The Courts Speak: Internists to Be Boarded to Death

It is with great sadness and a heavy heart that I must announce that on Thursday this past week, the United States 3rd Circuit Court of Appeals ruled in favor of the American Board of Internal Medicine (ABIM) and upheld the earlier District Court dismissal of the antitrust, racketeering and unjust enrichment lawsuit filed by four internists in December 2018. An attorney for the physician-Plaintiffs issued this statement following the ruling:

"The Plaintiffs are disappointed by the Court’s opinion but not discouraged. They remain committed to bringing an end to Maintenance of Certification (MOC). The ruling was based on a narrow and technical principle of antitrust law: whether ABIM Certification and MOC should be viewed together as a single product. The decision was specifically classified by the Judges as “Not Precedential” – meaning it should not be cited as precedent in other cases.

“It is important to understand that the ruling cannot be viewed as an endorsement of MOC or ABIM’s conduct. Contrary to ABIM’s litigation position, Certification and MOC are not voluntary. As admitted by its own leadership, they are an economic necessity for a successful medical practice.

“Significantly, the decision does not take issue with the many studies documenting the complete absence of any evidence of a causal connection between MOC and improved patient care. There simply is no reason for MOC to exist other than the hundreds of millions of dollars in fees it generates for the ABMS Boards and their management.

“Plaintiffs would also like to take the opportunity to thank the thousands of doctors across all specialties that have joined with them in this struggle. The emails and phone calls of support have been inspirational and demonstrate how deeply unpopular MOC and the ABMS Boards are with rank and file doctors, physicians who actually practice medicine and treat patients outside the corporate medical establishment.

“All remaining options are being considered, including the possibility of seeking a rehearing by the full Third Circuit Court of Appeals.”

The fight against MOC and in support of practicing physicians continues. The wellspring of our inspiration for supporting the Plaintiffs has been the Oath that we both earned and then gave when we became doctors. It might be stifled but it will never be extinguished.

-Wes

ABIM and Its Washington Lobbyists

The American Board of Internal Medicine (ABIM) is a 501(c)(3) non-profit organization that certifies "internists and (medical) subspecialists who demonstrate the knowledge, skills and attitudes essential for excellent patient care." According to the IRS, "In general, no organization may qualify for section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying). A 501(c)(3) organization may engage in some lobbying, but too much lobbying activity risks loss of tax-exempt status."

In April of 2015, Kurt Eichenwald wrote an opinion piece in Newsweek that exposed the ABIM's tax-reporting discrepencies concerning its lobbying activities:

Start with ABIM's Form 990. This is the document a nonprofit organization has to file with the Internal Revenue Service to disclose its activities and prove it deserves tax-free status. In Part IV, which appears on Page 3 of the document, the government asks a simple question on line 4: "Did the organization engage in lobbying activities?" And year after year, ABIM has answered "no."

Unfortunately, the real world answer is "yes." According to the Center for Responsive Politics, from 2009 through 2014, ABIM paid $390,000 to Mehlman Vogel Castagnetti, a lobbying firm. Asked about this, an ABIM representative says it complied with all rules governing IRS filings. Maybe. Yet according to Independent Sector, a prominent organization for nonprofits, the words "lobbying activities" in line 4 includes elements as miniscule as holding strategy meetings to coordinate lobbying with others and time spent preparing arguments to be advanced to government officials. Unless ABIM just wrote a check and never spoke to its lobbyists, it's hard to see how it complied with those standards. (Side note: A random check of seven 501(c)(3)s that paid less than ABIM to lobbying firms showed all of them answered with a "yes" on line 4.)

So what did ABIM spend all this lobbying money on? According to Mehlman Vogel's filings with the government, ABIM's lobbyists provided "strategic advice" on issues related to Obamacare, including "physician quality reporting requirements." And if you haven't guessed yet, what does the ABIM consider "physician quality reporting requirements"? Maintenance of certification (MOC), the program that so many doctors say is worthless—and that ABIM refuses to show has any impact on "physician quality" with independent research or other science-y stuff.

Did the lobbying work? Yup. Under Obamacare, physicians who participated in MOC through 2014 qualified for an incentive payment. The description of MOC is so specific in the law that ABIM and similar groups in ABMS were the only organizations that met the definitions. In other words, in the first few years of Obamacare, the government was paying doctors to pay ABIM and related certification organizations to participate in a program that has never been proven to do squat.

So it should come as no surprise to working physicians that lobbyists have come to the rescue of the ABIM by filing Amicus briefs in support of the ABIM in the lawsuit failed against them by four working internists. One of these lobbying groups is a seasoned veteran of the Washington scene while the other two are relaively new, formed in large part to fight the national physician pushback against Maintenance of Certification (MOC): the American Society Association Executives (1575 I St. NW, Washington, DC), the Institute for Credentialing Excellence (2001 K Street, Washington DC). and the Professional Certification Coalition (formed "to address efforts to enact state legislation that would undermine the activities or recognition of certifications developed or offered by non-governmental, private certification organizations" and actively promoting their work in support of ABIM on their website).

Think there's money in continuous re-certification and lifelong testing of physicians?

You bet.

Will the public ever learn of the extent of lobbying that the ABIM performs to advance their political and economic agendas?

Never.

Unless, of course, the current lawsuit against the ABIM wins its appeal and the case goes to discovery.

-Wes

Is ABIM Ending Its "Knowledge Check-In" MOC® Pathway?

The following (redacted) email was received from Morgan Allen, Customer Relationship Advocate at the American Board of Internal Medicine (ABIM), in response to an ABIM diplomate that was unable register online for their every-two year Knowledge Check-In "continuous" Maintenance of Certification (MOC®) product.

According to this email, it seems the ABIM has decided to end its Knowledge Check-In recertification pathway and only permit its every-10-year high-stakes recertification examination for physicians to remain ABIM Board Certified.

At the time of this writing, I could find no public notification of this policy change on ABIM's website. Once again, working physicians are irresponsibly left uncertain of the latest requirements to remain ABIM Board Certified in good standing.

ABIM has a long history of changing the rules for the names and requirements for physician board recertification/maintenance of certification/continuous certification. But despite the many name and rule changes of this racket, each rebranding becomes more expensive and serves to perpetuate the discrimination against younger physicians and physicians of color from senior "grandfathered" physicians who are not required to purchase these products to retain their ABIM Board Certified status. The Knowledge Check-In recertification pathway was no different from its predecessors in this respect. But the Knowledge Check-In pathway also suffered from a plethora of technical, security, and (undisclosed) privacy issues for physicians. (See my earlier video that critically reviewed this recertification pathway and the people who created it.)

One thing is a constant, however. Ever since the ABIM changed Board certification from a lifetime to time-limited physician marketing accolade, this unproven repeated testing of working physicians remains a career-long psychological and economic stressor that distracts from what matters most: patient care.

-Wes

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

For ABPN: Their Legal Headaches Aren't Over Until They're Over

Today, the first amended class action anti-trust complaint was filed by Drs. Emily Elizabeth Lazarou and Aafaque Akhter against the American Board of Psychiatry and Neurology (ABPN) in the US District Court for the Northern District of Illinois in response to Judge Martha Pacold's 11 Sep 2020 dismissal without prejudice of their earlier complaint. Much of the Amended Complaint is noteworthy, but paragraphs 20 and 21 drive home the true motivation behind Maintenance of Certification (MOC):

20. MOC is not about maintaining standards as ABPN contends. It is a revenue-driven commercial endeavor, motivated by tens of millions of dollars in new MOC fees.  (Emphasis mine) As indicated by the failure of its earlier voluntary CPD product, MOC is financially successful only because it is mandatory and tied to certifications. ABPN’s financial results amply document this. After the launch of MOC, from 2004 through 2018, ABPN’s “Program service revenue” exceeded its total expenses by a yearly average of $4,448,338, as reported in its Forms 990 filed with the Internal Revenue Service (“IRS”). But for its reporting status as a supposed not-for profit organization, this translates into almost $4,500,000 in average annual profits before investment and other income is taken into account.

21. During the same time, ABPN “Net assets or fund balances” skyrocketed over 971%, from $12,610,227 at the beginning of 2004 to $122,470,594 in 2018. In other words, while it took ABPN almost seventy years to accumulate net assets (assets less liabilities) of $12,610,227 from selling certifications, ABPN net assets increased almost ten-fold to $122,470,594 as a result of selling MOC, including $97,169,079 in cash, savings, and securities on hand at year-end 2018. (Emphasis mine)

The Amended Complaint filed today greatly simplifies the case for a better understanding by the judge: the extortion of US physicians for an unproven and falsely marketed educational product must end.

-Wes

Thanks to All!

As treasurer of Practicing Physicians of America, it gives me great pleasure to announce that we hit our goal of raising $400,000 in support of the Plaintiff-physicians who filed class action antitrust lawsuits against the American Board of Internal Medicine, American Board of Radiology, and the American Board of Psychiatry and Neurology.

Over 1,800 individuals, the vast majority of whom are working US physicians from a diverse range of subspecialties, contributed to this effort. These contributions were truly voluntary and made by people who felt strongly that the monopoly power these organizations unjustifiably enjoy over us needed to be held accountable for the harms (economically, emotionally, and professionally) they are causing to working physicians and our profession. This milestone proves that physicians can still do incredible things when they put aside their differences and work together.

While the results of the multi-year legal effort remain uncertain, many beneficial results have already occurred. But we should acknowledge that nearly 40% of our contributions were anonymous donations owing to the threat many physicians still feel from these organizations at their workplace. Simply put: our work is not done.

While there is still much to do in this David vs. Goliath effort, on behalf of all of us at Practicing Physicians of America,  thanks to all of our contributors for a job well done.

Westby G. Fisher, MD
Treasurer, Practicing Physicians of America and
Organizer of this legal-support GoFundMe campaign

P.S. Further updates regarding the status of these class action anti-trust cases will continue. Physicians still wanting to contribute are encouraged to do so.

ABIM Stumbles in Appellate Court Arguments

The oral arguments in the appeal of the dismissal at the District Court level of the Kenney et al vs American Board of Internal Medicine (ABIM) class action antitrust, RICO, and unjust enrichment case were heard before the 3rd Circuit Court of Appeals today and are available via audio file here. The following interchange starting at 32:58 in the audio file was interesting (I have added a few personal comments/thoughts in italics):

Judge: "Could I just ask the 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? Isn't the feasibility of practicing without certification ultimately a question of fact?"

ABIM Attorney: "I think you can first look to, um, look to the facts in this case. For instance, Dr. Manolo who, 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. (Comment: It also shows there are two products). So I think that is one way you can look at it. I think you can also look at it in the way that the Second Circuit indicated in the Smugglers Notch Homeowner's case which is a case where, which looked at, when you're entering in to the transaction and you know that, in fact, you're that going to be required, there are certain components, parts, of that entire transaction, and you know that up front, and you voluntarily nonetheless enter into that contract, that there is no forcing." 

Judge: "But counselor, what I'm talking about is it might not be so voluntary - 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 more appropriate for summary judgement?"

ABIM Attorney: "Um, 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? At the time of the initial purchase here ABIM had a program for certification and aspects of that program were initially passing the initial board certification exam and that that certification would expire after a set period of time - ten years - without unless 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, um, and that was the periodic demonstration of knowledge."

Judge: "But I suppose that the most basic form of your argument is, they don't have to go through ABIM to practice." 

ABIM Attorney: "Yes, your Honor. 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. Um, you only need a license in your state, um, 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. (As I have said all along, board certification is actually little more than a marketing accolade.) 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."

Judge: "But 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, the allegations, don't they say, a lot of places won't let you practice, your malpractice rates are going to go higher, reimbursement's 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?"

ABIM Attorney: "Well. well many, I would submit many internists do, in fact, practice medicine, um, without ABIM certification and there are many things that might affect how much you are paid, what your admitting privileges are - things like where you attended medical school and many other factors. (Comment: And if you believe this, I have some ocean-front property to sell you in Arizona). But it really comes back to, you know, what is at issue in this case and whether, in fact, there is a tying claim and whether or not there is, um, one product or two products and that really goes back to the Supreme Court test in Jefferson Parish about the character of demand and whether there is demand for the tied product in absence of the typing product.  And here, the Appellants want to hold themselves out as being "board certified." There is no separate demand for the tied product in the absence of the tying product. And that is something I think is, is something that, you know, the Court in Jefferson Parish makes clear. Justice O'Connor when she expands on the words in that saying that for products to be treated as distinct, the tied product must, at a minimum, be one that consumers might wish to purchase separately without also purchasing the tying product. And here's.. there's simply... there are no allegations of fact sufficient to move this case along to make a plausible case that there are, in fact, two products here because there is no consumers, there are no allegations showing there is demand to purchase the tied product without also tying the tying product." (Comment: OMG, Seriously?)

Judge: "Alright, thank you counsel."

The judges asked the right questions. Now we have to wait to see if this case is sent back to the District Court for discovery.

I will have additional comments about other aspects of these oral arguments in the days ahead.

-Wes

P.S.: MedpageToday covered the story as well here.

PPS: If you'd like to help the plaintiff's along their lengthy legal quest to improve the lot for all US physicians regarding MOC, please contribute to the GoFundMe page sponsored by Practicing Physicians of America.