PracticingPhysicians

November 3, 2024November 3, 2024

Latest Updates on MOC Antitrust Lawsuit Appeal

Following dismissal of their antitrust lawsuit against the American Board of Psychiatry and Neurology (ABPN) regarding Maintenance of Certification (MOC) in May 2024, Emily Elizabeth Lazarou, MD and Aafaque Akhter, MD appealed their case to the United States Court of Appeals for the Seventh Circuit. What follows is an artificial intelligence-generated review of where that appeal stands, using an Adobe AI Assistant to simplify understanding of the arguments pleaded so far by both sides.

The issue statement in the appeal brief filed by the plaintiffs is:

“Whether the District Court erred in dismissing Plaintiffs’ tying claims when it found Plaintiffs failed to plausibly allege that Defendant-Appellee American Board of Psychiatry and Neurology’s (“ABPN”) maintenance of certification (“MOC”) product is a continuing medical education (“CME”) product.”

The main arguments presented by the plaintiffs are:

MOC as a CME Product: The plaintiffs argue that the Maintenance of Certification (MOC) product offered by the American Board of Psychiatry and Neurology (ABPN) is a Continuing Medical Education (CME) product. They claim that MOC contains educational content, provides CME credits for state licensure, and is not redundant of other CME requirements.
Substitutability of MOC: The plaintiffs assert that MOC is a substitute for other CME products. They argue that doctors use MOC to meet state CME licensure requirements, and that MOC provides CME credits directly through the AMA and is accepted by many states in place of CME requirements.
Antitrust Standing: The plaintiffs claim they have antitrust standing because they are directly affected by the alleged tying arrangement. They argue that the tying of MOC to initial certification by ABPN restricts competition in the CME market, forcing doctors to purchase MOC instead of other CME products.
Economic Impact: The plaintiffs allege that ABPN’s tying arrangement has led to a significant increase in MOC revenue and a decline in the number of CME providers, indicating a substantial foreclosure of competition in the CME market.
Request for Leave to Amend: If the court finds that specific evidentiary details about individual state CME requirements should have been included in the complaint, the plaintiffs request leave to amend the complaint to provide such details.
Reinstatement of Unjust Enrichment Claim: The plaintiffs argue that upon reinstatement of their Sherman Act claims, their unjust enrichment claim should also be reinstated, as it is related to the same set of facts and legal issues.

The American Board of Psychiatry and Neurology (ABPN) responded with several key arguments to support the dismissal of the plaintiffs’ case:

Stare Decisis: ABPN argues that the doctrine of stare decisis, which mandates adherence to previous court decisions, forecloses this suit. The case at hand is materially identical to the Siva v. American Board of Radiology case, which was dismissed by the Seventh Circuit. Therefore, the same reasoning should apply, and the dismissal should be upheld.
False Equivalence: ABPN contends that the plaintiffs’ legal theory is based on a logical fallacy of false equivalence. The plaintiffs incorrectly equate the Maintenance of Certification (MOC) program with Continuing Medical Education (CME) products. MOC is a comprehensive program with multiple requirements, not just a collection of CME credits. Therefore, MOC cannot be considered a substitute for CME products.
Lack of Substitution: ABPN argues that MOC is not a substitute for CMEs. The plaintiffs fail to plausibly allege cross-price elasticity, which would show that MOC and CMEs are reasonably interchangeable in the minds of relevant consumers. Additionally, MOC is not required for state licensure, and many states prohibit considering MOC for licensure maintenance.
No Financial Interest in CME Products: ABPN highlights that it has no financial interest in any accredited CME products. The MOC program requires diplomates to purchase CME products from other providers, and ABPN does not produce or have a financial stake in these products.
Lack of Coercion or Force: ABPN asserts that the plaintiffs have not plausibly alleged actual coercion or force. The adverse consequences of not maintaining board certification are imposed by third parties, such as hospitals and insurance companies, not by ABPN itself. Therefore, there is no illegal tying.
Non-Competitor in CME Market: ABPN argues that it is not a competitor in the CME market. The plaintiffs’ own contentions that MOC is effectively useless and not valued by physicians confirm that MOC does not compete on the merits in the CME market.
Denial of Leave to Amend: ABPN contends that the district court did not abuse its discretion in refusing to allow the plaintiffs to file a fourth complaint. The plaintiffs had multiple opportunities to state a claim and failed to do so. The district court provided a reasonable explanation for the dismissal with prejudice.

In summary, ABPN’s arguments focus on the application of stare decisis, the logical fallacy in the plaintiffs’ claims, the lack of substitution and financial interest, the absence of coercion, and the non-competitive nature of MOC in the CME market. These points collectively support the dismissal of the plaintiffs’ case.

The subsequent reply brief by the Plaintiffs to ABPN’s arguments explains that the doctrine of stare decisis is inapplicable in this case because the Second Amended Complaint (SAC) contains substantial new factual allegations that address specific concerns raised in the prior decision, Siva v. American Board of Radiology. The brief argues that stare decisis applies only to legal determinations made in prior precedential opinions and does not apply to issues of fact or new information that were not part of the previous decision. The brief cites several cases to support this argument, emphasizing that stare decisis is limited to legal issues actually decided in a prior action and does not extend to different facts or new records. The brief also distinguishes the current case from the Third Circuit’s non-precedential Kenney opinion, noting that the SAC includes new allegations not considered in Kenney and that Kenney’s analysis was contrary to the Seventh Circuit’s holding in Viamedia v Comcast (7^th Cir 2020).

The reply brief outlines several new factual allegations included in the Second Amended Complaint (SAC) that address the concerns raised in the prior decision, Siva v. American Board of Radiology. These new allegations are:

Educational Content: The SAC alleges that Maintenance of Certification (MOC) has educational content, which was not sufficiently detailed in the previous complaint.
CME Credit: The SAC includes allegations that doctors can earn Continuing Medical Education (CME) credits from MOC, which can be used for state licensure requirements.
Non-Redundancy: The SAC asserts that MOC is not redundant of other CME requirements, addressing the concern that MOC simply imposes a redundant obligation to buy other CME products.
Substitutability: The SAC provides detailed allegations showing that MOC is a substitute for other CME products, including that doctors view MOC and other CME products interchangeably and that MOC serves the same purpose as other CME products.
Market Demand: The SAC includes allegations that MOC and other CME products are reasonably interchangeable in the minds of relevant consumers, permitting an inference of cross-price elasticity between MOC and other CME offerings.
State Acceptance: The SAC details how many states accept MOC in full or partial satisfaction of CME requirements for licensure, and that MOC can be used to meet state CME requirements.
Economic Impact: The SAC alleges that the number of accredited providers of continuing medical education has declined significantly since the advent of MOC, indicating a substantial foreclosure of competition in the CME market.

These new allegations aim to address the deficiencies identified in the Siva decision and provide a more robust basis for the plaintiffs’ claims. The new factual allegations are significant for several reasons:

Addressing Pleading Deficiencies: The new allegations directly address the deficiencies identified in the prior decision, Siva v. American Board of Radiology. By including detailed facts about the educational content of MOC, the ability to earn CME credits from MOC, and the non-redundancy of MOC with other CME requirements, the plaintiffs aim to meet the pleading standards required to survive a motion to dismiss.
Establishing Substitutability: The new allegations provide a basis for arguing that MOC is a substitute for other CME products. This is crucial for establishing that MOC and other CME products are part of the same relevant product market, which is necessary for the plaintiffs’ tying claim.
Demonstrating Market Impact: By alleging that MOC has led to a significant decline in the number of accredited CME providers and that MOC is accepted by many states for licensure requirements, the plaintiffs aim to show that MOC has a substantial impact on the CME market. This supports their argument that ABPN’s practices have anticompetitive effects.
Countering Stare Decisis: The new factual allegations help to counter the defendant’s argument that the doctrine of stare decisis should apply. By presenting new and specific facts that were not considered in the previous case, the plaintiffs argue that the current case is materially different and should not be bound by the prior decision.
Supporting Economic Realities: The allegations about the economic necessity of certification for hospital privileges, insurance, and employment help to explain why ABPN’s conditioning of certification on the purchase of MOC constrains doctors’ choices. This supports the plaintiffs’ claim of “forcing” in the context of an illegal tying arrangement.

Overall, the new factual allegations strengthen the plaintiffs’ case by providing a more detailed and robust foundation for their claims, addressing the concerns raised in the prior decision, and demonstrating the anticompetitive impact of ABPN’s practices.

The ABPN still has on opportunity to respond the plaintiff’s reply brief before the case goes to oral arguments.

According to the court docket, oral arguments will occur sometime after 12 Dec 2024 when the Plaintiff’s attorney is available. We hope to update US physicians when those arguments are scheduled.

Contributions to support these updates and the legal effort underway to end MOC’s stranglehold on US physicians are still being accepted. Please give generously to our ongoing GoFundMe campaign.

July 10, 2024July 10, 2024

Challenging ABPN’s MOC Monopoly: Judge’s Decision and Potential Appeal

On May 13, 2024, Judge Jeremy C. Daniel of the Seventh District Federal Court dismissed the Second Amended Complaint (SAC) in the Lazarou v American Board of Psychiatry and Neurology (1:19-cv-01614) anti-trust case regarding ABPN’s Maintenance of Certification (MOC) monopoly. Despite the SAC demonstrating MOC’s interchangeability and substitution for CME, competitive disadvantage of physicians forced to purchase MOC products before they purchase CME products, a significant financial stake afforded to ABPN by MOC, and the market decline of CME products since MOC was instituted, the judge felt MOC and CME were NOT interchangeable and MOC and initial certification were NOT separate products, but one product, ABPN board certification.

But the Seventh Circuit Court previously rejected ABPN’s post-tie argument about MOC’s “integration” with certification in Siva v Am Board of Radiology (7th Cir. 2022). (“In reaching the conclusion that certification and MOC were a single product in part because of the degree of ‘integration’ between the two, the district court improperly approached the analysis from a post-tie perspective.”)

Given this and the other evidence provided by the SAC, Judge Daniel’s opinion might collapse at the Appellate court level. Still, the ABPN will have the collective legal resources of the entire ACGME member organizations (AHA, AMA, ABMS, among others) at their disposal to defend the ABPN.

After reviewing the decision with their attorney’s, both Plaintiffs in the case against ABPN have decided to press forward and appeal Judge Daniel’s decision. That appeal should be filed by late August of this year.

Working US physicians are not quitters. We have worked hard for our right to work on behalf of patients who trust us with their lives. We don’t give up when the going gets tough and the clearly worded Second Amended Complaint is nullified by one judge who does not understand the financial, personal, and healthcare marketplace harms created by changing the once lifetime US board certification into time-limited, “continuous” board certification with MOC’s specialty-wide implementation in 1990.

Since its inception, the ABMS MOC program has not taught us how to keep up with our fields of medicine any better than self-selected ACCME-accredited CME. Instead, MOC has taught us that discrimination and strongman tactics against younger, more vulnerable physicians are fine, that conflicts of interest (both financial and political) are to be tolerated, and strongman tactics (like threats to employment to force payments to these unelected non-profit entities) are incredibly lucrative.

Now, more than ever, physicians must unite and act collectively to end the annual ABMS MOC extortion of working physicians. No individual or subspecialty organization will do this for us.

For the good of our profession and all those working physicians who come after us, please give generously to help support these the physician Plaintiffs trying to end the ABMS’s monopoly on Maintenance of Certification.

Wes Fisher, MD

Practicing Physicians of America

March 18, 2024March 18, 2024

Does MOC Pose a Threat to the CME Market for Physicians?

On Friday, the Plaintiffs Opposition to Dismiss the Second Amended Complaint (SAC) in the class action antitrust case against the American Board of Psychiatry and Neurology (ABPN) dropped. Here’s a summary of the document for US physicians:

MOC (Maintenance of Certification) poses a threat to competition in the CME (Continuing Medical Education) market for several reasons:

Interchangeability and Substitution: MOC is both interchangeable with and a substitute for other accredited CME products used for State licensure purposes. Doctors can earn Category 1 CME credits for MOC through the AMA “direct credit” process, separate from other CME products. This means that doctors can use MOC to fulfill their state CME obligations instead of purchasing different CME products from other vendors. This interchangeability and substitution of MOC for other CME products demonstrates that MOC competes in the CME market.
Financial Stake: ABPN (American Board of Psychiatry and Neurology) has a substantial financial stake in MOC. ABPN requires doctors to pay an annual MOC fee, and the revenue from MOC has increased significantly over the years. This financial stake indicates that MOC is an important revenue source for ABPN and further supports the notion that MOC is a competitor in the CME market.
Competitive Disadvantage: The SAC (Second Amended Complaint) alleges that doctors buy fewer CME products from other vendors because of the illegal tie imposed by ABPN. This means that other CME vendors are at a competitive disadvantage because doctors are purchasing MOC instead of their products. This competitive disadvantage further demonstrates that MOC poses a threat to competition in the CME market.
Market Decline: The SAC also alleges that the number of accredited providers of continuing medical education has declined almost 40% since the advent of MOC. (emphasis added) This decline in the number of providers indicates that MOC has had an impact on the CME market and has potentially limited competition.(“Since the advent of MOC … according tot eh ACCME, the number of accredited providers of continuing medical education has declined almost 40% from 2322 to 1414.”)

Overall, the allegations in the SAC show that MOC competes in the CME market and poses a threat to competition. The interchangeability and substitution of MOC for other CME products, ABPN’s financial stake in MOC, the competitive disadvantage faced by other CME vendors, and the decline in the number of providers all contribute to the argument that MOC poses a threat to competition in the CME market.

It remains to be seen how the judge will view these arguments, but the threat to the ABMS MOC program’s viability based on US antitrust law appear larger than ever.

February 5, 2024February 5, 2024

JAMA: Pushing the Value of MOC to Industry

Today, an article from the leadership of the American Board of Internal Medicine (ABIM) appeared in the Journal of the American Medical Association (JAMA) defending the value of Maintenance of Certification (MOC). The article was not published there for physicians. It was published with its false claims and reassuring tones for the insurance, hospital, and physician data-mining industries. Drs Boswell, Johnson and Jalin are senior officers on the Board of Directors at the ABIM and receive an honoraria for their service as salespeople for the health care data collection complex. That’s because MOC is all about the data on physicians the AMA, ABMS, and ABIM sell. And sell they do: releasing this puff piece on MOC to the press before publication to assure the widest possible distribution of the talking points from the AMA, ABIM and the American Board of Medical Specialties (ABMS). This distribution to the press helps improve the lucrative data sales at the for-profit subsidiary of ABMS, ABMS Solutions LLC in Atlanta, GA and on the AMA’s physician masterfile.

Just like the Presidents of Harvard and the Massachusetts Institute of Technology, these members of the ABIM leadership appear satisfied with the caliber of their so-called “growing body of evidence” published by Washington DC think tanks and veterinarians in their peer-reviewed cohort studies. They note the “adjusted statistical analyses” of these studies that has shown the “patients who are cared for by physicians who demonstrate more medical knowledge through certification and MOC have better prognosis for a host of better outcomes” while knowing full well that these data are cherry-picked to improve data sales. While they might not be aware, these authors are bought and paid for my industry. They get advanced at their workplaces for promulgating lies about the value of MOC and its value to things like diversity, equity and inclusion when they are likely achieving exactly the opposite by removing fed up front-line physicians from the workforce for the very patients they claim to support. Experienced physicians know better than to put up with forced compliance of unproven MOC mandates and ridiculous forced payments required by these unelected and carefully chosen corporate drones paid to promote AMA and AMBS data sales.

If you believe these “studies” are credible, drill down and look at who writes them – most are ABIM of ABMS member board authors or industry sycophants. Here’s a detailed critical review of a good portion of the ABIM’s “body of evidence.” And regarding the ABIM’s “platinum” financial rating of non-profits on Candid (formerly Guidestar)? You can get the same rating for your non-profit if you pay them a fee, too.

That’s why working physicians can’t even determine how many MOC points they have or the amount they owe to the ABIM or other ABMS member board until they complete the data entry on their practice characteristics before they gain access to the various ABMS member board “physician portals” to pay their fees or sign up for MOC exercises. It’s all about the data, remember? That’s why the AMA and ABMS member boards won’t play nice with competing boards like the National Board of Physicians and Surgeons (NBPAS.org) who don’t demand we enter this data.

It is interesting that the authors fail to mention the class action antitrust lawsuit filed against their organization, as if it never happened. Perhaps they feel smug that they will prevail in the courts. For now, that may be true. But a new generation of physicians and new antitrust lawsuits are taking up the charge against MOC, and its just a matter of time before MOC is truly self-regulated by a band of honest physicians who want what’s best for their patients and not for those who stand to profit from the rigged medical system for their own largess. If this doesn’t happen, its just a matter of time before patients rise up because they’ll find it difficult to have a US-trained physician available to provide their care any more.

January 18, 2024January 19, 2024

Could 2024 Decide the Fate of Maintenance of Certification?

Since December 2018, Practicing Physicians of America has supported multiple plaintiffs who have filed class action antitrust lawsuits against member boards of the American Board of Medical Specialties (ABMS). The reason for this was quite simple: until 1990, board certification was a lifetime, entirely voluntary, medical accolade. After that time, ABMS board certification became “time-limited” and required ongoing payments to “maintain” one or more board certifications that were increasingly required by insurers and hospitals for physicians to practice medicine. As such, there is now forcing of lifelong physician payments to the various AMBS member boards without any independent credible evidence Maintenance of Certification improves patient care quality or safety.

Why was time-limited board certification really started? Because it was purely a “political decision” according to Richard Baron, MD, President and CEO of the largest ABMS member board, the American Board of Internal Medicine (ABIM). There was no other reason for its implementation; it benefitted the entire network of non-profit organizations that comprise physician self-regulation, including the AMA, ABMS, ACGME, the ACCME, AHA, and CMSS (Committee for Medical Specialty Societies). It was a decision imposed only on younger, more vulnerable physicians while exempting senior physicians certified before 1990. The boards needed money to fund their salaries and operations, not to assure “the public” physicians were keeping up with their fields as the ABIM implied at the time. (Physicians already had to provide their states proof of continuing education for their state licensure using self-selected educational credits.)

Board certification has proven remarkably lucrative for the ABMS member boards. Even tiny boards like the American Board of Psychiatry and Neurology (ABPN) have amassed over $172 million in assets and equities while showering their president and CEO over a whopping $2.8 million in a single year, $1.9 million of which was a “bonus.” In fact, according to its Forms 990, ABPN reported net assets of $12,610,227 before the launch of MOC in 2004. In other words, it took ABPN almost seventy years to generate net assets of $12,610,227 from selling certifications. In the twenty years since ABPN began forcing doctors to buy MOC, its net assets have skyrocketed 1,344 percent to $169,554,844 in 2022, including more than $140,000,000 in holdings in cash, savings, and securities at year-end 2022. Most of the over $155,000,000 increase in net assets is attributable to MOC fees charged to psychiatrists and doctors.

A QUICK REVIEW OF THE LEGAL BATTLE AGAINST MOC

But the road to legal reckoning has not been a kind one for physicians who have attempted to sue various member boards of the ABMS. At every turn, judges have managed to find legal escape hatches for the ABMS member boards to avoid having the cases heard in court. Physicians who filed complaints were ridiculed by some and urged to drop appeals. This was especially true for the four plaintiffs who filed the first class action antitrust case against the American Board of Internal Medicine in the Third District Federal Court in Philadelphia in December, 2018 and amended in January 2019. A senior judge and Reagan appointee who was deciding the last case of his career was appointed the case. (Bad news for physicians but good news for hospitals and insurance companies.) As expected, he ruled that MOC and initial board certification were not separate products, implying there was no grounds to proceed with the case and setting a precedent for all cases decided later.

Next up was the class action antitrust lawsuit filed against the American Board of Radiology (ABR) on behalf of all US radiologists in the 7th District Federal Court in Chicago. Not surprisingly, the District judge relied heavily on the precedent set by the 3rd Circuit in Pennsylvania and dismissed the suit against the ABR. But his suit was appealed. Importantly, the three judge panel at the Appellate Court level did establish that initial certification and Maintenance of Certification were separate products. Nonetheless, the appeals court upheld the dismissal of plaintiff’s claims because it did not feel MOC was a substitute for other continuous professional development (CPD) products. This argument was new and had not been addressed before by either the lower court or the parties.

Which leads us to the last class action case to be decided: the case against the American Board of Psychiatry and Neurology. This case was also filed in the Seventh District Federal Court in Chicago and continues to winds its way through legal proceedings. The lower court recently requested that the parties file a brief addressing the impact of the ABR Appellate Court opinion. Plaintiffs explained how the Plaintiff in the ABR case had found certification and MOC to be separate products, and described in detail how MOC was indeed a CPD product, and that MOC and other CPD products are interchangeable with each other, but the court was not convinced and dismissed the case with prejudice, but offered the Plaintiff a final chance to file an amended complaint to prove otherwise. That second amended complaint was recently filed 15 Dec 2023.

To economists and antitrust experts, the second amended complaint against ABPN is compelling. But physicians are not having to prove their case to economists and antitrust experts. They are trying to convince one judge that fully understands the implications of this decision and how it would disrupt the entire medical self-regulatory market valued at an estimated annual $1 trillion. The ABPN has until late February to file their counter-arguments. We can expect the judge to render his ruling several months later.

SO WHAT IS MOST LIKELY TO OCCUR?

Given the implications of his ruling and the prior legal decisions already rendered, finding a legal loophole to dismiss the second amended complaint against ABPN remains the most likely outcome. But sometimes, just maybe, the judge could rule there might be a lucrative medical antitrust monopoly and side with the Plaintiffs. If so, doctors may finally get their day in court to argue their case before a jury if the judge decides the case against ABPN has merit. If not, the bureaucratic physician self-regulators in America will prevail and the quiet exit of experienced more senior clinical physicians who understand the ruse will continue.

Sadly, it is becoming increasingly evident that keeping physicians from expressing their concerns regarding MOC is the intended endgame for corporate medicine. Replacing experienced physicians with a lesser-experienced workforce is clearly economically cheaper. Artificial intelligence is being promoted over experience in medicine. Those physicians who remain behind will be left no choice but to march lockstep with their corporate overlords at the expense of their patients.