ABR Lawsuit: The Amended Complaint

If you’ve been keeping up, the original motion to dismiss filed by the ABR was granted by the court, basically parroting the similar intially dismissed case filed against the ABIM.

So an amended complaint was filed on January 24, 2020.

(Also, a reminder: I’m still not a lawyer.)

The Honorable Jorge Alonso’s opinion was basically: “I’m not convinced initial certification and MOC are separate products. They seem like two parts of one product: ABR certification. That used to be a one-time thing and now it’s not—tough luck.” As such, you can’t illegally tie the two components together if they’re really two aspects of one thing. The logic rests largely on the established interpretation of the Sherman Antitrust Act that if there is no separate market for the contended service, then you can’t argue that it’s an illegal tie-in. Everything else in the complaint either relies on that to matter or was a “conclusory” allegation (an accusation not demonstrably supported by facts).

The amended complaint, dated January 24, 2020, spends a lot of time describing MOC in lines of another umbrella term: a continuing professional development (“CPD”) product (i.e. CME). Just because you creatively title your CPD product “MOC” after selling one-time initial certifications for over half a century doesn’t change what it is. The amended complaint says that MOC is basically a CME product, and, hey, look, there are tons of those around and a robust market to buy them. While doing so, the plaintiff attorneys also point out that none of those other CPD providers sell initial certification. Therefore, ipso facto, there is a separate market, and the ABR is being naughty.

Everything in the suit, including the relevance of some of the great zingers in the filing, rests on convincing the judge that IC and MOC are different products. There may be a practical monopoly, but so far no judge in these ABMS lawsuits has been interested in allowing a challenge to the party-line interpretation to stand and let these suits go to trial. To progress, MOC must be interpreted as just another CPD product. Without that, it’s all dead in the water, and interesting bits such as the inbreeding between the National Committee for Quality Assurance (NCQA) and the ABMS (page 17) don’t get to make it to a jury’s ears (and I suspect a trial would probably be more of a downhill victory in court than the case getting through the judge to a trial in the first place).

For Alonso, I suspect it will be hard to convince him that MOC = CPD. Clearly MOC is basically CPD, but not all CPD is exactly “MOC” at least so far as MOC has been engendered by the ABMS specialties (whether that form is meaningful or valid, unfortunately, is something the judge had no interest in entertaining in his granting of the defense’s motion to dismiss). It’s not the ABR’s “fault” that its “voluntary” certification product has become a requirement for hospital credentialing or insurance panel acceptance.

I mean I’m pretty convinced, and the history outlined in the suit is both instructive and compelling (seriously, read it), but I’m just a radiologist.

And while there is more supporting evidence provided in the amended filing (e.g. see the interesting points 51-56 starting on page 12), there’s also nothing here to force him to change his mind. The ABR can argue, bullshittingly, for example, that MOC includes both a knowledge assessment, CME compliance, and a QI project component and is, therefore, a more holistic view of the practicing radiologist. We know this is largely nonsense. The ABR is a profitable question-bank company where the questions are largely written for free by volunteers. But that fact doesn’t necessarily mean the ABR itself cannot change the terms of its own certification product.

And what’s really at stake here?

Plaintiff asks only that ABR be prevented from revoking the certifications of radiologists who do not also buy MOC, and that ABR report, without any qualification, whether radiologists have purchased an ABR certification, regardless of whether they have also later bought MOC.

I’m not that hopeful anything like that will come to pass.

But a real solution that could actually benefit the field of radiology would probably need to be one of two (or both things): a well-organized competing board with a clearly superior product that gets buy-in from residencies and the ACR and subsequently organizational and licensure stakeholders. I believe this would need to include initial certification to really have a chance of meaningful impact and is extremely unlikely. Or, continued grassroots opposition culminates in serious ABR structural reform. This would also likely require substantial and unyielding support of the ACR and other radiology organizations.

But since you’re here, I’ve pulled some choice quotations for your reading pleasure:

Through 2017, the last year for which data is publicly available, ABR has forced tens of  thousands of radiologists to buy its redundant, worthless, and superfluous CPD product or have their certifications revoked, realizing an estimated $90 million in MOC-related fees and revenue as a result.

According to a medical journal article written by three ABMS employees in 2016, “underlying the creation” of this new product was its emphasis, unlike certification, on “performance in preference to knowledge” with its “focus on improvement rather than on elimination of candidates” for entry into a specialized practice of medicine.

So, yes, exactly what you would expect: multiple-choice questions.

If instead of the labels “initial certification” and “maintenance of certification” the original and accurate terminology of “certification” and “continuous professional development” is substituted, ABR’s tying, forcing, and other anti-competitive conduct becomes clear. Creative product labeling cannot insulate ABR from the truth that certification and MOC are separate and distinct.

Thus, MOC is nothing more than a device to force radiologists to pay tens of millions of dollars in MOC-related fees for a redundant, worthless, and superfluous CPD product.

Little information has been made available by ABR about how radiologists will know whether they are “passing” OLA, other than that the “passing standard” will “vary slightly” among radiologists, without an explanation of what “slightly” means.

If OLA is criterion-referenced via Angoff panels as the Core and Certifying exams are reported to be, then the passing thresholds should be set ahead of time (even if that threshold is a binary TBI or no?) Assuming questions of varying difficulty are administered in the correct frequencies, there should be a predetermined true percentage correct passing threshold. Well, what is it?

In short, radiologists need spend as few as 52 minutes per year (one minute for each of 52 questions) answering only those questions they choose to answer, that are 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 radiologists pass, it validates only ABR’s ability to force radiologists to purchase MOC and continue charging supra-competitive monopoly prices for MOC.

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 Governors, Trustees, management, officers, and 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.

It took about 9 months for the initial dismissal, but I suspect we’ll have some more news in the spring.

Pass/Fail Step 1: Initial Thoughts

I was going to write a lengthy post, but then my medical education spirit animal Bryan Carmody did and said most of what I have time to say at the moment better than I would have anyway. Take the time to read it: USMLE Pass/Fail: A Brave New Day. He’s created an impressive collection of excellent writing about acronym fiends like the AAMC, NBME, and NRMP, and this is no exception.

This is a Brave New World. It will be a period of change, and it may very well be a rough transition. I know in this post-fact world we live in that people are cynical and want to cling to an objective measure. The system was flawed but in many ways predictable, and that comfort goes a long way. Students know what to expect. For those who put the time in and succeed, doors can be reliably opened.

Everyone’s concerns about shifting pressure to Step 2 CK, replacement by other likely useless metrics, elite schools, etc etc are all valid. A better future isn’t guaranteed, and Step 2 CK will certainly be the new default if it’s allowed to be (though even that would be an improvement since it’s a better test; I suspect it will become pass/fail within a few years as well).

But Step 1 is not good measure.

It doesn’t measure what matters, creates false distinctions across similar applicants, and may even select for some negative qualities. It’s turned medical school into an overpriced correspondence course and forced students to waste all of their energies spending more and more time mastering less and less useful material. None of our knowledge assessments from the MCAT to the USMLE to any of the board certification exams actually do what they are designed to do. And that’s a huge problem when we’ve absolved ourselves of meaningful holistic and true performative review and instead let a bunch of basically anonymous Angoff panels decide what it is a doctor is and does.

Arthur Jones of Proctor & Gamble once remarked that “all organizations are perfectly designed to get the results they get.” Well our system–from medical admission to MOC–is designed to get unsustainable negative results.

Schools and residency programs have a couple of years to figure out a more meaningful way to evaluate students and select residents. Pass/Fail Step 1 is a lit fire under everyone’s tushes. It’s not a solution; it just opens a door.


Believing Anything and Nothing

The political theorist Hannah Arendt once wrote that the most successful totalitarian leaders of the 20th century instilled in their followers “a mixture of gullibility and cynicism.” When they were lied to, they chose to believe it. When a lie was debunked, they claimed they’d known all along—and would then “admire the leaders for their superior tactical cleverness.” Over time, Arendt wrote, the onslaught of propaganda conditioned people to “believe everything and nothing, think that everything was possible and that nothing was true.”

– McKay Coppins, writing about political disinformation for The Atlantic.

F. Scott Fitzgerald is often quoted as saying that “the test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function.”

What microtargeting of vulnerable people has created is the opposite: minds that filter all ideas, opposing or not, through a distortion filter that makes them unable to think critically on anything. Facts don’t matter, because everything is just a predictable reaction based on a fundamental premise, world-view, or political exigency.

That article is extremely depressing. But if you’ve ever wondered what would happen if/when the internet became so drowned out by bots and misinformation noise that it becomes useless, you’d enjoy Fall by Neal Stephenson.

About those Letters of Recommendation

This study was from 2014 and titled, “What Aspects of Letters of Recommendation Predict Performance in Medical School? Findings From One Institution.”

Do you have a guess?

Being rated as “the best” among peers and having an employer or supervisor as the LOR author were associated with induction into AOA, whereas having nonpositive comments was associated with bottom of the class students.

Best = good
Nonpositive comments = nice way of saying you don’t really know someone or think they were lame = bad

Now, this was in reference to medical student performance based on college LORs, but some parallels exist in any situation where the current evaluation and the future task are not substantially similar, and—most importantly—bias knows no bounds.

Almost all LORs are positive, even if most people will, by definition, end up somewhere closer to average.

And because most LORs are based on classroom performance, they’re useless. We have more objective measures of classroom performance. They’re called grades (and—blech—the MCAT), and even those aren’t very good at predicting outcomes. At least your boss, whether in the lab or at a paying job, actually knows if you can show up to work and get stuff done.

I’d almost completely forgotten about the LOR process in applying to medical school. I remember I had one from my lab PI/thesis advisor. And then…I honestly have no clue.

When Danger is Only Online

Jonathan Haidt, author of The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure, in an interview for Next Big Ideal Club:

Back in the 1990s, the Cold War was over, the fear of nuclear war was gone, the [United States] ran a surplus, the crime rate plummeted—and the music was pretty good, too. The risks kids were at from diseases, car accidents, and crime were all plummeting. It was the safest time ever.

But because of changes in the media environment, we were divorced from reality—we got a steady diet of stories about childhood abductions. Almost nobody gets abducted in the United States—there are about 100 true kidnappings a year in a country of 350 million people. It almost never happens, but each time it happens, especially if it happens to a middle-class white kid, there’s constant coverage.

Throughout history, there have been innovations that link us closer together, and whenever that happens, there are all kinds of unforeseen effects. Take the automobile—people can move around, so it changes sex life, and dating, and marriage. The automobile, the telephone, the airplane—all of these things have effects on society, and it takes decades for that to work out. But with social media, we’ve never had something come in so fast that was so transformative in changing social relationships.

And the problem is not the internet, and it’s not screen time. Research that I’m collecting shows that it’s not time spent watching Netflix, and it’s not even time on the computer. It’s specifically social media that has pushed us over the edge, and I think it is a major cause of the rise of depression and anxiety, [especially] for girls.

Had Facebook, Instagram, and Twitter never been invented, I do not think our politics would have blown up. I do not think Donald Trump would be president. I do not think Brexit would have happened. I do not think that our democracy would be as imperiled as it is. Of course, Facebook and Twitter do a lot of good things, too, but the downside is so severe that I’m beginning to worry that social media is incompatible with a functioning democracy.

I wonder.

Social media is seductive even though it’s most effective as a way to literally waste time. But I’m older than the generation Haidt is worried about. And even to me–as someone who has written exclusively on their own platform for over a decade and grew up with just AOL instant messenger–it’s amazing how easy is it to fall prey to the endless feed.