Earlier today the ACR passed resolution 50 without dissent, a gesture made in response to the recent (and ongoing?) MOC agreement debacle. The thrust of the resolution is that the American Board of Radiology should strive to “minimize power imbalance in decision-making between those professionals and the certifying body by committing to representative, inclusive, and transparent decision-making.” Also that they should consult the ACR before making terrible participation agreements and should also share said agreements in advance for public comment from candidates and diplomates.

Little birdies informed me that the ABR was working hard behind the scenes to spike this resolution. However, when it was presented during the reference committee hearing on Monday and then came up for a vote today, the ABR maintained complete radio silence. Not a peep.

This is, oddly, in strange contrast to recent promises of greater communication and transparency, such as when the ABR President recently said he wanted to “take ownership of flawed or incomplete communications.” Given the opportunity to literally address the entire radiology community and its largest deliberative body, the ABR didn’t say anything. They didn’t argue that they were right. They didn’t admit that they were wrong. They offered no window into the agreement process or any public acknowledgment or response to the many questions and comments that are contained in the resolution or that were raised during the discussion.

Why?

Because they don’t have to.

The core problem with the ABMS member boards like the ABR is that they are completely unaccountable. They may claim “business league” nonprofit status as 501(c)(6) organizations, but they are not accountable to their fields or their diplomates. The ACR has no power over the ABR. So why should the ABR work with them? Why subject itself to a public flogging? Better for that to occur on Twitter, anonymous forums like Aunt Minnie, and yes, right here.

During the reference committee discussion, I offered this testimony:

In its recent apology email to diplomates, the ABR suggested that the new MOC agreement was a slip-up. They wrote, “an error in the creation of the agreement resulted in the posting of an incorrect document, with more restrictive language than was intended.” This statement is at best misleading. The document was not simply a one-off overreach. I would like the members of the college to know that I and all other recent diplomates have been forced to sign similar agreements during our training. I signed a nearly identical agreement waiving my own due process rights in 2013 when I was a first-year resident. And today, despite softening the language of the recent MOC agreement after the public outcry, the current Candidate Agreement containing the exact same problematic language remains completely unchanged. We are leaving our most vulnerable colleagues out to dry.

The ABR is currently starved of external influence and oversight. Their bylaws mandate that nominees for the Board of Governors are solicited internally and elected by 3/4 majority of the current BOG. This insular approach essentially precludes outside perspectives. Once elected, the ABR conflict of interest policy “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.”

This is deeply problematic. The ABR, by its own bylaws, is unaccountable to radiology and to radiologists. This is why we have our current state of affairs.

What we do matters. We should demand transparency and excellence from any organization that has an impact on our field and our practice. And if the ACR will not take a stand for radiologists then who will? This resolution could be a small first step toward creating a more meaningful working relationship.

Ultimately, this ACR resolution is purely symbolic.

Unfortunately, the ABR’s softening of the recent MOC agreement language was also merely a placating gesture, because it’s functionally similar despite the removal of the most heinous legalese.

There is a massive power imbalance here. In a situation where you can only vote with your feet, you have to be able to walk to wield influence. But doctors can’t strike. And the only people that can meaningfully do so in the current climate are the grandfathered lifetime certificate holders who are optionally enrolled in MOC, and they make up a shrinking fraction of the ABR’s profits every year.

Until the ABR decides that transparency and democracy will help their mission (or their bottom line), they have no need to listen.

But I hope they will. And I hope the ACR will take increasingly strong positions in future years because they’re an important part of the certification narrative that the radiology community needs to hear.

This week the American Board of Radiology emailed its diplomates in response to the continued concern that its initial fix to the over the top legalese in its agreements was buried so deep that no one could see it as well as the frustration that people who caved early didn’t have a chance to sign the new one.

I know some regular readers are getting bored of all this ABR talk—and we’ll be moving on from this flurry soon I promise—but there’s also a lot to learn here about management and organized medicine.

The ABR, clearly hoping for a gold star, started with this email subject line: “We listened to your concerns about our MOC Participation Agreement.”

Glad to hear it.

Today we’re discussing how to apologize.

Dear Diplomate:
As part of your enrollment in the ABR’s Maintenance of Certification (MOC) and associated interactions with our website, periodic renewals of user agreements are needed to codify the understanding of the limitations of usage of the materials and the extent of liability. This is especially important in establishing the security of the content used in assessment, in order to maintain a secure, valid, and fair process.

In March, an error in the creation of the agreement resulted in the posting of an incorrect document, with more restrictive language than was intended. Specifically, our request for those enrolled in MOC to waive certain legal rights was neither reasonable nor necessary.

I gave the ABR some advice on how to apologize back in 2017. When an accountable organization makes a mistake, they should:

1. Express regret and acknowledge responsibility
2. Be transparent and describe the mistake
3. Give an action plan and steps to correct the problem
4. Ask for forgiveness

They do a decent (incomplete) job of #3 and #4 in the following paragraphs. But they did a terrible job with #1 and #2.

The ABR is pretending that a Janice or Karen or Peter accidentally uploaded an “incorrect” document that was spuriously created in “error.” While we can all agree that waiving legal rights is stupid and unnecessary, this wasn’t an oversight. In terms of quality parlance such as might have been seen in the ABR’s manual for noninterpretive skills, the creation of the MOC agreement was not a “slip.” It was a bad choice and a manifestation of bad decision making.

It was deliberate. To say otherwise is ludicrous.

Especially so because this language was not new. I actually looked back at my own myABR history and saw that the same BS was in the “Agreement for Candidates and Diplomates” that I signed back in 2013, when I was a busy first-year resident unlearned in the machinations of our radiology overlords.

Perhaps the ABR was coyly suggesting that the language was unnecessary because all recent trainees have already signed away those rights. To wit, while the ABR changed the MOC agreement, they have not changed the Agreement for Candidates and Diplomates, which includes the same language.

Residents are a vulnerable population. Diplomates and organized radiology including the ACR should continue to put pressure on the ABR to fix this issue across the board. Don’t leave the trainees out to dry.

A revised document has since been implemented at https://myabr.theabr.org/moc-agreement. After discussion with counsel, acknowledging that the new language is far less stringent, this will supplant the original agreement for those who have already signed. Alternatively, these individuals may choose to sign the new agreement, but it is not required.

Now diplomates can now choose to sign the new agreement. Misuse of the term grandfathering has been avoided.

In view of the increasing administrative requirements inherent in the daily practice of medical practitioners, the ABR has an obligation to lessen such burdens whenever possible. We apologize for the error and hope to learn from it. No process is perfect, but we can and should continuously improve our processes based not only on internal quality control but also on feedback from our stakeholders, especially the radiology and physics professionals we are privileged to serve.

This is an excellent paragraph.

Sincerely,

Brent J. Wagner, MD
ABR President

Valerie P. Jackson, MD
ABR Executive Director

In short: I don’t know why the ABR is institutionally incapable of giving a real apology.

But more importantly, the ABR only fixed part of the problem. They responded to the loudest voices, but they didn’t even fix the imposition of onerous language on our youngest colleagues let alone address the problematic “processes” and organizational perspective that created it in the first place.

Residents from across the country in the ACR Resident and Fellow Section came together and assembled a nice collection of free radiology learning resources from across the interwebs including lots of videos.

You can help to add more. It’s a Google doc.

Check it out.

In response to concerns about exam administration, the American Board of Radiology has now released a “Statement on Delivering Remote Exams” to their Coronavirus updates page:

In response to queries, delivering our exams remotely is problematic. We have investigated many options, but the inability to adequately control image quality, the testing environment, and security would significantly threaten the fairness, reproducibility, validity, and reliability of the testing instrument across candidates.

A challenge? Sure. Problematic? A pure cop-out. To be absolutely clear, the ABR has already used remote testing in the past. It was just on their terms due to their mistake. There is nothing about ABR exam administration that cannot be effectively recreated in a remote setting, especially under these unprecedented circumstances.

We want to give exams that fairly and accurately assess a candidate’s knowledge and experience.

We’ve long since moved past wants and desires here. Nobody wants to be dealing with this, but forcing nationwide travel is by far the greatest threat to fair and accurate candidate assessment.

We pledge to remain flexible and responsive to candidate needs, and we appreciate everyone’s patience as we all go through the pandemic’s effects together.

Being “responsive to candidate needs” and also rejecting the idea of remote testing are 100% incompatible. This is absolutely a public health issue, and a head-down blinders-on approach is unacceptable for a health-related organization purporting to act in the public’s interest.

Last week, people were upset about the heavy-handy liberty-destroying verbiage of the ABR’s new MOC agreement. Some people complained. At least one cranky fellow wrote a blog post about it, and then two days later the ABR backtracked and promised to remove the language about waiving various rights.

They did, in fact, do that. But, oddly, they didn’t release the full text on their website as people requested (and certainly not a track changes-type comparison or an explanation). Those who already signed the old agreement thus can’t see the new agreement for which they are automatically being “grandfathered.”

(It’s perhaps also worth noting that the ABR ironically used the term grandfathering incorrectly. Grandfathering is when old people get to keep using old rules despite subsequent changes. The ABR does this literally every day when lifetime certificate holders are exempt from MOC. Automatically making a new agreement retroactive is the opposite of grandfathering.)

Regardless, here is the new agreement (with commentary, natch).

I UNDERSTAND AND AGREE that by enrolling in the American Board of Radiology (ABR) Maintenance of Certification (MOC) Program, I am subject to the policies and procedures of the program and agree to hold myself to the highest ethical standards in the practice of my specialty.

Deal.

I UNDERSTAND AND AGREE that the ABR MOC program is designed to monitor my professionalism and professional standing, lifelong learning and self-assessment, assessment of knowledge, judgement [sic] and skills and improvement in medial [sic] practice.

Yes, they really misspelled judgment and medical.

I UNDERSTAND AND AGREE that as a diplomate of the Board, I have the responsibility to supply the Board with information adequate for the Board’s proper evaluation of my credentials, moral, ethical and professional standing. I authorize any hospital or other medical or professional organization, or person who may have information relevant to its evaluation of my certification and/or enrollment in the MOC program to provide such information upon request. IF requested by the Board, I will sign and promptly return appropriate consents for release of information addressed to specific persons or entities.

This is a less scary wording of what amounts to the same material. As in, you will cooperate with ABR investigations and aid the ABR in information gathering about you when your privacy rights prevent the ABR from doing so without your consent.

They no longer mention things like waiving FERPA but presumably, all of the details still apply here. If you agree to let them do whatever they want, then you will be signing away those same rights during an investigation if requested. While this sounds bad, it’s hard to imagine the ABR being able to revoke certification from bad actors without this information unless they always wait for state boards and hospitals to act first and then just follow suit.

I UNDERSTAND AND AGREE that any communications made to the Board regarding my certification and/or enrollment in the MOC program may be made in confidence and will not be made available to me under any circumstances. I hereby release from liability any hospital, medical staff, medical or professional organization, person, or the Board of Governors from liability for acts performed in good faith and without malice in connection with the Board’s request for information.

This is also essentially the same. We can’t try to punish whistleblowers.

I UNDERSTAND AND AGREE that should information be received which would adversely affect my certification and/or enrollment in the MOC program, I will be so advised and given an opportunity to rebut such allegations. However, I will not be advised as to the identity of any individual or entity who has furnished adverse information concerning me, and that all statements and other information furnished to the Board in connection with such inquiry shall be confidential, and not subject to examination by me or anyone acting on my behalf. I also agree that I will not use any litigation process, subpoena or other means to attempt to cause any disclosure of adverse information received by the ABR regarding my character or certification.

Whistleblowers can maintain anonymity. I know this was troubling to many people but doesn’t actually bother me that much with the exception of theoretical reports that are not made in good faith. It’s common practice for good faith reports to be protected from liability. But malicious and false reports, once discovered, are typically not immune, and if the motivation behind a report were to become suspect, I’d like to see that language put in. It’s also hard to imagine being able to robustly rebut allegations if “all statements and other information” are confidential.

I CONSENT to have my name and demographic data, including type and date of all ABR certifications and maintenance of certification status included in any list or directory in which the names of diplomates of the specialty boards are published.

Uncontroversial and unchanged.

I AGREE the Board is not liable for any incorrect information provided to the medical community or to the public regarding the status of my certificates, and I further agree that I will promptly notify the board of any errors or omissions in such information.

CYA, meaning unchanged.

I UNDERSTAND AND AGREE that the continued validity of my certificate will be contingent upon my meeting the requirements of the Maintenance of Certification Program (MOC) administered by the Board, as amended from time to time.

I.e, unless the ABR one day loses a lawsuit, you will always need to pay ABR’s MOC tax to remain board-certified.

I UNDERSTAND AND AGREE it is my responsibility to stay informed regarding all aspects of the MOC program and understand that the Board does not have any responsibility to provide individual diplomates with notice of changes to MOC policies.

This is also largely unchanged and is a petty cop-out. The idea is presumably to prevent diplomates from pleading ignorance when they don’t fulfill some component.

I UNDERSTAND AND AGREE that it is my responsibility to notify the ABR of any changes in my mailing address, phone number and email address. All changes made by me via the website shall be accepted as legally binding, and will become the property of the ABR.

ABR, you can’t just seize my property just because I enter my address in your system…

I’m kidding, more or less. What this actually means is that the ABR can legally sell your contact info to the highest bidder (gross).

I UNDERSTAND AND AGREE that it may be necessary for the ABR to revise and update this Agreement at a later date, and that I may be required to sign the updated agreement, which will replace and supersede the terms of this agreement.

We can have an internet discussion again when that happens.

Summary

This is shorter and more readable. All the truly heinous stuff has been removed. Is it perfect? Of course not. Is the effect in some cases the same despite the softer language? You bet. Is it much better than it was last week? Undeniably.

Why the ABR is burying their fix is beyond me. They should, in fact, delete all the recent agreements and ask all diplomates to sign this new version. Everyone deserves to see what they’re signing, and the other agreements (even if “grandfathered”) should not continue to exist.

Little known fact, but the ABR recently added a public member to the Board of Governors. She recently wrote a hello article for The BEAM.

How boards like the ABR certify that their members have the requisite skills and knowledge to benefit patients is not well understood by the public, nor by many people in health care. I am learning about the hard and important work done by the ABR, largely behind the scenes and not apparent to the ultimate beneficiaries, the American people.

It’s also not well understood by the ABR. How exactly does the ABR certify radiologist skill again?

When I teach MBA students who are interested in health care about how organizations like the ABR ensure quality, they are surprised. They know more about the roles that government and private insurance companies play in what practitioners can and can’t do. They find it reassuring that groups like the ABR operate solely in the public’s interest. They are impressed that even as medical knowledge has explosively expanded, specialty boards have continued to meet their missions.

Solely in the public’s interest? Not quite.

It’s true that the public-facing mission of the ABR is “to certify that our diplomates demonstrate the requisite knowledge, skill, and understanding of their disciplines to the benefit of patients.”

But I guess no one told the new governor and first public member of the board that the ABR, by its own bylaws, acts in the ABR’s best interest.

Section 4.6. Conflicts of Interest. 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.

Did she not have to sign some sort of absurd legalese-filled contract confirming her unwavering loyalty to the ABR? Because I was asked to just to keep taking my OLA questions last week.