A Seat at the Table: The Story of the Growing Recognition of Dental Specialties
In March 2020, orofacial pain became the 12th dental specialty officially recognized by the National Commission on Recognition of Dental Specialties and Certifying Boards.1 That step, along with the recognition of oral medicine in 2020 and dental anesthesiology in 2019, came in part as a result of monumental changes in the landscape of the recognition-granting process that have only occurred in the last several years.2
To dentists, the details of who is able to call themselves a “specialist,” what procedures a specialist is allowed to perform and how or if a patient is returned to a general practitioner are all major points of contention. Various factions of organized dentistry have taken sides on opposing ends of these issues and spent millions of dollars in court cases that have covered issues of constitutionality, business practices and politics. While these cases definitively settled some issues, they raised even bigger questions — questions that may only be resolved in time as the dental profession continues to adapt to a new landscape with an increasing number of dental specialties.
General dentists find themselves caught in the middle of the proliferation of new specialties as well as major changes to the advertising regulations imposed by state dental boards regarding how specialists can advertise their services. Most experts agree that specialties will continue to proliferate, and AGD is committed to ensuring that the general dentist’s role as gatekeeper of the dental home is not diluted or fragmented by limitations on general dentistry’s scope of practice. Understanding recent developments in the recognition of specialties can help general dentists determine their place in the changing landscape of dental specialization.
ADA Recognition of Specialties: The Mounting Legal Storm Before AAID v. Parker
Until 2016, the process for recognizing a dental specialty was dictated by the American Dental Association’s (ADA’s) Council on Dental Education and Licensure (CDEL). The CDEL had a list of criteria that an applying specialty must meet, and then the merits of recognition were debated at the ADA House of Delegates. A specialty organization could create a board, dictate rigorous standards to become certified as a diplomate of that board and meet all ADA specialty recognition criteria, but then still be denied specialty status by the house of delegates.
An example of the political nature of the previous process is dental anesthesiology’s path to specialty recognition. The American Dental Society of Anesthesiology declared its goal of specialty recognition in 1954 and began working to meet the ADA’s requirements for specialty application. Understanding recent developments in the recognition of specialties can help general dentists determine their place in the changing landscape of dental specialization.
However, it suspended its specialty application process in 1991 after the American Association of Oral and Maxillofacial Surgeons (AAOMS) passed two resolutions opposing recognition of dental anesthesiology as a specialty in 1988 and 1989. With 71% of its membership comprised of oral and maxillofacial surgeons, ADSA’s board chose to permanently discontinue its specialty application in order to sustain its membership.3
The American Society of Dental Anesthesiologists (ASDA) took up the challenge of specialty recognition, but was denied in 1994, 1997, 1999 and 2012. In each attempt, the organization passed the review process up until the final house of delegates vote.3 Throughout ASDA’s efforts, AAOMS “vigorously opposed” ASDA’s specialty application out of a concern that specialty recognition would limit all dentists’ ability to administer anesthesia.4
Daniel Orr, DDS, MS, PhD, JD, MD, is a rare example of an oral and maxillofacial surgeon who supported ASDA’s pursuit of specialty recommendation. Although AAOMS was invested in fighting specialty recognition for dental anesthesiology, Orr says “the majority of practicing oral and maxillofacial surgeons were neutral on the issue, while many were supportive of the specialty application. But, as with the politically motivated ADA House of Delegates, organized oral and maxillofacial surgery carried the day for a time while leading the charge that denied ADA recognition of the specialty.”
In 2013, due to the “perceived or actual bias and conflict of interest in the [ADA] specialty recognition process,” ASDA, the American Academy of Orofacial Pain (AAOP), the American Academy of Implant Dentistry (AAID) and the American Academy of Oral Medicine (AAOM) formed an alternative to the ADA for specialty recognition: the American Board of Dental Specialties (ABDS).3 Even though the ADA was able to confer the designation of “specialty” to a field, it ultimately held no authority as to the implications of the designation. That is the province of the individual state boards of dentistry, which are able to enforce actions on dentists practicing in their states, including what they can and cannot advertise. Part of what a dentist can advertise is whether he or she is a “specialist,” and the state board dictates the criteria for being labeled such.
In 2015, state dental boards saw a major legal concern arise with regard to antitrust litigation. The U.S. Supreme Court held in North Carolina State Board of Dental Examiners v. FTC that members of the North Carolina dental board do not have immunity from antitrust lawsuits if they take actions that could be perceived as anticompetitive. In that case, the board sent cease-and-desist letters to nondentists discouraging the provision of teeth whitening goods or services.
On the basis of North Carolina State Board of Dental Examiners v. FTC, the ABDS began lobbying state dental boards to either eliminate their dental advertising regulations entirely or to revise the language to include ABDS member organizations. Until 2016, every state board included a certain criterion for being able to advertise as a specialist — ADA recognition — and, in order to effect major change in the process of specialty recognition, that criterion needed to be challenged.
AAID v. Parker
To challenge the notion that dental specialties not recognized by the ADA could still advertise their specialty status, in 2014, the four dental institutions that created the ABDS — AAID, AAOP, ASDA and AAOM — brought suit against Glenn Parker in his official capacity as the executive director of the Texas State Board of Dental Examiners. The Texas Society of Oral and Maxillofacial Surgeons also joined the case on the side of the state board. The plaintiffs alleged that the Texas state board was violating their rights to commercial free speech by limiting advertising as a “specialist” only to ADA-recognized specialties.
Beginning in the 1970s, the Supreme Court ruled that commercial free speech, i.e., the language used in advertising, is protected under the First Amendment, albeit to a lesser degree than personal free speech.5
Frank Recker, DDS, JD, represented the four plaintiff organizations in the case and is also legal counsel for the ABDS.
“All we were asking for was the right to advertise credentials,” said Recker. “Dentists spend a lot of time and money on these. As a matter of pride — and marketing — these dentists want to advertise that.” In 2016, summary judgment was granted in the U.S. District Court for the Western District of Texas. According to Helen Jameson, JD, AGD director of dental practice and policy, “Summary judgment is a blunt instrument whereby a judge determines that key facts are not in dispute and that the law requires a final judgment in favor of one of the parties.
Judge Sam Sparks used a four-part analysis developed in the Supreme Court case Central Hudson Gas & Electric Corp. v. Public Service Commission to determine whether the plaintiff’s First Amendment rights had been violated:
“[I]t at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the government interest asserted, and whether it is more extensive than is necessary to serve that interest.”
Sparks found that the plaintiffs’ speech was lawful and not misleading. Whereas the Texas board argued that advertising as a specialty that was not recognized by the ADA was inherently misleading, in his ruling, Sparks wrote that because the “defendants 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 … .”
Sparks determined that the state government’s interest in ensuring the accuracy of dental advertising was substantial. He then turned to whether the defendants had met their burden showing that advertising restrictions “advance a substantial state interest.” In other words, the Texas board had to prove with hard evidence that the existing rule was necessary to protect the public.
“Defendants [did] not offer any competent evidence to substantiate these fears and admit they did not review any studies, surveys or other evidence regarding the impact of specialty advertisements before promulgating the rule,” wrote Sparks.
For the fourth part of the test, for the defendants to show that the rule is “not more extensive than necessary,” Sparks pointed out that numerous “less-burdensome” limitations on commercial free speech existed instead of stipulating that advertisements rely on ADA status.
The district court’s opinion included a pointed criticism of the ADA’s House of Delegates involvement in specialty recognition:
“Defendants have failed to explain why blind reliance on the ADA is not more stifling of commercial speech than is reasonably necessary. Defendants’ sole argument on this point is that because it considers the ADA the ‘standard bearer’ in the profession, the State Dental Board has preferred to ‘use the work that’s already been done by the ADA rather than by doing the work itself.’ While it may be reasonable for the state to rely on the ADA for choosing uniform standards or qualifications for distinguishing between specialty areas, Defendants’ argument does not explain why it is reasonable to blindly defer to the ADA’s choice of specialty areas; notably, this framework does not account for the risk that a non-ADA-recognized specialty board or credentialing organization could meet the standards of integrity set by the ADA but still not be recognized as a specialty for political or economic reasons.”
This criticism of the ADA House of Delegates’ process “struck fear because it basically said the ADA’s process was not objective and could be used by competitor specialties to block recognition, which then has antitrust ramifications,” said Jameson.
The federal appeals court upheld the lower court’s ruling in favor of the plaintiffs. The appellate judges used the same four-part test described in Central Hudson Gas & Electric Corp. v. Public Service Commission and arrived at the same conclusion.
The Texas board stated that the plaintiffs could engage in other forms of commercial free speech that comport with the advertising rule, but, in the majority opinion, Judge Leslie H. Southwick, wrote, “… the existence of other forms of commercial speech does not eliminate the overbreadth of the regulation on specialty advertising that is truthful. … The Board’s position is especially troublesome because there is no indication whatsoever that it ‘carefully calculated’ the costs associated with [the rule].”
The immediate impact of the court decision was that members of the plaintiff organizations could advertise as specialists in Texas.
Changes in the Recognition Process
The AAID v. Parker decision marked the beginning of major changes in the way dental specialties were recognized and how dentists could advertise. Before the appellate court issued a ruling, the ADA was already making changes to the specialty recognition process. The 2016 ADA House of Delegates took two critical actions.6 First, it voted to remove itself from the recognition process by transferring authority to an independent national commission. Second, it approved amendments to the ADA Principles of Ethics and Code of Professional Conduct advertising provisions. The changes allowed dentists to announce themselves as a specialist to the public in any dental specialties recognized by the ADA or by their jurisdiction (state) as long as they met the education requirements to be recognized as a specialist in that specialty. An additional change stated that specialists no longer have to limit their practice to their specialties.7
In late 2016, the ADA board appointed a Task Force on Specialty and Specialty Certifying Board Recognition to evaluate the process and criteria by which specialties and specialty-certifying boards are recognized. The 2017 ADA House of Delegates approved the proposed structure for a new National Commission on Recognition of Dental Specialties and Certifying Boards, including requirements for recognition. The house of delegates voted overwhelmingly to transfer authority to the National Commission, which held its inaugural meeting in 2018.8 The initial makeup of the board of commissioners included a representative from each of the nine then-recognized ADA specialties, an equal number of general dentists who were also ADA members and a public member. When a new specialty is recognized, it gains a seat on the National Commission, and an additional general dentist position is also added. At the inaugural May 2018 meeting, the Commission also received ASDA’s application for recognition, which it approved in 2019.
To receive specialty recognition from the National Commission, an organization must submit an application demonstrating that it meets objective requirements established by the ADA House of Delegates. When the National Commission receives an application, it solicits comments from stakeholders, including AGD and the existing dental specialties. The National Commission requirements are very similar to the requirements under the previous ADA House of Delegates process. For example, in order for an area to become and/or remain recognized as a dental specialty, it must be a distinct and well-defined field that requires unique knowledge and skills beyond those commonly possessed by dental school graduates; the scope of the proposed specialty must require advanced knowledge and skills that in their entirety are separate and distinct from the knowledge and skills required to practice in any recognized dental specialty and cannot be accommodated through minimal modification of a recognized dental specialty; and it must directly benefit some aspect of clinical patient care. The requirements include specifications about formal advanced education programs as well as a certifying board.9
“The National Commission is not a political body like the ADA House of Delegates,” said James Boyle, DDS, MS, current chair of the board of commissioners. “Inherent in the commission governance structure are provisions for conflict of interest and due process, with mechanisms in place within the organization’s governance documents that ensure that each application for specialty recognition is considered in an objective and unbiased fashion.”
Boyle says that the creation of the National Commission brought dentistry more in line with other healthcare fields.
“The ADA recognition process was truly an outlier and had not changed substantially since it was initiated in the late 1940s, even though the public’s and the profession’s expectations have changed over time,” he said. “The ADA came to the conclusion that only through addressing the shortcomings in the ADA recognition process itself could the ADA maintain its position as the preeminent authority on dental specialty recognition.”
To date, three of the four plaintiff organizations in the AAID v. Parker case have been recognized as specialties by the National Commission. The exception is AAID, which has not submitted an application to the National Commission (as of publication). AAID’s situation is unique because it does not have a CODA-accredited formal education program, which is a requirement for specialty recognition under the National Commission, though it does have an education program and a certifying board.
The Effects of AAID v. Parker
The implications of AAID v. Parker are much wider than the indirect creation of the National Commission. Today, instead of one restrictive — and unconstitutional — way of recognizing dental specialties, state boards of dentistry have many. Even though the plaintiffs’ victory in Texas means any specialist dentist in the state can advertise in the same way as one recognized by the National Commission, that ability does not automatically carry over to every other state.
However, any group wishing to challenge its state board of dentistry has a powerful precedent in AAID v. Parker. Some state boards have revised their regulations voluntarily to comply with the case. Others have done so in response to lobbying by attorneys such as Recker. Some have eliminated dental-specific advertising regulations entirely, while others have revised language so that it is not limited to ADA-recognized specialties.
The changes in the recognition process have caused many dentists to debate the scope of practice within specialties, which in turn affects the referral process. Similarly to how individual states regulate who can call themselves specialists, state boards of dentistry also dictate what a specialist can and cannot do, though the enforceability of these regulations is in question after AAID v. Parker.
In the states with no limitations, a general dentist might be hesitant to refer a patient to a specialist who also performs procedures such as placing crowns and bridges because that patient might not come back to the general dentist. Additionally, there is a concern among general dentists and specialists that a proliferation of specialties will confuse patients and fragment care.
According to Rebekkah A. Merrell, DMD, member of the 2019 AGD Future of General Dentistry Committee, the impact of AAID v. Parker has also led to fragmentation among providers.
“As general dentists, AAID v. Parker has a significant impact on our practices,” she said. “There are many dental organizations that have fellowship exams, diplomate status and specialty recognition, and each of these organizations has the right to establish their own governance and rules for these designations.
“One of the main concerns for general dentists regarding organizations establishing their own guidelines is that any organization can then claim to be the expert or the only board-recognizing power. Since the AAID v. Parker ruling, organizations can now claim to be specialists without oversight of the ADA and the National Commission.”
New Specialties on the Horizon
With two new dental specialties — orofacial pain and oral medicine — gaining recognition from the National Commission in the midst of the COVID-19 pandemic, it is not likely that the rate of specialization will slow down. According to Orr, the issues with the old process have left the door to new specialties wide open.
“A bottom line is that, because the ADA House of Delegates was unreasonably and illegally restrictive for decades, there will now likely be more specialties than ever,” he said.
With plenty of legal experience under its belt, the AAID’s goal of an implant dentistry specialty may be the most likely to follow once it satisfies the requirement of a CODA-accredited postgraduate education program. But what others may come, and is there a limit to how many specialties the profession can justify and support?
Recker has a shortlist of specialties he sees as imminent, including geriatric and special needs dentistry. “In addition, laser and cosmetic dentistry both already have associations and credentials.”
Now that state dental boards are removing language referencing the pre-National Commission list of ADA-recognized specialties, some state jurisdictions are left more open to specialties that have not been recognized by the ADA or the National Commission. Additionally, there is a race for dental specialty organizations to assert themselves as the authoritative entity in order to make a successful bid for formal specialty recognition. This is especially contentious where areas of dentistry overlap with established specialties, such as sleep dentistry.
“There has been a lot of movement in the field of dentistry to have a standardization of care for dental sleep medicine,” said Tyler L. Scott, DDS, FAGD, AGD Dental Practice Council member. “There have been several dental organizations treating sleep apnea, including the AAOP, American Academy of Craniofacial Pain and American Academy of Dental Sleep Medicine (AADSM). With AAOP gaining recognition last year, it will be interesting if one or multiple organizations will be creating a standard for treating dental sleep patients. I definitely see the AADSM applying for specialty recognition in the future, especially with the recent changes in its education and diplomate recognition programs.”
“While the AAID v. Parker ruling did give general dentists more autonomy to advertise all their specialty training, it also opened the door for many dental organizations to step in and claim the rights to provide the only path to ‘specialist’ status in a certain treatment area, leaving many dentists who have trained under other courses out of the specialty club,” said Merrell. “This highlights general dentists’ main concern — what continuing education can we trust? After spending thousands of dollars on continuing education to become an expert in dental anesthesia, implantology or sleep medicine, for example, you may not even be able to advertise your expertise without paying an organization to give you ‘diplomate’ or ‘specialist’ status.”
While the future is uncertain, Scott has faith in the new process established by the National Commission.
“Both dentistry and medicine have evolved over the last century, making specialization necessary to meet the demand of the public,” he said. “The increase in fields should only be made to improve the quality of care and in the best interest of the public. There will be additional specialties in the future, but I have confidence the National Commission will approve those that only improve the quality of care while at the same time protecting the public.”
Future Impacts on Dentistry
As each new specialty arises, the profession must continue to adapt to the changing landscape. Interactions among specialties and general dentists will continue to evolve, but the profession must continue to focus on the impact on dental patients.
Boyle says the establishment of the National Commission has positively affected patients so far. “It should give patients confidence that when they are referred to dentists who limit their practices to one of the National Commission-recognized specialties, those specialists have the education, training, skills and expertise within that discipline of dentistry. This is particularly important for those patients who have highly complex treatment needs,” he said.
Orr maintains that general dentists continue to be an important part of the profession and that the continued specialization of dentistry should not stifle their practice; rather, it should strengthen safety for patients throughout dentistry. “I believe that any generalist, with proper training, should never be restricted from providing services he or she is proficient at,” he said.
Not all dentists are enthusiastic about the increase in specialization. Myron J. Bromberg, DDS — AGD Congressional Liaison; chair of the Professional Relations Council; member of the Dental Practice Council; and consultant to the Legislative and Government Affairs Council — has specific concerns about overspecialization as well as the potential for limitations to be placed on the practice of general dentistry.
“A problem arises when specialists attempt to limit the specialty procedures performed by general dentists capable of performing them,” he said. “The last thing I want to see for the dental profession is to follow the medical model where overspecialization is rampant. No parallel exists between the two professions in this regard. Whereas that type of specialization may be appropriate within medicine, no such need exists in dentistry.”
The Dental Home
To help patients navigate the proliferation of specialists, AGD has been advocating for the dental home concept. This model of care sees the general dentist as the gatekeeper of oral care and was formally adopted and endorsed by the American Academy of Pediatric Dentistry (AAPD) in 2004 after a similar concept, the patient-centered medical home, was proposed in the medical space by the American Academy of Pediatrics, the American Academy of Family Physicians, the American College of Physicians and the American Osteopathic Association.10
In the dental home model of care, patients always start with a general dentist. Like a patient’s primary care provider in medicine, general dentists coordinate care within their own practice and, when applicable, refer to specialists as needed. In this way, the general dentist is the leader of a team that takes a holistic approach to oral healthcare. While specialists have a narrow treatment focus, general dentists are able to provide a greater variety of care in one location with fewer visits, which has a positive effect on patient access to care.
“General dentists should always be considered the ‘gatekeepers’ of oral health, and their offices should be where patients seek comprehensive dental care," said Scott. “When patients have a dental home, they complete treatment more frequently and achieve maximum dental and overall health. Regardless of the growing number of specialties in dentistry, it is imperative that this model is not lost.”
Just as primary care physicians can manage and provide care beyond annual physicals, general dentists are qualified to manage and provide care beyond restorations and twice-yearly oral exams. As dental specialization continues, Merrell emphasizes that general dentists need to educate their patients on exactly what treatments they are qualified to provide.
“Many patients want their general dentists to be able to do everything under one roof,” said Merrell. “This is leading general dentists to do more continuing education to become experts in many different specialties rather than referring to specialists for root canals, third molar extractions, implants, etc. For a lot of dentists, marketing that they have these skills is key. It often amazes me how little our patients know about what dental procedures entail or what all we offer as general dentists. I can foresee more confusion amongst patients due to the increased recognition of more specialties.
“There is nothing more frustrating than seeing a loyal general dentist patient of several years return for a hygiene appointment with eight new veneers delivered by another general dentist down the street because they advertised as a cosmetic dentist. Educating our patients is going to be the key to our success as general dentists in the future.”
Meanwhile, the ADA’s recent amendments to its Principles of Ethics and Code of Professional Conduct regarding whether specialists must limit their practice to their specialty has also created a new playing field for general dentists and specialists regarding referral relationships. How individual practitioners manage this new framework will impact both patient care and the profession.
Merrell’s referral process maintains a positive relationship with her trusted specialists but also keeps her office as the dental home while prioritizing what’s best for the patient at every step.
“The ideal referral process between a general dentist and specialist is an open line of communication,” she said. “I have a very detailed referral letter that is emailed to my specialist. It doesn’t just say, ‘Patient needs a root canal on tooth No. 31.’ The letter gives the chief complaint of the patient, symptoms, and my diagnosis or differential diagnosis. The letter also details the patient’s personal information that would be required for registering the patient and scheduling. We also send radiographs and intraoral photographs. My front desk tries to schedule the patient with my referring specialist prior to them leaving my office. This does require a few extra minutes of my staff’s time, but it takes a lot of the legwork out for the patient and eliminates another barrier to getting the care they need.
“When the overall treatment picture is clear, it allows the general dentist to be the quarterback of the team and instruct specialists to clearly treat only what we have outlined,” she continued. “For example, my endodontist knows when I schedule the root canal that we are also scheduling an access fill. If the patient needed a crown, I would have already removed the decay and put the patient in a temporary crown prior to sending them over for a root canal. My endodontist can be assured that, with a temporary crown on, the tooth is restorable.”
Despite his concerns, Bromberg said he sees a bright, positive future for the dental profession. “I see the dental profession expanding into areas heretofore unreasonably considered to be off limits,” he said. “Areas such as Botox®, facial fillers, vaccinations, and certain other cosmetic and noncosmetic facial procedures will be explored by dentists who are, by virtue of their training and knowledge of facial anatomy, most competent in addressing these needs.”
As dentistry continues to evolve, the most important factor will be whether the profession does so in a way that strengthens its image in the eyes of the public. General dentists and specialists alike must learn how best to navigate a new landscape while prioritizing patients’ needs and advocating for professional practices that safeguard patients and the profession.
Leland Humbertson is managing editor of AGD Impact. Caitlin Davis is associate editor of AGD Impact. To comment on this article, email impact@agd.org.
References
1. “Specialty Definitions.” National Commission on Recognition of Dental Specialties and Certifying Boards, American Dental Association, ada.org/en/ncrdscb/dentalspecialties/specialty-definitions. Accessed 2 Sept. 2020.
2. “Unofficial Report of Major Actions: March 2-3, 2020.” National Commission on Recognition of Dental Specialties and Certifying Boards, American Dental Association, March 2020, ada.org/~/media/NCRDSCB/Files/UnofficialReport_MajorActions_March2020.pdf?la=en. Accessed 2 Sept. 2020.
3. Weaver, Joel M. “The History of the Specialty of Dental Anesthesiology.” Anesthesia Progress, vol. 66, no. 2, 2019, pp. 61–68.
4. Lew, Daniel. “A Historical Overview of the AAOMS.” American Association of Oral and Maxillofacial Surgeons, 2013, pp. 5-12.
5. Schultz, David. “Commercial Speech.” Middle Tennessee State University, 2009, mtsu.edu/first-amendment/article/900/commercial-speech. Accessed 2 Sept. 2020.
6. Burger, David. “House of Delegates Pass Resolution to Amend Code of Ethics.” ADA News, 31 Oct. 2016, ada.org/en/publications/ada-news/2016-archive/october/house-of-delegates-pass-resolution-to-amend-code-of-ethics. Accessed 2 Sept. 2020.
7. Edwards, Adam A. “An Important Change to the American Dental Association Principles of Ethics and Code of Professional Conduct.” Journal of the American Dental Association, vol. 148, no. 2, 2017, pp. 125-127.
8. “Who We Are.” National Commission on Recognition of Dental Specialties and Certifying Boards, American Dental Association, ada.org/en/ncrdscb/who-we-are. Accessed 2 Sept. 2020.
9. “Requirements for Recognition of Dental Specialties and National Certifying Boards for Dental Specialists.” American Dental Association, 2018, ada.org/~/media/NCRDSCB/Files/requirements.pdf?la=en. Accessed 2 Sept. 2020.
10. Girish Babu, K.L., and G.M. Doddamani. “Dental Home: Patient Centered Dentistry.” Journal of International Society of Preventive & Community Dentistry, vol. 2, no. 1, 2012, pp. 8-12.
To dentists, the details of who is able to call themselves a “specialist,” what procedures a specialist is allowed to perform and how or if a patient is returned to a general practitioner are all major points of contention. Various factions of organized dentistry have taken sides on opposing ends of these issues and spent millions of dollars in court cases that have covered issues of constitutionality, business practices and politics. While these cases definitively settled some issues, they raised even bigger questions — questions that may only be resolved in time as the dental profession continues to adapt to a new landscape with an increasing number of dental specialties.
General dentists find themselves caught in the middle of the proliferation of new specialties as well as major changes to the advertising regulations imposed by state dental boards regarding how specialists can advertise their services. Most experts agree that specialties will continue to proliferate, and AGD is committed to ensuring that the general dentist’s role as gatekeeper of the dental home is not diluted or fragmented by limitations on general dentistry’s scope of practice. Understanding recent developments in the recognition of specialties can help general dentists determine their place in the changing landscape of dental specialization.
ADA Recognition of Specialties: The Mounting Legal Storm Before AAID v. Parker
Until 2016, the process for recognizing a dental specialty was dictated by the American Dental Association’s (ADA’s) Council on Dental Education and Licensure (CDEL). The CDEL had a list of criteria that an applying specialty must meet, and then the merits of recognition were debated at the ADA House of Delegates. A specialty organization could create a board, dictate rigorous standards to become certified as a diplomate of that board and meet all ADA specialty recognition criteria, but then still be denied specialty status by the house of delegates.
An example of the political nature of the previous process is dental anesthesiology’s path to specialty recognition. The American Dental Society of Anesthesiology declared its goal of specialty recognition in 1954 and began working to meet the ADA’s requirements for specialty application. Understanding recent developments in the recognition of specialties can help general dentists determine their place in the changing landscape of dental specialization.
However, it suspended its specialty application process in 1991 after the American Association of Oral and Maxillofacial Surgeons (AAOMS) passed two resolutions opposing recognition of dental anesthesiology as a specialty in 1988 and 1989. With 71% of its membership comprised of oral and maxillofacial surgeons, ADSA’s board chose to permanently discontinue its specialty application in order to sustain its membership.3
The American Society of Dental Anesthesiologists (ASDA) took up the challenge of specialty recognition, but was denied in 1994, 1997, 1999 and 2012. In each attempt, the organization passed the review process up until the final house of delegates vote.3 Throughout ASDA’s efforts, AAOMS “vigorously opposed” ASDA’s specialty application out of a concern that specialty recognition would limit all dentists’ ability to administer anesthesia.4
Daniel Orr, DDS, MS, PhD, JD, MD, is a rare example of an oral and maxillofacial surgeon who supported ASDA’s pursuit of specialty recommendation. Although AAOMS was invested in fighting specialty recognition for dental anesthesiology, Orr says “the majority of practicing oral and maxillofacial surgeons were neutral on the issue, while many were supportive of the specialty application. But, as with the politically motivated ADA House of Delegates, organized oral and maxillofacial surgery carried the day for a time while leading the charge that denied ADA recognition of the specialty.”
In 2013, due to the “perceived or actual bias and conflict of interest in the [ADA] specialty recognition process,” ASDA, the American Academy of Orofacial Pain (AAOP), the American Academy of Implant Dentistry (AAID) and the American Academy of Oral Medicine (AAOM) formed an alternative to the ADA for specialty recognition: the American Board of Dental Specialties (ABDS).3 Even though the ADA was able to confer the designation of “specialty” to a field, it ultimately held no authority as to the implications of the designation. That is the province of the individual state boards of dentistry, which are able to enforce actions on dentists practicing in their states, including what they can and cannot advertise. Part of what a dentist can advertise is whether he or she is a “specialist,” and the state board dictates the criteria for being labeled such.
In 2015, state dental boards saw a major legal concern arise with regard to antitrust litigation. The U.S. Supreme Court held in North Carolina State Board of Dental Examiners v. FTC that members of the North Carolina dental board do not have immunity from antitrust lawsuits if they take actions that could be perceived as anticompetitive. In that case, the board sent cease-and-desist letters to nondentists discouraging the provision of teeth whitening goods or services.
On the basis of North Carolina State Board of Dental Examiners v. FTC, the ABDS began lobbying state dental boards to either eliminate their dental advertising regulations entirely or to revise the language to include ABDS member organizations. Until 2016, every state board included a certain criterion for being able to advertise as a specialist — ADA recognition — and, in order to effect major change in the process of specialty recognition, that criterion needed to be challenged.
AAID v. Parker
To challenge the notion that dental specialties not recognized by the ADA could still advertise their specialty status, in 2014, the four dental institutions that created the ABDS — AAID, AAOP, ASDA and AAOM — brought suit against Glenn Parker in his official capacity as the executive director of the Texas State Board of Dental Examiners. The Texas Society of Oral and Maxillofacial Surgeons also joined the case on the side of the state board. The plaintiffs alleged that the Texas state board was violating their rights to commercial free speech by limiting advertising as a “specialist” only to ADA-recognized specialties.
Beginning in the 1970s, the Supreme Court ruled that commercial free speech, i.e., the language used in advertising, is protected under the First Amendment, albeit to a lesser degree than personal free speech.5
Frank Recker, DDS, JD, represented the four plaintiff organizations in the case and is also legal counsel for the ABDS.
“All we were asking for was the right to advertise credentials,” said Recker. “Dentists spend a lot of time and money on these. As a matter of pride — and marketing — these dentists want to advertise that.” In 2016, summary judgment was granted in the U.S. District Court for the Western District of Texas. According to Helen Jameson, JD, AGD director of dental practice and policy, “Summary judgment is a blunt instrument whereby a judge determines that key facts are not in dispute and that the law requires a final judgment in favor of one of the parties.
Judge Sam Sparks used a four-part analysis developed in the Supreme Court case Central Hudson Gas & Electric Corp. v. Public Service Commission to determine whether the plaintiff’s First Amendment rights had been violated:
“[I]t at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the government interest asserted, and whether it is more extensive than is necessary to serve that interest.”
Sparks found that the plaintiffs’ speech was lawful and not misleading. Whereas the Texas board argued that advertising as a specialty that was not recognized by the ADA was inherently misleading, in his ruling, Sparks wrote that because the “defendants 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 … .”
Sparks determined that the state government’s interest in ensuring the accuracy of dental advertising was substantial. He then turned to whether the defendants had met their burden showing that advertising restrictions “advance a substantial state interest.” In other words, the Texas board had to prove with hard evidence that the existing rule was necessary to protect the public.
“Defendants [did] not offer any competent evidence to substantiate these fears and admit they did not review any studies, surveys or other evidence regarding the impact of specialty advertisements before promulgating the rule,” wrote Sparks.
For the fourth part of the test, for the defendants to show that the rule is “not more extensive than necessary,” Sparks pointed out that numerous “less-burdensome” limitations on commercial free speech existed instead of stipulating that advertisements rely on ADA status.
The district court’s opinion included a pointed criticism of the ADA’s House of Delegates involvement in specialty recognition:
“Defendants have failed to explain why blind reliance on the ADA is not more stifling of commercial speech than is reasonably necessary. Defendants’ sole argument on this point is that because it considers the ADA the ‘standard bearer’ in the profession, the State Dental Board has preferred to ‘use the work that’s already been done by the ADA rather than by doing the work itself.’ While it may be reasonable for the state to rely on the ADA for choosing uniform standards or qualifications for distinguishing between specialty areas, Defendants’ argument does not explain why it is reasonable to blindly defer to the ADA’s choice of specialty areas; notably, this framework does not account for the risk that a non-ADA-recognized specialty board or credentialing organization could meet the standards of integrity set by the ADA but still not be recognized as a specialty for political or economic reasons.”
This criticism of the ADA House of Delegates’ process “struck fear because it basically said the ADA’s process was not objective and could be used by competitor specialties to block recognition, which then has antitrust ramifications,” said Jameson.
The federal appeals court upheld the lower court’s ruling in favor of the plaintiffs. The appellate judges used the same four-part test described in Central Hudson Gas & Electric Corp. v. Public Service Commission and arrived at the same conclusion.
The Texas board stated that the plaintiffs could engage in other forms of commercial free speech that comport with the advertising rule, but, in the majority opinion, Judge Leslie H. Southwick, wrote, “… the existence of other forms of commercial speech does not eliminate the overbreadth of the regulation on specialty advertising that is truthful. … The Board’s position is especially troublesome because there is no indication whatsoever that it ‘carefully calculated’ the costs associated with [the rule].”
The immediate impact of the court decision was that members of the plaintiff organizations could advertise as specialists in Texas.
Changes in the Recognition Process
The AAID v. Parker decision marked the beginning of major changes in the way dental specialties were recognized and how dentists could advertise. Before the appellate court issued a ruling, the ADA was already making changes to the specialty recognition process. The 2016 ADA House of Delegates took two critical actions.6 First, it voted to remove itself from the recognition process by transferring authority to an independent national commission. Second, it approved amendments to the ADA Principles of Ethics and Code of Professional Conduct advertising provisions. The changes allowed dentists to announce themselves as a specialist to the public in any dental specialties recognized by the ADA or by their jurisdiction (state) as long as they met the education requirements to be recognized as a specialist in that specialty. An additional change stated that specialists no longer have to limit their practice to their specialties.7
In late 2016, the ADA board appointed a Task Force on Specialty and Specialty Certifying Board Recognition to evaluate the process and criteria by which specialties and specialty-certifying boards are recognized. The 2017 ADA House of Delegates approved the proposed structure for a new National Commission on Recognition of Dental Specialties and Certifying Boards, including requirements for recognition. The house of delegates voted overwhelmingly to transfer authority to the National Commission, which held its inaugural meeting in 2018.8 The initial makeup of the board of commissioners included a representative from each of the nine then-recognized ADA specialties, an equal number of general dentists who were also ADA members and a public member. When a new specialty is recognized, it gains a seat on the National Commission, and an additional general dentist position is also added. At the inaugural May 2018 meeting, the Commission also received ASDA’s application for recognition, which it approved in 2019.
To receive specialty recognition from the National Commission, an organization must submit an application demonstrating that it meets objective requirements established by the ADA House of Delegates. When the National Commission receives an application, it solicits comments from stakeholders, including AGD and the existing dental specialties. The National Commission requirements are very similar to the requirements under the previous ADA House of Delegates process. For example, in order for an area to become and/or remain recognized as a dental specialty, it must be a distinct and well-defined field that requires unique knowledge and skills beyond those commonly possessed by dental school graduates; the scope of the proposed specialty must require advanced knowledge and skills that in their entirety are separate and distinct from the knowledge and skills required to practice in any recognized dental specialty and cannot be accommodated through minimal modification of a recognized dental specialty; and it must directly benefit some aspect of clinical patient care. The requirements include specifications about formal advanced education programs as well as a certifying board.9
“The National Commission is not a political body like the ADA House of Delegates,” said James Boyle, DDS, MS, current chair of the board of commissioners. “Inherent in the commission governance structure are provisions for conflict of interest and due process, with mechanisms in place within the organization’s governance documents that ensure that each application for specialty recognition is considered in an objective and unbiased fashion.”
Boyle says that the creation of the National Commission brought dentistry more in line with other healthcare fields.
“The ADA recognition process was truly an outlier and had not changed substantially since it was initiated in the late 1940s, even though the public’s and the profession’s expectations have changed over time,” he said. “The ADA came to the conclusion that only through addressing the shortcomings in the ADA recognition process itself could the ADA maintain its position as the preeminent authority on dental specialty recognition.”
To date, three of the four plaintiff organizations in the AAID v. Parker case have been recognized as specialties by the National Commission. The exception is AAID, which has not submitted an application to the National Commission (as of publication). AAID’s situation is unique because it does not have a CODA-accredited formal education program, which is a requirement for specialty recognition under the National Commission, though it does have an education program and a certifying board.
The Effects of AAID v. Parker
The implications of AAID v. Parker are much wider than the indirect creation of the National Commission. Today, instead of one restrictive — and unconstitutional — way of recognizing dental specialties, state boards of dentistry have many. Even though the plaintiffs’ victory in Texas means any specialist dentist in the state can advertise in the same way as one recognized by the National Commission, that ability does not automatically carry over to every other state.
However, any group wishing to challenge its state board of dentistry has a powerful precedent in AAID v. Parker. Some state boards have revised their regulations voluntarily to comply with the case. Others have done so in response to lobbying by attorneys such as Recker. Some have eliminated dental-specific advertising regulations entirely, while others have revised language so that it is not limited to ADA-recognized specialties.
The changes in the recognition process have caused many dentists to debate the scope of practice within specialties, which in turn affects the referral process. Similarly to how individual states regulate who can call themselves specialists, state boards of dentistry also dictate what a specialist can and cannot do, though the enforceability of these regulations is in question after AAID v. Parker.
In the states with no limitations, a general dentist might be hesitant to refer a patient to a specialist who also performs procedures such as placing crowns and bridges because that patient might not come back to the general dentist. Additionally, there is a concern among general dentists and specialists that a proliferation of specialties will confuse patients and fragment care.
According to Rebekkah A. Merrell, DMD, member of the 2019 AGD Future of General Dentistry Committee, the impact of AAID v. Parker has also led to fragmentation among providers.
“As general dentists, AAID v. Parker has a significant impact on our practices,” she said. “There are many dental organizations that have fellowship exams, diplomate status and specialty recognition, and each of these organizations has the right to establish their own governance and rules for these designations.
“One of the main concerns for general dentists regarding organizations establishing their own guidelines is that any organization can then claim to be the expert or the only board-recognizing power. Since the AAID v. Parker ruling, organizations can now claim to be specialists without oversight of the ADA and the National Commission.”
New Specialties on the Horizon
With two new dental specialties — orofacial pain and oral medicine — gaining recognition from the National Commission in the midst of the COVID-19 pandemic, it is not likely that the rate of specialization will slow down. According to Orr, the issues with the old process have left the door to new specialties wide open.
“A bottom line is that, because the ADA House of Delegates was unreasonably and illegally restrictive for decades, there will now likely be more specialties than ever,” he said.
With plenty of legal experience under its belt, the AAID’s goal of an implant dentistry specialty may be the most likely to follow once it satisfies the requirement of a CODA-accredited postgraduate education program. But what others may come, and is there a limit to how many specialties the profession can justify and support?
Recker has a shortlist of specialties he sees as imminent, including geriatric and special needs dentistry. “In addition, laser and cosmetic dentistry both already have associations and credentials.”
Now that state dental boards are removing language referencing the pre-National Commission list of ADA-recognized specialties, some state jurisdictions are left more open to specialties that have not been recognized by the ADA or the National Commission. Additionally, there is a race for dental specialty organizations to assert themselves as the authoritative entity in order to make a successful bid for formal specialty recognition. This is especially contentious where areas of dentistry overlap with established specialties, such as sleep dentistry.
“There has been a lot of movement in the field of dentistry to have a standardization of care for dental sleep medicine,” said Tyler L. Scott, DDS, FAGD, AGD Dental Practice Council member. “There have been several dental organizations treating sleep apnea, including the AAOP, American Academy of Craniofacial Pain and American Academy of Dental Sleep Medicine (AADSM). With AAOP gaining recognition last year, it will be interesting if one or multiple organizations will be creating a standard for treating dental sleep patients. I definitely see the AADSM applying for specialty recognition in the future, especially with the recent changes in its education and diplomate recognition programs.”
“While the AAID v. Parker ruling did give general dentists more autonomy to advertise all their specialty training, it also opened the door for many dental organizations to step in and claim the rights to provide the only path to ‘specialist’ status in a certain treatment area, leaving many dentists who have trained under other courses out of the specialty club,” said Merrell. “This highlights general dentists’ main concern — what continuing education can we trust? After spending thousands of dollars on continuing education to become an expert in dental anesthesia, implantology or sleep medicine, for example, you may not even be able to advertise your expertise without paying an organization to give you ‘diplomate’ or ‘specialist’ status.”
While the future is uncertain, Scott has faith in the new process established by the National Commission.
“Both dentistry and medicine have evolved over the last century, making specialization necessary to meet the demand of the public,” he said. “The increase in fields should only be made to improve the quality of care and in the best interest of the public. There will be additional specialties in the future, but I have confidence the National Commission will approve those that only improve the quality of care while at the same time protecting the public.”
Future Impacts on Dentistry
As each new specialty arises, the profession must continue to adapt to the changing landscape. Interactions among specialties and general dentists will continue to evolve, but the profession must continue to focus on the impact on dental patients.
Boyle says the establishment of the National Commission has positively affected patients so far. “It should give patients confidence that when they are referred to dentists who limit their practices to one of the National Commission-recognized specialties, those specialists have the education, training, skills and expertise within that discipline of dentistry. This is particularly important for those patients who have highly complex treatment needs,” he said.
Orr maintains that general dentists continue to be an important part of the profession and that the continued specialization of dentistry should not stifle their practice; rather, it should strengthen safety for patients throughout dentistry. “I believe that any generalist, with proper training, should never be restricted from providing services he or she is proficient at,” he said.
Not all dentists are enthusiastic about the increase in specialization. Myron J. Bromberg, DDS — AGD Congressional Liaison; chair of the Professional Relations Council; member of the Dental Practice Council; and consultant to the Legislative and Government Affairs Council — has specific concerns about overspecialization as well as the potential for limitations to be placed on the practice of general dentistry.
“A problem arises when specialists attempt to limit the specialty procedures performed by general dentists capable of performing them,” he said. “The last thing I want to see for the dental profession is to follow the medical model where overspecialization is rampant. No parallel exists between the two professions in this regard. Whereas that type of specialization may be appropriate within medicine, no such need exists in dentistry.”
The Dental Home
To help patients navigate the proliferation of specialists, AGD has been advocating for the dental home concept. This model of care sees the general dentist as the gatekeeper of oral care and was formally adopted and endorsed by the American Academy of Pediatric Dentistry (AAPD) in 2004 after a similar concept, the patient-centered medical home, was proposed in the medical space by the American Academy of Pediatrics, the American Academy of Family Physicians, the American College of Physicians and the American Osteopathic Association.10
In the dental home model of care, patients always start with a general dentist. Like a patient’s primary care provider in medicine, general dentists coordinate care within their own practice and, when applicable, refer to specialists as needed. In this way, the general dentist is the leader of a team that takes a holistic approach to oral healthcare. While specialists have a narrow treatment focus, general dentists are able to provide a greater variety of care in one location with fewer visits, which has a positive effect on patient access to care.
“General dentists should always be considered the ‘gatekeepers’ of oral health, and their offices should be where patients seek comprehensive dental care," said Scott. “When patients have a dental home, they complete treatment more frequently and achieve maximum dental and overall health. Regardless of the growing number of specialties in dentistry, it is imperative that this model is not lost.”
Just as primary care physicians can manage and provide care beyond annual physicals, general dentists are qualified to manage and provide care beyond restorations and twice-yearly oral exams. As dental specialization continues, Merrell emphasizes that general dentists need to educate their patients on exactly what treatments they are qualified to provide.
“Many patients want their general dentists to be able to do everything under one roof,” said Merrell. “This is leading general dentists to do more continuing education to become experts in many different specialties rather than referring to specialists for root canals, third molar extractions, implants, etc. For a lot of dentists, marketing that they have these skills is key. It often amazes me how little our patients know about what dental procedures entail or what all we offer as general dentists. I can foresee more confusion amongst patients due to the increased recognition of more specialties.
“There is nothing more frustrating than seeing a loyal general dentist patient of several years return for a hygiene appointment with eight new veneers delivered by another general dentist down the street because they advertised as a cosmetic dentist. Educating our patients is going to be the key to our success as general dentists in the future.”
Meanwhile, the ADA’s recent amendments to its Principles of Ethics and Code of Professional Conduct regarding whether specialists must limit their practice to their specialty has also created a new playing field for general dentists and specialists regarding referral relationships. How individual practitioners manage this new framework will impact both patient care and the profession.
Merrell’s referral process maintains a positive relationship with her trusted specialists but also keeps her office as the dental home while prioritizing what’s best for the patient at every step.
“The ideal referral process between a general dentist and specialist is an open line of communication,” she said. “I have a very detailed referral letter that is emailed to my specialist. It doesn’t just say, ‘Patient needs a root canal on tooth No. 31.’ The letter gives the chief complaint of the patient, symptoms, and my diagnosis or differential diagnosis. The letter also details the patient’s personal information that would be required for registering the patient and scheduling. We also send radiographs and intraoral photographs. My front desk tries to schedule the patient with my referring specialist prior to them leaving my office. This does require a few extra minutes of my staff’s time, but it takes a lot of the legwork out for the patient and eliminates another barrier to getting the care they need.
“When the overall treatment picture is clear, it allows the general dentist to be the quarterback of the team and instruct specialists to clearly treat only what we have outlined,” she continued. “For example, my endodontist knows when I schedule the root canal that we are also scheduling an access fill. If the patient needed a crown, I would have already removed the decay and put the patient in a temporary crown prior to sending them over for a root canal. My endodontist can be assured that, with a temporary crown on, the tooth is restorable.”
Despite his concerns, Bromberg said he sees a bright, positive future for the dental profession. “I see the dental profession expanding into areas heretofore unreasonably considered to be off limits,” he said. “Areas such as Botox®, facial fillers, vaccinations, and certain other cosmetic and noncosmetic facial procedures will be explored by dentists who are, by virtue of their training and knowledge of facial anatomy, most competent in addressing these needs.”
As dentistry continues to evolve, the most important factor will be whether the profession does so in a way that strengthens its image in the eyes of the public. General dentists and specialists alike must learn how best to navigate a new landscape while prioritizing patients’ needs and advocating for professional practices that safeguard patients and the profession.
Leland Humbertson is managing editor of AGD Impact. Caitlin Davis is associate editor of AGD Impact. To comment on this article, email impact@agd.org.
References
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