Sunday, September 29, 2019

Some Thoughts on the Recent ABIM Lawsuit Ruling

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

― Dr. Seuss, The Lorax

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

Perhaps that's a good thing.

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

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

I suspect the judge in the ABIM antitrust case was (and remains) similarly naive. (Just as I am naive about what it takes to be a lawyer or judge.) Perhaps nowhere is this naiveté more evident than the judge's paragraph concerning "grandfathering" of older physicians:
"Finally, Plaintiffs allege that ABIM does not consider MOC to be a requirement of initial certification because it has “grandfathered” those that purchased a lifetime certification prior to 1990. (Pls.’ Mem. Law in Opp’n Mot. to Dismiss 13.) However, Plaintiffs provide no support as to why ABIM should not be allowed to modify its certification process over time. We see no problem that at some point ABIM realized there was a need to have its certified internists undergo an MOC program, whether because the internists could not keep up with the advances in their particular field, saw their skills diminish, or any other reason. In fact, the need to require a MOC program is highlighted in this case, as Murray initially failed her infectious disease MOC program in 2009 and Joshua was unable to pass her required MOC program in 2014. (Am. Compl. ¶¶ 85, 109.)"
But the judge's logic falls apart here because he mentions only the plaintiffs' need to "keep up," and not the "grandfathers'" similar "need." Aren't older, grandfathered physicians who do not have to participate in MOC more likely to have "failed to keep up with the advances in their field or seen their skills diminish?" Why are they granted an ABIM board certification "hall pass" while the younger Plaintiffs in this case were not? Why is such an age- and gender-discriminatory double standard acceptable for board certification in the judges eyes? (Remember, younger physicians who must perform MOC are increasingly comprised of females and physicians of color.)

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

Concerning the unjust enrichment dismissal, the judge makes a similar blunder and fails to even consider the Plaintiffs' concerns:
"Our analysis is again constrained by Plaintiffs’ misunderstanding of the product they purchased. Clearly, the first two elements of unjust enrichment are met for Plaintiffs that purchased MOC. However, the third element is not met because it is not inequitable for ABIM to keep the benefit since it did not “force” Plaintiffs to purchase MOC.(emphasis mine) Plaintiffs were, of course, free to decide to no longer be certified by ABIM and to, therefore, not purchase MOC."
The Plaintiffs in this case were free to decide that they did not need to purchase MOC just as they are free to decide to stop breathing. How long could the Plaintiff internists earn a living and work as internists if they cannot hold hospital privileges or receive insurance payments unless they purchase MOC?

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

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

-Wes

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

12 comments:

ephemeralstream said...

So, what do the lawyers who filed the suit(s) have to say about this?

Anonymous said...

Has anyone tried to place a bill at the state or federal level requiring lawyers to have maintenance of certification of their license? And if so, put it on the docket prior to an anti MOC bill for physicians. The dichotomy would show the hypocrisy to all the uneducated legislators.

Unknown said...

Do you think 20 to 40 years of clinical experiences & taking care of multi-generations of family members from diverse ethnic groups all over the world & seeing more than 200,000 patients can be be replace by MOC ?
All knowledges no matter how smart you are can be replace by AI. Understanding our patients concerns & their illness impacts on their life & care for your patients can not be master except time & willingness to care for another human. 30-50 years of clinical practice can pass in a blink of a eye.

Doc said...

Like the corrupt Boxing "Councils" demanding big payment for certification as a true "Championship Bout".
ABIM seems boarded perhaps by Don King?

happy internist said...

Thank you, Dr. Wes, for your tireless efforts on all of our behalves. We must continue to resist any way we can. I will not recertify with ABIM. I have this option because I practice direct care. I have cut all ties with insurers. I know most specialists and hospital based physicians don't have this option, but I am still behind your efforts 100%. Thank you for being a voice of truth and integrity!!

Alieta Eck, MD said...

Thankfully we have the National Board of Physicians and Surgeons that more and more hospitals are recognizing. Initial certification is a legitimate milestone proving a level of knowledge and competency upon completing a residency. Maintenance of certification cannot be meaningful as physicians find their practice niches and no longer need to know the details of every aspect of their specialty. It is an expensive, arduous exercise that distracts and takes precious time away from patient care. Continuing medical education is all we need.

I wonder why the state Bars do not require Maintenance of Bar. If lawyers had to face MOB, they would understand why physicians are rising up in opposition to what amounts to this extortion and racketeering.

The AAPS has a lawsuit against the ABMS which covers all the specialties. It is ongoing, so stay tuned.

Anonymous said...

I would love to follow the money here. An old judge is a corrupt judge. There was a payout, or incentive, for him to dismiss. We'll never know. They can lie to me all day, my grey hair is there for a reason. Simply demonstrate to a judge that monopolistic tactics of MOC against physicians are akin to Maintenance of Bar, and not participating would mean being de-barred, like de-certified with doctors. I stopped MOC 5 years ago and you know what? I'm still in practice. Only outpatient, zero hospital involvement, I'm fortunately in an outpatient field, Allergy & Immunology. I'm in a red state. I even got credentialed onto new PPOs and none have demanded to see my board certification status. My patients come to me because I care and can resolve and manage their complaints. This is what it's all about. The bureaucracy will fall if we starve it of $$$$.

Anonymous said...

After 45 years of practice in IM, I will stack my knowledge up against any young doctor. An old doctor told me at the beginning of my career, that a doctor gets paid for 10 years before he becomes a “seasoned” doctor. You can’t put a price on experience.

Anonymous said...

After 25 years of practice, I am done. Did the MOC thing once and passed. I am due to do it again in 2022. That gives me two more years of practice and then I will hang up the stethoscope. The reasons are as follows:

-The hypocrisy, the greed and extortion of ABIM.
-The increasing number of hours we are expected to continue to give up without compensation.
-The loss of autonomy.
-We are no longer physicians, we are 'providers'.
-How many more numbers( must be attached to our names that we have to continue to update.
-How many more indignities from Administrators and others?
-We are promised RVUs for x amount of work and most I know never achieve it. This is also a scam, reducing offered salaries and now "incentivizing" us to earn it back. Physicians do not tend to be lazy people.
-Blaming the victim and the "physician burnout phenomenon", physician increase in suicide and what should be a national crisis is rarely mentioned outside of the medical field.

I loved many things about medicine but the burden is no longer worth it and I will turn to something else.
More that just the ABIM, it is time for a real revolution in the US. Sad that we can not count on our medical societies to preserve the practice of medicine and protect our physician/patient relationship. Physicians need to unite and start change from the ground level up. Don't expect that the AMA to ever watch out for the interests of physicians. There is also very little sympathy from the public or legal system.

The ABIM and the MOC are but the tip of the iceberg.

Kristen Ann Ehrenberger said...

"Aren't older, grandfathered physicians who do not have to participate in MOC more likely to have "failed to keep up with the advances in their field or seen their skills diminish?"" <--This, right here.

Also, "Maintenance of Bar (MOB)"--I will remember this phrase for my next conversation on this subject.

If we are trying to find a balance between graduating from training with the newest knowledge, and the wisdom that comes from years of practice, I wonder if MOC should be time limited (1 or 2 cycles to bridge from being a new attending to hitting the stride of one's career). Either way, getting certified should go back to being optional, IMHO, but with the economic and political power insurance companies now hold, I doubt that genie can go back in the bottle.

Anonymous said...

I just took my second MOC exam - I really hope I passed! It just strikes me as ludicrous. That exam proved nothing. 25 years of patient care; decades of CME. These are where it can be measured and monitored that I know what I'm doing. The very ironic thing is that for outpatient IM, ARNPs are doing the exact same job we are! They just insert ARNPs into our offices - new grads, etc. They just jump in and start doing exactly what the MD/DOs are doing. They don't need to take the ABIM exam. Why not? Our hospital based system does not seem to value me any more than a new ARNP. Our brand new ARNP told me she'd "never heard" of the condition multiple myeloma! Hmmm. I guess you don't need to know that kind of thing to practice IM. But then I'm forced to pay > $1,000 to take this exam to prove something to somebody.

Cal said...

The Judge is still looking at BC and MOC as voluntary, he will never see the ABIM as a monopoly and this entire effort will die on the rocks. And we expected justice. We did this to ourselves.

In residency we were lectured endlessly about the need to be board certified. I looked at our attendings who were certified and those who were not -- what I saw did not convince me.

I trained in the 1980s. I contemplated board certification and at the time it was voluntary, no hospitals required BC to be on staff and the pay was the same. Our first child was due a couple of days from the board testing so I put it off -- there was no time limit and no penalty for waiting, so I did.

I went into practice in a small town that didn't know what an internist was. To be financially viable I needed to see kids, which I had been doing for years moonlighting. When I applied to the area hospitals I told them I was an internist and was told that I couldn't see kids, but when I told them I wasn't yet BC they say 'Oh, you're a general practitioner, you can see kids.' I had zero problems joining insurance panels.

So as long as I didn't take the boards I could practice. Totally insane. When the ABIM finally time limited eligibility I took the boards in 2016. I don't use it for my credentialing and don't plan to recert in 2026. The very best answer to this is to not go to medical school and have a great life doing something else. Hundreds of millions of people in the US take that path. Smart people. We should be so smart.