After a nearly five-year effort, I regret to inform each of you that our battle to end the anti-competitive conduct of American Board of Medical Specialties (ABMS) regarding Maintenance of (Board) Certification (MOC) was unsuccessful. The rehearing petition and rehearing en banc in the case against the American Board of Psychiatry and Neurology was denied by the Seventh Circuit Court of Appeals in Chicago. We at Practicing Physicians of America (PPA) thank the plaintiff physicians who devoted significant time to assist in this legal effort. We hope our supporters have gratitude for the brave physicians who stood against the corporatization and profiteering within our own house of medicine.
After filing three separate antitrust lawsuits over the past five years and satisfying all legal requirements to move our case to trial, the Seventh Circuit Court of Appeals (based in Chicago) “moved the (antitrust) goalposts” (quoting the dissenting judge in the 2:1 split decision) for physicians to prove liability and have their day in court. In retrospect, the fact these cases were lost in Chicago, home of the American Medical Association, American Board of Medical Specialties, the American Hospital Association, and the Accreditation Council on Graduate Medical Education is lost on no one. Unfortunately, the implications of this decision on all US physicians nationwide are far-reaching.
Nearly 3000 US physicians contributed nearly half a million dollars to Practicing Physicians of America’s GoFundMe to raise funds for the plaintiffs in these legal trials against MOC (many donated more than once). The leadership at PPA and the plaintiffs in these cases are forever grateful. In addition, the law firm of Robinson Curley, LLC worked tirelessly on behalf of all working US physicians, filing these lawsuits (two of which went to appeal) against various AMBS member boards. I asked the lead attorney, Mr. Philip Curley, to share his comments on his thoughts from a legal standpoint on this effort. He graciously accepted and I include his thoughts below.
Our legal theory was simple: ABMS and the specialty Boards in an attempt “to corner” the CME market, illegally tied MOC to certifications by forcing doctors to buy MOC or forfeit their certifications. Seven different judges and courts, however, offered multiple reasons to deny doctors their day in court. First, they theorized that MOC and certifications were, in fact, the same and, thus, could not be tied. When this was overturned on appeal, they shifted gears claiming that MOC could not cause competitive injury because it did not offer CME credits. Of course, this was also a non-starter because doctors do earn CME credits for MOC.
Confronted with this reality, the final justification offered for dismissing our claim was that because MOC (supposedly) cost more than other CME products it was not truly in competition with those other CME products. There was, however, absolutely no evidence to support this new cost-based contention. Worse, the Judges ignored our argument that even assuming MOC was more expensive, the very nature of an illegal tie is that consumers (doctors) are forced to buy an overpriced tied product (MOC) because the seller (the specialty Boards) has market power in the tied product (certifications), shown here by their forfeiture of certifications of doctors who do not buy MOC.
While the outcome is highly disappointing, at least some good has come out of the struggle. The mandatory intensive, high-stakes ten-year MOC examination is a thing of the past (unless one chooses). In its place is a combination of so-called longitudinal quizzes specifically designed to ensure that few, if any, doctors fail. But do these dumbed-down MOC requirements really “certify” anything? What has not changed is the excessive MOC fees that have resulted in many hundreds of millions of dollars being taken out of doctors’ pockets, now sitting unused in the bank accounts of the specialty Boards.
What does the future hold? The power of ABMS and the specialty Boards over doctors will only increase. Since 2005 when the Boards began selling MOC through 2023, the number of accredited CME providers has declined almost forty percent. Soon, ABMS and the specialty Boards will fully control state licensure through MOC, to go along with the control they already exercise over insurance, hospital and admitting privileges, and other aspects of the practice of medicine. With legal redress no longer an option, perhaps the only avenue left for doctors is to assert their collective strength directly with the Boards by participating more actively in their governance and policymaking processes.
Due to the economic concentration over the last twenty years resulting from venture capital firms and other “investors” most doctors have had control of their own profession taken away. They are now wage earners with little say in how they practice. This is likely a major reason why many doctors are retiring early. There is a critical shortage of doctors, and even fewer persons who aspire to someday join the profession. I fear the failure of the Courts to allow us to challenge ABMS, the specialty Boards, and MOC will only accelerate these trends. I hope I am proved wrong.
What Now?
Practicing Physicians of America would encourage all physicians to join and support the National Board of Physicians and Surgeons, the only organization that allows physician self-selected CME to maintain their original ABMS board certifications. Moving forward, advocating that hospital organizations Medical Executive Committees recognize and insist that the National Board of Physicians and Surgeons (NBPAS) be recognized as a credible alternative to ABMS MOC in ALL hospital systems nationwide.
Westby G. Fisher, MD
Co-founder, Practicing Physicians of America
Never give up. Recently certified by the NBPAS, it’s the best thing I have ever done…for my own well being.
Thank you for the effort. Please make this shareable.
Are you planning to petition for a Writ of Certiorari? Longshot, but that would be more powerful as it would have nationwide implications… Not that having the circuit court in the area these organizations are based wouldn’t be a blow.
But the biggest offender, the ABIM in Philly, so…
Our attorneys did not think this Supreme Court was favorable to our cause and certainly not on pleading grounds. Hence, no Supreme Court referral will be made since it was not felt it was likely to reverse this decision.
Were any of the judges asked or challenged about analagous MOC. Would they tolerate, in order to keep working, paying large fees and a requirement to PASS THE BAR AGAIN every 6-10 years?
Why not appeal up to the Supreme Court?
I’d like to know this also
See above.
Thanks to Wes Fisher and others for devoting so much of their own money time and passion over these many years. The concept is sound but very powerful forces to fight
How do we join the national board of physicians and surgeons?
Are any fees associated with joining the national board of physicians and surgeons?
Go to their website; it’s simple and inexpensive AND MAINLY, it has reasonable CME policy. The only problem has been that many institutions/organizations only recognize the ABMS: When I was attempting to go to work for the VA, after 20 years of ABMS board certification in psychiatry up until I dropped that to join NBPAS, I could only apply as board certified. Got the job, though.
NBPAS was started by physicians who are equally disgusted with ABMS.
2023: Required for NBPAS Board Certification:
Previous board certification through ABMS or AOA required, no exceptions.
Active and unrestricted U.S. medical license
50 hours of ACCME accredited AMA PRA Category 1 CME™ every 24 months (100 hours if ABMS/AOA certification has lapsed)
$189 for 2 years! (Fellow and military discounts available)
Our institutions also only accept ABMS
Very grateful to PPA and the leadership for taking MOC And challenging them.
How about insurances? Do they recognize NB PAS?
A great effort even though ultimately it was not successful. MOC is a joke (think PIP), and privately, most physicians would acknowledge it.
This may be off the cuff but why dont we just stop getting board certified in the first place. Then maybe it won’t be a requirement for all the other BS that’s been imposed upon physicians since the creation of board certification. And here I thought 4 years of schooling, 3 board exams, a medical degree and countless hours of training qualified us to “practice” medicine.
Physicians have been the lame duck for far too long allowing administration after administration impose their will (aka financial greed) upon us. AMA, AHA, Insurance industry, APPs, nursing unions and now private equity, Take your pick we’ve always been on the losing side.
This ruling is just another example, but not for lack of trying.
Unfortunately we may have already been checkmated. Hospitals require board certification for privileges, and most of them only recognize ABMS boards. insurance companies, even if they do not demand board certification, will require hospital privileges before giving a contract. So there you are. The Lynch pin in all of this is Hosp. privileges. What we need are more physician advocates “on the inside”, Working with Hosp. boards to advocate for expanding their definition of acceptable board certification. One of the most instructive things a physician can look at is the 2016 debate between Dr. Paul Tierstein (NBPAS) and Dr Nora (ABIM) At the annual California medical Association conference. This is available on YouTube. Dr. Tierstein very clearly lays out the interconnections between the American Board of internal medicine, the American Board of medical specialties, and the NCQA (which surprisingly, turns out to be a private business). He also shares data showing that MOC exams did not resolve in “a higher quality” physician. Viewed side-by-side, these two elements of his Presentation paint a picture of apparent collusion with a financial interest at its heart.
Possibly a good idea. The other big problem now is *everybody* seems to be “Board Certified” – from the Chief of Neurosurgery all the way down to housekeeping, or so it would seem. Used to be a term reserved solely for physicians. But alas, I suppose that went away when we became “providers.”
No kidding! i have noticed the acceleration of this trend to the point Board Certification means nothing. NPs can be certified in umpteen specialties. Social workers and psychologists list numerous certifications after their degrees, not to mention pharmacists, nutritionists. physical therapists and i could go on… what is the point? Everyone is Dr.
So glad I am near retirement.
Couldn’t agree more. If physicians work as a group all of this is irrelevant.
Form a union and boycott the specialty boards and bring them to their knees. There is physician shortage in every specialty. Fighting them as individuals has no chance of succeeding.
Retired to honor my integrity. That was all I had left within my control.
I think the issue is also with insurance companies – many require ABMS certification to receive payments. Which is likely why many hospitals require ABMS certification – so they can get paid. It puts us docs in a very difficult situation. Play inside the existing power structure, or go outside it and have additional struggle just to get paid, or practice at all.
Am I to understand that there was never a jury trial ?
Al Fisher
Correct. Physicians never had their day in court. The cases were all decided by judges, not juries of our peers.
Isn’t there a potential antitrust lawsuit that would result from hospitals and insurance companies not accepting certification from competing boards like the NBPAS?
This is a fact: This is likely a major reason why many doctors are retiring early. So many mid age fellow physicians have a deadline to when they will stop working, and it is often tied to when their next cycle of MOC will expire. Even if they have not hit age 65.
I’m going to retire from private practice at age 62 in part because of the ridiculous MOC requirements. ABOG has changed the name to Continuing Certification (CC) and dumbed down the quizzes but it is still a waste of time and money. Ironically I may be forced to go through all the crap one more time so I can do some locums work. I’ve learned to accept it just as I have learned to accept that EPIC will never fail to warn me about something stupid every single time I put in orders.
SP
As somebody told Medicine has to decide what kind of Continuous Medical Education physicians need. The medical profession is hijacked. We should not take it. Hospitals can not function without physicians. If refusal to MOC by physicians is universal the Hospitals… will be forced to waive MOC requirement. Physicians have to show who are the bosses. MOC preparation is not a way to learn medicine, it is damaging medicine. Atleast in the interest of Medicine, we physicians have to act
Thanks to all those who participated and funded this effort. It was a worthy cause. We can only hope and pray that a door will open in the future to another opportunity to change this unfair and unacceptable situation.
I currently tell recent Med School graduates to put away their diploma and buy a hard hat and lunch pail.
NBPAS. Do it.
The BIGGEST claim legally here seems to be a claim of “AGEISM”- did the lawyers use that angle at all?? – the fact OLDER DOCS are grampa’d in and younger more recently trained doc are left to burden these imposed fees and hours stuck in “improvement projects” is NOT equal treatment. Several states, including Texas, Oklahoma, and Tennessee, have passed anti-MOC laws that prohibit state medical boards from requiring MOC for licensure or hospitals from requiring it for staff privileges;
How IS IT EVEN EVEN LEGAL to impose fees/tasks/time demands ONLY on doctors of a SPECIFIC AGE, while the rulings class of administrative SENIOR physicians simultaneously EXCLUDE THEMSELVES from the same responsibilities and financial demands?!!!
The Court was unmoved when this issue was included in the arguments, in large part because this was a case based on antitrust law. All judges (except one who noted “goalposts were moved”) were not convinced it mattered enough to suggest potential liability to move to a jury trial. In retrospect, we suspect (and this is just my opinion) they didn’t want to disrupt the largest economic driver / employer in most states.
I recently became certified by the NBPS and it was the best move ever. Should have done it sooner. The staff there is very friendly and helpful and it cost < $200. I always complained about MOC and the unending expense. Not anymore.
the AMA and ABMS are only enabled because the physicians continue to buy into it as reimbursements and hospital privileges are still tied to it. But what if all the physicians decided not to play or be a part of that game…
Let the physician employers who insist on ABMS certification learn the hard way that the physician shortage isn’t going away. Some of the largest hospitals in my state now accept NBPAS certification .
As the NBPAS gains membership and clout the ABMS stranglehold on physician employment will weaken.
Joining the NBPAS is the way to combat the ABMS, the AHA and the insurance companies.
I can see the basis of another antitrust suit if hospitals refuse to recognize NBPAS certification.
I have no standing because I was grandfathered out of MOC. However, I would have taken a different legal approaches. It can still be done now.
1) I would seek the rates of passing by minority groups. These include race, sex, age, disability. I would seek damages on behalf of these minorities for illegal discrimination for even small disparities in pass rates. I would enjoin the examinatin if it proves to be discriminatory. Title VI Civil Rights Act (Disparate Impact in Federally Funded Programs).If a certifying board receives federal funding (directly or indirectly) or operates programs tied to federally funded institutions, plaintiffs could invoke Title VI of the Civil Rights Act of 1964. Title VI prohibits practices that: Discriminate intentionally or
Produce disparate impact on protected groups (depending on enforcement mechanism).
If minority physicians have statistically lower pass rates on certification or recertification exams, plaintiffs could argue:
The exam structure creates racial or ethnic disparities
The board failed to adopt less discriminatory alternatives
2) There is very little evidence to support the validation of the exam as a marker of quality of care, especially by patient outcome. It may therefore be a scam and medical fraud, misleading advertising;
3) Employment Discrimination (Title VII) via Hospitals or Employers
Under Title VII of the Civil Rights Act of 1964, an exam used as a condition of employment can be challenged if it has disparate impact. Key precedent: The U.S. Supreme Court recognized disparate impact testing challenges in Griggs v. Duke Power Co..
4) Tortious Interference with Economic Relationships. Boards could be accused of interfering with physicians’ employment or hospital privileges by imposing certification requirements that third parties adopt. Elements generally include: Valid economic relationship (employment, hospital privileges); Defendant’s knowledge of that relationship; Intentional interference; Resulting damages
5) Unjust Enrichment / Quasi-Contract. Even if MOC is lawful, plaintiffs could claim the boards were unjustly enriched by extracting fees for a product that provides little or no demonstrable value. Defendant received a benefit (MOC fees). Benefit was obtained under circumstances that make retention inequitable. No adequate contractual justification
6) Consumer Protection / Deceptive Trade Practices
Legal theory. A lawsuit could argue that MOC was marketed to physicians, hospitals, and the public using misleading or unsupported claims about patient safety and quality improvement. Potential statutory bases include: State Unfair and Deceptive Trade Practices Acts (UDAP); False advertising statutes; State consumer fraud laws
Stop whining! Being a physician has been about jumping through hoops from applying to medical school, throughout medical school, residency, fellowship, board certification, & MOC! If you don’t like the hoops, get out of the game. Stop complaining & do what is required of you! It’s only a big deal if you make it a big deal! As Nike says, “Just Do it”!