Saturday, October 12, 2019

Plaintiffs to Appeal ABIM Class-Action Lawsuit in Full

With the time to amend the earlier class action antitrust and racketeering lawsuit against the American Board of Internal Medicine (ABIM) past, this statement was issued by C. Phillip Curley, the Plaintiffs' lead attorney:
“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.

-Wes

Physicians wishing to support the plaintiffs in this unprecedented action are encouraged to contribute here.

Saturday, October 05, 2019

You Know There's a Problem with MOC When...

... yet another antitrust lawsuit is filed against ANOTHER American Board of Medical Specialties' member board.  This time, the American Board of Orthopaedic Surgery joined the antitrust litigation fray on September 11, 2019.

Look for those Maintenance of Certification® (MOC®) fees to continue to skyrocket as the certification cartel extracts more fees from working stiffs doctors to help pay their mounting legal bills.

-Wes

PS: Want to help with this David vs Goliath battle to help end MOC®? Click here.

Wednesday, October 02, 2019

Why Working Physicians Deserve Their Day in Court

Ask any physician who shares 24-hour call with his colleagues: what time is the worst time to get called into the hospital? Most will tell you just before midnight.

That's because you miss out on those most precious first few hours of deep sleep needed for the next day.

For me, the call this particular evening came at 10:47 PM. Seventy-nine years old. Complete heart block. Wide complex escape rhythm at 34. Started to feel poorly early that morning. Stable blood pressure: 134/60.

A decision was needed.

So, I pulled my head off the pillow, glanced at the clock, grabbed by cellphone, and stumbled toward the other bedroom where the home computer rests. Giggling the mouse, the 45,000 watt screen light illuminated, blinding me as I struggled to type in the cellphone-derived time-sensitive passcode needed to log into EPIC alongside my username and password. I entered by username and password again (once is not enough, I guess), then found the particular hospital (I cover four at night when on call), then the Emergency Room patient list, then the room, and there it was: just as advertised, but with the dreaded one-triage note entry in the chart that basically just noted the time the patient arrived. That is the tell-tale sign that no real decision-making is needed for the ER staff. Just "call EP" (aka, me.)

The decision: pacemaker now or pacemaker later?

The mind does strange things with little sleep, but the decision at that time of night was mine and mine alone. No one else was there. No one else in medicine has this much responsibility. No nurse practitioner, medical administrator, or bureaucrat could make this call, but there I was: dead tired with my mind playing tricks on me. I would hear my inner-self rationalizing with the rapid-fire voices dancing in my head:
"Really, now?" ("Yeah, now")

"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."
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.

After a few hours sleep I woke, knowing I did the right thing. But reflecting back to that brief moment of decision-making the night before, I wondered to myself. Could things have gone differently?

Which brings me to the point of this blog post.

For the past five years, there has been tremendous uproar about the payments and unproven requirements of the Maintenance of (Board) Certification (MOC) mandate for US physicians created out of thin air by the American Board of Internal Medicine (ABIM) and marketed by the American Board of Medical Specialties (ABMS) to fund their bloated salaries, lobbying activities, and for-profit corporate subsidiaries that sell data. Thanks in part to the ACA law that includes the MOC mandate as a "quality" metric included by their lobbying, MOC's payments and needless exercises have became mandatory for employed physicians without their knowledge or consent. And with every passing day, the programs and exercises are promised to be easier, faster, less intrusive, because these bureaucrats continuously claim to know what's best for working physicians on the front-line of 24-hour patient care. They wallow in a sense of schadenfreude as they wield their undeserved power over their working colleagues, purposely naive to the most dangerous side effect their unwarranted and potentially illegal actions risk creating.

Longtime readers know that at least five different antitrust lawsuits have been filed against various non-profit entities that comprise the ABMS member boards in regards to MOC. The largest member board of that consortium is the ABIM, who recently breathed a partial sigh of relief when a Pennsylvania judge dismissed most of the claims of anti-trust tying, monopolization, racketeering, fraud, and unjust enrichment brought by four working internists. While the monopolization, fraud, and racketeering claims remain unresolved at this time, we should note that there might be significant consequences if working physicians don't get their day in court, and it's not what most people expect.

Not having an unbiased judgement in court before a jury of one's peers in these untested legal waters risks the development of US physician apathy.

Too many examples of lying, cheating, and stealing physicians' certification fees for political and economic purposes have occurred since MOC was mandated by the ABMS member boards in 1990. From the quiet movement of nearly $70 million from the ABIM to the secretly created ABIM Foundation from 1990-2007 in the name of "Choosing Wisely," the falsification of tax forms, holding political and corporate appointments while serving as the President and CEO of the ABIM, performing undisclosed lobbying, transferring funds to the Cayman Islands, and using felonious strongmen to invade doctors' houses with Federal Marshals and lawyers, were all accomplished just so their monopoly and partnership with insurers, hospitals, and medical specialty societies could flourish. By quashing the chance for justice against these actions, the courts risk irreparably damaging the integrity of the entire US medical profession and crushing the souls of those who make huge sacrifices on behalf of their patients every day.

This whole ABMS MOC fiasco, especially with the recent opinion to dismiss doctors claims of impropriety against this racket of monied tax-exempt corporations so broadly, risks making doctors apathetic. Could such apathy lead to less-than ideal decision-making in the wee hours of the morning?

I wonder.

For the sake of our profession and our patients, it's time to make sure working physicians get their day in court.

-Wes

Sunday, September 29, 2019

Some Thoughts on the Recent ABIM Lawsuit Ruling

“Unless someone like you cares a whole awful lot,
Nothing is going to get better. It's not.”

― Dr. Seuss, The Lorax

After researching, investigating, and writing about the activities and finances of the American Board of Internal Medicine (ABIM) and the ABIM Foundation for the past five years, it would figure that a ruling on the class-action lawsuit challenging the ABIM Maintenance of Certification (MOC) program would occur during the week that I am on call. I simply have not had much time to put my thoughts in writing.

Perhaps that's a good thing.

But as the time has passed since the ruling, I believe I have more clarity now.

Initially, I must say I was surprised by Judge Kelly's ruling, but not shocked. We have encountered significant naiveté with non-physician legislators when attempting to pass anti-MOC legislation at the state legislative level. Most non-physicians do not have a clue what ABIM Board Certification and MOC are, let alone their history and current relationship to obtaining and maintaining physician hospital credentials and insurance payments.

I suspect the judge in the ABIM antitrust case was (and remains) similarly naive. (Just as I am naive about what it takes to be a lawyer or judge.) Perhaps nowhere is this naiveté more evident than the judge's paragraph concerning "grandfathering" of older physicians:
"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.)

Would the judge feel similarly if he had to retake his bar examination and pay monopolistic fees to the Bar Association every 2-10 years to maintain his appointment to the bench?

Concerning the unjust enrichment dismissal, the judge makes a similar blunder and fails to even consider the Plaintiffs' concerns:
"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?

This judges' entire ruling in favor of ABIM seems thin to me.

I look forward to seeing where the next chapter of this ongoing legal battle takes us in the weeks and months ahead.

-Wes

It is important to realize this case is far from over as the legal battle against MOC continues. Please help the Plaintiffs' efforts to end MOC by contributing here.

Friday, September 27, 2019

Federal Judge Dismisses MOC Class-Action Lawsuit, For Now

On 26 September 2019, a Pennsylvania judge has dismissed the current claims filed by the four internists challenging ABIM’s Maintenance of Certification (MOC) program (The full opinion here). The judge, however, has invited the plaintiffs to file amended claims on the monopolization and racketeering claims in the lawsuit in the next 14 days and, in contrast to what the ABIM said in their public statement, the case is far from over. Even if the plaintiffs are ultimately unsuccessful at the trial court level, all available appeals will be pursued.

No one ever thought this would be an easy fight - it is a David vs. Goliath effort after all - we remain committed to do whatever we can to bring an end to MOC.

-Wes

Tuesday, September 24, 2019

ABMS's Vision: Doubling Down on MOC

Since the American Board of Medical Specialties' (ABMS) "Vision Commission" issued its corporate white-paper "final report," it has become abundantly clear that the American Board of Medical Specialties (ABMS), medical subspecialty societies, and the entire Accreditation Council for Graduate Medical Education (AAMC, AMA, AHA, etc), have no intention of ending mandated re-certification requirements for US physician or osteopaths (also known as Maintenance of Certification (MOC), Continuous Certification, Maintenance of Certification in AnesthesiologyTM (MOCA®), ConCert™, or OCC).

Instead, they are doubling down.

One only has to look at the list of sponsors at this week's 2019 ABMS Conference here in Chicago to understand why.

Their "Premium Sponsor?" Certemy.com - a VC-funded startup from San Francisco infused with a cool $3 million investment run by a venture capitalist and Kaiser Permanente urologist eager to capitalize on the lucrative credentialing business. Or how about this ironically-named company in the ABMS co-branding line-up: MOCingbird that reminds you when all your lifelong credentialing paperwork and payments must be completed?

The data-selling opportunities are endless!

Might the for-profit ABMS-subsidiary ABMS Solutions, LLC provide Certemy.com, MOCingbird, and a whole host of other business middlemen the personal information, NPI numbers, addresses, cell-phone numbers, emails, MOC expiration dates, and test scores of physician, parsed psychometrically-designed test questions to insurers, hospitals, and anyone else who wants to hold physicians hostage for their financial purposes?

When you control a monopoly, anything's possible - especially when physicians are forced to "sign" an adhesion contract while paying for and enrolling in MOC as a condition of remaining employed.

From ABMS's own website, a dark, physician data deep-state has evolved:
  • 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
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?

Given this ABMS corporate line-up and their self-serving focus demonstrated so clearly by their "conference," the intent of ABMS "continuous certification" is obvious.

It's time to put an end to this computerized madness masquerading as "physician improvement" because this MOC game that ABMS has doubled down on is getting utterly ridiculous.

-Wes

Sunday, September 22, 2019

How ABIM's MOC Product Ends Physician Careers

From Medical Economics:
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.”

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.”
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.

Except physicians like Dr. Lopatin. Dr. Lopatin demonstrates something that MOC and all those costly pushed quizzes to our mobile phones will never be able to test...

... leadership and integrity.

Thanks, Mark.

Here's hoping others will follow your lead.

-Wes