Medicine

Well, I won. Six years after I started down the very slow process to end forced MOC (Maintenance of Certification) in my state, it happened. On December 27, 2018 Michigan governor Rick Snyder signed HB 4134 and 4135 into law. The harm Blue Cross Blue Shield (BCBS) caused me and my patients will never happen to another pediatrician in Michigan.

I know. Crazy. I’m still in shock. It’s taken a while to process it enough to write about it.

So what happened? How did we go from “My MOC Failure” to victory in one year? From an outsider’s view, this signing was an abrupt end to MOC discrimination in Michigan, a nice neat Thanos Infinity War finger snap.

The inside reality was more Endgame: old and new friendships from all walks of medicine and politics coming together, devising a plan, racing against time to beat a powerful adversary, but sacrificing some good people along the way.

The Michigan legislation started six years ago in the Michigan State Medical Society (MSMS) House of Delegates, with some very simple resolutions opposing forced MOC. As physician awareness of MOC and its harm escalated over the years, so did the strength of the resolutions passed by the delegates, eventually culminating in a resolution to pursue legislative action. MSMS stepped up to the challenge, found sponsors, and legislation was introduced in 2015 to prevent hospitals and insurers from discriminating against doctors for not purchasing MOC.

The first committee hearing in 2016 was eye opening. The hospitals freaked out. The insurance companies freaked out. The American Board of Emergency Medicine, located in Michigan’s capitol, freaked out. Clearly, these organizations allow grandfathered doctors to practice without concern, yet went into full doomsday mode at the idea of younger doctors practicing without buying MOC.

And that was it. The bills died in committee.

So next legislative session, in 2017, the bills were re-written and we started again. This time, instead of trying to fight insurance companies and hospitals, we focused only on the insurance companies. The rationale being that hospital bylaws can theoretically be changed by doctors, but discriminatory insurer bylaws cannot.

So off we went to committee again, thinking we’d have smoother sailing.

But now the opposition was even more organized and vocal. As anticipated, BCBS opposed. But American Board of Medical Specialties sent in their big guns, the American Board of Emergency Medicine stacked the room with their board members to oppose, the American Board of Ob-Gyn and American Board of Orthopedic Surgery did the same.

The kick to the gut was a mother of a chronically ill child, who gave tear-jerking testimony in opposition to the bills “on behalf of parents”, but never disclosed she was with the American Board of Pediatrics Parent Advisory Council. It was madness.

And so the bills sat in committee again. In the committee’s eyes, physicians were divided: some wanted the bills and some didn’t. They didn’t see the clear conflict of interest with all opposition coming from those profiting from the monopoly.

The bills sat for over a year, and were set to expire at the end of 2018.

The 2018 midterm elections in Michigan divided our state government into a Republican legislature and Democrat governor, and our bill sponsor Dr. Ned Canfield decided to retire. The prospect of finding a new sponsor, re-educating a new legislature, and convincing a divided government to pass MOC reform…ugh…it was over.

But what about lame duck? With just a few weeks left in the legislative session, the impending leadership change had bills flying left and right. Could we squeak in under the wire, and more importantly, under the radar of the powerful ABMS friends?

One physician lawmaker said, “No way. Not possible. You’re too late. Try again next year”. The medical society didn’t have a lame duck strategy for the bills, and were skeptical. But to their credit, they got to work and quietly moved them forward.

The insurance bill was amended to appease BCBS, a big amendment: it would only apply to “primary care”, so pediatricians, internists, and family medicine. And to appease the hospitals, the package included joining the FSMB Interstate Licensure Compact, with some minor amendments to assure the compact pathway would be voluntary.

It was a crummy deal, but with days left before the legislative session’s end and the possibility of years before we had another shot, it was better than nothing. We took the deal.

Freed of opposition by BCBS and the hospitals, the amended bills sailed out of the house, passed unanimously through the Senate Health Policy Committee and then the full Senate. It happened so fast, ABMS and team were caught flat-footed. They couldn’t scramble their “A” team to testify in time, and their “B” team was eaten alive in committee. All the usual opposition by the Emergency Medicine Board fell flat, as the bill didn’t apply to them. It was beautiful.

But we compromised a lot for this little slice of freedom: we went from a bill to prevent MOC discrimination by hospitals and insurers for all specialties, to a bill that prevents MOC discrimination by insurers but only applies to pediatricians, internists, and family doctors. As BCBS was the only insurance company engaged in MOC discrimination, we did all that work to prevent one insurance company from requiring MOC for three specialty boards. And we joined the FSMB Interstate Licensure Compact (which requires MOC to get the initial license). Like I said, it was Endgame. We won, but we lost a lot.

Was it worth it? Well, for me, yeah. Pediatricians were chosen as “winners” in this bill. In Endgame vernacular, I wasn’t sacrificed over the cliff on Vormir. Was this by design, to get me to finally be quiet? Maybe. If so, it kinda worked.

I took care of my peeps. I feel bad for physicians in the remaining 21 specialty boards excluded from this legislation (well, not the ER docs, you get all the MOC you deserve as your colleagues nearly derailed the whole thing). But certainly not bad enough to turn down the deal when lawmakers offered it.

And winning after six years of late nights, early mornings, travel, flights, testimony, meetings, phone calls, blog posts, media interviews, lawmaker roundtables, inbox full of encouraging emails, and some threatening emails has left me a little tired out. When I started down this path, my son was in kindergarten. He’s a middle schooler now. This has been a long haul. I’m not going to be leading the charge for the surgeons, but more than happy to teach them how to do it.

We have a saying in medicine: See one, do one, teach one. What can I teach? There is a general recipe for success that applies everywhere: get your state medical society on board with a policy resolution, find a sponsor (most likely a physician lawmaker), write a bill, get it passed. There are some cautionary lessons that carry through in every state battle, and these truths were reinforced in Michigan.

I learned about the power and impotence of organized medicine. Straight up, the AMA is worthless in this fight. ABMS found their way from Chicago to Lansing to oppose the bills multiple times over many years. But the AMA, located just a block away from ABMS in Chicago? Not a peep. No support. Not even a letter. Your state medical society remains your single greatest ally to effect change.

I learned how much harm physicians in power can cause practicing physicians, and the shameful tactics they will use. At every hearing, physicians came to oppose MOC freedom. Without fail, a simple Google search showed these physicians were benefiting from the MOC industry.

You have to be prepared for heartbreak, intimidation, dirty tricks, and last minute ambush efforts. I watched this play out in Texas and Oklahoma, but I was still shocked in my own state. The mother used by the American Board of Pediatrics to mislead lawmakers was just appalling. (Not surprisingly, she was rewarded for her loyalty by a prime seat on the ABMS Stakeholder Council). In our final senate committee, the president of the Michigan College of Emergency Medicine showed up at the last minute, yelled at me, threatened to derail the legislation, even though it didn’t even apply to ER physicians. With so much money and power at stake, these behaviors are not surprising, but still hard to watch up close.

The part I can’t teach is the art of this process, as every state has their own organized medicine and political culture. You don’t know how it works until you jump in. I’ve had many people tell me there were certain “lucky breaks” I had in Michigan to make this easier: I’m a medical society delegate, I’m on my county medical society board, I had the Rebel.MD blog, my medical society cares, I understand the legislative process, I know politicians and their staff… as if those “lucky breaks” weren’t 100% by design and hard work.

It wasn’t by accident that I gave up my weekends every spring to be a medical society delegate, or evenings every month to be on my county medical society board, or countless hours building and maintaining Rebel.MD to get the message out. It wasn’t by accident that I met dozens of lawmakers in their offices and out in the community to discuss many issues, including MOC. This was pure hard work, not luck, not privilege. This is the stuff you can’t be taught and you can’t outsource. You just have to do it.

I’m a private practice pediatrician. I’m a serious nobody. I don’t have family or friends in high places. I didn’t know anything about organized medicine, politics, or website building until I did it. All the docs who helped in Michigan were new to this. The fact that we did this in Michigan with such an inexperienced rabble of docs without any resources, should be inspiration that this can happen in any state.

It takes time, but this can happen anywhere. Who knows, maybe even Illinois.

Whatever it takes, docs, whatever it takes.

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Oh, and here’s a photo of me and my hero, Dr. Ned Canfield, after the final senate hearing where his bills passed unanimously. I keep this on my desk in the office. He was a rock, the unsung soft-spoken hero of the MOC battle in Michigan. MOC freedom is his legacy, I am forever grateful.

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See how your state is doing with MOC legislation at www.stateofmoc.com.

It’s been a rough few weeks for physicians in this year’s first state battles against forced Maintenance of Certification. The good news is that 13 states now have pending legislation to limit the power of the ABMS over physicians. These bills are coming up in red states and blue states, sponsored by democrats and republicans alike. Maryland even has bipartisan sponsorship of their bill. The bad news is we physicians have a steep learning curve, as we’re finding out that hospitals, insurance companies, and the ABMS are incredibly powerful and organized in their lobbying efforts.

The past few weeks have produced disappointing but instructive failures in Oklahoma, Tennessee, and Florida. While heartbreaking to watch, there’s much to learn from these states as we all move forward. As testimony to the true grass-roots nature of the MOC battle, each of the 11 states are trying different legislative angles. There is no “template” being used. This is both exciting to see, and a bit nerve-wracking. The states are a “laboratory of democracy”, and this MOC battle demonstrates this, as each state tackles the issue in different ways that best suit their legislative climate.

Oklahoma stunned everyone last year when they passed the first Right to Care legislation protecting patients and their doctors from MOC red tape, in bipartisan fashion, without a hitch. Unfortunately, the language was not as tight as first thought, and hospitals found wiggle room to continue forcing MOC on some doctors while exempting “grandfathered” doctors. Oklahoma HB 1710 was introduced this year to clarify the language for hospitals.

The bill looked like a slam dunk. The hospitals didn’t seem to oppose it, the medical society didn’t even make it a priority for physicians to call prior to the vote. In the final 24 hours before the vote, the ABMS and the hospitals went on a lobbying and misinformation tirade, pouring incredible amounts of lobbying pressure and money upon the legislature. (ABMS and Hospital Talking Points Found Here.)

Physicians were caught off guard (because we work), and were completely flat footed to respond to such an outpouring of lobbying power and misleading information. In the end, HB 1710 failed miserably 71-22. Oklahoma’s MOC law from last summer still stands, but in legal limbo, likely needing an Attorney General’s guidance on what the law means.

The takeaway point here is that the ABMS will spare no expense to stop state legislation. The ABMS will ignore the rights of physician diplomates and will instead work together with hospitals and insurers and lobby for the “rights” of hospitals and insurers to force doctors to buy their MOC product. This is stunning mission creep on the part of ABMS and violates their claims upon the “voluntary” nature of MOC, but is not surprising given the money involved.

ABMS plus the 24 subspecialty boards currently have $1 billion in assets. This is a high-stakes game, and the lobbying effort in Oklahoma shows they will outspend us at every turn. They know we have real jobs, and can’t abandon patients and cancel surgery on short notice, so they will lobby last minute in ways we cannot. This means we need to start personal conversations with our lawmakers early and often about MOC. We can’t rely on medical society lobbyists, we need to make the calls ourselves and get our colleagues to call as well.

Tennessee started out very strong this session with an elegant MOC bill SB 298, sponsored by Senator Richard Briggs. If you don’t know who this guy is, just Google him. This is the guy you want sponsoring your MOC bill: Cardiothoracic surgeon, army trauma surgeon, Bronze star, the physician that treated ABC anchor Bob Woodruff when he was injured in a bomb blast in Iraq, —on and on, just a class act. The hospitals and insurers had such a fit and lobbied so hard against the bill, pushing delay upon delay, that the senate committee had to strip any mention of hospitals and insurers from the bill for it to move forward. The sad, impotent Tennessee bill now simply says that MOC can’t be required for a medical license. Which…it never has been required. In fact, MOC isn’t required for a medical license anywhere in the country. So Tennessee wrote a bill outlawing something imaginary.

The takeaway point here is that hospitals and insurers desperately want to force MOC on “their” doctors. I have no idea why, but they do. Perhaps it’s a way to control doctors, perhaps it’s just a marketing ploy, i.e. “all our doctors are board certified”. Perhaps it has something to do with NCQA making ABMS board certification a HEDIS measure (funny how that happens, when the president and founder of NCQA is also on the board of ABMS). But for true reform, we have to take on the hospitals and insurers. What good is a medical license if we can’t practice in a hospital or participate with insurance companies without being coerced to participate in ABMS MOC?

Comprehensive MOC legislation must have three components if it is to ensure MOC as a voluntary program: it must prohibit MOC from being required for a medical license as a preventive measure, but must also prohibit MOC from being required for hospital privileges and insurance reimbursement because this type of coercion, discrimination, and harm is happening now. If any of these three components are missing, physicians can still be forced to participate and pay in order to work: they will not be free.

For states that have to settle with legislation that only prohibits requiring MOC for a medical license, don’t settle for long. Keep pushing. Kentucky, Missouri, and North Carolina passed this type of limited legislation last year. Maryland, Rhode Island and now Tennessee are likely to pass this type of weak legislation this year. Don’t settle, keep pushing for more next year.

Florida. Oh Florida. I don’t even know what to say. The story of Florida’s MOC legislation is just plain bizarre, not quite Florida Man bizarre, but still…close. Florida had fantastic MOC legislation with SB 1354, it was comprehensive and beautiful. Then it went to committee and everything went sideways.

The health policy committee “amended” the legislation, by erasing every single word of the bill and replacing it with their own language directing the state to regulate the subspecialty boards, with a plan to control MOC rather than ensure its voluntary nature. The language now allows doctors to be forced to do MOC, so long as the board registers with the state, is a 501c3, has a brick and mortar building with full-time employees, requires ongoing “practice improvement modules”, charges no more than $500 every other year, and doesn’t require additional testing, plus whatever extra regulations the state wants to add at a later date. If a board does not comply with these requirements and get certified through the state of Florida, Florida doctors can no longer call themselves board certified in that specialty.

This tactic is so out of left field, I can’t make heads or tails of it. On one hand, I chuckle at the idea of the certifying boards having to comply with certification themselves. On the other hand, for boards that spend a little extra money complying, they will have the legitimacy of the state behind them. Like all forms of regulation, it always favors the “big dogs”. Despite public protests to the contrary, big corporations like regulation and often lobby for more regulation to stifle competition, knowing start-ups don’t have the funds to wade through the red tape. A situation like this with open-ended regulations will favor the well-funded boards under ABMS and their lobbying prowess and harm competition like NBPAS.

I don’t even know what the takeaway is from Florida, other than a need to stay vigilant. I’ll sit by with popcorn and watch what happens, but certainly wouldn’t encourage this method for other states until we see how the Florida experiment shakes out. The Florida legislation does not make doctors more free, it does not decrease the cost of healthcare, it does not increase access for patients, it does not decrease the regulatory power of the state. It takes a budget-neutral bill and creates new regulatory authority for the state with the expected budgetary bloat involved. But, it’s fascinating to watch from the outside.

My only piece of advice for doctors in Florida faced with this bill of uncertain impact…ask for one last amendment: the approved boards must provide peer reviewed data showing improved patient outcomes from their programs. As there is not a shred of evidence behind MOC, this simple amendment will stop this nonsense cold.

Going forward, I have most hope for Texas, Alaska, and Georgia to lead the way this year in real reform. Georgia has already passed their bill through the legislature and are only waiting for the governor to sign. Texas and Alaska have comprehensive MOC bills, and have similar personalities in their physicians and their legislature: they don’t like outsiders telling them what to do. I expect they will pass their bills this session without difficulty.

The ABMS, hospitals, and insurance companies have shown their hand. It’s our turn to take a good look at what has happened in Oklahoma, Tennessee, and Florida, do our M & M conference, and move forward smarter and more effective as a result of these pioneering states.

Right to Care legislation is right for patients and their physicians. We may not have the lobbying money or the power, but we are on the right side here. It sometimes feels like we’re a small disconnected group of physicians hashing this out in our own states, but we don’t have to fight alone. We can work together and learn from each other. Physicians in states that succeed can mentor physicians in states that are aspiring.

The AMA has been woefully silent on this issue, but Right to Care legislation is exactly AMA MOC policy put into state legislative form. This is not fringe, this is supported by the vast majority of physicians, our state medical societies and the AMA. Knowing this keeps me confident we will succeed.

Photo by SWoo

Update: Now 12 STATES! Maine has a bill heading to testimony on Tuesday, April 11!