News from AAPS vs NY-DOH

Posted: April 4, 2008 by Doc in Emergency Medicine, ER Docs
Tags: , ,


For years, ABMS/ABEM/ACEP/AAEM have sought to eliminate competition from ABPS board certified physicians. In New York State, they seem to have tricked the DOH (Department of Health) into accepting their version of the facts: that only residency trained ER physicians are qualified to practice emergency medicine. Unfortunately, by so doing they may have also stripped board certification in Emergency Medicine from their grandfathered members, who are NOT residency trained in ER medicine.

In their rush to exclude competition from ABPS certified physicians from the practice of Emergency Medicine, ABMS/ABEM/ACEP/AAEM should have heeded the advice in the Proverbs of Solomon, regarding wisdom, or the common prudence, that everything cuts two ways!

ABMS/ABEM/ACEP/AAEM lobbied NYS- DOH to list only ABEM residency trained physicians on their website as being board certified in Emergency Medicine [].
ABPS sought the same privilege but were repeatedly, irrationally and arbitrarily denied. After being unfairly denied on multiple occasions, ABPS finally brought suit against the NYSDOH under Equal Protection, seeking to have ABPS certified physicians listed on the NYSDOH website as board certified, as other boards have successfully done in other states. (see ABCS case)

This issue has been contentiously argued. ACEP officials such as Dr. Melissa Graber
and Dr. Carol Rogala have vehemently castigated ABPS for filing this suit, asserting their lack of basis and ABPS’s reluctance to share their world view, that the only way to practice emergency medicine is after a residency in that specialty.

In other words, why can’t ABPS just keep quiet and allow ABMS/ABEM/ACEP/AAEM to continue their monopoly of Emergency Medicine?

Didn’t Daniels [Daniels v. ABEM] lose his case asserting monopolistic practice in Emergency Medicine by ABMS/ABEM/ACEP/AAEM? Not exactly. Daniels lost, but not on the merits.
Daniels was not dismissed on the merits. The error in the Daniels case was, when asked what he was seeking he said he wanted to practice emergency medicine, and if ABEM let him take their test then he would be able to practice. Simple enough, right? Daniels knew that ABMS/ABEM/ACEP/AAEM were lobbying so that for him to practice ER medicine, he had to join their group. He knew, that ABPS would face constant attack, notwithstanding the equivalency of their examination and certification process. That’s just the way it was and is.

But how could Daniels sue ABEM because ABEM won’t let him join them?

If what Daniels said was true and ABMS/ABEM were unlawful monopolizers, then a monopoly existed and he was being economically excluded. The court said, you can’t come to us to help you join a group you claim are unlawful monopolizers under the Sherman antitrust act. We the court, can’t help you join the monopolizers. Dismissed.

But what has occurred in NY is not much different.

Daniels should have joined ABPS and obtained their certification. His practice would have been impeded as well, since hospitals do not consider ABPS board certification and New York State won’t list ABPS as a legitimate board, because, ABMS/ABEM/ACEP/AAEM have lobbied to get NY State to help them eliminate their competitors.

New York listened and will not list a physician not residency trained in ER medicine as board certified on its website. This is inconsistent, since NY lists all the grandfathered ABEM certified physicians who definitely did not do residencies in ER medicine, as board certified.
ABPS cried “Foul!”

Of course, what’s interesting is that if the training was so unique, then any physician not trained in EM, would fail tests of the subject matter. But we know that’s not so…since ABEM grandfathered physicians have managed to do just that, and Daniels and many other excluded physicians are certainly no different in training from the physicians permitted grandfather status from an arbitrary closure of the practice track in EM.

In fact, all of the certified ABPS physicians are convinced they would also pass the ABEM board examination, just like their grand-fathered colleagues. Dwight Collman [ABEM certified], arguably the best ER Board Preparer in the country, did not do a residency in ER medicine. No one doubts his fund of knowledge nor his likely skill in the actual practice of EM.

And of course, what’s so wrong about using NY State to burden ABPS under the guise of jurisprudence or concern for the patient even if the relationship between the means and the ends are irrational? The fact that NY State ends up protecting ABEM/ABMS/ACEP/AAEM from economic competitors, though not a legitimate government purpose, well, that’s alright too, ABMS/ABEM/ACEP/AAEM knows best! Since the legal standard of review would be “rational basis” it seems that ABMS/ABEM/ACEP/AAEM took their chances. Anything can be deemed rational and many courts have found rationality when there was none.

The deck stacked in their favor, ABMS/ABEM/ACEP/AAEM pressed on in lockstep, with their self righteous, strong arm tactics, oblivious to cogent arguments against their positions from the State, who quite frankly, never investigated. What ABMS/ABEM/ACEP/AAEM/NYSDOH forget is that “rational basis” also cuts two ways and ab initio, does not mean abdication of judicial review.

If, as it is said, “Nothing cleanses like daylight”, then ABPS’s contention that its
certified member physicians are under unfair attack by unlawful discrimination, and that ABMS/ABEM/ACEP/AAEM have enlisted the State as aider and abettor in their attempt to destroy ABPS appears to be true.

Under the current NYSDOH rules, only ER residency trained and ABEM certified physicians can list themselves as board certified on the NY Physician Profile website.
( The website defines “board certification” as:
“If a doctor is Board Certified, this means that he or she had graduated from medical school; completed residency (training in a hospital); trained under supervision in a specialty, and passed an exam given by a medical specialty board.”

That’s right. Under this rule, ABMS/ACEP/ABEM/AAEM, seeking to eliminate ABPS competition, also strips board certification in New York from ABEM grandfathered physicians, not residency trained in Emergency Medicine

Technically, those grandfathered physicians cannot promote themselves in NY State as “Board certified” because they did not do an EM residency. Also, on applications to hospitals that ask for Board Certified physicians, they are as precluded as are ABPS physicians from getting those jobs, although we all know they are just as qualified.

Should the NYSDOH de-list ABEM certified non ER residency trained as not being board certified? ABPS does not think so. To their credit, ABPS does not seek to disenfranchise ABEM grandfathered physicians, but regards them highly, and would be happy to provide them with a new home in AAPS [American Association of Physician Specialists]. All they seek is for their own certified physicians to be treated fairly.

Fighting to “Level the Playing Field” for ABPS Docs in NY

Hear! Hear! Judge Decides NY AAPS Case Goes Forward

Disposable Doctors 2: ER Docs Fight Back in NY

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