Monday, December 07, 2020

ABIM and Its Appellate Court Arguments

The unofficial transcribed 3rd Circuit Appellate Court arguments held 23 Oct 2020 between Mr. Philip Curley (lead attorney representing the physician Plaintiffs) and Ms. Leslie John (representing the American Board of Internal Medicine (ABIM)) are now available for US physician review. The appeal was filed after the 3rd Circuit District Court dismissed the Plaintiffs complaints before discovery because, as Mr. Curley states in those arguments:

"And that's what the district court did here that was incorrect; it concluded that as a matter of law, there could only be one product, and it shouldn't have arrived at that or any other conclusion in our judgment. It arrogated to itself a determination of the ultimate fact issue which is out of the separate products. It was indifferent to our allegations. It improperly weighed evidence. It explicitly made findings. It used those words, and had accepted ABIM's affirmative defenses that are outside of the Complaint. All those are in violation of the proper standards in ruling on a 12(b)(6) motion to dismiss. And we respectfully point out to the Court that this is not a motion where only conclusory recitations of law are pleaded or claims rote elements are simply recited. This is a highly detailed and factual Complaint, and we are entitled to discovery and the right to prove our claim. So we respectfully ask that the district court be reversed."

While I made some earlier observations when only the audio file of the arguments became available, there are a number of other observations that I believe are important from those arguments.

ABIM Never Answers the Question About Forcing or Monopoly Control of Certification

On Page 27 of the transcript, Judge Chagaras asked Ms. John the following question: 

"Could I just ask a follow-up there about forcing? How do we conclude that internists aren't forced to buy MOC at this stage in the litigation in light of the allegations that internists can't successfully practice without certification; and isn't the feasibility of practicing without certification ultimately a question of fact?"

Rather than answering the question, Ms. John responds:

"I think you can first look to the facts in this case. So, for instance, Doctor Manalo who never -- who did purchase initial certification and never purchased Maintenance of Certification, I think that certainly shows that his purchase of initial certification was not contingent on the later purchase of Maintenance of Certification. So I think that is one way you can look at it."

Recall that in the Amended Complaint, Dr. Manalo has been unable to become employed as a result the fact that he refused to participate in MOC. The judge presses further:
"But, Counsel, what I'm talking about is it may not be so voluntary. If they want to make a living, are they forced to buy your product? You seem to say no, they're not forced to, but is that essentially an issue of fact that's more appropriate for summary judgment?"

And of course, Ms. John forgets the fact that many physicians are grandfathered and don't have to perform MOC, but states:

"I would suggest not because I think when courts look to forcing, they look at what is the situation at the time of the initial purchase, and at the time of the initial purchase here ABIM had a program for certification; and aspects of that program were initially passing your initial Board certification exam, and then that that certification would expire after a set period of time, ten years, without -- unless that diplomate passed subsequent examinations. And so when they up front bought that product, they knew there would be a continuing obligation as part of the certification program that they would have to demonstrate, in fact, that they possess the requisite knowledge to hold themselves out and say, yes, I am ABIM or Board certified. So there is no forcing because there is the knowledge up front at the time of purchase of what certification entails, and that was the periodic demonstration of knowledge."
Unfazed, the judge then asks:
But I suppose that the most basic form of your argument is they don't have to go through ABIM to practice?"
To which Ms. John answers as only a lawyer can:
"Yes, your Honor. So, for instance, if you look at the Amended Complaint, the Amended Complaint is quite clear that Board certification is not required to practice medicine in the United States. That is simply a function of state boards of medicine that license doctors. You only need a license in your state to practice medicine. Board certification is not required. Board certification is more like the stamp of approval that you can hold yourself out to have special qualifications. Some -- some patients and employers look to that; others do not, but it is not a requirement to practice medicine in any state in the United States, which is a fact that is pled in the Amended Complaint."
Fortunately, the judge did not back down, politely recognizing the doublespeak:
"Well, but I mean this does go to your market power. I mean, yeah, it's true you don't need the ABIM certification, but is it really feasible not to have it in reality? And I think that the allegations, don't they say you -- a lot of places won't let you practice. Your malpractice rates are going to go higher. Reimbursement is going to be an issue. So is it really feasible to practice without certification, and is that something that should be a subject of discovery as opposed to, you know, at this juncture with a motion to dismiss to resolve?
We should note that as long ago as 1991, Dr. Benson (the first President of the ABIM) wrote in the Annals of Internal Medicine that certification "is no longer an option for the physician entering the marketplace." A later ABIM President agreed, Dr. Christine Cassel, writing in a climatology journal article in 2008 that "many physicians really feel that board certification is not optional." Finally, the Arthritis Care and Research article from 2019 concluded in no uncertain terms that "Board certification, which started as a voluntary achievement and remains so in theory has become involuntary in practice, making participation in MOC programs mandatory for many if not most physicians in order to maintain employment and clinical privileges, or receive reimbursement." 

We should note, then, that ABIM's own leaders have conceded the issue that it's own attorney in these arguments would not. 

ABIM is Not a Professional Society

And then there was this exchange from Mr. Curley's final rebuttal statement:

So another fact question that arose from your inquiry was professional society. Is ABIM even a professional society? We don't believe it is, but in any event, there certainly is nothing in the Complaint that speaks to that. That's another example of an affirmative defense that ABIM is trying to raise, standards, professional society, internists aren't keeping up, all sorts of things that can only be resolved after discovery.
Given these revelations made from the arguments before the Appellate judges. It is hard for this physician to not be encouraged by what transpired before the Appellant Count judges. I'd love to hear what others think as well.

One thing's for sure: if the Appellate Court refers this case back to the District Court for discovery, Pandora's Box will open for the ABIM and all other member board of the American Board of Medical Specialties.

-Wes

14 comments:

Anonymous said...

I'm not a lawyer or a legal expert. However, most appeals courts answer the basic question of whether or not a court acted properly in its conclusion. The fact that this appellate judge asked so many questions about whether or not it's truly optional to purchase MOC, makes me believe that the appellate court feels there definitely should be more discovery than outright dismissal of this complaint.

I am a practicing hospitalist working as a locums and I can tell you this. Yes, it's true you don't need board certification to get a state license. But no hospital will take you on staff if you are not board certified or board eligible. Let me repeat that. NO HOSPITAL WILL LET YOU WORK IF YOU ARE NOT BOARD CERTIFIED. This is INDISPUTABLE. To try and say anything else is the typical legal parsing that goes on millions of times across the country to provide a legal stamp of approval to an unjust or unethical result. Again, if MOC is SO WONDERFUL for patients, why is there a grandfathered group? Why do they get to skip it?

I genuinely hate to be so upset with the older generation of doctors. I have nothing but the highest respect for the older doctor who is still in the ER at 2 am seeing an NSTEMI patient or an upper GI Bleed. But in their vainglorious quest to make their lives easier nearing retirement, a number of them have invited a lot of unwelcome company into the process of medicine. Whether it's by taking a cushy 9-5 desk job that pays more than seeing clinical patients or selling out to HMO's, or insurance companies they have allowed these bad actors to provide a thin veneer of medical credibility to the horrible decisions that are causing most other doctors to quit medicine. Thus with every doctor that retires from actual patient care, our medical care suffers.

I pray that this lawsuit is permitted to go forward.

Christina Dewey, MD said...

Completely agree with all that "anonymous' posted above.

Additionally, at this time "board certification" means less and less to those that hire "providers" to "care for" patients. At a time when physicians are required to pay increasingly exorbitant amounts of money to be labeled "certified" - which is necessary in order to be credentialed at hospitals and receive reimbursement from insurance companies, non-physician providers are being hired en masse - without ANY standardized education, training, experience, or testing. Under the guise of "practicing at the top of their license/scope", the government has passed legislation in 26 states allowing these non-physician providers to practice MEDICINE WITHOUT PHYSICIAN SUPERVISION. Legislation does NOT equal Education and PATIENTS are being harmed.

Where are the American Boards of Medical Specialities in standing up for Physicians and their training and expertise? At what point will the boards actually take a stand against physicians being fired and replaced by non-physician providers with LESS THAN 5% of the training a physician receives PRIOR to being allowed to independently practice medicine/care for patients?

Initial board certification and "passing boards" used to mean a physician had accomplished the highest level of achievement and was at that point considered an expert in his/her field. Initial board certification was a sought after accomplishment. MOC has diminished the meaning of being board certified. Now everyone and their pet is certified in something or another. Continuing certification is a money making scam that has shown no increased benefit to patients or physician - and ONLY HARM.

May this lawsuit go to trial. May physicians everywhere rejoice and regain some autonomy and self worth. And may the American Academy of Medical Specialties stand up for physician training and exert some influence onto to those diminishing our worth, rather than continuing to extort us and line their own pockets at our expense.

Dr Asha Kamnani said...

Yes.. I stopped doing MOC in 2016 as I am against it. I have not been able to get a job. I had to retire. I have no regrets. But, it is not fair. I still have an active license. I can do solo practice but I will not be able to do surgery or deliveries. MOC does not guarantee that one is a good doctor. Money making racket.

Water as Truth said...

Money or Quality?

Since the first "white papers" published after 9/11 by the quality cabals (ABMS/ABIM et al)
we have seen a decrease in quality through egregiously conflicted monied interests and broken bureaucratic/technocratic solutions pushed on the profession of medicine.

At the same time we have witnessed an increase in the number of executive bureaucrats hiding their bloated paychecks in IRS non-profit filings often hidden in schedule J.

ABIM (including the ABIM-Foundation) does not fit any known definition of a "professional society". This fact alone means discovery is necessary and imminent. Even the judges do not know.

This case must be sent back to the lower courts where a proper discovery process can take place, call witnesses, make arguments and let a jury decide.

Since MOC was mandated the ABIM has become a diluted testing company through distraction and loss of focus. Its a different animal altogether through gutting original bylaws, rewriting them to the point that we don't recognize the Iowa grassroots organization any longer. As a non-pecuniary organization, money has corrupted the ABIM and whole ABMS.

The result is ABIM/ABMS is now a substandard testing company franchise focused on money and not quality.

Court records prove that with ABIM's recycled (years-old) test questions they were not keeping up with the the fast pace of medicine. Monopoly power in an industry creates mediocre products and services. Lack of accountability seals the door on ABIM's need or desire to strive for quality.

Anonymous said...

This is celebratory news. It is cynical to see how ABIM despite the power and control it has over physician practice in these times pretends now to be a bystander. It further shows how evil they are. Their unwillingness to work with us and be fair. They must be exposed and held accountable. They have caused a lot of damage.

Unknown said...

The AAFP is just as bad and MOC/Continuing certification was a factor in my deciding to retire at age 64. Also, I was getting tired of 24 hour on-call and hospital practice. It gets harder to do all this stuff as one ages. The stress of dealing with a tanking patient when the tertiary referral center couldn't accept them for many hours was taking its toll. Several years ago during an Osler Institute Course a speaker, Dale Blackwelder was extolling the virtues of the upcoming MOC and re-certification requirements. Two years later he no longer mentioned the ABFM or MOC as I suspect people began to realize what a farce it was and were slinging a lot of vitriolic flak at him.

Anonymous said...

FYI: More ABIM propaganda. I replied to an email from ABIM asking the simple question, "If MOC is so critical and important, then why is there a grandfather status?"

I got back this:

Dear Dr. X:

Thank you for your recent blah blah blah...

"...Grandfathered physicians are encouraged to maintain their certification by meeting the point requirements and passing and exam by the end of 2023. It is important to note that because they hold a lifetime certification they will not be reported as "Not Certified" for not participating in MOC, but reported as "Certified, Not participating". ABIM continues to honor grandfathered certificates under the policies in place during the time in which they originally sat for their examination (certificates issued 1990 and prior)."

It goes on with more "...blah blah blah appreciate your thoughts, share with Dr. Baron, continue this dialogue..." and other mendacity.

So in other words, their certification is apparently better because they only need to take the boards once where as the rest of us after 1990 are a bunch of idiots who need to keep taking them.

Anonymous said...

If ABIM is not a professional society, would that put them at risk of losing any tax breaks or ability to create a foundation and hide monies? Could any one respond to this?

Walter J Pierce FACC said...

I was "grand-fathered in"in 1989. On the ABIM site it states that my Internal Medicine certification will expire 2024, yipes!
The the ABIM is a not a professional society, it is a member of the ABMS. We do not pay dues to it, we purchase certification from it. It no longer provides enough material to achieve the necessary credits to fulfill the requisite credits. The American College of Physicians is the professional society for internal medicine. It along with the subspecialty societies sell the material to study from and achieve the credits necessary to gain and maintain certification. The ABIM in effect charges to do nothing more than transfer credits in. Then you pay for the exams.
In general, hospitals and or states require CME, which you can tailor to your specific needs instead of choosing what the ABIM will test you on. Much of the problem arises from above the ABIM: the ABMS.

Anonymous said...

https://osteopathic.org/2021/01/07/aoa-files-suit-against-abim/

Anonymous said...

I initially became board-certified in ABIM in 1997. Then I re-certified in 2007, and it was such an expensive waste of my time. I was angry at having to learn a large amount of useless information that was grossly irrelevant to my practice as a General Internist in an outpatient clinic--like a retina exam for a rheumatological drug that I would never use, inpatient hospital care questions, critical care questions, etc.--there was very little primary care relevant subject material. I purchased the expensive MOC and board prep from ACP, finding very few other options. I complained to the ABIM and the ACP. I saw them in cohoots with each other taking advantage of us, their captive market. I did not renew membership in ACP. I swore to myself I would never subject myself to this exploitation again. 10 years flew by, and then I was due to re-certify again in 2017. Fortunately, Georgia passed legislation that prohibits MOC from being required as a condition of licensure was signed by the Governor on May 8, 2017, and was effective as of July 1, 2017. So I decided to re-certify through the alternative NBPAS. I retired the following year, but my parents' health declined, and I wanted to support them financially, so I decided to look for a job again in 2021. I found that my former employer of 14 years would not rehire me without ABIM, despite my excellent work record and professional accolades. Only one major health system in my city accepted NBPAS, and they didn't have any jobs available. I decided to look at ABIM's MOC again- maybe after all the criticism from unhappy Internists, it had improved? It took me a long time to decipher what is required. Still complex. Since I had lapsed re-certification, the only testing pathway was the 10 hour test at a testing center, despite COVID. There are still relatively few sources of MOC, and they're still ridiculously expensive. Looking at the ACP's board review course, nothing has changed in how they approach outpatient Internal Medicine. They treat it as if it were a conglomeration of every medical subspecialty, including Critical Care Medicine, rather than respecting it as Primary Care. So I still have to master and regurgitate irrelevant information when there was an opportunity to educate and test me on Primary Care. Another lost opportunity. I want to see them allow all CME for MOC, but that would break their little monopoly, wouldn't it? I want to choose what information is relevant to my practice. I want to see outpatient Internal Medicine treated as Primary Care and have a suitable test for it. I want to see a series of shorter tests taken at home as an option for re-certification for those who are lapsed. Nobody wants to take a 10 hr test in a testing center, especially with COVID- give me a break! Now I have to choose between getting a job and being exploited again. If we want to see change, I see no other way than to organize and refuse to participate in this exploitive system.

THSpence said...

I played their game for 30 years. I have taken seven exams. Internal medicine, pulmonary medicine, critical care and sleep medicine. Each test becomes more and more irrelevant to my daily practice. Totally a scam.

Anonymous said...

MOC stinks and is more of an incentive for retirement. I got out of medicine at age 64. The hospital/employer was wanting me out as I couldn't work full bore anymore (had prostate CA and survived) and they did pay for my COBRA medical insurance. I have absolutely no beef with my employer whatsoever as they took care of me nicely and they were the one that suggested retirement I gladly took. There were no patient care issues I might add. I went out on top of my game! :-) Doing office work, hospital work and call is not doable in this modern age of EHR SH*T. It's the demise of primary care I tell you.

I have to take care of an autistic spectrum son too. He's doing great though his mother died in 2019 of Radon induced lung cancer. We didn't know that was a problem here where we live and a cigarette never touched her mouth. That made it so much harder to deal with in her death. Abatement is installed so Radon is close to undetectable now. Soooo, I had a lot on my plate to deal with so I got out of medicine.

CME requirements are fine. In the early days I had to send in my certification time that I went to such and such of a Course. I absolutely (being primary care and frugal) hated to spend money so I tried not to go far geographically speaking to a course. This MOC stuff absolutely stinks and is an absolute, useless, money-maker for the dick heads who run the medical boards.

MOC sucks. It's going to always suck and I hope the authorities (ABFM et.al) go to Hades over it.

Kurt Savegnago
ksaves2@sbcglobal.net

RetiringEarly said...

I am triple Board certified with a long history of success taking certification courses and sitting under the stupid certification examinations which more recently are given in tiny cubicles next to high school students taking exams. I am ready to give up the horrible stress of this and quit. I love being a physician. I would be happy to care for patients until my last breath, but the stresses of Board certification are nothing short of sheer misery: why persist? Is it laughable that I am a geriatrician: massive shortage of geriatricians looms over our future. How do we fix that? Force us to certify over and over and over again until we retire 10 or more years early! That should work!

ABFM started this with the notion that "certifying" family physicians would "prove" our worth. This false proposition is a deep and expanding disease that undermines the healthy practice of medicine by adding every sort of stress to physicians. Being a caring capable Family Physician is the fully-sufficient proof. No Board changes that!

We older physicians need to make this better for our younger physician colleagues. This evil encroached on our watch. Bravo to PPA! I just discovered you all, and I am donating. Idea: a class action suit by physicians who quit certifying and lost their jobs might be effective: a suit against the hospitals, the professional liability companies, and other employers. If the payment preference of these entities for Board certification ends, then the masses of physicians can give up this fiasco to spend their energy, time and money caring for patients: healthcare costs will drop and physician shortages will be delayed. In fact, if the Joy of practicing medicine returns, then more will enter the shortage fields.

Any concern about physician burn-out can address "the low-hanging fruit" by ending the Boards; ability to torment us financially, physically, emotionally, and mentally. There is nothing about the Board certification process that improves patient care, but everything about the process that demoralizes us. Forcing an experienced, licensed physician to pay to meet certification requirements atop State licensure is absurd. The CME requirements of State Boards and the pre-selection of physician training for life-long learners are fully sufficient. Board certification has nothing to do with my knowledge or experience. Who ever decided that ethical, capable, residency-trained physicians would stop learning?!! Lives are at stake so that we must know the latest and we must learn sooner than later. We physicians and our patients drive each other to learn. Physicians are colleagues in the best sense of the word, which means sharing information and experiences, teaching each other, participating in journal clubs to share new information, and consulting to learn how best to care for our patients.

The estimated dollars for keeping active certification look low to me. Remember the racket of these Board certifications includes the Board prep courses that are expensive and become mandatory for the testing aspect: practicing physicians have no on-going need to take tests - those skills wane.

Hippocrates would be grieved to see where we are today.
Your information encourages - I hope to learn of a great decision from this court case.

Thank you!