Saturday, October 31, 2015

Part II: Why Washington?

I looked out the airplane window and saw we were approaching Reagan National Airport from the south. The crisp morning sun pierced the fluffy clouds and found its way through the slit of the partially-opened airplane window shade to momentarily blind me. A small apex of the Washington Monument could be seen in the distance. To its right, the US Capitol dome shrouded in scaffolding.

Washington DC.

Having my luggage, I Uber-ed my way to my hotel. Boutique hotel next to the Capitol. Nice place. Quaint pastel-painted row houses nearby. French bistro, too. A 30-somthing hipster lady was checking out as a host brought her a few knickknacks to munch on for breakfast. The smartly dressed man  behind the front desk had an Australian or South African accent. Or was he from Belize? I couldn't tell. Relaxed. Confident. Good eye contact. He checked me in.

 This is the life of a policy wonk, I caught myself thinking.

My room was larger than I needed, the bathroom tiny, but functional. I pulled back the curtain and saw the many marble buildings surrounding the hotel and blocked the viewed of the streets further away that I remembered weren't quite so inviting.  Lots of construction in view.  Booming. I wondered if any of the other people who frequented this establishment ever saw the very different life that exists in rural areas outside the Beltway.

Probably not.

No matter. It was Washington. Time to explore. Crisp air. School kids bursting with excitement and rushing to the street corner, starry-eyed. Ever-patient chaperons shouting they could only see the Capitol if they made two parallel lines. "Quiet, please! Line up. Come on, now." Others in dark suits walking the streets. High heels with lanyards and  name badges. People walking in tandem, sharing secrets, telling jokes. Black Towncars, Escalades with tinted glass, Mercedes.  Large white buildings that dwarfed their visitors, like Poseidon looking down on a flotilla of tiny ships at sea.  Supreme Court. Library of Congress. Madison, Jefferson, Dirksen, Hart, Cannon, Longsworth, Rayburn. White. Marble. Big. Powerful. At least so it seemed. Certainly not for the faint of heart. Security everywhere. Metal detectors. Strange white mechanical roadblocks that clanked up and down to let the Important People drive their beat-up Subaru over it to head home.

A foreign land for a practicing doctor. Almost surreal.

I had arranged to meet two colleagues before the introductory dinner gathering. Each a name on The List. We never met before but shared some emails once. Nice to put faces with the names. They were more seasoned in this environment than me. But real doctors. Not pretend. Independents. Just came from work. Drove all day or flew from far away. Eager to meet others. Passionate. Each with their story - a reason to be here. Certain they could speak to a piece of the puzzle. Frustrated with things but determined to do something. I settled in. We exchanged numbers. You on Twitter? Defiantly: "Why should I use a smartphone when a tiny flip phone will do?"

* sigh * Reality.

Soon we headed to the introductory dinner. Staffers handing out sticky paper name tags that never seem to stick. (Except to things they shouldn't.) Pleasant smiles. A glass of wine. Pasta on the menu. Mingle. Where are you from? I see. The Congressman will be here a bit later. Then the Congressman arrived. Thanks for coming. Relax. Enjoy your stay. Tomorrow we'll show you our plan. Want to get your ideas, feedback. What brings you to Washington?

They all seemed to know. Me? Better to lay low for now. Who are all these people, really?

Would what I had to say make any difference? There was another plan. Another agenda.  Mine? Very small, unimportant. One doctor with a few others in a big very big pond, treading water, learning to swim. Would this be worth it? Others seemed to think so.

I still wasn't sure.

Friday, October 30, 2015

Justice Department Fines 457 Hospitals for Inappropriate ICD Implantations

From the Heart Rhythm Society via email today:
Today, the Department of Justice announced that it has reached settlements in its investigation of hospitals for billing Medicare for ICDs implanted in Medicare patients that did not meet Medicare coverage requirements. The announcement includes 70 settlements involving 457 hospitals in 43 states for more than $250 million.

The Heart Rhythm Society (HRS) has recognized that the misalignment between the Medicare National Coverage Determination and the clinical practice guidelines created gaps between the payment policy and clinical decision-making and places physicians and their patients in an untenable position. To help mitigate the problem, HRS published "2013 HRS/ACCF/AHA Expert Consensus Statement on the Use of Implantable Cardioverter Defibrillator Therapy in Patients Who Are Not Included or Not Well Represented in Clinical Trials”.

Moving forward, the Society’s priority is to do everything possible to assist the heart rhythm care community in managing the patient care pathway. HRS and other medical specialty societies are currently working with the Centers for Medicare and Medicaid Services (CMS) to identify the appropriate time to reopen the existing national coverage policy. The Society will provide CMS with recommendations to update the clinical indications for reimbursement. With this preparation, we stand ready to work with our partners to revise the Medicare coverage policy to reflect current clinical practice.
Outdated CMS National Coverage Decisions from 2005 just whacked hospitals. "Misalignment's" Catch-22. So much for evidence-based medicine. So much for practice guidelines. So much for innovation in health care.

CMS NCDs rule now, no matter how outdated, from now on.

The Justice Department has spoken.


References: Justice Department press release with list of hospitals affected.
More on the history of this action here.

Part I: Why Washington?

When I lived in Washington DC years ago, there was a saying my wife and I heard on occasion from our friends who worked on the Hill:
"In New York, it's about finance;
In Boston, it's about power;
In Washington (DC), it's about access."
* * *

The invitation came in a regular envelope. An invitation to go to Washington DC.  Who asked me? What was this for? Was it real?

I studied the invitation: a "personal" invite from Congressman Pete Sessions (R-TX), dinner the first night (dutch treat), then meetings started the next day at 08:30 am in the Rayburn Building, presentations, other Senators and Congressman to be invited (names to be decided). New plans. Need input, discussion, dinner afterward.

I showed the invitation to my wife: "Do you think this is the real thing? Why would they ask me?"

"Looks real. Call them," she said. "Find out who's going.  Maybe there's someone you know."(My wife, unphased, used to testify on the Hill when I was a young staff doctor at the National Naval Hospital in Bethesda, MD many years ago).

I waited a few days, then called. "Well, fifty-five doctors have already RSVP'd so far," said the exasperated voice on the end of the line." Ugh, I thought. "We'll be sending out a revised agenda with a list of the attendees when the date gets closer."

Would it be worth it? Fifty-five doctors? Were doctors being asked to come to Washington at their own expense just so it would look like we were "at the table" when, in fact, we were "on the menu?"  Given health care's recent history and how things got to where we are now, it was very hard to suppress my cynicism. Who funds Representative Sessions, I wondered? I checked. Got it. Then I really pondered: why me?

My wife looked at me like I was an idiot. "You have to go," she said. "You can't go through all of these hours of investigation, research, fire, and brimstone, and not go to Washington. Make some appointments.  Maybe you could stay with our old friends Jack and Jill  (not their real names) while you're there."

"But the time from work... it's so expensive..."

"You decide," she said. "But if it was me, I'd make it worth every minute. Look, Washington is really kind of, well, government. Think DMV. Big hallways. Linoleum floors. Fluorescent lighting. All puffed up, but not that glamorous when you think about it, it's no big deal." My wife sure knows how to sell things...

That night, I stared at the computer screen on my desk. "How much does it cost to fly to Washington?" I searched Orbitz. I'd have to cancel a clinic day, maybe two. Maybe I could swing this if I only missed an extra half a day of my clinic. Folks at work won't like this. Oh heck, she's right. I'd never forgive myself if I didn't go.

After weighing things, I booked the flight, then rearranged and blocked my clinic schedule the next day, though I still wasn't sure. Will it be worth it?

A few weeks later a more finalized agenda came with the names of who would be attending. I googled everyone (this seemed to take forever). I made a list. 18 states. Most were practicing doctors. Most of those orthopedic physicians, (Huh?) a few AMA representatives (young and semi-retired), a few older retired doctors, a few lawyers, an economist, a doctor who ran an ICD-10 coding company, a person who owned a medical collection company, some physician advocacy group representatives, a lobbyist.


"Mouth of the lion," I thought. "How am I going to get a word in edgewise?" Fifty-five people had grown to sixty.  "It'll be a waste of time," I thought.  The next day I finished my overbooked clinic, then returned home to tell my wife what I had decided. I told her I probably won't go to Washington after all.

"You have to go," she reinforced.

"It's all about access."

Thursday, October 22, 2015


From Jonathan Edwards (video):
"Sunshine go away today
I don't feel much like dancing
Some man's gone, he's tried to run my life
Don't know what he's asking

He tells me I'd better get in line
Can't hear what he's saying
When I grow up I'm going to make it mine
But these aren't dues I been paying

How much does it cost, I'll buy it
The time is all we've lost, I'll try it
But he can't even run his own life
I'll be damned if he'll run mine, Sunshine

Sunshine go away today
I don't feel much like dancing
Some man's gone he's tried to run my life
Don't know what he's asking

Working starts to make me wonder where
The fruits of what I do are going
He says in love and war all is fair
But he's got cards he ain't showing


Sunshine come on back another day
I promise you I'll be singing
This old world, she's gonna turn around
Brand new bells'll be ringing."
I'll be heading to Washington, DC on my own dime next week. Seems there are plenty of people who want to know more about the American Board of Internal Medicine.

Who knows? Maybe I'll learn a thing or two, also.


Thursday, October 15, 2015

Can Medical Knowledge Be Copyrighted?

A patient with a history of syncope, first degree AV block with evidence of a bundle branch block and 2:1 block on telemetry is examined and 1:1 conduction ensues with carotid massage. You recommend a pacemaker because you understand the electrophysiologic principle of "gap phenomenon" but realize that you had a question that looked just like that on a prior cardiac electrophysiology medical board examination. You recall that just prior to that examination, you electronically signed a statement that contained something like the following contract language just before the computerized examination started (but recall you were never given a copy of that mystical agreement):
I understand that all ABIM materials are protected by the federal Copyright Act, 17 U.S.C. § 101, et seq. I further understand that ABIM examinations are trade secrets and are the property of ABIM. Access to all such materials, as further detailed below, is strictly conditioned upon agreement to abide by ABIM's rights under the Copyright Act and to maintain examination confidentiality.

I understand that ABIM examinations are confidential, in addition to being protected by federal copyright and trade secret laws. I agree that I will not copy, reproduce, adapt, disclose, solicit, use, review, consult or transmit ABIM examinations, in whole or in part, before or after taking my examination, by any means now known or hereafter invented. I further agree that I will not reconstruct examination content from memory, by dictation, or by any other means or otherwise discuss examination content with others. I further acknowledge that disclosure or any other use of ABIM examination content constitutes professional misconduct and may expose me to criminal as well as civil liability, and may also result in ABIM's imposition of penalties against me, including but not limited to, invalidation of examination results, exclusion from future examinations, suspension, revocation of certification, and other sanctions.

Can you divulge this principle of gap phenomenon (and a similar example of this phenomenon) that once appeared in an almost identical way on your board examination to your residents?

According the American Board of Internal Medicine (ABIM) and the above agreement, it would seem that I cannot.

But is such a medical principle and my personal example displayed on this blog truly copyrightable by the ABIM?

According to prior court decisions, under the principle of the "merger doctrine" my example does not violate the Copyright Act. In fact, according to Mazer v. Stein, 347 U.S. 201, 217 (1954), the Supreme Court stated "Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself." This protects my First Amendments' free speech right and the fact that this same principle was shown to me years before by my mentor, Mel Scheinman, MD at the University of California, San Francisco when I trained as a fellow in cardiac electrophysiology.

To be clear, the disclosure of an exact replica of a board question and its detractors (wrong answers) might be subject to a copyright dispute, but it is clear that simply mentioning to residents that you saw a "similar question" on your specialty board examination and providing an example to your residents and fellows does not compromise your ability instruct your residents about such an important electrophysiologic principle as "gap phenomenon." In actuality, it is hard to copyright medical information that is widely available in the medical literature.

But this has not deterred the ABIM from continuing its legal battles against physicians who they claim may have shared information about their certifying examination question content.

More Suits Against Physicians Filed

Currently, the ABIM is continuing to sue physicians for possible Copyright Act infringement of their secure board examinations from participants in the Arora Board Review course given in 2009 (!), this time a young internal medicine physician from Puerto Rico (the full text of this suit can be viewed here). While this trial has yet to be heard, it will be interesting to see if the ABIM's Copyright Act infringement claims have merit. The suit is interesting because it gives a detailed accounting of the ABIM's test creation methods and the damages they hope to recover. I encourage my physician readers to review the suit.

Even more interesting to me, however, is the answer to the claims made in the ABIM's suit by the defendant and the countersuit filed against them (seen here). The claims of the "ABIM Individuals' Illicit Conduct" (beginning on page 22) are important to review, for if they are found to be true, they offer insight into the extent ABIM will go to protect their intellectual property and the damages they inflict of physicians that might be wrongly accused, including the use of a "spy," claims fo the violation of a "Pledge of Honesty" that the defendant never saw, public claims that he was "unethical and unprofessional," and having only 10 days before every medical licensing board in his jurisdiction would be notified of the ABIM's decision, leaving (in my view) no opportunity for due process.

These are extremely important issues for physicians to understand as the "restructuring" of the ABIM continues in light of the ABIM getting it "wrong" and the financial revelations and deceptive disclosure practices of the ABIM raised on this blog and elsewhere.  If the court finds in favor of the defendant in many of the claims made by him, I have a feeling there will be many more suits against the ABIM to follow.

It also raises the very real possibility that the ABIM Foundation was not created as a means to define and promote "medical professionalism," but rather to serve as a legal defense fund for the ABIM as they protect their monopoly interest in the physician specialty accreditation process.


Thursday, October 08, 2015

Every 10-year ABIM MOC Exam On It's Way Out? Careful What You Wish For

According to MedScape:
The American Board of Internal Medicine (ABIM) has announced that it will consider replacing its 10-year maintenance of certification (MOC) exam with shorter, more frequent testing that physicians could take home or in the office.

The proposal to eliminate the 10-year examination is one of several recommendations issued today by ABIM's "Assessment 2020 Task Force," convened in 2013 to improve its controversial MOC progam for internal medicine (IM) physicians and IM subspecialists. ABIM released the task force report less than a week after the American Board of Anesthesiology (ABA) announced that it would replace its 10-year MOC exam with continuous online testing next year.

"The results of the smaller, more frequent lower-stakes assessments would provide insight into performance and accumulate in a high-stakes pass/fail decision," the task force said in its report. "A failure at this point may necessitate taking a longer exam or another form of assessment in order to maintain certification."
Let's think about this a moment.

ABIM's Task Force 2020 wants to replace MOC with MORE testing, more often, and still reserve the right to force a physician to take a "longer exam or another form of assessment in order to maintain certification?"

This isn't better, it's worse. Much worse. Instead of every 10-years, it will be daily or weekly MOC-minutes!

More MOC distraction pushing physicians away from their patients and toward even more computer time.

What are these "Task Force 2020" members smoking?

Of course the money can't be denied. Pharmaceutical companies are licking their chops. Think how many MOC® questions we'll soon have to answer on novel oral anticoagulant use instead of that old, cheap, outdated warfarin! Pushed to our iPhones, these new MOC-minute® questions are sure to turn your head away from patient care toward an easy payment plan! I wouldn't be surprised that thanks to the ABMS stumping for Big Tobacco in the sixties, we'll all be answering questions on the praises of e-cigarettes and pharmaceutical aids for smoking cessation, too!

It's truly fascinating to watch these attempts at social engineering of practicing physicians by the ABIM. But the ABIM has already tried voluntary re-certification and knows it failed miserably. They had to make it mandatory by veiled threats over what the loss of Board certification might mean or no one would pay into their scheme.

Want proof that the ABIM isn't serious about ending their MOC® exam?  Read the contract physicians must sign before entering into the ABIM MOC® program. Read about "trade secrets" and "federal Copyright Act, 17 U.S.C. § 101, et seq." and "forensic techniques" they use to protect their products. And let's not forget that "disclosure or any other use of ABIM examination content constitutes professional misconduct and may expose me to criminal as well as civil liability, and may also result in ABIM's imposition of penalties against me, including but not limited to, invalidation of examination results, exclusion from future examinations, suspension, revocation of certification, and other sanctions."

These guys and gals of the ABIM mean, er, BUSINESS!

All this for a costly and completely unproven metric foisted on physicians to assure the ABIM's cash flow.

MOC® isn't about physician education or patient welfare, it's about intimidation, $2.3 million condominiums, $1.7 million golden parachutes, and secret transfers of millions upon millions of physician testing fee dollars to the ABIM Foundation in the name of "social justice."

It's about an organization that has allowed itself to sink $47 million in the hole (Fiscal Year 2014 Form 990 line 22) and balances its financials on a whopping $94 million in deferred revenue (Form 990 Page 11 of the pdf, Form X, line 19).  

That $94 million will be coming from somewhere (can you say "ACA?") and since the ABIM gets 98% of is fees from practicing physicians, you can bet your last silver dollar that these totally  unproven MOC® programs will be paid for by practicing physicians, one MOC® exam or MOC-minute® at a time.

And the ABIM is SERIOUS. Recently, despite all that has been uncovered about the ABIM, they continue to sue doctors over their intellectual property, just as before, this time in Puerto Rico (case 3:15-cv-01016). Oh, golly, what's a few more million dollars in legal fees to protect your income stream, right?

If you believe there will be no MOC® exam of any type, ever, and given the honesty and integrity the ABIM has demonstrated over its finances over the past 30 years, I've got some ocean-front property in Arizona I'd like to sell you.


9 Oct 2015 06:00AM Link to ABIM's Puerto Rico case fixed.

Monday, October 05, 2015

Heart Rhythm Society and ABMS: Friends for Life

Patients are dropping like flies in Electrophysiology Laboratories across the country. Death and destruction everywhere. Poor quality. Unsafe standards. Pitiful results.

What, you haven't heard? 

Clearly this MUST BE THE CASE! That's why it's SO important that the Heart Rhythm Society and the Intersocietal Accreditation Commision (IAC) INSIST (seriously) that EVERY electrophysiology laboratory in the United states have a MEDICAL DIRECTOR certified by the American Board of Medical Specialties.  Otherwise, your electrophysiology laboratory will be labeled as "NOT UP TO STANDARDS." And we wouldn't want that now, would we?

I just received this disappointing e-mail from David Haines, MD, president of the "IAC Cardiac Electrophysiology Accreditation" on behalf of the Heart Rhythm Society (who is clearly colluding with the American Board of Medical Specialties to assure regulatory capture of every electrophysiology laboratory in the United States) under the guise of EP laboratory standardization:
Last week, I sent an email discussing the recent partnership between the Heart Rhythm Society, the Intersocietal Accreditation Commission (IAC), and other key stakeholders to develop and operate an EP Lab Accreditation Program. Developed by the IAC Cardiac Electrophysiology Board of Directors, the draft IAC Standards and Guidelines for Cardiac Electrophysiology Accreditation are now available for public comment and I am requesting your assistance on this important initiative. Please review the draft standards and provide feedback to ensure that they meet the expectations and the field’s needs.

Listed below are the instructions to provide comments. The IAC Comment Form must be completed and submitted electronically by December 1, 2015.

To submit a comment on the proposed IAC Standards:
  • Visit the IAC website.
  • Click on the proposed Standard you wish to review and/or comment from the menu.
  • A window will expand with the description of the Standard and a PDF to view the section of the Standards available for comment.
  • Click on the PDF to open it in a separate window for review.
  • On the right, fill in your name and provide your comments about the proposed Standards in the boxes provided.
  • Push submit.
At the close of the comment period, the IAC Cardiac Electrophysiology Board of Directors will review all submitted comments, consider modifications, and vote on the Standards final approval. The new Standards will be posted to the IAC Cardiac Electrophysiology website and available for download in late 2015.
Don't you get it?  The new "Standards" are coming whether you like it or not.

I would suggest every electrophysiologist comment on this decision by the Heart Rhythm Society to insist that EP laboratories must meet certain "standards" regulated by yet another unaccountable body to the physician and patient (who the heck is the "Intersocietal Accreditation Commission?") After all, this is ALL about regulatory capture and the money generated for the ABMS and their member boards.

Where's the proof that patient care will be improved as a result of such standardization?

Instead, everything (including our "re-certification" expenses) will cost us more and more as the regulatory capture of medicine by the ABMS and the IAC/ and their pals continues unabated.