The Deductible Guide: A New Legal Threat For Maintenance of Certification

By THE EDITORS (16)

Could the hated maintenance of certification system be on the verge of going away? A new lawsuit filed against the American Board of Medical Specialties, the American Board of Emergency Medicine and the American Board of Anesthesiology last week in the Southern District of California argues that the current system violates federal antitrust law. The lawsuit, which names the Chicago-based non-profit’s 24 member specialty boards as co-conspirators asks for an end to maintenance of certification and economic damages.

A lawsuit filed in December of last year against the American Board of Internal Medicine goes even further, seeking to apply the Racketeer Influenced and Corrupt Organization Act (R.I.C.O.) The RICO statutes have been used by in the past by prosecutors to target various shadowy defendants including the Gambino and Lucchese crime families, a corrupt unit in the Los Angeles Police Department and famously, Lt. Colonel Oliver North and his co-conspirators in the Iran-Contra affair in the 1980s.

The suit argues that the Philadelphia-based ABIM meets the definition of a criminal organization engaged in racketeering, pointing at the tangled web of ties linking the national medical boards, insurers, hospitals and the executives who run the certification programs.

The early success of the ABIM suit appears to be inspiring other doctors around the country to take similar action. Insiders the Deductible talked to believe a wave of lawsuits is likely to drop in the weeks to come. Potential targets could include the American Board of Radiology, the American Board of Family Medicine and the American Board of Obstetrics and Gynecology.

Is it extreme to use a law originally intended to allow prosecutors to target people like Tony Soprano and John Gotti to take on a venerable medical board ? Critics of maintenance of certification don’t think so. They argue that while the original intent was good, the current dysfunctional system has evolved into a monopoly that has funneled millions into the pockets of corrupt board executives by creating a Ponzi-like industry based on regular recertification tests and annual fees.

They note that the existing system forces doctors to participate or risk losing employment and suffer the risk of damage to their professional reputations. A physician that refuses to renew their board certification faces the possibility of being blacklisted by employers who prefer to hire certified professionals. They add that members of the public generally do not understand what the term board-certified means, confusing the term with licensure.

The doctors behind the legal challenge say they don’t want to do away with certification altogether, rather put an end to the current recertification system and find a solution that serves everybody’s interests.

The Other Side : Other highly skilled professions require recertification, why shouldn’t doctors? Defenders argue that while imperfect, the current system is needed to keep doctors’ skills up to date and stop dangerous doctors from slipping through the cracks. They also point to evidence that suggests that board-certified doctors deliver higher quality care. The American Board of Medical Specialties points out that a million visitors a year visit the web site it has set up to allow the public to check specialist credentials. Acknowledging the mounting criticism in recent years, the ABIM and other boards are considering making changes and effectively rebranding the program by naming it something other than “maintenance of certification.”

A Social Media Uprising: However the fight over certification plays out, the uproar over the system tells you everything you need to know about physician dissatisfaction around the state of medicine. In recent years doctors, once considered a quiet group, have taken to social media in increasing numbers to loudly protest HMO-like government mandates intended to boost efficiency and productivity, to rally against a cumbersome new electronic medical record system and to challenge new medical research that they say is improperly influenced by pharma interests. The Texas-based Practicing Physicians of America (PPA), the new group which is sponsoring the lawsuit, argues the recertification challenge is a symbolic blow in the battle to protect physician autonomy and prevent physician burnout.

How Hard is it to Win a Civil RICO case? Hard, but not impossible. Creative law firms have used RICO to file lawsuits against both businesses and individuals. The tactic is gaining popularity in the business world, because defendants face triple damages should they lose, making for potential blockbuster awards.

Could it work? What are the doctors arguing? Quoting directly from the Philadelphia filing:

“Finally, this case is about ABIM’s violation of Section 1962(c) of the RICO Act. As detailed below, ABIM has successfully waged a campaign in violation of RICO to deceive the public, including but not limited to hospitals and related entities, insurance companies, medical corporations and other employers, and the media, that MOC, among other things, benefits physicians, patients and the public and constitutes self-regulation by internists.

Believing ABIM’s misrepresentations to be true, hospitals and related entities, insurance companies, medical corporations and other employers require internists to participate in MOC in order to obtain hospital consulting and admitting privileges, reimbursement by insurance
companies, employment by medical corporations and other employers, malpractice coverage, and other requirements of the practice of medicine.”

Last year, in case that seized the public imagination and helped make the #Metoo movement a national cause, six women filed a RICO case against the Weinstein Company and Hollywood Producer Harvey Weinstein, accusing the company and co-conspirators in the entertainment industry engaged in racketeering by arranging situations in which actresses hoping to win roles found themselves alone with the predatory Weinstein and then covering up his attacks. A federal judge threw out the case.

Legal experts say the Weinstein case shows the real value of a RICO filing, as a potential pr weapon.

Related :

New York Times (Jan 16/2018) “Rico Cases are Tempting, But Tread Lightly

Dr. Wes “Examining the ABIM’s Evidence for Maintenance of Certification

ABIM Blog Post “ABIM Statement 12/10/18

THCB “The ABIM Controversy: A Brief History of Board Certification and MOC” Robert Wachter, MD.

Gofund Me: If you’d like to contribute to the legal fund set up to pay for the ABIM lawsuit, the physicians behind it have set up a Gofund Me page. The group has raised over $200,000 to pay for legal expenses.

On Twitter: Follow Chicago Cardiac Electrophysiologist Westby Fisher, MD @DoctorWes on twitter. @DrDixonFtw. Follow ABIM President Richard Baron @RichardBaron17

The Deducer: Get email notification of new posts, meetups and other news from the Deductible.

16 thoughts on “The Deductible Guide: A New Legal Threat For Maintenance of Certification

  1. I see an interesting twist to this relative to what we’re building as a patient-controlled health record (Trustee by HIE of One) that treats both the patient and the practitioner as self-sovereign entities. Each patient decides for themselves what credentials are to be used to access and modify their health record. Public blockchain tech is used to manage the credentials and accountable digital signatures without any institutional middlemen. The patient and the practitioners can even pick their jurisdiction anywhere in the world. Public blockchains and open source software enable self-sovereign technology and practices. There are no regulatory barriers to doing this because finance and securities are not involved. The practitioners are licensed.

    Regardless of how the lawsuit turns out, competition will increase and the influence of hospitals and other administrative middlemen will lose influence over the practitioners. The only question is, how much?

    Technology does not wait for antiquated bureaucratic structures that are heading us toward 20% of GDP. That’s the real mafia.

    1. Hi Adrian,

      Thanks for this. Is technology really the answer here, though? Right now, these bureaucracies are entrenched in policy. And the issue here is that failing to comply with MOC rules brings penalties which effectively bar non-compliant physicians from certain jobs and privileges. How would blockchain prevent physicians at odds with MOC rules from being relegated out of good opportunities and insurance panels?

      Personally, I can’t see tech changing the situation without a corresponding successful challenge in the media or courts.

    2. I’m not arguing against using the courts.

      What I am saying is that regardless of what the courts decide or how things are settled, with the introduction of verifiable credentials standards like the ones we work on in W3C and Rebooting Web of Trust (where I am this week) the power of hospitals and other employers of licensed practitioners will diminish.

      Right now, the reputation of an individual licensed practitioner is not directly linked to them. Credentialing by an employer, including background checks, references, etc… is a surrogate for an individual reputation. The ability for a practitioner to develop a verifiable reputation, by word-of-mouth from peers or from patients for example or by choosing the institutionalized tests and badges they prefer, from anywhere in the world, means that the power of intermediaries such as specialty boards and hospitals is reduced. They can be bypassed by an increasing number of practitioners and patients using decentralized technology.

      Imagine, for example that 100 physicians formed a reputation cooperative. They could decide all of the rules for participation and promote each other completely independent of anything other than the minimum license to practice in that jurisdiction. Would they develop a “brand” that was more valuable than the hospital in the region. It depends, but the ability to innovate in this way would be independent of the current intermediaries.

      1. But Adrian, creating a reputation cooperative would require a bureaucracy and coordination as well. And Andrew, I’m not sure that physicians would want to sacrifice their time and training to think like a media company (hence, The Deductible). Aren’t we just simply rearranging deck chairs at that point?

        I think the difficulty in creating a national brand – particularly among professionals – is grossly understated here. I don’t think that tech is the answer otherwise the numerous Yelp for doctors services would have dealt with the issue. Doesn’t the answer lie in creating more collaborative oversight regarding who can participate in certification and maintenance issues (and what penalties could/should arise through non-compliance)?

      2. Jason

        As for certification and maintenance oversight there does need to be change. It needs to be done in a collaborative manner, and not done in a vacuum by a small elite. I’ve seen that with the backlash in the ABR.

        Specific to my comments on physicians switching their thoughts on thinking like a media company, I think it’s not that big of a leap. Physicians historically have always had a drive to publish. In a digital world, they need to broaden their reach. Personally I’ve worked with a few in the radiology and radiation oncology world to break the normal approach. Look at RadXX, a new movement led and created by Dr. Geraldine McGinty. Or Dr Elizabeth Hawk who not only went through a divorce, change of name, but was told that a physician could not be faculty at Stanford and executive team member in provosts practice. That choices need to be made. Reality is that we live in a new world, a new era, and brand physician will trump brand hospital in the next few years. It’s not a Yelp thing, it’s own your destiny. Why? It’s simple….we are all human, people and the patients they become want to be seen, heard and connect with another human, because at the end of the day, people like us, do things like this.

        People connect at the N of 1.

        Medicine just forgot it.

      3. Jason,

        I don’t think you’re getting my point. I’m not saying there will be a National Dctors Brand. There will be hundreds, maybe thousands of brands and these brands will compete for patients the way churches compete for congregants, one patient at a time, openly and without lock-in, mostly local, but some global.

        Clergy, lawyers, and doctors are the three “learned intermediary” professions. All three depend on their unconflicted, fiduciary relationship to their client. As soon the learned intermediary starts having split responsibility to a hospital, gvernment, or other bureaucracy they lose trust, respect, and power. By aligning with hospital administration interests and the business of medicine the profession is laying the groundwork for our own diminshment. Trading short-term financial and administrative benefits will result in long-term loss of wealth and burnout. EHRs are only the beginning. Tech in the form of AI will be the real killer.

        Hospitals and insurance companies are already pissing off patients. When patients rebel, probably on the basis of costs and lack of access, do doctors really want to be caught on the side of the hospital or “payer-provider collaboration”?

      4. Adrian,

        I don’t understand what you’re trying to say. The vision you present is how things used to be. Local competition, word of mouth, personal brand and all that….

        But you guys made that shortsighted trade-off already. Most doctors, and certainly the newer ones, are employed by hospitals. Long-term loss of wealth and burnout are a virtual certainty now for the profession, and I agree, “AI” will be the final stroke. Sure, there are still independents out there, but they are increasingly rounded up in ACO or whatever, which essentially indirect employment by insurers.

        Patients won’t rebel either. They can’t. They’re too poor. Hospitals and insurers are monopolies now. Nobody can fight them locally, and in many cases nationally. The only alternative to the horrific status quo is a government solution. You guys blew it….
        (I’m not in the best mood tonight, sorry)

      5. Margalit!

        Don’t worry. Lots of peeps have made short sighted trade offs but independent docs are alive and well and seriously kicking some ass.

        AI is never going to replace what I do. It’s not possible. And I won’t be rounded up by anybody. Ever.

        And patients are rebelling. They are refusing vaccinations, measles is returning and adults —as old as 78!— are paying a pediatrician in cash to see them.

        The only thing that can screw it up even more is if the government takes over. God help us all. 🤦‍♀️

        Please take heart. Have some chocolate, a warm soak in the tub, and binge watch some Doc Martin. You will feel better by tomorrow.

      6. Niran,

        The AI we see today is like the black Bell telephones 70 years ago. “The AI that will change medicine will be owned by doctors and patients like your iPhone is today. My AI will learn from your AI, directly, the way doctors teach each other.”

        The driver of this transition is not just dwindling cost of electronics and vastly more efficient machine learning algorithms. It’s the difficulty of regulating medicine centrally. Centralized AI looks like The Borg in Star Trek. Medical AI will need to be open source and go to medical school along with the people to get licensed. Each doctor will own their AI the way we own our textbooks.

    3. I agree with both. While the courts and policy reform are desperately needed, what I believe will be one of the biggest disruptions is when physicians begin to realize that brand physician trumps brand hospital/healthcare organization. What Adrian is speaking of below is something I’ve been sharing in many of my national talks with physicians….that they need to begin establishing that brand beyond their publications, thinking as a media company, and controlling their badges/certifications/reputation.

    4. there is a real (not-imagined) need for a system that makes sure doctors are up to par, and up to date with important developments in their fields

      I don’t know if continuing medical education is the answer. There seems to be some question about the value of the education that is being continued.

      i’ll give the benefit of the doubt to ABIM and the specialty medical groups on the original intent here. my problem with what is happening is that by allowing itself to get tangled up in a controversy over money like this, ABIM doesn’t do the things it could be doing for doctors in a hundred other areas. That hurts everybody. And it hurts them because it hurts their credibility.

      I’d like to hear from ABIM on this. I’d also like to hear what people think reasonable alternatives are to MOC?

      Is it some form of testing? A grading system based on something? A quality and reputation score?

      I have no idea, but I think some of the smart people out there may.

    5. Just my biased take; the only thing that matters in medicine is absolute risk reduction versus absolute risk and the trade-off that ensues.(testing and treatment). In over 25 years of being academic doc i have asked students, consultants, primary docs to recount numbers for benefits and harms and never saw one correct. You see, john, medicine is about patients not docs or money or tech bullcrap or hospitals or information flow between those too big but, really at present, bit players. So start testing that docs can get right info to a patient and that they can help patients through the trade-off and then they will become more relevant. That process, then, will inform us how tech, insurance can support. I am still uncertain if they can be trained to judge veracity of studies but i hold out hope.

    6. Adrian-

      In an ideal world, open source is excellent. However, anytime there is money to be made, the vultures are circling. There is no way physicians will “own” anything in the long term. I may sound too cynical but this EMR debacle and ACA mess which was a “handout for insurers” are two great examples of what happens when tech tries to “help” doctors. It hasn’t really improved anything.

      I kind of like those old phones attached to the wall where you cranked that thing on the side to get an operator. It was a “real” connection. 😊

    7. As it so happens, I know more than the avg bear about those old phones….and the role of automation in altering connections. There was an undertaker in St. Louis (I think) about 1891 — a Mr. Almon Strowger– who was convinced he was not getting business because the wife of the other undertaker in town was the head switch board operator for the phone system. Mr. Almon Strowger thought she was diverting calls intended for his firm to her husband’s firm (the firm of husband of the wife who operated the switch board). So, Stroger invented the electro-mechanical dialing system that was in place in St. Louis…and eventually all of the world. Stroger’s system is why we call it “dialing” a number…– the “rotary dial” — and it was only replaced in the last 25 to 30ish years.

      Those of you who only know push button phones may want to watch an old movie. Those of you who want to understand Niran’s reference to the phones you had to crank to reach the operator, may have to watch a very old movie. (I’m assuming there’s no one here who is only aware of cell phones.)

      FYI: I just found the wiki page. Search for “rotary dial.” Alas, it does not have the social history/motivation for the invention.

    8. Thank you Ross. I love hearing that history. For the record, I love old movies.

      My four children are all 10 and under yet love old musicals like brigadoon, bandwagon and white Christmas.

      In college, my favorite class was “history of documentary and film”. I have seen Nanook of the north, the jazz singer, meet me in St. Louis, Bonnie and Clyde, and just about every other genre you can imagine by film reel.

      Maybe it is a character flaw of mine, but DVDs today do not compare to the clickety-clack of the movie reel machine. Changing out reels was a reminder of the time and effort that went into making these classic movies in the first place.

      Thanks to Goodwill and aging of the elderly, I have amassed quite a collection of Alfred Hitchcock films, but nothing can compare to seeing Rear Window in original form as it was intended.

      I may sound nostalgic, but at the age of 44, I feel like I was born a decade or two too late.

      Maybe that is my problem with electronic records; they will never be as good for me as the index cards my grandfather used to keep in his car on the way to home visits.

      And to be honest, I think I would prefer the crank on the side of the phone over the rotary dial, which I well remember. What can I say, I really love interacting with people.
      Sorry to get off-topic.

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