Volume 69, no. 5 May 2013

American physicians have long been acting like the faithful horse Boxer on George Orwell’s Animal Farm, working harder and harder for less and less to sustain a dysfunctional system. They are also treated like scapegoats and cash cows for government, third-party payers, and a self-appointed ruling elite intent on dictating standards and judging the fitness of physicians, all in the name of protecting the public. With Maintenance of Certification (MOC), the bureaucrats and administrators are meeting some resistance.

MOC Debated in Philadelphia
On April 20, the Benjamin Rush Society held a debate in Philadelphia on the topic: “Resolved: that Maintenance of Certification requirements fail to improve the quality of medical care while placing unnecessary burdens on physicians.” Click here for a video of the debate and a summary by AAPS immediate past president Alieta Eck, M.D.

The case for the affirmative was argued by AAPS general counsel Andrew Schlafly and anesthesiologist Paul Kempen, M.D. The negative (pro-MOC) side had three speakers: Martin Levine, D.O., former president of the America Osteopathic Association (AOA); Mitchell Heller, M.D., an emergency physician at JFK Medical Center; and Saurabh Jha, M.B.B.S., assistant professor of radiology at the University of Pennsylvania.

Dr. Jha asserted that it takes only one bad physician to ruin the profession. He asked whether it is better for 10 good physicians to have to spend 6 hours on MOC on Saturday than for one bad physician to escape, or better for 10 bad physicians to escape rather than forcing one good physician to spend 6 hours on MOC on his weekend. His discussion of Type 1 and Type 2 errors did not include how many bad doctors successfully recertify or how many good doctors’ careers are ruined if they miss one too many questions on an exam that is irrelevant to their practice. Nor did he acknowledge that MOC devours hundreds of hours, not just 6. And adding even 6 hours to a resident’s work week is considered hazardous to patients these days.

Dr. Levine argued that MOC protects the public by forcing doctors to monitor patient outcomes and compare themselves with other physicians. “Are your LDLs and HgbA1c’s controlled, and do your patients keep their appointments?” MOC ties in with the PQRS system. He had his medical student enter patient data and was able to demonstrate improvement in 6 months. For this, Medicare paid him $9,000. “How burdensome is that?”

He did not ask how many cases of statin-induced memory loss or muscle damage, or how many hypoglycemic episodes in truck drivers a doctor should accept in order to improve his quality measures and collect his $9,000.

Dr. Levine emphasized that the burden is “voluntary.” It represents a logical progression: The AMA created a guild: licensure, elimination of many medical schools after the Flexner Report, and now MOC. Each step was accepted by physicians, in order to increase profits. Dr. Heller said that doctors were “in a cage of our own making.” Dr. Jha noted that the level of regulation is ratcheted up every time the media covers a medical disaster. The only escape is to cash-based practice, he said.

Mr. Schlafly pointed out that MOC is not truly voluntary, and if tied with Maintenance of Licensure (MOL), will exclude many competent physicians from practice altogether. With MOC, doctors have no rights, and the Boards have no oversight. It exists to bring large profits to the Boards. There are many ways to assure quality, and no evidence that MOC is needed. More than 90% of physicians agree that MOC should not be imposed. The American Board of Medical Specialties (ABMS) is seeking MOL because so many physicians are refusing to participate in MOC voluntarily.

Dr. Kempen noted the hypocrisy of the American Board of Internal Medicine (ABIM). Its Choosing Wisely program aims to decrease unnecessary diagnostic testing of patients, while ABIM aggressively pushes unnecessary testing of physicians.

As one physician in the audience pointed out, an osteopath cannot be “certified” unless he maintains membership in the AOA, paying dues of $800 per year.

Thank you to Craig Wax, DO of IP4PI for photos and live Tweets from the debate.

Coercion
“Is it even possible to criticize MOC?” asks Victor Strasburger, M.D. Because it published two of his editorials (http://tinyurl.com/co9hffj and http://tinyurl.com/cacs9kk) in Clinical Pediatrics, SAGE Publications received a 20-page letter from the American Board of Pediatrics (ABP) demanding a printed retraction and threatening a libel suit. SAGE’s lawyers reminded them about the First Amendment, and they backed down.

The ABP, he writes, has tried to shut down any discussion, as on web sites that generated more than 2,000 signatures on petitions to put a moratorium on MOC.

While marketing MOC as “voluntary,” ABMS strongly pressures insurers, hospitals, and federal programs to require it for physician participation, Kempen writes. Federal “incentives” become penalties after 2014, imposing regulatory capture of physicians into MOC (JCHIMP, http://tinyurl.com/d42ucoq).

“It is clear that FSMB [Federation of State Medical Boards] decided on implementation of MOL in all states long ago,” writes Lawrence Huntoon, M.D., Ph.D.

AAPS filed suit against ABMS on Apr 23. Its reply is due just before our May 17 meeting in Columbus, Ohio.

Facts on MOC

The Ruling Class. Board officials are clearly in the upper reaches of the upper “1%.” Less than 1% of internists earn >$500,00 per year; 27% earn <$150,000 and 57% <$200,000.

The Testing Industry. Looking at the most recent IRS form 990 for 24 specialty subsidiaries, assets total $465 million, and annual gross receipts total more than $350 million (http://changeboardrecert.com).

Certify Thyself. In 2009, the ABIM board had a recertification rate in internal medicine of 20%; the initial ABIM task force on recertification, 18%; the editorial board of Ann Intern Med, 9%; American College of Physicians (ACP) governors, 4%. Less than 1% of diplomates with lifetime certification participate in MOC (JCHIMP).

“Grandfathers.” Like internal medicine, other specialties report low recertification rates in those with lifetime certificates: dermatology, 7%; nuclear medicine, 12%; plastic surgery, 5%; urology, 1% (NEJM 12/27/12).

The Objective. Ultimately, the idea is to have all physicians engaged in MOL in “a rolling and uninterrupted manner through automated data reporting,” implementing consensus recommendations (http://tinyurl.com/c9fz62h).

MOC: a Way to Control Physicians

By inducing hospitals to require MOC for recredentialing, notes Dr. Huntoon, boards are “basically imposing a belief system on physicians who may hold other opinions about what constitutes best care for their individual patients.” MOC requires them to “assess quality of the care they provide compared to peers and national benchmarks.”

While implying that MOC equates to competence, despite the absence of evidence, the disclaimers on the ABMS website are telling. There are no warranties about the “accuracy,” “value,” or “fitness for a particular purpose”; moreover, ABMS wants to be “held harmless” if a physician involved in MOC provides “non-quality” care (http://www.abms.org/Policies/terms_of_use.aspx).

MOC “professionalism” standards are a way to enforce conformity to desired societal agendas. For example, an “incremental” way to slow the unsustainable increase in medical expenditures is for ABMS to “make ‘cost-conscious care and stewardship of resources’ a competency with which physicians must more fully engage” (John K. Iglehart and Robert R. Baron, NEJM, op. cit.).

Nino Camardese, M.D. (1926-2013): R.I.P.

Dr. Camardese, a tireless fighter for freedom, came to America from Mussolini’s Italy at age 13. He practiced family medicine for 48 years. He founded the Americanism Foundation and taught principles of individual rights and responsibilities through his “Call the Doctor” radio show, writings, and frequent meetings that he organized with the help of his wife Eda. He joined AAPS in 1959 and served as president in 1993. He called AAPS “the delta force of American medicine.” Nino was an inspiration to all of us, and reminded us that “there is no right way to do the wrong thing.” Also, “it is never too late to do the right thing.”

Buyers’ Remorse on ObamaCare

Insurers. Health plan chains gave notice that they will not even apply to participate in exchanges in half the states. (http://tinyurl.com/babnnxt).

Congress. The Affordable Care Act (ACA) requires Congress to dump its employees into the Exchanges. If the Office of Personnel Management (OPM) decides not to pay 75% of the cost, staffers could be hit with thousands of dollars of new costs, leading to a potential brain drain from Capitol Hill. Hence, lawmakers are seeking an exemption (http://tinyurl.com/c969vqz”>Politico 4/24/13).

Big Labor. Seeing that the “Cadillac tax” of 40% on generous health plans could be a “death warrant” for unions, the 22,000-member roofers’ union is demanding the repeal of ACA (IBD 4/26/13).

The Architect. Sen. Max Baucus (D-MT), one of the main authors of ACA, said he saw a “huge train wreck” coming because of bumbling implementation. Later, he told Politico that he probably “misspoke” and still supports ACA, but he will retire from the Senate in 2014.

CMS. Henry Chao, deputy chief information officer, worries that Exchange implementation may be a “third-world experience” (http://tinyurl.com/bese2u4).

Voters. The Administration plans to spend $600 billion not authorized by Congress to ease sticker shock (http://tinyurl.com/c6fykxp), but it may not be enough.

Independence Rejected in Vermont

The Vermont legislature rejected an amendment to its single-payer law proposed by Rep. Cynthia Browning (D-Arlington). It would have repealed the Green Mountain Care Board’s authority to control prices in—and thus exterminate—private medical agreements outside the system. The rationale, to “preserve the integrity of the public system,” writes John McClaughry, would be familiar to Benito Mussolini, whose motto was “everything for the state, nothing against the state, nothing outside the state.”

AAPS director Robert Emmons, M.D., spoke out in favor of the amendment at press conference held at the Vermont Capitol.

AAPS Calendar

May 17-18. Workshop on MOC, board meeting, Columbus, OH.

Sept 25-28, 2013. 70th annual meeting, Denver, CO.

♦ ♦ ♦
“The number of those who reason well in difficult matters is much smaller than the number of those who reason badly. If reasoning were like carrying burdens, where several horses will carry more sacks of grain than one alone, I should agree that several reasoners would avail more than a single one; but reasoning is like running and not like carrying, and one Arab steed will outrun a hundred pack horses.”
Galileo Galilei, The Controversy on the Comets of 1618

ACTION OF THE MONTH

If you have participated in Maintenance of Certification (MOC), please help us compile data about the real cost. Go to aapsonline.org/costofmoc.

AAPS Sues ABMS over MOC

On Apr 23, AAPS filed suit against the American Board of Medical Specialties (ABMS) in U.S. District Court in New Jersey asking the court to “end antitrust law violations and misrepresentations by ABMS concerning its proprietary recertification program, which reduces access by patients to physicians.”

The complaint states that “ABMS enriches itself, its executives, and its co-conspirators by promoting falsehoods that its proprietary product is somehow indicative of the professional skills of a physician, when it is not.”

AAPS members have suffered thousands of dollars in unjustified expense, hundreds of hours taken from patient care, exclusion from hospital medical staffs, and reputational harm. Through concerted actions with other private organizations, including The Joint Commission, ABMS imposes immense burdens without transparency or accountability.

Showing how MOC does not reflect skills or quality of care, one co-conspirator offers 10 years of recertification in return for a substantial cash payment in lieu of an examination.

AAPS states that ABMS’s agreements and concerted actions are a per se violation of Section 1 of the Sherman Act because they are plainly anticompetitive, like a group boycott of a supplier.

AAPS requests a declarative judgment and refund of fees AAPS members have incurred for participation in MOC.

AAPS is grateful for the support of the American Health Legal Foundation. The complaint can be read at http://aapsonline.org/AAPSvABMScomplaint.pdf

Free Speech Upheld in Texas

On Mar 29, the Texas Supreme Court allowed the unanimous appellate court decision in the case of Miller v. Hotze to stand and serve as a precedent for all Texas physicians. Former Texas Medical Board member Keith Miller, M.D., had sued Steven Hotze, M.D., for huge damages, alleging defamation and conspiracy. Dr. Hotze has been a vocal critic of the TMB since 2007.

The court held that members of the TMB are public officials, and that the issues in this case involved matters of public concern. Thus the First Amendment protects the right of citizens to criticize public officials like Miller without fear of legal retaliation (http://tinyurl.com/dyzda7h).

Correspondence

MSSNY Opposes MOC/MOL. Despite an initial attempt to squelch their introduction, resolutions against MOC and MOL passed at the Medical Society for the State of New York House of Delegates (http://tinyurl.com/b2d4vms). The MOC resolution was somewhat watered down, but MSSNY opposes MOC for now, unless and until evidence-based research demonstrates that it is linked to improved patient outcomes. The MOL resolution passed as written: MSSNY unequivocally opposes MOC as a condition for licensure. According to a trusted source, no one spoke in favor of MOC/MOL.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY

Recertification Irrelevant. There is very little that is truly new and important! Most of the medical literature barely rises to the junk science level: irrelevant observational studies, new “guidelines,” and biased drug trials. “new” drugs are slightly different versions of old ones, just more expensive.

One of my mentors during residency told me to go to the library, pull out a 20-year old NEJM, and see how many articles made a difference and are still relevant. He also said that if you read a 10 or even 20-year-old Harrison’s or Cecil’s and know it backward and forward, you will be a better physician than 99% of your colleagues. is true because so much of what we do has nothing to do with the latest research. We listen, observe, palpate, distill, analyze, and empathize. Our understanding of disease comes from pathology, pathophysiology, and anatomy, and our prescribing is based on principles of pharmacology. bedrocks of our profession change little, if at all, over 10 years.
Richard Amerling, M.D., New York, NY

The “SOC.” The “Standard of Care,” which is embedded in MOC/MOL, is determined by a committee and changes at its whim—often not for the better. Not following the SOC, like not goose-stepping to the MOC and MOL, courts trouble from the Hospital Medical Records Department chart review by its clipboard functionaries to insure SOC compliance.

But what about the patient? Following the prescribed standard, post-anesthetic (operative) nausea and vomiting (PONV) is reported to be around 40% (30% to 70%). With my non-standard care, it is around 2%. General anesthesia (even with diethyl ether) doesn’t cause nausea and vomiting, per se. My assessment is that the high incidence may be lack of astute, individualized, moment-by-moment evaluation and applied judgment; and the polypharmacy that the standard calls for. Curtis W. Caine, M.D., Chattanooga, TN

“Drinking the Kool-aid.” This expression is code for doing something you know is wrong, but you do it anyway because someone has convinced you that you should. Combinations of magical thinking and Kool-aid drinking include believing that you can cut costs by spending $1 trillion; blindly accepting that having health insurance guarantees that you will get care; and promising free care while driving doctors out of business.

Before ACA, the bureaucracy consumed 40% of all healthcare spending. When ObamaCare is fully implemented, the bureaucratic cost will rise to 50% (http://tinyurl.com/cqfave3).
Deane Waldman, M.D., M.BA., Rio Grande Foundation

Hospital Eats Its Own. The husband of a hospital-employed physician, who was on her insurance plan, needed knee surgery and wanted to see a surgeon who is on our staff at Surgery Center of Oklahoma. Insurance, however, would pay only if surgery was done by a hospital-employed surgeon at the employer’s hospital. Afterward, upon seeing our web prices, the physician said, “Your price is less than our out-of-pocket for having it done at the hospital.” She and her husband would have been financially better off having surgery by the doctor they preferred and paying cash at our facility rather than taking the insured path.
G. Keith Smith, M.D., Oklahoma City, OK – http://SurgeryCenterOK.com

The Way Out. Physicians are returning to traditional fee-for-service practice, which I call “medical care.” We are not “running for cover,” but rather running our business in an economically sound manner. We are not “going off the grid,” but rather choose to have a grid that includes patient and physician. We are kicking others off our grid. Let them play on their own field—without us.
Stuart Gitlow, M.D., Woonsocket, RI

About ACOs. ObamaCare Accountable Care Organizations aren’t recognized as insurance companies under state law and have no legal way to have untaxed reserves. The reserves are the future earnings of clinicians. ACOs are a “back to the future” method to “transform” the failed managed-care system of mega-corporation gatekeepers into a system of mini “provider” gatekeepers sharing rationing-of-care profits (“gainsharing”) with the third-party payers. Ironically, they need waivers of patient-protection laws.
Robert Geist, M.D., St. Paul, MN

It’s about the Money. MOC/MOL means eternal costs and repeated courses and exams that have nothing to do with anything. The chairmen recertify only to get their lucrative jobs as chairmen. MOC is just another scam to bring in money for the Boards.
Paul Kempen, M.D., Broadview Heights, OH