October 10, 2024

BY ELECTRONIC MAIL

 

To the Texas Medical Board (TMB):

I am respectfully submitting these comments on behalf of the National Board of Physicians and Surgeons (NBPAS) and its over 1,100 physician diplomates in Texas who request the right to advertise as “board certified” in the State of Texas. Because the TMB disclosed no rationale for maintaining the status quo of §§164.1 - 164.6, I will comment on the core issues that NBPAS believes have been overlooked in this process.

NBPAS fundamentally agrees with the TMB that patients must be protected from fraudulent or unqualified physicians. However, requiring “current” board certification via ABMS/AOA is not an appropriate pathway to accomplish this goal.

As you are aware, requiring “current” board certification forces physicians (who are not ‘grandfathered’) to participate in MOC which - by any and all unbiased measures - entirely lacks quality evidence linking MOC to better clinical outcomes. Paradoxically, the TMB continues to allow physicians who are “grandfathered” from MOC to advertise themselves as “board certified,” while enforcing a different standard (and mandating MOC) for physicians who are not grandfathered.

This discrepancy has led to an advertising rule that is unequally applied to a significant portion of the physician population, exempting up to 40% of doctors in Texas since the rule's inception. This fact further underscores the burden that the current advertising rule places on exactly the physicians that Texans wants to keep in Texas - younger, newly trained physicians who have their entire lives and careers ahead of them. The current advertising rule instead creates a significant administrative burden, and worse yet, one that is unproven by all objective measures.

And while the letter of the law may allow this advertising rule to be considered separately from state law that prohibits MOC for Texas medical licensure, the fact is that being prohibited from advertising one’s board certification status effectively undermines physician employability, as many positions in Texas require physicians to advertise their certification status for competitive or contractual purposes.

NBPAS also strongly disagrees with the TMB’s determination that there is “no probable economic cost to individuals required to comply with these proposed sections.” The continuation of these outdated rules will impose many economic and professional burdens on physicians, hospitals, and patients across Texas as follows:

• MOC lacks empirical evidence proving its clinical worth yet is a known factor in driving physicians out of medicine and into retirement.
• MOC worsens the physician shortage in Texas, which has a currently estimated shortfall of over 20,000 physicians, a shortfall that disproportionately affects Texas in rural communities and of low socioeconomic status.
• 224 of 254 Texas counties are designated as Health Professional Shortage Areas (HPSAs) where there are more than 3,500 patients for each single physician. It is estimated that 6,066,420 Texans live in HPSAs and can not get the care that they need.
• 45.2% of Primary Care residents in Texas leave the state to practice elsewhere, a trend that is likely to be accelerated by an onerous MOC requirement required for the purposes of advertising as board certified.
• There are economic consequences to physicians and hospitals that rely on the ability to advertise their physicians as “board certified” for competitive advantage meaning that the TMB’s rule will ultimately restrict many physicians - who choose not to participate in MOC programs - from getting a job or practicing medicine in the State of Texas, creating a further incentive to leave Texas to practice elsewhere.
• Physician loss is estimated to cost hospitals and the larger community up to $1.2 million per physician per year, reflecting money lost on recruitment, retention, and revenue generation for the employer, not to mention loss of care by patients in need.
• Without access to physicians, patients delay preventative services, further risking the development of more expensive conditions, ultimately paid for in catastrophic intensive care or emergency department visits.
• Fewer doctors translates into less competition that can bring down healthcare costs for the insured and uninsured.
• Texas continues to be among a very small minority of states that require MOC for the purposes of advertising as board certified, a further disincentive to practice medicine.

TAC §§164.1-164.6 must be reconsidered and updated in favor of policies that retain physicians, promote fairness, prioritize patient access to care, and return the true meaning and intent of the term “board certification.” NBPAS again submits the following amendments:

Suggested amendment (new language in blue):

(a) A physician is authorized to use the term "board certified" in any advertising for his or her practice only if the physician has achieved an initial board certification by a specialty board that conferred the certification and the certifying organization is a member board of the American Board of Medical Specialties (ABMS), or the American Osteopathic Association Bureau of Osteopathic Specialists (BOS), or is the American Board of Oral and Maxillofacial Surgery and continues to practice medicine in the same specialty of the initial certification.

 

This amendment would:

1. Maintain the original intent of the law by ensuring that only physicians who have completed rigorous specialty training and initial certification can advertise as "board certified."
2. Standardize the definition of "board certified" to include physicians who have passed a rigorous certification exam and participate in Continuing Medical Education (CME) or Continuing Certification (CC).
3. Ensure equity by removing the discriminatory practice of “grandfathering,” which currently exempts up to 40% of practicing physicians from MOC while disproportionately impacting younger, more diverse physicians. As written, §§164.1-164.6 is allowing many Texas physicians to advertise as “board certified” even though these physicians are exempted from MOC.

In summary, the current rule presents a barrier to physician employment and a disincentive to practice in Texas. It is imperative that the TMB revises these rules to support Texas physicians, ensuring they remain in-state to provide critical patient care.

 

Sincerely,

Paul S. Teirstein, M.D.
President, NBPAS
Chief of Cardiology, Scripps Clinic
Medical Director, Scripps Prebys Cardiovascular Institute