Saturday, September 12, 2020

The Latest Roundup of ABMS Antitrust Lawsuits


Since December 2018, a rash of antitrust lawsuits have been filed against the American Board of Medical Specialties (ABMS) and their member boards. While it might seem that little has transpired since then since there are rarely press releases about the court dealings underway, I thought it would be helpful to bring my physician colleagues up to date on the current status of the many lawsuits in play, as best as I can tell from public record. 

What follows is a roundup of those lawsuits and the current legal activity as confirmed public court dockets at Pacer.gov, the legal search engine used by the courts.
Kenney et al. v American Board of Internal Medicine (2:18-cv-05260)
(Filed 12/6/2018)
SUMMARY

This case had four claims: (1) allegations that the ABIM unlawfully tied its initial certification, the “tying” product, and its MOC programs, the “tied” product." (2) allegations that the ABIM used “anticompetitive conduct,” including unlawful tying, to obtain and maintain monopoly power over the certification market, (3) the allegation that the ABIM violated Section 1962(c) of the RICO Act by fraudulent misrepresentations that MOC has a beneficial impact on physicians, patients, and the public and finally, (4) unjust enrichment claims.

The first antitrust claim in this case was dismissed with prejudice in part because the court sided with ABIM, stating that "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." The court continued: "We are unconvinced by Plaintiffs’ arguments that ABIM’s initial certification and MOC programs are distinct products. Plaintiffs’ failure to establish two products means there can be no unlawful tying arrangement and we need not continue our analysis."

The second monopoly and third RICO claim were dismissed without prejudice, in part because the court felt the Plaintiffs lacked "standing" and failed to document their monetary damages. The fourth unjust enrichment claim was also dismissed with prejudice, despite some agreement with the plaintiffs: "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. Plaintiffs were, of course, free to decide to no longer be certified by ABIM and to, therefore, not purchase MOC." (To this physician, it appears the court did not fully understand the consequences to physicians who fail to purchase MOC in terms of insurability, employability, and legal and professional reputation.)

CURRENT STATUS

On 4 May 2020, this entire case was appealed (Case 20-1007) to the 3rd Circuit Appellate Court on the grounds that "The district court assumed there is one product without any basis other than its unsupported conclusion that internists are “actually buying” ABIM certification rather than certifications and MOC. In doing so it arrogated to itself determination of the ultimate factual issue, and simply took as true ABIM’s arguments rather than Plaintiffs’ factual allegations to the contrary. A proper reading of the Complaint taking all well-pled allegations as true and construing all inferences in their favor confirms Plaintiffs have alleged facts showing certifications and MOC are separate products and have also alleged all other elements of a per se tying claim. Thus, dismissal was erroneous and should be reversed."

In addition, regarding the RICO claim, the amended complaint states: "The RICO scheme here is simple and plausible. ABIM’s first CPD product, its voluntary 'Continuous Professional Development Program,' failed due to lack of sales. ABIM realized its new CPD product, MOC, could generate the fees desired by ABIM only if internists were forced to buy MOC to keep their certifications from being revoked. Knowing MOC could not succeed on its own merits, ABIM waged a campaign, “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 constitutes self-regulation by internists.”

At present, it appears oral arguments from both sides will be heard before the Appellate Court 23 Oct 2020.

Mannis et al. v American Board of Medical Specialties, American Board of Emergency Medicine, and the American Board of Anesthesia (3:19-cv-00341)
(Filed 2/19/2019)
SUMMARY

This is another class action antitrust case that claims the following: "Defendants conduct alleged herein constitutes illegal tying of the purchase of MOC to defendants’ initial medical specialty certifications, as well as the creation and maintenance of a monopoly in the MOC market. During the relevant period, defendants and co-conspirators engaged in a continuing combination or conspiracy to unreasonably restrain trade and commerce in violation of the Sherman Act by the conduct alleged herein, artificially reducing or eliminating competition in the MOC market, and artificially fixing, raising, and/or maintaining the costs of MOC in the United States. Such conduct constitutes a per se violation of the Sherman Act."

There was an attempt to consolidate this antitrust case with the former ABIM case, but that attempt failed. Each case will be tried individually.

CURRENT STATUS

There have been multiple entries on Pacer.gov for changes of lawyers but no activity documented on the court docket since June 2020.
Siva v American Board of Radiology (1:19-cv-01407)
(Filed 2/26/2019)
SUMMARY

This is another class action antitrust lawsuit with three claims: (1) that the American Board of Radiology (ABR) engaged in illegal tying of MOC to initial certification in violation of Section 1 of the Sherman Act, (2) that ABR was involved in illegal monopolization and monopoly maintenance in Violation of Section 2 of the Sherman Act, and that ABR's activities resulted in its unjust enrichment.

This case was initially dismissed by the judge, largely on grounds based on precedent created by the ruling of the similar antitrust case filed earlier against the ABIM. However unlike the ABIM case, the plaintiff opted to amend his complaint with much more evidence to support his claims.

Since that amended complaint was filed, there has been a legal back and forth between the Plaintiff and the ABR. ABR moved to dismiss the amended complaint, the Plaintiff opposed their motion to dismiss the amended complaint, the ABR replied in support of their motion to dismiss, the the Plaintiff offered a surreply to the ABR's motion to dismiss.

CURRENT STATUS

The case now awaits the decision of the judge on whether the Plaintiff's Amended complaint merits moving the case forward or dismisses the Plaintiffs complaints. The timing of that decision is uncertain given the pandemic and court back-log but may come before the end of the year.
Lazarou et al v American Board of Psychaitry and Neurology (1:19-cv-01614)
(Filed 3/6/2019)
SUMMARY

This is another class action antitrust lawsuit with three claims: (1) that the American Board of Psychiatry and Neurology (ABPN) engaged in illegal tying of MOC to initial certification in violation of Section 1 of the Sherman Act, (2) that ABPN was involved in illegal monopolization and monopoly maintenance in Violation of Section 2 of the Sherman Act, and (3) that ABPN's activities resulted in its unjust enrichment.

A ruling has yet to be made in this case, since the case was referred to a new District Judge with many other cases to review. As expected, the ABPN filed a brief moving to dismiss the Complaint which the Plaintiffs opposed. The Plaintiffs then supplemented their complaint with information from the ABIM and ABR cases underway. ABPN then filed a brief the those amendments again moving to dismiss the latest Complaint. More recently, the Plaintiffs brought to the attention of the court a recent decision by the 7th Circuit Court of Appeals Viamedia, Inc. v. Comcast Corp. and Comcast Cable Comm. Mgmt., Inc., No. 18-2852 that may have bearing in their case against the ABPN.

CURRENT STATUS

The case now awaits the decision of the judge on whether the Plaintiff's Amended Complaint merits moving the case forward or dismisses the Plaintiffs complaints. The timing of that decision is uncertain given the pandemic situation and the judge's case docket.
I hope this brings the US physician community up to date regarding the many class action antitrust lawsuits underway against the American Board of Medical Specialties and its member boards.

-Wes

Physicians wishing to support the ongoing legal efforts of the physician Plaintiffs are encouraged to contribute to the GoFundMe page set up by Practicing Physicians of America for these efforts.

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.

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.

Thursday, July 16, 2020

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
 

Wednesday, July 01, 2020

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.

Monday, June 08, 2020

How MOC is Contributing to the Demise of Physicians

Dr. Torie S. Sepah, MD on the KevinMD blog:

Now, one could argue, what’s $500 a year to a physician? Well, it adds up to $5,000 in ten years, at which time I’ll shell out another several grand to take the recertification exam.  Contrary to popular belief, physicians aren’t exactly rolling in the dough. In fact, 8 out of 10 physicians under 40 carry over $150,000 in medical school debt.  It all adds up: the medical license fee, the DEA fee, the specialty association fee.  Is this extra $5,000 really necessary, and if so, what is it for?

Here’s what it is not being used for, to protect what our board certification stands for.

My board certification in psychiatry doesn’t mean much these days because NPs and PAs are also board certified in psychiatry without attending a medical school, completing an ACGME residency program, passing the three-part oral exam in order to become eligible for the written exam in psychiatry, and of course not participating in MOC or taking our rigorous written exam every ten years.

To make sure that the world knows they are board-certified, they often embroider it on their white coats. And now, in 24 states, they can practice medicine independently with board certification in a specialty like psychiatry.

More physicians are waking to multitude of harms caused by Maintenance of Certification (MOC).

This is why multiple antitrust lawsuits have been filed against the ABMS member boards. Right now, the American Board of Radiology has filed a Motion to Dismiss the first amended complaint filed in the lawsuit against them. They argue that MOC and initial certification are all one product (certification) and therefore the anti-trust claim filed has no merit. As physicians, we know better. The detailed 79-page amended complaint explains the differences of initial certification from all other "continuous professional development products" (like CME, MOC, "continuous certification" and NBPAS recertification) and explains why ABR's contention that MOC and initial certification are one product is wrong on many levels. We'll see if the judge in that case feels the physician plaintiff has sufficiently argued his case to move this case to discovery.

The American Board of Internal Medicine also had the original District Court lawsuit dismissed. But that first-pass lawsuit has now been appealed to the Third Appellate Court. That appeal adds lots of new evidence supporting the differences between initial certification and the "continuous professional development" program that is MOC and the ABIM's monopoly control, racketeering, and unjust enrichment that has followed as a result. The ABIM response to that filing is currently due July 6th.  

Our own medical boards have repeatedly poked a sleeping bear with MOC payment and testing requirements. Those requirements have harmed physicians and limited access of care to patients. While this is not an easy path to find justice, the best victories are those that are hard fought with lasting and meaningful results.

-Wes


Tuesday, May 05, 2020

Appeal Filed in Physicians' Ongoing Lawsuit Against ABIM

"ABIM has created a lucrative new revenue source by forcing internists to buy MOC. The new MOC revenue has not been used in the interests of the internist community, but to serve the economic interests of ABIM management, including overly generous compensation, ABIM’s lavish pension plan, and purchase of a $2.3 million condominium used by ABIM management."

- From the Brief of Plaintiffs-Appellants filed yesterday
It was almost six years ago the story of ABIM's $2.3 million condominium was told. It was a tale of corruption, greed, and the laundering of physician testing fees to create the ABIM Foundation using the smokescreen of repeated physician testing called Maintenance of Certification (MOC®) as a mark of a physician's "professionalism." Working physicians, however, knew better. They felt first-hand the financial and emotional toll this ever-changing program caused. MOC® was always about the money, but most physicians were too afraid to speak up lest they lose their jobs. Today MOC® remains a story of adhesion contracts to force payments to the numerous conflicted interests of the medical publishing, credentialing, device, pharmaceutical, and hospital supply line industries in exchange for the physician data it generates.

The irony of Richard Baron, MD, President and CEO of the ABIM and ABIM Foundation discussing disinformation on Fox News from the comfort of his own home is lost on few US physicians. So is the irony that the insurance industry is poised to make a windfall on the unaffordable insurance law they helped author.

These conflicts have come at a very stiff price for many United States physicians, nurses, and medical technicians who toil on the front lines without sufficient personal protective equipment (PPE) today. MOC® and the data entry it required fed Group Purchase Organizations and the insurance industry the data they needed to squeeze the suppliers of materials and the suppliers of care. As Siddhartha Mukherjee, MD, DPhil explained in his recent New Yorker article, its all a game of assuring a sizable profit margins for these the little-known supply line organizations who receive kickbacks in return for their efforts:
“Hospitals typically don’t order masks as individual buyers,” he told me. He spoke deliberately, with the slightest Texan drawl. Instead, they negotiate contracts as members of a Group Purchasing Organization—representing hundreds or thousands of hospitals—and, as Bowen explained, the G.P.O. always “chooses the cheapest bid.”
Yesterday the Brief of Plaintiffs-Appellants was filed in the 3rd Circuit Court of Appeals against the American Board of Internal Medicine (ABIM) regarding MOC®. In that Brief, the physician plaintiffs argue that the earlier District Court erred in dismissing (1) the anti-trust tying claims with prejudice, (2) the monopolization claims, (3) the racketeering claims, and (4) the unjust enrichment claims made by the plaintiffs concerning MOC. The details of the clearly-written 78-page brief argue why.

As health care workers struggle to cope with our current US supply line shortcomings, the US physician MOC® story takes on new meaning. Now more than ever, US physicians deserve their day in court concerning the exploitation they have endured because of MOC®.

If this case finally proceeds to discovery, we might just find the real truth about MOC® after all.

-Wes

P.S.: Working physicians are encouraged to contribute the the GoFundMe page supporting the physician plaintiffs in this ongoing case.