On September 17, a federal district court in New York sent the message that in the empire state, an emergency physician must be residency-trained to be considered “board certified.” The court granted summary judgment against the American Association of Physician Specialists (AAPS), sponsors of the BCEM examination, who had argued that the New York Department of Health violated the 14th amendment’s equal protection clause by failing to recognize its medical specialty certification.

This case has been nine years in the making. In 2000, The Patient Health Information and Quality Act of 2000 required the New York Health Department to collect information and create individual profiles for licensed physicians “in a format that shall be available for dissemination to the public.” These profiles were required to include information on board certification. In 2001 the department defined board certification as “a specialty or subspecialty in which a physician is certified” by various medical specialty board associations. Although a broad definition, AAPS never made this cut as a medical specialty board. As a result, the AAPS certification was excluded on New York’s publicly available physician profile database.


According to the lead defendant, Robert Barnett, Director of the Office of Health Care Quality and Safety, the decision to exclude the AAPS certification came originally on recommendation by the Federation of State Medical Boards, a national organization representing the 70 medical boards of the United States. When asked to change this regulation, Barnett declined, citing the discrepancy in certification requirements between the AAPS and other emergency medicine specialty board association. Specifically at issue was the lack of a residency requirement. In place of a residency, AAPS offers emergency physicians a practice track; any physician who has completed five years of practice in emergency medicine and has passed the AAPS exam can be recognized as a specialist. When Barnett sought the opinion of other medical organizations in New York the answer came back unanimously against allowing the AAPS designation count as “board certified.”

In presenting their argument the AAPS brought forward several physicians who they contended had suffered a professional handicap due to the state’s policy. AAPS held the department responsible for these setbacks and argued that Barnett’s decision to decline AAPS certification was “irrational” and insufficiently rigorous.

While many specialties have recognized practice-based tracks in the past, the court noted that these tracks closed as available residency slots became sufficient. While some suggest that a shortage of physicians still necessitates the practice track, Tom Scaletta, immediate past president of the American Academy of Emergency Medicine, firmly disagrees.

“The truth is that there are enough emergency physicians,” says Scaletta. “We are in a steep learning curve state with regard to working with scribes and midlevel providers and each can extend emergency physicians by about 50%. We are seeing the market place and national reform effort create more choices for non-urgent cases. So, the non-boarded emergency physicians will have plenty of opportunities to use their primary care certification and desire to deliver unscheduled care.”

While the definition of “board certified” has not changed in New York as a result of this case, Barnett did add a section to the physician profile database called “professional memberships” which emergency physicians can use to list their AAPS specialty certification. In a written statement, William Carbone, CEO of AAPS, called this designation “erroneous” and suggested that the case would be appealed.

“While we are disappointed in the District Court’s decision,” said Carbone, “we believe the real victims in this dispute are the citizens of New York who rely on this website information to make sound physician choices based on accurate and reliable information . . . We believe that AAPS/ABPS will eventually find relief from the discriminatory activities of the State of New York when this decision is more closely examined by a higher court.”