Class Action Lawsuit Against the ABR

Radiology joined the ranks of physician-led class action lawsuits against the ABMS member boards last week when interventional radiologist Sadhish K. Siva filed a complaint on behalf of radiologists against the ABR for (and I’m paraphrasing) running an illegal anticompetitive monopoly and generally being terrible.

You can read the full 30-page suit if you’re interested. Legal writing is generally not of the page-turning variety, but there are still some great lines.

Regarding MOC (emphasis mine):

[The] ABR admits that no studying will be necessary for [the new MOC program] OLA and that ABR “doesn’t anticipate” incorrect answers “will happen often.” ABR also confirms on its website that “[t]he goal with all OLA content is that diplomates won’t have to study.” When a question is answered incorrectly, an explanation of the correct answer is provided so that when a similar question is asked in the future it can be answered correctly. Unsurprisingly, ABR admits it does “not anticipate a high failure rate.”

In short, to maintain ABR certification under OLA, a radiologist need only spend as little as 52 minutes per year (one minute for each of 52 questions) answering questions designed so as not to require studying, and for which ABR anticipates neither incorrect answers nor a high failure rate.

Because OLA has been designed so that all or most radiologists will pass, it validates nothing more than ABR’s ability to force radiologists to purchase MOC and continue assessing MOC fees.

Burn!

Though not called out in the lawsuit, this argument also applies to the Certifying Exam (a second, superfluous exam taken after the Core Exam, after graduating residency, and after already practicing independently as a radiologist). This may be in part because the angriest radiologists are the ones who paid for and then passed what should have been a 10-year recertification exam only to be told they had to start shelling out and doing questions right after. But the main reason is likely that the suit primarily asserts that the monopolistic behavior at play includes the ABR illegally tying mandatory MOC to its “initial certification product,” and the Certifying Exam—though suspect–is part of the initial certification process.

Interesting fact that I did not know about MOC & the insurance market:

In addition, patients whose doctors have been denied coverage by BCBS because they have not complied with MOC requirements, are typically required to pay a higher “out of network” coinsurance rate (for example, 10% in network versus 30% out of network) to their financial detriment.

It’s amazing how these organizations, which are completely unaccountable, have become such integral parts of so many different components of the healthcare machine from hospital credentialing to insurance coverage.

Speaking of that power:

The American Medical Association (“AMA”) has adopted “AMA Policy H-275.924, Principles on Maintenance of Certification (MOC),” which states, among other things, that “MOC should be based on evidence,” “should not be a mandated requirement for licensure, credentialing, reimbursement, network participation or employment,” “should be relevant to clinical practice,” “not present barriers to patient care,” and “should include cost effectiveness with full financial transparency, respect for physician’s time and their patient care commitments, alignment of MOC requirements with other regulator and payer requirements, and adherence to an evidence basis for both MOC content and processes.” ABR’s MOC fails in all of these respects.

And lastly:

[The] ABR is not a “self”-regulatory body in any meaningful sense for, among other reasons, its complete lack of accountability. Unlike the medical boards of the individual States, for example, as alleged above, ABR is a revenue-driven entity beholden to its own financial interests and those of its officers, governors, trustees, management, and key employees. ABR itself is not subject to legislative, regulatory, administrative, or other oversight by any other person, entity, or organization. It answers to no one, much less to the radiologist community which it brazenly claims to self-regulate.

Final burn!

Whether or not the suit will convince a jury that an illegal monopoly is at play, I don’t know. I can take a pretty confident educated guess as to what radiologists are rooting for. It’s pretty clear that while MOC can engender a controversy, the ABR’s efforts can’t meaningfully impact the quality of radiology practiced by its diplomates or have a significant effect on patient care.

 

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