MOC as Antitrust Issue: DOJ Backs More Choice in Certification

October 15, 2018

The antitrust division of the US Department of Justice (DOJ) has declared its support for expanding the ranks of organizations offering physician specialty certification to be recognized by hospitals and insurers.

In a letter responding to a query from a Maryland state legislator, the federal agency weighed in on a contentious debate over the value and appropriateness of the current maintenance of certification (MOC) system dominated by the American Board of Medical Specialties (ABMS).

Many physicians, on their own and through organizations dedicated to the issue, have long urged reform to the process by which their continued specialty proficiency is measured and certified, as well as the weight it's given by insurers and hospital administrators, which can directly influence careers and incomes.

The DOJ urged Maryland legislators seeking change in the specialty certification system to "strongly consider" an approach that expands the number of organizations that can confer board certification for recognition by hospitals and insurers and for other purposes.

"More competition by bona fide certifying bodies may offer important benefits — including lowering the costs for physicians to be certified or improving the quality of certification services — for healthcare providers, consumers, and payers," the DOJ letter reads.

It also recommends that the lawmakers provide physicians "flexibility to present themselves as board certified." They are urged to "redefine board certification" so that "physicians still qualify as board certified if they lose certification only because they did not participate in MOCs."

A National Perspective

"I think the letter is significant because it really takes a national perspective on this issue," Maryland delegate Dan K. Morhaim told | Medscape Cardiology.

"It promotes the point that some competition in this arena would be good, and I think the letter identifies some of the problems with the current system," he said. Morhaim is a cosponsor of the proposed legislation and a physician with certification by the American Board of Emergency Medicine, one of the bodies under the ABMS umbrella.

"Basically, the Department of Justice has called the American Board of Medical Specialties a monopoly, which they are," Paul S. Teirstein, MD, chief of cardiology at Scripps Clinic, La Jolla, California, said in an interview.

Teirstein is president of the National Board of Physicians and Surgeons (NBPAS), established several years ago to provide additional specialty certification options and alternatives to the MOC system sponsored by ABMS member bodies. The group currently claims 7000 diplomates whose certifications are recognized by 104 hospitals.

"What this does is give a lot of credibility to the anti-MOC forces, because the Department of Justice has validated our arguments," he said.

Teirstein had previously approached the DOJ and the Federal Trade Commission to weigh in on current ABMS dominance of the MOC process, he said; Morhaim then asked the DOJ for its view on the proposed legislation.

But NBPAS didn't participate in writing the bill, which in a novel strategy frames ABMS dominance in the MOC process in antitrust terms, Teirstein said. It calls for the promotion of alternative certification bodies so doctors, hospitals, and insurers can recognize a broader selection of boards than those affiliated with the ABMS.

The bill, he said, "didn't want to prohibit the use of MOC. Instead, it really looks to encourage competition in certification, the idea being, why should we have one private organization certifying doctors?"

No Factual Findings

The DOJ letter "specifically states that it has not made any factual findings regarding the ABMS Maintenance of Certification programs," ABMS communications director Susan C. Morris told | Medscape Cardiology in an email.

"As a result, it is a complete mischaracterization to assert the DOJ letter explains that MOC may harm competition, increases the cost of healthcare services to customers, and imposes overburdensome conditions on physicians who wish to maintain their certification."

And the DOJ letter, she said, supports the ABMS position when it states lawmakers should be discouraged "from interfering with unilateral business decisions — such as an individual hospital's decision about what criteria to use for granting hospital privileges or an individual insurance carrier's decision about what criteria to use for allowing participation in the insurer's network."

In a public statement responding to the DOJ letter, ABMS said it supports competition for specialty certification. But, "we are concerned about deception of patients if physicians are permitted to market themselves as 'board certified' based on certification by a board whose standards do not rigorously assess medical knowledge and maintenance of skills."

Claims of board certification, the ABMS says, "should be based on transparent standards that will genuinely advance the interests of patients and avoid deception. We are confident that, when compared to any other specialty certification programs, ABMS Boards can clearly demonstrate the superiority of their certification programs in giving useful information to hospitals, payers, and patients."

Applicable Not Just to Legislation

The NBPAS's own public response to the DOJ letter called it "a watershed moment. It lends powerful support for the positions NBPAS continues to press with all stakeholders in the industry."

Although the DOJ letter specifically addresses the proposed Maryland bill, it has at least some potential for promoting "anti-MOC" efforts nationally. "That was one of the reasons we were excited about it, that this letter could be used everywhere, in other states, and not just for legislation," Teirstein said.

"When I go to my hospital's medical executive committee, to say, 'hey, why don't you accept alternative boards, why just the American Board?' — now I have this letter saying that the DOJ thinks it would be a good idea to look at other boards."

Morhaim, an NBPAS advisory board member, said it's hard to tell how much influence the DOJ letter will have on the proposed Maryland legislation, let alone in other states.

"The Department of Justice letter will be helpful, but all politics is local. How Maryland hospitals, the state medical society, and rank and file practicing physicians react will be much more impactful," he said. "But it does make a difference because the DOJ in effect is an independent third party."

More Choice for Hospitals and Insurers

ABMS boards have acknowledged that its MOC program has flaws. And as the DOJ letter documents, some have revamped their MOC process and are exploring options to accommodate physicians who have been critical of its cost, extensive time demands, and perceived irrelevance to practice.

In recent years, for example, the American Board of Internal Medicine (ABIM), which administers board exams for 20 subspecialties, has proposed replacing traditional 10-year board examinations with shorter but more frequent tests or allowing MOC exams to be open-book.

Indeed, the American Board of Family Medicine (ABFM) recently announced that it will initiate a pilot program in 2019 that will test a combination of both of those concepts as an alternative to its traditional MOC.

As recently reported by Medscape Medical News, physicians in the pilot program will be given 25 questions every 3 months, 300 questions in all over 3 to 4 years. The questions can be answered open-book on a computer, including tablets, with 5 minutes allowed per question.

"Just the presence of a competitive board has helped inspire, helped move the American boards to improve their certification process," Teirstein said.

"It's helped them to hold their fees down, and also the overall costs of maintaining certification down," he said.

"These tests are getting a little bit less onerous, a bit less of a time-sink for doctors as they improve their process. Most of us still think that their processes still have problems, but they're better than they were."

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