Are ABMS’ lobbying tactics misleading politicians and the public?

Physicians are trained to “first, do no harm.” Lobbyists are not, even when they claim to represent the best interests of physicians and patients. I saw this firsthand, when I went head-to-head with the chief lobbyist of the American Board of Medical Specialties (ABMS) during a middle-of-the-night hearing in Texas. He and his helpers delivered misleading but well-rehearsed talking points with ease.

I provided testimony on a bill (SB 2207), to allow board-certified physicians to accurately represent their credentials without Maintenance of Certification (MOC), an ABMS continuing education program known for delivering burden and burnout without clinical benefit.

Outside of a two-minute opening statement, legislative hearings are a formal affair. I sat silently while the ABMS representative shared explanations that were distorted, and even false. In my rebuttals, I used the phrase “factually incorrect” (a polite euphemism for what I actually wanted to say), as I addressed the exhausted but well-meaning legislators. They tried hard to make sense of a complicated issue while their workday stretched into its 19th hour.

Many Texas physicians hoped to speak in support, but the realities of clinical schedules meant they couldn’t wait the 18 hours that passed between the start of the meeting and when the bill was finally heard. Nonetheless, this middle-of-the-night marathon revealed a side of ABMS operations physicians rarely see—the tools and tactics used to keep ABMS maintenance programs mandatory and deeply embedded in the American health care system. Physicians, too busy caring for patients, are unavailable to fight back.

This raises two important questions: How is ABMS, a tax-exempt nonprofit with a mission to “serve the public and the medical profession by improving the quality of health care…,” allowed to mislead policymakers and stifle competition while furthering its own interests? And how is ABMS allowed to influence the government in ways that actually hurt the public interest that it promises to protect? It pays to consider these questions separately, along with a discussion of what is legal, versus what is ethical.

Regarding the first question, you might be surprised to learn that the right to mislead is widely protected under something known as the Noerr-Pennington Doctrine. This sweeping legal precedent shields organizations when they petition the government, even if their lobbying harms competition or the public interest.

One need only recall Purdue Pharma’s slick, decades-long marketing and lobbying campaigns to understand how effectively organizations can exploit Noerr-Pennington protections in pursuit of profit and market dominance, despite causing massive harm. Importantly, Purdue Pharma did not act alone. Exhaustive post mortems demonstrate how Purdue co-opted respected professional groups to echo and amplify bad science and false messaging, fueling the company’s aggressive metastasis throughout all levels of government.

Having previously faced-off with ABMS leaders, the pre-dawn misinformation that I heard should not be written off as missteps made under game-time pressure. ABMS also appears to use Noerr-Pennington as a shield to influence lawmakers and regulators under the guise of promoting quality, patient safety, a new (albeit, self-created), “National Board Certification.” It all sounds great, if only it were true.

Increasingly, even physicians who faithfully served ABMS’ boards report that the millions of dollars invested into its maintenance of certification programs have resulted in little more than burnout and an acceleration of physicians’ exit from medicine, well articulated here by Harlan Krumholz, M.D.:

“Despite decades of MOC implementation, we have no evidence it has substantially and meaningfully improved patient care. In contrast, we do have evidence that it contributes to physician burnout and early retirement, outcomes that clearly harm patients.”

ABMS does not operate in isolation. It advances its messaging through collaborations with the American Medical Association and the Federation of State Medical Boards, both of which promote ABMS maintenance-of-certification programs as contributing to physician quality, public protection, and a solution to physician burnout, when the opposite is true.

ABMS also leverages lesser-known organizations including the National Association of Medical Staff Services, which recently adopted language supporting ABMS’ definition of a “qualified” physician, despite no such evidence. ABMS leadership also frequently cite “standards” by the Institute for Credentialing Excellence (ICE) without disclosing that ABMS leaders serve on ICE committees.

Meanwhile, ICE’s advocacy partner—the Professional Certification Coalition—is a Washington, D.C. law firm that promotes the “value” of certification. Public filings show that ABMS paid this same firm more than $150,000 in 2023–2024 when ABMS succeeded in getting its maintenance programs written into the 2024 National Defense Authorization Act. By the next fiscal year, VHA facilities were reporting a 50% rise in clinical staff shortages, with 94% noting especially severe gaps among medical officers. Recruiting physicians into military health was already challenging—adding unproven requirements further narrows the available physician pool to care for our nation’s warriors.

Which leads to the second question: This sort of lobbying may be legal, but is it ethical? If ABMS exists to improve health care quality, shouldn’t it be held to a higher standard? It also pays to consider if an organization with a federal tax exemption should be able to cloak itself in Noerr-Pennington when it intentionally misrepresents its activities to a legislative body (Noerr-Pennington protections are not absolute).

No nonprofit should be permitted to distort facts for its own gain and at the expense of patients. Doing so while amassing an $839 million surplus undermines the very purpose of IRS nonprofit status, which requires entities to advance a selfless mission. In fact, under IRS rules, lobbying with misinformation may violate a nonprofit’s charter—and even be illegal.

Looking back on the Texas hearing, I listened as a retired anesthesiologist spoke about the importance of ABMS maintenance programs—even though he noted he participated only on occasion due to his “grandfathered” (exempted) status. I listened as ABMS’ lobbyist answered the committee’s question about “grandfathering” by saying that it was something that started in 1933 (false) but today, “every certified physician in every specialty that comes through any one of our boards is participating in continuous certification,” (patently untrue).

I also listened as the Texas Medical Association (TMA) lobbyist, a practicing physician, stated that he was, “not aware of anyone who would be grandfathered,” despite having earlier disclosed to me that he himself had originally been grandfathered. It is worth considering how the TMA and its 59,000 members might view such inconsistencies in statements made on its behalf.

New federal lobbying disclosures indicate that ABMS has again hired lobbyists to advocate for, “issues related to high quality physician certification.” Will ABMS continue to claim that its maintenance programs enhance outcomes and competence, even though extensive research shows no meaningful correlation? And will they persist in using well-worn narratives about “quality,” “public trust,” and “a growing body of evidence?” I certainly hope not, as that would be both disingenuous and scientifically false. Or as I may say at the next hearing, factually incorrect.

Neither physicians–nor the public that they serve–should allow fiction to replace the truth. Despite what may be deemed legal, the House of Medicine must insist on a far higher ethical bar, without exception.

Karen Schatten, MLS, is Associate Director, Policy and External Relations, National Board of Physicians and Surgeons.