Doctors Take the MOC® Stick: Legal Avalanche Unfolds

Working doctors have made their dissatisfaction with the American Board of Medical Specialties' (ABMS) time-limited certification known for years. They have tried to reason with the American Board of Internal Medicine (ABIM). They have exposed the corruption for all to see. They have gone to Washington DC. They have presented these findings to the leadership of the American Medical Association, ABMS, American College of Physicians, and the AMA House of Delegates. They have tried to get meaningful legislation passed at the state level for years. They created their own competing non-profit "board" to offer an alternative to the time-limited credential. They contacted major medical journal editors about the lack of proper disclosure of financial conflicts of interest. They tried to publish an article documenting the harms caused by MOC® (and called "very important" by one reviewer) was repeatedly suppressed from publication. They contacted the Internal Revenue Service. Then they gave one last "Hail Mary" pass to the ABMS by submitting survey results organized by that alternate board from 21,000 physicians to the ABMS Vision Commission, all to no avail.

MOC® (or some bizarre, fractionated form of MOC® rebranded as "continuous certification") continues with all its lucrative trappings.

Now a new, tactic is unfolding to end ABMS time-limited certification nationwide: litigation.

A new free-to-join non-profit was created, run by a multi-specialty group of working physicians from across the nation (disclosure: I'm a co-founder). They created a GoFundMe page to fund anti-MOC litigation that has already raised over $200,000 and is supported by over 1000 physicians (and growing).

In light of the ABMS boards ignoring working physicians' demands to end MOC®, or even allow a meaningful alternative to MOC®, physicians across specialty boards have felt empowered to initiate litigation against time-limited certification. Rather than thinking of this as doctors suing other doctors, it is more accurate to say that this is doctors taking a collective stand against insulated, self-elected, answer-to-no-one bureaucratic bodies; organizations that hide behind humanistic slogans while churning billions of hidden dollars for themselves.

The recent litigation timeline:

• 6 December 2018 - The first class action anti-trust lawsuit against the ABIM - the largest ABMS member board - is filed.


• 23 January 2019 - The ABIM suit is amended to include racketeering and unjust enrichment claims.


• 26 Feb 2019 - Yesterday, another class action antitrust suit  on behalf of approximately 25,000 US radiologists was filed in federal district court in Chicago against the American Board of Radiology.

How many more ABMS member boards will be sued?

ABMS and its member boards may claim to be nothing less than "a selfless ministry" in the service of medicine and that these lawsuits are frivolous, irresponsible, or even unprofessional. Nothing could be further from the truth. Those on the front lines of patient care fully understand the time and cost involved. But you can be sure of this: litigation was not the frontline physicians' first option. Far from it. All other less time-consuming and expensive alternatives have already been exhausted.

To paraphrase Theodore Roosevelt, justice consists not in being neutral between right and wrong, but upholding the right against the wrong. All working physicians should climb off the sidelines and join this fight to end the unproven MOC® and "continuous certification" programs and recognize the legal battle against MOC® for what it is: not a campaign against continuing medical education, but rather a campaign against the massive runaway train of economic exploitation, self-enrichment, and micro-management of our professional lives that are now the hallmark of ABMS and its member boards.

-Wes

Addendum 6 Mar 2019 - The MOC® legal battle now includes the American Board of Psychiatry and Neurology, too.

Examining the ABIM's Evidence for Maintenance of Certification®

In response to an recent article in MDEdge about the GoFundMe page supporting four plaintiffs who brought suit against the American Board of Internal Medicine (ABIM), Richard Baron, MD, President and CEO of the ABIM said:

“Valuable credentials with standards behind them gain market share because they are meaningful and say something important about the doctors who hold them,” Dr. Baron said in an interview. “There is evidence in peer-reviewed journals that doctors holding our credential are more likely to meet quality metrics throughout their careers [Ann Intern Med. 2018 Jul 17. doi: 10.7326/M16-2643], that they are more likely to order mammograms for women who need them [Womens Health Issues. 2018 Jan-Feb. doi: 10.1016/j.whi.2017.10.003], that they provide care of equivalent quality at lower total cost [JAMA. 2014 Dec 10. doi: 10.1001/jama.2014.12716], and that they actually earn higher salaries [Health Serv Res. 2013 Jun. doi: 10.1111/1475-6773.12011]. All doctors should be concerned if making evidence-based claims about our credential based on data published in peer-reviewed journals gives rise to litigation alleging fraud.”

Breaking Dr. Baron's comment down:

The first reference Dr. Baron cites is a retrospective report of an association (not causation) between Maintenance of Certification (MOC®) status and performing Healthcare Effectiveness Data and Information Set (HEDIS) measures for industry. The study's abstract states in its "Limitations:"

"Potential confounding by unobserved patient, physician, and practice characteristics; inability to determine clinical significance of observed differences."

The second reference cited by Baron is another retrospective review of two single-year cohorts of internists performing mammogram screening in a single year before and a single year after time-limited certification was implemented. This study is subject to innumerable biases (sampling, recall, and information). It is no wonder that the authors state in the study's limitations:

"Finally, more research is needed to fully understand the causal mechanism by which MOC® participation might impact mammography screening specifically and quality of care more generally. In addition, changes to the MOC® program have occurred since 2001, and future research is needed to determine whether associations with the MOC® requirement we report were sensitive to this."

From the limitations of the third retrospective study Baron cites above:

"...more research is needed to determine whether the negative associations we report between MOC® and growth in costs were due to improvements in care quality not captured by our quality measure, reductions in wasteful practices unrelated to patient outcomes, or negative consequences not captured by our outcome measures.

The last study Baron cites in his quote above pertains to initial board certification and only supports the supposition that doctors make more money if board certified - a finding that is not patient-centric at all, but physician-centric.

All of the studies cited by Dr. Baron were retrospective studies and therefore only hypothesis forming. None of the references he cites in his response to the interviewer were causal.

Finally, Baron said:

"All doctors should be concerned if making evidence-based claims about our credential based on data published in peer-reviewed journals gives rise to litigation alleging fraud."

I agree. All doctors should be concerned. What does this say about our journals that publish these studies? Why would a group of practicing physicians with full case loads create a wholly new non-profit (Practicing Physicians of America) to represent the interests of working physicians? Why would those same working physicians create a GoFundMe page to raise money to support litigation to end MOC®? Lastly, why would such an organization support four fellow physicians that dared to challenge those in positions of power by bringing unprecedented claims of antitrust, racketeering, unjust enrichment, wire fraud and mail fraud?

These are very important questions.

Especially when the President and CEO of the ABIM offers poor "evidence-based claims about (the ABIM certification) credential based on data published in peer-reviewed journals" that "gives rise to litigation alleging fraud" in response to questions posed of him.

-Wes

Grifters Will Always Be Grifters

On 12 Feb 2019, the American Board of Medical Specialties (ABMS) Vision Commission created 25 September 2017, issued its Final Report to the ABMS Board of Directors on its controversial and very lucrative "continuous certification" programs.

Not surprisingly, the self-appointed Commission thumbed its nose at the overwhelming majority (88%) of US physicians who find no value to continuous certification,  and instead relied on testimony of many ABMS Boards, members of the ACGME including the Association of American Medical Colleges, the National Board of Medical Examiners, "psychometricians," ABMS Portfolio Program Sponsors, eight (of 50) state medical associations, five subspecialty societies (Anesthesiology, Family Medicine, Internal Medicine, and Pediatrics), consumer groups like (AARP-funded by UnitedHealthcare, the conflicted Consumer Reports, and the problematic Leapfrog Group). Nowhere was the possibility of ending continuous certification ever discussed or considered.

In the end, this was the conclusion from 17 months of testimony for ABMS Vision Commission:

"The Commission thanks the presenters who came and provided valuable testimony about their perspectives of continuing certification. The information will inform the next steps of the process. What is clear is the majority of the presenters recognize the necessity of lifelong learning. While they appreciate the innovation and engagement of the Boards as changes are made to continuing certification programs, they look forward to seeing how the programs continue to evolve. All are interested in being part of the future of continuous certification."

In other words, grifters will always be grifters.

-Wes

Maintenance of Certification: Do We Have a Certified Crisis in Medicine?

From Paul G. Mathew, MD in Practical Neurology:

Between the growing number of states adopting laws to protect physicians from forced MOC compliance, the increasing number of hospitals/institutions accepting NBPAS as an alternative to ABMS recertification for physician credentialing purposes, and the potential ramifications of a decision in favor of the plaintiffs (practicing physicians) in the ongoing class action lawsuit against the ABIM, practicing physicians everywhere may at some point in the near future witness meaningful reform or possibly an end to forced MOC compliance.

Additional leverage against the forced Maintenance of Certification (MOC) compliance imposed by the American Board of Medical Specialties and their member boards can be achieved by contributing to the legal effort underway (click here).

-Wes

Evolving Board Certification

From the New England Journal of Medicine and the American Board of Anesthesiology, the MOCA Minute® (Cost $210/yr + 100/yr for subsequent certifications):

The MOCA Minute, a longitudinal assessment program introduced in 2016, enables anesthesiologists to identify their scope of practice and answer 30 practice-relevant multiple-choice questions per calendar quarter to continually assess their knowledge and problem-solving skills (see table). The questions focus on relevant information that physicians should know without having to consult references, so only 60 seconds is allotted for answering each question. After responding, physicians rate their level of confidence in their answer using a three-point scale (very confident, somewhat confident, or unsure). This system helps clarify what physicians know, when they are merely guessing, and where their blind spots lie. When physicians realize they have responded confidently yet incorrectly, they are more likely to engage in further education and retain knowledge. This process creates a data-driven basis for seeking out and completing appropriate CME. Questions answered incorrectly or with low confidence are repeated at varying intervals to maximize reinforcement and retention. After each response, physicians are told whether their answer was correct and are given a critique that includes the key point of the question and offers more information about the topic, literature references, and connections to corresponding CME.

From the American College of Cardiology, come the proposed Collaborative Maintenance Pathway® (CMP) (cost <$500/year):

Under the proposed CMP, the respective SAPs (self-assessment program) are expected to consist of 3 components: 1) a comprehensive didactic review of the entire discipline including written material, videos and slide decks that the learner may access in his/her own style and at his/her own pace; 2) a library of several hundred practice questions presented in a modular format corresponding to the topic area under study; and 3) a set of “performance” questions requiring a passing score, which will be made available on a modular basis when engagement with the learning material has been documented and when CME credits have been granted for the module. The didactic material of the SAP will be divided into 5 modules of approximately equal length, so that yearly assessments will cover approximately 20% of the discipline’s knowledge.

The entire CMP process is expected to provide, in a 5-year cycle, all the CME required for licensure in most states (∼25–30 h per year), all the medical knowledge (Part II) points required for MOC (100 points per 5 years), and a convenient, online assessment activity that will complete the MOC requirements for participating cardiologists (assuming a passing score on the performance questions for each of the annual modules).

It is anticipated that the discounted fee for the SAP component of the CMP will be priced approximately 25% lower than the cost of the current ACCSAP product. Members in good standing of the ACC, SCAI, HRS, and HFSA will all be eligible for the planned discount. ABIM fees will be assessed by the ABIM separately from the SAP component. The entire CMP (ABIM and ACC) process is expected to cost <$500 per year.

Finally, from the American Medical Association / American Board of Medical Specialties "Vision Commission" member and former Executive Vice President of the American College of Physicians:

The response to the MOC controversy has varied across the physician community from the extremes of acceptance of MOC to outright anger, with the flames of discontent often stoked by blogs and comments on social media. Within this spectrum of responses is a more centrist position, accepting the need for some sort of process that ensures ongoing professional development and competence as medical science evolves, but acknowledging that significant reforms are needed in the current MOC requirements.

Despite the many efforts to "modify," "adapt," "reform," Maintenance of Certification to new models, each of them has three huge flaws.

1. There is no independent evidence-based proof that "maintaining" our initial board certification improves patient care or safety. Instead, there are now real examples before a federal judge of harm Maintenance of Certification has caused physicians.
2. All of these programs result in little more than glorified rent-seeking that has proven remarkably lucrative for the ABMS, it's member boards, and physician specialty societies. Each proposed program fails to mention how testing data are shared with third parties, including (but not limited to) insurance companies and group purchase organizations like Premier, Inc. It is troubling that these demonstrated conflicts are never disclosed.
3. Any computerized educational program that can restrict a physician's right to work based on completion of certain computer tasks is not acceptable to working physicians. This is not what education is about. "Centrists" are willing to accept voluntary, self-directed CME. They are not willing to accept a lifetime of expensive, coerced, directed CME on behalf of unaccountable and undisclosed third parties. Using the threat of loss of credentials and one's ability to work as a cudgel for physician participation not only is immoral and harms morale, it may be illegal and harmful to patients struggling to access their physician.

In summary, forcing physicians to look at more computer or cell phone screens for the financial benefit of medical bureaucrats distracts from what is really important: patient care. This has not changed. As such, Maintenance of Certification (MOC) - in whatever form proposed - must end.

-Wes

P.S.: Please help support the legal fund created by Practicing Physicians of America to combat MOC.