Editorials

STATEMENT OF THE AMERICAN DENTAL ASSOCIATION on regulation by State Boards of Dentistry of misleading dental specialty claims.

August 10, 2018

From time to time, general dentists who are not adequately trained in a dental specialty are holding themselves out to potential patients as specialists in a particular area of dentistry. This sort of promotional practice is misleading and does a disservice to patients who are seeking the most qualified dentist to treat their conditions. Accordingly, the American Dental Association respectfully submits that it is the obligation of State Boards of Dentistry that are charged with protecting the interests of dental patients to regulate and prevent this practice.

The ADA recognizes that some State Boards may be reluctant to regulate misleading specialty advertising by general dentists lest they be sued by the advertising dentists (or their associations) for allegedly violating the First Amendment rights of those dentists. This reluctance is understandable since some state regulation of dental advertising has been struck down, or strongly questioned, by the courts on First Amendment grounds. See, e.g., American Academy of Implant Dentistry v Parker, 860 F.3d 300 (5th Cir. 2017) (invalidating on First Amendment grounds a Texas regulation prohibiting dentists from advertising as “specialists” in any area of dentistry not recognized as a specialty by the ADA); Kiser v Kamdar, 831 F.3d 784 (6th Cir. 2016) (strongly questioning whether an Ohio regulation prohibiting a dental specialist from advertising as a specialist where that dentist also performed general dentistry could survive First Amendment challenge).

Notwithstanding these cases, the ADA respectfully submits that State Boards of Dentistry can, and should, prohibit specialty advertising by general dentists with inadequate training and experience in the specialty that they purport to have. The key is to make the appropriate record in the administrative proceeding on which the regulation is based. This memorandum discusses various forms of misleading dental specialty advertising and explains the specific steps that a Board should take to satisfy First Amendment scrutiny of its regulation of such advertising.
In essence, there are four such steps:

1. Determine and define the minimum training, experience, and other requirements that the Board deems appropriate to justify a dental specialty claim — and explain the reasons for those requirements;
2. Indicate that the purpose of the regulation is to prevent deception of patients and potential patients — and to help assure that patients receive dental care from appropriately trained and experienced practitioners;
3. Discuss how the regulation will avoid deception of patients and will help to assure appropriate care for patients; and
4. Explain why a disclaimer by the advertising dentist would not be adequate to protect patients and potential patients.

These steps require some effort, but should not be too difficult to accomplish.

DISCUSSION
Advertising of dental specialties is a form of commercial speech protected under the First Amendment to the Constitution of the United States. Accordingly, any regulation of such advertising is subject to review under the four-factor test established by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). That test looks at four considerations:

1. Does the regulated speech concern unlawful activity, or is it inherently misleading? If the speech concerns unlawful activity or is inherently misleading, it can be prohibited by the State without any further analysis. If not, the other three factors come into play.
2. Is the government interest in regulating the speech substantial? If not, the State Board of Dentistry may not regulate the speech. If so, the inquiry proceeds to the next step.
3. Does the regulation directly advance the governmental interest asserted? If not, the State Board may not regulate the speech. If so, the analysis proceeds to the final question in the inquiry.
4. Is the regulation more extensive than necessary to advance the asserted government interest? If so, the regulation is struck down. If not, the regulation will survive challenge under the First Amendment.

Id. at 563-566. This Statement now examines each of these four elements in the context of regulating misleading dental specialty advertising.

1. Is Specialty Advertising By A General Dentist Inherently Misleading?
At the outset, specialty practice by general dentists is not unlawful activity. In most states, licensed dentists are free to practice in all branches of dentistry. Thus, specialty advertising cannot fairly be said to promote unlawful activity unless state law limits the scope of practice of general dentists.
The question therefore becomes whether the advertising at issue is “inherently misleading.” In this connection, it is crucial to be aware that the courts have drawn a distinction between speech that is “inherently misleading” and speech that is only “potentially misleading.” See, e.g., In re R.M.J., 455 U.S. 191, 203 (1982); Borgner v. Brooks, 284 F.3d 1204, 1210 (11th Cir. 2002). Speech that is found to be “inherently misleading” can be prohibited without any further analysis. By contrast, speech that is deemed to be merely “potentially misleading” requires evaluation under the three other Central Hudson factors. American Academy of Pain Management v. Joseph, 353 F.3d 1099, 1106-09 (9th Cir. 2004)
Notably, this is where the regulations in AAID v. Parker and Kaiser v. Kamdar encountered their most significant problem. Specifically, in Parker, the panel majority concluded that there was nothing “inherently misleading” about advertising a specialty that is not recognized by the ADA. Likewise, in Kiser, the Court found nothing “inherently misleading” about claims of specialty qualifications by a properly trained dental specialist just because that specialist also performed general dentistry. Rather, the speech in question in those cases was deemed to be only “potentially misleading” — and, therefore, subject to analysis under the remaining three Central Hudson factors.
Armed with these precedents, general dentists challenging a regulation prohibiting them from claiming to have specialty expertise will argue that there is nothing inherently misleading about such a claim. They will point to various courses that they have taken in the specialty at issue — no matter the length or intensity of the course. They will also truthfully claim to have performed some number of procedures in that specialty. And they may claim to have been certified by a specialty certifying body that may, or may not, have standards that justify a claim of specialty expertise. Thus, they will seek to persuade a court that their advertising is only potentially misleading — and therefore not subject to prohibition without consideration of the other three elements of the Central Hudson test.
However, a well-counseled State Board of Dentistry should be able to defeat this line of argument by taking appropriate steps in the rule-making proceeding (or in a prior administrative proceeding). With respect to regulation of general claims of dental specialty expertise, the State Board should define what it regards as the minimum training and experience that dentists should have in order to hold themselves out as having specialty expertise. With respect to claims of Board-certification in a particular area of dentistry, the State Board should describe the minimum standards that a certifying body must have in order to make claims of certification by that body non-deceptive. For both of these items, the Board should provide a reasoned explanation of why it took the positions that it did. However, an important lesson of AAID v. Parker is that, while the regulation can reference ADA or CODA standards, it should provide an alternative to those standards as a means of satisfying the Board’s regulatory requirements.
On the general issue of specialty advertising, a State Board might, for example, issue a regulation that, in order to avoid misleading the public, a dentist claiming to be a specialist, or to have specialty expertise, must have followed either of two pathways: (a) The dentist must have completed a residency in the advertised specialty in a program accredited by CODA or in a program found by the Board to have standards equivalent to, or more stringent than, CODA; or (b) in the absence of completion of such a residency, the dentist must have done a fellowship in the specialty of at least X months and must have provided care in that specialty to at least Y patients in the course of the fellowship and in practice. This approach allows for specialty advertising in areas not recognized as specialties by the ADA and in areas, e.g. dental implants, for which there are no separate residency programs. At the same time, it allows a State Board to prohibit specialty claims by dentists based on week-end courses or otherwise inadequate training in the specialty. Of course, the Board should, as noted above, provide a reasoned discussion of why it believes that anything short of the requirements that it has imposed would be misleading to patients and potential patients.
With respect to advertising of Board-certification in a particular specialty, a State Board of Dentistry can define the standards that a certifying body must meet in order to permit a Diplomate to advertise as Board-certified in that specialty without deceiving the public. Here again, it would be advisable not to limit acceptable certifying bodies to those recognized by CODA. A good example of an acceptable approach can be found in the medical context in Section 458.3312 of the Florida Statutes. That statute provides, in pertinent part, as follows:
“A physician licensed under this chapter may not hold himself or herself out as a board-certified specialist unless the physician has received formal recognition as a specialist from a specialty board of the American Board of Medical Specialties or other recognizing agency that has been approved by the board.”
Similarly, a State Board of Dentistry could provide that a licensed dentist may not claim to be Board-certified unless that dentist has been certified by a certifying body that has been recognized by CODA or that has been approved by the State Board as having requirements for certification that will fairly evaluate the training and experience of the dentist in the specialty at issue. The State Board could then establish a procedure by which a certifying body not recognized by CODA may obtain recognition by the State Board.
It was the failure of the Boards whose regulations were at issue in Parker and Kamdar to provide reasoned explanations for their regulations that left room for the argument that the advertising at issue was only “potentially misleading.” By contrast, if a Board does provide a thoughtful analysis of what it regards as minimum criteria for advertising as a specialist – and if the Board builds some flexibility into its regulation, that Board is likely to receive substantial deference from a court. If, based on the Board’s analysis, the court finds that the dental specialty advertising is “inherently misleading”, the Board’s regulation will be upheld without regard to the other three prongs of the Central Hudson test.
Indeed, this was precisely the result in Joseph, 353 F.3d 1099. There, the Court of Appeals upheld a California statute that prevented a physician from claiming to be “Board-certified” in a medical specialty unless the certifying Board that granted the certification met specific requirements that had been adopted by the Medical Board of California. The Court held that, because the Medical Board had reasonably defined the term “Board-certified” in advance, use of that term by a physician whose certification failed to meet the requirements imposed by the Board was “inherently misleading.” Id. at 1108. Accordingly, the restriction on speech was upheld in Joseph without inquiry into the other Central Hudson factors.
In short, the best way for a State Board of Dentistry to succeed in having its rules limiting misleading specialty advertising by a general dentist upheld as against First Amendment challenge is (a) to define in a reasonable manner, either in advance or as part of the rule-making process, what it regards as the minimum requirements to justify a claim of specialization; (b) to build flexibility into its regulation; and (c) to explain in the proceeding the basis for its conclusions. If a State Board follows these steps, a claim of specialty expertise by a general dentist who does not meet the requirements that the Board has adopted is likely to be found “inherently misleading” and therefore subject to condemnation without regard to the other three factors of the Central Hudson test.

2. Does Regulation Of Specialty Advertising Serve A Substantial Government Interest?
If specific dental specialty claims are deemed to be only “potentially misleading”, a court will then turn to the other Central Hudson factors. Under the second prong of Central Hudson, a State Board of Dentistry may regulate claims of specialty expertise by a general dentist only if such regulation serves a substantial government interest. Every court to have considered restrictions on dental advertising has concluded that such restrictions are intended to advance substantial governmental interests.
In Borgner, for example, the Court of Appeals found the following interests to be substantial:
a. Regulating the dental profession in general;
b. Establishing uniform standards; and
c. Ensuring that dental advertising is not misleading.
284 F.3d at 1210-1211. Or, as the Court stated in AAID v. Parker, 860 F.3d at 309, “the Board has a substantial interest in ‘ensuring the accuracy of commercial information in the marketplace, establishing uniform standards for certification and protecting consumers from misleading professional advertisements.’”
For these reasons, the second prong of Central Hudson should be the easiest for a State Board of Dentistry to satisfy. Nevertheless, such a Board is well advised to articulate its interest in avoiding deception of patients and potential patients as a significant interest to justify its regulation.

3. Does The Regulation Directly Advance The Asserted Governmental Interest?
It is not enough for a State Board of Dentistry to assert its interest in avoiding deception. Under the third Central Hudson factor, the Board must carry its burden to demonstrate that its regulation advances that interest. Here, it is important to recognize that “mere speculation or conjecture is not enough.” AAID v. Parker, 860 F.3d 309. Rather, the Board must demonstrate that the harms that it recites are real and that its regulation will in fact alleviate those harms to a material degree. Id. A Board “may satisfy its burden with ‘empirical data, studies, and anecdotal evidence’, or ‘history, consensus, and simple common sense’”. Id.
This said, a well-counseled Board will rely on more than “common sense.” Indeed, in AAID v. Parker, the Court of Appeals held that the Texas Board did not satisfy this prong of the Central Hudson test — where it did not provide any empirical or even anecdotal evidence to justify the regulation at issue. Id. at 310-311. Given this decision, a State Board of Dentistry seeking to regulate misleading specialty advertising should provide, at the time of the rule-making, a reasonable analysis supporting its regulation.
Such analysis might consist of making a record of reports of harm to patients that is likely to have been avoided had the patient been treated by a qualified specialist. It could consist of a record of inquiries by patients or potential patients as to whether the general dentist who advertised as a specialist was really qualified in the area of claimed specialization. Or it may consist of a reasoned explanation, even if anecdotal, of why the Board, based on its members’ experience as dentists, concluded that advertising that fails to meet its standards would be misleading. This latter approach is, of course, similar to the explanation recommended in this memo for satisfying the first prong of Central Hudson.

4. Is The Regulation More Extensive Than Necessary To Advance The Asserted Government Interest?
Even if the regulation of misleading dental specialty advertising by the State Board advances a substantial government interest, the Board must still demonstrate that its regulation is no more extensive than necessary to advance that interest. Here, the advertising dentist will take the position that any deception in the specialty advertising can be cured by a disclaimer which will disclose that the dentist did not do a residency or a fellowship in the advertised specialty –or by some other disclaimer reeking to justify the claim. Courts have been sympathetic to a disclaimer argument — reasoning that it is preferable to require an explanation of potentially misleading speech rather than to ban the speech outright. See e.g., Borgner v Brooks, 284 F.3d at 1214.
For this reason, the disclaimer argument can be a powerful tool in the arsenal of those opposing outright prohibition of misleading dental specialty advertising. Indeed, the availability of that argument underscores why it is so important for a Board that wishes to ban such advertising to build a record demonstrating that the advertising in question is “inherently misleading.”
A well-counseled State Board of Dentistry should be aware of the disclaimer argument and should address that argument in the rule-making leading up to its rule. Specifically, if the Board wants to impose an outright ban on misleading specialty advertising, it should state, in connection with the issuance of its rule, that it considered a disclaimer but concluded that a disclaimer would not adequately cure the deception inherent in the specialty advertising. It should explain that, in its experience, people don’t give much weight to disclaimers and that no disclaimer in this context can cure the deception inherent in a claim of specialty expertise by a dentist who has not taken the steps that a Board believes to be necessary to justify specialty advertising. To the extent that the Board can point either to studies on the ineffectiveness of disclaimers generally — or to incidents of deception despite the inclusion of a disclaimer, the position of the Board will be strengthened.
Of course, if a Board concludes that a disclaimer will in fact suffice to cure any deception, it should set forth that disclaimer in the rule-making and explain why it has concluded that such a disclaimer is necessary. Assuming that the second and third prong of the Central Hudson test are satisfied, a disclaimer approach will be upheld if the court finds that the required disclaimer is not “especially long or burdensome, but simply an effective manner to convey necessary information to the public.” Borgner v Brooks, 284 F.3d at 1215.
This said, a State Board of Dentistry should recognize the tension between taking the position that advertising is inherently misleading and permitting a disclaimer. For if a claim is really inherently misleading, the deception should not be curable by a disclaimer. Therefore, a Board that offers the possibility of a disclaimer should make it explicit that it regards the prohibited specialty advertising as “inherently misleading” but that, if a court were to conclude otherwise, the Board would require the specified disclaimer.

CONCLUSION
State Boards of Dentistry have a responsibility to protect dental patients and the public from misleading advertising of specialty expertise by dentists who are not adequately trained and experienced in the advertised specialty. While the prospect of litigation under the First Amendment may tempt some Boards to rely on general prohibitions against deceptive practices rather than promulgate regulations that specifically address the issue, the ADA submits that specific regulation is the preferable course. Such regulation will provide guidance to practitioners, give the Board explicit criteria to apply in evaluating dental specialty claims, and help to assure that the Board’s regulation will prevail as against First Amendment challenge. This Statement has provided guidance on how State Boards can fulfill their responsibility to the public in this area of regulation in a manner that can efficiently be accomplished and that is likely to survive First Amendment scrutiny.

STATEMENT OF THE AMERICAN DENTAL ASSOCIATION on regulation by State Boards of Dentistry of misleading dental specialty claims.

Rearranging the Deck Chairs

(A three part editorial about the state of our specialty as this editor sees it. The opinions stated in this article are solely those of the editor and do not necessarily reflect those of the New Jersey Association of Endodontist’s Board of Directors or membership)

Part I

The Oxford Dictionary of Quotations (5th Ed. 1999), page 533, lists a quotation from the Washington Post, 16 May 1976, by Rogers Morton, American public relations officer: “I’m not going to rearrange the furniture on the deck of the Titanic.”  The context, according to the dictionary, was that Morton had lost five of six primaries as President Gerald Ford’s campaign manager.

The tie in for me to this aphorism is that the leadership of the AAE has been rearranging deckchairs on the Titanic for too many years. The membership just received the latest “President’s Message from Dr. Clara Spatafore. I’ve known Dr. Spatafore for many years and I can assure you she advocates as passionately as anyone for our specialty. However, the “Practice Promotion Newsletters” we receive almost monthly on the AAE website and this new President’s Message are essentially well meaning but pat bromides. Do we really need practice promotion tips that tell endodontists how to “Give Referring Dentists the Facts About Implants”? Solipsistic endodontic talking points to general dentists don’t wash particularly well with the economy lying at the bottom of an economic sink hole. Like the deckchairs on the Titanic these futile platitudes will gradually fade to black as they are overtaken by events that render them palpably defensive and irrelevant.

Knowledge based governance may be the rage of many for profit and non-profit organizations but its ability to act effectively and rapidly in a crisis situation is sorely wanting. The fact is that knowledge based governance is only as good as the organization that uses it and the AAE seems to find a way to populate its knowledge based governance committees with groups of homogeneous team members. For a knowledge based committee to be truly effective it is paramount to bring abroad committee members with independent and unaligned minds. I am of the opinion that that is not always the case with our colleagues who govern our organization. Many of my colleagues from across the country with past experience in the governance of our specialty organization do not require surveys or knowledge based strategic plans to realize that endodontics has reached a precipitous turning point over the past decade. The waning of our specialty has become well established. There are immutable reasons for this evident marginalization. The culture of referral that we hold near and dear to the core of our very existence is on the critical list. Reduced or no contact time between undergraduate dental students and endodontic faculty is a prescription for disaster. Who is teaching endodontic diagnosis and treatment to these students? How many general dentists under the age of 40 are on your “A” list of referring dentists? What was derigueur in restorative dentistry a decade ago has been eclipsed by the realization that not only can you restore an implant more easily than a natural tooth but you can command higher fees as well. Please don’t misunderstand my intent in this article. Implants are an excellent treatment option particularly for teeth that are pathologically hopeless and must be extracted. However, the most abused and misdiagnosed condition in dentistry today is “a fractured tooth”. The gratuitous condemnation of maintainable and healthy teeth has reached epidemic proportions. As endodontists a decreasing number of you are in the diagnostic loop to determine the diagnosis and treatment of teeth. Consequently incorrectly diagnosed symptoms far too often spell the loss of natural teeth that could have been saved with root canal treatment. Sadly, we are infrequent visitors to the loop that would make us part of a diagnostic team approach. We have essentially been reduced to providers of prescriptive endodontics. Can you imagine my disbelief when a dentist in my professional neighborhood asked me to locate a canal they couldn’t find and seal a perforation that occurred in attempting to find that “obscure” canal. Wait there is more! The referral slip also indicated that after I had accomplished bailing out my “colleague” I was to return the patient so that our industrious generalist could complete the root canal.. 

 What future does our specialty have when an ever increasing amount of the endodontic educational contact time our dental students receive is administered by mega departments under the supervision of non-endodontic faculty? If we don’t teach and mentor the next generations of general dentists how will they know what we can do for their patients and why and when it is appropriate to refer their patient’s for endodontic treatment? Do you think post graduate periodontists and oral surgeons graduating over the last few years are familiar with Salehrabi R and Rotstein I; Endodontic treatment outcomes in a large patient population in the USA (an epidemiologic study) . J Endod. 2004; 30:846–850?  More than likely the paradigm shift in their specialty education has left them blind to the reasons for embracing endodontic therapy as the equal of implant dentistry. Incongruously,  many of our colleagues in general dentistry, periodontics and oral and maxillofacial surgery consider root canal therapy “old technology”. How many referrals did you get from periodontists and oral and maxillofacial surgeons last year? When teeth treated endodontically by general dentists goes south do you believe they consider you their first line of referral for diagnosis and re-treatment?  Rather, I suspect the vast majority of endodontic treatment failures in general dental offices are shuffled off to the implantologist for cold steel and sunshine followed by bone augmentation and a titanium accoutrement. I can honestly tell you that many of my previous patients who “self-refer” to my office for a second opinion always have the same refrain……Dr. Balson please save my tooth I want to keep it and Dr. “Smith” said it needs to be extracted because it’s fractured. On occasion Dr. “Smith” is right and the tooth is not salvageable. However, all too often the teeth in question have one or more untreated canals; separated instruments the patient is unaware of; unfiled and unfilled apical canal segments; and a myriad of other treatment misadventures too long to enumerate here. When this ethical dilemma is dropped at your doorstep what do you? There are no easy solutions to a problem of this magnitude. The reality is that many treatment decisions in dentistry are made based on economic exigency, lack of diagnostic and treatment acumen or cost containment required by the patient or a third party payer. Isn’t it time dentistry stopped using implants as an insurance policy for substandard root canal therapy?

The inevitable passage of time has brought a perceptible decline to the numbers of full and part time endodontic educators. This year the first of the “Boomers” are reaching 65. As they and their predecessors accelerate their retirements from the hallowed halls of dental academia we will experience a significant decline in the endodontic educator community. What should be equally disturbing to all of us is the question…. who  will teach undergraduate dental students the culture of referral when there are not enough endodontic educators on clinics floors now to mentor and educate our future dentists. Who will educate these young men and women to what an endodontic specialist can do for them and their patients? Do these soon to be dentists appreciate how exacting and technique sensitive our specialty is? In essence we are fighting a battle that will make the Pyrrhic victory at Asculum appear to be a post battle bacchanalian celebration by comparison.  The most dangerous manifestation to the lack of clinical exposure to specialty endodontic education at the undergraduate dental school level is the creation of generations of dental school graduates who don’t even know what they don’t know!

Interestingly, the problem discussed above does have a double edged spectral presence in the mirror. Somehow even with the shortage of endodontic educators we still manage to graduate in the neighborhood of 200 post graduate endodontic students yearly. That means every 5 years approximately 1,000 new endodontists enter an already saturated endodontic job market and must compete with another 4,000 plus endodontists already practicing. I do not have attrition rate studies that can predict the number of endodontists that will retire over the next 5 years. Conversely, with the economy stagnating, high unemployment numbers and no end in sight to the sub-prime mortgage debacle I would surmise that many of our more seasoned colleagues will be deferring their retirements for a few more years than originally planned. The economic downturn has had a significant effect on our collective busyness in dentistry. Look at your weekly patient day sheet schedules and then at your yearly gross and net figures for the past few years. Let’s titrate out economic woes we collectively suffer and still the forecast remains far from rosy in many cases. General dentists have to some extent solved their busyness problem. They have changed their business model to accommodate the downturn in the economy. Basically, they have cut their endodontic referrals by whatever percentage they believe is necessary to allow them to keep their schedules full and sustain their bottom line. They have also expanded their business model to employ recently graduated endodontists who cannot afford to open up their own practice or find employment with an existing endodontic practice. This creates more in house income for the general dentist and gives them the cache of being able to promote to their patients… we have an “endodontic specialist” on premises. What do you think this business model does to your referring network? It should make you as comfortable as a long tailed cat in a room full of rocking chairs. After all there is an abundant supply of newly minted endodontists who willingly or unwillingly need to work as indentured serfs in general dentist’s offices to pay for their dental school loans. Your chief competitor for endodontic patients, the general dentist, can now eliminate you from his or her rolodex or data base of specialists.

I would venture to say that no matter where you practice the vast majority of periodontists & oral maxillofacial surgeons are convinced that endodontic retreatment creates a more difficult milieu in which to deliver an implant and invariably recommend extractions for teeth that have experienced endodontic failure rather than consider retreatment. Do you remember about 13 years ago when an implant institute from California made an educational CD that warned all dentists the failure to mention implants as a treatment option when discussing treatment options was a potential case of failure to inform. We are always excoriated as a specialty when we fail to consider or mention the implant option. How many of our colleagues in periodontics and oral maxillofacial surgery mention endodontics as a treatment alternative to their usual treatment of choice? You and I will never know the answer to that question because in the vast majority of cases endodontists aren’t even in the treatment loop to help the patients make informed decisions. Do we honestly think “Lunch & Learns” as well intentioned as they are can possibly create enough traction to move the pendulum back to the middle of the meter when it is continuously being pegged toward implants?  Need further proof…..look through continuing education catalogues and the ADA’s annual session CE brochure. Compare the number of courses on implants to endodontics and you will see the direction your specialty is going. The other daunting reality hitting us square in the rubber dam is that implant manufacturing companies have promotional budgets that far outstrip budgetary largess of endodontic manufacturing companies. We will never outspend them in dental schools. Should we capitulate and let them win the hearts and minds of our future dentists?

What is needed is a strategic plan to revive our specialty and take it off the critical list. A modern day “Marshall Plan” that tactically moves endodontics back into the mainstream of the dental consciousness for our graduating dental students. We need an independent group of thinkers, not just the same members of the board of directors. Isn’t it time to infuse a heterogeneous group of people into the mix? Perhaps they can produce novel ideas that hopefully germinate fresh and innovative approaches to a burgeoning problem. Has the AAE provided you with any statistics about how many root canals were done over the last 10 years? Which way do you think the graph is going? Did we complete more cases the first 5 years or in the last 5? I’m not certain we would like the answers to that question. Remember the statistical downturn is not just about the economy. How about comparing outcomes studies in root canal treatments done by general dentists versus endodontic specialists or just by endodontists . Are we afraid of the results we might obtain from research assessments of this kind? Dr. Henry Van Hassel, a man of  prodigious intellect, once said at an AAE board meeting when he was editor of the JOE, “be careful of the questions you ask…you may not like the answers”! Have we reached the point that we no longer wish to advance and support the art and science of endodontics with definitive research that will refute the nay Sayers on the other side of that proverbial line in the sand. It is time for the AAE to acknowledge the gravity of the problem we face. We have reached a “Sputnik Moment” in our storied history and we need our leadership to regenerate endodontics before the deck chairs run out of locations to rearrange them.

Respectfully submitted,

Marc Balson

Editor, New Jersey Association of Endodontists

(Part II of this editorial blog will discuss the nominating process of the AAE and how we select the future leaders of our organization)

Us and Them!

Part II

(The second in a three part editorial about the state of our specialty as this editor sees it. The opinions stated in this article are solely those of the editor and do not necessarily reflect those of the New Jersey Association of Endodontists Board of Directors or its membership. To view Part I please link to NJAE’s website at www.njae.org/ )

‘We are discreet sheep; we wait to see how the drove is going, and then go with the drove. We have two opinions: one private, which we are afraid to express; and another one – the one we use – which we force ourselves to wear to please Mrs. Grundy, until habit makes us comfortable in it, and the custom of defending it presently makes us love it, adore it, and forget how pitifully we came by it. Look at it in politics.’
Mark Twain

I found the response to my first editorial…”Rearranging the Deck Chairs” quite interesting. Apparently my perspective resonated with a significant number of my colleagues and people who were not directly posted to. Some shared their opinions openly and others demurred and expressed their comments to me without using the reply to all option. Either way I was encouraged that people thought about what I opined and cared enough to respond or rejoin to this piece. However, what was particularly telling was that with two exceptions no one on the board of directors or the executive committee deigned to respond. Nineteen out of twenty-one members of our governing elite were disinclined to make a comment whether negative or positive. Initially, I thought this strange and somewhat disappointing. Then a knowing smile came across my face because I quickly realized that this was an ‘Omertà’ a code of silence likely initiated by admonition from our executive director or perhaps by edict from our president. I had called Dr. Spatafore a few weeks ago to ask her about some aspect of governance in regards to recent nominating committee activity. I also shared with her that I was planning to write an editorial about it as I felt our nominating process and the committee responsible for its implementation appeared to me to be in need of a major overhaul. This week a reliable source informed me that Dr. Spatafore did send out an email to advise the board, the executive committee and a few of the past-presidents supportive of her agenda that some unnamed individual was going to email them material they should assiduously not respond to. You can’t make this stuff up! It is a strategic and all too common ploy by the AAE leadership to circle their wagons in a defensive posture to marginalize those who elect to openly tender constructive criticism or question any of their deliberations, decisions or management style. Is this the AAE equivalent of shunning which makes me excommunicated vitandus? Daniel Coleman the bestselling author of Emotional Intelligence and Social Intelligence wrote in the latter book about ‘US from Them’. ‘The gulf that divides US from Them builds with the silencing of empathy. And across that gulf we are free to project onto Them whatever we like. As Kaufman adds, “Righteousness, intelligence, integrity, humanity and victory are the prerogatives of Us, while wickedness, stupidity, hypocrisy, and ultimate defeat belong to Them.” ‘As an example last year I asked the AAE’s leadership about the transparency and accountability of their financial reports. I also queried why they felt the public awareness campaign assessment should continue in light of its ineffective 3 ½ year existence. The program plainly never reached its goals or realized its mission? It was clearly an evidenced based disaster. Where has this fiscal year’s assessment gone to since they fired the PR firm last year that has almost 2 million dollars of the AAE’s assessment revenues? The only thing my inquiries produced was silence. Did the executive director or the president that year give me, a past-president, the courtesy of a call to discuss this issue? No call, no email, no communication because I am “Them”. All I received was quiescent indifference.

Does anyone have a comprehensive understanding of the AAE’s finances? How could we when the annual financial report consists of a pie chart for revenue and expenses with a cursory spread sheet? We are advised to call the executive director, the treasurer of the AAE or the AAE’s CFO if we have any questions or concerns. Why should we have to jump through hoops to find out how the AAE spends our money? What the membership needs from the executive director, the treasurer of the AAE and the leadership of this organization is a line item budgetary analysis of expenses and revenues. Maybe then we can find out what happens to the estimated $400,000 annually we are required to pay the AAE for the public awareness campaign. The AAE is a 501 (c) 3 entity. A 501 (c) 3 is an American, tax exempt non-profit organization. According to the IRS “exempt or political organizations (excluding churches or similar religious entities) must make their returns, reports, notices, and exempt applications available for public inspection. The organization’s Form 990 (or similar such public record as the Form 990-EZ or Form 990-PF) is generally available for public inspection and photocopying at the offices of the exempt organization, through a written request and payment for photocopies by mail from the exempt organization, or through a direct Form 4506-A Request for Public Inspection or Copy to the IRS of the exempt organization’s filing of Form 990 for the past three tax years”. Is it unreasonable for the members of this organization to have the right to know how their dues, assessments and foundation donations are utilized?

For our members to restore and maintain our faith with this Board and our Executive Director our leaders need to create a more transparent and open modus operandi. They should be willing to communicate what the objectives of the organization are and how they are to be achieved. Most importantly this shared knowledge must include how the finances of the American Association of Endodontists are handled. Madame President and Mr. Drinan is it not time to tear down that wall of secrecy and not consider every request for financial information as an assault on your integrity and competency. Perhaps our association’s leadership suffers from an acute case of organizational blindness? Is their vision obscured to the reality that exists for vast numbers of our membership? Do we need a survey and a Knowledge Based Governance committee to understand that endodontic busyness amongst our members has seen a decrease of 15% to 50 % over the past 12 months?

With apologies to Abraham Lincoln permit me to modify a quote by him… The AAE will never be destroyed from the outside. If we falter and lose our way, it will be because we have sowed our own destruction.

The Nominating Committee

Recently the 2010 – 2011 Nominating Committee completed their charge as outlined in the AAE’s constitution; article XI on Committees. According to Section 6 the nominating committee “shall be composed of the three immediate past-presidents and two sitting members (non-officers) of the Board of Directors. The senior past-president shall serve as committee chair. The two sitting directors shall be elected by closed ballot and they shall serve a term of one year…etc.”

By all accounts Dr. George T. Goodis is a very decent fellow and a dedicated leader of the AAE and organized dentistry in the state of Michigan. He has served this organization well in a multitude of capacities. Dr. Goodis has been a member of several AAE committees; a member of the Board of Directors; a Director and past-president of the College of Diplomates, and he is now the secretary of our association. An informal survey conducted by me with some of his colleagues on the board of directors and the executive committee indicated that he has served our organization well in this position. However, when the Nominating Committee report was sent out to the past and present leadership of the AAE his name was conspicuously missing from the list of AAE sanctioned executive committee candidates for 2011 – 2012.

As the late Paul Harvey was known to say….”and here is the rest of the story”. Dr. Goodis, weeks before the Nominating Committee met, was asked by the Executive Director ED) of the AAE if he was still interested in serving on the Executive Committee (EC). That’s a strange question coming from the ED who also just happens to be an ex-officio member of the Nominating Committee (NC) and would be expected to be more than just an arms-length from any discussions with or pertaining to candidates available to be elected to the EC. I would think if George had any reservations about continuing to serve on the EC he would have spoken to his colleagues on that committee, the EC, or perhaps to this year’s chairman of the NC, Dr. Shepard S. Goldstein.

The two board members serving on the NC now have been on this committee collectively for 5 years. One board member has served his entire term (3 years) on the board of directors as a member of the NC. That is three consecutive years running. The second board member has now completed his second successive year of service on the NC. I wonder if he will match his colleague next year and serve for a third term too. The three immediate past-presidents of our organization also serve three consecutive years running on the NC. Do you begin to understand the inherent structural flaws in our nominating process? This is an incestuous selection activity at best and fundamentally a non-representative governance model at worst. No other specialty organization allows the perpetuation year after year of the same group of people to vet, qualify and decide who comes on the EC, who stays and who gets thrown under the bus. Would anybody who reads this tome be shocked to learn of the jockeying for position, back door politicking and the political capital cashed to make sure their girl or boy get the keys to the executive bathroom? Need some verification of that statement. Let us look at the last decade of past-presidents. With the notable exception of Dr. Mahmoud Torebinejad, a member of the old District VI and Dr. Gerald N. Glickman, a member of District V, we have had 4 presidents from District I; 1 president from District II; and 3 presidents from District III. I could go further and break them down by states but I believe you get the point. The method we now employ to choose our leadership is flawed, susceptible to cronyism and the least representative way to vet our future leaders in a fair and democratic fashion. It is my contention that Dr. George Goodis didn’t lose his position on the EC because he was a poor leader but rather because he didn’t have the right friends in high places. How convenient it is for them to wrap themselves in a ‘cloak of confidentiality’. When the same people are continually placed in a position to select the officers of their organization and the individual who administers to the day to day activities of that association is also the liaison to that committee, then ‘Houston we have a problem’. The Old Boy/Girl network is just chaffing at the bit to influence the outcome of the election and thanks to the structural design of our nominating process they occasionally see some positive wish fulfillment toward that end.

I’m not running for any office, belong to no committees in the AAE and I have no vendetta against the leaders of our specialty organization. What I do have is a strong and abiding hope that the leadership of the AAE will consider what I have penned on these pages and proffer some new governance paradigms that will enfranchise all the members of our organization. Equally important is the wish that they can summon the leadership skills they have been chosen to exercise and cease to consider everyone who has a dichotomous viewpoint as ‘Them’.

If they can’t or won’t change their modus operandi then perhaps Dr. Martin Trope’s statement said in jest may yet come to pass. ‘I tell my friends that this may be one specialty where you could know the founders of the specialty (IB, Seltzer etc.) and also know the ones who closed the specialty all in one career.’

Respectfully submitted,

Marc Balson

Editor, New Jersey Association of Endodontists

(Part III of this editorial blog will discuss the dental operating microscope and why the CODA teaching standard concerning it needs to be changed)