If you’re a board-certified internist, you’re probably quite familiar with the controversy surrounding the American Board of Internal Medicine (ABIM) that began when lifelong board certification mysteriously became time-limited in 1990.
Physicians were told the justification for this change was that doctors needed to keep up with ever-changing medical innovations and that their skills and intellect atrophied with age. Never mind that the physicians who insisted on this change exempted themselves from the process and a system was already in place that addressed continuing professional development (CPD) of physicians using ACCME-accredited Continuing Medical Education (CME).
The annual market for physician CPD products in the US is massive: about $3 billion per year. Faced with the limited income stream of initial board certification of physicians in their specialty, CPD products were an attractive target for the American Medical Association and their subsidiary organizations, the ABIM and the ABMS (American Board of Medical Specialties). With the stroke of a pen, and with the help of medical societies and clever politics, the era of board “re-certification” and lifelong “Maintenance of Certification” (MOC) was born.
To assure physicians participated in board re-certification, the “Task Force on Recertification” threatened “uncertain circumstances” if physicians failed to “maintain” their board certification through repeated testing. As physicians confronted increasing regulations to practice medicine independently, more of them became employed. Thanks to their hospitals insisting that their staff physicians be ABMS board-certified to garner admitting privileges, doctors could no longer buy the CPD products of their choosing, but rather had to purchase CPD products that offered “MOC points” if they wanted to practice medicine.
MOC soon grew to include not only testing of physicians but added requirements for “practice improvement modules” and “Patient Voice” modules (whatever those were). A “Director of Test Security” was appointed to catch physicians who might share test content with their colleagues and compromise the money-gathering process. That individual was well-suited to the task, holding felony and misdemeanor convictions for impersonating a police officer and carrying an unregistered firearm in Washington DC after he was fired from the Washington DC police force for targeting a journalist.
Through political lobbying disguised as “consultant” work on tax forms and with the help of medical “stakeholders,” MOC was quietly added to the Affordable Care Act (ACA) as a “quality registry.” No one ever mentioned to physician diplomates of the ABIM that the President and CEO of their organization also sat on the boards of Kaiser Health Plans and Hospitals and Premier, Inc, the largest Group Purchase Organization for hospitals and nursing homes at the time the Affordable Care Act was being passed in Congress.
A close look at MOC enrollment shows physicians must agree to an adhesion contract that makes them a “business associate” with ABIM. MOC is not about physicians “keeping up” any more, it’s about diverting CPD funds to the ABMS member boards and selling the data the ABMS member boards collect on physicians via the for-profit ABMS subsidiary, ABMS Solutions, LLC at our expense.
Might the ABIM’s press release that was leaked to the Wall Street Journal about doctors cheating been timed for the passing of the ACA law later in 2010? Since the former President and CEO of the ABIM was a member of the President’s Council of Advisors on Science and Technology and soon began serving as the director of the National Quality Forum, the timing of these events is remarkably coincidental.
As I face the prospect of board certifying in cardiology and cardiac electrophysiology for the FOURTH time (I am “grandfathered” in Internal Medicine), I can’t believe this program has been allowed to continue. But as I hold my nose and reach deep into my bank account to pay nearly $3600 dollars for study materials worth one-fifth of my re-certification bill, I now completely understand.
Ten years ago, I began looking into the activities of the ABIM and other member boards of the ABMS, especially since the side effect of their policies on US physicians (and their legality) have never been studied. I reviewed 75 of their “studies” they published, many behind firewalls, to justify their extortion of working physicians. Most were written by ABIM officers themselves, some by members of Washington think tanks, and at least one included a veterinarian as author.
With the help of a forensic accountant, I began investigating the ABIM’s finances in 2013. In December 2014, I published my investigation on the ABIM Foundation, the Choosing Wisely campaign, and their undisclosed $2.3 million 2-bedroom condominium purchase using our test fees. Later in 2017, with the help of a diverse set of physicians and doctors of osteopathy, I co-founded Practicing Physicians of America, (PPA) a non-profit 501c6 organization with free membership, to continue our work fighting MOC and supporting working physicians.
At nearly the same time, Paul Teirstein, MD created a recertification board with academic colleagues to compete with the ABMS medical boards’ CPD product called the National Board of Physicians and Surgeons (NBPAS). Unfortunately, for physicians who work at teaching hospitals, the ACGME accreditation requires ABMS-board certified physicians, so NBPAS is not recognized at academic hospitals that wanted to remain ACGME-accredited (The ABMS is a member organization of the ACGME), nor has it been able to penetrate this political firewall as of this writing.
In response to an outpouring of negative feedback from physician diplomates and others, ABIM began amending the MOC process in 2018 to introduce it by another name in 2022—the Longitudinal Knowledge Assessment (LKA). This new program promised more frequent testing and money-gathering pushed to doctors’ cell phones.
Working physicians explored multiple avenues to end maintenance of certification, including the passage of an AMA resolution, having a “vote of no confidence” issued by the PA Medical Society, and a state-by-state effort to pass legislation to end the ABMS member boards stranglehold on physicians. None of these efforts succeeded in ending ABIM’s monopoly on certification.
What options did working physicians have to end the injustices and discrimination that the implementation of MOC created?
Legal action.
The Legal Challenges to ABMS Maintenance of Certification
ABMS board certification is not voluntary (despite ABMS member board claims), especially as specialization in medicine is the norm today. And thanks to regulatory capture, physicians who work at ACGME-accredited medical training hospitals in particular must pay for and participate in MOC before funds can be devoted to personally directed continuing professional development (CPD) products provided by others.
Forced participation in MOC and the harms it imposed on physicians have resulted in multiple federal class action antitrust lawsuits being filed against different ABMS member boards beginning in late 2018. These include Kenney v. ABIM (2:18-cv-05260), Siva v. American Board of Radiology (1:19-cv-01407), and Lazarou v. American Board of Psychiatry and Neurology (1:19-cv-01614). Kenney was filed in Philadelphia, PA while the Siva and Lazarou cases were filed in Chicago, IL. Here’s how this non-lawyer physician interprets what has occurred with these cases so far.
Background: Antitrust Law for Dummies
In layman’s terms, federal law prohibits any agreement that creates an unreasonable restraint of trade. One type of restraint of trade is when a seller creates a “tie” by forcing a buyer to purchase separate products together. Here, certification is separate from MOC, and physicians are forced to buy MOC because if they do not their certifications are revoked.
Kenney v. ABIM (2:18-cv-05260)
In Kenney, ABIM argued that MOC was merely a component or modification of certification, and that the two were one product and not separate. Plaintiff argued that ABIM’s analysis failed to examine the two products before MOC was implemented. The court sided with ABIM.
Siva v American Board of Radiology (1:19-cv-01407)
The American Board of Radiology used the same argument as Kenny that certification and MOC were not separate products. The lower court agreed. But the appeals court found (page 12) that certification and MOC were, in fact, separate products:
“In the pre-tie world, Board certification was not something that needed to be “maintained” through completion of any CPD program; it was valid for life. So the district court was right to observe that “CPD products serve a different purpose from certification and had nothing to do with it” prior to the introduction of the MOC program. But the district court never went the next step to see that, in Siva’s view, this is precisely the problem: CPD products, he alleges, still have nothing to do with certification—in other words, consumer demand for the two products remains distinct. As such, Siva says, the Board’s decision to name its CPD product “maintenance of certification” is nothing but a clever means of dis-guising a tying arrangement. Siva therefore urges that we see through that strategic naming decision—that marketing ploy—in conducting the separate-products analysis.”
Nonetheless, the appeals court upheld the dismissal of plaintiff’s claims because it did not feel MOC was a substitute for other CPD products. This argument was new and had not been addressed before by either the lower court or the parties.
Lazarou v American Board of Psychiatry and Neurology (1:19-cv-01614).
The lower court recently requested that the Lazarou parties file a brief addressing the impact of the Siva opinion. Plaintiffs explained how Siva 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 substitutes for and interchangeable with each other. Whether the Lazarou case can go forward now lies in the judge’s hands.
Implications of MOC
Regardless of how the judges have ruled or will rule in these cases, MOC has already had far-reaching effects on the US health care system. In my opinion, the MOC story reflects a remarkable betrayal of working physicians by other physicians for one reason: greed. The physician-sycophants who head these organizations have become incredibly wealthy at working physicians’ expense and failed to actively deal with their organizations’ numerous conflicts of interest permitted by their very own bylaws. Physicians are leaving our profession in droves as they are gaslighted, no longer feel valued, and are forced to buy MOC to remain privileged at hospitals, receive insurance payments, and lower their malpractice costs, despite no credible proof that MOC improves patient care or safety.
Worse, countless hours of patient care have been wasted on test preparation and performing worthless data entry exercises. To have never considered that thousands of patients suffer as a result of MOC is bizarre – unless, of course, patients are of no real concern to those that impose the extortionate MOC program.
It is disturbing when organizations like the Physician Consortium for Performance Improvement (ThePCPI.org) with the same address as the American Board of Medical Specialties, magically disappear from the internet when their collaboration with the medical industry is exposed. Thanks to the digitization if health care, MOC tears a playbook sheet directly from the old AMA CPT-coding and Facebook-Cambridge Analytica playbook: data make you rich and can advance a political agenda.
Being slippery about MOC’s purpose voids any semblance of trust by physicians in our health care system. Moral injury is playing a large role in physicians’ disillusionment. All the cute websites in the world called “BuildingTrust.org” made by the ABIM Foundation that secretly re-purposed tens of millions of dollars from physicians for political and retirement fund purposes certainly doesn’t help. Rather, it is a sick example of how low medicine has stooped to transfer working physicians’ forced-MOC fees to others in return for political favors.
Worst of all perhaps, in a clear and present danger to all patients, MOC promotes the silencing of scientific debate. ABIM, American Board of Pediatrics, and American Board of Family Medicine recently issued a statement with the Federation of State Medical Boards that threatens revocation of certification and even state licensure as a cudgel to quell anything they consider “dissemination of misinformation” by physicians. Meanwhile, Orwell and Semmelweis are rolling in their graves.
All these activities and wasteful spending make me wonder if certification should be continued at all. Our bureaucratic House of Medicine has lost its way. The drive for money and political influence have become so dire that even our own medical specialty societies are now partnering with the ruse.
As I near retirement, I have a choice: use my forty-plus years of medical experience to help train and teach my younger colleagues, continue to care for patients, and pay up and shut up to perpetuate the ruse, or quit medicine to avoid another round of extortion to remain certified in order to practice at the hospital system I have served for 22 years.
I wish I didn’t have to make such a decision. Medicine is what I do. My patients are what matters, not the ABMS member boards’ retirement funds.
I serve in the trenches with some of the most sterling, heroic physicians I’ve ever had the privilege to work with. I am sure you do, too. I’d just like our regulatory bodies to have the modicum of honesty and credibility that we deserve.
Wes Fisher, MD
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