ABIM Class Action Lawsuit Against MOC Amended to Include Racketeering and Unjust Enrichment

On Wednesday, 23 Jan 2019, the class action antitrust lawsuit previously filed against the American Board of Internal Medicine (ABIM) in Pennsylvania federal court was amended to include claims under the RICO Act and state law unjust enrichment claims. From the 50-page amended Complaint:

Finally, this case is about ABIM’s violation of Section 1962(c) of the RICO (Racketeer Influenced and Corrupt Organizations) Act. As detailed below, ABIM has successfully waged a campaign in violation of RICO to deceive the public, including but not limited to hospitals and related entities, insurance companies, medical corporations and other employers, and the media, that MOC, among other things, benefits physicians, patients and the public and constitutes self-regulation by internists. Believing ABIM’s misrepresentations to be true, hospitals and related entities, insurance companies, medical corporations and other employers require internists to participate in MOC in order to obtain hospital consulting and admitting privileges, reimbursement by insurance companies, employment by medical corporations and other employers, malpractice coverage, and other requirements of the practice of medicine.

In addition, the suit claims violations of unjust enrichment laws:

Plaintiffs and members of the Class conferred a benefit on ABIM in the form of the money and property ABIM wrongfully obtained as a result of Plaintiffs and other internists being de facto forced to pay MOC-related fees, as described in detail above. ABIM has retained these benefits that it acquired from charging Plaintiff and members of the Class inappropriate, unreasonable, and unlawful MOC-related fees. ABIM is aware of and appreciates these benefits. ABIM’s conduct has caused it to be unjustly enriched at the expense of Plaintiffs and the other Class members. As such, it would be unjust to permit retention of these monies by ABIM under the circumstances of this case without the payment of restitution to Plaintiffs and Class members. ABIM should consequently be required to disgorge this unjust enrichment.

All physicians can follow the progress of the lawsuit at http://www.abimlawsuit.com. Physicians wishing to assist the plaintiffs in their effort to end Maintenance of Certification (MOC) are encouraged to donate to the GoFundMe page organized by Practicing Physicians of America.

-Wes

Council of Medical Specialty Societies Weigh In on Their Vision for MOC

Just in the nick of time, the Council of Medical Specialty Societies (CMSS), another (smaller) member of the Accreditation Council on Graduate Medical Education (ACGME) that represents medical specialty societies, issued its public comment on the ABMS Vision Commission Draft Report on Maintenance (and Continuous) Certification on the last day the Commission is taking comments.

What is important is not only what the Specialty Societies said in the statement, but what they did not say.

WHAT THEY DID SAY

• That initial certification and continuing certification are two separate products offered by ABMS and their member boards and have "different purposes."
• Specialty societies are in support of initial certification and the value of a secure examination for that purpose.
• The recognition that boards have a responsibility to "inform organizations that continuous certification should not be the only criterion in these decisions" and further "encourage hospitals, health systems, payers, and other health care organizations to not deny credentialing or certification to a physician solely on the basis of certification status."
• They had "serious concerns" with four issues:
  • Use of high-stakes, summative examinations as part of continuing certification
  • The practice improvement component
  • The role clarity between certifying boards and specialty societies
  • The timeline for implementation.
• They likened the issue of trying to improve ongoing assessment of physician competence to "trying to change the tire on a moving car."
• It was clear the specialty societies wanted to divorce themselves from the "assessment" side of continuous certification to the kinder and gentler "learning" side of "continuous certification."
• And it looks like the specialty societies want to leverage the ABIM's earlier definition of "professionalism" created by the ABIM Foundation to leverage their own social justice imperative to participate in continuous certification, rather than just that needed by ABMS.
• They acknowledge the high degree of physician burnout and the need to implement their recommendations in a timely manner.
• They raised the "grandfather" and "grandmother" issue and voiced strong wording that the ABMS better not to mess with that exclusion, less the "grandfathers" at the specialty societies have to participate in continuous certification, too.
• They thank the Commission and "require further collaboration and discussion prior to implementation."

WHAT THEY DO NOT SAY

• They do not mention the finances of the ABMS member boards and the $5.7 billion dollars physician spend annually to participate in continuous certification.
• They do not mention how the data collected from computerized testing of US physicians is used to ration their patients' care by insurance companies.
• They do not mention how certification data are used to dovetail clinical registry data, physician data, and electronic medical record data, and the money earned by specialty societies for that collaboration.
• They insist in continuous certification even though it has never been independently shown to improve patient care quality or safety over participation in independent physician-driven continuing medical education.
• They do not address the excessive salaries and perks offered to the board members and officers of the ABMS Board system or the ACGME itself. (Should the head of the National Board of Medical Examiners really earn $1.2 million annually, for instance?).
• No mention is made of the many conflicted parties that have benefited financially from the continuous certification process, including, but not limited to, PearsonVue, Premier, Inc., state medical societies (like Massachusetts Medical Society - owners of the New England Journal of Medicine), specialty societies (like ACC), medical publishers (like Wolters Kluwer and Elsevier), and the finances collected by AMBS Solutions, LLC.
• Finally and most importantly in this CMSS comment letter, there was no mention (or acknowledgement) of the harms caused to physicians by "continuous certification" in terms of financial and psychological hardship, decreased patient access to physicians, strongman (coercive) tactics used to force participation, political motives that benefit these organizations, and the limitations that such a highly restrained and controlled educational product like "continuous certification" places on working physicians who must also deal with their overriding responsibility of caring for patients every single day.

In my opinion (as I've said all along), Maintenance of Certification was a clever shell game used to force physician purchase of a product created by American Board of Internal Medicine (ABIM). That product is far beyond any imposed by states to maintain licensure and requirements for Continuing Medical Education. MOC was rebranded and modified on multiple occasions by ABMS and its member boards to generate continuous cash flow to the ABMS member boards (and now specialty societies) without proof of its value to patients.

Without acknowledging and dealing with the corrupt realities of the MOC (and continuous certification), the recommendations issued by CMSS in their comment letter should be rendered moot.

-Wes

Please give generously to our legal fund to end this corrupt educational product nationwide.

Physician Online Gaming for MOC Points

This email was forwarded to my inbox from a colleague who was invited to play this "8-week online computer game and clinical care competition" with colleagues for 4 MOC® points from the University of California San Francisco in collaboration with the Accreditation Council for Graduate Medical Education (ACGME):

From: "Trever Burgon, PhD"
Date: January 12, 2019
To: *************
Subject: CME/MOC Online Clinical Competition: You’re Invited
Reply-To: "Trever Burgon, PhD"

Dear Dr. *************,

You are invited to participate in Quality IQ, an 8-week online game and clinical care competition with primary care providers across the country. Each week, you’ll have a chance to compete against your colleagues, with prizes available for the winners.

One case weekly: Every week you will work-up, diagnose and treat one virtual patient on your phone, tablet or computer. Each case should take you less than 10 minutes.
Compete: See how your care compares with your peers on a weekly leaderboard.

CME and MOC: Earn up to 4 Category I CME credits and 4 Part II ABIM MOC credits for completing your 8 cases.*
Prizes: Amazon gift cards for top performers.
Free: There is no charge to participate in this competition.
The competition is part of an evidence-based medicine study being conducted by academic researchers at UCSF, QURE Healthcare and CE Outcomes.
Your individual responses will be kept confidential, but the overall results are expected to contribute to improved patient care and to be submitted to a national journal for publication.

We will only enroll individuals who meet the specific study requirements below and will discontinue recruitment when the desired sample is achieved. You will qualify to participate if you:
    * Are board certified in internal medicine or family medicine
    * Have access to the internet
    * Read and understand English
    * Care for a panel of at least 1,500 patients

Follow this link join:
Signup and Access First Case

Or copy and paste the URL below into your internet browser:
http://ceoutcomes.qualtrics.com/jfe/form/********************************


If you would like to recommend a colleague for the study please reply with the name and email address and we will send them an invitation to participate.

If you have any further questions about the study, please don’t hesitate to call 415-678-5328 or email support@qurehealthcare.com.

*CME and MOC Accreditation and Designation: This activity has been approved by The University of California, San Francisco School of Medicine (UCSF) which is accredited by the Accreditation Council of Continuing Medical Education to provide continuing medical education for physicians. UCSF designates this enduring material for a maximum of 4 AMA PRA Category 1 Credit(s)TM. Physicians should claim only the credit commensurate with the extent of their participation in the activity. Successful completion of this CME activity, which includes participation in the evaluation component, will also enable participants to earn up to 4 MOC points in the American Board of Internal Medicine's (ABIM) Maintenance of Certification (MOC) program. Participants will earn MOC points equivalent to the amount of CME credits claimed for the activity.

Thank you for your participation.

Trever Burgon, PhD
Vice President
450 Pacific Ave, Suite 200
San Francisco, CA 94133
www.qurehealthcare.com
Office: 415-321-3388 ext 102
Mobile: 650-465-5982

Several interesting points to note:

• This gaming research is being conducted by a QURE Healthcare that shares the identical address of two law firms, the San Francisco office of Thompson Welch Soroko & Gilbert LLP and JRA Law Partners. Is this company just a shell for data collection?


• QURE Healthcare shares data with another company, CEOutcomes.com. From their website: "CE Outcomes is the premier independent evaluator trusted by CME providers and pharmaceutical/biopharma companies. Impact evaluations are cost effective and produce level 5 outcomes data."

Looks like the American Board of Internal Medicine Maintenance of Certification (MOC®) Product 3.0 is evolving to little more than a bizarre form of "Quality Hunger Games" on a computer between doctors.

You can't make this stuff up.

Please give generously to the PPA legal fund to support of our physician colleagues who have sued the ABIM to end this nonsense.

-Wes

Proposed Maintenance of Certification Changes Ignite Controversy (Again)

From MDLinx' PhysicianSense blog:

Dr. Westby Fisher, a vocal critic of MOC who has been investigating ABMS finances, referred PhysicianSense to this blog post when asked for comment. Fisher argues that public comment on the future of MOC is moot when there is no plan to end MOC outright.

Precisely.

You can't negotiate with a Spider when you are forced to be a Fly.

Instead, you have to exterminate the Spider.

Please give generously in support of our four colleagues. It's time to end this abusive MOC nonsense.

(Unless, of course, you want to do unproven, costly forced testing the rest of your career.)

-Wes

The ABMS Spider and the Fly

Mary Howitt

“Will you you walk into my parlour, said a Spider to a Fly;
'Tis the prettiest little parlour that ever you did spy.
The way into my parlour is up a winding stair,
And I have many pretty things to shew when you get there.
Oh, no, no! said the little Fly; to ask me is in vain:
For who goes up that winding stair shall ne'er come down again.

Said the cunning Spider to the Fly, Dear friend, what can I do
To prove the warm affection I have ever felt tor you?
I have within my parlour great store of all that's nice:
I'm sure you're very welcome; will you please to take a slice!
Oh, no, no! said the little Fly; kind sir, that cannot be;
For I know what's in your pantry, and I do not wish to see.

Sweet creature, said the Spider, you're witty and you're wise;
How handsome are your gaudy wings, how brilliant are your eyes!
I have a little looking-glass upon my parlour-shelf;
If you'll step in one moment, dear, you shall behold yourself.
Oh, thank you, gentle sir, she said, for what you're pleased to say;
And wishing you good morning now, I'll call another day.

The Spider turn'd him round again, and went into his den,
For well he knew that silly Fly would soon come back again.
And then he wore a tiny web, in a little corner sly,
And set his table ready for to dine upon the Fly;
And went out to his door again, and merrily did sing,
Come hither, pretty little Fly, with the gold and silver wing.

Alas, alas! how very soon this silly little Fly,
Hearing his wily flattering words, came slowly fluttering by.
With humming wings she hung aloft, then nearer and nearer drew.
Thinking only of her crested head and gold and purple hue:
Thinking only of her brilliant wings, poor silly thing! at last,
Up jump'd the cruel Spider, and firmly held her fast!

He dragg'd her up his winding stair, into his dismal den,
Within his little parlour; but she ne'er came down again.
And now, my pretty maidens, who may this story hear,
To silly, idle, flattering words, I pray you ne'er give ear;
Unto an evil counsellor close heart, and ear, and eye,
And learn a lesson from this tale of the Spider and the Fly.

~By Mary Howitt, 1829
* * *

If you do Maintenance of Certification, you are just a silly little Fly.

It is chillingly apposite: for the American Board of Medical Specialties (ABMS) and their 24 member boards' to live, autonomous independent-thinking physicians must die.

Spiders can never stop being Spiders.

"And now, my pretty MOC maidens, who may this story hear,
To silly, idle, flattering words, I pray you ne'er give ear;
Unto an evil ABMS counsellor close heart, and ear, and eye,
And learn a lesson from this tale of the Spider and the Fly..."

... then donate to Practicing Physicians of America's expanded legal fund drive.

-Wes

Giving Credit Where Credit Is Due

Why does a physician who is strong-armed into participating in Maintenance of Certification (MOC®), pays for MOC®-eligible educational materials, studies and performs the online testing to receive "MOC®-points" from the American Board of Internal Medicine, not get credit for the work completed?

I received a threatening notice from the American Board of Internal Medicine (ABIM) with the loss of my ABMS board certification credential in November 2018 via mail if I did not acquire 100 MOC points by 12/31/2018.

Given the ramifications to my ability to retain credentials at my hospital system that requires "ABMS Board Certification" for its credentials, I did not feel I could risk the implications of this change to my original understanding of MOC® when I originally purchased the product in 2013. Consequently, I tried to find enough educational materials with sufficient MOC® points to meet that requirement in the short time I had left to complete this requirement that was appropriate for my subspecialty. Unfortunately, only the ACCSAP-9 had enough MOC® points (at about $10 per point) to reach that goal, so I spent $1600 to purchase their product.

I began working on ACCSAP9, spending hours reading and answering the questions provided so I might be able to acquire enough "points" to reach 100 by the deadline. Needless to say, because of clinical and family demands, I didn't reach that goal.

I never received "credit" for rounding at four hospitals before 12/31/2018.

I never received "credit" for spending time with my kids and only remaining father-in-law before 12/31/2018.

I never received "credit" for trying to balance work and family life before 12/31/2018.

And despite completing 100 points on 1 January 2019 (the day after they were due), I now find I didn't received "credit" for the hours spent completing even more questions on the one day I had off from work on 1 January 2019:

Documentation of work performed for MOC® 1 Jan 2019

Documentation on ABIM Physician Portal that no credit was received for MOC®
points earned on 1 Jan 2019, despite itemized list above.

Nor did my family receive "credit" from the ABIM for my time spent in front of my computer at home on New Years' Day 2019.

But at least I'm still "certified" by the ABIM and "participating" in MOC® despite their threats and not completing 100 MOC® points by 12/31/2018!

* * *

It is clear to me by all that has transpired in this latest shakedown of physicians by ABIM, that they could care less about MOC® points, they just want our money will stop at nothing to secure funds for themselves and their collaborating professional societies.

That's why I'd like to give "credit" to the four physicians who bravely filed suit against the ABIM in December.

I'd like to give "credit" to the one Puerto Rican physician who still has a pending countersuit against the ABIM that still has not had a chance have his case heard in court.

I'd like to give "credit" to the 750 physicians, many of whom remain "anonymous" out of fear of retribution, and helped fund the investigation that led to the antitrust suit filed against the ABIM in just over four months.

And I'd like to announce that an additional $250,000 is being sought to continue our investigation against the ABIM to consider additional claims against them (see "Update 18").

It's time to give credit where credit is due: to the working physicians who continue to try to do their job caring for patients without coercive education tactics for funds that result in no credit of any kind to them.

Please give generously to our new campaign to end this corruption.

It is time to end, once and for all, the deceptive ABMS "continuous certification" scam for all physicians nationwide.

-Wes

Happy New Year, MOC!

As many of us head back to work to start a New Year, let's not forget that physicians have until January 15, 2019 to "comment" on the ABMS Vision Commission's (un-editable) Draft Report.

While Paul Teirstein, MD and his colleagues at the National Board of Physicians and Surgeons (NBPAS) did a nice job dissecting many of the problems with the Vision Commission's report and made it easy to "comment" to the Commission's Draft Report using SurveyMonkey, I would like to add a few important observations about the Vision Commission's report (and the response by NBPAS) that are not mentioned and remain stumbling blocks for me.

First of all, should physicians be bound by an adhesion contract (seen here) with Board Certification and MOC (or whatever "continuous certification" becomes called) that can change on the whim of the ABMS and their member boards "from time to time?" This gives unilateral control to ABMS and prevents appropriate checks and balances. How is this helpful to anyone except the ABMS member boards and their collaborating corporate entities - all of whom already enjoy a substantial position of power and monetary influence. Remember the history of MOC reviewed in the antitrust complaint (starting on Page 5) filed five days before the Vision Commission's "Draft Report" appeared.

Also, those corporate entities that collude with MOC are not mentioned and are extensive. A partial list includes ABMS Solutions, LLC, hospitals and the ABMS Multispecialty Portfolio Program, publishers like the Massachusetts Medical Society and Wolters Kluwer, Pearson LLC, CECity, Premier, Inc, PriceWaterhouseCooper, and subspecialty societies like the ACC and ACP - all who stand to benefit financially from MOC. Remember, a significant portion of the ABMS Vision Commission are not practicing clinical physicians and are deeply conflicted with corporate entities.

And let's not forget that the Commission's report leaves the harms already experienced by physicians and their families unmentioned (for obvious reasons) - again, see the recent antitrust Complaint filed. MOC was always about money and power for the ABMS and their member boards. The ABMS fully intends for MOC (soon to be rebranded as CertLink®) to shift from a desktop platform at a PearsonVue testing center to a mobile platform in the palm of our hands as "MOC pilots" become permanent in 2019! This translates to more distractive screen time for physicians away from patients and a lucrative life-long money stream to ABMS and their collaborators.

I would encourage physician to consider copying the content of this blog post and morph it into your own "comment" to the Vision Commission if you feel it would be worthwhile.

Also, consider donating to Practicing Physicians of America's legal fund. I believe you'll get more for your hard-earned money that protects your interests that way.

-Wes