AAPS Sues NY DOH over Board Certification

A lawsuit filed against the New York Department of Health by the American Association of Physician Specialists alleges that the state is illegally prohibiting physicians certified by its companion board from listing themselves as board certified on the Internet.

Though no one involved would say whether this is the first legal battle over the legitimacy of Internet postings on physicians - representatives of the accused public agency said they cannot comment - the AAPS attorney who filed the case said it represents an important attempt to guarantee the right to display credentials in a public way.

Before filing the suit, AAPS's certification board, the American Board of Physician Specialties (ABPS), asked the New York Department of Health (DOH) to acknowledge ABPS certification so its physicians could promote themselves as board certified specialists on the DOH's widely used web site, which includes a physician profile page, said Michael Sussman, the attorney representing the AAPS. The complaint is an attempt by the AAPS to level the playing field, he said, and it singles out emergency medicine in particular.

More than 100 physicians across the state have ABPS-approved specialty titles that they should be able to list on the web site, yet they are prohibited from doing so, he said. The reasons were explicitly based more on the subjective view of the AAPS and the ABPS by traditional, existing medical organizations rather than on an objective evaluation of the facts pertaining to the ABPS certification process, according to Mr. Sussman.

The AAPS complaint charges that in refusing to recognize the certifications provided by ABPS, [the DOH has] represented the expressed interests of the American Medical Association and other certifying organizations, like the American Academy of Emergency Medicine and the American College of Emergency Physicians, which have lobbied to continue denying recognition to the board certifications provided by the ABPS.

Mr. Sussman said the same dynamic has at times thwarted other groups, such as those practicing chiropractic medicine or podiatry. The AAPS complaint is a means of forcing more dialogue on the issue as well as a way of seeking relief for physicians barred from calling themselves board certified because they are certified by ABPS, and not, in the case of emergency medicine, by the American Board of Emergency Medicine, he added.

The lawsuit also points out that similar agencies in other states, like the Florida Board of Medicine, have reviewed the bona fides of the ABPS certification process and changed local rules to allow ABPS board certified doctors to advertise that they are board certified.

Figure. Dr. Brian Ke...

AAEM Fighting ABPS

The litigation arose after William Carbone, the chief executive officer of AAPS, submitted information on the ABPS certification process to the New York Education Department's Office of the Professions more than a year ago.

Meanwhile, the American Academy of Emergency Medicine (AAEM), in what the group calls a proactive effort, had been contacting state boards around the country to prevent the change that occurred in Florida, something cited by the AAPS in its recent challenge in New York.

The AAPS does not understand that the public wants board certified specialists staffing their emergency departments, stated Tom Scaletta, MD, the president of AAEM. Although Mr. Sussman said many emergency physicians are certified by ABPS and should be recognized, Dr. Scaletta countered that ABPS-certified physicians do not complete emergency medicine residencies, and are often physicians who trained in internal medicine, surgery, or specialties other than emergency medicine. With so many excellent emergency medicine training programs in the country, it is unethical for anyone to be learning on the job, he said. That is the very reason the practice path has now been closed for two decades, Dr. Scaletta said.

Figure. Dr. Tom Scal...

Brian Keaton, MD, the president of the American College of Emergency Physicians, agreed, noting that the college recognizes only those certifying bodies that require successful completion of an approved emergency medicine residency as a prerequisite to sit for their certifying examination.

In the 21st century, he said, physicians who enter the specialty of emergency medicine must have both the training and the exam.

The AAPS complaint, filed in the U.S. District Court's Southern District of New York against the New York State Department of Health and the New York State Education Department, sets the stage for financial recovery because, the complaint says, continued enforcement of these exclusions imposes economic losses on ABPS-certified physicians. It suggests that the state-run web site is capable of reflecting physician reputation simply by being accessible to the general public. More at issue, though, may be impressing hospitals who demand board certification that ABPS certification fits the bill because the DOH recognizes it.

The AAPS lawsuit asks the court to declare the DOH policy not recognizing ABPS board certification in violation of the equal protection clause of the 14^th Amendment, which states that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.