Landmark Opinion from the Justice Department about MOC

Dear Colleagues,

This week, the U.S. Department of Justice Antitrust Division issued a landmark opinion about MOC, vindicating NBPAS’s long-held position that alternative organizations are needed to promote competition in physician certification. In an opinion letter, the DOJ validated the NPBAS four year struggle to make continuous physician certification more meaningful and less burdensome. This public position by the DOJ should be emphasized by physicians and other stakeholders as they ask hospital boards and insurance companies to accept alternative certification organizations when setting criteria for hospital privileges and payer contracts.

The DOJ opinion letter came in response to a pending Maryland bill promoting competition in physician certification that was introduced by NBPAS board member and Maryland legislator Dr. Dan Morhaim. The DOJ explained that the ABMS Program on MOC may have the effect of “harming competition and increasing the cost of healthcare services to customers.” ABMS may do so “by imposing overly burdensome conditions on physicians who wish to maintain their certification.” The DOJ added, with respect to ABMS, “[the] vast majority of [its] board members are medical doctors”—i.e., “active market participants”—who may have incentives to limit competition through “industry self-regulation.” As a result, the DOJ warned, “there would be competition concerns, if dominant certifying bodies [like ABMS] set de facto participation requirements that did not sufficiently correspond to health, safety, or other procompetitive justifications.”

As physicians familiar with MOC know, current ABMS MOC programs have not been shown to correlate with quality of practice or patient outcomes, and yet the burden they impose on doctors is severe. NBPAS provides a more meaningful form of continuous certification. The DOJ urges such competition. It encourages legislatures to promote competition by recognizing “additional, legitimate certifying bodies” such as NBPAS, whose recognition the DOJ believes “could allow for a competitive alternative to ABMS in certifying medical specialists.” Such competition may provide a host of benefits, including physicians’ passing on “extra time and lower costs in the form of savings or extra care for consumers”, physicians’ “seek[ing] additional subspecialty certification or [staying] in practice longer”, and “further encourage[ing] the incumbent certifying body to continue refining their processes to be competitive.”

The DOJ was strongly supportive of competition in MOC stating “If other new bodies, unaffiliated with ABMS or NBPAS, can offer a more (or similarly) efficient and accurate way to certify medical specialists, the interests of competition may be better served if they have an opportunity to compete on the merits of their approach with physicians, hospitals, payers, and consumers, without needing new, ad hoc legislation to support their entry.”

NBPAS applauds the DOJ for addressing the important issues surrounding MOC. The DOJ’s legislative comment is a watershed moment. It lends powerful support for the positions NBPAS continues to press with all stakeholders in the industry.

For the full text of the letter, see the link below from the DOJ

From: Haar, Daniel
Sent: Monday, September 10, 2018 4:57:27 PM
To: Morhaim, Dan Delegate
Subject: RE: Response regarding MD 857

Delegate Morhaim,

To follow up, I wanted to let you know that our letter responding to your inquiry is also now available publicly at the following link:

https://www.justice.gov/atr/page/file/1092791/download

All the best,
Daniel