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 *11.1The 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.
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 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.
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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.
"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 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.
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.
I also understand that ABIM may use my examination performance, training program evaluations, self evaluations of knowledge and practice assessment, and other information for research purposes, including collaboration with other research investigators and scientific publications."Unbeknownst to most physicians, the ABMS has been involved with the sale and sharing of physicians' demographic and sensitive MOC data with third parties for years. Each clinical physician in the United States may see 2000-3000 patient's each annually. Marrying physician data with their patient's data and targeting patient markets becomes possible with physician-specific MOC information. Procedural and pharmaceutical data allows medical suppliers, pharmaceutical companies, device companies, and others virtually unlimited opportunities to sell their products while optimizing most their bottom lines through increased sales and offering rebates to health care facilities (aka, kickbacks).
The AMA-convened PCPI, in partnership with its members, has developed more than 350 measures, many of which are used in the Physician Quality Reporting System (PQRS) and Meaningful Use, as well as private health plan payment models. (emphasis mine)Not surprisingly, it's Board of Directors is lead by John S. McIntyre, MD of the American Psychiatric Association, who has never participated in MOC and is not required to do so:
In 2011, American Medical Association staff to the PCPI worked with a group of committed volunteer leaders to launch the NQRN®, a national, multi-stakeholder network of clinical registry stewards and others interested in registries. The NQRN has created tools and educational opportunities and increased the visibility and value of clinical registries as reporting and improvement systems. In 2016 NQRN was merged into the PCPI as a key program. In 2013, the AMA-convened PCPI launched the PCPI Quality Improvement Program to support its members improvement needs beyond measurement.
In 2014, the AMA and AMA-convened PCPI leadership undertook an evaluation to determine the optimal governance structure to meet the growing demand for value-based health care. The result of this evaluation was the adoption of new By-Laws in June 2015, which set the course for the PCPI Foundation (PCPI), an independent organization with an expanded membership.
The organization is filing this 990PF after the extended due date of November 15, 2018 (extension was for Form 990). Upon completion of schedule it was determined that the public support test had not been met for the second year. Research into IRS code and regulations was done to determine the next steps, which took the organization past the due date. The organization did not intentionally disregard the filing requirement, but rather, took time to ensure that that (sic) the appropriate filings were being made. Going forward, now that the requirements are understood, all 990PF filings will be timely. Additionally the organization properly extended the 2018 return as fling a Form 990PF.I'm sensing some BS here, but I'll leave that to my readers (and the IRS) to decide.
“Plaintiffs plan to appeal in full the dismissal of their case. While we respect the district court, we believe it was wrong at this early stage of the litigation to dismiss Plaintiff’s case and deprive them of their day in court. Plaintiffs look forward to the vindication of their claims on appeal.”ABIM may have thought they won this case on dismissal, but it looks the plaintiffs' claims will get a second more critical review of the case with the 3rd Circuit Court of Appeals.
"Really, now?" ("Yeah, now")So the pacemaker representative and the rest of the team were called as I drove to see the patient (none are happy, but they understood). I placed a temporary pacing wire for backup (thank goodness), implanted the pacemaker, spoke with the grateful family, then drove home for my head to finally meet my lonely pillow at 2 AM. Thankfully without another interruption that morning.
"His blood pressure is stable, and the ER doctor says he looks fine, maybe this can wait until the morning?" (But that nice escape rhythm could quit, the pacer pads might not work, and you'll have to scramble those 10 miles up the road to make it in time.")
"The rep on call lives far away." (Too bad.)
"The staff will be spent, too. They are overstretched and need their sleep." (But this is why we're on call.)
"Maybe just a temp wire, then pacer in the morning daylight hours? (I have to drive there anyway. The temp wire might dislodge, then the patient has NO rhythm... )
"Dude, just do it. It'll save time in the long run and let you sleep without worrying."
"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.)
"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?
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?
- 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
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.”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.
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.”
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).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.
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.
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?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.
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.
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.
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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.
- "Love it or
leavelove 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."
