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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto


Re: Draft report of the Special Committee on Maintenance of Licensure for comment period ending Jan 7, 2008

Federation of State Medical Boards
By email to [email protected] and fax to 817.868.4122

January 7, 2008

The Federation of State Medical Boards is “exploring a new way to assure the public that physicians retain skills throughout their careers.”

The Association of American Physicians and Surgeons (AAPS), founded in 1943, represents thousands of physicians in all specialties nationwide, who provide care for millions of patients. We respectfully submit these comments for your consideration.


AAPS suggests that the objective of the FSMB should be to improve the quality of medical services available to Americans. The FSMB should at all times employ evidence-based principles in diagnosing problems and prescribing remedies.


The first step should be to prioritize the problems that may impair Americans’ access to competent medical services. This requires study of the extent and severity of problems, including (but not necessarily limited to) the following, and of their effect on the quality and availability of medical services.

Problems with a potential harmful impact on medical services:

  1. Early retirement of physicians with years of clinical experience, including involuntary retirement owing to unwarranted licensure board actions
  2. Poorer quality of applicants to medical school
  3. Less time devoted to patient care, or to each episode of care, by physicians, owing to a. Social factors (expectations of more free time for other activities)
    b. Regulatory demands
    c. Necessity to increase “throughput” to bring in adequate revenue
  4. Shortage of American-trained physicians, with increased reliance on foreign-trained physicians with suboptimal English language skills
  5. Demoralization of the profession because of fear, intimidation, harassment, or excessive regulatory busywork.
The FSMB apparently believes that a much higher priority is that practicing physicians, or physicians who have not been in what they consider to be a sufficiently active practice for an undefined length of time, may be incompetent. No evidence, however, has been presented. Rather, the FSMB justifies the call for increased regulation by citing political (“public”) pressure and referring to the frequently quoted Institute of Medicine (IOM) Report on medical errors.

Apparently, the FSMB accepts the IOM’s conclusions without a critical look at the methodology, such as extrapolation from a small number of cases, unclear definitions of “error,” and uncertainty about whether the patient’s death had anything to do with the “error.” More to the point, the FSMB makes no analysis of the basic competence of the physicians’ care and the differential diagnosis of causes of error, for example, inadequate nursing staff, reliance on agency nurses unfamiliar with the institution, overtired nurses having to work double shifts, pharmacy error, poor intrahospital communications, poor hospital risk management, pressure to discharge patients quickly, staff distraction by excessive documentation requirements, fragmentation of nursing tasks with delegation of too much to undertrained aides or technicians, etc.

The FSMB also makes the unjustified assumption that if physician incompetence is a problem, it is the result of under-regulation by the medical board. More likely, the existence of this problem would be an indictment of the medical education system and of its failure to select well-prepared, self-motivated applicants able to understand and meet the requirements of their jobs. It is also an indictment of the continuing medical education that physicians are already forced to receive. Indeed, the FSMB acknowledges the problem that CME may not translate into any improved outcomes or quality—despite the expensive and onerous hoops that Category 1 CME sponsors must jump through. The CME community is said to have made “great strides in addressing concerns about CME’s impact on physician practice and in developing CME programs and criteria that address physician performance and lifetime learning.” So far, this progress has not filtered down to our hospital’s CME Committee, of which I am chairman—only the demand from the accrediting agency that we somehow figure out how to make it happen and to “document” that we did so.

If the system suffers from these basic failings, how would they be mitigated by demanding still more evaluations, tests, surveys, and documentation?

Evidence-Based Outcomes Research

Proposed remedies should be based on evidence of their effect on actual outcomes. As in medicine, all remedies have a cost and potential adverse effects.

Is there any existing evidence that time taken away from patient care to meet the proposed requirements results in improved outcomes for patients? Might outcomes actually be worse? Are there even any studies? Is there any evidence that studying for a specialty board’s test is a more effective method than learning about problems actually encountered in one’s individual practice or about therapies that one might actually use?

The FSMB acknowledges that previous proposals were rejected because of concerns about a negative impact on the workforce, or resistance from professionals based on lack of evidence of a positive effect on quality of patient care. These concerns still apply.

The proposals would indeed be extremely costly. For example, a physician who wished to reenter practice, say after taking time off to bear children, might have to pay for a practice monitor who is actively practicing in the same specialty. Many if not most qualified specialists are likely already working harder than they wish, or even than they should. It may be impossible to find, much less afford a monitor. The cost of the other suggestions such as a “formal assessment program” or “mini-residency” is also likely to be prohibitive, especially for heavily indebted physicians in underpaid specialties. If the new requirements force physicians to stay out of the workforce despite their long years of training, will patients be better off seeing physician assistants or nurse practitioners with much less education?

No additional requirements should be enacted on physicians without an environmental impact study. The benefits must clearly exceed the costs, burdens, and adverse consequences, such as misdirected study, chilled innovation, a deterioration of quality in areas not subjected to measurement, and worsened physician shortages. Ongoing quality assessment of the quality improvement program must be carried on, and measures that are not affirmatively found to be beneficial should be discontinued because it is harmful to force physicians to waste their time on nonproductive or counterproductive activity.

It should be noted that physicians in solo practice, once the mainstay of medical practice, would be especially burdened by new requirements. Indeed, the FSMB seems to be actually hostile to this group of physicians, although they provide services in otherwise unserved areas and offer patients options they would be unable to find within corporate structures. In fact, one of the “core competencies” developed by the Accreditation Council for Graduate Medical Education is “systems-based practice.” This is a radical departure from patient-based practice, and it is unclear how it would exist in a solo practice. The term is undefined, unvalidated, and not shown to be superior to patient-based practice. There is certainly no justification for using it to demolish a form of medical practice that has endured for centuries and is still chosen by many physicians and patients.

An Alternate Proposal

If medical licensure boards are perceived as doing a poor job, then their performance should be assessed. The FSMB should take responsibility for proposing appropriate methods.

State legislatures should establish a standing oversight committee to assure that the public is getting the quality performance expected of the board. The oversight committee should establish performance measures. Board members should receive appropriate training, and their adherence to the measures should be periodically assessed, with review of any pertinent records. Of course, board members should have to meet exacting qualifications for the job, including certification and recertification at least as demanding as required of licensees, and their credentials should be investigated and validated. Failure to meet performance standards, or violation of ethical standards, should result in a report to a national data bank, and to sanctions against the licenses of board members who are medical professionals.

Ethical and performance standards include:

  1. Clear definition of, and respect for, physicians’ due process rights. Physicians are a valuable community asset, and their years of education and experience must not be squandered. Rights include: a. The right to know the charges and their source
    b. The right to confront and cross-examine the accusers
    c. The right to view all evidence against them with adequate time to respond
    d. The right to legal representation
    e. The right to an unbiased tribunal
    f. The right to present evidence and witnesses in their favor
    g. The right to appeal serious sanctions against their license to a court of law for a de novo hearing before an objective tribunal that follows standard rules of evidence
    h. The right to have a clear statement of the law or the standards so that a reasonable person may know when he is in violation
    i. The right to be free of retaliation for exercise of free-speech or due-process rights.

  2. Truthfulness, transparency, and accountability at all stages of the process. Testimony should be given under oath, with serious penalties for perjury.

  3. Competence. Investigators and witnesses against a physician should be knowledgeable about the matters being investigated. Witnesses should have comparable qualifications in the pertinent specialty. Physician board members in a comparable specialty, or the experts they rely on, must prove their ability to pass any of the tests they impose on a licensee. Evidence of appropriate recredentialing of board members and investigators must be submitted periodically to the oversight committee. If a licensee or other citizen should complain about a board member or investigator’s apparent lack of current knowledge, this official must provide evidence of having recently passed an examination considered appropriate by the oversight committee, after comments and approval of the examination by the physician community.

  4. High standards of ethics: a. Board members must declare any conflicts of interest, and recuse themselves from proceedings, such as those involving a competitor or associate, if impropriety or the appearance of impropriety might be associated with their participation. Association with a third-party payer to which a licensee’s patients submit claims should be deemed to be a conflict of interest.

    b. Neither the board nor any of its members or staff should receive consideration of any type as a result of referring a physician for outside evaluation or treatment.

  5. Professionalism. Investigators, staff, and board members will treat licensees with respect. Threats, intimidation, and demeaning language will be subject to sanction as unprofessional conduct.

  6. Cost-effectiveness. The board shall not waste the taxpayers’ or the licensees’ money by repetitive, onerous demands for material not likely to lead to pertinent information.

  7. Proportionate penalties. Sanctions shall be proportionate to the offense. Like offenses shall be treated similarly. Targeted physicians shall not be expected to meet standards that could not be met by any reasonably qualified physician. Penalties or remedial measures shall pass a common-sense test, as determined by a blind survey of a representative random sample of the physician community.

  8. Wise allocation of resources. The public cannot be protected if the board is wasting resources on trivial administrative complaints or professional differences of opinion while downplaying cases involving dangerous treatments, unethical behavior, or physician impairment.

  9. Confidentiality. Physicians should be protected against dissemination of unproved allegations. Physicians should, however, be able to waive the right to confidentiality if they choose to do so in order to expose unfair board procedures. Board members, staff, and investigators are public servants, and confidentiality must not be used as a shield to cover conflicts of interest, abuse of power, incompetence, or malfeasance. The confidentiality of patients should be protected, and physicians should not be penalized for seeking patient consent prior to the release of their information to the board.

Conceptual challenges

Physicians go through a rigorous selection and arduous training process precisely because medicine is a profession. The Report of the Board of Directors asserts that there is a need to “balance public interest against professional autonomy.” In fact, the existence of professional autonomy is very much in the public interest. It is contrary to the public interest to have physicians (no longer correctly considered to be a profession) subservient to special interest groups or political bodies. These include insurers, pharmaceutical companies, device manufacturers, and competitors threatened by newer, more effective therapies or more skillful practitioners. If physicians merely have “permission” to earn a livelihood in their chosen vocation, after their tremendous investment and passage through innumerable tests—and this permission can be revoked at the whim of “stakeholders”—few sane, intelligent individuals will choose to enter medicine. The greater the authority of the regulator, the more there is to be gained by special interests and the greater the likelihood of corruption and abuse of power.

Physicians have a property right in their skills. This can rightfully be taken only if they violate the law or the public trust. It is not rightfully taken on some manufactured pretext because they hold a politically incorrect view that somehow offends newly invented notions of “professionalism,” or threaten the revenues of a competitor, or fail to conform with an elite committee’s view about “best practices,” or refuse to violate their consciences, or even because they have made an error (no physician being infallible).

The function of a licensure board is not to “ensure quality.” Nor is it possible for a licensure board to accomplish this. It also cannot ensure “safety”—medical practice is by its nature unsafe. The role of the licensure board is to set up a minimal standard of competence, to assure that licensees do not misrepresent their credentials or their practices, and to remove lawbreakers. In attempting to do more, the board must arrogate the unconstitutional authority to dictate medical standards and practices, and to minutely supervise all interactions between patients and physicians.

Quality and safety are improved by competition in an open society. Patients increasingly have the tools to investigate medical questions for themselves. The more physicians practice according to their own best judgment instead of in lockstep to demands of the ever-vigilant regulator, the more choices the patients have, the more quickly the inferior or unsafe methods will be discovered and discarded, and the more incentives professional have to hone their skills and increase their knowledge.


There is no evidence that physician incompetence is a major problem, or that the proposed remedies will improve competence. They will, however, greatly increase the cost of medical practice and divert resources from self improvement to compliance with the demands of special interests including specialty boards.

Evidence-based principles should be applied before any remedies are mandated.

The FSMB needs to examine current practices of medical boards and assess integrity, competence, and efficiency of the current regulatory regime as well as its impact on the supply and quality of physicians.

In today’s competitive environment, physicians should strive to improve their knowledge and skills by voluntary participation in programs that compete for their support, rather than slavishly trying to meet ever-increasing, often counterproductive demands imposed from above in an atmosphere of fear and distrust.

Respectfully submitted,

Jane M. Orient, M.D., F.A.C.P.
Executive Director