Monday, July 27, 2020

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.

14 comments:

Anonymous said...

The ABIM created their discriminatory MOC policy based on "taste" for money and "lust" for power. Mandatory Moc is obviously based on "taste and lust" and not on "the law".

ABIM has a proven track record for showing a preferential taste for money and power. Circumnavigation of the law, operating on and beyond margins of what is legal and ethical. Executives from Benson to Baron developed a taste for the largess, which over billing and coerced MOC payments afforded/affords them. MOC's lust money filled/fills the political/legal war chest helping them maintain and expand their monopoly and power.

What could be more reprehensible for an "equitable" and "just" medical specialty board (all of the 24) to engage in than discrimination. Racketeering involving an educational Ponzi scheme and lining their pockets with the money to live large and engage in what any school child would call graft/corruption.

The ABIM Foundation's secret history, domicile, date of creation and money laundering over a period of 18 years

Creation of investment accounts with investments ill-suited for a non-profit organization

Loss of millions of dollars in risky investments and liquidation of assets to hide the losses

The purchase of a luxury Condo for executive use with (alleged) laundered money

The creation of ABIM/ABMS "Bureau of Investigations" headed by a double felon to destroy privacy and constitutional rights of physicians

Waging years of political campaigns destroying the autonomy of physicians
The destruction of competition through illegal spying and abuse of power and authority, misrepresentation in the courts

Illegal seizure of property and the illegal pilfering of data to persecute/prosecute perceived threats to their monopoly - individuals and companies

Selective lawsuits and sanctions against vulnerable physicians (some culled based on color, ethnic origin, immigration status)

Offshoring of money in tax advantaged/relatively debt-proof accounts for deferred executive compensation

Possible retention and payment of retired officers for shredding/selective sensitization of records

And on and on . . .

Anonymous said...

All this points to what any school child can plainly see. Wrongdoing and bad actors. Moneyed interests. Political activism. Propaganda and agendas that are way beyond the scope of a testing company allegedly involved in public charity.

Charity? What could be further from the truth. The ABIM is not "for the public". They are for themselves. The ABIM is not "of the profession". Everything the do and say confirms that these rent seekers are just full of themselves.

I think a jury could really see this today especially the way most other phony politicians/bureaucrats have lost the public's trust.

Anonymous said...

ABIM is a self-dealing non-profit "quality assessment" corporation that needs to obfuscate facts and put false information on its tax filing with the IRS.l They lied about the ABIM Foundation in order to help grow their political and monopoly power. Why did they lie about lobbying? Probably to hide their political activism and the fact that their CEOs are often full time politicians working for their own favored companies and partisan special interests/corporate agendas.

This lying on tax forms is part of their Achilles heel. Anyone suing the ABIM should include this lying and cheating on their tax forms in the discovery process and hit it home to a jury at trial.

Typically tax returns are fair game in establishing integrity of a company or individuals. Lying on tax returns, which the ABIM has clearly done for years is actually a spoiler for the ABIM's credibility. Lack of credibility and losing any remaining public support is one big reason ABIM cannot go to court. They need to stay out of court.

Just as in other cases involving financial and political malice and discrimination in the past (against ABIM), their legal teams will be forced to settle out of court.

In the present case against the ABIM, the 7th Circuit judge has no choice but to overturn the lower courts opinion/ruling and send this case to court. For a jury to decide.

When this case goes back to the courts and discovery begins, the ABIM risks losing even the thin ethical and legal ice on which their company skates today.

Trust is pivotal. They have lost public and professional trust. Lying on their tax returns and obfuscation/fraud regarding the self-dealing financial and political focus of their organization will destroy the ABIM when facts start coming to light.

Facts have already come to light.



Captured Client said...

Thanks for making the brief available. Wow!

Something went drastically wrong in the lower court. I read the full complaint when it was filed, and was shocked that this fully-briefed case was dismissed. It is even shocking, embarrassing in fact, when you read the latest reply/briefing. The lower court was sorely deficient in doing its proper job/due diligence. This case should not have been summarily dismissed using ABIM "talking points", but should have gone to discovery based on the law.

It appears the delay will only harm the ABIM as we saw a recent reversal of another lower court case regarding tying of products, which was appealed in the 7th circuit. The recent reversal will force the judge's hand. He has no choice but to reverse the lower court's erroneous findings and opinion.

The only chance ABIM had to prevail in this case was to get an early dismissal. Not sure how they got one so easily. But it's not the first time the courts got something so drastically wrong. The history and facts are so damning for the ABIM.

The fact that ABIM's CEO (MOC advocate) spent most of her ten years at the ABIM in Washington DC lobbying for companies she got huge payouts/kickbacks from. All in the name of "healthcare reform" that financially benefited many of the mentioned parties in the lawsuit. One wonders just how deep the corruption is and deception practiced at the ABMS and their medical boards. (And political/financial partner NQF.) The ABMS and ABIM participated in legislative capture in the passage of new legislation that was hurried through while Cassel was working for the ABIM and White House. Follow the conflicts and the money!
http://www.qualityforum.org/News_And_Resources/Press_Releases/2013/New_National_Quality_Forum_%28NQF%29_CEO_Dr__Christine_Cassel_Testifies_at_U_S__Senate_Finance_Committee_Hearing_on_June_26th.aspx

Anonymous said...

We know Dr. Christine Cassel(ABIM ID: 070402), is not participating in MOC.

Anonymous said...

ABIM web site( info on Dr. Christine Kassel), not participating in MOC. May be she is "Grandfather" in.
https://www.abim.org/verify-physician/Cassel-Christine-GOlLbTbsOeE=.aspx

Anonymous said...

See what is happenning in the news todaty: "NY AG sued NRA", reasons : taking millions of dollars for personal use; lobbying; or private interests; lack of skills or experience (ex-felon hired to investigate MD'S;);private air travel , violating multiple laws including false reporting of annual filings with the IRS, among other allegations.
AG: " accusing its senior leadership of violating laws governing non-profit groups, using millions from the organization's reserves for personal use and tax fraud."

I wonder if the AG from PA , can take this examples against ABIM. Also the AG from IL, to investigate ABMS.

Anonymous said...

This comment is taken from ABIM 990, page 2. It was published by Mr. Charles P. Kroll, from twitter 8/7/2020. link;
http://www.wikimoc.org/abim/990/06-30-19.pdf
The second page of ABIM 990, 4b, written statement
"ABIM'S MAINTENANCE OF CERTIFICATION (MOC) CREDENTIAL MEANS SOMETHING DIFFERENT FROM INITIAL CERTIFICATION"
They clearly have a statement on their ABIM 990 form meaning, "something different from initial certification".
More credibility for the ongoing lawsuit against them. Hopefully, the plaintiff lawyers show the judge this piece of art.

L M Muffet said...

The lawyers for the plaintiffs have already presented ABIM's own admission that MOC is a separate product.

"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."

From the recent brief. Page 8.
http://www.medtees.com/content/Plaintiffs-AppellantsReplyBrief7_27_2020.pdf

Anonymous said...

"I wonder if the AG from PA , can take this examples against ABIM. [NYAG suing NRA.] Also the AG from IL, to investigate ABMS. Thu Aug 06, 12:39:00 PM CDT"

The DC AG is suing the NRA Foundation in a separate lawsuit announced on the same day as the NY AG's lawsuit against the NRA.

https://thehill.com/regulation/court-battles/510902-dc-sues-the-national-rifle-association-foundation-for-alleged

The ABIM Foundation is vulnerable to being sued for many of the same complaints co/ncerning violating non-profit rules. Lying to the IRS, being a political/corporate sock puppet, and being a piggy bank for executive compensation (cash/condo/ICE/money laundering/slush fund/propaganda etc.) are just a few of the possible complaints.

The ABMS "research" foundation has a similar function to pad the executive compensation, and so on.

ABMS MOC MATRIX said...

The Great MOC Heist (millions/billions/trillions of dollars)

Have you fed $$$/maintained ??? your MOC chip today? Maintenance is mandatory in order to work/get paid.

ABMS Solutions® a for-profit enterprise involved with data "collection"/physician tracking /data sales/publishing)
https://www.abmssolutions.com/

ABMS MOC - public safety or public fraud?
http://www.nbcnews.com/id/19904543/ns/technology_and_science-security/t/chips-high-tech-aids-or-tools-big-brother/#.XzGIlyhKi00

Anonymous said...


Comment from twitter: NBPAS published 8/10/2020. Written on 8/7/2020 by Mr Jake Novak.

Thought the Big Tech Cartel Was Bad? Check Out This Physician Certification Giant

https://cnsnews.com/commentary/jake-novak/thought-big-tech-cartel-was-bad-check-out-physician-certification-giant

Anonymous said...

Call it naivete but there are some fundamental indisputable facts about MOC:

1) If you 'choose' to not participate, you get listed by ABIM as "Board Certified, not participating in MOC".

2) If your designation is such, you can not get hospital privileges and be on staff. If you are a hospitalist by career, this means you don't get to be a hospitalist and you don't earn income. As I am a hospitalist, I can't speak to the experience of office practice and those effects.

3) You can not be considered board certified by ANY OTHER group in the country. NBPAS is not accepted by the majority of hospitals in this country. Hence, ABIM has a MONOPOLY.

Like I said, I'm not a lawyer and as always, there's always slick arguments but this is by definition a monopoly. You suffer adverse financial consequences if you don't purchase a product that you can't get from ANYone else.

I saw a guy who was a great doc get terminated from a hospitalist program because he had difficulty passing MOC exam.

Yes, the argument is THIS SIMPLE

Anonymous said...

What does any investigation of MOC show?

MOC is one of the lynch pins in the ongoing assault on the profession of medicine and a patient's rights to care. It affects many of those rights through the powerful financial lever it give the ABMS to create an ever increasing body of propaganda involving politically and financially motivated agendas. MOC is not good for healthcare. MOC is not good for America.