Judge Alonso dismissed the amended class-action lawsuit against the ABR on January 8, continuing the trend of denying a duel by trial in the ongoing saga of various doctors against the ABMS hegemony. You can read his opinion (~15 pages) here (and my most recent prior lawsuit-related post is here).

I can’t speak for its legal merits/basis, but as a non-lawyer, it’s pretty uninspiring. He largely turfs his interpretation to the prior ABIM lawsuit ruling.

The synopsis is that the judge is not convinced that initial certification (IC) and maintenance of certification (MOC) are different products because they were never sold separately. While IC was sold by itself, MOC was merely added decades later and never sold as a standalone product (never mind that a real monopoly would smartly generally avoid doing such a thing in real life).

This is probably a flaw in US antitrust law. When Microsoft got hammered for bundling Internet Explorer with Windows, Microsoft argued that IE was an inseparable part of Windows. This bundling crushed the browser war competition, further cemented Microsoft’s dominance, and stifled innovation for years. But part of what caused Microsoft to lose that argument was that IE was available on Mac, proving it could be a separate product. That detail, which in real life is functionally ancillary nonsense, was nonetheless key to proving Microsoft’s violation of the Sherman Antitrust Act.

Judge Alonso also doesn’t buy that there are separate markets for IC and MOC, not agreeing with the plaintiff’s new argument that MOC is essentially the same thing as other CME offerings. I agree that’s a hard sell, but he does discount that the NBPAS is selling its own MOC product as proof that separate demand for MOC exists (and that said NBPAS is struggling to compete given the ABMS monopoly in physician certification).

Would opening the gates to further scrutiny help? Should there be a chance to develop evidence? Would seeing some raw material from the ABR change the narrative?

It is true, as plaintiff argues, that many of the cases on which both parties rely throughout their briefs were decided, unlike this case, at the summary judgment stage or later, after the parties had the opportunity to develop evidence in discovery.

But then Alonso goes on to say he doesn’t believe the evidence will bear out the claims, so he’s not interested in seeing it. And even if it did:

On top of all of this, even if the Court assumes that initial certification and MOC are separate products, the Court still fails to see in what sense the tying arrangement alleged here poses a risk of foreclosure of competition in the tied market. “The traditional antitrust concern with [a tying arrangement] is that if the seller of the tying product is a monopolist, the tie-in will force anyone who wants the monopolized product to buy the tied product from him as well, and the result will be a second monopoly.”

The argument here is that essentially only MOC from the ABR has value because the ABR has a monopoly on IC. That MOC, even if untied, would be its own monopoly, because MOC from any other entity in this context would be meaningless. This is probably true in the current regulatory climate but is also guaranteed by rulings like Alonso’s.

Ultimately, the issue in medical certification isn’t necessarily the tying of MOC. It may be meaningless rent-seeking, but it may well be within the purview of the ABMS member boards. The underlying problem is that the complex regulatory and credentialing environment now includes (historically optional) certification to such an extent that no competitor can feasibly provide an alternative to initial certification. And this lack of competition and accountability has led to bloated organizations with outsized revenues and debatable value.

Although the Court doubts at this point that plaintiff will be able amend the complaint to state a claim, it cannot say so with certainty, so the dismissal is without prejudice and with leave to amend. Alternatively, plaintiff may elect to stand on the amended complaint and ask the Court to enter a final and appealable judgment.

And so, round two formally concludes.

Any amended complaint is due by February 5, 2021, but I suspect this may be the end given the legal costs. One guy against a monolithic organization with deep pockets was always going to be a tough battle. I doubt there’s much more here to amend for Alonso’s sake, but certainly appealing a final judgment to a higher court would be conceivable.

With permission, I’m reposting a (very lightly edited) anonymous social media post from a young radiologist who joined a private practice that had recently been purchased by private equity:

I think I committed a huge mistake in signing up for a job with a large private practice group that was bought by a big private equity group in the radiology space. There has been a massive turnover of non-partner radiologists, over 30+% pay-cut in collections, very close monitoring of productivity, poor leadership, and no concern for younger radiologists. Almost everything told to me at the time of my interview turned out to be incorrect including work volume, projected compensation, and the reasons non-partners had left.

Several older partners are retiring as they made their millions in the buyout. The practice can’t hire fast enough as younger rads keep quitting or getting fired, so we’re overall chronically understaffed. I work extremely high volume (25k or more RVUs/year) extremely busy call with very low salary of $300k.

I fear there could be another sale of the practice in the future given how rapidly this private equity company is trying to acquire other practices, further driving down salary. We’d stay understaffed (many non partners leave after the buy-out), so volume will likely still be too high especially for the salary given. Could go on, but feeling really stuck. Any recommendations if I should stick it out or quit?

This is the private equity bait and switch, and I don’t even mean just in the premeditated awfulness of an operational model largely predicated on buying a business with the intent of squeezing the value-creating units (human beings) for more value by a combination of more work for less pay.

I mean that, in many cases, the natural history of these practices can result in a nonviable work environment through what should be an expected evolution of staffing changes.

Let’s walk through one way this can play out:

• Partners get a buy-out that doesn’t fully vest for a pre-specified duration of time.
• Some non-partners immediately leave the practice due to perceived or real insult, insufficiently generous retention package, or knowledge that long-term income will fall. Non-partners expect to pay sweat equity to become a shareholder, but they don’t want to work hard for less pay if there isn’t a meaningful long-term partnership at the end of it.
• Non-partner employee exodus results in immediate understaffing. With the same work and fewer people, everyone is taking more call and needs to work harder to keep up with the lists. Even a desirable practice can’t necessarily hire people instantaneously.
• The job is therefore less desirable and may have a hard time recruiting and retaining talented employees.
• The partners finally get all of their money. Many may have planned to retire anyway at this juncture but many more will certainly move on if the job now sucks, which it often does.
• Even more understaffing occurs.

Most PE practices haven’t gotten past this timeline yet. Potential outcomes are re-selling to a larger fund, selling the practice back to the original physician shareholders, and/or significant operational changes. In a chronic understaffing situation, employee pay sometimes becomes more competitive in order to retain FTEs. In some cases, the now underperforming practice may lose imaging contracts, which has the unanticipated benefit of fixing the understaffing problem.

Now to be clear, these issues can arise in any practice. There are certainly examples of physician-owned groups squeezing employees in the workup with the promise of partnership only to churn them when the time comes. Corporations and PE groups absolutely do not have a monopoly on being jerks. However, a once-profitable business is automatically less “profitable” when a third party inserts itself to take a mandatory cut. The value-add of oft-touted “productivity” gains can only take you so far, particularly in the face of downward reimbursement pressure.

And to be extra clear, someone just making you work harder and read more cases per day for the same pay isn’t the kind of efficiency gain any group should be proud of. While $300k is obviously a lot of money, the average radiologist reads in the ballpark of 10k RVU per year depending on subspeciality. 25k RVUs is a massive number, which means that the anonymous poster is generating a ton of money for someone else on the back of their misery.

Their job is almost certainly not going to get better, and they should leave.

Lesson: Know the group dynamics and local market of any practice you consider joining.

The report from the ACR Task Force on Certification in Radiology is out. This is the American College of Radiology’s formal take on how the American Board of Radiology is doing exercising its monopoly on radiology certification.

It’s clear, concise, well-researched, and contains wonderfully diplomatic language. I admire the restraint (emphasis mine):

Fees have remained unchanged for initial certification since 2016 and MOC since 2015. We acknowledge there is a cost of doing business and reserves are necessary but increased transparency and cost effectiveness are encouraged.

This in reference to finances like this. Such a gentle request.

Radiologists are also concerned that there is absence of scientific evidence of value.

An understatement certainly written like it was dictated by a radiologist.

We congratulate the ABR for modernizing its testing platform for MOC Part 3. The move to OLA is a responsive change from feedback. However, we are not aware of any theory or research that supports how the annual completion of 52 online multiple-choice questions (MCQ) demonstrates professional competence.

Ooph. Boom goes the dynamite.

MOC critique is tough.

On the one hand, OLA is better than a 10-year exam based on sheer convenience alone. It’s a trivial task, and therefore I know many radiologists don’t want to complain because they’re concerned that any changes would only make MOC more arduous or challenging (a valid concern). Organizations would much rather increase the failure rate to stave off criticism about a useless exam than actually get rid of a profit-generating useless exam (see USMLE Step 2 CS).

On the other hand, what a joke. There is literally no basis for assuming this token MCQ knowledge assessment reflects or predicts anything meaningful about someone’s ability to practice. Even just the face validity approaches zero. (Of course, this argument could also apply to taking 600+ multiple-choice questions all at once for initial certification).

Scores on standardized tests have been shown to correlate better with each other than with professional performance. Practical radiology is difficult to assess by MCQs, requiring a much greater skillset of inquiry and judgment.

This relates to the only consistent board certification research finding: standardized testing scores like Step 1 are the best predictors of Core Exam passage. People who do well on tests do well on tests. And while certainly smart hard-working people are likely to remain smart hard-working people, it remains to be seen if Step 1, in-service, or even Core Exam performance predicts actually being excellent at radiology versus being excellent at a multiple-choice radiology exam.

The obvious concern is that it’s the latter: that the ABR’s tests do not differentiate between competent and incompetent radiologists, and that we are largely selecting medical students based on their ability to play a really boring game as opposed to their ability to grow into radiologists.

Successful certification programs undertake early and independent research of assessment tools, prior to implementation. This is a vital step to ensure the accurate assessment of both learner competence and patient outcomes.

Subtle dig with the use of the word successful, but this is the crux:

Assessments are not bad. Good assessments are a critical component of the learning process. Bad assessments are bad because they provide incomplete, confusing, or misleading information, a problem compounded when a preoccupation with doing well on said bad assessment then distracts learners from more meaningful activities (look no further than Step 1 generated boards fever).

Medicine and radiology should not be limited by legacy methodology. Recognizing that learning and assessment are inseparable, the ABR has the opportunity to lead other radiology organizations, integrating emerging techniques such as peer-learning and simulation into residency programs. Assessment techniques are most effective when they create authentic simulations of learners’ actual jobs, although such techniques can be time-consuming and resource-intensive to develop.

Yes.

And I’ll say it again: diagnostic radiology is uniquely suited–within all of medicine–to incorporate simulation. Whether a case was performed in real-life years ago or is fresh in the ER, a learner can approach it the same way.

Despite alternative certification boards, the market dominance of the ABMS and its member boards has been supported by a large infrastructure of organizations that influence radiologists’ practices. The ABR should welcome new entrants, perhaps by sponsoring products developed by other organizations to catalyze evolution, innovation and improvement to benefit patients.

Hard to imagine that alternate reality.

Although the ABR meets regularly with leadership from external organizations, such as APDR, the ABR could better connect with its candidates and diplomates by reserving some voting member positions on their boards for various constituencies.

As I discussed in my breakdown of the ABR Bylaws, there is a massive echo chamber effect due to the ABR’s promotion policy, which requires all voting board members to be voted in by the current leadership, usually from within the ranks of its hard-working uncompensated volunteers. This means that operationally, the ABR is completely led, at all levels of its organization, by people who believe in and support the status quo.

Meeting with stakeholders may act as a thermometer helping them feel the room. The recent inclusion of Advisory Committees that give intermittent feedback and the perusal of social media commentary may provide the occasional idea. But all of this information is, by the ABR’s design, put into a well-worn framework.

The ABR is designed to resist change.

No one has a vote who wasn’t voted to have a vote by those who already vote.

And that’s a problem.