Anti-MOC Legislation Continues to Advance in Some States

But Focus May Have Shifted to Reforms in Maintenance of Certification by Specialty Boards

Eric Seaborg
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In the past 12 months, three more states passed legislation backed by state medical associations limiting the use of maintenance-of-certification (MOC) tests. Washington and Michigan passed laws in 2018, and North Dakota passed a law earlier this year.

But considering legislative sessions and bills that have been introduced, no state other than North Dakota appears likely to act in 2019—and the momentum for reform may have passed to the efforts by the specialty boards themselves, including the changes proposed by the vision initiative of the American Board of Medical Specialties (ABMS).

The Washington legislation ensures that board certification cannot be a condition for state medical licensure or licensure renewal. This approach is considered “starter legislation” by anti-MOC advocates because few, if any, states require specialty certification for a medical license, so it has little real-world impact.

The Michigan legislation prohibits insurance companies from requiring MOC as a sole condition of reimbursement and pre-empts any future effort to make state medical licensure contingent upon completion of MOC.

The North Dakota legislation says that a physician may not be denied staff privileges or employment by a facility based solely on the physician’s decision to not participate in maintenance of certification and healthcare insurers may not deny reimbursement to or prevent a physician from being a preferred provider based solely on a physician’s decision to not participate in maintenance of certification.

The new legislation means that North Dakota and Michigan have joined Texas, Oklahoma, Georgia, Tennessee, and South Carolina in passing legislation beyond the “starter legislation” that limits the use of MOC in areas such as employment and insurance participation.

Impact of new laws

Considering the time it takes to work through tasks like amending hospital bylaws, it may be too soon to gauge the impact of these laws, and so far, the picture is unclear.

“ABMS has detected no significant impact in the states where legislation has been adopted,” according to Tom Granatir, senior vice president of policy and external relations at ABMS. “Participation in continuing certification is growing, as we expect it to continue to do. Some boards have found the new approaches to assessment are inducing lifetime certificate holders to participate in continuing certification.”

Three years ago, Oklahoma became the first state to adopt legislation limiting the use of MOC, but it has not had the backers’ intended effects because hospitals in the state claimed that technicalities in the law’s wording meant it did not apply to them. Attempts to clarify the legislation have been blocked by the Oklahoma Hospital Association, Oklahoma Association of Health Plans, and ABMS, according to Jack Beller, MD, an orthopedic surgeon in Norman and former president of the Oklahoma State Medical Association.

Texas passed one of the most restrictive laws in the country about the use of maintenance of certification, according to Ori Hampel, MD, founder and managing partner of Adult and Pediatric Urology of Houston. The law has led some hospitals to change their bylaws to no longer require MOC by medical staff. However, two of the largest hospital chains in the state “have been flaunting the law and not allowing the medical staff to vote on whether or not the medical staff wishes to have maintenance of certification as a requirement.” The Texas Medical Association, which supported the legislation restricting the use of MOC, has responded by passing a “straightforward” resolution saying it “opposes mandatory maintenance of certification,” Hampel said.

Donald J. Palmisano Jr., JD, executive director and CEO of the Medical Society of Georgia, which successfully pushed for MOC-limiting legislation in 2017, said he is seeing positive changes: “We have heard that the medical staffs at a number of hospitals are reviewing the bylaws to see what can be done to address this board certification issue. Medical staffs are saying, ‘We want our doctors to be initially board-certified, and when it comes to maintaining the certification, we may be willing to recognize other boards [in addition to ABMS].’ It has gotten doctors more engaged with their medical staffs, and that is a very positive thing, because they are realizing that these issues are very important.”

Palmisano added that the legislation is only a part of the picture in terms of MOC reform. He has been active on several fronts in the MOC reform movement, including serving on the ABMS Vision for the Future Commission. “I think the ABMS has taken the right approach by having the vision initiative,” Palmisano told Kidney News. “From the state medical society perspective, physicians were very pleased that they had a voice on the vision initiative. I think the doctors feeling like somebody is listening has really gone a long way.”

Maryland sees lack of need

The legislative record in Maryland provides insight into why the effort for MOC-limiting legislation is stalling in some states. Maryland passed a law in 2017 prohibiting the use of certification or MOC in licensure, but that is as far as the legislature has ventured.

In 2018, a key Maryland legislator requested that the Maryland Health Care Commission (MHCC) study MOC requirements “with the goal of recommending legislation for consideration during the 2019 session.” The MHCC responded in a letter that its work group of key stakeholders was “not able to reach consensus on a legislative approach.” It noted that it could not reconcile the goals of hospitals and insurers set on defending their “independence in setting criteria for employment, privileges, and other credentialing-related decisions” with those of “physician members of the work group [who] expressed a preference to determining their own requirements for ongoing training and assessment.”

In addition, MHCC’s study of the issue undercut some arguments put forth by proponents of restricting MOC. For example, MHCC found no need to forbid health insurers from requiring board certification because the health insurers in the state do not require it to participate in their networks, with the one exception being Kaiser, which employs all its own physicians.

MHCC also discounted the charge by MOC critics that ABMS has a monopoly, noting that in 2014 some physicians created the National Board of Physicians and Surgeons (NBPAS) as an alternative entity for recertification “to provide an option for physicians looking for a less burdensome option. As of 2018, 104 hospitals in the United States had changed their bylaws to accept NBPAS as a board certifying entity. In Maryland, in September 2015, Frederick Memorial voted to accept NBPAS as a valid option for recertification (in addition to boards that had been previously recognized by the hospital).”

The MHCC concluded that “current law is not a barrier to some responses to physician concerns,” especially considering that “specialty boards are re-evaluating recertification requirements and processes.”

Opposition and reform

ABMS continues to oppose legislative efforts to regulate recertification and “remains committed to our position of hospital, health system, and insurers’ right to self-determination,” said Granatir.

“I think [this legislation] is a slippery slope,” said Jeffrey Berns, MD, chair of the American Board of Internal Medicine’s nephrology board. “When states start saying to hospitals or health systems through legislation that we think we know better as a state legislature what value there is to board certification, continuing medical education, or what have you, and therefore we are going to tell you what you can and cannot utilize in making decisions, what is next?”

“Slippery slope” is a term that even proponents of the legislation use. Frank McDonald Jr., MD, MBA, a neurologist who was president of the Medical Association of Georgia when the state passed its legislation, said he didn’t like the idea of involving the government in physician self-regulation, but his association turned to the legislature because physicians were so frustrated by specialty boards adding requirements to MOC without listening to their concerns.

ABMS’ Granatir said that physicians are starting to notice as various boards implement innovative knowledge assessment options to improve their recertification programs: “ABMS is on a path toward significant change in continuing certification programs. A recently convened commission has given the boards a roadmap. We hope our community will give the process a chance before looking for legislative solutions. Anecdotally, we have heard from a few state medical societies that our response to the commission’s recommendations has impacted their members’ desire to pursue legislation.”

But it is not a coincidence that the specialty boards’ efforts at reform came on the heels of the legislative efforts. Physicians went to their state medical societies—and then their state legislatures—as a last resort, Georgia’s Palmisano said: “These laws that started to pass across the country really got everybody’s attention on how dissatisfied the physicians were.”