Closing a Loophole: Medicine Works to Clarify MOC Law
By Joey Berlin Texas Medicine March 2019

March_19_TM_LegeAffairs

It was an important law that gave physicians new life, greatly restricting the discrimination they can face based on their maintenance of certification (MOC) status. 

And yet, opponents may have found a way to circumvent the 2017 legislature’s Senate Bill 1148.

The Texas Medical Association is working with lawmakers after receiving complaints that Memorial Hermann Health System is attempting to work around the law.

Medicine is helping Sen. Dawn Buckingham, MD (R-Lakeway) draft legislation this session to close any loopholes in the law she introduced two years ago. TMA also is pushing the Vision for the Future Commission to strengthen the MOC reforms it proposed for the American Board of Medical Specialties (ABMS) and its 24 member boards. (See “MOC Replacement Plan Needs Teeth, TMA Says,” page 38.)

Last year Houston internist Tai Nguyen, MD, got a warning from Memorial Hermann Hospital Southeast that the hospital’s bylaws required him to update his board certification in order to maintain privileges at two of the system’s hospitals — a decision that’s supposed to be left to medical staffs under the new law. Dr. Nguyen says, according to his personal experience and contacts around Houston, all the large hospital systems in the area are working around SB 1148.

Memorial Hermann, however, says it’s in compliance with the law and isn’t discriminating based on MOC.

Against the intent?

For years, Texas physicians have poured staggering amounts of energy, time, and money into maintaining their specialty certification, because they had to as a prerequisite for hospital privileges, medical staff membership, and insurance panels. To many doctors, the requirements are onerous and trivial; the money spent is wasted and absurdly high; and the ultimate effect on patient care is nonexistent.

So SB 1148 was on the shortlist of medicine’s most celebrated victories of the Texas Legislature’s 2017 session. It generally prohibits health plans from using MOC as a requirement for contracts; prevents the Texas Medical Board from using it as a condition of licensure or license renewal; and prohibits most hospitals and other health care facilities from using MOC status for credentialing, hiring, or retaining physicians. Exceptions include facilities required to use MOC by law, rule, or certification or accreditation standard; medical schools or comprehensive cancer centers; and entities in which the voting physician members of the medical staff vote to authorize the use of MOC.

The idea, ultimately, was to put the decision whether to require MOC into the hands of the physicians on staff. (See “New Balance, New Beginning,” October 2017 Texas Medicine, pages 22-29, www.texmed.org/newbalance.)

But mere months after SB 1148 went into effect at the beginning of 2018, Dr. Nguyen contacted TMA and shared a letter from Memorial Hermann Southeast approving his reappointment to the medical staff at the hospital. According to the letter, “The Bylaws state that you are required to ‘maintain board certification,’” and “must obtain recertification within three … years” of any lapse in certification. The letter then informs Dr. Nguyen that his board certification expired at the end of 2017, and the grace period to recertify runs through the end of 2020. He recertified with the American Board of Internal Medicine in 2007, but decided not to re-up it because of the MOC requirements’ lack of relevance to his practice.

Dr. Nguyen says Memorial Hermann has system-wide bylaws for MOC that apply to all of its hospitals, rather than bylaws for each individual hospital. “Basically,” he said, “nothing gets done unless [there’s a] system-wide change.”

Memorial Hermann Southeast became the center of MOC-related struggles reported in 2017 shortly after SB 1148’s passage but before the law took effect. At that time, a number of physicians told TMA that attending physicians at Southeast voted unanimously to remove MOC requirements there, but a Memorial Hermann spokesperson denied there was any such formal vote on record. The system’s bylaws at the time required any changes be approved by the active medical staff at each hospital.

In a recent statement to Texas Medicine, Memorial Hermann said it does not have system-wide bylaws addressing MOC, and in fact, doesn’t have system-wide medical staff bylaws at all.

“Each hospital has its own medical staff bylaws, which were voted on by the general medical staff members. As for the law in question — SB 1148 — Memorial Hermann is in compliance with all aspects of the law. More specifically, Memorial Hermann does not discriminate on the basis of MOC.”

More work to do

State Rep. Greg Bonnen, MD (R-Friendswood), who sponsored SB 1148 in the House in 2017, said in January that it is “possible” he would sponsor Senator Buckingham’s anticipated proposal to clarify the law.

“I think Memorial Hermann is intentionally subverting the statute, and unfortunately, they’re not acting in good faith,” Representative Bonnen told Texas Medicine. “If they were, we wouldn’t have to have this conversation. But now, I think we’re going to have to revisit it.”

Houston neurologist Kim Monday, MD, a member of TMA’s Council on Legislation who testified in support of SB 1148 before its passage, says state law needs to address the housekeeping issue of whether hospitals’ pre-SB 1148 bylaws requiring MOC are still in effect.

“After the law went into effect, a dispute was noted across hospital systems regarding whether the law assumes MOC requirements must be voted ‘in’ or ‘out’ as a requirement for privileging,” Dr. Monday said. “These issues should be clarified legislatively so we don’t have to do that in the courts.”

She noted the lawmaking process included compromises with academic institutions and facilities who felt accreditation required MOC for legitimate reasons.

“Our job is to protect patients, and doctors all agree more education is better for patients. However, burdensome requirements to take tests based on 10-year-old data does not help the doctor-patient relationship. If the medical staff believes a particular MOC requirement does not protect patients, the medical staff can [decide] not to require MOC; this was the intent of the final rule. In my opinion, the legislative intent was to place this important decision in the hands of doctors, not in the hands of nonphysicians.”

Despite possible attempts to circumvent it, physicians say SB 1148 addressed an important problem and has been impactful thus far. Representative Bonnen notes that in addition to the burdens MOC had created, “older physicians were grandfathered out, creating the paradox that physicians who were most recently out of their training were the ones subject to [MOC].

“Senator Buckingham, I know, had worked for many years to try to reform the MOC processes without legislation,” he said. “She had tried to work through the ABMS to see if there could be some resolution to the concerns that many physicians had without seeking any type of statutory remedy and simply was not successful.”

Dr. Monday says the largest impact of SB 1148 to date is that certifying boards are changing their MOC requirements to make them more reasonable.

“There were boards that were very reasonable and listened to physicians, and then there were boards that were not reasonable, did not listen,” she said. “For instance, in the American Academy of Neurology, they’ve announced an alternative pathway for maintenance of certification that makes much more sense than the subject matter test that they were requiring before. So to me, that’s the biggest change.”

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 Tex Med. 2019;115(3):36-38 
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Last Updated On

April 17, 2019

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Joey Berlin

Associate Editor

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Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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