New Balance, New Beginning

Law Restricting MOC Discrimination Offers Chance to "Take Back Part of Our Profession"

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Tex Med. 2017;113(10):22-29.

By Joey Berlin
Associate Editor

Time regained, potentially thousands of dollars saved, a burden lifted, and balance restored: One of medicine's biggest victories during the 2017 Texas legislative session represents all those things, and it also could represent a new beginning.

Senate Bill 1148, which restricts the use of maintenance of certification (MOC) as a condition of caring for patients on insurance panels and hospital medical staffs, is still months from taking effect, and it'll be much longer than that before its true impact will be known. But the law puts Texas among the leaders in a burgeoning national movement to reduce the MOC burden. 

In many doctors' eyes, maintaining board certification has been too time-consuming, too costly, and too professionally irrelevant for too long. For them, a law severely restricting hospitals' and insurers' use of MOC status for hiring, credentialing, and contracts, as Senate Bill 1148 by Sen. Dawn Buckingham, MD (R-Lakeway), does, is a gigantic win. In 2016, the Texas Medical Association's House of Delegates adopted a resolution backing legislation to address MOC discrimination. This year, with TMA's strong support, that legislation became reality.

"This is an opportunity to stand up and take back a big part of our profession," Senator Buckingham said. 

A National Wave

Recertifying with one of the 24 member boards of the American Board of Medical Specialties (ABMS), or with the American Osteopathic Association's Bureau of Osteopathic Specialists, has become a bear for physicians, with many questioning the cost and benefit of MOC. (See "MOC Revolution," September 2016 Texas Medicine, pages 26–32.)

Many physicians even see MOC as more of a financially enriching venture for the boards. Houston neurologist Kim Monday, MD, testified for TMA on the bill in April, telling the Senate Business and Commerce Committee that physicians can spend as much as $10,000 on MOC because of "fees, materials, travel, and time away from the practice."

But hospitals and health plans that require MOC for credentialing, admitting privileges, and contracts have made dealing with MOC a necessary evil for many doctors. ABMS, for its part, maintains that continuing certification is a vital piece of keeping physicians current on their education.

"They all claim that it's voluntary," said Houston urologist Ori Hampel, MD, who proposed the resolution in TMA's House of Delegates in 2016. "Well, if it's voluntary, then you shouldn't be required [to do] it to get your hospital privileges. The problem is, if it's required for hospital privileges, and then hospital privileges are required to participate in health care plans, then it's de facto licensing."

Dr. Hampel reflects the feelings of many Texas physicians when he says MOC doesn't decrease medical negligence or improve the quality of patient care.

"It provides no value to the physician or the patient," he said. "And there's nothing about answering minutiae on a test of trivia that makes one a better doctor. It doesn't make one a more competent surgeon. It doesn't make one a more capable physician. The minutiae we can look up on Google or our cell phones. We don't have to go through courses to memorize this stuff, at least to prove we're competent doctors. That's not where the competence of a physician comes from."

SB 1148 ― which was sponsored in the House by another physician-legislator, Rep. Greg Bonnen, MD (R-Friendswood) ― generally prohibits health plans from using MOC as a requirement for contracts; prevents the Texas Medical Board from using it as a condition of licensure or license renewal; and prohibits hospitals and other health care facilities from using MOC status for credentialing, hiring, or retaining physicians. However, there are exceptions:  

  • Facilities that are required by law, rule, or certification or accreditation standard to use MOC;
  • Medical schools or comprehensive cancer centers as designated by the National Cancer Institute; and
  • When the voting physician members of an entity's organized medical staff vote to authorize the use of MOC. 

SB 1148 follows the lead of an Oklahoma measure, which became law on Nov. 1, 2016, that prohibits physician licensure boards from requiring MOC as a condition of licensure, payment, employment, or admitting privileges at hospitals.

Putting into the hands of a hospital's physician leadership whether to require MOC is a key aspect that sets Texas apart from other states, TMA lobbyist Dan Finch says.

Mr. Finch says the blowback against MOC requirements is "bubbling up from grassroots doctors who feel that the process is too expensive, and the educational offering lacks relevance to their daily practice." 

As of July, close to 10 states had passed laws prohibiting MOC as a requirement for licensing, hospitals, and insurance panel participation, according to the American Medical Association. Along with Oklahoma and Texas, others include Georgia, Missouri, and Tennessee.

"It's definitely a growing trend," Senator Buckingham said. "The general public is getting aware of the situation that takes physicians away from their patients and away from their families and costs them a whole bunch of money to participate in; all of that while not improving the quality of health care at all."

In presenting SB 1148 in her first year in the legislature, Senator Buckingham drew on comments she had heard from numerous physicians, not only in Texas but elsewhere. Stories abound of physicians even timing their retirement to coincide with their required certification renewal.

Dr. Buckingham's personal experience with MOC as an ophthalmologist played a role, too.

"Part of my maintenance of certification was a practice improvement model that took about 100 hours of mine and my staff's time just to complete, and it required the submission of data about my patients," Senator Buckingham said. "That was one of those things that I thought was incredibly unfair and inappropriate."

Dr. Monday belongs to three boards and says she completed her initial certification around 1997. When she recertified about 10 years later, "that was just a test. It wasn't much more. And then in the last 10 years, it's just become more and more onerous in terms of the requirements, and the end result is not better for patients."

She already had signed up to recertify for her third MOC exam ― for adult neurology ― this November, and says she'll do it even with SB 1148 taking effect next year.

"But I'm hoping that all of the specialty boards have received the message loud and clear that the requirements need to be scaled back, and it needs to financially make sense for our physicians who are already hit with so many administrative burdens."

Not an End for Education

Physicians who see MOC as a cash cow for the certifying boards received more ammunition for that claim in August, when the Journal of the American Medical Association (JAMA) published a research letter examining fees that the ABMS member boards are charging physicians for certification, including MOC, and the revenue and expenditures of those boards. The member boards that JAMA examined reported a combined surplus of $24 million in fiscal year 2013, and their assets exceeded their liabilities by hundreds of millions of dollars. 

Negative perceptions of the MOC process can even extend to grandfathered physicians whom it doesn't affect. Houston neurologist Steve Croft, MD, says he was among the last group for whom board certification became a lifelong credential in the early 1990s. Hearing the stories from colleagues about how onerous maintenance of certification is, Dr. Croft readily says he dodged a bullet. But even without a personal stake, he traveled to Austin to testify on the MOC legislation.

"I've only done this once before for a totally unrelated bill, but I felt so strongly that even though I'm grandfathered, [I felt] like we need as many doctors to show up as possible," he said.

Importantly, ending many forms of MOC discrimination doesn't mean ending MOC, nor does it mean the end of continuing medical education (CME). Dr. Croft has no doubt physicians freed from MOC preconditions will be able to stay current on the latest skills and knowledge.

"Of course, the [medical] board is the ultimate police for physicians, but we [also] deal with insurance companies. We deal with patients. We deal with case managers. We deal with hospitals. There are many eyes on physicians, so if someone is doing something that is way off track, it will be picked up," he said. "There are many ways to keep up. There's endless continuing medical education. There's also the alternative board, the National Board of Physicians and Surgeons, which will take your CME in your specialty and give you a certificate."

To Dr. Monday, the biggest potential pitfall to the MOC law is the perception that doctors won't be compelled to keep refreshing their knowledge.

"Frankly, my biggest fear about this from the very beginning is, I do not want the public to think that doctors don't participate in continuing education," she said. "In this day and age, we do that every single day. We have the internet, we have PubMed, we have our journals. Physicians are incredibly well-educated.

"We've had to up our game in the past 20 years; otherwise, you're not able to take care of patients."

Concerns and Opposition

While defending the value of continuing certification, ABMS also points to improvements its boards have made, and are continuing to make, to the recertification process. ABMS expressed its disappointment after SB 1148 passed.

ABMS said in a statement that the bill "establishes dangerous precedent by allowing the state to interfere with physician professional self-regulation, as well as dictating to independent organizations ― such as insurers and hospitals ― which quality standards they may use."

ABMS provided Texas Medicine with a written statement from its president and chief executive officer, Lois Margaret Nora, MD. "Government intrusion on professional self-regulation and interference in private organizations' right to choose which credentials and quality indicators are best is concerning," the statement said.

Another physician lawmaker, Rep. John Zerwas, MD (R-Richmond), praised Senator Buckingham's work in ultimately "addressing an issue that needed to be addressed," but he had concerns with SB 1148 at its inception. 

The original version explicitly barred hospitals from differentiating between physicians based solely on MOC, with no provisions allowing for a medical staff to make a decision otherwise. Although other stakeholders told him taking out that language would gut the bill, Representative Zerwas felt the decision on whether to require MOC "needed to be the purview of the organized medical staff at any given hospital, and it needed to be the purview of any given specialty at any given hospital." A practicing anesthesiologist, Representative Zerwas says he voluntarily participates in MOC and has privileges at hospitals that require it.

"I said I strongly feel that it should not be against the law in the state of Texas to elevate your requirement for privileges in a hospital, such as maintenance of certification. … I said, 'That's just not right. The state of Texas has no business dictating that to the medical staff,'" he said. "And the hospitals clearly felt similarly."

The Texas Hospital Association declined to make anyone available for an interview.

Representative Zerwas says he strongly supported the parts of the law that barred MOC from being criteria for insurance panel participation or medical board licensure.

"I think we ended up in a better place with the bill, continuing to keep that prerogative of the medical staff to require participation, or not, in maintenance of certification. I think that makes it a better bill, and that's what I've heard from my colleagues at the TMA."

SB 1148 ultimately passed the Senate by a 30-1 vote, then overwhelmingly cleared the House 144-2. The law will effect Jan. 1.

"Out of the 181 legislators in the state, there were only three who voted against it," Senator Buckingham said. "So we were able to build a very broad consensus across party lines and between both the Senate and the House, and get full support for the bill."

Tort Reform-esque?

Some Texas physicians already aren't shying away from putting the new law in auspicious company. In fact, some are even comparing it to the passage of medical tort reform nearly 15 years ago.

"I would just say, from [personal observation], that doctors have not felt this strongly about something since tort reform changes," said Dr. Monday. "And I think that's because they are fatigued and tired of things that don't help their patients."

She isn't the only one who thinks of tort reform's impact when she thinks of SB 1148. Dr. Hampel says if physicians on medical staffs "take the bull by the horn and do what the law tells them they can do, which is to get rid of MOC out of their bylaws, it's going to be more attractive for physicians out of state to come to Texas."

"The Texas Medical Board could not keep up with new applications for physicians for years because there was all this tort reform," Dr. Hampel said. "This has a similar type of impact, because tort reform only has to do with money, just expense; my malpractice insurance went down two-thirds as a result of tort reform overnight and stayed at that level. This is far more reaching, because this is far more stressful for doctors. … This has further impact of affecting your retirement date."

But Representative Bonnen is cautious about forecasting MOC's impact on physician shortages and reducing the number of retirements planned around MOC.

"I think it could definitely help with that, but frankly, it's a little bit too early to judge the full impact. I still have some concern as to how this is going to play out," he said. 

For now, he added, "physicians should continue, in my view, to keep up with MOC, and I think that they need to understand that with the law that was passed, it puts the decision about whether or not to require MOC to the medical staff. And that means that they have to be engaged, and they have to take action."

Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.


Texas Strikes Back at JAMA MOC Law Slap

Just because Texas has a new law to protect physicians against mandatory maintenance of certification (MOC) tyranny doesn't mean the battle is over. This is a nationwide contest now between the specialty certifying boards and the physicians they certify. In the newly enacted Texas law, the boards see a trend that they don't like ― and that they want to stop.

In a commentary that the Journal of the American Medical Association (JAMA) published online Aug. 7, former chair of the American Board of Internal Medicine Board of Directors called Senate Bill 1148 a "threat to professional self-regulation" by physicians. Dallas internist David H. Johnson, MD, went on to write that the bill "weakens [physicians'] claim to self-regulation by establishing a precedent for additional governmental intervention into the practice of medicine."

TMA, which lobbied hard for the bill's passage during the 2017 Texas Legislature regular session, wasted no time in responding. In a letter to the editor submitted to JAMA that had not been published by press time, TMA President Carlos J. Cardenas, MD, agrees on the importance of self-regulation to his profession.

"It encompasses our responsibility and our authority to establish and enforce standards of education, training, and practice," Dr. Cardenas wrote. "We routinely defend that responsibility and authority in advocating against the intrusion of all third parties — such as government, private insurers, hospital administrators — into the practice of medicine."

But physicians in Texas and across the country, he argued, do not see the certifying boards as "self."

"They are, instead, profit-driven organizations beholden to their own financial interests," Dr. Cardenas wrote. "In fact, they are now one of the outsiders intruding into the practice of medicine."

Until the boards "completely overhaul their processes, finances, and lack of transparency," he concluded, physicians "will have no choice but to continue to seek statutory defenses against these third-party intrusions into our noble profession."

State Sen. Dawn Buckingham, MD (R-Lakeway), the author of SB 1148, also submitted a response letter to JAMA. 

"We have received gratitude from thousands of physicians across the county for passing SB 1148," Dr. Buckingham wrote. "The cry of the rank and file has been heard in many states as similar legislation is being considered. One might wonder if the boards can continue to ignore this cry for reform."


MOC Not Popular

Results from a 2015–16 survey on physician attitudes toward maintenance of certification (MOC) by the Mayo Clinic revealed: 

  • 81% believe MOC activities are a burden
  • 24% believe MOC activities are relevant to patients 
  • 15% feel MOC is worth the time and effort
  • 9% believe patients care about the physician's MOC status


Grassroots Physicians Fight for MOC Bill

Three times over the final two months of the 2017 legislative session, TMA turned to its member physicians for help in passing Senate Bill 1148 into law. They responded in droves.

With TMA emails asking them to "Rein in MOC" or "Stop MOC Tyranny Now," members used the TMA Grassroots Action Center to send almost 2,400 messages to their senators and representatives. Many others called their lawmakers' offices directly.

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