The Conflation Behind Virginia’s Broken Physician Recertification System

by Suja S.Amir, MPA

Community physicians face a real dilemma when it comes to advocacy.  They must close their practices and if they don’t live in Richmond, travel several hours to voice their support or opposition on healthcare issues.  With an average wait time in the state of 20 to 25 day for a doctors appointment, and the legislative session occurring in the height of Influenza season,  without benefit of medical residents and specialty fellows to cover their patient care duties, a few still attended the hearing to testify about HB 1449.  Unfortunately a majority of community physicians are unable to vacate their responsibility to patient care to be present.

Over thirty states have introduced or passed Maintenance of Certification reform laws, including states surrounding Virginia.  Yet, once again, the bill was tabled. According to the Virginia Coalition on MOC Reform, hundreds of physicians wrote into their medical societies and to the legislators in both the House and the Senate asking them to support HB 1449 and SB 982.  Practicing physicians feel disenfranchised by a legislative process that silences their voices. Their voice continues to be blocked by those who have financial ties to a broken system.

Medical Society of Virginia (MSV)’s response to HB 1449 and SB 982 is as follows:

“MSV is opposed to these bills because of their efforts to legislate physician education – which does not align with MSV policy. As drafted, these bills codify many instances in which MOC could be used to regulate a physician’s ability to practice. MSV also has concerns that the bill would negatively impact Virginia’s trauma centers. As drafted, the bill may cause Virginia’s trauma centers to lose their accredited status.”

The drafted version and the substitute version of HB 1449, that was submitted by Delegate Rasoul on February 4, does not legislate physician education. In fact, it clearly left the decision up to the voting members of the medical staff to determine the best route.

The Delegate submitted a substitute to rectify these “concerns” and the substitute language clearly indicated: “If the hospital is a trauma center or a hospital operating a graduate medical education program approved by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association, the hospital shall only differentiate between physicians on the basis of Maintenance of Certification in cases in which the hospitals trauma  center designation or graduate medical program accreditation is contingent upon the hospital requiring American Board of Medical Specialties or the American Osteopathic Association such certification and such requirement is limited to those physicians whose Maintenance of Certification is required to maintain such status.”

For the last three years, the fear mongering used by MSV, VCU, UVA and Virginia Hospital and Healthcare Association (VHHA) to legislators regarding the trauma center has never been based on facts. The original draft legislation directs the Virginia Department of Health (VDH) to protect the trauma center designation based on MOC participation status of the center’s physicians. However, the substitute took into account the “concerns” and provided a carve out.  MSV claims that they do not support one board certification entity over another,  yet their financial ties and policy compendium (pg 69) state otherwise.  It is a mix of yes, we support the American Medical Association’s (AMA) policy on continuing board certification, but what MSV is putting into practice and how they are supporting community physicians is highly questionable.

Official designation as a trauma center is determined by individual state law provisions. However, most states currently defer to the American College of Surgeons (ACS) criteria for determining trauma center designations and the ACS requires MOC for certain positions. This helps prove the point that the legislature controls funding tied to trauma center status and at the end of the day the funding isn’t dependent on whether the centers meet ACS MOC requirements. It’s dependent on the legislature not ACS.

In Virginia:

“Virginia trauma center standards are based upon national standards put forth by the American College of Surgeons (ACS)” However, the ACS criteria is NOT ensconced in Virginia statute, but the decision to use ACS criteria derives from a VDH regulation. The legislature tasked the VDH with creating the criteria and they decided on using the ASC criteria. “Pursuant to § 18.2-270.01 the Virginia Department of Health has been directed to develop a methodology for awarding these funds and to administer the Trauma Center Fund.”

Here’s the relevant excerpt from the Code of Virginia § 18.2-270.01:

“There is hereby established in the state treasury a special nonreverting fund to be known as the Trauma Center Fund.  … The Department of Health shall develop, on or before October 1, 2004, written criteria for the awarding of such grants that shall be evaluated and, if necessary, revised on an annual basis.”

Thus, there appears to be no express requirement in Virginia statute for tying Trauma Center designation to ASC criteria.

It was interesting to note that when opposition testified against the bill the reasons were:

1. New medical information requires MOC in order to stay up to date. This is conflating continuing medical education (CME) with MOC. Board certification and Maintenance of Certification is not required by the Virginia Board of Medicine to practice medicine in the state of Virginia, however CME is required in order to have a license to practice medicine.
2. ABMS is working with stakeholders at the national level with the Vision Commission and with MSV. Of course they are working to protect their main source of revenue! In fact, the largest subspecialty that has been impacted by this is the American Board of Internal Medicine(ABIM), a primary care subspecialty. If there were truly any substantive changes to the process, there would be no need for legislative solutions in Virginia or other states.
3. Board certification is time limited. Yes, for those who completed residency after 1990’s lifetime board certification became time limited. The reality is, we currently have physicians who have lifetime board certification, also known as grandfathered physicians, who are not required to do MOC. According to Dr. Westby Fisher, “Never once in the history of time-limited certification were the potential harms of time-limited certification to working physicians considered or acknowledged.”
4. Board certification with MOC is a physician’s obligation to lifelong learning. I guess if you don’t pay a fee and commit yourself to a process that has no evidence of benefits to physician education and patient outcomes physicians are not lifelong learners?
5. Without ABMS, physicians would not be able to know about the contraindications of flu vaccines and egg allergies. ABMS is a nonprofit testing company. It is not nor has ever been, the authority on evidenced based research or the place where practicing physicians go to for their source of medical knowledge. Leave the graduate medical education to the residency programs and the continuing medical education to the Accreditation Council for Continuing Medical Education (ACCME).
6. Substitute version requires that the governing body abdicates their duty of care to the medical staff. This communicates that the physician medical staff’s duty of care obligation is less important than the governing board of a hospital which is usually comprised of nonphysicians.

Can passing an exam force a physician (or anyone else) to make better clinical and ethical decisions? Are excellent test takers prone to making errors? The caveat about the voluntary nature of the MOC re-certification exam, is that if physicians choose not to engage in the MOC process, impending penalties exist.  Therefore, a physician undergoing the MOC process and who does not pass the recertification exam is publicly reported on the ABMS website as  “not meeting requirements.” Not only does the re-certification requirement after ten years imply that the residency programs have an expiration date; it implies that the medical education received is essentially invalid and the physician must re-enter an educational system that will renew all the education or any “new ” education that exists.  Hence, the penalty for not taking the exam and undergoing the MOC process poses a significant threat to a physician’s ability to practice medicine. ABIM’s enrollment policies mention the word “sanction” at least twenty-six times and “revocation” seven times.  For those grandfathered physicians whose figurative “time is up”, they must submit to publicly displaying their certification as such, otherwise, as stated by the policy of the American Board of Internal Medicine (ABIM), a subspecialty,  they may be sanctioned.   And finally, if the ABMS MOC process is truly voluntary, why is ABMS spending millions of dollars in this state and others on lobbyists to block what supports their own stance?

Clark Havighurst, Duke University Law professor stated it best:  “Where government already has a regulatory presence, private groups may hope that it will respect their standards and seals of approval instead of exercising independent regulatory judgment.”