Physician Plaintiffs File Reply Brief Against ABIM

The four Internal Medicine physician Plaintiffs-Appellants filed their latest Reply Brief in the class action lawsuit against the American Board of internal Medicine (ABIM) today. That reply brief summarized the alleged tying arrangement of ABIM board certification to "Maintenance of Certification (MOC)":

"ABIM’s monopoly power over certifications is undisputed. Certifications are an economic necessity for a successful medical practice. From 1936 to today ABIM certifications have assessed one thing: postgraduate medical education. 

Realizing that only so much in certification fees can be extracted from new residency graduates, MOC allows ABIM not only to charge internists a one-time certification fee at the outset of their practice, but to force internists to purchase MOC by revoking their “initial” certifications if they do not, requiring them to pay inflated MOC fees throughout their entire decades-long careers. The two products are separate because, in ABIM’s own words, MOC “means something different” from certifications and “speaks to the question of whether or not an internist is staying current.” (¶ 53). MOC’s true purpose, however, is to create a lucrative revenue stream for ABIM, resulting in hundreds of millions of dollars in new fees. (¶ 65). 

There are other products—not sold by ABIM—that help internists stay current, including continuing medical education products (“CME”). (¶ 54 (“MOC serves substantially the same function as CME”)).1 

MOC is ABIM’s fourth attempt to sell a product distinct from certifications to help keep internists current. Thousands of internists bought three previous voluntary MOC products separately from their certifications as part of ABIM’s Continuous Professional Development Program (“CPD”). (¶ 25). “Grandfathers” today also purchase MOC separately from their certifications. (¶ 35). Purchases by internists of MOC, CME, and other non-ABIM CPD products to stay current, demonstrate distinct demand for those products separate from the demand for certifications. ABIM’s earlier versions of MOC failed to generate the hoped-for revenue because ABIM did not revoke certifications of internists who did not buy them. That ABIM’s voluntary products were unsuccessful reflected internists’ preferences to buy products from others to stay current. (¶ 55). ABIM ensured, however, that MOC succeeded by tying it to “initial” certifications and making it mandatory. (emphasis mine) Plaintiffs’ claims do not threaten ABIM “standards” any more than ABIM’s earlier voluntary MOC products did. Plaintiffs ask only that ABIM’s illegal tie be severed and that MOC once again be voluntary."

In addition, the filed brief explains the basis of the RICO claims made by the physician Plaintiff-Appellants against the ABIM: 

"After ABIM was unable to generate hoped-for fees from its first three voluntary MOC products sold as part of its CPD Program, it realized it must force internists to buy MOC. ABIM did so by revoking the certifications of internists who did not buy MOC. In furtherance of its scheme, ABIM waged a campaign of fraudulent misrepresentations 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 improves patient outcomes. As a result, ABIM has collected hundreds of millions of dollars in MOC fees under false pretenses."

Finally, in regard to the unjust enrichment claim dismissed by the earlier District Court judge:

"The district court’s sole rationale for dismissing Plaintiffs’ unjust enrichment claims is its conclusion that ABIM “did not ‘force’ Plaintiffs to purchase MOC.” A-41. ABIM similarly repeats its argument that internists “chose” to “pursue and maintain their certifications.” ABIM Br. 54. Plaintiffs have already debunked this argument, and clearly allege “forcing” notwithstanding the erroneous conclusions and arguments of the district court and ABIM. 

ABIM points out that certifications are not required for licensure. But it does not deny certifications are required for admitting privileges, insurance, and other requirements of a successful medical practice, and accordingly are an economic necessity. Finally, the district court opinion in In re Avandia Mtkg., No. 2007-MDL-1871, 2013 U.S. Dist. LEXIS 152726 (E.D. Pa. Oct. 22, 2013), does not support ABIM, as the unjust enrichment claim there failed for several reasons not pertinent here, most importantly because, unlike MOC, the purchases were voluntary. See ABIM Br. 55-56."

With this filing, it is clear that the class action lawsuit filed by working physicians against the ABIM is far from over. Read the whole Reply Brief here. 

-Wes

To support the physician plaintiffs in this ongoing lawsuit, consider contributing to their GoFundMe page.

ABMS Board Certifications: One Product or Two?

It is the question at the crux of the antitrust cases against the ABMS member boards: Is board certification one product that has merely been updated or does board certification contain more than one product? If more than one product, is the second product tied, or leveraged, to force the purchase of the second product?

Let me be the first to admit I am not a lawyer, much less an expert on antitrust legal issues. (That is stating the obvious.) But I am a physician who has felt first-hand the squeeze applied to my bank account and psyche by the monopoly power enjoyed by the American Board of Medical Specialties (ABMS) and their member boards over the many years I have had to endure their repeated testing.  

For most US physicians, board certification is anything but voluntary as the ABMS and their member boards suggest. The history of board certification did NOT require MOC when hospital credentials, insurance panel participation, and malpractice coverage began requiring the lifetime credential before 1990. Only AFTER the 1990 change in "rules" imposed by ABIM that their certification was suddenly "time limited," did physicians become trapped and had to purchase MOC. For this reason, I know if I do not repeatedly "re-certify" by paying the ABIM their fees and performing their continuing professional development programs (however they have been morphed over the years) I could lose my ability to work as a physician - the profession I have practiced for over thirty years.

It is that nauseating "squeeze" that has lead a number of physicians to file suit against these powerful (and we now have learned, highly financially conflicted) tax-exempt US specialty "medical boards." Personal luxury condominiums with chauffeur-driven town cars, off-shore retirement accounts, first-class and spousal travel to resort meeting locations offered to a few lucky and highly-marketed physician "experts" has kept the process going for years at the expense of their less well-to-do and politically connected colleagues. 

Maintaining this monopoly has come at a huge direct cost to working physicians. The cost of hiring felonious "test security" personnel, lobbying Congress, hospitals, and the insurance industry has seen the costs for "re-certifying" mushroom over 654-766% in the last twenty years.

Since the onset of the coronavirus pandemic, with the exception of a video chat on Fox News by Richard Baron, MD, the President and CEO of the American Board of Internal Medicine (ABIM), the medical boards have largely gone underground. Instead, they are content with letting their 400+ lawyers work to preserve their fiefdom by arguing  that board certification is one "voluntary" product.

Where Does the Precedent-setting ABIM Antitrust Lawsuit Stand?

In December 2018, the ABIM was sued by four internal medicine physicians who claimed the ABIM engaged in illegal antitrust activities. That lawsuit was later amended to include racketeering and unjust enrichment claims. But that lawsuit was never tried because a senior district court judge sided with the ABIM on September 26, 2019 that initial certification and Maintenance of Certification are one product, "ABIM certification:"

"Internists are not buying “initial certification” or “maintenance of certification,” but rather ABIM certification. This is made clear by hospitals and other medical service providers requiring ABIM certification, in general. This fundamental misconception about the nature of the entire certification product offered by ABIM undercuts Plaintiffs’ arguments."

With that decision, the plaintiff's antitrust claims were dismissed with prejudice, but the racketeering and unjust enrichment claims were dismissed without prejudice.  So the plaintiffs appealed the district judge's ruling to the Appellate Court level on 4 May 2020 and argued the judge ruled erroneously:

"Plaintiffs allege: internists differentiate between certifications and MOC; ABIM has always sold them separately; ABIM treats the two products as separate; ABIM bills and accounts for certifications and MOC separately; and other vendors sell CPD (continuous professional development) products like MOC that keep internists current without selling certifications. Case: 20-1007 Document: 22-1 Page: 21 Date Filed: 05/04/2020 13 The district court ignored these allegations and erroneously concluded that certification and MOC are one product. A-29. In doing so it arrogated to itself determination of the ultimate factual issue, improperly weighed facts, resolved inferences against Plaintiffs, and considered “facts” asserted by ABIM outside the Complaint, all of which are improper on a motion to dismiss. See Flora v. County of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015); Kedra v. Schroeter, 876 F.3d 424, 433 (3d Cir. 2017) ; Sweda v. Univ. of Pa., 923 F.3d 320, 326 (3d Cir. 2019)."  

In response, the ABIM has argued otherwise in their recently filed brief:

"The district court properly dismissed plaintiffs’ Section 1 tying claim because plaintiffs failed to plead factual allegations plausibly demonstrating that MOC and initial board certification are separate products capable of being tied. The district court considered each of plaintiffs’ factual allegations and, drawing upon the case law and common sense, rejected plaintiffs’ argument that MOC and initial board certification should be considered separate products. Instead, the court concluded that plaintiffs’ allegations make clear that there is no demand for MOC separate and apart from the demand for board certification. ABIM offers a single certification program for internists to demonstrate their excellence. That program includes initial certification and MOC. As plaintiffs acknowledge, ABIM is entitled to set its own standards in determining who qualifies for its recognition." 

But the ABIM conveniently never mention the grandfather issue in their brief - that is, the discriminatory practice of exempting older physicians certified before 1990 from having to perform MOC. Instead, they claim in this brief that "ABIM has always sold MOC together with Initial Certification." Senior physicians like myself know nothing could be further from the truth. 

The Plaintiff's response to the ABIM's brief is due July 27, 2020. If the opposition to motion to dismiss the lawsuit against the American Board of Radiology (another ABMS member board also sued for antitrust violations) is any indication, holes in the ABIM's argument that initial certification and MOC are a  "single product" could soon surface and lead to the Plaintiffs finally getting their day in court.

We can only hope.

-Wes

P.S.: Physicians wanting to support the Plaintiffs in their David-vs-Goliath effort are encouraged to contribute to the GoFundMe campaign created on their behalf.

MOC and the Racist Origins of Grandfathering

From Paul G. Mathew, MD via Facebook: 

A hearing was held yesterday by the Rhode Island State Legislature's House Finance Committee regarding H7171 Article 20 on Healthcare Reform. One of the topics of discussion was the Interstate Compact, which will allow physicians to practice medicine across state lines. This will be especially helpful in providing tele-health services to areas of need. One major concern is that the compact is written in such a way that a physician is defined as someone who is compliant with the American Board of Medical Specialties Maintenance (ABMS) of Maintenance of Certification (MOC) Programs. The American Medical Association (AMA) has passed numerous resolutions that MOC compliance should not be a requirement to practice medicine (https://assets.ama-assn.org/sub/meeting/documents/i16-resolution-309.pdf). This would be the first time that obtaining a medical license would require a physician to pay this non-profit private monopoly for a product that is expensive, time consuming, and has little evidence that it improves patient care.

 

MOC serves to increase the cost of healthcare, reduce patient access to healthcare, and contribute to physician burnout. As recently as May 28, 2020, the AMA has taken a public position that compulsory MOC participation contributes to physician burnout (https://www.ama-assn.org/practice-management/physician-health/12-factors-drive-physician-burnout). In addition, MOC compliance is discriminatory based on age, race, and gender, as time-unlimited certificate holders (grandfathered physicians) are excluded from participation, and are 80% white and 70% male (https://www.aamc.org/system/files/reports/1/factsandfigures2010.pdf).

 

The term “Grandfathering” has racist origins as the term was used in an effort to limit people of color from voting. As such, it should not be used by name or in discriminatory practice. (https://www.npr.org/sections/codeswitch/2013/10/21/239081586/the-racial-history-of-the-grandfather-clause). Granting one group of physicians elite status of this nature is particularly concerning given our society's current focus on systemic racism and gender discrimination. The danger here is that if the Interstate Compact is successful, national rather than state medical licensure may be on the horizon, which should not be tied to MOC compliance.

 

As Director of Legislative Affairs of the National Board of Physicians and Surgeons (NBPAS.org), I submitted testimony requesting that NBPAS also be recognized as a re-certifying entity. Physicians must have a choice in board re-certification providers between evidence based (CME) NBPAS re-certification or MOC based ABMS re-certification. I hope that my physician colleagues will join me in voicing our concerns to the leadership of our societies and policymakers that MOC compliance should not be required for practice, and in the case of the Interstate Compact, should not be a requirement for licensure.

View more about MOC, its harms, and inherent racial and gender discrimination here.

-Wes

 

Will the History of US Physician Board Certification Sink MOC?

In the closely followed Siva v American Board of Radiology (ABR) antitrust case (1:19-cv-01407), the Plaintiff recently filed an Opposition to Dismiss the First Amended Complaint (FAC) earlier this week. At issue in this case is whether intial certification and MOC are a single product or two separate tied products. In this newest legal docket entry, the Plaintiff added additional arguments from a recently decided Viamedia, Inc. v. Comcast Corp. antitrust tying opinion recently decided in the Seventh Circuit Court that demonstrates the importance of the history of US Board Certification is to the tying claim made by the Plaintiff:

ABR also virtually ignores the new Sherman Act, Section 2 tying opinion, Viamedia, Inc. v. Comcast Corp., 951 F.3d 429 (7th Cir. 2020), in which the Seventh Circuit reversed summary judgment for defendant, rejecting the same single product arguments ABR makes here. First, Viamedia holds that whether there is separate demand must be assessed before the tie is imposed, and not after. Viamedia, 951 F.3d at 469 (“the market must be ‘assessed at the pre-contract rather than post-contract stage’”) (quoting Philip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application, ¶ 1802d6, at 89 (4th Ed. 2018) (“Areeda & Hovenkamp”)).

This guts both premises of ABR’s single product theory: (1) that certifications should be analyzed post-MOC, with MOC viewed as a component of a “multi-stage” process (ABR at 8), rather than before ABR imposed its tie forcing radiologists to buy MOC or have their certifications revoked; and (2) as to MOC, “the relevant inquiry” is whether there currently is conflated demand for a single CPD product (MOC) and certifications as a result of ABR’s tie (id.), rather than inquiring whether there was separate demand by radiologists for CPD products before ABR tied certifications and MOC. See Viamedia, 951 F.3d at 469 (consumers “viewed the services as separate prior into entering into their present [tying] contracts with Comcast”). The Viamedia imperative to assess demand before the tie makes perfect sense because focusing on demand after the tie is forced on consumers inevitably rewards the defendant who has already successfully reduced competition, the very goal of the illegal tie. Viamedia makes clear that a defendant like ABR who forces consumers to purchase a tied product, cannot then parlay its own coercion into evidence of lack of separate demand for a product that the victimized consumers would not otherwise purchase, exactly what ABR argues here. (ABR at 8-9, 11).

Additionally, the new brief suggests the adhesion contract physicians must sign when enrolling in MOC (or one of its Continuous Professional Development (CPD) successors) are irrelevant to the antitrust issues being decided by the court:

ABR argues repeatedly that Dr. Siva “knew” from “the outset” based on a “contract” that MOC was tied to certifications. (ABR at 3-4, 10, 11). In doing so, ABR misrepresents information and documents about MOC that Dr. Siva received “after he purchased his certification.” (¶ 255; emphasis added).7 Dr. Siva alleges that neither his application for certification nor the certificate itself referred to “initial” certification or to MOC. (¶¶ 250, 252- 253). (emphasis mine) The FAC also alleges no contract obligating radiologists to buy MOC; nor does any such contract exist. Radiologists are forced to buy MOC because if they do not, ABR revokes their certifications, without which a successful medical career is impossible.

At any rate, ABR’s argument is a diversion. Awareness that a tie exists when the tying product is bought does not make the tie any less coercive. Radiologists’ knowledge of ABR’s monopoly power and leverage cannot absolve ABR of its illegal tie.

There is no question the heat is being turned up of the American Board of Radiology and this new legal precedent set by Viamedia prioritizes the importance of the history and original intent of board certification (that is, of assuring adequate residency training) is an important factor in establishing the illegal product tie that ABR has leveraged with MOC against its diplomates for their financial benefit.

ABR has approximately three weeks to respond to these latest arguments.

-Wes

PS: Physicians wishing to help the ongoing legal efforts to end MOC for all subspecialties are encouraged to contribute to the GoFundMe page created to support the plaintiffs.