Friday, September 20, 2019

When the Whole is Greater Than the Sum of Its Parts

"The whole is greater than the sum of its parts."
- Aristole


Since May 2018, over 1,600 physicians have made over 1900 contributions to our GoFundMe effort in support of physician plaintiffs involved in three class action antitrust lawsuits against the American Board of Internal Medicine (ABIM), the American Board of Radiology (ABR), and the American Board of Psychiatry and Neurology (ABPN). Details on those lawsuits can be found elsewhere on this blog.

Over the past months, I have watched us approach our funding goal for this effort bit by bit, as more and more physicians learn of the lawsuits and this work to help our working colleagues.

I recently completed an original 18" x 24" (acrylic) painting (with a hat tip to Chuck Close) celebrating this group effort by physicians. Up close, it doesn't look like much:



But viewed from farther away, the whole looks very different than those individual parts:



There is strength in numbers.

I just received a batch of full sized (18" x 24") limited-edition high-quality professional giclees of this artwork printed on heavy canvas paper that I will offer to $1000 donors to our GoFundMe campaign until we meet our funding goal, signed by yours truly. Just send me me the shipping address via the GoFundMe sight email after a donation is made if you'd like one and I'll be sure to send one on.

-Wes

Thursday, September 19, 2019

Plaintiff Lawyer Explains ABMS Medical Board Lawsuits

This past Saturday, A Zoom video conference sponsored by Citizen Health.io was held with the members of Practicing Physicians of America's (PPA) board and an invited speaker, Laura Feldman, one of the plaintiff attorneys with Robinson Curley, P.C. - the law firm that has brought suits against several American Board of Medical Specialty (ABMS) member boards. For my reader's convenience, I took the liberty of transcribing the first portion of the conversation that explained the ABMS Maintenance of Certification(MOC) antitrust lawsuits underway and their status. The transcription begins at approximately 06:12 of the video and participants at this point include myself (WF), Judith Thompson, MD (JT - President and Chairman of the PPA's board), and Laura Feldman (LF):
WF: Awesome, Well I think many of the people who have joined PPA or been involved with the Maintenance of Certification (MOC) process have realized there’s a lot of problems with it. We have problems that we now think may have been illegal and as a result of that, some physicians have been harmed through this process. For that reason, a number of physicians ultimately filed suit in December, 2018 against the American Board of Internal Medicine (ABIM).

That suit is a very complicated and far-reaching lawsuit and we’ve been fortunate enough to have Laura Feldman from Robinson Curley, the law firm that brought the suit…

JT: Wes? Wes? I hate to interrupt you for a minute. Listeners, please verify that your device is on mute. There is apparently background noise that’s interfering with other peoples’ ability to hear. Thank you, Wes.

WF: Yeah, no worries. So anyway, in December of 2018, four internists filed suit against the American Board of Internal Medicine and the basis of the suit were two allegations, main allegations anyway. It is a “class action lawsuit,” and it involves antitrust issues and racketeering issues. I thought it would be smart since most physician don’t know what these things are, to invite Laura to give us a quick, brief rundown what “antitrust” and the RICO portions of this lawsuit mean so that maybe we could have a better understanding before we go into more detail.

LF:Absolutely, so Dr. Wes thank you so much for the invitation and for including me in this group. I am delighted to be here and really delighted to be a piece of this litigation.

As Dr. Wes mentioned, the first suit challenging MOC was brought against ABIM. And it is a class action – an opt-out class action – and what that means is that any physician whether a DO or MD that has been forced to purchase MOC to maintain their initial certification is part of the class unless he or she chooses to opt out. There’s a couple of exceptions: if you’re related to the judge or affiliated with one of the boards, you’re not going to be part of the class – but otherwise you’re in the class unless you chose to withdraw.

Subsequent to the ABIM lawsuit, two plaintiffs filed suit against the ABPN which is the Psychiatry and Neurology board, … (smiling) Dr. Dixon is excited…, and one radiologist filed suit against the American Board of Radiology and we, along with our co-council, are the attorneys challenging those boards’ MOC programs. So over the next couple of minutes I’ll be brief. I’ll go over the Complaints, what’s happened so far in the suits, and the next steps in the litigation.

So as Dr. Wes mentioned, our main plaintiffs brought claims of anititrust violations and also unjust enrichment. And then against the ABIM, there’s also a racketeering claim.

So first, antitrust. So the main plaintiffs in the litigation accused the three boards , ABIM, ABPN, ABR, of illegally tying the initial certification product to the continuing, the MOC certification product. And what they’re alleging is that doctors are forced to purchase MOC and jump through all the hoops that MOC requires – its not just handing out some money – they’re forced to purchase MOC to order to maintain their underlying certification that they purchased. No in addition to this antitrust claim that is a tying claim, they’re also bring up a monopoly claim, alleging that these three boards have illegally created and maintained a monopoly power in the MOC marketplace stymying the efforts of competition like NBPAS (National Board of Physicians and Surgeons) and making it so that any other competition can’t enter the marketplace.

Now each of the three suits brings a state common law which is called “unjust enrichment” accusing the boards of unjustly enriching themselves at the expense of doctors like you. I mean, taking money off of your backs and unjustly enriching themselves.

Now racketeering, or the RICO claim, against ABIM is stating that ABIM waged a campaign to deceive the public about MOC’s benefits. So you’ve heard about their allegations if its benefits to physicians and to patients and to the public as a whole, and part of that racketeering claim is their inappropriate campaign to suggest that MOC constitutes "self-regulation." I know it’s a big buzzword. The complaint alleges ABIM misrepresented what passing MOC actually shows: the tests’ ability to actually demonstrate doctors’ qualifications or their lack thereof.

So those suits have been filed, we’re in litigation mode. Each defendant has filed a Motion to Dismiss, and those motions are fully briefed. What that means is that we have submitted to the Court our opposition to get rid of the suits and those briefs are pending before the three respective courts and we’re waiting for all three of those courts to decide whether or not to dismiss the lawsuits. We feel like we’re filed really strong briefs. You can read them online if you’d like at ABIMlawsuit.com, ABPNlawsut.com, or ABRlawsuit.com. So that’s where we are in the litigation. We’re waiting for them. We expect it could take several more months and in the meantime, we are preparing for discovery, which is the phase of litigation where you share information – we’ll be seeking information from the board and third parties and they’ll be seeking information from us. So sit tight.

WF: Let me ask a quick question if I may. What do you think the timeline is to get a decision on any of these lawsuits?

LF: Good question. We wish we knew, litigation is like a lot of hurrying up and waiting, so we’re busy, busy, busy, then we wait. They we’re busy, busy, busy, then we wait some more. We expect ABPN may be the last ruling we get because we were just assigned a new judge that just came onto the bench here in Chicago. So we’re guessing, I mean we’re looking at crystal ball, that we’ll get ABIM’s ruling or a ruling in ABR first. It’s our position that we’d be lucky if we hear something by the end of the year, but some judges turn thing around quicker than others. We just don’t know if we’re number 2 in the pile in the judge’s docket or number 200.

WF: Great, thanks so much.
An extensive question and answer session was held later in the video conference where viewers could post questions, and can be found at about 27:10 and contains additional valuable insights about MOC and the litigation underway.

I hope this has been informative and will continue to update my readers with the status of these suits as information on them comes available. If you find these efforts useful, please consider contributing what ever you can to the voluntary GoFundMe page in support of the plaintiffs. Hopefully together we can end MOC's stranglehold on working physicians nationwide.

Thanks-

-Wes

Thursday, August 29, 2019

American Board of Emergency Medicine Resorts to Adhesion Contract to Limit Its Liability and Legal Costs

A question posed recently by a physician on Facebook:
Can anyone tell me if this is legal? I have to check the American Board of Emergency Medicine's website for info regarding MOC and the Concert Exam. In order to have access, I have to agree to this statement. This leaves me no choice, yet MOC is mandatory. It feels like blackmail. And would this be enforceable in a class action lawsuit?
RELEASE OF ABEM

I agree to indemnify, and waive any right to sue, ABEM and its directors, examiners, committee members, officers, employees, and agents; to hold them harmless from any claims or damages including, but not limited to, attorneys’ fees and costs incurred in connection with my participation in activities to stay ABEM-certified, including but not limited to any action they, or any of them take or fail to take in connection with my participation in certification activities; my eligibility for examination; the gathering, furnishing and use of information about my training and practice; the grading or conduct of my tests or examination(s); and/or the failure of ABEM to issue me a certificate.

CONTROVERSY OR CLAIM RESOLUTION

I agree that if, despite the Release of ABEM in the paragraph above, I sue ABEM, I will bring that suit in Chicago, Illinois and that I will pay all of ABEM’s costs and attorneys’ fees in connection with such suit.
I would encourage all Emergency Physicians to join our fight against the American Board of Internal Medicine that has a similar adhesion contract embedded on its website behind its firewall, too. The RICO portion of the lawsuit addresses this collusion between the ABMS member boards to further their monopoly on physicians' initial board certification for their financial, political, and promotional purposes.

Contributions can be made here.

We'll see what the courts decide on the legality of this practice of coercing physicians using unavoidable adhesion contracts.

-Wes

ACP Supports ABIM Plans for More Continuous Certification

Yesterday, the American College of Physicians (ACP) issued a press release in support of the American Board of Internal Medicine's (ABIM) plans to develop a new "longitudinal continuous certification" educational product to maintain their initial board certification. In that press release, they confirmed that this "option" was in response the the American Board of Medical Specialties' (ABMS) Vision Commission's Final Report and the ACP's lengthy comments to that report that included a "Recommendation 12" for "annual participation" by internists.

Somewhat ironically (but not surprisingly), the press release contradicted ACP's earlier Recommendation 10 of those comments:
Recommendation 10: ABMS Boards must collectively engage in a regular continuous quality improvement process and improve the effectiveness and efficiency of continuing certification programs.

ACP agrees with the need for ABMS and its member boards to engage in internal continuous quality improvement, to build and sustain our members’ trust in the continuing certification process.

First of all, where are the data that longitudinal continuous certification (a product not yet developed for internists) provides "internal continuous quality improvement" of the ABMS or practicing physicians? Or is such a product really a means to just "improve the effectiveness and efficiency" of monetary collections for all of these independent non-profit organizations?

Importantly, does such an unsubstantiated statement "build and sustain our members' trust in the continuous certification process," particularly in light of the important and well-written antitrust and RICO lawsuit underway against the ABIM? Should participation in any physician ongoing educational program have the potential to limit a physician's ability to maintain their insurance panel participation, malpractice coverage, or hospital privileges like this "Continuous Certification" program does?

Of course not.

The ACP would be wise to distance themselves from support of the ABIM, lest they reinforce evidence for racketeering. But then again, I'm just a physician. Let's see if the courts decide there might be a basis for the claims made, especially in light of this latest ACP press release.

-Wes

Sunday, August 25, 2019

Assuring Longitudinal Physician Exploitation and Burnout

ABIM Email Notification
His day started at 07:15 AM with two planned atrial fibrillation ablation procedures and an implantable cardiac defibrillator (ICD) implantation scheduled. As the day progressed, another unscheduled ICD was added, then three emergent pacemakers had to be implanted. Squeezed between the cases were rounds, inpatient consults, phone calls, post-op checks, emails, EMR tasks, and echos in his inbox. He finally headed home at 10:45 PM; another dinner missed with his family.

One of his emails included a notification that the American Board of Internal Medicine (ABIM) is developing a Longitudinal Assessment Option because they were "hearing those voices" from an overseas professor that implied "many of our colleagues have said they would like to see the process of maintaining certification offer more flexibility and choice." The ABIM now adapts behavioral and cognitive psychology to teach this busy electrophysiologist the "important competencies" of "professionalism, working in a team, and collaboration" promised by this new ABIM Longitudinal Assessment Option for MOC.

The ABIM stands on the head of a pin as it sends mixed messages about competency, professionalism, teamwork, and trust, all while maximizing the medical industrial complex's profit stream. It sends its email or tweets as they shape our next generation of physicians to continue to comply in being exploited and to make peace with the new medical group-think. A thinking person might see the contradictions inherent in these conflicting goals - but then this is the new MOC reality despite the lawsuits underway to end this program.

Pity the poor doc who now must decide at 10:45 PM whether he sits on his zafu, engages in relational maintenance with whoever is still up at home, or completes the graduated teaching assignment kindly forwarded by ABIM.

What we must never ask is whether there will ever be a MOC module or a pranayama sufficient to make this lifestyle sustainable.

-Wes

Thursday, August 15, 2019

MOC Issue Embroils EP Community

After I circulated my fund-raising video two weeks ago to the Electrophysiology Community via the Heart Rhythm Society (HRS) closed message board, a firestorm of challenges to the HRS leadership have erupted online. At their core, the HRS is now under increasing pressure to decide with whom they side: (1) their physician membership or (2) other corporate interests. The exchange has become so heated that the HRS has decided to issue a new "survey" to gage how their members feel about "continuous certification" and lifelong learning via the MOC paradigm. The re-issued survey closes 19 August 2019 and HRS members are encouraged to complete that survey just (re-)sent to them. (The first survey was shared publicly on social media and many physicians responded anonymously, making it difficult for HRS to determine their membership's responses, we are told).

Here are just a few of the comments being circulated, even as late as today, as HRS leadership try to defend their relationship with the American Board of Internal Mesicine (I have chosen to make comments anonymous out of respect to those who have made their feelings known publicly).
  • "Love it or leave love it. I am so looking forward to my body frisk looking for cheating materials at the Pearson View testing center in December - a $1200 massage will put me in the right frame of mind to take a day-long test, much of the content of which has no relevance to the things that matter towards helping my patients to live longer or live better. But no worries, I'm sure the HRS Board Review course (estimate >10K with room, board and lost wages, not to mention deduction from time for meaningful CME) will enlighten you as to the latest nitty gritty in IKwtf, so you'll be awesome at parties."


  • "As I’m sure you are fully aware, this money grab and power grab are far deeper reaching than most realize and your suggestion to deal with it locally cannot work. It’s extremely disingenuous of you to imply otherwise.

    A few years ago I decided to stand up for what I considered right and take a stand against the ABIM/ABMS. I refused to participate in MOC (though I go to HRS and a few other meetings every year and consider myself beyond competent). When my 10 years were up I chose not to take the recertification exam. I became board certified by the NBPAS. My local credentials committee didn’t know what to make of it, but when I met with them and explained my objection they went along. I told them if they didn’t I was leaving and I’m the only one who does a lot of the things I do in my institution. Then the insurers (BCBS) net with administration and their opinions changed. BCBS said they could no longer pay for anything I did unless I was pursuing recertification. The hospital administration said I needed to take the ABIM recertification exam or they could no longer employ me. I told them that’s fine, then I’ll quit and go into private practice and just see CMS patients (they don’t require ABIM certification). Administration told me if I did that then my privileges would be revoked. As I send this message I’m waiting for the first session to start at the board review course. I will never take this exam again. If this same bullshit exists in 10 years then I’ll retire at 56.

    Please don’t pretend that you are unaware that the NCQA which certifies insurance companies are in bed with the ABMS/ABIM who certify physicians. Don’t pretend that you are unaware that there are members who sit on both boards and profit tremendously off the backs of working physicians. I’ve met with the insurers who tell me they’d like to allow me an exception, but NCQA requires that all the physicians they contract with are ABMS (means ABIM in the EP world) board certified.

    So there you have it. ABIM requires MOC. If physicians refuse they revoke their certification. If they continue to object or seek alternative certification (NBPAS, IBHRE) then the rely on the NCQA to pressure payers (they threaten to revoke the insurers NCQA certification if they have physicians on their panel who are not “certified” by the one true board) to force physicians back in compliance by removing them from their panels. If physicians continue to refuse the payers threaten hospital administration and they threaten to revoke the physicians hospital privileges. If you don’t see a problem with this then I suspect you have a conflict of interest. Again please don’t attempt to deceive the HRS membership."
I have warned prior physician-presidents of HRS about this controversy, but it never dawned on me at the time that physicians no longer control the organization. That task, like so many in medicine today, was relegated to a non-physician non-profit executive long ago. It will be interesting to see how this will play out going forward, especially since the MOC monetary and conflict of interest genie is out of her bottle. The HRS leadership, be they physician or not, has a very serious fundamental decision to make: side with their physician membership, or side with their conflicted corporate partners who will stop at nothing to assure their profit margins.

Working cardiac electrophysiologists know that HRS has advocated for many of their needs over the years, but on this issue and it potential to affect their right to work, the conflicts of interest inherent to MOC with insurers, group purchase organizations, and hospital systems present a formidable challenge to the entire HRS leadership going forward.

Trust take years to develop. Let's hope HRS doesn't lose what they've earned in a heartbeat.

-Wes

Thursday, August 01, 2019

AntiMOC Lawsuit Update

As the summer winds on, I have been approached by more and more people who would like an update on where the litigation filed against the many member boards of the American Board of Medical Specialties stand since the lawsuits were filed. I will do my best to briefly summarize the status of those lawsuits as I understand them. (For background on why these lawsuits have been filed against so many of the American Board of Medical Specialties specialty boards, please review this video).

The antitrust suit against the American Board of Internal Medicine (ABIM) was originally filed 6 Dec 2018 and amended 23 Jan 2019 to include RICO charges, the antitrust lawsuit against the American Board of Radiology was filed 26 Feb 2019, and the antitrust lawsuit against the American Board of Psychiatry and Neurology (ABPN) was filed 6 MAR 2019. These cases were filed by a law firm based in Chicago. A fourth lawsuit was filed by a separate law firm in Southern District Court of California on 19 Feb 2019 against the American Board of Medical Specialties (ABMS), the American Board of Emergency Medicine (ABEM), and the American Board of Anesthesiology (ABA).

Each of the member boards are represented by different law firms.

Three of the specialty boards (ABIM, ABR, and ABPN) have appeared and, as expected, filed motions to dismiss with mostly overlapping arguments. The motion in the ABIM case was fully briefed a couple of months ago (Motion to Dismiss here, Opposition for Motion Dismiss here), the ABPN motion was fully briefed last month (Brief in Support of Motion to Dismiss here, Opposition to Motion to Dismiss here), and the briefing in the ABR case should be finished mid-August.

In the interim, a motion to consolidate the above cases (brought by the law firm representing the plaintiffs in the ABMS/ABEM/ABA case) which the plaintiffs in the ABIM, ABR, and ABPN cases opposed out of the concern that it might delay the cases and add to their cost, was denied. So these three cases (ABR, ABPN, and ABIM) will each continue on their own in the federal courts in Philadelphia (ABIM) and Chicago (ABR and ABPN).

It would not be unusual for the courts to take several months to decide the motions to dismiss, especially given their complexity and importance. Discovery for these cases will begin once the motions to dismiss are decided, which is hoped will be no later than the end of the year. As I am sure many of my readers have already observed, the litigation seems to be having a modest impact, as many specialty boards and specialty societies claim to be re-thinking their Maintenance of Certification (MOC) requirements, at least around the edges.

It is important that physicians continue to help fund the GoFundMe page sponsored by Practicing Physicians of America. (Remember, short of processing fees, every penny of those contributions will to toward these continuing legal efforts.)

In summary, I believe the legal cases are progressing as well as can be expected and I remain convinced that, together, working physicians CAN end Maintenance of Certification's stranglehold on US physicians nationwide.

-Wes

Tuesday, July 30, 2019

Why the U.S. Specialty Boards Were Sued and Why Those Lawsuits Are Important

I hope every working U.S. physician takes 9 minutes to view this video on why the lawsuits against  the American Board of Medical Specialties (ABMS) member boards were filed and why those lawsuits are so important to our profession.

Please view and share with your colleagues.

An update on the status of those lawsuits will appear on this blog's pages soon.



-Wes