The Danger and Hypocrisy of Physician Censorship

In late July 2021, the Federation of State Medical Boards (FSMB), a non-profit self-selected lobbying organization for US state medical boards, issued a press release threatening suspension or revocation of medical licenses for physicians that “generate and spread COVID-19 vaccine misinformation or disinformation.” The American Board of Internal Medicine, American Board of Pediatrics, and American Board of Family Medicine issued a joint press release in support of the FSMB’s statement and further threatened to revoke a physician’s specialty certification on similar grounds.

While likely well-intentioned and politically favorable on its surface, this policy risks compromising physicians’ due process, free speech, and patient care. Physicians serve on a multitude of research data safety monitoring boards and for the Food and Drug Administration, among others. Is leveling a cudgel against US physicians to control speech really in the best interest of promoting thoughtful scientific discourse? It is chilling to think that any private business can control what medical information constitutes “misinformation.”

Misinformation is common in the midst of any pandemic, especially when so much remains unknown about the coronavirus, its origin and variants, their spread, and potential therapies proposed to combat the disease and its comorbidities. While false information has been spread on social media channels by a tiny handful of physicians, the vast majority of working US physicians support the appropriate use of COVID-19 vaccines.  Giving strong, scientifically credible rebuttals to vaccine skeptics is much more likely to quiet skepticism of the vaccines than idle threats from afar by little known non-profit organizations with little real power to control speech.  

Working physicians are familiar with political propaganda, another form of “misinformation” that has become all too commonplace in US healthcare that is increasingly dependent of government funding. The FSMB is a self-interested private business that is not actively supervised by the state(s) and has a long history of attempting to link Maintenance of Licensure for physicians to the lucrative Maintenance of Certification physician educational product promoted by the member boards of the American Board of Medical Specialties, including the American Board of Internal Medicine, American Board of Pediatrics, and American Board of Family Medicine. In 2018 the FSMB also supported legislation that tried to circumvent the 2015 Supreme Court decision that held unsupervised professional boards could not make decisions that potentially violated antitrust laws and quashed competition.

The American Board of Internal Medicine (ABIM) also engaged in "misinformation" by secretly funneling $80 million of physician test fees from 1989-1999 to create the ABIM Foundation that  magically appeared to the public in 1999. Physician were told the Foundation was created to define “medical professionalism,” the same year the ABIM Foundation purchased a $2.3 million 2-bedroom condominium complete with a chauffeur-driven town car. Physicians can only assume that same “medical professionalism” the ABIM promotes extends to their undisclosed offshoring of over $6.5 million dollars to the Cayman Islands in 2015 and labeling their lobbyists in Washington as “consultants” on their tax forms, too. 

The profession of medicine and scientific inquiry are never perfect but demand constant vigilance to ensure its integrity. Just as any medical treatment demands careful weighing of its risk and benefits to our patients, the self-interested private entities that comprise the US medical regulatory system should carefully weigh the adverse effects of their edicts before they are unilaterally imposed on practicing US physicians.

Caveat emptor. Primum non nocere.

-Wes

The Courts Speak: Internists to Be Boarded to Death

It is with great sadness and a heavy heart that I must announce that on Thursday this past week, the United States 3rd Circuit Court of Appeals ruled in favor of the American Board of Internal Medicine (ABIM) and upheld the earlier District Court dismissal of the antitrust, racketeering and unjust enrichment lawsuit filed by four internists in December 2018. An attorney for the physician-Plaintiffs issued this statement following the ruling:

"The Plaintiffs are disappointed by the Court’s opinion but not discouraged. They remain committed to bringing an end to Maintenance of Certification (MOC). The ruling was based on a narrow and technical principle of antitrust law: whether ABIM Certification and MOC should be viewed together as a single product. The decision was specifically classified by the Judges as “Not Precedential” – meaning it should not be cited as precedent in other cases.

“It is important to understand that the ruling cannot be viewed as an endorsement of MOC or ABIM’s conduct. Contrary to ABIM’s litigation position, Certification and MOC are not voluntary. As admitted by its own leadership, they are an economic necessity for a successful medical practice.

“Significantly, the decision does not take issue with the many studies documenting the complete absence of any evidence of a causal connection between MOC and improved patient care. There simply is no reason for MOC to exist other than the hundreds of millions of dollars in fees it generates for the ABMS Boards and their management.

“Plaintiffs would also like to take the opportunity to thank the thousands of doctors across all specialties that have joined with them in this struggle. The emails and phone calls of support have been inspirational and demonstrate how deeply unpopular MOC and the ABMS Boards are with rank and file doctors, physicians who actually practice medicine and treat patients outside the corporate medical establishment.

“All remaining options are being considered, including the possibility of seeking a rehearing by the full Third Circuit Court of Appeals.”

The fight against MOC and in support of practicing physicians continues. The wellspring of our inspiration for supporting the Plaintiffs has been the Oath that we both earned and then gave when we became doctors. It might be stifled but it will never be extinguished.

-Wes

ABIM and Its Washington Lobbyists

The American Board of Internal Medicine (ABIM) is a 501(c)(3) non-profit organization that certifies "internists and (medical) subspecialists who demonstrate the knowledge, skills and attitudes essential for excellent patient care." According to the IRS, "In general, no organization may qualify for section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying). A 501(c)(3) organization may engage in some lobbying, but too much lobbying activity risks loss of tax-exempt status."

In April of 2015, Kurt Eichenwald wrote an opinion piece in Newsweek that exposed the ABIM's tax-reporting discrepencies concerning its lobbying activities:

Start with ABIM's Form 990. This is the document a nonprofit organization has to file with the Internal Revenue Service to disclose its activities and prove it deserves tax-free status. In Part IV, which appears on Page 3 of the document, the government asks a simple question on line 4: "Did the organization engage in lobbying activities?" And year after year, ABIM has answered "no."

Unfortunately, the real world answer is "yes." According to the Center for Responsive Politics, from 2009 through 2014, ABIM paid $390,000 to Mehlman Vogel Castagnetti, a lobbying firm. Asked about this, an ABIM representative says it complied with all rules governing IRS filings. Maybe. Yet according to Independent Sector, a prominent organization for nonprofits, the words "lobbying activities" in line 4 includes elements as miniscule as holding strategy meetings to coordinate lobbying with others and time spent preparing arguments to be advanced to government officials. Unless ABIM just wrote a check and never spoke to its lobbyists, it's hard to see how it complied with those standards. (Side note: A random check of seven 501(c)(3)s that paid less than ABIM to lobbying firms showed all of them answered with a "yes" on line 4.)

So what did ABIM spend all this lobbying money on? According to Mehlman Vogel's filings with the government, ABIM's lobbyists provided "strategic advice" on issues related to Obamacare, including "physician quality reporting requirements." And if you haven't guessed yet, what does the ABIM consider "physician quality reporting requirements"? Maintenance of certification (MOC), the program that so many doctors say is worthless—and that ABIM refuses to show has any impact on "physician quality" with independent research or other science-y stuff.

Did the lobbying work? Yup. Under Obamacare, physicians who participated in MOC through 2014 qualified for an incentive payment. The description of MOC is so specific in the law that ABIM and similar groups in ABMS were the only organizations that met the definitions. In other words, in the first few years of Obamacare, the government was paying doctors to pay ABIM and related certification organizations to participate in a program that has never been proven to do squat.

So it should come as no surprise to working physicians that lobbyists have come to the rescue of the ABIM by filing Amicus briefs in support of the ABIM in the lawsuit failed against them by four working internists. One of these lobbying groups is a seasoned veteran of the Washington scene while the other two are relaively new, formed in large part to fight the national physician pushback against Maintenance of Certification (MOC): the American Society Association Executives (1575 I St. NW, Washington, DC), the Institute for Credentialing Excellence (2001 K Street, Washington DC). and the Professional Certification Coalition (formed "to address efforts to enact state legislation that would undermine the activities or recognition of certifications developed or offered by non-governmental, private certification organizations" and actively promoting their work in support of ABIM on their website).

Think there's money in continuous re-certification and lifelong testing of physicians?

You bet.

Will the public ever learn of the extent of lobbying that the ABIM performs to advance their political and economic agendas?

Never.

Unless, of course, the current lawsuit against the ABIM wins its appeal and the case goes to discovery.

-Wes

Is ABIM Ending Its "Knowledge Check-In" MOC® Pathway?

The following (redacted) email was received from Morgan Allen, Customer Relationship Advocate at the American Board of Internal Medicine (ABIM), in response to an ABIM diplomate that was unable register online for their every-two year Knowledge Check-In "continuous" Maintenance of Certification (MOC®) product.

According to this email, it seems the ABIM has decided to end its Knowledge Check-In recertification pathway and only permit its every-10-year high-stakes recertification examination for physicians to remain ABIM Board Certified.

At the time of this writing, I could find no public notification of this policy change on ABIM's website. Once again, working physicians are irresponsibly left uncertain of the latest requirements to remain ABIM Board Certified in good standing.

ABIM has a long history of changing the rules for the names and requirements for physician board recertification/maintenance of certification/continuous certification. But despite the many name and rule changes of this racket, each rebranding becomes more expensive and serves to perpetuate the discrimination against younger physicians and physicians of color from senior "grandfathered" physicians who are not required to purchase these products to retain their ABIM Board Certified status. The Knowledge Check-In recertification pathway was no different from its predecessors in this respect. But the Knowledge Check-In pathway also suffered from a plethora of technical, security, and (undisclosed) privacy issues for physicians. (See my earlier video that critically reviewed this recertification pathway and the people who created it.)

One thing is a constant, however. Ever since the ABIM changed Board certification from a lifetime to time-limited physician marketing accolade, this unproven repeated testing of working physicians remains a career-long psychological and economic stressor that distracts from what matters most: patient care.

-Wes