ABIM Antitrust/RICO Lawsuit Notice of Appeal Filed

Today, the official Notice of Appeal was filed in the United States Court of Appeals for the Third Circuit in Pennsylvania. It appears the ABIM's legal headaches regarding Maintenance of Certification (MOC) are far from over.

Working physicians can help the plaintiffs in their David-versus-Goliath effort to end the unproven American Board of Medical Specialties' MOC program by contributing to Practicing Physicians of America's GoFundMe page created on their behalf. We have almost reached our $400,000 goal. (Your contribution may be tax deductible before year's end - please consult your tax advisor.)

-Wes

Just In Time for Christmas: The MOC Legal Juggernaut Intensifies

With the recent back-to-back announcements that the class action antitrust and racketeering lawsuit against the American Board of Internal Medicine (ABIM) and the antitrust lawsuit against the American Board of Radiology were dismissed (e.g., the ABIM announcement and ABR announcement), doctors everywhere - both young and old - seemed resigned to the fact that they will have to be subjects to lifelong extortion of private American Board of Medical Specialties member boards and their affiliates if they wanted to practice medicine in the United States.

But fear not, dear colleagues. I bring you tidings of great joy. The first great Supplemental Opposition to the Motion to Dismiss the lawsuit against the American Board of Psychiatry and Neurology (ABPN) was filed yesterday that promises to renew the call for justice on the basis of proper legal procedural grounds:

Defendant American Board of Psychiatry and Neurology (“ABPN”) illegally ties its initial certification product, which it sells to new doctors to demonstrate completion of their medical education and assess the quality of their residency program, and its MOC product, which it requires some older doctors, but not all, to purchase throughout their careers to demonstrate lifetime learning or forfeit their initial certification. ABPN brings to the court’s attention Kenney v. American Board of Internal Medicine, No. 18-5260, 2019 U.S. Dist. LEXIS 164725 (E.D. Pa.Sept. 26, 2019) (“Kenney”), and Siva v. American Board of Radiology, No. 19 C 1407, 2019 U.S. Dist. LEXIS 200645 (N.D. Ill. Nov. 19, 2019) (“Siva”). Kenney came first, followed by Siva which “agree[d] with the reasoning in Kenney.” Id. at *11.¹

Nothing in those opinions changes ABPN’s unlawful conduct. A critical reading of the opinions and application of the universally accepted rule that well-pleaded factual allegations and all reasonable inferences therefrom must be taken as true compels the conclusion that Kenney and Siva were, respectfully, wrongly decided.

¹  The tying claims in Kenney were dismissed with prejudice without plaintiffs being allowed to amend, the court finding as a matter of law that separate products could never be alleged. Plaintiffs are appealing that ruling. The claims in Siva were dismissed without prejudice and plaintiff is filing an amended complaint on January 10, 2020.

The supplemental opposition to the ABPN motion to dismiss then outlines multiple legal reasons why the plaintiffs believe the decisions were wrongly decided. In essence, the attorneys are arguing that the facts in this case were not even allowed to be considered past the judges' chambers.

We can anticipate that the multitude of moneyed interests behind Maintenance of Certification will stop at nothing to assure this unlawful program continues unchecked.

Still, a bit of hope and cheer is always welcome for working physicians this time of year.

Merry Christmas!

-Wes

P.S.: On a separate legal note:

Remember the Puerto Rican physician, Jaime Salas Rushford, MD, whom the ABIM revoked his board certification and dragged him through the court system since 2012 with a dismissed time-barred cheating claim while the President and CEO of the ABIM simultaneously failed to disclose her conflicts of interest with Kaiser and Premier Inc? Yesterday, the judge issued the following order to expedite the counterclaim suit filed against ABIM by Salas Rushford:

The American Board of Internal Medicine may file its motion for judgment on the pleadings no later than December 18, 2019. Dr. Salas-Rushford will respond no later than January 2, 2020. The Board may reply no later than January 9, 2020. The case schedule will be discussed at the scheduling conference to be held on January 31, 2020. Signed by Judge Francisco A. Besosa on 12/11/2019. (brc) (Entered: 12/11/2019)

It seems that case will soon be coming to a head, too.

Readers wishing to support the brave physician plaintiffs involved in these lawsuits trying to end the unlawful Maintenance of Certification program are encouraged to contribute to their GoFundMe campaign.

ABIM's Dark Side Needs More Light

From the recently filed "Objections to Deadlines due to Completion of Discovery" by Plaintiff Jaimie Salas Rushford, MD in Puerto Rico Federal Court comes public evidence of mafia-like tactics used against physicians by the American Board of Internal Medicine (ABIM) to protect their certification testing monopoly:

(Click image to enlarge)

So to summarize some of what has transpired at the ABIM to maintain their physician testing monopoly:

1. The ABIM secretly created the ABIM Foundation in 1989 for the purpose of laundering over $70 million of physician testing fees from 1990-2007 for various personal and political agendas, including the purchase of a 2-bedroom luxury condominium, art collection, and offshoring of Cayman Island retirement funds.
2. They published a white paper in 2002 in two major medical journals, the Annals of Internal Medicine and the Lancet, entitled "Medical Professionalism in the New Millennium: A Physician Charter" (which, given these revelations, should both be retracted in my opinion).
3. They used a strongman convicted of impersonating a police officer and carrying an unregistered firearm as their Director of Test Security with access to physicians' most sensitive personal information.
4. They forced a physician who admitted to wrongdoing to pay $15,000 to remain board certified on the condition that physician also serve as an informant.
5. They continue to drag a vulnerable physician through the court system for what will be at least eight years to maintain their monopoly and hide the truth.

The American Board of Internal Medicine needs to be held accountable to working US physicians and the public for their actions. I believe their irresponsible and undisclosed financial and political dealings, paired with these mafia-like tactics, deserve full transparency and appropriate judicial scrutiny. 

Physicians deserve better. The public deserves better.

It's past time we shine a bright light on this racket.

-Wes

Watching Our Healthcare Hindenburg Burn

Just before Thanksgiving, 15 physicians were notified they will be replaced by less-experienced and cheaper nurse practitioners at the nearly $1 billion Edwards-Elmhurst healthcare system here in Chicago. Doctors, the article says, were "broadsided," perhaps because they were naive to events that occurred in Springfield, IL earlier this year. Thanks to aggressive lobbying, recent legislation was unanimously passed in both the House and Senate Illinois legislature allowing nurse practitioners to practice independently of physicians in any capacity except surgery. Working doctors likely missed this since they don't populate legislative halls - they populate clinics and hospitals caring for patients - or at least most did.

This trend of using more and more nurse practitioners in lieu of physicians appears to be accelerating nationwide as large hospital systems or consolidated primary care clinics with bloated numbers of midlevel administrators look to cut costs. Nurse practitioners are everywhere now: staffing ICUs, Emergency Rooms, and yes, primary care clinics. Some nurse practitioners are used to preferentially fill lucrative surgical pipelines armed with little other knowledge than what a routine case for surgery requires. And while advanced practice nurse practitioners do treat common ailments like earaches and sore throats, often quite well, how many can recognize the warning signs of a case of epiglottitis? What happens to patients then?

Is compromising years of physician training and care experience for cost efficiency really about patient care or cost savings or a facility's bottom line? Is the inevitable pitting of nurses against doctors in the patient's best interest or the institution's? Who sees the costs supposedly saved by hiring cheaper advanced practice nurses?  Will Edward-Elmhurst Healthsystem suddenly stop spending millions on collection agents who served as second-largest contractor for Edward-Elmhurst Healthsystem in Fiscal Year 2018?

Working physicians aren't without some blame either. Where were the physicians on the Medical Executive Committee of Edward-Elmhurst Healthsystem with this announcement? Did they approve  replacing 15 physician-colleagues for lesser-trained nurse practitioners or fearful of losing their jobs if they didn't "align" themselves with this administrative move? Who is advocating for patients at Edward-Elmhurst Healthsystem (or any other large non-physician run hospital system) now? Anyone?

Can Dr. Google and inexperienced physician posers safely replace the highly trained, experienced physician? No one really knows. This latest move is little more than a grand experiment promoted by healthcare consultants with patients' lives on the line.  Which leads us to ask: is touting a shortage of US physicians really a concern of the Association of American Medical Colleges or just a ploy by other member organizations of Accreditation Council for Graduate Medical Education (like the American Hospital Association) to justify these physician firings so hospitals can pad their bottom line?

Our Healthcare Hindenburg is burning: a bubble of excessive prices, high middleman salaries, a rapidly accelerating physician shortage, competition of healthsystems and patients increasingly unable to pay even basic co-pays for healthcare, medications, and procedures, as they are left to take the financial hit to maintain the health care industrial complex's status quo.

In healthcare, it's "Winner Takes All" with the likes of PriceWaterHouseCooper, McKinsey, and the Advisory Board at the helm.  The competition is fierce.

Patients (and their better-trained frontline physicians) be damned.

-Wes

The AMA and ABMS Member Boards: Banking on the Promise of Private Equity

Recently, I was sent a prospectus for a medical device company that caught the eye of a local Venture Capital funding group. On that prospectus was this paragraph for a "vision" of future of a "clinical decision support system:"

Collects data from the electronic medical record, medical literature, regulatory warnings and other internet-based public information. Provides analysis of intra-procedural progress that integrates this data with procedural imaging and patient status. Includes predictive analytics with the use of cognitive computing to support optimal clinical decision making."

This pitch was little more than a marketed promise of artificial intelligence, of instant processing of black-box algorithms, of equity funding to solve healthcare's less-than optimal patient outcomes using the internet, numbers, cut-copy-and-paste data entry, physician testing scores, in one big algorithmic, dehumanized, robotic mess.

In short, this is what health care market investors see now: a vision where fewer staff, more data entry, and less humanity and human touch are sold as better health care. Worse still, working physicians who remain are being grown and matured in a muzzled petri dish where dissent is openly discouraged by employers and "certifying" bodies.

This data-driven model didn't work out so well for Boeing.

And it won't work so well for health care either.

But don't tell that to the American Medical Association. Because to the AMA, working physicians in the US are little more than data entry ports "Moving Medicine" toward the AMA's latest vision for a business-oriented private equity-driven health care model for tomorrow.

-Wes

Timeline for Justice: ABIM v Salas Rushford

A young resident physician, Jaime Salas Rushford MD, came to New Jersey from Puerto Rico to study for his initial American Board of Internal Medicine (ABIM) board certification examination with an ACGME-approved Arora "Unusual Board Review" course. He later took his examination and passed, making him officially board certified on 8/20/2009.

Over three years later, he received a letter from Ms. Lynn O. Langdon, Chief Operating Office of the ABIM at the time, that his board certification was suddenly, indefinitely revoked because of claims he "collected and compiled hundred of ABIM examination questions from multiple sources" and that he "sent hundreds of ABIM examination questions" from his email to Arora Board Review. The letter implied he did "not maintain moral, ethical, or professional behavior satisfactory to the Board," engaged in "misconduct adversely affecting " his integrity, and engaged in "behavior that subverts the examination process."

Because the ABIM felt he violated their "Pledge of Honesty," the Board elected to "indefinitely revoke" his certification and "notify the Medical Board in every jurisdiction" that he was licensed.

He had 10 days to appeal that decision through a never-disclosed ABIM "three-stage appeal process" that lasted two years. Following this, he later discovered the ABIM had filed a copyright infringement lawsuit against him.

He describes the ordeal in detail here. In that description, he notes the additional reprimanding of some "2700 physicians," the use of a "spy" sent to the board review course he attended, the secret funneling of millions of dollars of ABIM Diplomate testing fees to create the ABIM Foundation, the raid using federal Marshals of Dr. Arora's home to copy computer files and secure physician's email addresses, and the undisclosed conflicts of interest of Christine Cassel, MD, former President and CEO of the ABIM, none of which were known to Diplomates of the ABIM at the time.

Instead, the ABIM issued a press release that was picked up by the Wall Street Journal and shocked the medical community on June 9, 2010, detailing the sanctioning of 139 physicians for claims of "cheating:"

"Any high-school kid knows that cheating is unfair," said Dr. Christine Cassel, president and chief executive of the ABIM, who called the sanctions "a message and a deterrent."

The ABIM's move springs from a case involving test-prep firm Arora Board Review, which it sued last year. The ABIM's suit alleged that Arora instructors told class members the review questions were from the actual exam and solicited them to supply the company with additional questions they remembered after taking certification exams.

The ABIM and an attorney for Livingston, N.J.-based Arora both said they are in settlement talks. Arora's website says it has "put [its] business on hold until a settlement is reached in the near future."

Materials seized from Arora in December as part of the case included 2,000 emails and audio and other communications from physicians disclosing exam questions, according to the ABIM.

Based on these materials, the ABIM sued Monica Mukherjee of Washington, D.C.; Anastassia Todor of Aurora, Colo.; Pedram Salehi of Los Angeles; Sarah Von Muller of Tulsa, Okla.; and Frederick Oni of Warner Robins, Ga.

Dr. Mukherjee couldn't be reached for comment. Dr. Todor and Dr. Salehi had no comment. Dr. Oni said he didn't know the questions he purchased were from previous tests.

Dr. Von Muller said courses like Arora's are necessary for busy physicians attempting to get their optional board certification.

Dr. Cassel said she doesn't believe sharing or selling actual questions is common. "We have a great deal of confidence that most people don't cheat on this exam," she said, adding that there are "legitimate board-review programs that continue to function." (The ABIM doesn't offer its own review courses.)

The "hundreds" of allegedly infringing questions used by the course were removed from the pool of questions used on the computerized tests starting in 2009. Doctors who took the Arora course but weren't sanctioned or sued will get letters of reprimand, the ABIM said.

The ABIM subsequently lost the copyright infringement lawsuit against Salas Rushford, but his counterclaim lawsuit filed against the ABIM goes on after being recently moved to Puerto Rico Federal District Court.

On 7 Nov 2019, the case management order for this lawsuit was published by the federal judge Francisco A. Besosa with the following timeline:

• 29 Nov 2019 - Objections to Case Management Deadlines and all outstanding pleadings due.


• 3 Dec 2019 - Motions to amend the pleadings or add parties to be filed.


• 31 Jan 2020 - initial Case Management and Settlement Conference


• 29 May 2020 - Motions to Dismiss must be filed


• 30 Dec 2020 - All discovery must be completed


• 9 Apr 2021 - Pretrial and Settlement Conference


• 19 Apr 2021 - Trial Shall Begin (09:00AM)

The wheels of justice might turn slowly, but they are turning. The number of lawsuits currently underway against the ABIM is mounting and while it appears they will stop at nothing to maintain their monopoly, the activities that took place in the case of these physicians need investigation and explanation.

Perhaps now light will shine on the inner dealings of the so-called "voluntary" US Physician Board Certification process that has harmed practicing physicians without accountability or means of due process for years.

-Wes

Is CMS's Value-Based Healthcare System Already Being Gamed?

Take a look at the address of the American Board of Medical Specialties (ABMS) that owns the Maintenance of Certification (MOC®) trademark that is the subject of at least six anti-trust lawsuits (see here, here, and here for instance) underway because MOC binds physicians to their hospital privileges and insurance payments to made to hospitals on behalf of their employed physicians:

Now look at the address of the American Medical Association (AMA)-sponsored PCPI Foundation with board members from UnitedHealthcare, Premier, the American College of Cardiology, the American College of Physicians, several trustees of the AMA, and others:

Recall that the AMA maintains a monopoly on the procedure codes (CPT® codes) for every medical procedure performed in the United States and sells the rights to use that database to insurers and electronic medical record companies. Each of the AMA codes, then, have particular "value" to hospitals and insurers.

The AMA also determines the "relative value system" used by the government coding for weighting physician compensation that strongly incentivizes physician behavior. Some procedures, then, have more "value" to physicians than others. Hospitals know this, too.

Gee, I wonder, with all these codes and friends that stand to profit on the backs of working physicians and our patients, is the Affordable Care Act's value-based healthcare already being gamed?

-Wes