Pain group not eligible to certify members

The organization's standards fell short of what California requires for physicians to use "board certified" in their advertising.

By Damon Adams — Posted Jan. 26, 2004

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A federal appeals court has upheld a state law that prohibits physicians from advertising they are board certified in a medical specialty unless the certifying board or association meets state regulations.

The U.S. 9th Circuit Court of Appeals rejected the American Academy of Pain Management's argument that the rule violated free speech, ending the academy's eight-year battle with the Medical Board of California, which oversees the ad regulations.

"Obviously we are pleased with this decision -- the fourth legal challenge in which we have prevailed. California has a law that is constitutional, one which other states could use as a model," said medical board spokeswoman Candis Cohen. "If I were authoring legislation at this time, I'd look to the decision for guidance."

The 6,000-member academy, which credentials multispecialty pain practitioners and develops standards, said it would drop the issue.

"We prefer not to divide our attention at this point. Our mission is to up the standards in pain management," said Kathryn Padgett, PhD, director of the Sonora, Calif.-based academy.

The California regulation, enacted in 1994, allows physicians to use board certified in advertisements if the certifying organization is a member board of the American Board of Medical Specialties, has equivalent requirements accepted by the state medical board or has a postgraduate training program approved by the Accreditation Council for Graduate Medical Education.

In April 1996, the pain academy asked the California medical board if its members could use "board certified." But the board said no. It said the academy's standards for certification were not equivalent to the ABMS standards. It also said the academy did not require members to have formal postgraduate training and the academy's two-hour exam fell short of the board's required 16-hour exam.

Academy argues free speech

The academy filed a lawsuit, saying the advertising regulations violated its members' First Amendment rights. A lower court disagreed, then the academy appealed

In its Jan. 2 decision, the federal appeals court said the California rules sought to give a consistent meaning to the term board certified.

Judge Procter Hug Jr. wrote, "Such consistent usage informs the medical community and the general public that the physicians and surgeons advertising that they are 'board certified' have met a certain standard of postgraduate education and experience." He added that physicians are not prevented from advertising they are members of "non-qualified boards or associations."

B. Elliot Cole, MD, a plaintiff in the case, said the decision may prompt some physicians to be more conservative in their advertising. "You can call yourself credentialed," he said.

Board-certifications status also has caused problems in Florida. In 2002, the state allowed doctors certified by the American Assn. of Physician Specialists to advertise themselves as board certified. Some medical organizations protested the move by the Florida Board of Medicine, questioning the group's standards.

ABMS Executive Vice President Stephen H. Miller, MD, MPH, said his umbrella organization of medical specialty boards hears complaints about doctors who say they are board certified when they are not.

There are more than 150 "self-designated" certifying boards, he said, so physicians should be careful to check a group's standards.

"Some groups may be legitimate and some may not."

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Case at a glance

American Academy of Pain Management, Arnold Fox, MD, B. Elliot Cole, MD, v. Ronald Joseph, in his official capacity as executive director of the Medical Board of California

Venue: U.S. 9th Circuit Court of Appeals
At issue: The court upheld California's rules limiting how physicians can use the term "board certified" in advertising.
Potential impact: The decision said the regulations do not violate free speech rights. Other states could view the rules as a model for drafting legislation on physician advertising.

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