Some Thoughts on the Recent ABIM Lawsuit Ruling

“Unless someone like you cares a whole awful lot,
Nothing is going to get better. It's not.”

― Dr. Seuss, The Lorax
After researching, investigating, and writing about the activities and finances of the American Board of Internal Medicine (ABIM) and the ABIM Foundation for the past five years, it would figure that a ruling on the class-action lawsuit challenging the ABIM Maintenance of Certification (MOC) program would occur during the week that I am on call. I simply have not had much time to put my thoughts in writing.

Perhaps that's a good thing.

But as the time has passed since the ruling, I believe I have more clarity now.

Initially, I must say I was surprised by Judge Kelly's ruling, but not shocked. We have encountered significant naiveté with non-physician legislators when attempting to pass anti-MOC legislation at the state legislative level. Most non-physicians do not have a clue what ABIM Board Certification and MOC are, let alone their history and current relationship to obtaining and maintaining physician hospital credentials and insurance payments.

I suspect the judge in the ABIM antitrust case was (and remains) similarly naive. (Just as I am naive about what it takes to be a lawyer or judge.) Perhaps nowhere is this naiveté more evident than the judge's paragraph concerning "grandfathering" of older physicians:

"Finally, Plaintiffs allege that ABIM does not consider MOC to be a requirement of initial certification because it has “grandfathered” those that purchased a lifetime certification prior to 1990. (Pls.’ Mem. Law in Opp’n Mot. to Dismiss 13.) However, Plaintiffs provide no support as to why ABIM should not be allowed to modify its certification process over time. We see no problem that at some point ABIM realized there was a need to have its certified internists undergo an MOC program, whether because the internists could not keep up with the advances in their particular field, saw their skills diminish, or any other reason. In fact, the need to require a MOC program is highlighted in this case, as Murray initially failed her infectious disease MOC program in 2009 and Joshua was unable to pass her required MOC program in 2014. (Am. Compl. ¶¶ 85, 109.)"

But the judge's logic falls apart here because he mentions only the plaintiffs' need to "keep up," and not the "grandfathers'" similar "need." Aren't older, grandfathered physicians who do not have to participate in MOC more likely to have "failed to keep up with the advances in their field or seen their skills diminish?" Why are they granted an ABIM board certification "hall pass" while the younger Plaintiffs in this case were not? Why is such an age- and gender-discriminatory double standard acceptable for board certification in the judges eyes? (Remember, younger physicians who must perform MOC are increasingly comprised of females and physicians of color.)

Would the judge feel similarly if he had to retake his bar examination and pay monopolistic fees to the Bar Association every 2-10 years to maintain his appointment to the bench?

Concerning the unjust enrichment dismissal, the judge makes a similar blunder and fails to even consider the Plaintiffs' concerns:

"Our analysis is again constrained by Plaintiffs’ misunderstanding of the product they purchased. Clearly, the first two elements of unjust enrichment are met for Plaintiffs that purchased MOC. However, the third element is not met because it is not inequitable for ABIM to keep the benefit since it did not “force” Plaintiffs to purchase MOC.(emphasis mine) Plaintiffs were, of course, free to decide to no longer be certified by ABIM and to, therefore, not purchase MOC."

The Plaintiffs in this case were free to decide that they did not need to purchase MOC just as they are free to decide to stop breathing. How long could the Plaintiff internists earn a living and work as internists if they cannot hold hospital privileges or receive insurance payments unless they purchase MOC?

This judges' entire ruling in favor of ABIM seems thin to me.

I look forward to seeing where the next chapter of this ongoing legal battle takes us in the weeks and months ahead.

-Wes

It is important to realize this case is far from over as the legal battle against MOC continues. Please help the Plaintiffs' efforts to end MOC by contributing here.

Federal Judge Dismisses MOC Class-Action Lawsuit, For Now

On 26 September 2019, a Pennsylvania judge has dismissed the current claims filed by the four internists challenging ABIM’s Maintenance of Certification (MOC) program (The full opinion here). The judge, however, has invited the plaintiffs to file amended claims on the monopolization and racketeering claims in the lawsuit in the next 14 days and, in contrast to what the ABIM said in their public statement, the case is far from over. Even if the plaintiffs are ultimately unsuccessful at the trial court level, all available appeals will be pursued.

No one ever thought this would be an easy fight - it is a David vs. Goliath effort after all - we remain committed to do whatever we can to bring an end to MOC.

-Wes

ABMS's Vision: Doubling Down on MOC

Since the American Board of Medical Specialties' (ABMS) "Vision Commission" issued its corporate white-paper "final report," it has become abundantly clear that the American Board of Medical Specialties (ABMS), medical subspecialty societies, and the entire Accreditation Council for Graduate Medical Education (AAMC, AMA, AHA, etc), have no intention of ending mandated re-certification requirements for US physician or osteopaths (also known as Maintenance of Certification (MOC), Continuous Certification, Maintenance of Certification in AnesthesiologyTM (MOCA®), ConCert™, or OCC).

Instead, they are doubling down.

One only has to look at the list of sponsors at this week's 2019 ABMS Conference here in Chicago to understand why.

Their "Premium Sponsor?" Certemy.com - a VC-funded startup from San Francisco infused with a cool $3 million investment run by a venture capitalist and Kaiser Permanente urologist eager to capitalize on the lucrative credentialing business. Or how about this ironically-named company in the ABMS co-branding line-up: MOCingbird that reminds you when all your lifelong credentialing paperwork and payments must be completed?

The data-selling opportunities are endless!

Might the for-profit ABMS-subsidiary ABMS Solutions, LLC provide Certemy.com, MOCingbird, and a whole host of other business middlemen the personal information, NPI numbers, addresses, cell-phone numbers, emails, MOC expiration dates, and test scores of physician, parsed psychometrically-designed test questions to insurers, hospitals, and anyone else who wants to hold physicians hostage for their financial purposes?

When you control a monopoly, anything's possible - especially when physicians are forced to "sign" an adhesion contract while paying for and enrolling in MOC as a condition of remaining employed.

From ABMS's own website, a dark, physician data deep-state has evolved:

• An exhibit hall representing innovators in areas of assessment, test development and administration, data collection and measurement, and more.


• Organizations can use data to better monitor and guide physicians’ work, trigger point-of-care decision making, and assess the impact of physicians’ improvement activities. In this session, the presenters will share how they identify the correct data and the appropriate source(s) of data and will discuss how data can be used to improve clinical decision making.


• Discuss how data can be used at the point of care to improve clinical decision making


• Psychometric analysis to create legally defensible exams

The world of the ABMS "continuous certification" monopoly is not only Orwellian, it's just plain creepy. Is this monopoly about lifelong physician continuing education or lifelong physician manipulation?

Given this ABMS corporate line-up and their self-serving focus demonstrated so clearly by their "conference," the intent of ABMS "continuous certification" is obvious.

It's time to put an end to this computerized madness masquerading as "physician improvement" because this MOC game that ABMS has doubled down on is getting utterly ridiculous.

-Wes

How ABIM's MOC Product Ends Physician Careers

From Medical Economics:

Mark Lopatin, MD, has been a vocal opponent of ABIM’s MOC process for several years, but says that these new options are similar to changes he’d like to see in his subspecialty of rheumatology. His 1986 board certification in internal medicine is still considered valid, even though he hasn’t practiced in the field for 30 years, he says. But because rheumatology boards were not available in 1989, he took and passed the exam in 1990—one year too late to achieve grandfathered status—and has gone through the MOC process every 10 years since. He won’t be taking a fourth exam in 2020, however. “To take rheumatology boards means that I have to spend about three months preparing—at least three months—studying rote memorization of facts, esoteric stuff, trivial pursuit kinds of stuff that is not relevant to what I do on a day in, day out basis,” he says. “I’ll be 63 years old at that time, so if I took it and retired at 65, it buys me another year or two. It’s not worth it.”

While pleased to see ABIM collaborating with medical societies in some subspecialties, Lopatin says the testing component is still fundamentally flawed. “They’re still focused on that high-stress, timed exam that needs to be passed. What really needs to be measured is due diligence,” he says.

And despite his impending exit from medicine, Lopatin has already donated twice to PPA’s GoFundMe campaign. “I’ve been very outspoken about this, and this is my chance to put my money where my mouth is,” he says. “I am stopping my career because of this. To me, that’s a pretty strong statement about how I feel about what ABIM has done and is doing.”

MOC and these subspecialty "continuous certification" products are (and always were) about financial coercion, strongman threats, false claims, monopoly-making and deception. Medicine has no place for these things. Unfortunately, only a small percentage of doctors have donated to help end the MOC product's threat to a physicians hard-earned right to work.

Except physicians like Dr. Lopatin. Dr. Lopatin demonstrates something that MOC and all those costly pushed quizzes to our mobile phones will never be able to test...

... leadership and integrity.

Thanks, Mark.

Here's hoping others will follow your lead.

-Wes

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

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