ABMS Maintenance of Certification – Its Origins, Realities, and Implications for Medicine – Part II

This piece first appeared on Sensible Med on 5/3/2023.

The Legal Challenges to ABMS Maintenance of Certification

ABMS board certification is not voluntary (despite ABMS member board claims), especially as specialization in medicine is the norm today. And thanks to regulatory capture, physicians who work at ACGME-accredited medical training hospitals in particular must pay for and participate in MOC before funds can be devoted to personally directed continuing professional development (CPD) products provided by others.

Forced participation in MOC and the harms it imposed on physicians have resulted in multiple federal class action antitrust lawsuits being filed against different ABMS member boards beginning in late 2018. These include Kenney v. ABIM (2:18-cv-05260), Siva v. American Board of Radiology (1:19-cv-01407), and Lazarou v. American Board of Psychiatry and Neurology (1:19-cv-01614). Kenney was filed in Philadelphia, PA while the Siva and Lazarou cases were filed in Chicago, IL. Here’s how this non-lawyer physician interprets what has occurred with these cases so far.

Background: Antitrust Law for Dummies

In layman’s terms, federal law prohibits any agreement that creates an unreasonable restraint of trade. One type of restraint of trade is when a seller creates a “tie” by forcing a buyer to purchase separate products together. Here, certification is separate from MOC, and physicians are forced to buy MOC because if they do not their certifications are revoked.

Kenney v. ABIM (2:18-cv-05260)

In Kenney, ABIM argued that MOC was merely a component or modification of certification, and that the two were one product and not separate. Plaintiff argued that ABIM’s analysis failed to examine the two products before MOC was implemented. The court sided with ABIM.

Siva v American Board of Radiology (1:19-cv-01407)

The American Board of Radiology used the same argument as Kenny that certification and MOC were not separate products. The lower court agreed. But the appeals court found (page 12) that certification and MOC were, in fact, separate products:

“In the pre-tie world, Board certification was not something that needed to be “maintained” through completion of any CPD program; it was valid for life. So the district court was right to observe that "CPD products serve a different purpose from certification and had nothing to do with it" prior to the introduction of the MOC program. But the district court never went the next step to see that, in Siva's view, this is precisely the problem: CPD products, he alleges, still have nothing to do with certification—in other words, consumer demand for the two products remains distinct. As such, Siva says, the Board's decision to name its CPD product "maintenance of certification" is nothing but a clever means of dis-guising a tying arrangement. Siva therefore urges that we see through that strategic naming decision—that marketing ploy—in conducting the separate-products analysis.”

Nonetheless, the appeals court upheld the dismissal of plaintiff’s claims because it did not feel MOC was a substitute for other CPD products. This argument was new and had not been addressed before by either the lower court or the parties.

Lazarou v American Board of Psychiatry and Neurology (1:19-cv-01614)

The lower court recently requested that the Lazarou parties file a brief addressing the impact of the Siva opinion. Plaintiffs explained how Siva had found certification and MOC to be separate products, and described in detail how MOC was indeed a CPD product, and that MOC and other CPD products are substitutes for and interchangeable with each other. Whether the Lazarou case can go forward now lies in the judge’s hands.

Implications of MOC

Regardless of how the judges have ruled or will rule in these cases, MOC has already had far-reaching effects on the US health care system. In my opinion, the MOC story reflects a remarkable betrayal of working physicians by other physicians for one reason: greed. The physician-sycophants who head these organizations have become incredibly wealthy at working physicians’ expense and failed to actively deal with their organizations’ numerous conflicts of interest permitted by their very own bylaws. Physicians are leaving our profession in droves as they are gaslighted, no longer feel valued, and are forced to buy MOC to remain privileged at hospitals, receive insurance payments, and lower their malpractice costs, despite no credible proof that MOC improves patient care or safety.

Worse, countless hours of patient care have been wasted on test preparation and performing worthless data entry exercises. To have never considered that thousands of patients suffer as a result of MOC is bizarre – unless, of course, patients are of no real concern to those that impose the extortionate MOC program.

It is disturbing when organizations like the Physician Consortium for Performance Improvement (ThePCPI.org) with the same address as the American Board of Medical Specialties, magically disappear from the internet when their collaboration with the medical industry is exposed. Thanks to the digitization if health care, MOC tears a playbook sheet directly from the old AMA CPT-coding and Facebook-Cambridge Analytica playbook: data make you rich and can advance a political agenda.

Being slippery about MOC’s purpose voids any semblance of trust by physicians in our health care system. Moral injury is playing a large role in physicians’ disillusionment. All the cute websites in the world called “BuildingTrust.org” made by the ABIM Foundation that secretly re-purposed tens of millions of dollars from physicians for political and retirement fund purposes certainly doesn’t help. Rather, it is a sick example of how low medicine has stooped to transfer working physicians’ forced-MOC fees to others in return for political favors.

Worst of all perhaps, in a clear and present danger to all patients, MOC promotes the silencing of scientific debate. ABIM, American Board of Pediatrics, and American Board of Family Medicine recently issued a statement with the Federation of State Medical Boards that threatens revocation of certification and even state licensure as a cudgel to quell anything they consider “dissemination of misinformation” by physicians. Meanwhile, Orwell and Semmelweis are rolling in their graves.

All these activities and wasteful spending make me wonder if certification should be continued at all. Our bureaucratic House of Medicine has lost its way. The drive for money and political influence have become so dire that even our own medical specialty societies are now partnering with the ruse.

As I near retirement, I have a choice: use my forty-plus years of medical experience to help train and teach my younger colleagues, continue to care for patients, and pay up and shut up to perpetuate the ruse, or quit medicine to avoid another round of extortion to remain certified in order to practice at the hospital system I have served for 22 years.

I wish I didn’t have to make such a decision. Medicine is what I do. My patients are what matters, not the ABMS member boards’ retirement funds.

I serve in the trenches with some of the most sterling, heroic physicians I’ve ever had the privilege to work with. I am sure you do, too. I’d just like our regulatory bodies to have the modicum of honesty and credibility that we deserve.

-Wes

ABMS Maintenance of Certification – Its Origins, Realities, and Implications for Medicine – Part I

This piece first appeared on Sensible Med on 4/26/2023.

If you’re a board-certified internist, you’re probably quite familiar with the controversy surrounding the American Board of Internal Medicine (ABIM) that began when lifelong board certification mysteriously became time-limited in 1990.

Physicians were told the justification for this change was that doctors needed to keep up with ever-changing medical innovations and that their skills and intellect atrophied with age. Never mind that the physicians who insisted on this change exempted themselves from the process and a system was already in place that addressed continuing professional development (CPD) of physicians using ACCME-accredited Continuing Medical Education (CME).

The annual market for physician CPD products in the US is massive: about $3 billion per year. Faced with the limited income stream of initial board certification of physicians in their specialty, CPD products were an attractive target for the American Medical Association and their subsidiary organizations, the ABIM and the ABMS (American Board of Medical Specialties). With the stroke of a pen, and with the help of medical societies and clever politics, the era of board “re-certification” and lifelong “Maintenance of Certification” (MOC) was born.

To assure physicians participated in board re-certification, the “Task Force on Recertification” threatened “uncertain circumstances” if physicians failed to “maintain” their board certification through repeated testing. As physicians confronted increasing regulations to practice medicine independently, more of them became employed. Thanks to their hospitals insisting that their staff physicians be ABMS board-certified to garner admitting privileges, doctors could no longer buy the CPD products of their choosing, but rather had to purchase CPD products that offered “MOC points” if they wanted to practice medicine.

MOC soon grew to include not only testing of physicians but added requirements for “practice improvement modules” and “Patient Voice” modules (whatever those were). A “Director of Test Security” was appointed to catch physicians who might share test content with their colleagues and compromise the money-gathering process. That individual was well-suited to the task, holding felony and misdemeanor convictions for impersonating a police officer and carrying an unregistered firearm in Washington DC after he was fired from the Washington DC police force for targeting a journalist.

Through political lobbying disguised as “consultant” work on tax forms and with the help of medical “stakeholders,” MOC was quietly added to the Affordable Care Act (ACA) as a “quality registry.” No one ever mentioned to physician diplomates of the ABIM that the President and CEO of their organization also sat on the boards of Kaiser Health Plans and Hospitals and Premier, Inc, the largest Group Purchase Organization for hospitals and nursing homes at the time the Affordable Care Act was being passed in Congress.

A close look at MOC enrollment shows physicians must agree to an adhesion contract that makes them a “business associate” with ABIM. MOC is not about physicians “keeping up” any more, it’s about diverting CPD funds to the ABMS member boards and selling the data the ABMS member boards collect on physicians via the for-profit ABMS subsidiary, ABMS Solutions, LLC at our expense.

Might the ABIM’s press release that was leaked to the Wall Street Journal about doctors cheating been timed for the passing of the ACA law later in 2010? Since the former President and CEO of the ABIM was a member of the President’s Council of Advisors on Science and Technology and soon began serving as the director of the National Quality Forum, the timing of these events is remarkably coincidental.

As I face the prospect of board certifying in cardiology and cardiac electrophysiology for the FOURTH time (I am “grandfathered” in Internal Medicine), I can’t believe this program has been allowed to continue. But as I hold my nose and reach deep into my bank account to pay nearly $3600 dollars for study materials worth one-fifth of my re-certification bill, I now completely understand.

Ten years ago on this blog, I began looking into the activities of the ABIM and other member boards of the ABMS, especially since the side effect of their policies on US physicians (and their legality) have never been studied. I reviewed 75 of their “studies” they published, many behind firewalls, to justify their extortion of working physicians. Most were written by ABIM officers themselves, some by members of Washington think tanks, and at least one included a veterinarian as author.

With the help of a forensic accountant, I began investigating the ABIM’s finances in 2013. In December 2014, I published my investigation on the ABIM Foundation, the Choosing Wisely campaign, and their undisclosed $2.3 million 2-bedroom condominium purchase using our test fees. Later in 2017, with the help of a diverse set of physicians and doctors of osteopathy, I co-founded Practicing Physicians of America, (PPA) a non-profit 501c6 organization with free membership, to continue our work fighting MOC and supporting working physicians.

At nearly the same time, Paul Teirstein, MD created a recertification board with academic colleagues to compete with the ABMS medical boards’ CPD product called the National Board of Physicians and Surgeons (NBPAS). Unfortunately, for physicians who work at teaching hospitals, the ACGME accreditation requires ABMS-board certified physicians, so NBPAS is not recognized at academic hospitals that wanted to remain ACGME-accredited (The ABMS is a member organization of the ACGME), nor has it been able to penetrate this political firewall as of this writing.

In response to an outpouring of negative feedback from physician diplomates and others, ABIM began amending the MOC process in 2018 to introduce it by another name in 2022—the Longitudinal Knowledge Assessment (LKA). This new program promised more frequent testing and money-gathering pushed to doctors’ cell phones.

Working physicians explored multiple avenues to end maintenance of certification, including the passage of an AMA resolution, having a “vote of no confidence” issued by the PA Medical Society, and a state-by-state effort to pass legislation to end the ABMS member boards stranglehold on physicians. None of these efforts succeeded in ending ABIM’s monopoly on certification.

What options did working physicians have to end the injustices and discrimination that the implementation of MOC created?

Legal action.

Part two of this piece will appear next week and will briefly summarize the outcome and status of lawsuits filed against the boards because of MOC and the consequences of this program to our profession.

-Wes

MOC and the Demise of CME

With the ongoing forcing of participation in Maintenance of Certification (MOC) of US physicians by the American Board of Medical Specialties (ABMS)and its 24 member boards, we are seeing the slow demise of physician-selected Continuing Medical Education (CME) in America. Attendance at specialty society meetings is at an all-time low. Doctors, increasingly employed and facing the reality of how to spend their continuous professional development budget, must choose to maintain their board certification or pay for  CME credits at a course of their choosing. Paying even more money to socialize and interact with colleagues, to share ideas, review posters, and participate in group learning sessions is going away. 

Specialty societies have read the tea leaves. Their budgets are tight now too. Is there any wonder then that the largest subspecialty society, the American College of Cardiology (ACC), buddied up with the American Board of Internal Medicine (ABIM) to sell their continuous professional development products like ACCSAP (ACC Self Assessment Product), EchoSAP (Echo Self-Assessment Product), CathSAP, HFSAP (Heart Failure Self-Assessment Product), and (the soon-to be) EP SAP (Electrophysiology Self Assessment Product)? Buy their products for the cool tune of $1500-1900 for "20% review of the field," and doctors get CME and MOC credits "without the stress of having to achieve a passing score" on their Performance Assessment!

The Federation of State Medical Boards (FSMB), a private non-profit, has been working tirelessly to influence state medical boards on the value of MOC, too.  Their Interstate Licensing Pact requires their physicians to (1) pay $700 on top of each state's licensing fee, (2) be fingerprinted with background checks, and (3) requires physicians to be ABMS board certified (and participate in MOC). At least two states, Georgia and Illinois, now accept participation in MOC in lieu of CME requirements for licensure.

Meanwhile, there is no proof MOC makes us better doctors. 

None.

But we sure become wonderful computerized data points.

Consequently, physicians are left isolated from their colleagues. They are no longer valued for their creativity, intellect or social skills, but work productivity. They are data points shared between those of Medical Industrial Complex hospital systems, insurers, drug companies and their pharmacy benefit managers, and medical device companies that pay hefty fees for access to that data.

Physicians are burning out an leaving medicine in droves. Gaslighting of physicians by the member organizations of the Accreditation Council of Graduate Medical Education (read AMA, ABMS, CMSS, AHA, among others) regarding the "importance" of maintaining your certification through MOC (or is it LKA "Longitudinal Knowledge Assessment" now?) is a big reason why.

Yes Virginia, CME is on life support and its prognosis, thanks to MOC, is grim.

-Wes

Antitrust 101: How to Build Medical Monopolies by Discrediting U.S. Physicians

Recently, there have been a rash of initiatives by unaccountable non-profit physician credentialing organizations (Federation of State Medical Boards, the American Boards of  Internal Medicine, Family Medicine and Pediatrics), and the American Medical Association to come to the public's rescue by de-credentialing U.S. physicians they accuse of spreading misinformation during the COVID-19 pandemic.

Physicians have seen this medical monopoly-building playbook before.

The video below reviews the antitrust, monopoly-making activities of the American Board of Internal Medicine (ABIM). The discrediting of certain U.S. physicians as "cheaters" and disseminators of "misinformation" serve as a smokescreen to their monopoly-building activities. As physicians worked tirelessly to care for patients during the COVID-19 pandemic, the ABIM used U.S. physicians' testing fees to redistribute physician testing fees for their "social justice" initiatives, most significant of which was lobbing Congress so their separate Maintenance of Certification (MOC) continuous testing produt would be a never-ending source of revenue and data metrics used by the Medical Industrial Complex. Sadly, this mandate on younger, more vulnerable ABMS-board certified US physicians has harmed hundreds of physicians and tens of thousands of patients as physicians burn out and leave the profession.

For all patients who wonder why health care prices are so high and access to a board-certified physician has become so difficult, look no further than the organizations above. 

What Entity or Person Serves As ABIM's "Restricted" Contributors?

 In late 2018 through 2020, The American Board of Internal Medicine (ABIM) was involved in a class action antitrust lawsuit for claims of illegal creation and maintenance of their monopoly power in the market for maintenance of certification (MOC). Even though there was an outpouring of physician support for the lawsuit from working physicians, the case did not survive massive legal efforts to kill the case on technical grounds before it went to trial.

Now, physicians are left with little choice but to cough up more money to pay the exorbitant salaries of the non-clinical academic elite who run the organization or risk losing their jobs.  It is the tie that binds ABIM's their proprietary MOC continuing education product to physicians' initial subspecialty board certification that allows ABIM to raise their costs without any oversight because physicians require their initial board certification credential to maintain their hospital privileges or place on insurance companies' rosters.

It is particularly concerning that ABIM decided to raise their MOC fees 25% in 2022 when their own assets mushroomed 18% in 2021 alone to more than $168 million:

 

ABIM has constantly billed itself as a "physician-led" non-profit 501(c)(3) organization. From their About ABIM webpage:

"ABIM is a physician-led, non-profit, independent evaluation organization driven by doctors who want to achieve higher standards for better care in a rapidly changing world."

But are they really? Who is really pulling the strings at ABIM?

We have already seen that the former CEO and President of ABIM, Christine Cassel, MD was serving as a board member of one of the largest Group Purchase Organizations, Premier, Inc, and serving on the Board of Kaisier Hospital and Health Systems while also serving as President and CEO of the ABIM - conflict that was never disclosed to physician-diplomates of the ABIM.

But now we see another concerning potential conflict that needs explanation, especially with the rate hike in fees physician must endure. Who are ABIM's "RESTRICTED" contributor(s) found buried on their latest IRS Form 990?

Might it be George Soros (since ABIM contributed to his Institute for Medical Professionalism in 2003 and 2008)?

Or might it be other members of the Accreditation Council of Graduate Medical Education (ACGME), like the American Medical Association (AMA) or American Hospital Association (AHA)? Who stands to profit from the control of physicians this way?

Physicians have a right to know what the heck is going on at ABIM and why are fees have gone up 25% in 2022 at a time when ABIM is more than flush with cash. We also deserve to know who their contributors are that are supporting his racket. 

Unless, of course, the US is running the physician regulatory system like the mob.

-Wes

PS: For those interested in staying abreast of our ongoing investigation, consider joining Practicing Physicians of America (it's free and allows us to know who wants further work in this arena).

Can There Ever Be a "Kinder and Gentler" MOC?

It has been a long time since I have written anything concerning the American Board of Medical Specialties' (ABMS) Maintenance of Certification (MOC) board re-certification program. But when I read pieces in the media, like the one recently published in Medscape that spin the soothing narrative that MOC can become "kinder and gentler," I feel the need to speak out.

Like a child bring groomed by serial molester, the media miss the seriousness of the harms imposed to physicians and patients by the industry-levied Maintenance of Certification mandate begun in 1990, largely because patients and the public really don't understand US physician board certification and the conflicts of interest with industry that exist. The public knows they want a "board certified" physician (thanks to the marking muscle and self-generated congratulatory "research" articles generated over the years by these multimillion-dollar organizations), but they fail to realize that board certification, once little more than a voluntary lifetime marketing accolade before 1990, became time-limited, mandatory, and an economic necessity for physicians to work, have hospital privileges, or be included in insurance panels since then. 

This change from a lifetime accolade to a time-limited necessity for physicians was unilaterally imposed on (only) US physicians by the highly conflicted and highly political ABMS and their member boards in conjunction with their parent organizations (where the ABMS is also a "member organization") from the Accreditation Council of Graduate Medical Education (ACGME), including the American Medical Association (AMA), American Hospital Association (AHA) and the Association of American Medical Colleges (AAMC). Thanks in large part to the nuances of often-delayed non-profit tax filings, all of these organizations enjoy their tax-exempt status and multi-million dollar budgets on the backs of working US physicians who are the major source of their funding.

The seemingly impenetrable nature of medical journal pay-walls has served to perpetuate the ruse of the scientific validity of time-limited US board certification. There is simply no scientifically valid proof that "longitudinal assessment" questions pushed to physician cell phones or taking day-long tests every 10 years improves patient care. Could it be these actions distract from patient care just to keep the money flowing?

More importantly, patients suffer as physicians become burned out or quit. Patients suffer as the boards  sell all the physician data they reap from that testing to Group Purchase Organizations (like Premier, Inc) and hospital organizations (like Kaiser) that increasingly consolidate and limit access in the name of lucrative health care "efficiencies."

The monopoly stranglehold on US board Certification (and specifically time-limited "Maintenance" of Certification, or MOC) and the vast conflicts of interest and millions of dollars it generates, is why the ABMS member boards are being sued right now. Their actions, I (and thousands of others) believe, violate anti-trust and unjust enrichment laws. It is not okay that a physician with years of dedicated service to his or her patients can lose their job or ability to care for their patients based on an unproven testing mandate. Nowhere does a physician's years of experience count to these AMBS member boards; only their money.

This is why I, along with many other men and women, help co-found Practicing Physicians of America, a non-profit 501(c)(6) organization, in part so we can work collectively to attempt to end the monopoly status of the American Board of Medical Specialties and their member boards on US Physician board certification. We hope that justice can be served to the hundreds (and perhaps thousands) of physicians  harmed by this discriminatory mandate imposed on us since 1990.

Physicians wanting to learn more or want to help can e-mail me at wes - at - practicingphysicians dot org. Donations for our work can be made at http://www.gofundme.com/practicing-physicians-of-america or (if you don't want to use GoFundMe, mailed to our organization at the following address:

Practicing Physicians of America
876 Loop 337 Bldg 101
New Braunfels, TX 78130

-Wes

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