULNESS OF COMMERCIAL SPEECH. THIS IS PRECISELY WHAT THE STATE DID BY THE IMPLEMENTATION OF SECTION 466.0282, FLORIDA STATUTES.’

42 USC 1988-Fee Recovery 42 USC 1988

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42 USC 1988 FROM 1980 TO 1990’S

n  THERE WAS FAR LESS PROFESSIONAL

ADVERTISING n  FEW LEGAL CONCERNS ABOUT THE ADA

SPECIALTY RECOGNITION PROCESS n  LITTLE THOUGHT ABOUT LEGAL ISSUES n  PERCEIVED AS A LEVEL PLAYING FIELD

ADVERTISING TODAY n  PROFESSION MORE DIVERSE n  YOUNGER DENTISTS IN COMPETITIVE MARKET n  DSO’S AND OTHER PRACTICE MODELS n  COMPETITION FOR CONSUMERS/PATIENTS n  PUBLIC EXPOSED TO AN ARRAY OF PROFESSIONAL

ADVERTISING n  SPECIALISTS IN COMPETITION WITH OTHER

SPECIALISTS—NOTE AAP CHANGE PROPOSAL n  STATES REMOVING ‘LIMIT TO AREA OF SPECIALTY’ n  RESULT WILL BE INCREASED COMPETITION AND

RELATED ADVERTISING AMONG ALL SECTORS

STATE ADVERTISING RESTRICTIONS

n  DO NOT FULFILL THE REQUIREMENTS IMPOSED BY CENTRAL HUDSON

n  HAVE NO EVIDENCE OF CONSUMER HARM, POTENTIAL CONSUMER HARM OR ACTUAL CONSUMER HARM TO JUSTIFY RESTRICTIONS

n  RARELY CHALLENGED BY INDIVIDUAL LICENSEES--’CHILLING EFFECTS’

n  SOMETIMES PROMULGATED BY BOARDS WITH AGENDAS TO PROTECT CERTAIN SEGMENTS OF PROFESSION

n  ADVERTISING COMPLAINTS OFTEN FILED BY PROFESSIONAL COMPETITORS

TYPICAL STATE ASSUMPTIONS

n  CONSUMER WILL BELIEVE DENTIST IS A SPECIALIST

n  CONSUMER ATTACHES A SPECIFIC MEANING TO ‘SPECIALIST’ IN DENTISTRY

n  CONSUMER WILL BE SOMEHOW HARMED BECAUSE OF SUCH BELIEF

n  WHAT PAST ‘SURVEYS’ OR ‘POLLS’ HAVE FAILED TO ESTABLISH

HOD 2012-ASDA

n  POLITICAL FERVOR SEEN IN VARIOUS PUBLICATIONS

n  ASSOCIATIONS TOOK STRONG STAND BOTH FOR AND AGAINST

n  LOBBYING FOR HOD VOTES n  ASDA COMPLIED WITH THE PROCESS n  APPROVED AT EVERY LEVEL n  REJECTED BY HOD n  SOMETHING ELSE WAS NEEDED

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THE 2012 ANESTHESIA OUTCOME

n  GRAPHICALLY REVEALED THE PROTECTIONIST INFLUENCES ON A SPECIALTY DECISION

n  POLITICS AND LOBBYING ON THE PATH LEADING TO ADA HOD DISCUSSION

n  TRANSCRIPT REVEALS INPUT OF ADA COUNSEL MINIMIZED

n  HOD VOTE WAS THE DE FACTO END OF ADA SPECIALTY PROCESS

TEXAS LITIGATION 2014

n  ORGANIZATIONS/PLAINTIFFS AAID, ASDA, AAOM, AAOP AND INDIVIDUALS

n  CHALLENGING TEXAS DEFERRAL TO ADA FOR ‘SPECIALTY RECOGNITION’

n  SOUGHT RIGHT TO ADVERTISE AS SPECIALISTS

n  ADA PROCESS HEAVILY INFLUENCED BY ‘POLITICS’ AND LOBBYING BY ENTITIES WITH ECONOMIC INTERESTS AT STAKE

DECISION JANUARY 21, 2016 n  SUMMARY JUDGMENT GRANTED TO PLAINTIFFS (AAID/

ASDA, AAOM, AAOP), NO TRIAL NECESSARY

“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 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.”

PRESENT STATUS

n  STATE DEFERRAL TO ADA DECLARED UNCONSTITUTIONAL IN SEVERAL JURISDICTIONS; TEXAS ON APPEAL

n  FTC V NC BOARD EFFECTS ON STATE BOARD ACTIONS

n  DENTAL BOARD REGULATIONS CAN BE VIEWED AS PROFESSIONAL PROTECTIONISM

n  ADA PROCESS DETERMINED BY ECONOMIC COMPETITORS-ANTITRUST IMPLICATIONS

A PROPOSED SOLUTION

n  THE MEDICAL MODEL n  ABMS: AMERICAN BOARD OF MEDICAL

SPECIALTIES n  RECOGNIZES CERTIFYING BOARDS FOR

SPECIALIZATION n  INPUT FROM AMA, BUT NOT

CONTROLLED BY AMA

THE AMERICAN BOARD OF DENTAL SPECIALTIES (ABDS)

n  FORMED IN 2014 TO PROVIDE NON PROFESSIONAL ASSOCIATION CONTROLLED PROCESS--SIMILAR TO ABMS

n  FOCUS ON ‘RECOGNIZING’ CERTIFYING BOARDS AS ‘SPECIALTY BOARDS’

n  AVOIDS FIRST AMENDMENT AND ANTITRUST ISSUES

n  ORGANIZED BY ABOP, ABOM, ADBA, ABOI/ID n  EACH BOARD HAS TWO REPRESENTATIVES

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ABDS n  CURRENTLY RECOGNIZES FOUR CERTIFYING

BOARDS AS CONFERRING SPECIALTY STATUS IN THOSE AREAS: Oral Medicine, Oral Facial Pain, Implant Dentistry (ABOI/ID), Anesthesia

n  INTEREST EXPRESSED BY CERTIFYING BOARDS IN, AMONG OTHERS, SLEEP DENTISTRY, GENERAL DENTISTRY, COSMETIC DENTISTRY, FORENSIC DENTISTRY AND SEVERAL ADA RECOGNIZED CERTIFYING BOARDS

n  CHANGING TIMES AND EVOLVING TO REMAIN RELEVANT

Resolution 65

n  ADOPTED BY ADA HOD ON MONDAY, OCTOBER 24, 2016

5.H as Adopted n  A dentist may ethically announce as a specialist to the

public in any area of the dental specialties recognized by the ADA….....’and in 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 requirements required for recognition as a specialist adopted by the ADA or accepted in the jurisdiction in which they practice.’ ‘Dentists who choose to announce specialization should use ‘specialist in’ and shall devote a sufficient portion of their practice to the announced specialty or specialties to maintain expertise in that specialty or those specialties.’

5th Circuit Court of Appeals

n  Oral Arguments Held on Nov 1, 2017 n  ON NOVEMBER 2 COURT REQUESTED

BRIEFS ON RESOLUTION 65 n  R 65 NOT A PART OF THE RECORD n  APPELLANT’S ARGUMENT THAT ANY

‘SPECIALTY’ IS INHERENTLY MISLEADING UNLESS AN ADA RECOGNIZED ‘SPECIALTY’

n  DECISION IMMINENT

DENTAL ADVERTISING

n  FROM COMPLETE PROHIBITION CIRCA 1980

n  CREDENTIAL PROHIBITIONS DECLARED UNCONSTITUTIONAL CIRCA 1998-2014

n  ‘SPECIALIST’ DEFERRAL TO ADA DECLARED UNCONSTITUTIONAL 2009/2010/2014 (FL/CA/TX)

QUESTIONS?

n  THANK YOU FOR YOUR ATTENTION!

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ACLM

Frank R. Recker, DDS, JD ATTORNEY AT LAW

RECKER@DDSLAW.COM

VOICE: 800-224-3529 FAX: 888-469-0151