The ABR Finesses its Bylaws

A few years ago I published my deep dive into the bylaws of the American Board of Radiology. Bylaws are boring, dry documents that most people don’t care about and even fewer read. But they do shed light on the culture of an organization and its priorities. The ABR’s were comically nefarious. For example, their old conflict of interest policy (emphasis mine):

It is the policy of this Corporation that the legal duty of loyalty owed to this Corporation by a Governor serving on the Board of Governors of this Corporation requires the Governor to act in the best interests of this Corporation, even if discharging that duty requires the Governor to support actions that might be contrary to the views, interests, policies, or actions of another organization of which the Governor is a member, or to the discipline of which the Governor is a member. Consistent with a Governor’s duty of loyalty, a person serving as a Governor of this Corporation does not serve or act as the “representative” of any other organization, and his or her “constituency” as a Governor of this Corporation is solely this Corporation and is not any other organization or its members.

The ABR approved an update to their bylaws on November 2, 2022 (available here), and they’ve finessed that bit by removing the bolded language above. It now reads:

It is the policy of this Corporation that the legal duty of loyalty owed to this Corporation by an individual while serving in the capacity as a member of the Board of Governors or Board of Trustees requires the individual to act in the best interests of this Corporation. Consistent with the duty of loyalty, a person serving as a member of the Board of Governors or Board of Trustees does not serve or act as the “representative” of any other organization, and said member’s “constituency” as a member of the Board of Governors or Board of Trustees of this Corporation is solely this Corporation and is not any other organization or its members.

So they’ve removed that choice verbiage requiring selling out radiology itself in the interest of the ABR: “even if discharging that duty requires the Governor to support actions that might be contrary to the views, interests, policies, or actions of another organization of which the Governor is a member, or to the discipline of which the Governor is a member.”

Good for them.

On a related note, in case you’re wondering, the composition of the “executive compensation committee” is unchanged:

Executive Compensation Committee. The Executive Compensation Committee will carry out the Board of Governors’ responsibilities for designing, managing and annually reviewing Executive compensation and the Executive compensation policy. This committee will consist of the President, President Elect, and at least one (1) additional member from the Board of Governors appointed by the President. The President will chair the committee.

As I mused in my previous post:

I love that the committee that handles executive compensation is chaired by the president and then attended by the president-elect and “at least one additional” presidential appointee. Good thing that a conflict of interest for the ABR is just when a Governor cares about something outside of the ABR.

ABR soliciting nominations for its Board of Governors

The bylaws of the American Board of Radiology are interesting. I’ve written about them here, and you should read that post. Go ahead, I’ll wait.

Relevent to an email blast the ABR sent out this week is section 4.3:

Section 4.3. Election of Governors. Nominees shall be solicited from the Board of Trustees and Board of Governors, and may be solicited from any appropriate professional organization. Professional organizations shall provide such nominations in writing. An affirmative vote of at least three-fourths (3/4ths) of the entire Board of Governors shall be necessary for the election of any nominee to the Board of Governors.

The Board of Governors is the main decision-making body of the ABR. Historically, as you might surmise, it’s been a pretty insular group. The people already in charge nominate their friends and colleagues, most of whom have already put in the time and effort to earn a place in this upper echelon through years of service to the organization.

As I wrote in that post:

If you didn’t know, there are currently 8 Governors, and they basically run the show. Lincoln’s famous “team of rivals” approach this is not. The current people in power shall nominate their replacements and other organizations may, but the key for any hopeful member is making sure that you fit in with the cool kids, essentially guaranteeing that no one with substantially differing views would ever make it to the upper echelon.

On November 7, the ABR sent an email out to all diplomates (people who are board-certified):

The American Board of Radiology (ABR) is seeking interested candidates to serve on its Board of Governors. The Board of Governors discharges the fiduciary duties of the Board through its oversight of the business and affairs of the ABR.

The ABR recognizes the benefits inherent in a diverse community and seeks individuals with varied experiences, perspectives, and backgrounds. Interested candidates must be board certified by the ABR and willing to participate in Continuing Certification (MOC). Those from nonacademic practice environments are especially encouraged to apply.

And the nomination process for those interested candidates?

Nomination Process: Interested candidates should send a curriculum vitae and a letter of interest before November 15, 2022, to Brent Wagner, MD, ABR Executive Director (bwagner@theabr.org).

How about that.

Now presumably the actually election process is still the same (as is the impressive Conflict of Interest policy), but I believe this is the first time the ABR has publicly asked for all-comers. Now that doesn’t mean they’ll actually take any of those candidates seriously or that such candidates would ever comprise more than a single spot on the board, but—nonetheless—I would encourage anyone interested to apply.

The ABR Lawsuit Continues

I thought after the last dismissal that the class-action lawsuit against the American Board of Radiology had died, but it continues.

Last week on February 16th, the “Court Of Appeals 7th Circuit” on YouTube (1.1k subscribers, in case you’re curious) streamed a brief 20-minute back-and-forth between the lawyers and the appeals court judges.

You can listen to the audio-only video on YouTube here (the ABR portion runs from 1:57 to 2:18, but that link should take you to the correct timestamp). In typical pandemic fashion, the ABR’s lawyer accidentally started off muted.

The case was heard by a panel of three judges. It is striking how short the oral arguments were: merely 20 minutes, and honestly barely enough time for the lawyers to do more than refer to the things they’ve written in the past and make mistakes.

The lawyers also seem incapable of addressing questions meaningfully. They either answer in circles or by restating points in ways that suggest that they may not actually know the answers.

I would not claim to have a meaningful understanding of the legal standing of the claim(s) against the ABR nor the ABR’s rebuttal to those claims, but you can read the most recent brief against the ABR here. Section titles under the heading “Statment of Facts” include such gems as “MOC is a Pure Money-Making Venture, for Which Monopoly Prices Are Charged, and Which Has Enriched ABR’s Coffers by More than $90 Million” and “There Is No Evidence of Any Benefit from MOC.”

If you’d like some background reading about the Sherman Antitrust Act, enjoy.

Fungibility

The initial judge seems to focus on whether MOC and other CPD (continuing professional development aka CME) products are fungible (i.e. mutually interchangeable), which of course they aren’t in the strict sense because the ABR has a monopoly in the certification market and no radiologist can choose to do anything other than be compliant with MOC or risk being unemployable.

From my reading, that’s sorta the whole point of the lawsuit.

OLA (ABR’s “online longitudinal assessment” program) may essentially be a CME product, but let’s be real here: Radiologists are not really paying the ABR for the OLA experience; they are–and have always been–paying for the credential.

“MOC” isn’t “Recertification”

There’s an interesting point where the ABR lawyer engages in historically inaccurate wordplay (at 2:08) saying that “recertification by its nature is different than MOC” because “it suggests that someone has to take a test to recertify,” whereas the ABR “chose a different path” in MOC because MOC “going forward post-2002” would require a “maintenance component, not recertification.”

This is super duper untrue because the switch to “time-limited certification” in 2002 was still very much the era when MOC actually did include a recertification test every ten years. The move to OLA didn’t take place until 2019, so the “different path” is a much much more recent fork in the road. (This is of course not to mention the simple fact that OLA functions as a test (taken in “tutor mode”) spread out over time with statistical assessment carried out after the participant answers 200 questions).

The ABR’s lawyer argues that Siva [the plaintiff] knew he had to do ongoing MOC when he got his certification as opposed to another exam-based recertification paradigm as she previously alluded to. But this is in fact also demonstrably false. Part of Siva’s initial complaint was that after passing the ABR’s 10-year recertification exam, he wasn’t given any credit toward MOC when the ABR started OLA in 2019. He did recertify. It didn’t matter how many years were left before your next test under the old (but still modern) system, you still had to do OLA (and pay the fees) on day 1.

At this point, a second judge asks the ABR lawyer point blank “what are the other MOC requirements [outside of OLA]?” and she dodges because she clearly doesn’t know. She says, “I believe that there are other components, but I don’t want to get too far outside of the allegations, your honor,” which is, essentially, I could bore you with the details but

He basically calls her out but doesn’t make her clarify.

MOC is Whatever We Say It Is

That same judge then goes on to bizarrely toss the ABR a bone and explains he was asking about the other components in order to parse the plaintiff’s argument against the ABR precisely because he believes it would be “extremely difficult” to argue that there is separate market demand for products “akin” to OLA.

This is an amazingly off-the-mark supposition in a world where there are several commercially successful products akin to OLA including multiple radiology-specific question banks (nearly all of which also predate the ABR’s OLA offering.) He then goes on to say he thinks radiologists are basically also paying the ABR for other random CME courses, which is also untrue.

Perhaps recognizing this friendly mistake about the uniqueness of OLA, the ABR’s attorney responds (paraphrasing):

ABR: no, that’s the wrong question because demand for OLA is irrelevant; it’s demand for MOC that matters, and MOC is whatever the ABR says it is.
Judge: “You can’t evade the substance of section 1 through the label [MOC], you know that…without using the label, what is the content of what you call MOC.”
ABR: …ABR is entitled to determine the content of its certification.

Essentially, the judge is trying to figure out if there is separate demand for some of the components of MOC, which is, of course, yes. But (but!) the ABR’s response: that demand is irrelevant because–to invoke the parlance of my people–MOC ingredients are only kosher if they’ve been given a hechsher by the authority of the ABR.

In real life, these are the quick answers to the judge’s query:

  • For OLA, as we just described, there is inarguably a robust market of radiology-specific question banks, most of which provide some assessment component and some of which even also provide official CME. These are largely analogous to the ABR’s OLA offering with the key distinction that the ABR doesn’t control them and profit from them. (And I suspect it is this desire to distance MOC from CPD that prevents the ABR from offering CME credits for the work required to do OLA despite very frequent requests from diplomates).
  • The non-OLA components are merely rubber-stamping the CME and QI/QA work that doctors basically have to do anyway. I think most people would agree it would be “extremely difficult” to argue that these provide independent value.

“That Cannot Possibly Be Your Position”

In response to the ABR’s it’s-my-party-and-I’ll-cry-if-I-want-to stance, the judge is flabbergasted:

“There’s no possible way…You can’t take the position that ‘we are the ones that certify and therefore we can define the content of the certification requirement without regard to the limitations of section 1 [of the Sherman Antitrust Act].’ That cannot possibly be your position”.

The ABR lawyer says no, but she’d just said that very thing and then literally reiterates it again in almost the same words.

This was presumably met with a long blank stare during the very pregnant pause in the audio.

So, she meant yes.

And the ABR is not entirely wrong, because MOC isn’t really a CPD product. The CPD part of MOC (OLA) is merely the veneer of credibility for the program. MOC isn’t really about CME.

It’s a tithe.

Conclusion

The reality is that every single person talking in that courtroom made statements that would be comically false to any practicing physician in any specialty and any participating member board of the American Board of Medical Specialities.

It’s no surprise that legal cases take forever, cost a fortune, and are generally unsatisfying. Over two years since the initial lawsuit was filed and the system still doesn’t even know the basic nuts and bolts of what recertification “continuing” certification actually requires and means for physicians.

The ABR and Platinum Transparency

It’s the time of year for breaking New Year’s resolutions and paying annual fees to the ABR.

In honor of the season, from the American Board of Radiology’s blog:

“In October, we posted on our website the most recent financial statements for the ABR and the ABR Foundation. Postings include the 2020 990 forms and statements of financial standing for the year ending December 31, 2020.

Additionally, since 2017, the ABR has earned GuideStar’s Platinum status, the highest level of organizational transparency recognition.”

I can appreciate the desire to toot your own horn but perhaps less so the justification for self-congratulation.

The ABR, like all nonprofits, must furnish their Form 990 every year. The additional financial statements they recently posted online essentially contain the highlights from this mandatory filing. They are the same documents I’ve also personally obtained in the past in response to a request for greater financial transparency/information. They are overall less detailed and differ only in some minor categorical changes due to their nature as documents intended for internal review and not regulatory compliance.

Now, this is of course outside my wheelhouse—I’m not a compliance officer at a nonprofit nor a federal auditor—but essentially doing the minimum is—to me—not a cause for celebration or even the sweet semi-embrace of patting your own back. I don’t expect a high five for not stealing nor a gold star for filing my taxes on time every year. Those are the rules. And if that small effort places the ABR in rarefied company amongst nonprofits, that probably says more about the United States’ implementation of the nonprofit tax designation than it does about the ABR.

In case you were curious, the ABR said it lost $4.2 million dollars in 2020 from their…strategic reserve of $46+ million. The ABR’s functional expenses have typically ranged from $13-15 million during the recent period from 2012-2017 and up to $17.2 million in 2018. 2020? $24 million.

The two biggest expenses in 2020 according to the financial statements were $11.2 mil for “office expenses” and $9.8 mil for “personnel expenses.” Some of the financial statement numbers differ slightly from the Form 990 for reasons I wouldn’t pretend to understand, but the official document breaks down that office expense a bit further and attributes $8.7 mil of it to “occupancy” (according to the IRS that’s “rent; heat, light, power, and other utilities expenses; property insurance; real estate taxes; mortgage interest; and similar occupancy-related expenses”).

That occupancy figure is a big jump. Here’s what it’s been in recent years:

2019 $1,371,602.
2018 $932,561.
2017 $1,092,930
2016 $383,165
2015 $395,661
2014 $1,147,284

I sent the ABR a congratulatory email about their Guidestar Platinum status and asked if they could provide some more information about this portion of their functional expenses and in particular the significant jump during the pandemic. To his credit, Executive Director Wagner personally responded:

The amount in question includes costs related to our commitment to a fully remote testing model during 2020. Some of the specifics of these transactions are bound by standard non-disclosure terms with outside firms.

I know you’re thinking that $7+ million in additional occupancy expenses for a testing process that involves less, umm, occupancy is a bit counterintuitive. Unfortunately no details were forthcoming, but one potential large expense could have been a commercial lease buyout for the now-defunct large exam center in Chicago (the ABR owns its office building in Tuscon).

In related news, I had also inquired about that lease, and he was gracious enough to provide a very specific answer:

As of January 31, 2022, the ABR will have no active lease agreements, so our occupancy costs will be significantly lower moving forward.

The lease is up mere days from now. Therefore, in this new world of platinum transparency and financial stewardship, candidates and diplomates should almost certainly expect a significant decrease in fees next year.

(Right?)

The ABR Online Testing Experience

When I finally got around to taking the Neuroradiology CAQ Exam this fall, I finally had the pleasure of partaking in the ABR’s remote testing platform. I put a lot of work into my posts about the Core and Certifying Exams back in the day, but they do hail from the pre-pandemic era.

Here are some thoughts on taking an ABR exam from the comfort of not Chicago or Tucson:

Big Brother

ABR relies on a third-party company called Proctorio for monitoring.

Everything–including the real-time video monitoring, capturing a photo of your picture ID during the start-up process, and the “room scan”–rely on the webcam. This feature was clearly intended to be used on a laptop, which you could easily pick up and spin around the room. The ABR now requires a separate dedicated side-view webcam, which makes the acrobatics a bit more complicated.

Instead of buying a separate webcam, I used a super old DSLR with a $15 HDMI to USB video capture card (the knockoff of the better Cam Link). This works fine (and it’s what I use for Zoom calls to have that beautiful bokeh so that people like me more), but it’s worth noting that if you don’t have good autofocus (and mine is so old that it does not), that it may take a few tries to get the screengrab of your photo ID good enough to satisfy Proctorio’s artificially intelligent needs. Depending on your desk set up, a relatively short cable connecting the camera to the computer or a tripod to have the camera high enough to actually see anything if you don’t have a dresser or something suitable nearby can make the room scan awkward and a bit tenuous. A longer USB cord helps. After around 5 minutes of finagling, eventually, I was allowed to take the test.

You could also use your phone as a webcam by using one of many inexpensive apps like Camo or EpocCam, which is probably the best option, especially if you already have some sort of suitable stand or one of the infinite variety of cheapo phone tripods.

Anyway, what I’m trying to say is I don’t think most people need to buy a dedicated external webcam just for the purpose of taking one of these ABR tests. Especially since most webcams are terrible.

I will say that Proctorio didn’t make me install any apps on my phone, and the Chrome Extension is easy to uninstall. I don’t think anyone is going to have their identity stolen or be harassed by call center employees. While I am admittedly not very experienced with the myriad options for education spyware, it seems like the ABR picked one of the better players.

Computer Set-up

I really wanted to use my home workstation. It has direct fiber internet and a system I use every day for radiology-type stuff. However, Proctorio and the ABR have a 1 monitor rule, and I–in my radiologist glory–have 4 monitors. To satisfy Proctorio, any extra monitors in the space have to be missing from your system entirely, so simply turning them off isn’t good enough. They need to be totally unplugged from your computer so that they don’t show up. I use a dual PC system set-up to read simultaneously for the hospital and our outpatient PACS by swapping monitors and peripherals between two different PCs using a KVM switch. It’s awesome. But the nest of monitor cords is no joke, and the settings are just how I like them, and there was no way I was going spend the time unplugging stuff and jeopardize any of that in order to take a 3-hour exam with a bunch of low-quality JPGs.

Instead, I took it on my 2017 iMac over WiFi, which is across the house from the router, and it was fine. The biggest problem was getting Proctorio happy with the backlighting from the adjacent window overexposing the camera and making me look too dim.

Yes, I did roll over my attending chair, the Herman Miller Embody, from across the house for the experience, and it was worth it.

The Practice Test

The practice test is a 98 question process, but really it’s just designed to get you to make sure you can pass Proctorio’s welcome barriers and familiarize yourself with the software. The content is a random hodgepodge of questions, but there is no performance feedback or answer key, limiting usefulness as an actual practice exam experience.

The content parallels the Core Exam, which is to say I found it more difficult now as a super high-performing experienced attending radiologist than I would have as a resident. Go figure.

The Online Platform

I would show you some screenshots, but, you know, I can’t.

The software is totally fine. It works. You have a bunch of tools to manipulate the images, but since most images are just static screen grabs of middling quality, you usually don’t need to do anything. In fact, the image sizes are small enough and the questions themselves short enough that you really don’t need or even want a large monitor or anything fancy to take the exam. Your average laptop screen has plenty of real estate.

The ABR locks your past performance every 30 questions to prevent you from altering your responses to prior questions after you’ve left the surveillance zone for breaks (aka cheating). Locking so frequently is a touch annoying, and I’m sure the policy frustrates the people who want to blaze through the whole test and then agonize for hours on all the questions they flagged at the end. Psychologically, this is probably healthier, though it does make flagging a question basically useless.

I wish they just locked questions at breaks and not after so short a period, but given intermittent connectivity issues, the shorter batch size probably helps substantially reduce their tech support demands. It’s a worthwhile price to pay for the convenience.

Another irritating feature is that the ABR really wants you to move forward through the exam and not backward to revisit old questions, so much so that if you try to visit the previous question, the software prompts you with a pop-up saying (paraphrasing) “forward is so much better, are you sure you want to go back?”…which is annoying. I think the idea here is that they especially don’t want you to see a question, not answer, go backward, lose access in some way, and then have to unlock the question for you and/or question your integrity. 

On exam day, I got a brief “connection lost” warning twice, lasting for a few seconds before being reestablished automatically, otherwise no interruptions. I know people personally and online who had less good luck, sometimes being completely kicked out and needing to call to have questions unlocked. To their credit, I’ve only heard good things about ABR customer service when it comes to helping with exam connectivity issues.

Overall

Overall these inconveniences are a small price for being able to wear pajamas and take a break literally whenever you want, which is wonderful. The ability to use a bathroom mere feet away or get drinks and snacks on a whim creates a completely different ambiance than a typical testing experience.

Not having to pay for flights and hotels, waste days on both ends for travel, and leave your family is also almost priceless.

In some ways, it’s a little harder to get in the normal high-stakes exam headspace without the suffering, but it’s a breath of fresh air that I enjoyed nonetheless. I bought a twelve-pack of Diet Mountain Dew just for the occasion, and I made myself a nice fresh ice coffee as well (see above, hat tip double-walled insulated glasses) to sip while answering ludicrous questions about differentiating spinal cord tumors. 

If that’s not the dream, I don’t know what is.