The American Board of Cosmetic Surgery Written Testimony for Medical Board of California Hearing
December 18, 2018
Alexander W. Sobel, DO, FAACS
President - American Board of Cosmetic Surgery
Past President - American Board of Facial Cosmetic Surgery
Diplomate - American Osteopathic Board of Otolaryngology - Head & Neck Surgery
Fellow - American Academy of Cosmetic Surgery
Director - American Academy of Cosmetic Surgery Clinical Fellowship Training Program in Cosmetic
Surgery
Adjunct Clinical Faculty - Pacific Northwest University College of Osteopathic Medicine and Kansas City
University College of Osteopathic Medicine

Good afternoon. Thank you for taking the time for this public hearing. Sadly, and despite the fact that
we submitted application three years ago, the review process, particularly of the American Academy of
Cosmetic Surgery’s fellowship, has all appearances of being rushed through, is lacking and appears quite
bias.
The bias comes from a lackluster effort in the review, whereas the reviewer, board certified by our
competitor, the American Board of Medical Specialties, despite being invited multiple times, never
bothered to speak with a fellowship director, visit a fellowship program, nor speak with a fellow. All of
which forces us to question original intent in according our board its rights to commercial free speech.
Much of the appearances of these actions are what the Supreme Court addressed in its decision on
North Carolina Board of Dental Examiner v. FTC, regulating bodies across the country, inclusive of state
medical boards, are now recognizing that past decisions on commercial speech may be anti-competitive
and a violation of our monopoly laws. The Supreme Court ruling stated that “this type of “selfregulation” is common among state licensing boards. But it has the natural tendency to become
anticompetitive. The Supreme Court went on to state in its opinion that State licensing boards
composed of market participants do not enjoy automatic immunity from anti-trust laws and if actions
appear anti-competitive, they can be held personally liable.
These actions clearly place the American Board of Cosmetic Surgery’s physician rights of commercial
free speech, along with our right to compete in an open marketplace gravely at risk. Even more

 concerning is how complete misconceptions, mostly driven from our opposition within the ABMS, places
patient safety and care at risk, the very care we all take an oath to protect.
There have been many false claims by our opposition that cannot go unchallenged in the public record.
Among those included are:
ABCS diplomates have inappropriate training
ABCS diplomates lack knowledge of anatomy
No one-year training leads to certification
Experience route is not valid
ABCS diplomates have higher rates of medical board violations
Fellows just assist and watch surgery
The truth and reality of the ABCS is starkly different than these claims of our opposition. ABCS
diplomates have completed an ACGME/AOA surgical residency prior to fellowship training. All fellows
are experienced and qualified surgeons prior to the start of their fellowship training. All diplomates have
full knowledge of anatomy from medical school and ACGME/AOA primary residency followed by a
dedicated cosmetic surgery fellowship. It is nonsensical to suggest that one-year fellowship does not
lead to certification. Examples include spine surgery, hand surgery, facial plastic and reconstructive
surgery, sleep medicine, among many others. Also, the experience route is indeed common in the
evolution of all boards. Many of those boards a recognized by the Medical Board of California. In
addition, and somewhat ironic, to qualify for the ABCS board certification exam, one must have either:
ABMS, AOA, RCPSC or ABOMS board certification.
To impede competition from the ABCS, our opponents, or shall we say, our competitors within ABMS,
group all physicians who call themselves cosmetic surgeons into this category and inflate the reprimand
rate without regard to ABCS certification. The rate for serious violations is the same or lower among
ABCS diplomates compared with our ABMS competitors. Major professional liability carriers, for
example, Medical Protective give ABCS diplomates an additional discount due to their lower risk pool
based on statistics and history.
ABCS diplomates sit on AMA committees pertaining to patient safety and its members contribute as
expert witnesses to state medical boards including the Medical Board of California. Multiple states have
ABCS diplomates serving as medical board members. Even California has had an ABCS diplomate serve
as a member.
Fellows are co-surgeons during fellowship with progressive responsibility and are active in every aspect
of patient care. Our fellows graduate with an average of over 600 cases.
Contrary to what has been touted, it is very common for different primary specialties to apply to one
subspecialty board, examples of which, include all of the following boards that are recognized by the
Medical Board of California:

 The American Board of pain medicine which is comprised of anesthesiology, neurologic surgery, urology
psychiatry, physical medicine and rehabilitation.
The American Board of Sleep Medicine which includes anesthesiology, family medicine, internal
medicine, pediatrics, psychiatry, neurology and otolaryngology.
The American Board of Hand Surgery includes general surgeons, orthopedic surgeons and plastic
surgeons.
The American Board of Spine Surgery includes orthopedic surgeons and neurosurgeons.
Additionally, there is our powerful competitor from the ABMS, the American Board of Plastic Surgery
which is comprised of general surgery, neurologic surgery, oral maxillofacial surgery, orthopedic surgery,
otolaryngology, thoracic surgery and urology.
It should not go unnoticed that these last six primary specialty boards that are permitted to engage in
fellowship training and eventual board certification by the American Board of Plastic and Reconstructive
Surgery have not the primary education in full body anatomy alleged by our opponents at the last
hearing. These remarks are thus, either disingenuous or, perhaps our opposition was not aware of these
pathways to their own certification, however, I must correct the inconsistency as it may have influenced
the public members though I am confident the physician members recognize its absurdity.
The bar continues to rise in physician board certification. Standards are not set by one organization as is
recognized by many states and organizations including the American Medical Association, the
Department of Labor, and Centers for Medicare and Medicaid services.
There are several recent regulatory decisions and opinions on board certification which make clear the
importance of your decision today. First of which I had mentioned earlier, is the United States Supreme
Court’s ruling on, North Carolina Board of Dental Examiners versus the Federal Trade Commission.
Regulating bodies across the country inclusive of state medical boards are now recognizing the past
decisions on commercial free speech may be anticompetitive and in violation of our monopoly laws. In
addition, state medical boards are recognizing competing boards not only meet but raise the standard of
physician board certification, enabling greater innovation in medicine that has been stifled by the
control by one organization.
As stated earlier, the US Supreme Court decision cited that state licensing boards composed of market
participants do not enjoy automatic immunity from antitrust laws and if actions appear to be
anticompetitive, they can be held personally liable. In the case of this petition, it is not merely the case
of plastic surgeons versus cosmetic surgeons, but much more broadly, the American Board of Medical
Specialties versus the ABCS. This clearly demonstrates the drive of one organization to stifle competition
through limiting its competitors rights to commercial free speech.
The U.S. Court of Appeals 5th Circuit ruled that the Texas Board of Dental Examiners could not prohibit
two dentists from advertising themselves to the public as specialists in implant dentistry. Although the
individuals have received credentials from the American Academy of Implant Dentistry, Texas State
Medical Board, under the Texas administrative code, had prohibited them from advertising as such
because the AAID was not among the nine officially recognized specialties of the American Dental
Association. The West Texas dental decision upheld these individuals’ rights to free commercial speech

 declaring that the law was unconstitutional, as it violated the defendant’s First Amendment right to
engage in truthful, non-misleading commercial speech.
In addition, on September 10th, the Department of Justice, in an opinion letter regarding a Maryland bill
to promote competition in certification explains and recognizes the importance of competition in
physician board certification. Per Robert Potter, the Chief of the Competition Policy & Advocacy Section,
Anti-Trust Division, of the Department of Justice, “The Division recognizes the critical importance of
patient health and safety and the role of state legislators and regulators in determining the optimal
balance of policy priorities as they regulate the provision of healthcare services. The Division encourages
the Maryland legislature to consider ways to facilitate competition by legitimate certifying bodies,
consistent with patient health and safety. Physicians, hospitals, healthcare consumers, insurers, and
others can benefit from competition to provide cost-effective, high-quality certification services. Toward
that end, the Division encourages drafters of the Bill to consider ways to allow for entry by additional,
legitimate certifying bodies.”
Board certification is evolving. Just as organizations within the American Board of Medical Specialties
and other certifying bodies recognized by the state of California have, the ABCS has evolved to meet the
needs of surgeons seeking certification, in its case, in contemporary safe and prudent cosmetic surgery.
Comparative analysis found that similar boards to the ABCS have been approved by the Medical Board
of California for the purposes of advertising, which would clearly direct any impartial observer to deem
our organization equivalent.
As with the American Board of Facial Plastic and Reconstructive Surgery and the American Board of
Sleep Medicine, ABCS offers a fellowship-dependent certification subspecialty that has no associated
residency programs in existence.
As the American Board of Facial Plastic and Reconstructive Surgery and the American Board of Sleep
Medicine both have had experience pathways to certification, the retired ABCS experience pathway was
far more rigorous than that of the American Board of Facial Plastic Reconstructive Surgery, which was
approved by the Medical Board of California. In fact, the ABCS procedural requirements exceeded the
facial plastic and reconstructive board by a factor of 10. The Medical Board of California granted
equivalency to the American Board of Sleep Medicine when it granted fellowship waivers.
Dr. Krauss asked at the last hearing, if the ABCS is a more robust organization today than it was at the
time of its last petition to the Medical Board of California what of its diplomates certified before this
evolution? It is of the absolute highest importance for the Medical Board of California, as it sits today, to
understand that this was a turf battle then as it is a turf battle now.
The ABCS was a very robust organization at that time. I am proud to say that our organization has
evolved, and I hope that each of you can say the same for your respective boards and certifying
organizations.
Considering the turf battle past and present, the Medical Board of California, at the time of the last
petition, found the ABCS experience route which required 1000 cosmetic surgical procedures prior to
eligibility to sit for the examination as ineligible for consideration for equivalency whereas the Medical
Board of California found the 100 mixed plastic and reconstructive procedures sufficient to grant the
American Board of Facial Plastic and Reconstructive Surgery equivalency for the purposes of advertising.

 I hope that the current Medical Board of California would consider 1000 dedicated cosmetic surgical
procedures as exceeding the requirements it endorsed of the American Board of Facial Plastic and
Reconstructive Surgery of a mere 100 mixed procedures.
As the American Board of Facial Plastic and Reconstructive Surgery, the American Board of Sleep
Medicine, and the American Board of Medical Specialties have not stripped diplomates of their
certificates as they evolve, nor has the ABCS.
Such action, or absence of evolution, would absolutely restrict the advancement of medicine and further
infringe upon the right of commercial free speech of highly qualified physicians and their organizations.
The Medical Board of California has granted and continues to grant equivalency for the American Board
of Facial Plastic and Reconstructive Surgery experience-route diplomates.
Please also remember that many ABMS-certified physicians have lifetime certification; perhaps some of
you are among them. The ABMS has not stripped them of their certification simply because they were
certified under pathways that have evolved to include, recertification or maintenance of certification.
Nor has the Medical Board of California restricted their right to commercial free speech.
Furthermore, the Medical Board of California accepts, for example, emergency medicine physicians who
have not completed a residency in emergency medicine. The American Board of Emergency Medicine
did not strip its previously certified diplomates of their certification simply because residency training
became required. In fact, many of the ABMS legacy Emergency Medicine Physicians are Directors and
leading those very residencies in Emergency Medicine.
The law put into place in California in 1990 was enacted to prevent deception of the public. The
American Board of Cosmetic Surgery agrees with the importance of transparency in certification. The
American Board of Cosmetic Surgery has always required that diplomates advertise the area of their
certification. For example, many ABMS/AOA board certified surgeons were eligible for the facial
cosmetic surgery certificate via the experience route when it was available, not general cosmetic surgery
certificate. In such instances, the diplomate is required to advertise the specific area of certification as
opposed to the general statement “board certified by the American Board of Cosmetic Surgery.” The
ABCS is not deceiving anyone.
As with the American Board of Facial Plastic and Reconstructive Surgery the American Board of Cosmetic
Surgery requires the completion of primary surgical training. The review report has been critical of the
ophthalmology group. Yet, this cannot be any more black and white. Ophthalmology is an ACGME/AOA
surgical residency. Oculoplastic fellowship adds substantial surgical experience. Two years of cosmetic
surgery fellowship following such experience affords a median of approximately 1200 procedures, in
addition, which exceeds postgraduate year 7 status.
Our response clearly outlines the assertions including the requirements and recommended by the ad
hoc committee, appointed by the American Academy of Cosmetic Surgery, having reviewed the ACGME
requirements for all the different specialties that can apply to the general cosmetic fellowships. The
process of assigning oculoplastic surgeons the second year of surgical training in cosmetic surgeon was
not arbitrary and this process was clearly defined via the ad hoc committee.
AACS fellowships provide critical academic support in cosmetic training. The ABCS is very proud to
supplement its application with the AACS information on scholarly activities and appointments of its

 faculty as well as the academic support afforded its fellows in training. We regret that the format of this
information did not the satisfy the expert report, however three business days-time, over the
Thanksgiving week when many take vacation time for their families, is insufficient to homogenize and
collate information that could have been requested three years ago when we entered our application.
However, we provided this information, nonetheless.
Also, please note that it is critical to understand that most medical libraries do not have sufficient
cosmetic surgery titles to support fellowship training. AACS fellowships meet this need as such material
is afforded the fellows that would otherwise be unavailable in the hospital-library setting.
This is crucial to support greater patient safety and care. It is indeed useless to a cosmetic surgery fellow
to visit a university medical library, though all have such access through the required faculties’ academic
appointments, that has little to no cosmetic surgery texts. Please understand that multivolume plastic
and reconstructive surgery texts that have a volume, usually the last and smallest volume, on cosmetic
surgery, is insufficient for fellowship training, preparing for ABCS examinations, or safe practice in
cosmetic surgery.
Duty limits and moonlighting are of the utmost importance to the American Academy of Cosmetic
Surgery as opposed to the false conclusions in the supplemental fellowship evaluation report. The AACS
guidelines are presented and supported within the response letter. The AACS is clear and adamant on a
limit of 80 hours in a workweek and that moonlighting may not interfere with the fellowship or the duty
hour limits. Training in cosmetic surgery is inherently unlikely to present material challenges to the
standard but it is required, surveyed, and enforced, nonetheless. Fellows’ compliance with the standard
with or without moonlighting, is strictly mandated. This is verified during the site visits as required by
the AACS in multiple formats. Though the ACGME is willing to rely on residency logs, which may or may
not be at times falsely entered, the site survey is required to examine the fellows’ schedule as well as
case logs and interview key staff in the office as well as the fellows themselves to ensure the standard is
being met and not only alleged to be. In this manner, we adamantly feel that the AACS oversight is much
more rigorous than the ACGME oversight which requires only paperwork. The ABCS is well aware of the
fact that many ACGME programs no longer are subjected to site visits. The AACS fellowship directors
convened this past January to discuss the removal of this expensive and time-consuming part of the
fellowship review process. It was indeed the fellowship directors that agreed en masse that site visits
are a critical part of program evaluation as substantive information beyond written records can be
ascertained on site. The fellowship directors were also against using just telephonic interviews to
supplement written site evaluations declaring that in person observation is too important to abandon.
We do feel that the ACGME, in this manner, is under evaluating their residency programs, and should
reconsider the value of active site visitation to ensure training guideline compliance. We are also
disappointed that the Medical Board of California’s reviewer did not bother to conduct a site visit for a
Fellowship Program that was unknown to him, despite the open invitation to visit any one of his
choosing.
As with the ABFRPS and many ABMS certifications, the American Board of Cosmetic Surgery certifies
candidates engaged in training with leadership positions within board organizations or its associated
academies or societies. Included in our response letter is the process where evaluations by the
fellowship review committee mitigates conflict of interest.

 There are critical patient safety needs that are fulfilled by the ABCS. Training, experience, and
methodical certification in cosmetic surgery is both invaluable to public safety and is not being
adequately performed via the ACGME and ABMS.
Equivalency, in the context of the law and regulation, is not to be defined or interpreted as identical, but
of equal value. There are several differences inherent to accredited ambulatory surgery center-based
training from hospital-based training that have been highlighted in our last presentation and responses
as they serve to the advantage training, experience, and certification to the highest level in cosmetic
surgery.
Contrary to the assertions presented by competitors and opponents of the ABCS application, the AACS
members are not ABCS diplomates unless they are duly certified and maintain such certification. I expect
the Medical Board of California and its expert reviewer understand this distinction, however, with this
misunderstanding pervasive in the testimony of our opposition, I respectfully submit this clarification.
Why is there such opposition to the ABCS? First, these are elective surgical procedures and patients see
providers directly rather than by a referral network.
Number two, revenue: our competitors and opposition from ABMS, do not want to give up the money
these procedures generate for their diplomates that serve to secondarily support dues and
contributions for our opposing organizations. Most are not covered by insurance and are directly paid by
the patient.
Number three, how does one prevent competition? Commercial free speech restriction provides an
unlawful, but handy pathway, all of which is driven by our competitors within the ABMS under the guise
of patient protection. In reality it is the means to silence our voice directly to the public to ensure
marketplace control and regulatory capture.
Disallowing the ABCS physicians’ right to commercial free speech, when we meet all the criteria
demanded by the State of California, places the very issue of patient care safety at risk- the issue that
we have a collective duty to protect.
Competing boards within the ABMS all too often wish to make this an us versus them battle; this is a
battle that is for control, power and financial gain rather than patient safety and care. If this were about
patient safety our opposition would be seeking to restrict our ability to practice. They are not doing this,
in fact, our opposition, at the last hearing said that we may go on continuing our scope of practice,
however we should not be allowed to state or advertise that we are board certified. Our opposition,
therefore, has summed up their very intent, which is not to protect the public from the procedures and
scope of practice in which we engage, but to restrict our commercial free speech in advertising our
board certification.
Patient safety is clearly at stake; please do not let your bias as either an ABMS certified physician or your
experience predominantly with ABMS certified-physicians cloud your ability to duly evaluate our
organization. It is frequently reported that Aesthetic surgery remains a weakness for many plastic
surgery residency programs as aesthetic procedures are often performed in private practices.
This fact is highlighted by the predominance of aesthetic surgery fellowships that are based in private
practices that are not ACGME-accredited. Aesthetic fellowships remain popular training opportunities

 for graduates to obtain additional credibility and confidence performing aesthetic surgery. Significant
variability persists for many aesthetic procedure categories during plastic surgery residency training.
Greater efforts may be needed to improve the aesthetic surgery experience of plastic surgery residents.
These are not our words but from the Aesthetic Surgery Journal 2017 volume 37(5) pages 582 to 587,
Disparities in Aesthetic Procedures Performed by Plastic Surgery Residents.
Further, from A Survey of Cosmetic Surgery Training in Plastic Surgery Programs in United States from
Plastic and Reconstructive Surgery 122:1570 in 2008, the information collected revealed significant
differences in opinions between program directors and senior residents. Senior residents felt deficient in
facial cosmetic, minimally invasive, and recently developed body contouring techniques. On the basis of
these results and the authors’ experience in resident education, changes in cosmetic surgery training are
suggested.
Fewer plastic surgery programs offered a specific cosmetic surgery rotation in 2009 as compared with
2006. Residents received only 3 to 4 months of cosmetic training when such rotations were allowed,
from Cosmetic Surgery Training in Plastic Surgery Residency Programs in the United States: How Have
We Progressed in the Last Three Years? This was in follow-up to the preceding data.
From A Review of General Cosmetic Surgery Training Fellowship Programs Offered by the American
Academy of Cosmetic Surgery, as published in the Journal of Oral and Maxillofacial Surgery in 2015 the
conclusions included that dedicating one’s practice exclusively to cosmetic surgery requires additional
post-residency training owing to the breadth of the field. The AACS has created comprehensive
fellowship programs to fill an essential part of the continuum of cosmetic surgeon education, training,
and experience. This builds on the foundation of their primary board residency program.
As presented in the last hearing, we demonstrated the strength not only in the median number of
procedures participated in by fellows in cosmetic surgery - which is in the mid-600s as opposed to 150 in
plastic and reconstructive surgery programs – however, our trainees have already been trained as
qualified surgeons and are at a postgraduate training year that is greater than plastic and reconstructive
surgery residency and means that our fellows are at a level of maturity that plastic surgery residents
have not yet attained. In other words, plastic and reconstructive surgery residents are residents when
they are receiving their cosmetic training, limited as it is as per their own research, whereas AACS
fellows have already completed a primary surgical residency.
We are gravely concerned and disappointed by such opposition from our competitors within ABM. The
clear anti-competitive intent and bias truly prohibits the enhancement of patient safety and care,
especially within a specialty attracting under-qualified doctors wishing to capitalize on consumer
demand and profit from offering cosmetic procedures, despite minimal or no training in cosmetic
medicine.
We must work collectively to ensure patient safety; it is for that very reason that the ABCS was founded
and continues to exist. It was created because no board certification was adequately certifying surgeons
in cosmetic surgery. Yet procedures are performed more and more by under-qualified practitioners. As
can be seen in the recent Supreme Court decision on anticompetitive practice of state boards along with
the previously mentioned September 10th Department of Justice, Chief of Antitrust’s opinion, prohibiting
competing boards such as the ABCS, that meet today’s higher standards in California’s criteria in

 physician board certification, perpetuates the growth of a monopoly and anticompetitive practices that
stifle innovation in medicine and places the very patients we take an oath to protect at great risk.
Our competitors and opponents, as stated in their testimony last hearing, are not trying to restrict us
from performing cosmetic surgery, they are trying to prohibit us from advertising our board
certification. However, as demonstrated by an exacting certification program, a now historic but
exceedingly rigorous experience route, high PGY training level, high procedural number, depth and
diversity in fellowship training, why would the Medical Board of California not want the California public
to be allowed to see that a surgeon was certified by the American Board of Cosmetic Surgery?
Wouldn’t the Medical Board of California prefer to avail its public of visibility to this certification, helping
patients find a provider that has been appropriately trained in cosmetic procedures? Would the Medical
Board of California prefer that a patient not be able to see the difference between a practitioner trained
at a weekend-course in liposuction versus a surgeon, with primary ACGME/AOA residency training, a
primary surgical board certification, a subsequent rigorous one year dedicated cosmetic surgery
fellowship training program with median of over 600 cosmetic procedures, a psychometrically evaluated
and validated oral and written examination, ongoing monitoring of adverse board action in any state via
the FSMB, maintenance of certification, as well as continuing medical education dedicated to cosmetic
surgery?
Furthermore, if the Medical Board of California has concerns about ABCS diplomates who were certified
during the evolution of the ABCS by the experience route please be advised by evidence provided today
and in our response to the expert’s supplemental questions, that our experience route was far superior
to that of the American Board of Facial Plastic and Reconstructive Surgery, an organization that was
approved for equivalency in advertising by the Medical Board of California.
I urge you to vote for the truth and not in favor of our ABMS competitor and opposition’s agenda. The
bill that was put in place in 1990 was to prevent deceptive advertisement. The ABCS is not deceiving
anyone. Limiting advertising board certification to one group is clearly anticompetitive and does not
serve public interest. Only through collaboration, seeking the highest level of training, performance and
integrity, will we give the public the best and safest results in cosmetic surgery. Credible certifying
entities should work together to educate and build awareness for the public to better ensure patient
safety and care.
Allow the ABCS it’s right to commercial free speech. We meet all the criteria demanded by the State of
California. Our training and certification processes well exceed today’s standard and that of similar
organizations approved by the Medical Board of California. We have presented ourselves openly and
comprehensively to the scrutiny of the Medical Board of California for the last three years, since our
submission. Respectfully, and earned through thorough affirmative argument and exhaustive
evidentiary support, I, as the president of the American Board of Cosmetic Surgery, request a motion
and vote to approve our request for equivalency for the purposes of advertising.