Rosen and Montanio: MOC programs under attack

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While not required to practice medicine, voluntary board certification in a specialty has progressively become expected, with patients, employers, hospitals and insurers looking to the board certification to determine the perceived competency of the doctor.

Doctors that do not obtain, and then retain, board certification through the American Board of Medical Specialties (ABMS) Maintenance of Certification (MOC) program risk losing patients and may be denied privileges at hospitals or contracts with insurers, regardless of their experience level.

While the MOC test itself is only a few hundred dollars, doctors can spend thousands more on preparation for the exam, which also does not account for time spent away from their practices. The cost and time commitment, coupled with some criticism that the MOC designation does not indicate better outcomes for patients, has frustrated many doctors.

The ABMS issues the vast majority of specialty certifications. In 2014, it added more requirements and more frequent mini-modules for doctors to remain in compliance with the MOC program, in addition to a full-day exam that has to be passed every 10 years for doctors to be recertified.

The increased requirements have led to critics questioning if the MOC program is merely a costly but ineffective hurdle. Critics suggest that the lack of competition from other certifying organizations means that there is little pressure to demonstrate a solid relationship between the MOC and improved medical performance.

Legal battles are increasing over what some doctors perceive as anticompetitive practices by the ABMS and related organizations that issue certifications for various medical specialties. So far, the ABMS and its member organizations have successfully fended off a number of lawsuits alleging that the organizations hold a monopoly on the certification space. However, these suits may be slowly impacting how the various certification processes are implemented.

Class actions

The ABMS and its member organizations continue to be the target of class action lawsuits across the country. In March 2019, numerous physicians sought to have several federal class actions against ABMS transferred to the U.S. District for the Southern District of California to be handled in a coordinated action, since all of the cases raised very similar antitrust claims specifically focused on the MOC program.

A decision to transfer the cases has not yet been made, and the ABMS has already filed a motion to dismiss these lawsuits.

These suits were filed shortly after a widely publicized settlement in an antitrust action with the American Osteopathic Association (AOA), which represents over 140,000 osteopathic medicine doctors and students in the United States. In that case, the AOA required doctors who sought its board certification also to buy an annual membership to the organization, which cost $683 at the time.

The settlement ended the membership requirement as a prerequisite to certification while also reducing the membership fee, and allows members to take more free continuing medical education courses.

While the AOA is not a member of ABMS, some doctors hope the settlement is a sign of an increased intolerance of perceived anticompetitive activities in the medical field more broadly.

Legislation

While litigation slowly proceeds through the judicial system, some doctors have sought a legislative response, though one is not expected to come in Maryland anytime soon.

In response to a request from (now former) Maryland Del. Dan Morhaim, who is also a doctor, the U.S. Department of Justice Antitrust Division (division) issued a letter in September 2018, broadly addressing ABMS’ exclusive control of the MOC program and possible legislative options to address concerns. The division encouraged the Maryland legislature to facilitate competition among different certifying bodies, while still allowing hospital and insurers independently to decide the weight placed on a doctor’s participation, or lack of participation, in the MOC program.

At the same time, the Maryland Health Care Commission (MHCC) oversaw a work group that analyzed issues related to the fairness, relevancy, expense and burden of the MOC program, with the goal of proposing possible legislative fixes.

After months of meetings and analysis, the work group ultimately concluded that there was a lack of consensus on how to address the concerns, and that there were alternative non-legislative options available, such as encouraging hospitals to accept certification from non-ABMS organizations, or by modifying hospital medical staff by-laws to abolish recertification requirements. Accordingly, the MHCC work group did not recommend legislation for the 2019 session.

Self-regulation

Though it is unclear if the suits will be successful, or if there will ever be enough consensus to support a legislative fix, the ABMS has taken some steps to acknowledge criticism.

The ABMS established an independent group, known as the “Vision for the Future Commission,” to make non-binding recommendations that addressed concerns raised by approximately 34,000 physicians who were surveyed. An overwhelming 82% of responding physicians either did not feel the MOC program had value or had mixed feelings about it.

As a result, the Vision Commission suggested some steps ABMS could take to address concerns, such as emphasizing that the MOC should not be the only metric used by hospitals to assess the competency of a physician, and implementing independent research to demonstrate if the MOC helps doctors provide higher quality patient care. Moreover, the ABMS established an Oversight Committee charged with considering how to implement some of the Vision Commission’s recommendations.

Similarly, this past August, the American Board of Internal Medicine, a member organization of ABMS, announced that it would allow physicians to take shorter, more frequent tests online to maintain their board certification.

Though changes may not be immediate, changes appear to be afoot.

Barry F. Rosen, chairman and CEO of Gordon Feinblatt LLC, heads the law firm’s Health Care Practice Group and can be reached at 410-576-4224 or [email protected]. Alexandria K. Montanio, an associate in Gordon Feinblatt’s Health Care and Litigation Practice groups, can be reached at 410-576-4278 or [email protected].