After five years and over three million dollars in legal fees, US physicians were handed an adverse and controversial split decision by the United States Court of Appeals for the Seventh Circuit regarding the antitrust aspects of the proprietary American Board of Medical Specialties’ Maintenance of Certification (MOC) product.
In response, on Thursday the Plaintiffs in the case filed a petition for rehearing en banc that was accepted. A rehearing en banc is a procedure where a case is reheard by all the judges of a particular circuit court of appeals, not just the three-judge panel that initially heard it. This is a rare procedure, typically granted when a case is of exceptional importance or to resolve a conflict in the circuit’s own precedent. Such a rehearing is not a standard part of the appeals process and is only granted in limited circumstances, often when a case has exceptional importance, raises significant legal questions, or where a panel’s decision conflicts with another panel’s ruling within the same circuit. By granting the rehearing en banc, it automatically vacates the previous decision of the three-judge panel. The case is then reviewed by the full court, which may decide it based on the existing briefs or order new briefing.
I encourage all physicians to read the entire rehearng petition linked above. It clearly outlines flaws in the Majority’s decision and outlines the many ways physicians view MOC as a competitor in the CME market for state licensure. For now, the case is NOT over and with a bit of luck and appropriate administration of justice, has the potential to turn the tide on the ABMS MOC monopoly that is adversely impacting US physicians nationwide.
Westby Fisher, MD, Co-founder, Practicing Physicians of America
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.
“Cardiologists once again are expressing their frustrations and anger toward the maintenance of certification (MOC) process overseen by the American Board of Internal Medicine (ABIM), saying it wastes their time and money but offers little in the way of meaningful benefits. …” (read full article from TCTMD.com)
Practicing Physicians of America, and the the Free2Care coalition are staunchly against the passage of the highly partisan Inflation Reduction Act (IRA). Like many health care measures before it, there are consequences in the bill that will decrease access and innovation, and increase consolidation and costs for all patients, all while disproportionately harming those with cancer and chronic disease.
Free2Care experts prescribe four major issues with the bill and legislative priorities that would actually address the issues of affordability and accessibility of health care.
Pharmaceutical middlemen—Pharmacy Benefit Managers aka PBMs— collect legalized kickbacks and are responsible for 80% of the cost of insulin, get a gift in the Inflation Reduction Act.
Almost 50% of what is called “deficit reductions” come from repealing the Trump Administration’s ‘rebate’ rule. The rebate rule would have forced PBMs to pass on the ‘rebates’ they collected to seniors at the prescription counter instead of pocketing the rebates themselves.
Rebate is not the appropriate word for the money collected by the PBMs from the drug manufacturers: the PBMs were granted an exemption from the anti-kickback statute in 2003, and thus rebates are actually kickbacks. . Remarkably, the kickback collecting PBMs get to create the formularies—the lists of drugs covered by the insurance companies. A bigger kickback lands a drugmaker on the formulary, so more expensive medications are preferred for the PBMs and the insurers who have now consolidated with the PBM, and in some cases, even the big box pharmacies. The cost of the kickbacks is in the range of $200 Billion per year, all of this is explained elegantly by attorney David Balto.
By denying the “rebate rule” and declaring it to “pay for” new spending, the Inflation Reduction Act is a win for PBMs at the expense of seniors’ savings at the pharmacy counter. Former DNC chair Howard Dean, himself a physician, recognized the gimmick behind using the “rebate” rule as a pay-for.
Furthermore, Pharmacy Benefit Managers have been the driving force behind the cost of many medications necessary to sustain life for patients with chronic diseases or pre-existing conditions. Like Insulin.
2. Chronic disease and cancer patients will lose access, consolidation will increase, and costs will rise down the road.
A new Avalare study has found that part of the Build Back Better Act, now folded into the Inflation Reduction Act, will reduce payments for Medicare providers that furnish Part B drugs (drugs that are given by infusion and therefore delivered in a clinical setting ) by an average of 40%. Drugs for cancer, immunodeficiencies, and rheumatologic diseases such as rheumatoid arthritis fall into this category.
Remarkably, the payment reduction is substantially higher for physicians in independent practices as opposed to those owned by hospitals. Besides the fundamental unfairness, the increased reduction will lead to the early retirement of independent oncologists and rheumatologists, and the continued consolidation of medical practices into ownership by hospitals.
3. Fewer cures and treatments for patients with cancer, chronic and rare diseases.
The bill before the house imposes a 95% excise tax on innovative drug manufacturers unless they accept a price set by the HHS Secretary.
This is not negotiation, it is price controls.
A Univ. of Chicago September 2021 study estimates up to a 60 percent decrease in R&D and up to 342 fewer new medication approvals. Loss of life from loss of innovation over the next decade is conservatively estimated as 20 times more than COVID-19 deaths at the time of their study. There is no measure in loss of quality of life as many new meds have immeasurable improvement on quality of life.
Small and emerging companies in California alone will have an 88% reduction in new medications brought to market according to the California Life Sciences Association. This will fundamentally shift the formation of small emerging bio markets across the United States.
4. Higher prices for other medications will lead to higher premiums and overall health care costs.
In turn, all Americans will pay higher insurance premiums and out-of-pocket costs at their pharmacies. Only the wealthiest Americans will be able to afford many cures.
We are strongly supportive of Chairman Pallone’s HR-7666, which increases access for mental health and substance use disorder among other measures while reining in PBM. HR-7666 has the added benefit of having passed the house by more than 400 votes, thus demonstrating the call for the bipartisanship that America craves.
The Inflation Reduction Act will be harmful to the long-term health of Americans, especially those with chronic and pre-existing diseases. We call on all house members to reject this bill and ask the Senate to get back to the drawing board, this time reaching across the aisle.
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PPA is part of Free2Care, a coalition of member organizations dedicated to the doctor-patient relationship and making healthcare affordable, accessible, and of high quality. The 34 member organizations represent over 8 million Americans and include over 70 thousand physicians.
In the recentrequest for comment by the Federal Trade Commission, the Free2Care Coalition represented approximately 75% of the 24,100 comments calling for a thorough investigation into the anti-competitive practices and behavior exhibited by pharmacy benefit managers.
HHS called forcommentson the behavior of GPOs and Free2Care submitted comments representing 80% of the 11,930 submitted
Would you like to lower healthcare costs, restore quality and improve choice? Yes? Then you MUST learn about Pharmacy Benefit Managers (PBMs).
If you look on the Fortune 500 top 12 companies, you will find three companies who own PBM. Dig deeper, and you’ll discover these companies are CVS health, who owns the PBM CVS Caremark, United Healthcare who owns the PBM Optum Rx, and Cigna, who owns the PBM Express Scripts. These three PBM control 85% of the prescription drug market, and are the biggest revenue generators for their parent companies.
Until recently, many Americans had no idea what a PBM was, and blamed insurance and pharma and physicians for the high cost of care. The truth is much more complicated, and those making the money don’t want you to pull the mask off the villain of high healthcare costs. They aim to prevent the Scooby Doodenouement and keep Americans from discovering the biggest, richest, most devious villains in the healthcare space are the PBM.
Some really important clues to why we should suspect that the PBM are villainous profiteers:
– The PBM and insurance companies now own one another, and some, like the CVS Health empire, also own pharmacy chains
– The PBM controls the pharmaceutical companies, by creating the formularies, aka the list of medications that the insurance companies will “cover”. Physicians play no part, nor have any say in this choice.
Worse yet, the bill grants a delay of the rebate rule for PBM. The rebate rule was an Executive Order introduced in 2020 and demanded that the kickbacks (aka rebates) would flow to the patient at the point of sale and not the PBM and the insurers. PBMs are continually telling Americans that they pass on the rebates, yet when the rebate rule was suggested, they have threatened to increase Medicare premiums as soon as the rule is enacted.
Congress has discovered they can pull the entirely disingenuous accounting sleight of hand of delaying the rebate rule (in other words, allowing the PBM to keep collecting their kickbacks and not forcing them to pass on to patients) and thereby claiming that they are saving money by preventing Medicare premium increases. To put another way, the PBM’s and Insurers are playing Chicken with the rebate rule by threatening Medicare premium increases, and the Congress-people that delay the rebate rule are taking the bait. I suppose that makes them lower than chickens in the game. Perhaps they are simply chicken….. oh, never mind. Maybe they simply don’t understand.
Some of us were really yelling ‘Yay’ when we discovered splendid section 602, quietly added by Rep Michael Burgess (R-Tx), mandating big time TRANSPARENCY for big PBM/Insurers with shocking penalties of $10K per day for non-compliance.
Requiring PBM transparency will save $2BILLION/10 years, paying for the bill. Billion with a ‘B’. As Mental health and substance abuse medications are largely overpriced due to PBM kickbacks, this provision absolutely belongs in the bill.
Americans will receive some wonderful services with this bill for Mental Health and Substance Use Disorders. Full detail can be found in the bill, but here is a screenshot of some of the high points
WE CANNOT STOP… we must make sure the mental health bill passes in the senate WITH PBM reform Intact.
Please CALL and EMAIL both of your US Senators ASAP, (find their numbers and email contact links here ) and tell them to PASS the Senate version of HR 7666 with the Burgess amendment to bring PBM transparency and accountability intact. Ask your friends to call. Ask your neighbors to call. Ask everyone in your circle and beyond. Tell YOUR Senators you now know the PBMs are behind the ever increasing healthcare costs and it’s time for Congress to listen to we the people and not the profiteering villainous Pharmacy Benefit Managers!
Drs. Mass and Dewey are proud to be pediatricians for over 20 years each and fierce advocates for patients and physicians!
Dr. Mass, graduated from Duke Medical School and trained at Northwestern. She has practiced in the Philadelphia area. She’s a cofounder of Practicing Physicians of America And leadership in Free To Care .
Dr. Dewey attended Loyola University Stritch School of Medicine . She did a year of surgery internship then two years of pediatric surgery research before training in Pediatrics at University of Minnesota. She is founder and CEO of Peds Mama Doc and has published in multiple outlets
