North Carolina Medical Board --- Vote to Recognize the ABPS

George L. Saunders, III, MD, President
North Carolina Medical Board
1203 Front Street
Raleigh, NC 27609

Dear Dr. Saunders:

On Monday, November 30, 2009, the North Carolina Medical Board (NCMB) will be considering the adoption of rule 21 NCAC 32Y .0101 dealing with Specialty and Board Certification Advertising.

We, the undersigned, urge you to vote against the proposed rule, as written, and to request your support of including in the rules the American Board of Physician Specialties (ABPS), the official certifying body of the American Association of Physician Specialists, Inc. (AAPS), as a specialty board certifying organization.

Arguments Against the Proposed Rule

Decisions regarding physician advertising raise important policy concerns, such as preventing statements that would mislead lay people and potentially undermine public trust in physicians and the health care system. While deceptive advertising by physicians should be prohibited, Courts and other state policy makers should be careful not to restrict unnecessarily the dissemination of truthful and non-misleading advertising that may help consumers make more informed choices. Overly broad restrictions of truthful and non-deceptive information are likely to harm consumers of medical services by denying them useful information and impeding competition among physicians. Accordingly, consumers are better off when policy makers address concerns about potentially deceptive advertising with narrowly tailored restrictions.

There are a growing number and a wide variety of physician board certifying programs in the United States, each with its own method of certifying physicians based on a variety of criteria. The certification methodologies typically are disclosed and available to consumers in print and on web pages (For example, http://www.abms.org/About_ABMS/member_boards.aspx and http://www.abpsus.org/certification/index.html). These physician board certifying organizations serve a consumer demand, and the merit, quality, and validity of them is best determined in the marketplace. (Peel v. Attorney Registration & Disciplinary Commission of Illinois, 496 U.S. 91, 102 (1990) (Much like a trademark, the strength of a certification is measured by the quality of the organization for which it stands.

Since the proposed NCMB rule would only allow physicians board certified by the American Board of Medical Specialties, the Bureau of Osteopathic Specialists, or the Royal College of Physicians and Surgeons of Canada to advertise as board certified, I believe that the proposed rule change unnecessarily restricts truthful and non-misleading advertising and thus harms North Carolinians.

Arguments in Favor of Recognizing ABPS

The Chairman of the Federal Trade Commission (FTC) observed in Congressional testimony on May 31, 1989, that non-ABMS boards can provide legitimate board certification stating:

Legitimate board certification from either ABMS or non-ABMS boards can be an important indicator of advanced training and skill.

Additionally, the American Medical Association staff hav developed Guidelines for Truthful Advertising of Physician Services. Since limitations on physician advertising can raise serious legal issues, the staff of the FTC participated in the process. The Guidelines recognize that there are legitimate non-ABMS boards and the Guidelines state:

Non-affiliation with ABMS does not indicate that an organization has inadequate review criteria or procedures.

There is general agreement in the AMA Draft Guidelines and in the laws of the various states that have considered the issue that a legitimate board, whether or not affiliated with ABMS, must do three things:

1.) Require a residency accredited by ACGME (or some equivalent organization) that includes substantial and identifiable training in the area of medicine for which certification is offered;

2.) Require peer review of clinical practice experience; and

3.) Require completion of a rigorous examination of knowledge in the area of medicine for which certification is offered.

The ABPS meets each and every one of the AMA Guidelines.

Recently, a comparative study was completed by Associated Industries of Florida Service Corporation (AIFSC), an independent business organization, of the three nationally recognized physician multi-specialty board certifying organizations -- American Board of Medical Specialties (ABMS), American Board of Physician Specialties (ABPS), and the American Osteopathic Associations Bureau of Osteopathic Specialists (AOABOS). The AIFSC study shows that all three certifying bodies are equivalent to each other relative to certification and re-certification requirements.

Recognition by Other State Medical Boards

We, the undersigned, respectfully request that the North Carolina Medical Board adopts a rule embraced by other state medical licensing boards that recognizes the American Association of Physician Specialists, Inc. (AAPS) and its official board certifying body, the American Board of Physician Specialties (ABPS), as a physician board certifying organization.

On October 20, 2009, the Texas Medical Board approved the ABPS and on November 18, 2009, the Oklahoma State Board of Medical Licensure and Supervision also approved the ABPS as a physician board certifying organization.

For the foregoing reasons, we, the undersigned, urge you to vote against the proposed rule, as written, and to request your support of including in the rules the American Board of Physician Specialties (ABPS) as a specialty board certifying organization.