It’s been a rough few weeks for physicians in this year’s first state battles against forced Maintenance of Certification. The good news is that 13 states now have pending legislation to limit the power of the ABMS over physicians. These bills are coming up in red states and blue states, sponsored by democrats and republicans alike. Maryland even has bipartisan sponsorship of their bill. The bad news is we physicians have a steep learning curve, as we’re finding out that hospitals, insurance companies, and the ABMS are incredibly powerful and organized in their lobbying efforts.
The past few weeks have produced disappointing but instructive failures in Oklahoma, Tennessee, and Florida. While heartbreaking to watch, there’s much to learn from these states as we all move forward. As testimony to the true grass-roots nature of the MOC battle, each of the 11 states are trying different legislative angles. There is no “template” being used. This is both exciting to see, and a bit nerve-wracking. The states are a “laboratory of democracy”, and this MOC battle demonstrates this, as each state tackles the issue in different ways that best suit their legislative climate.
Oklahoma stunned everyone last year when they passed the first Right to Care legislation protecting patients and their doctors from MOC red tape, in bipartisan fashion, without a hitch. Unfortunately, the language was not as tight as first thought, and hospitals found wiggle room to continue forcing MOC on some doctors while exempting “grandfathered” doctors. Oklahoma HB 1710 was introduced this year to clarify the language for hospitals.
The bill looked like a slam dunk. The hospitals didn’t seem to oppose it, the medical society didn’t even make it a priority for physicians to call prior to the vote. In the final 24 hours before the vote, the ABMS and the hospitals went on a lobbying and misinformation tirade, pouring incredible amounts of lobbying pressure and money upon the legislature. (ABMS and Hospital Talking Points Found Here.)
Physicians were caught off guard (because we work), and were completely flatfooted to respond to such an outpouring of lobbying power and misleading information. In the end, HB 1710 failed miserably 71-22. Oklahoma’s MOC law from last summer still stands, but in legal limbo, likely needing an Attorney General’s guidance on what the law means.
The takeaway point here is that the ABMS will spare no expense to stop state legislation. The ABMS will ignore the rights of physician diplomates and will instead work together with hospitals and insurers and lobby for the “rights” of hospitals and insurers to force doctors to buy their MOC product. This is stunning mission creep on the part of ABMS and violates their claims upon the “voluntary” nature of MOC, but is not surprising given the money involved.
ABMS plus the 24 subspecialty boards currently have $1 billion in assets. This is a high-stakes game, and the lobbying effort in Oklahoma shows they will outspend us at every turn. They know we have real jobs, and can’t abandon patients and cancel surgery on short notice, so they will lobby last minute in ways we cannot. This means we need to start personal conversations with our lawmakers early and often about MOC. We can’t rely on medical society lobbyists, we need to make the calls ourselves and get our colleagues to call as well.
Tennessee started out very strong this session with an elegant MOC bill SB 298, sponsored by Senator Richard Briggs. If you don’t know who this guy is, just Google him. This is the guy you want sponsoring your MOC bill: Cardiothoracic surgeon, army trauma surgeon, Bronze star, the physician that treated ABC anchor Bob Woodruff when he was injured in a bomb blast in Iraq, —on and on, just a class act. The hospitals and insurers had such a fit and lobbied so hard against the bill, pushing delay upon delay, that the senate committee had to strip any mention of hospitals and insurers from the bill for it to move forward. The sad, impotent Tennessee bill now simply says that MOC can’t be required for a medical license. Which…it never has been required. In fact, MOC isn’t required for a medical license anywhere in the country. So Tennessee wrote a bill outlawing something imaginary.
The takeaway point here is that hospitals and insurers desperately want to force MOC on “their” doctors. I have no idea why, but they do. Perhaps it’s a way to control doctors, perhaps it’s just a marketing ploy, i.e. “all our doctors are board certified”. Perhaps it has something to do with NCQA making ABMS board certification a HEDIS measure (funny how that happens, when the president and founder of NCQA is also on the board of ABMS). But for true reform, we have to take on the hospitals and insurers. What good is a medical license if we can’t practice in a hospital or participate with insurance companies without being coerced to participate in ABMS MOC?
Comprehensive MOC legislation must have three components if it is to ensure MOC as a voluntary program: it must prohibit MOC from being required for a medical license as a preventive measure, but must also prohibit MOC from being required for hospital privileges and insurance reimbursement because this type of coercion, discrimination, and harm is happening now. If any of these three components are missing, physicians can still be forced to participate and pay in order to work: they will not be free.
For states that have to settle with legislation that only prohibits requiring MOC for a medical license, don’t settle for long. Keep pushing. Kentucky, Missouri, and North Carolina passed this type of limited legislation last year. Maryland, Rhode Island and now Tennessee are likely to pass this type of weak legislation this year. Don’t settle, keep pushing for more next year.
Florida. Oh Florida. I don’t even know what to say. The story of Florida’s MOC legislation is just plain bizarre, not quite Florida Man bizarre, but still…close. Florida had fantastic MOC legislation with SB 1354, it was comprehensive and beautiful. Then it went to committee and everything went sideways.
The health policy committee “amended” the legislation, by erasing every single word of the bill and replacing it with their own language directing the state to regulate the subspecialty boards, with a plan to control MOC rather than ensure its voluntary nature. The language now allows doctors to be forced to do MOC, so long as the board registers with the state, is a 501c3, has a brick and mortar building with full-time employees, requires ongoing “practice improvement modules”, charges no more than $500 every other year, and doesn’t require additional testing, plus whatever extra regulations the state wants to add at a later date. If a board does not comply with these requirements and get certified through the state of Florida, Florida doctors can no longer call themselves board certified in that specialty.
This tactic is so out of left field, I can’t make heads or tails of it. On one hand, I chuckle at the idea of the certifying boards having to comply with certification themselves. On the other hand, for boards that spend a little extra money complying, they will have the legitimacy of the state behind them. Like all forms of regulation, it always favors the “big dogs”. Despite public protests to the contrary, big corporations like regulation and often lobby for more regulation to stifle competition, knowing start-ups don’t have the funds to wade through the red tape. A situation like this with open-ended regulations will favor the well-funded boards under ABMS and their lobbying prowess and harm competition like NBPAS.
I don’t even know what the takeaway is from Florida, other than a need to stay vigilant. I’ll sit by with popcorn and watch what happens, but certainly wouldn’t encourage this method for other states until we see how the Florida experiment shakes out. The Florida legislation does not make doctors more free, it does not decrease the cost of healthcare, it does not increase access for patients, it does not decrease the regulatory power of the state. It takes a budget-neutral bill and creates new regulatory authority for the state with the expected budgetary bloat involved. But, it’s fascinating to watch from the outside.
My only piece of advice for doctors in Florida faced with this bill of uncertain impact…ask for one last amendment: the approved boards must provide peer reviewed data showing improved patient outcomes from their programs. As there is not a shred of evidence behind MOC, this simple amendment will stop this nonsense cold.
Going forward, I have most hope for Texas, Alaska, and Georgia to lead the way this year in real reform. Georgia has already passed their bill through the legislature and are only waiting for the governor to sign. Texas and Alaska have comprehensive MOC bills, and have similar personalities in their physicians and their legislature: they don’t like outsiders telling them what to do. I expect they will pass their bills this session without difficulty.
The ABMS, hospitals, and insurance companies have shown their hand. It’s our turn to take a good look at what has happened in Oklahoma, Tennessee, and Florida, do our M & M conference, and move forward smarter and more effective as a result of these pioneering states.
Right to Care legislation is right for patients and their physicians. We may not have the lobbying money or the power, but we are on the right side here. It sometimes feels like we’re a small disconnected group of physicians hashing this out in our own states, but we don’t have to fight alone. We can work together and learn from each other. Physicians in states that succeed can mentor physicians in states that are aspiring.
The AMA has been woefully silent on this issue, but Right to Care legislation is exactly AMA MOC policy put into state legislative form. This is not fringe, this is supported by the vast majority of physicians, our state medical societies and the AMA. Knowing this keeps me confident we will succeed.
Photo by SWoo