The Association of American Physicians & Surgeons (AAPS) recently filed suit in federal court against the American Board of Medical Specialties (ABMS) for restraining trade and causing a reduction in access by patients to their physicians. The ABMS has entered into agreements with 24 other corporations to impose enormous “recertification” burdens on physicians, which are not justified by any significant improvements in patient care.
The AAPS, founded in 1943, is a non-partisan professional association of physicians in all types of practices and specialties across the country.
AAPS’s lawsuit, filed in the U.S. District Court in Trenton, New Jersey, seeks declaratory and injunctive relief to enjoin ABMS’s continuing violations of antitrust law and misrepresentations about the medical skills of physicians who decline to purchase and spend time on its program. AAPS also seeks a refund of fees paid by its members to ABMS and its 24 other corporations as a result of ABMS’s conduct.
ABMS has a proprietary, trademarked program of recertification, called the “ABMS Maintenance of Certification®” or “ABMS MOC®”, which brings in tens of millions of dollars in revenue to ABMS and the 24 allied corporations. “Though ostensibly non-profit, these corporations pay prodigious salaries to their executives, often in excess of $700,000 per year,” AAPS writes. But their recertification demands take physicians away from their patients, and result in hospitals denying patients access to their physicians.
More than 450,000 physicians participate in the MOC program, which ABMS says is to help assure a doctor has successfully completed a rigorous evaluation process and assures competency. The pool grows by roughly 50,000 physicians a year.
In a case cited in this lawsuit, a physician in New Jersey was excluded from the medical staff at a hospital in New Jersey simply because he had not paid for and spent time on recertification with one of these private corporations. “He runs a charity clinic that has logged more than 30,000 visits, but now none of those patients can see him at the local hospital because of the money-making scheme of recertification.”
Recertification would have exceeded 100 hours for a typical physician, “thousands of dollars in fees and travel expenses,” and time away from patients. Furthermore, the American Board of Internal Medicine earlier this month told physicians it “is requiring more frequent participation in MOC of all board-certified physicians,” the lawsuit noted.
“The suit may face headwinds if a judge follows past court rulings that generally defer to the authority of professional boards, according to a review of case law and one expert who has examined the suit,” reported Reuters. The article noted that “The 2nd U.S. Circuit Court of Appeals in 2005 rejected an antitrust challenge brought by emergency room doctors who opposed the certification requirements of the American Board of Emergency Medicine. Ruling that one purpose of antitrust law was to reduce prices for consumers, the court found that the doctors did not have legal standing to sue because their only purpose in bringing the suit was to get the same "super-competitive pay" as higher-paid, board-certified doctors.”
The Reuters articles also noted that “Two Missouri urologists who were denied hospital staff privileges because of inadequate certification lost an antitrust suit they brought. In 1993, the 8th U.S. Circuit Court of Appeals ruled that the hospital had not illegally restrained trade when it excluded them.”
“There is a worsening doctor shortage in the United States, such that the average physician has the time to spend only 7 minutes with each patient. Roughly half the counties in our nation lack a single OB/GYN physician to care for women. There are long delays to see primary care physicians in Massachusetts, and about half of them are not even taking new patients.”
AAPS maintains that MOC is against public policy and harmful to the timely delivery of medical care. AAPS’s lawsuit states, “There is no justification for requiring the purchase of Defendant’s product as a condition of practicing medicine or being on hospital medical staffs, yet ABMS has agreed with others to cause exclusion of physicians who do not purchase or comply with Defendant’s program.” AAPS adds that ABMS’s “program is a moneymaking, self-enrichment scheme that reduces the supply of hospital-based physicians and decreases the time physicians have available for patients, in violation of Section 1 of the Sherman Act.”
“ABMS does the public an additional disservice by inviting patients to search on which physicians have “recertified” and which ones have not, despite the lack of evidence that there is any difference in malpractice rates between the two categories. ABMS should try to make money by helping patients, rather than disparaging the many thousands of good physicians who spend their time caring for patients rather than on ABMS’s self-serving recertification scheme,” AAPS writes.
A recent survey by AAPS showed that only 9.5% of 167 respondents thought that “maintenance of certification is good; we should support it.” In an earlier survey, only 22% of physicians who had been through the process said they would voluntarily do it again. The same survey showed that pmore than 90% feel that the MOC program is unjustified.
In a MedPage Today survey, 52% of readers said that maintenance of certification is good for patient care, but the rest question its value. “Most of those who commented on our survey question were physicians or other healthcare professionals, which indicates the passion of this topic among healthcare providers -- as does the 2,600-plus votes the survey attracted.” Commenters pointed out “the lack of evidence that certification is associated with consistent competence in patient care by either physicians, physician assistants, nurses, or nurse specialist assistants.”
As reported by Medpage Today, the ABMS defended its MOC program, saying in an eight-page “myths and facts” document posted March 20 on its website that the program is “anchored in evidence-based guidelines, national clinical and quality standards, and specialty best practices.”
“Because the MOC program is relatively new (as it has been introduced gradually during the past decade), we don't yet have evidence that results from decades of gathering data, but the data are emerging,” the ABMS said. “Early studies show a link between MOC and improved clinical performance and outcomes by participating physicians.”
MedPage Today also pointed to a health policy reported published in December 2012 in the New England Journal of Medicine (NEJM), which examined physician concerns about MOC expense and the time-consuming process. “Only 1% of nearly 67,000 such physicians holding only time-unlimited certificates from the American Board of Internal Medicine have been re-certified through MOC, they said in the December piece.”
“MOC fees charged by boards over a 10-year period range from $4,820 from the American Board of Plastic Surgery to $1,250 from the American Board of Surgery,” MedPage reported.
New York and Ohio
In addition to the New Jersey Lawsuit, the AAPS recently reported that New York State opposed the Federation of State Medical Board’s (FSMB) new maintenance of licensure requirements (MOL) which are planned for implementation in all states. At the 2013 Medical Society State of New York (MSSNY) House of Delegates meeting, the following MOC/MOL resolutions were adopted.
Maintenance of Licensure (MOL):
RESOLVED, That MSSNY oppose any efforts by the New York State Education Department, Office of the Professions, to require the Federation of State Medical Boards (FSMB) maintenance of licensure (MOL) program as a condition of medical licensure.
Maintenance of Certification (MOC):
RESOLVED, That the Medical Society of the State of New York acknowledges that the certification requirements within the Maintenance of Certification process are costly, time intensive and result in significant disruptions to the availability of physicians for patient care; and be it further
RESOLVED, That MSSNY acknowledges and affirms the professionalism of individual physicians to self-determine the best means and methods for maintenance of their knowledge and skills; and be it further
RESOLVED, That MSSNY communicate to the American Medical Association (AMA) and American Board of Medical Specialties (ABMS) examples of disproportional fees, onerous time requirements and unnecessary fragmentation of commonly recognized specialties; and be it further
RESOLVED, That MSSNY oppose mandating Maintenance of Certification until such time as evidence-based research demonstrates MOC is linked to improved patient outcomes; and be it further
RESOLVED, That a copy of this resolution be transmitted to the AMA House of Delegates for its consideration.
In Ohio, physicians recently adopted the resolution that the “Ohio State Medical Association (OSMA) insists that lack of specialty board certification does not restrict the ability of the physician to practice medicine in Ohio.” Last year, Ohio Physicians passed a resolution opposing maintenance of licensure, which derailed attempts to impose onerous new MOL requirements on physicians. Michigan and Texas have also passed resolutions.
AAPS said it is currently conducting a survey to collect information on total actual costs imposed on physicians as a result of new MOC requirements.
AAPS encouraged more physicians to work within their local and State Medical Societies to pass resolutions opposing mandatory maintenance of certification and the new onerous FSMB maintenance of licensure requirements. AAPS provided a model letter, which physicians can copy or modify for use in educating other physicians, as well as model resolutions opposing MOC and MOL.
AAPS also has model legislation for use in your state, to prohibit the medical board from imposing new MOL requirements.In addition, the Benjamin Rush Institute recently held a debate about MOC, held at the University of Pennsylvania, which is available here and a summary is here.