Tuesday, December 26, 2017

The Curious Timeline of the AAPS vs ABMS AntiTrust Ruling

It was almost Christmas, and you could hear the collective sigh of relief rising from the leadership at the American Board of Medical Specialties (ABMS). The antitrust suit brought against them by the Association of American Physicians and Surgeons (AAPS) was dismissed without prejudice on 13 December 2017 with one small caveat, "AAPS will be permitted an opportunity to file an amended complaint that cures the deficiencies discussed in this Memorandum Opinion."

Whether the legal team of the AAPS will decide to amend the complaint remains to be seen, but much has been learned about the anti-competitive nature of the ABMS Maintenance of Certification (MOC) program since the time that suit was filed. No longer is the coordination of effort of the MOC program limited to an arrangement between the Joint Commission of Accreditation of Hospital Organizations and the ABMS member boards, but its tentacles extend to most of the membership organizations of the Accreditation Council for Graduate Medical Education (ACGME), the huge medical publishing companies (Wolter Kluwer and Reed Elsevier), many of the state medical societies like the Massachusetts Medical Society and their NEJM Group, the IPC Hospitalist Company (later purchased by TeamHealth, that was later bought by the mysterious Blackstone Group after the DOJ found them guilty of Medicare fraud), the international medical community in far-away places like Qatar and Venice, Italy (which have separate "standards" for Board certification), and even influence on our own local state legislatures.

This is because we now understand that nearly 20% of our nation's economy (and much of our current academic medical system, each with their lucrative medical subspecialty societies) depends on ABMS MOC program succeeding. MOC is one of the critical keys to unlocking the data mine of physician behavior, purchasing, and influence via a HIPAA Business Associate Agreement that supplies the digital data fuel for the economic engine of health care today. An alternative to MOC without such an agreement would hurt this digital gravy train.

But working physicians subject to the demands of MOC saw the program for what it was: a sickening power play using threats and intimidation to fund the ACGME monopoly and the ABMS Member Board largess at their expense.

So those same working physicians took it upon themselves to start their own competing board, the National Board of Physicians and Surgeons. They took their concerns to state legislators and won a few key battles. By doing so, they exposed how insurance companies and hospital systems didn't really like that competition. They especially didn't like how physicians were coordinating their efforts. And somehow, along the way, those efforts have now piqued the interest of a few lawyers from the Federal Trade Commission.

But the inner political workings of our court system need scrutiny, too.

Recall that the 2013 AAPS suit was moved from New Jersey to the Northern District of Illinois (the AMA's back yard) in 2014 at request of lawyers from the AMA. Once there, the case docket had plenty of activity until January 2015, but then laid dormant for years.

This did not stop the ABMS from declaring victory in the case on their website October 2, 2017. How did they know? More than two months before the Memorandum Opinion was issued by Judge Andrea R. Wood, it seems the ABMS knew something the AAPS lawyers did not. The court docket also revealed how the court dismissed the case before the Memorandum Opinion could be reviewed by AAPS attorneys. Perhaps this is usual and customary behavior by the courts, but given the gravity of the ruling and its implications to working physicians nationwide, working doctors want to know how the ABMS leadership knew of the case's outcome before the ruling was even issued. Do the tentacles of MOC extend to the courts, too?

While the ruling is disappointing to most working US physicians, all is not lost. Not by a long shot.

Thanks to the work of a committed group of working physicians who have raised the interest of federal regulators, MOC suddenly appears "problematic" for the ACGME. A new "Vision Commission" for "Continuous Board Certification" is being organized by the ABMS comprised of the same cohort of conflicted medical bureaucrats that created MOC in the first place.

Look at that "planning group's" membership:
Nowhere in this list of "planners" are real frontline working physicians. And given this, nowhere is there likely to be any real change to the MOC system going forward.

Lipstick on a pig by another name is still a pig. And no matter what this commission has planned as they delay and distract from the corruption that has occurred with MOC for the past 30 years when they issue their "findings" in 2019,  MOC will remain a corrupt, broken educational product with serious conflicts of interest that needs to end now, not later.



Anonymous said...

As it seems that the mainstream media is not interested in this aspect of health care, would anyone know how to get the attention of other outlets such as VICE news or John Oliver on the HBO show Last Week Tonight? I find their expose journalism better than the mainstream media and liken it to the old style of journalism. John Oliver had an expose of FCC net neutrality months before it became a headline and he is proactive in his research.

WHERE IS THE FORM 990? said...

There is something else curious. Where is the latest Form 990 from the ABIM and the ABIMF? The time extension was theoretically from May to August.

The Truth about Joyce said...

Oh BTW. Joyce Dubow from the NQF also worked at the ABIM.


Anonymous said...

Speaking of antitrust, Dr. Wes, what about the proposed merger of CVS and Aetna? Where is the collective voice of opposition by our medical societies and state medical boards to this retail takeover of primary care? Antitrust and possible Stark flags on the field for this deal, which could fundamentally change the healthcare marketplace.

Anonymous said...

Stephen Wasserman is president of the American Board of Allergy and Immunology.

Matthew said...

Great post and I am so grateful for what you are doing with this. We need you Dr Wes.
It is with respect that I suggest that writing things like "20% of our economy depends on MOC succeeding" is hyperbolic and incorrect, and reduces the impact of your (our) message. MOC is a high-stakes issue for doctors and it has many implications and "tentacles" as you say, but the health care economy will continue to function with or without it.

Anonymous said...

Classic corruption!