Friday, July 17, 2020

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" personnellobbying 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.

14 comments:

No more MOC said...

Physicians’ strongest defense is a unified offense of Tens of thousands of doctors universally And simultaneously refusing MOC nationwide this year and next year and the year after. The horrible MOC will self implode when nobody does it and hospitals and insurances will also be forced to recognize physician’s credentials as board certified Whether or not they do MOC. Society Itself will not accept the false withdrawal of our Board certified Status by the boards because MOC has been refused any doctors.

Anonymous said...

What nonsense and lies the ABMS propagates today about themselves and their mission serving public safety with MOC. MOC is a separate product and it is tied to certification in a classic pay-to-play scheme.

Anonymous said...

The ABIM, ABMS "umbrella" and rest of the medical specialty boards all pushed one product for over 50 years. They pedaled and sold a certification test that was good for life. The test was voluntary and had no ties to employment or reimbursement whatsoever. A test offered out of residency to aid in creating specialist and sub-specialists in the profession of medicine. Testing was only partly to show that you had adequate scientific training/medical knowledge, and skills. The other reasons were dubious and hidden. The first ABIM test was an 8 question essay. Strangely the test proved nothing and served no real scientific purpose. In fact in the beginning 9 ABIM board members passed themselves. 27 physician in total became ABIM certified the first year. This formed the basis of an elitist club. Immigrants were not allowed to join "the club". This was another form of discrimination. Black physicians not encouraged. Women not encouraged. Only Canadian and US graduates were allowed. Invariably a white males only club.

Anonymous said...

The main purpose of certification with the ABIM when it was created in 1936 was to create more power for the AMA and ACP. You had to belong to these groups or you could not govern. They had a fifty year mission (or less) at the ABIM, which would give more authority and money to these two major organizations. This served the twofold mission of creating political and financial powerhouses out of the AMA and ACP.

Today MOC is designed to add more political/corporate power. Large sums of money to the ABMS, AMA and ACP.

Anonymous said...

Nothing is voluntary anymore for physicians. Once it was. MOC, is a separate "product" tied to certification. MOC purpose was to cheat physicians out of their rights and independent thinking. MOC helped take ravage their professional lives, personal lives and it aided in taking the voluntary nature of certification away.

There is no self-regulation and never was.

There is no accountability and this has always been the case for the ABMS advisory and the modern umbrella organization, and all 24 medical boards.

To summarize: Until it was not, it was voluntary to be certified with the ABMS/ABIM. Now certification is illegally and unethically linked to job and remuneration. MOC solidifies power and monopoly of the ABMS and helps dictate whether you get to work or get paid for all your years of training and sacrifice.

MOC is a lever to produce money and force conformity, quelling independent thinking and independent action, which is critical to medicine. MOC discourages one to study and choose or professing/acting from one's medical conscience. The ABMS, AMA, and ACP helped destroy and bury the medical conscience. Replacing it with a "corporate conscience" or herd mentality. Self-regulation was never a reality for physicians. This was a lie from the beginning.

Anonymous said...

Physicians have been involved against their will with a political and corporate elite that wants to control them, eat their flesh and sell their fleece.

This is a cruel reality but true. Sheep are powerless to organize and fight back because they are full of fear and conformity.

Excellent sheep find it hard to do anything to be free. And that is the way it will be unless sheep become eagles and fight for their rights.

The ABMS and ABMS MOC deep-sixed a physicians independent thinking, will and conscience.
Thus they destroyed the profession of medicine.

MOC put a bullet to the head of all those who would fly like eagles.

Anonymous said...

A federal appeals court ruled the federal government has the authority to cut Medicare payments to off-campus clinics to bring them in line with independent physician practices, reversing a lower court’s decision.

The ruling from the U.S. Court of Appeals for the District of Columbia delivered Friday strikes a major blow to the hospital industry who has been fighting the Department of Health and Human Services (HHS) over the controversial rule.

The goal of the rule is to reduce a disparity in Medicare payments where hospital-affiliated clinics get paid more than physician offices for the same services. Some critics have said the gap has helped fuel a race towards hospital-physician consolidation.

The American Hospital Association led a lawsuit against an annual 2019 hospital payments rule, which phased in the cuts over two years. The hospitals argued that HHS’ site-neutral payment cuts violated the federal statute governing the annual payment rule.

As the hospital industry will lose MASSIVE amounts of revenue from outpatient patient care, they will SLASH the salaries of physicians who are ENSLAVED EMPLOYEES of these hospitals. The collusion between the insurance companies, the hospital mega corporations and the ABMS will force legions of physician employees out the door.

What will happen when physician employees take a 15% pay cut? Or a 25% pay cut? Or a 30% pay cut on top of MOC horse$%!t?

Suddenly the shiny veneer at the Mayo Clinic, Cleveland Clinic, Northwell, Banner, and Providence won't look too fresh anymore.

Anonymous said...

Nice post / comments . When when will physicians become more organized — real docs ! Yes, today’s docs are consumed with EMR, insurance powers, ambulance chasers , Major stresses leading to depression , and now, COVID . Still - need ,as one comment suggested , massive active denial of these supposed support orgs ,, will drive them to non existence . Please —- as well as ,,, do away with the anti-vaxxers ——
Thanks for post/analysis / comments ..

Anonymous said...

Makes no sense that they have physicians who took only initial ABIM and are certified and yet they claim MOC and initial certification are one and the same. Makes no sense.

Philadelphia Leagles said...

Oppression and Surprise

Certification and MOC are two products. MOC is illegally tied to certification with deception plus they confound physicians rights using an adhesion contract for each product. In fact both products are pushed down physicians throats or they will not be able to work/get paid. The ABMS and medical specialty boards are committing egregious legal and ethical violations involving "procedural unconscionability" and "substantive unconscionability". And they still call certification and MOC "volunatary". What a lie.
They continue to do harm to physicians and patients, yet the ABMS continues with its fervent assault. For money and power.

There are in fact two separate illegal contracts. One for each certification and several more for MOC/KCI/Lonitudinal Assessment-TBD, or whatever name they invent for their illegal and unconscionable forced contracts in the future. (Violations of law repeated ad nauseum under different names, assaulting doctors and patients in perpetuity.)
How many counts will that make. The ABMS should reimburse coerced payments and pay damages to all physicians. Nothing is voluntary here. Yet the ABMS invariably states that their "products" are "voluntary". This is blatantly false. An involuntary contract coerced (certification), then with multiple added product contracts (MOC) delivered with a slap in the face to their captured clients. (Physicians are being tested to death literally.)

Here is an important fundamental question to consider. Are the ABMS and its medical specialty boards even public safety organizations? Or are they political and financial corporations - powerhouses serving their own personal financial and political agendas. Case study. Christine Cassel and mnay others of her ilk who worked and still work for the ABMS and their agendas, which go far beyond the scope of a "testing corporation". Far beyond their "job descriptions".

The following complaint with judges opinion below against the Philadelphia Eagles was brought to the PA courts by a former spokesperson/communications officer of the Eagles. (labor contract law). She was a victim of breast cancer. https://www.govinfo.gov/content/pkg/USCOURTS-paed-2_09-cv-01222/pdf/USCOURTS-paed-2_09-cv-01222-0.pdf

It is an interesting because of the many injustices/insults to person that appear in the initial complaint. And injustices keep getting repeated against vulnerable people/groups inflicted by powerful organizations. Whether a case is strong or weak does not discount the harms committed by groups that have little accountability and a great deal of money/power/legal prowess. In the case of the ABMS it is very clear these are forced contracts involving "oppression and surprise". The adhesion contracts are online fares and forced on doctors. Who would agree to involuntary "take-it-or-leave-it" contracts under the Orwellian veil of "voluntary". Who would agree if they had choice, especially when facts are made known. That is why the courts are necessary to bring out facts. Powerful groups and corporations can keep facts from coming to light. That is what needs to be prevented - the suppression of facts by the ABMS.

Justice needs more than a day in the courts. Just as the tobacco lawsuits involved years of fighting in the courts to get justice for the victims. Studies were supressed, facts misrepresented. The ABMS/ABIM supported/suppressed facts in behalf of the tobacco industry. This is a fact. They have a dirty record in terms of protecting the public's health. It is the same today. Clean faces and dirty hands. Typical of many "politicians" deriving benefit from selling out the public (and profession). It will take years to come to the real truth here. It is complex and not simple involving the ABMS and their partners.

Anonymous said...

It makes no sense because it is a pure deception. There are two products clearly (certification and MOC). And the ABMS hopes to hoodwink the courts and everyone else involved keeping the deception (and suffering under the yoke of MOC) going for as long as they can.

ABIM Barbershop Trio Sings "Sixteen Tons" said...

Do no harm

The ABIM failed to get even four signatures for its trust campaign involving "Operation Warp Speed". Is that because nobody trusts the ABIM? The ABIM CEO Rich Baron appears to be claiming that people of color need to be strongly "influenced" into taking this fall's Covid-19 vaccine. Don't these insouciant politicians at the ABIM understand that a safe vaccine could not be created and thoroughly tested that soon. If ever! as this virus, like all viruses, are constantly mutating.

Such stupid statements will sting them badly if anyone of whatever color or belief reads their highly controversial political blog. Dr. Baron is obviously inferring that their "target populations" (black and brown people") are incapable of thinking for themselves and reaching a sound decision about a vaccine. Laypersons are more in line with science than the ABMS. The ABIM (and Dr. Baron) insults everyone by implying that we need to be herded like sheep and carelessly roll up our sleeves by "the fall".

And the ABIM dares to say that brown and black people need to talk to their barbers to get accurate and trustworthy information about the corona virus and not their doctors. Dr. Baron appears to infer that barbers are better and more trustworthy sources of medical knowledge than personal physicians and their highly trained and tested to death specialists? Everyone should take pause about the ABIM's unscientific thinking and lack of reliable knowledge. How can a medical board test doctors on medical science when they don't even posses common knowledge and common sense. Will barbers be delivering ABMS MOC exams in the next serial installment on their blog. This is the most ludicrous writing and totally unscientific nonsense about "controlling populations" that I have ever encountered.

It sounds as though they are mounting some grassroots effort to get the "black and brown" vote out in "the fall" if you really want to understand them better. Afterall they are about 99 percent politically motivated (rent-seeking) organizations and 1 percent medical science. Dr. Baron claims on the ABIM blog that a covid-19 vaccine will be ready this fall. (Is he in touch with Big Pharma about this? One really has to wonder about their conflicts of interest!) I didn't think they were that ignorant at the ABIM as to believe that anyone would actually submit to a "theoretically perfect" vaccine before it is fully tested. Most agree that it would take years for a vaccine to be developed. That is the known science. We have no engines that can go at warp speed. That is pure fiction.

The ABIM and partners are recommending "barbershops" as the best way for their social engineering plans to work. I have never laughed so hard at how ignorant, arrogant, and out of touch this medical board and their lucrative foundation could be concerning generating trust among "black and brown people". But it is not funny as the outcome would be tragic if people actually willy nilly lined up for such a farce. The medical boards are digging a deeper hole for themselves, larger than they have already created with their constantly mutating product called MOC. "Maintenance of Certification" is a totally novel and engineered disease unleashed on the profession of medicine over thirty years ago to disrupt and destroy it. The only cures for that is to sue the hell out of the medical boards in the courts. And get legislation passed to protect physicians and patients. It is highly recommended that they take down their post. https://blog.abim.org/abim-letter-to-operation-warp-speed-calls-for-addressing-the-vaccine-trust-gap-with-communities-of-color/

Sixteen Tons of Corruption said...



What are they thinking at the ABIM? It sounds more like they ABIM is trying to convince vulnerable/highly intelligent people to take a vaccine that might cause them harm. But what could their motive be for doing something like that? Why would they encourage that kind of unknown hurried treatment on vulnerable population. It appreas purely malicious in its intent. How can they profess and push such obvious politically-motivated Malarky.

I think anyone who seriously reads and thinks over what the CEO of the ABIM and his two partners have written, it will be crystal clear why not a living soul could trust the ABMS medical specialty boards. This is the same medical board and umbrella that disenfranchised a competent physician executive at the American Board of Preventive Medicine and put a Blackstone private equity attorney in charge.

That kind of population control is a manifestation of the corruption that makes me shake with terror regarding the future of the certifying boards and the profession of medicine. It is led by non-clinical physician politicians. The ABMS "population health experts", at the ABIM, ABPM and all the rest of the boards may be trying to do serious harm to people in the fall so that it might affect the elections. What else could it be?

I think the ABIM should retract what they have published, apologize and clarify their thinking why they are even trying to influence anyone, especially in a politically-charged election year.

Even Dr. Google (AI) is more accurate on the question on a coronavirus vaccine than Dr. Baron and his associates.

"Common question (on Google)
When will we find a vaccine for the coronavirus?

Even when researchers find a vaccine that works against the new coronavirus, it could be 12 to 18 months at best before it's ready for the public.

That's only a fraction of the usual time."

https://www.youtube.com/watch?v=tfp2O9ADwGk

ABIM Has A Long History of Political Activism/Propaganda said...

You can tell that this "letter" signed by Dr. Baron and posted on the ABIM blog is full of of mindless political fervor with the ultimate aim of influencing politics/voting this fall and not health. It is painfully obvious.
https://blog.abim.org/abim-letter-to-operation-warp-speed-calls-for-addressing-the-vaccine-trust-gap-with-communities-of-color/

One of the "tells" is how their concluding remarks don't refer back carefully enough to their opening remarks. In the beginning Dr. Baron mentions "indigenous peoples" in passing with "black and brown" communities getting all the attention. But the ABIM PAC fails to include the native Americans (indigenous tribes and nations) in their summation for some reason. This is because the ABIM PAC led by Dr. Baron is targeting the largest voting populations. "Indigenous peoples" in the ABIM's politically active brains make up an insignificant voting block at 1.5%. They target instead, with mindless political zeal the 48% that they think will make a difference in swaying the elections this fall.

It would be better if the ABIM worked on its own block of "trust issues" and not use trust as a political wedge, spending copious amounts of money and time hubristically trying to remove the pebbles of trust that may exists in others.*

ABIM's opening remarks about trust and "operation warp speed" (hurried covid vaccine)

"While we understand you need to be focused on the essential operational details of research, manufacturing, and distribution, we believe that it is entirely predictable that many Americans— especially Black, Latinx, and Indigenous people—will not take a vaccine, however safe and scientifically proven it may be, if they do not have trust in the process and people that produced it.

Therefore, we urge that you immediately take proactive and intentional steps to build trust in the products you bring to market by bringing publicly recognizable, trusted, and accepted Black and Brown leaders into the process of designing and implementing vaccine trials and distribution strategies."

ABIM writes in summary

"Any hope of successfully offering a novel treatment to Black and Brown Americans must begin with an understanding and take the trust gap seriously as a problem to be addressed, every bit as substantive as having enough syringes and needles with which to deliver a vaccine. And with a vaccine ready as early as this fall, the time to try and earn back the trust of Black and Brown communities is now.

We urge you to act. We stand ready to answer any questions or to help implement a strategy that builds trust with the Black community as the nation recovers from the pandemic."

*Dr. Baron and his communications team led by a former NFL spokes fail to realize that large swathes of their target voters may actually consider themselves to be indigenous or mixed. The ABIM actually creates more division/inequity in what they are doing by hammering it home typical of any untrustworthy politician/corporate body giving lip service to the obvious.

The ABIM has four separate products they sell. Certifications, MOC, propaganda, and corporate favors. Propaganda is endemic to the ABMS and permeates everything they do and say. Everyone in the know understands that the ABIM is about the politics of monopoly (money) and power.