When it comes to legal liability, doctors may still be the “captain of the ship.” But increasingly, government, hospitals, and third-party payers are demanding that doctors constantly have overseers. In living memory, a medical school diploma and perhaps a year of internship could gain one a medical license. And board certification—showing successful completion of rigorous extra specialty training —was good for life.
Starting in the 1970s, specialty boards began issuing time-limited certifications, at first good for 10 years. Now even “grandfathered” physicians will be stigmatized online for “not meeting requirements” for maintenance of certification (MOC).
After 40 years of pushing MOC, the American Board of Internal Medicine (ABIM) is unable to demonstrate any value for patient care, writes Paul Kempen, M.D. Yet, doctors may have to go through the process to keep their hospital privileges or to remain on an insurance panel, no matter how stellar their record of patient care. But recertification is still claimed to be “voluntary.”
The process keeps getting more expensive and onerous. Examinations may be required every 5 years, or still more often, along with nearly continuous participation in newly added demands such as practice improvement modules (PIMs).
The failure rate on the 2013 ABIM exam was 29%!
So one day a highly trained, experienced physician may be board certified—and the next day, after examination results are revealed or a deadline for MOC compliance passes, he may be decertified and unemployable. In that one day, could he have become demented, or fallen behind in keeping up with his field?
For some physicians, it may be literally impossible to meet the requirements, say if they miss a deadline owing to illness or family emergency, and are ineligible to try again without taking a whole new residency program—which likely doesn’t exist.
Making a MOCkery of Medicine
David Mann, M.D., recounts his experience in being recertified in cardiac electrophysiology. He had to do an Approved Quality Improvement Pathway:
“Some of the more understandable options had to do with collecting data from patients to send to the ABIM. What they wanted this data for or what they would do with it I had no idea. The striking thing though was that NONE of the options had anything to do with the subspecialty I was certifying in.”
After laboriously collecting data on 50-100 patients for the Hypertension Module, he was informed that too many of his patients failed to meet goals for—lowering serum cholesterol. He needed to show “improvement” in meeting goals (that have since been withdrawn), even though lipid management is the jealously guarded prerogative of family physicians in his area. “After several months of effort that completely distracted me from my real job as an electrophysiologist, the answer to the question of Life, the Universe and Everything was a faulty cholesterol level.”
Conflicts of Interest
The pay of executives heading “nonprofit” specialty boards is justified by the amount of revenue, which depends on number of physicians paying fees and the amount of the fees. Might this be compared with paying prosecutors by length of prison sentences?
The “educational testing” industry, worth billions, is permeated with cozy financial relationships like that between NEJM, ABIM, McGraw Hill, and Area9 Labs (which produces the Knowledge+ website of NEJM Group, a division of the Massachusetts Medical Society). NEJM Group exhaustively markets its costly version of ABIM’s MOC. By supplying access to NEJM for staff members, asks Westby Fisher, M.D., “are our hospitals supporting the ABIM’s proprietary, self-mandated and scientifically unproven educational process that ties passing a test to the maintenance of hospital privileges?”
MOC is tied to “quality”—providing the proper care and avoiding “inappropriate” care. Endorsement by the self-appointed National Quality Forum (NQF) is considered the gold standard for best practices. Recently, the cochairman of one of its patient safety committees, Charles Denham, M.D., was accused of taking a $11.6 million bribe from CareFusion to get NQF to endorse one of its products.
NQF CEO Christine Cassel, M.D., former CEO of ABIM, treated the Denham scandal as a mortal threat. Then, to “avoid distraction,” she resigned her directorships with Premier ($235,000/y) and Kaiser Foundation Health Plans and Hospitals ($203,500 in 2012). Because she is “well compensated” by NQF ($516,000/y), it is, however, “unreasonable to suggest she would be influenced by money.”
NQF is funded by Medicare/Medicaid, which could refuse payment for services that are not compliant with the Choosing Wisely campaign of ABIM and the ABIM Foundation. The current president of ABIMF, Richard Baron, M.D., came through the revolving door from CMS. ABIMF president emeritus, John Benson, Jr., M.D., clearly wants CMS to enforce CW. He writes: “The prospect of health care consuming 20% of the GDP by 2020 is unconscionable so corrective actions have enormous urgency.” CW could also be tied to MOC (NEJM 2/13/14).
What better way to reduce medical costs than to remove non-cooperative physicians in mid career?
ACTION OF THE MONTH
Doctors Rally Against MOC
A petition for ABIM to recall recent changes in MOC rapidly gathered 10,000 signatures and more than 100 comments.
In the AAPS lawsuit against the American Board of Medical Specialties, the court granted the ABMS motion for a change in venue, and the case will proceed in federal court in Chicago.
Resolutions against MOC have been enacted recently by the American Medical Association and the state medical societies of New Jersey, Michigan, Ohio, Oklahoma, New York, and North Carolina (Med Econ 3/24/14). Sam L. Unterricht, M.D., outgoing president of MSSNY, calls “fighting the MOC and MOL machine that is sapping our strength and resources” one of the “knock-down, drag-out conflicts ahead.”
One resolution says that MSSNY should take action against any hospital or payor that excludes a physician based on failure to comply with MOC, reports AAPS director Lawrence Huntoon, M.D. “Unfortunately, MSSNY has ‘partnered’ with the ‘Choosing Wisely’ initiative, perhaps not realizing that it is contrary to opposing mandatory MOC.”
AAPS past president Kenneth Christman, M.D., explains “Why Patients Should Avoid Physicians Who Submit to Specialty Board Re-Certification,” J Am Phys Surg, spring 2014.
While the insurance-salesman-in-chief did a victory dance about meeting the target of 7.1 million people “enrolled” on the Exchanges, for many reasons this and other Administration numbers are virtually meaningless.
- Moving the Goalposts: The original target, before the Affordable Care Act (ACA) passed, was twice that number (John Hayward, Human Events 4/21/14).
- Changing the Starting Line: The claim that 3 million young adults age 18-26 gained coverage because of ACA cherry-picks a starting point at the depths of the recession in 2010. Using Census Dept figures, the percentage of young adults with private coverage, not all on their parents’ policies, was 60.5% in 2008, and 60.5% in 2012 (Avik Roy, Forbes 4/3/14). In reporting 9.3 million “newly insured,” RAND started in 2013 at the peak of cancellations in anticipation of ACA.
- Changing the Questions: From 1987-2007, the Census Bureau used the same questions in its Current Population Survey (CPS) about health insurance. Thus, although flawed, the CPS could be used to make comparisons. In 2007, revisions were made, but the Bureau went back 2 years and provided the means to make corrections to maintain integrity of the trend lines. Now questions have been completely changed so that comparisons will be impossible (Greg Scandlen).
♦ ♦ ♦
“Hardcore leftists are worse than malcontents; they are haters. Lenin told the commissars of education in 1923, ‘We must teach our children to hate. Hatred is the basis of Communism.’ Karl Marx, according to Bertolt Brecht, proudly proclaimed himself ‘the most outstanding hater of the so-called positive.’ It is the left’s unremitting negativism that dominates their character.”
Mark W. Hendrickson, St. Croix Rev, Feb/Mar 2014
ICD-10 Postponed Again
The 17th delay in the implementation of the Clinton-Gingrich Sustained Growth Rate (SGR) Medicare fee cuts was combined with a delay of “at least” one year in the imposition of ICD-10 coding. The cost estimate for implementation of ICD-10 in small practices is $56,000 to $226,000, significantly higher than before. Half of this reflects disruption in cash flow and impaired productivity, according to the AMA (Medscape 3/31/14).
The American Health Information Management Association complained that the delay will cost the industry as a whole up to $6.6 billion. “We can’t create a more efficient and sustainable system without ICD-10,” said an industry spokesman. It is “linked to enhanced reporting and oversight for the new [‘value-based’] payment schemes” (Medscape 4/2/14).
After Sebelius, What?
The “slow motion” resignation of Kathleen Sebelius as Secretary of Health and Human Services came after the victory dance, with accolades from Obama: “Under Kathleen’s leadership, her team at H.H.S. turned the corner, got it fixed, got the job done, and the final score speaks for itself: There are 7.5 million people across the country who have the security of health insurance, most of them for the very first time” (NY Times 4/11/14).
The announcement came before release of a Government Accountability Office (GAO) report on how she circumvented congressional limits on spending, using a federal law that allows the HHS secretary to “encourage support for nonprofits that promote public health.” Sebelius requested financial support for Enroll America from the Robert Wood Johnson Foundation and H&R Block, and nonfinancial help from Ascension Health, Johnson & Johnson, and Kaiser. Adding this to $684 million in taxpayer funding, ObamaCare was able to reel in 800,000 formerly uninsured (Hayward op. cit. and http://tinyurl.com/k8nmbb3).
To succeed her, Obama has nominated Sylvia Mathews Burwell, now director of the Office of Management and Budget (OMB), who served the Clinton Administration in several capacities. She testified to the Senate Whitewater Committee about what she found searching the garbage of deputy White House counsel Vincent Foster the night he died.
Obama noted her experience in how insurance markets work from her part-time work as a director (at $300,000/y) of MetLife, which spent millions of dollars last year lobbying on ACA. She is a defendant in a lawsuit brought by MetLife shareholders, accusing her of misleading investors (Washington Times 4/15/14).
Can Physicians Prescribe without an NPI?
Physicians report that pharmacies sometimes refuse to fill prescriptions written by physicians who do not have a National Provider Identifier (NPI).
Lawrence Huntoon, M.D., writes: “It is pretty clear from the Federal Regulations that physicians who prescribe medications for Medicare patients who do not have drug coverage (and thus pharmacies do not file claims for them), do not need an NPI to prescribe and for the pharmacy to fill the prescription. I am trying to get them to admit this in writing.
“CMS is trying to overreach and extend the NPI requirement for all Medicare patients whether pharmacy claims are filed or not. The goal is to eliminate independent physicians who are opted out of Medicare and who do not have and do not want the government’s NPI number.”
CMS acknowledges that “Very limited exceptions [to the requirement to obtain and disclose an NPI] may include, by way of example, a self-employed physician who does not bill insurance plans and does not have a member, employee or contractual relationship with an organization covered health care provider (or has one with a noncovered organization health care provider), such as a psychiatrist or plastic surgeon who only accepts cash paying patients” (gpo.gov/fdsys/pkg/FR-2012-09-05/pdf/2012-21238.pdf, bottom of 3rd column, page 54681).
New CMS 1500 Forms
Doctors still struggling with Medicare requirements need to know that after Apr 1, old CMS forms will not be accepted. The new forms require new modifiers in item 17 for referring provider (DN), ordering provider (DK), and supervising provider (DQ). The form is apparently submitted by the rendering provider, whose name and NPI go in item 24J. See MSN Matters #MM8509.
Tip of the Month: Covered entities have only 12 weeks after Apr 8 to remove all computer devices that use Windows XP—both hardware and software—from their offices. A single device on a network will be an automatic HIPAA violation, and also makes one noncompliant with Meaningful Use. HIPAA fines and loss of MU money could far outweigh the cost of replacing your equipment. Microsoft is ending the security updates and patches required by HIPAA.
Missed ACA Deadlines
Physicians and taxpayers cannot miss deadlines with impunity, but government agencies are different, according to NEJM.
“The President’s political opponents have charged that his decisions [to delay various provisions of ACA] are ‘blatantly illegal’,” write Timothy Stoltzfus Jost, J.D., and Simon Lazarus, J.D., but they argue that Obama is not breaking the law but rather making it work. It is not uncommon for agencies under both parties to breach statutory deadlines. Citing Heckler v. Chaney (1985), they write that “even an agency’s complete refusal to enforce a law cannot be challenged unless the refusal reflects ‘general polic[ies] so extreme as to amount to an abdication of its statutory responsibilities’” (NEJM 4/2/14).
In the same issue, however, Nicholas Bagley, J.D., writes that “executive branch’s authority to refuse to enforce statutes is not limitless,” and “the recent delays of ACA provisions appear to exceed the scope of the executive’s traditional enforcement discretion” (NEJM 4/2/14).
Meaningful Use (MU) Enforcement
CMS has paid out more than $19 billion in incentive payments to adopt an electronic health records (EHR) system to 4,400 hospitals and 323,000 health-care providers, and is now hiring a contractor to audit 10% of them.
A federal grand jury has indicted a former hospital chief financial officer, Joe White, for falsely attesting to meeting MU requirements. A firestorm of cases could follow (HCFR 3/5/14).
The most common reason for failing an MU audit is failure to conduct an annual security risk assessment. Providers are advised to prepare an audit defense book (BNA’s HCFR 4/2/14).
It is very difficult to comply with risk assessment requirements because they are constantly changing. The assessment must specifically address every change in the practice or the technology (Med Econ 3/10/14).
Government by the Lawyers, for the Lawyers?
Surveying the background of elected officials of both political parties, Bruce Edwards notes that every Democrat presidential nominee since 1984, and every vice presidential nominee since 1976 except Lloyd Bentsen, went to law school. The last Republican President who was a lawyer was Gerald Ford.
“The Republican Party is made up of real people doing real work. The Democratic Party is made up of lawyers. Democrats mock and scorn men who create wealth…. The Lawyers’ Party sees these sorts of people, who provide goods and services that people want, as the enemies of America. And so we have seen the procession of official enemies in the eyes of the Lawyers’ Party grow…. This is the natural consequence of viewing everything through the eyes of lawyers….
“Today, we are drowning in laws, we are contorted by judicial decisions, we are driven to distraction by omnipresent lawyers in all parts of our once private lives….
“We cannot expect the Lawyers’ Party to provide real change, real reform or real hope in America” (American Thinker 3/17/14).
After a New York Times editorial charged that ethical violations by prosecutors have become “rampant” across the nation, the Center for Prosecutor Integrity (CPI) announced the launching of the new Registry of Prosecutorial Misconduct. The database currently features 200 cases of misconduct by federal prosecutors. It is the first publicly available database to catalog judicial or disciplinary findings of misconduct.
The U.S. Dept. of Justice refuses to disclose the names of its lawyers responsible for 650 ethical violations found in internal agency watchdog reports. During the period FY 2002-2013, there were more than 400 cases of recklessness or intentional misconduct by DOJ’s own standards.
Not a Conflict? The annual meeting of the American Academy of Neurology (AAN) will feature an MOC Informational Session. I asked whether AAN would require a conflict-of-interest disclosure from Lois Margaret Nora, M.D., CEO of ABMS. In 2012, Nora earned about $330,000 in compensation from ABMS and associated organizations, according to the ABMS form 990. AAN’s reply implies that they believe disclosure is not required as no CME is given for the session, or that simple mention of her position is enough. It notes that the session is an opportunity for AAN to promote its own MOC compliance products.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
April Fool’s Day. On Apr 1, Obama gave a press conference celebrating a victory lap over 7.1 million people “signing up” for what he referred to as “ObamaCare”. Among the misinformation and lies, the most transparent half-truth is: “There are still no death panels.” Right. He himself postponed initiating the Independent Physicians Advisory Board (IPAB) until after the November 2014 elections. He did not mention the Congressional Budget Office (CBO) report on the effect on the economy. Nor did he mention the results of a secretive RAND Corporation survey showing that barely 858,000 previously uninsured Americans had paid for new policies by Mar 31. He gave three examples of people who benefited; there are hundreds of cancer patients who lost their doctors or found that their plan did not cover their therapy. But he calls his critics liars.
Stanley Feld, M.D., Dallas, TX
The Market Is Closed. With limited exceptions for “qualifying life events” such as marriage or loss of a job, insurers are refusing to sell individual policies after the enrollment deadline on state marketplaces or Healthcare.gov. The next wide-open chance to enroll comes in November for coverage in 2015. Limited enrollment periods are the one way insurers can protect themselves against perverse incentives of guaranteed issue/community rating.
John Goodman, Ph.D., National Center for Policy Analysis
Why Continue MOC? MOC has never been proven to improve medical practice. To the contrary, it has been associated with decreased collegiality and decreased involvement in medical societies. Most practicing physicians find MOC to be clinically irrelevant; only 1.6% wish to maintain the current system, while 4.7% support reform and 93.7% wish to abolish it altogether. Veritas vos liberabit. Should we not support telling the truth about it.?
Howard C. Mandel, M.D., Los Angeles, CA
The “Quality” Pretext. The big business of creating CME requirements [and now MOC] has been sold to legislators as a quality cure for cost inflation; pure bunk of course. CME purveyors perform an invaluable service for the government/corporate “payers” by creating the façade of quality in a system where what counts in the “payer” counting houses is what is countable—money. The “payers” pretend to pay for quality, but care only about the “value” denominator: “cost of care index” as one local HMO so delicately put it in MN Medicine (about 2005). Pay for “quality” is high on the ObamaCare promotional agenda and can hide pay for restricting care at the ACO bedside. Nobody seems interested in Econ 101 analysis of medical inflation, which had an abrupt onset after 1965, a tipping point in time when 85% of the U.S. populace had tax-subsidized insurance creating the illusion of “free” care. Uncontrolled unrelenting demand inflation followed and fools still pursue cost control with “quality” mandates.
Robert Geist, M.D., St. Paul, MN
Criminal Enterprises. The National Quality Forum (NQF) and other “quality” entities are populated by leeches that siphon resources from the system, based on faulty research or no research at all, to enrich themselves. And Medicare/Medicaid supports this transfer of resources from the populace to the elite that has complete access to legislators through the NQF. The AMA does nothing of substance against MOC because it is part of the scam.
Kenneth D. Christman, M.D., Dayton, OH
It’s about Money, Not Quality. The American Osteopathic Association (AOA) takes your board certification if you stop paying them $800 a year in membership dues.
Craig Wax, D.O., Mullica Hill, NJ
It’s about Control. Florida physicians now have to enter CME information into an electronic tracking system for license renewal. I see control of the CME racket tightening. Total control of doctors—over what, when, how, and whether to think—is at hand. MOC/MOL, and CME all need to be exposed as players in the total control game.
James F. Coy, M.D., The Villages, FL
What to Learn. Worse than wasting doctors’ and staff time entering data on CME is Florida’s requirements on what CMEs you have to take: you need one hour on “quality” and one on “patient safety,” and every other cycle you must study about AIDS and/or domestic violence: nonsense offered by hospitals.
David McKalip, M.D., St. Petersburg, FL