Anti-MOC Bills in States Spurred by Splinter Medical Society

May 18, 2016

In its campaign to liberate physicians from controversial programs to maintain their board certification, organized medicine is scoring victories in state legislatures.

Four states already have enacted laws seeking to limit the use of maintenance of certification (MOC) as a physician credential, and a similar measure has surfaced in another.

State medical societies that operate under the umbrella of the American Medical Association (AMA) have lobbied hard for the legislation. However, the role played by organized medicine extends to one of its lesser known niches. Some of the credit for the anti-MOC legislation goes to the Association of American Physicians and Surgeons (AAPS), a splinter group that views itself as the anti-AMA. Boasting only 3000 to 5000 dues-paying members and no headquarters except the medical office of spokesperson Jane Orient, MD, in Tuscon, Arizona, the AAPS nevertheless exerts outsized clout.

In the fall of 2012, the Journal of American Physicians and Surgeons, the AAPS house organ, published model legislation designed to limit state use of MOC as a credential. Titled the Patient Access Expansion Act, the model bill prohibits requiring either original board certification, MOC, or any form of maintenance of licensure (MOL) for a physician to practice in a state. MOL, which no state has yet to adopt beyond meeting continuing medical education requirements, theoretically could consist of requiring a physician to pass a periodic exam. The bill's prohibition also applies to hospitals, insurers, and other third-party payers that might make MOC a condition of staff privileges or reimbursement — in other words, a physician's livelihood.

Physicians have encountered such conditions, especially when it comes to hospital staff privileges, and that's why MOC has so many enemies. Specialty boards, critics say, have made the requirements to stay certified too time-consuming and costly, and clinically irrelevant to boot. Yet many physicians feel they have no choice but to participate in MOC programs lest they lose their hospital affiliation or job.

Earlier in 2012, AAPS had presented its bill to the American Legislative Exchange Council (ALEC), a right-leaning organization in the business of promoting model legislation for states to adopt. Counting about one in four state legislators as members, ALEC describes itself as "dedicated to the principles of limited government, free markets, and federalism."

One of ALEC's more notorious positions was its past — but not current — support of "stand your ground" laws that empower people to use deadly force instead of retreating if they feel their lives are endangered by someone. ALEC based its model bill for "stand your ground" on a Florida law that came into the spotlight after the fatal shooting of 17-year-old Trayvon Martin by George Zimmerman in 2012.

In 2014, ALEC published a revised version of the Patient Access Expansion Act on its website — preserving the title — that forbids a state to make any form of MOL a condition of licensure, or link MOL to MOC. "Current requirements, including continuous medical education, shall suffice to demonstrate professional competency," according to the model legislation. It more broadly prohibits a state from requiring any form of certification or MOC for a physician to practice medicine, and prohibits the state medical board or any agency or facility that accepts state funds from discriminating against physicians based on MOC.

The fingerprints of the original AAPS bill and the ALEC version appear on some of the anti-MOC legislation that has been enacted or under consideration in five states. And AAPS members and supporters, some of them state legislators, have played key roles in advancing these bills.

Actions by State Medical Societies Pave the Way

On April 12, Oklahoma Governor Mary Fallin signed a law stipulating that nothing in state law for allopathic and osteopathic physicians shall be construed to make MOC "a condition of licensure, reimbursement, employment, or admitting privileges at a hospital in this state." One of the bill's sponsors in the Oklahoma State Legislature was Republican state Rep. Mike Ritze, DO, an AAPS member.

"We have all these certifications, we have all these continuing medical education hours," Dr Ritze told Medscape Medical News. "The cost, the time — enough is enough. We're fed up with regulation that has nothing to do with quality of care."

Oklahoma physicians prepared the ground for the new law by first passing an anti-MOC resolution in the Oklahoma State Medical Association (OSMA) in 2015. It called on lawmakers to adopt MOC policy set forth by the AMA House of Delegates in 2014. That deliberative body of organized medicine said MOC should not be a requirement for licensure, credentialing, reimbursement, network participation, or employment. The AMA language, rather than what appears in the AAPS or ALEC model bills, formed the basis of the Oklahoma law, said Wes Glinsmann, OSMA director of state legislative and political affairs, in an interview with Medscape Medical News.

What happened in Oklahoma has been the pattern in other states where MOC bills have been introduced: Medical society resolution first, bill second. In 2014, the Kentucky Medical Association adopted a resolution — coauthored by AAPS member Tracy Ragland, MD — that called on the Kentucky General Assembly to consider the ALEC prescription for MOC. Kentucky lawmakers went on to pass a weakened version of the ALEC bill in 2016 that confines its anti-MOC injunctions to the state board medical board, forbidding it to screen out physicians based on certification.

An earlier version of the Kentucky bill would have prohibited hospitals from discriminating against unboarded physicians. However, that language struck some conservative physicians as government dictating to private industry, leading to its deletion, said Republican state Sen. Ralph Alvarado, MD, the bill's sponsor.

"I can take what I can get," Dr Alvarado said about passage of a compromise bill in an interview with Medscape Medical News.

The Kentucky law did preserve some of the language in the ALEC bill almost verbatim, including: "The board's regular requirements, including continuing medical education, shall suffice to demonstrate professional competency." This sentence also appears in a bill passed by the Missouri General Assembly late last month that essentially duplicates Kentucky's law.

"Board certification is a Good Housekeeping stamp of approval, but it shouldn't be used as a basic entry requirement for the practice of medicine," Republican state Rep. Keith Frederick, DO, the Missouri bill's sponsor, told Medscape Medical News. The bill forbids any state agency, and not just its medical board, from discriminating against physicians based on certification or recertification. Missouri Governor Jay Nixon has yet to add his signature.

In Michigan, MOC opponents are rooting for legislation that's even stronger than the ALEC model bill. It forbids hospitals from denying admitting privileges based solely on MOC, and insurers from making MOC a condition of reimbursement. Following a familiar pattern, the Michigan State Medical Society (MSMS) paved the way by passing various resolutions for MOC action over the years. The sponsor of one of those resolutions was MSMS delegate and AAPS member Martin Dubravec, MD, another example of a physician with a foot in two different rooms of organized medicine.

"I have nothing against MOC personally, but it should be voluntary," Dr Dubravec told Medscape Medical News. "It's not voluntary when hospitals require it for admitting privileges and insurers require it for network participation. We've seen good physicians not be able to participate in patient care because of it."

The Interstate Compact Angle

Yet another MOC bill introduced last year in the Arizona State Legislature would have prevented the state, among other things, from requiring certification or recertification as a condition of any program that accepts state money — think Medicaid. Introduced by former state Sen. Kelli Ward, DO, the bill passed in the Arizona senate, but went no further. Dr Ward, who is attempting to unseat Sen. John McCain (R-AZ) in this year's Republican primary election, has called AAPS "the only group that represents physicians and patients."

"The House of Medicine has sold me out," she said in a recent campaign talk, referring to the AMA and the American Osteopathic Association.

Although Dr Ward's bill floundered, the Arizona legislature added an anti-MOC clause to another bill that committed the state to the so-called Interstate Medical Licensure Compact, created by the Federation of State Medical Boards (FSMB) to streamline physician licensing in multiple states. Considered crucial for practicing telemedicine across state lines, the compact requires a physician licensed in a given state to be board certified if he or she seeks so-called expedited licensure in another state. However, the compact does not oblige a state to make certification a condition for original licensure. The Arizona law prohibits the state from doing that very thing, just to make sure.

Arizona Governor Doug Ducey signed the law on May 11.

Many MOC opponents, including AAPS, fear that the interstate compact presages a nationwide move to make board certification a requirement for original licensure, whether or not a physician wants to practice telemedicine out of state. "These things have a tendency to start off small, and then grow," Dr Orient said.

The FSMB counters that the compact doesn't tell participating states how to approve their physicians, and that no state requires MOC for licensure, anyway. And, physicians are free to ignore the compact and get licensed in outside states the usual, unexpedited way.

"We Believe in Free Markets"

AAPS has fought against MOC not only in state legislatures, but in court. In 2013, it filed a federal antitrust suit against the American Board of Medical Specialties (ABMS), alleging that the MOC programs of its constituent boards, such as the American Board of Internal Medicine, interfere with the ability of physicians to practice medicine. The ABMS counters that it has nothing to do with hospitals denying staff privileges based on MOC, and that AAPS allegations are "devoid on specifics." The suit is pending.

"The AMA should be doing what we're doing," said AAPS's Dr Orient about her group's anti-MOC campaign, "but it's promoting the AMA and not the interests of private physicians." Her group formed in 1943, she added, "because we felt the AMA was not doing its job."

Asked for a response, the AMA issued a statement to Medscape Medical News saying that "state medical associations have the primary role of lobbying state legislators on behalf of local physicians. The AMA supports the advocacy role of the state medical associations as a source of information and resources." It also points to the resolution passed by its House of Delegates that formed the basis of the Oklahoma law on MOC.

To be sure, AAPS acknowledges the role played by state medical associations — represented in the AMA House of Delegates — in lobbying for anti-MOC measures.

"Without the state medical societies, I don't know if any of this would have happened," said Jeremy Snavely, a part-time business manager for the AAPS who works out of Dr Orient's office. "There is a lot of credit to go around."

Opposition to MOC has made allies out of AAPS, the AMA, and state societies, at least on this issue.

"The anti-MOC movement has united very diverse groups of physicians," said cardiologist Paul Teirstein, MD, who helped found the National Board of Physicians and Surgeons as an alternative to board certification under the ABMS. "Indeed, it's hard to find many physicians who are supportive of MOC."

He told Medscape Medical News that he was "very aware of the AAPS's role in the anti-MOC movement."

Another role player and AAPS ally has been ALEC. AAPS is a dues-paying, private-sector member of the group, Dr Orient said.

ALEC is a decidedly conservative organization, standing for small government, a small federal government in particular, and a less regulated private sector. AAPS wears similar ideological stripes. It has railed on its website against "Medicare slavery," and it vociferously opposed the Affordable Care Act, calling its individual mandate to obtain insurance coverage an "inexcusable assault" on the constitution, in a court filing.

"Most people would describe us [as conservative]," Dr Orient said. "We believe in free markets. We have a more libertarian constituency."

Kenneth Christman, MD, an AAPS board member and former president who helped introduce his group's model MOC bill to ALEC, said he doesn't agree with every stance taken by that group.

"But I think they stand for a lot of freedom issues that we need to look carefully at," Dr Christman told Medscape Medical News. "Some may claim that ALEC is pro-business.

"It's really pro-freedom."

Follow me on Twitter @LowesRobert

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