Update: Two days after this post was written, the ABR announced they were essentially following the recommendations at the bottom of this post including removing all the problematic language from the agreement and extending a new less onerous version to all diplomates, including those who had already signed the version I’ve outlined below. I have not yet seen this new version, but the ABR states it now just focuses on outlining the terms of MOC and not stealing the ABR’s copyrighted intellectual property. If this pans out as promised, it would be by far the most responsive the ABR has been to any stakeholder concern for at least the past decade.

You’ve signed dozens if not hundreds of EULAs over the years. Those are the “end-user licensing agreements” that pop up whenever you install software on your computer or start using a new service. They’re usually filled with pages of legalese, and no one reads them.

Presumably as a response to last year’s lawsuit, the ABR has foisted a mandatory draconian agreement on all of its candidates and diplomates. The difference between the usual EULA and this is that a real EULA is a choice.

You should read this one—even when you inevitably sign it—because it’s yet another stellar example of the ABR’s heavy-handed tone-deaf approach to just about everything within its tiny little purview.

The two versions (one for “candidates and diplomates” and one for MOC) are almost identical, so we’ll just break down the best parts of the MOC agreement.

Findings

By entering into this Agreement for Diplomates (hereinafter the “Agreement”), I pledge myself to the highest ethical standards in the practice of my discipline.

So far so good.

I agree to disqualification from examination or from renewal of a certificate in the event that any of the statements herein made by me are false, or if I violate any of the policies, rules and regulations, or the Bylaws of the Board.

You’re the one really making statements for me in this, but okay, I get it. On a related note, everyone should really read the ABR bylaws.

I recognize the trustees of the Board as the sole and only judge of my qualifications to receive and to retain a certificate issued by the Board. 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 character and my credentials.

I take the first sentence to mean that we promise not to try to have any other competing board or entity do MOC, as it has recently been argued in court that initial certification and maintenance of certification are actually separate products and should be untied, freeing other entities such as the NBPAS to provide competing MOC products. Signing this is essentially saying you agree with the court that the ABR’s monopoly is totally okay.

Additionally, I hereby request and authorize any hospital or medical or professional organization of which I am a member, have been a member, or to which I have applied for membership, and any person who may have information which is deemed by the Board to be material to its evaluation of my registration or certification, to provide such information to representatives of the Board upon their request. I agree that communication of any nature made to the Board regarding my registration or certification may be made in confidence and shall not be made available to me under any circumstances. I hereby release from liability any hospital, medical staff, medical or professional organization or person, and the Board and its trustees and other representatives, from liability for acts performed in good faith and without malice in connection with the provision, collection, or evaluation of information or opinions, whether or not requested or solicited by the Board in connection with my registration or certification.

You agree that anyone you have ever or will ever meet should spy on you for the board’s pleasure, and the board will never tell you who. Despite dramatic verbiage, this is actually how state medical boards and lots of other certifying organizations function. That said, it’s not hard to imagine a world where the ABR goes digging for dirt on people it doesn’t like.

I understand and agree that in consideration of my registration, my moral, ethical and professional standing will be reviewed and assessed by the Board; that the Board may make inquiry of the persons named in my registration form and of such other persons and entities as the Board deems appropriate with respect to my moral, ethical and professional standing; that if information is received which would adversely affect my registration, I will be so advised and given an opportunity to rebut such allegations, but 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 by anyone acting on my behalf.

Due process, presumably. But I will point out that people are scared of the ABR. One anonymous complaint and your livelihood could be dragged in the mud. What’s the threshold when it comes to moral and professional behavior? Is mocking the ABR on Twitter still okay?

I agree that I will not use any litigation process, subpoena or other means to cause or attempt to cause any disclosure of the contents of any registration form, including my own, or any proceedings of any committee’s evaluation of such registration form or of my certification, whether such disclosure is by operation of law or otherwise.

What about litigation to end a monopoly? Oh, that’s a separate paragraph.

This one is a little confusing at first but seems to suggest that any deliberation of the ABR behind closed doors will always be confidential. You agree, for example, that even if the ABR were to opaquely and perhaps unfairly take away your certification, that you have no legal means to find out the real reason why, fight back, or obtain recompense.

I accept that the Board determines admissibility to all MOC examinations, and that each examination is supervised by proctors who are responsible to the Board and are empowered by the Board to ensure that the examination is conducted ethically and in accordance with the rules of the Board. I understand that I must bring government-issued photo identification to any examination that I attend. Such government-issued photo identification includes one of the following: state-issued driver’s license, military ID, passport, or state-issued ID.

This is a little odd because most diplomates now have to do OLA and no longer take MOC exams, but a similar passage is in the agreement for residents/fellows for the initial certification exams. This does suggest that any dissemination of the ABR’s exams (a topic I will be returning to in the near future) would require an amendment to this agreement.

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

It’s not the ABR’s fault for making mistakes in its core functions.

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 (ABR-MOC) administered by the Board, as amended from time to time. I understand that the ABR-MOC program is designed to monitor my professional standing, lifelong learning and self-assessment, cognitive expertise, and practice quality improvement, each an MOC component for which I am responsible.

This is a tough one because stating that I “understand” that MOC is “designed” to monitor “cognitive expertise” is a false statement, which we agreed not to do at the beginning of the agreement. We all know that MOC in its current form is revenue generation thinly veiled in trivial box-checking.

I agree to participate in ABR-MOC in accordance with and subject to stated policies, rules and regulations, as amended from time to time, including timely payment of fees. The Board does not undertake any responsibility to provide individual diplomates with notice of changes to MOC policies. I further understand it is my responsibility to stay informed regarding all aspects of the MOC program and my progress therein, through my personal database and the ABR website. I will keep truthful and accurate records of my participation in the MOC program, and I will promptly advise the Board of any change of my current contact information.

The ABR of interviews and “the Beam” newsletter and the ABR of constant defensive legal posturing are not the same organization. I will quote ABR president Brent Wagner: “One of the fundamentals I’ve been encouraging is to take ownership of flawed or incomplete communications.”

So, it’s the ABR’s responsibility to do that, except not really, because we want to be able to blame you if we do a bad job.

I understand that it may be necessary to revise and update this Agreement at a later date, and that as a condition of continued certification and/or participation in MOC, that I may be required to execute and return to the Board a revised Agreement, which shall replace and supersede the terms of this Agreement.

Necessary and required. Gives you the warm fuzzies.

I waive and release and shall indemnify and hold harmless the Board and its trustees, directors, members, officers, committee members, employees, and agents from, against and with respect to any and all claims, losses, costs, expenses, damages, and judgments (including reasonable attorneys fees) alleged to have arisen from, out of, with respect to or in connection with any action which they, or any of them, take or fail to take as a result of or in connection with this Agreement, any examination conducted by the Board which I apply to take or take, the grade or grades given me on the examination and, if applicable, the failure of the Board to issue me a certificate or qualification or the Board’s revocation, suspension or probation of any certificate or qualification previously issued to me and/or the Board’s notification of any interested parties of its actions.

As in, I promise I will never sue the ABR no matter what.

That is one extremely long almost unreadable sentence (with 21 commas!), but, of course, that’s the point.

Impression

In summary, this is pathetic.

As a non-lawyer, I’m not even sure this kind of nonsense is legally enforceable. One could at least make the argument that these contracts are signed under duress (e.g. excessive economic pressure) and are thus null and void. “Voluntarily” signing a non-negotiable contract in order to be board-certified, which is a functional requirement to practice, certainly seems like at least a gray area to me.

I am under the impression, however, that duress defenses for contract breaches are not trivial to prove, and this agreement is certainly intended first and foremost as a way to discourage any further lawsuits.

While there is new fierce opposition within the radiology community about these agreements, they are actually largely unchanged dating back to at least 2013 for candidates (with the main addition that we’re also now also waiving our FERPA rights). It would appear the main change is spreading the love to diplomates. However, that the ABR conveniently waited until after the most recent amended complaint was filed in the recent lawsuit before rolling out this iteration is likely no coincidence. I look forward to seeing how much the ABR spent on legal fees in 2019 that resulted in them having their lawyers cook this up.

It’s easy to forget when dealing with the ABR that board certification is supposed to be a form of physician self-governance. Doesn’t feel that way, does it? Reading all this, it’s easy to lose sight of the fact that this organization’s primary function is converting multiple choice questions written by volunteers into money.

As I mentioned in a recent post, ABR president and soon to be highly-compensated Executive Director Brent Wagner has described his goal to increase communication and transparency. If he means that, and I have no reason to believe otherwise, then this is a perfect opportunity to follow through on that promise. Unilaterally dropping a compulsory heavy-handed one-sided agreement upon which every radiologist’s ability to practice in their field is predicated is exactly the kind of opaque aloofness that the ABR has been promising it doesn’t want to employ anymore.

The ABR has plenty of staff and several dedicated executives, including a head of external relations with a six-figure salary. From a communications perspective, these are unnecessary and objectively bad choices of the ABR’s own making and the organizational equivalent of scoring on your own goal.

Here’s what the ABR should do

1. Say mea culpa for completely blowing, as per usual, a PR opportunity by simply dropping this bullshit in everyone’s myABR account without warning and then immediately breaking the OLA site functionality to coerce you to sign it without explanation or discussion.
2. Flush this steaming turd back where it came from, including for those who already signed it, and then create a new reasonable agreement, preferably with stakeholder involvement. Even if this “agreement” is largely unchanged from years past, it’s still garbage, and it says a lot about the current level of trust in the ABR that people are this disgusted by a reiteration of what is traditionally a meaningless form.

At the very least, they should do with sincerity what I’ve done sarcastically above, translating paragraph by paragraph the obtuse legalese into plain English and then providing the rationale and background for imposing such one-sided legal powerplays.

It’s not that I can’t guess. It’s that I shouldn’t have to.

Radiographics hosted a Twitter chat this week to discuss a recent op-ed, “Have We Done Radiology Trainees a Disservice by Eliminating the Oral Board Examination.” I was asked to participate.

ABR President and soon to be highly-compensated Executive Director Brent Wagner was also set to throw down and managed to fire off a couple of tweets at the beginning before disappearing. He answered the first of five pre-shared discussion questions and only responded to one direct question. You can read the full thread collected here if you’re interested.

The first question: “Does the ABR Core Exam test radiology competence?”

#RGchat T1: the ABR certification exam is intended to test knowledge as it relates to competence, and critical thinking as it relates to image interpretation. Other elements of competence (procedures, professionalism, etc) are better tested (assessed) by the residency faculty.

— Brent Wagner (@brentwagner99) April 14, 2020

That sounds like doublespeak to me, but I think this is probably as straightforward an answer as the ABR can provide. It also makes the unfortunate admission that we are essentially testing for a simile.

Per the ABR, its mission is “to certify that our diplomates demonstrate the requisite knowledge, skill, and understanding of their disciplines to the benefit of patients.” We are testing for #1, but we can and should also be testing directly for #2.

The Core Exam is a knowledge assessment, and knowledge assessments based on multiple-choice questions are reductive and intellectually lazy. Knowledge in isolation is likely one of the least significant measurables in determining if a radiology trainee is safe to practice for the “benefit of patients,” especially in a world with easy access to electronic resources. So despite purporting to assess for skill in its mission statement, we are testing for knowledge and pretending that the correlation between knowledge and competence is so high that it can stand alone as the sole determinant of minimal competence.

We could, however, directly test for competence and critical thinking by designing a test where the diagnostic portion simulates actual radiology practice and not an artificial multiple-choice single-best-answer format.

#RGchat T1: Much of the exam seeks to assess a candidate's ability to choose the most likely diagnosis based on a set of images. Similar to what I expect of myself and my colleagues in daily work.

— Brent Wagner (@brentwagner99) April 14, 2020

Leaving aside the other parts of the exam that are irrelevant to practice, the issue that Wagner sidesteps (and that made up a large fraction of the discussion on Twitter) is that choosing a single likely diagnosis from a list is an unnecessary artificial construct being used for psychometric convenience. An MCQ test is cheap to create, easy to administer, and easy to validate. The ABR once said it was creating “the test of the future,” but it really just replaced two smaller MCQ tests and an oral exam with one longer MCQ test. It was only the “future” in the sense that it was announced before it happened. I don’t get primed by answer choices in real life, and that’s the difference between knowing the correct answer and merely recognizing it.

Today, a recent interview with Wagner was included in this Radiology Business article:

One of the fundamentals I’ve been encouraging is to take ownership of flawed or incomplete communications. In other words, if an ABR stakeholder doesn’t understand something, that’s our problem, not theirs, and we have the responsibility to do whatever it takes to fix it.”

So, fix it.

From “Focus on DR,” which appeared in the most recent January 2020 edition of the ABR’s newsletter, The BEAM:

Over time, diagnostic radiology has evolved, and imaging techniques and exams have changed.  Computed tomography (CT), magnetic resonance imaging (MRI) and ultrasound improved and replaced many traditional exams. The practice of many diagnostic radiologists now consists of work that was not tested on the exams they took for initial certification. A way to see that radiologists have evolved along with their practices and acquired these new skills is needed. Such a system must be meaningful, yet not be onerous for physicians to complete.

This is a fascinating statement. Fascinating because those radiologists with initial certifications that reflect a bygone era of “traditional exams” are in fact grandfathered from the very system “needed” to confirm that they’ve evolved.

There are few things less evidence-based since medical antiquity than contrast-fear and contrast-management. We are slowly, slowly, as a field trying to correct long-held mistakes based on bad correlative science.

Intravenous iodinated contrast media are commonly used with CT to evaluate disease and to determine treatment response. The risk of acute kidney injury (AKI) developing in patients with reduced kidney function following exposure to intravenous iodinated contrast media has been overstated. This is due primarily to historic lack of control groups sufficient to separate contrast-induced AKI (CI-AKI; ie, AKI caused by contrast media administration) from contrast-associated AKI (CA-AKI; ie, AKI coincident to contrast media administration). Although the true risk of CI-AKI remains uncertain for patients with severe kidney disease, prophylaxis with intravenous normal saline is indicated for patients who have AKI or an estimated glomerular filtration rate less than 30 mL/min/1.73 m² who are not undergoing maintenance dialysis. In individual high-risk circumstances, prophylaxis may be considered in patients with an estimated glomerular filtration rate of 30–44 mL/min/1.73 m² at the discretion of the ordering clinician.

From the new “Use of Intravenous Iodinated Contrast Media in Patients with Kidney Disease: Consensus Statements from the American College of Radiology and the National Kidney Foundation.”

The risk of CI-AKI (née CIN) with iodinated contrast for GFR > 45 is zero and for 30-44 probably close to zero as well. If your patient would benefit from intravenous contrast, there are few reasons to avoid it when it will provide meaningful clinical value.

In related news, having one kidney does not matter for contrast safety if that kidney is functioning.

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 (after all, the ABR managed to get the fledgling “National Board of Radiology” shut down within a few months of its creation). 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.

I don’t normally talk much about the places I work or the institutions I’ve been affiliated with on the site. After all, these views are my own.

But I’m just going to drop this here briefly because I’ll freely admit that I was honored and gratified to win Teacher of the Year my first full year as faculty at Baylor Dallas. Great group of residents.

Also, crystal apples are surprisingly heavy.

On November 18, a federal judge has granted the ABR’s motion to dismiss for the lawsuit filed this February. Judge Jorge Alonso was unconvinced by the argument that the ABR has illegally tied its MOC product to its initial certification product, agreeing with the ABR that the two things are really two parts of the same thing (despite the fact that for lifetime certificate holders…they’re not):

Ultimately ABR sells only one product: certification of radiologists as having ‘acquired the requisite standard of knowledge, skill and understanding essential’ to the practice of medicine in their particular specialty or subspecialty. This was once a one-stage process, and it is now a multi-stage process, but it does not follow that the certification process consists of separate products; now as ever, there is only one product.

You can read a quick summary from Radiology Business.

Ultimately, there is a wide gulf between the things that are unethical or morally repugnant and those that are unequivocally illegal such that a court will reliably provide a ruling that coordinates with common sense or layperson expectations.

With how dysfunctional our national legislative bodies have become, people have forgotten that the courts are supposed to be more of a last resort than a primary hope.

Across all critical issues, we can’t rely on appointed judges to make things right.

In this post, we’re diving deep into the bylaws of the American Board of Radiology and picking out some choice quotations for perusal and discussion. Consider this part two of a two-part series (with the first being this enjoyable breakdown of the ABR’s tax returns).

You can download a word document of the ABR’s Bylaws in their entirety here. They were apparently last approved by a unanimous vote on October 20, 2017 (suggesting that the April 18, 2016 date on the current bylaws webpage is wrong).

The Party Line

For a bird’s eye view of what the ABR thinks the ABR is trying to do, look no further than Article II: Objectives and Purposes:

The objectives and purposes of this Corporation shall be as follows:
(a) To serve patients and the public by continuously promoting the competence of its diplomates;
(b) To improve the quality and safety of our disciplines through our requirements for primary and subspecialty certification;
(c) To create and conduct fair and valid examinations in our disciplines to evaluate accurately the qualifications of voluntary candidates for ABR certification;
(d) To issue certificates to qualified and competent candidates in the specialties and subspecialties of the ABR;
(e) To promote lifelong and continuous learning, professional growth, quality and competence through its MOC programs;
(f) To provide and administer programs for the Maintenance of Certification (MOC) of our diplomates;
(g) To promote professionalism within our disciplines;
(h) To establish and promote open and transparent multi-directional avenues of communication with our diplomates, medical societies, governmental and non-governmental agencies, and the public;
(i) To do and perform all things necessary or incidental to the foregoing objectives and purposes.

a) I think “promote” is probably the wrong verb. It suggests that the ABR serves patients or the public via marketing as opposed to something substantive. (Oh, I see what they did there.)

b), c), and d) are laudable goals that are unverified and hotly debated. e) is implausible. f) is factually undeniable. g) certainly not. h) transparency is not in the ABR’s vocabulary. Recent “multi-directional” communication has gone something like this:

ABR: Just trust us.
Everyone: Why would we?
ABR: Guys, we hear you, we are you.
Everyone: We don’t really see an empirical basis for that supposition.
ABR: Oh well. Worth a try. PS Your dues are due.

The Details

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.

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.

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.

This is an impressive statement. Read it twice and digest.

The people who run the ABR and make strategic decisions are bound to serve only the ABR and to act only to benefit the ABR. No other constituency matters including the discipline of radiology itself. Essentially, any benefits to other groups or the diplomates should be coincidental. Formalized organizational input such as from the ACR? No. Opinions of program directors, residents, fellows? No. Best interests of the patients? No.

To me, this is the exact opposite of how a certification board should function. It should be a team of stakeholders representing all relevant interests and acting to better the field. That’s the only way to ensure that it can actually achieve its mission (at least as stated in Article II).

Section 4.9. Officers. The officers of this Corporation shall consist of a President, a President Elect, and a Secretary-Treasurer, each of whom shall be a member of the Board of Governors, and such officers as the Board of Governors from time to time may elect…

The head leadership can only be selected from within the ranks of the cabal.

Section 5.1. Board of Trustees. The Board of Governors shall create a Board of Trustees, a strategically selected body that advances the quality, relevance and effectiveness of the American Board of Radiology’s examinations and programs for Certification and Maintenance of Certification across all disciplines of Radiology. The Board of Trustees is responsible for making operational decisions, subject to review by the Board of Governors, including but not limited to, examination goals, format, content, assembly, delivery, scoring and feedback.

There are currently 18 Trustees. I’ll admit I’m naive here, but I’m not exactly sure why there are both a head-board and a separate under-board. This seems like people just passing on the hard operational work to a group of subordinates via mandate while they get to chill and make “strategic” decisions.

Section 5.3. Terms, Term Limits. All members of the Board of Trustees shall serve for the limited period provided. Individuals may be nominated by any member of the Board of Trustees, which may solicit appropriate professional organizations to provide candidates. An affirmative vote of at least three-fourths (3/4ths) of the entire Board of Trustees shall be necessary for selecting a nominee. All such nominations must be approved by the Board of Governors.

Continuing a trend, the current trustees nominate and elect their own replacements, but the Governors have veto power should any organization put forth an unacceptable candidate.

And how could that change, unless the ABR determined that becoming democratic served the best interests of the ABR itself? Anything else would demonstrate insufficient loyalty.

Section 6.1. Annual Meeting. There shall be an annual meeting of the Corporation held during each calendar year at a time and place to be determined by the President. The Board of Governors and the Board of Trustees will meet both separately and together at the annual meeting; the timing of combined meetings will be determined by the Board of Governors. Members of the Board of Governors may regularly attend the Board of Trustees meetings as determined by the President.

Apparently that place is Hawaii.

Section 6.2. Regular Meetings. Each Board may hold regular meetings at such place and time as shall be designated by the President. The Board shall transact such business as may properly be brought before its meetings.

Apparently that place is also Hawaii?

Section 6.4. Conduct of Meetings. Unless otherwise determined, all meetings of the Board of Governors or the Board of Trustees shall be conducted in accordance with Robert’s Rules of Order, Newly Revised. Every meeting of the Board of Governors shall be presided over by the President, or in the absence of the President, by the President Elect, or, in the absence of the President and the President Elect, by a Governor chosen by a majority of the Governors present.

Close your eyes and picture the lameness. Is there a second?

Section 7.2. Committees of the Board of Governors.
a) Budget and Finance Committee. The Secretary-Treasurer shall be assisted in his/her duties by a Budget and Finance Committee, which, in addition to the Secretary-Treasurer, shall consist of at least three Governors. The Secretary-Treasurer will serve as the chair of the committee. The duties of the committee shall include reviewing the annual budget, overseeing investments, recommending examination fees, reviewing personnel salaries and benefits and related matters as assigned by the Board of Governors.

What I would give to be a fly on the wall during this committee’s meetings.

b) Bylaws Committee. The Bylaws Committee shall be responsible for reviewing the Bylaws and recommending appropriate modifications in them to the Board of Governors. The Committee shall consist of three Governors, as well as a Chair appointed by the President. The Chair of the Board of Trustees shall serve on the Bylaws Committee.

I initially assumed that shady COI stuff was standard jargon, but apparently this document has its own committee.

h) Executive Compensation Committee. The Executive Compensation Committee will carry out the Board’s 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 additional member from the Board of Governors appointed by the President. The President will chair the committee.

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.

Section 9.1. Revocation of a certificate or placing a diplomate on probation.

There are a bunch of reasons the ABR can revoke your certificate. They all seemed reasonable, and I’m not reprinting them here. I read them pretty carefully and was relieved that writing critical sarcastic posts on your personal website was not listed.

ARTICLE XIII Indemnification of Trustees, Officers and Others. The Board of Governors may exercise the full extent of the powers which this Corporation has under the laws of the District of Columbia, as such law exists from time to time, to indemnify members, Trustees, Governors, officers, examiners, employees, including the Executive Director, Associate Executive Directors, volunteers, and agents for expenses incurred by reason of the fact they are or were Trustees, Governors, officers, examiners, employees, including the Executive Director, Associate Executive Directors, volunteers, or agents of this Corporation. Such expenses shall include attorneys’ fees, judgments, fines, amounts paid in settlement, and amounts otherwise reasonably incurred. The Board of Governors may make advances against such expenses upon terms decided by it. The Board of Governors may exercise the full extent of the powers which the Corporation has under the laws of the District of Columbia, as such law exists from time to time, to purchase and maintain insurance against the risks above described, on behalf of its Trustees, Governors, officers, examiners, employees, including the Executive Director, Associate Executive Directors, volunteers, and agents.

Imdemnify is legalese for covering personal liability expenses, so this is saying that the ABR may cover fines, legal fees, settlements, etc that its brass could otherwise be accountable for due to their actions relating to their work for the ABR. The ABR’s got its own back.

While none of its members have been personally named in any suit that I know of, it remains in perfect irony that the inflated certification fees the ABR collects are absolutely funding the defense against a class-action lawsuit about those very same fees.

Summary

So those are the highlights.

That COI policy would make more sense for a Fortune 500 company, and the executive compensation “committee” sounds farcical.

Does this document really matter? Does it really guide the actions of the ABR leadership? I don’t know. But as with MOC, the issues are predominately ones of principle.

The ABR’s outreach to its constituents is composed mostly of attending radiology meetings where they don’t meaningfully address common concerns and releasing a newsletter that is 90% transparent propaganda. In their collective mind, the ABR knows what we want and is giving us more (from the recent BEAM newsletter):

Starting in November, publication frequency of The BEAM and several formatting and content enhancements will occur. We are embarking on a six-times-per-year schedule instead of three times per year to help us remain more current with important news…We’ll be including short write-ups about people who work for the ABR, so diplomates and candidates can get a better idea of who’s here to serve them. The first is on the Certification Services tam [sic].

Spell check is a rough mistress.

These core problems are almost certainly amplified by the ABR’s policy of self-selecting its leadership from…dedicated…volunteers. I estimate a 0% chance that anyone with radical ideas or a desire to change the status quo would be selected. And, unlike many professional societies, the ABR top brass aren’t exactly unpaid volunteers.

Conclusion

I suspect that the ABR is composed of smart, caring, and dedicated individuals who probably want to do the right thing. But as an organization, the blinders are on and groupthink reigns.

I suspect that—from within—the ABR feels misunderstood, that they are doing their best to carry out their mission in an imperfect world where there are no perfect tests and drawing sharp lines feels like a messy process.

But the ABR is not misunderstood.

Instead, it functions within a meticulously-crafted bubble with its own reality-distortion field, preventing its leadership from seeing where things went wrong and where they’re going.

What bugs me?

It’s the pettiness.

It’s a few doctors doing things on behalf of constituents without their input and against their wishes, flaunting their mandate, slinging meaningless slogans, and appearing to profit in transparent and frankly embarrassing ways.

As a profession, we can do better.

2019 was the initial offering of ABR’s MOC of the future: Online Longitudinal Assessment (OLA). I wrote about it earlier this year, but to recap: All Diagnostic Radiology ABR diplomates including those fresh off their Certifying Exam victory lap were immediately thrust into the new paradigm. This amounts to answering a whopping 52 multiple choice questions over the course of the calendar year in whatever subspecialty composition you prefer. Questions are released 2 per week and expire after a month.

It’s…fine? Sorta I guess?

The website works (mostly), and the questions are questions (undeniable). Some are pretty good, some certainly less so. People on the internet grumble about content relevance more than I personally would, but then again the minute I got a lame low-yield Core-style GI fluoro question I switched to 100% neuroradiology.

The ABR hasn’t released the passing thresholds yet, which is the most interesting facet of the whole ordeal: recall that the Core and Certifying Exams are “criterion-referenced” by magical Angoff committees that can infallibly determine what a “minimally component” radiologist can do. The ABR just doesn’t seem to have that same confidence when it comes to MOC, presumably because they have no idea how many people would fail if they had logically employed that exact same Angoff method, and failing an unknown number of already dissenting practicing radiologists is a much bigger deal than embarrassing some more trainees.

Now before you say that each diplomate needs to hit 200+ questions to hit the psychometric validity threshold, the ABR could still tell people if they were on track to pass or fail based on their current performance. There are apparently plans to release preliminary feedback soon (which may do just that now that there is some real-world data to calibrate with), but all of us will need to do another few years of OLA to learn if we’re truly maintaining the magic.

In case you were wondering, I did get one question wrong (the software buries additional images in tabs you have to click through; I kept forgetting, though it only burned me the one time).

Drip-Feeding

There are no secrets as to why the ABR chose to release two questions per week that subsequently expire a month later. I finished my required questions in August, less than a year from when I took (and presumably destroyed) the Certifying Exam (but we’ll never know because they don’t release scores for that exam).

What I can tell you is that I spent approximately one hour satisfying the OLA requirements for the year. Without the forced drip-feeding, I could’ve accomplished the entire process during a single generous lunch break.

Some of you reading may be thinking, hey, that’s not so bad. And you’re right, the process is relatively painless. I didn’t learn anything, but at least it didn’t take a lot of my time.

Ultimately, that’s also what makes MOC a meaningless box-checking endeavor and blatant money grab.

The argument that something isn’t stupid, bad, useless, or wrongheaded as long as it doesn’t suck is spurious. Just because it could be worse doesn’t mean that it shouldn’t be better.

And the fact that many doctors are scared that these unelected unaccountable pseudo-governing organizations will punish any dissent by making tests harder and MOC more arduous is toxic and should not be accepted. We shouldn’t treat the relative ease of a profit-seeking exercise as a thrown bone from the shadow lords that can be taken away at any time or a secret to keep quiet so the “public” doesn’t find out.

The Anti-MOC Wave

I am actually not really part of the large and growing cohort of physicians adamantly opposed to any third-party validation of demonstrable skill or the mere idea of a certification-granting organization that can reliably establish minimal competence. In fact, if board certification wasn’t a de facto requirement in many contexts (and thus akin to licensure itself), I wouldn’t even mind if the supposed threshold was greater than minimal competence.

The ABMS was founded in 1933. The ABR was founded in 1934. We’re still waiting on evidence that anything these people do means anything. If the intellectual underpinnings of initial certification are up for debate, then the “maintenance” of said certification is doubly so (hence the lawsuit).

The new system may be no worse than the 10-year exam it replaced; it would seem to me that it’s likely significantly less hassle. Less studying, less travel, less time, less effort, and more relevant (in that you can exclude broad categories of radiology irrelevant to your practice). However, cumbersomeness (or lack thereof) is not a component of psychometric validity.

A lack of rigor may serve as a salve for diplomates injured by losing out on years of rightfully-earned respite after a recently passed 10-year exam, but it doesn’t change the fact that gradually adding strata of multiple-choice questions on a foundation of more multiple-choice questions creates a weak structure that teeters in the winds of change.

With the class-action antitrust suit filed against the ABR earlier this year, a post looking deeper at the finances that make an appearance in the lawsuit is overdue. You can find the recent filings that I used for this post collected here.

I promise this is a more interesting read than one might think.

Background

The ABR is a 501(c)(6) organization.

Readers may be familiar with the more common 501(c)(3) designation, which is the non-profit status used by religious, charitable, scientific, and educational organizations (and is the type generally required to qualify for loan forgiveness within the Public Service Loan Forgiveness (PSLF) program).

A 501(c)(6) organization is a business league or association organized and operated primarily to “promote the common business interests of its members.” I’m not really sure how the ABR qualifies as that, but it’s a self-reported designation and that’s their purpose as far as the IRS is concerned. (burn!)

Regardless, as a tax-exempt non-profit, the ABR must make public their Form 990 annual returns for the past three years. The most recent returns (2017 tax year, filed in 2018) are also available on several sites including ProPublica and GuideStar, both of which maintain a searchable database of all non-profit tax returns.

But before we go through the returns and try to make sense of the ABR’s finances, a disclaimer: I am a radiologist with a hobbyist understanding of the tax code, not a CPA, tax preparer, or financial anything (let alone a forensic accountant). This is all for entertainment purposes only.

Disclaimer #2: Form 990 is light on details. I emailed the ABR for clarifications about several issues. Unsurprisingly, they ignored me.

Revenue Breakdown

Tax-exempt non-profits can, in fact, have taxable income if the income derives from activities separate from their mission. In 2016, the ABR claimed $45,605 in taxable income on line 7. In Part VIII, this was described as real estate rental income. I don’t know what they’re renting or to whom they rent to. In 2017, it was down to around $30k.

Total tax-exempt revenue is mostly from “certification fees.” Over the past five years, total revenue (which includes investment income):

2017: $17,430,259 (up $1,138,815, 6.9%)
2016: $16,291,444 (up $530,424, 3.4%)
2015: $15,761,020 (up $585,430, 3.9%)
2014: $15,175,589 (up $1,635,419, 12.1%)
2013: $13,540,170

For reference, the inflation rates over this period according to the US Labor Department were 0.8% in 2014, 0.7% in 2015, 2.1% in 2016, and 2.1% in 2017. So the ABR has reported true growing revenue.

Though not specified as such in the 990, the substantial year over year increase is primarily related to increasing MOC enrollment.

In 2017’s Part III, the ABR says that it administered 4,790 total exams and that approximately 27,000 diplomates were enrolled in MOC. As a reminder, MOC costs $340/year, so the revenue from MOC was approximately $9.2 million in 2017. Note that because older radiologists were grandfathered with “Lifetime” certifications whereas all new diplomates immediately enter MOC, this number will enlarge annually until a steady state is reached, presumably sometime in the next 10-20 years. I’m sure the ABR has a better idea of when the gravy train will hit its coasting speed.

To wit, the number of MOC-enrolled physicians was 26,140 in 2016, 25,000 in 2015, and 24,000 in 2014. With over a thousand new diplomates automatically enrolled in MOC every year, the ABR can anticipate rising revenue for the foreseeable future.

Also note that MOC revenue scales fantastically, as the incremental cost to service an individual enrollee approaches $0 but each one brings in $340 every year throughout their career.

Subtracting MOC income from the total fee-related revenue of $16,271,311 would leave around $7 million in revenue from exam services ($7.4MM in 2016). As I’ve discussed before, around $3 million of that comes just from residents, who spend around 1% of their pre-tax income directly to the ABR annually without exception.

In the 2018 annual report, ABR president Brent Wagner made this comment on the first page of content:

As a non-for-profit, the ABR collects fees to cover the expenses of administering the programs. Reserves are maintained to cover unexpected capital expenses, but fees are set as closely as possible to approximate administrative expenses.

Based on the numbers you just read, I think you can see where this is going. But let’s see how that holds up.

Expenses

Expenses also continued to rise from $13,758,299 in 2015 to $15,590,929 (a 13% increase) in 2016 to $16,468,080 in 2017 (a 5.6% increase). Payroll-type expenses increased from $6,932,139 to $7,342,360 (a 6% increase) to $8,256,080 (a 12% increase).

Revenue minus expenses yield a “non” profit of $962,179 in 2017, down from $1,329,124 in 2016.

So despite $17.4MM in revenue, the ABR claims its expenses take out all but a single mil. Let’s look at some of those.

Salaries

We don’t need to name names of every ABR officer and their compensation, but we can at least track the highest paid, who is Dr. Valerie Jackson, the ABR’s executive director during the studied period.

2015 was a good year to hold the reins.

These numbers are interesting in how they may or may not correlate with the recent changes to the ABR board certification process that occurred in 2013 as well as the rising profits from MOC endeavors (common among ABMS members) and then perhaps coincidentally followed by small token decreases in light of increasing physician frustration with MOC across the country, increased scrutiny of member-board financials (like these wonderful reads from Newsweek about the ABIM), or the recent series of class action lawsuits.

Or that could totally be a coincidence. What any reader can agree on is that being the head of the ABR is certainly a livable income.

Another reason payroll increased? In 2017, the ABR hired a “Director of External Relations” whose base salary is $135,033. Trying to make the ABR look good is apparently a challenging full-time task. To round out the A-Team, they also hired a similarly paid “IT Director” (possibly as a result of Mammogeddon) and a “Managing Director,” to, um, manage and direct things?

“Other” Expenses

Other expenses make up the majority of the ABRs expenses and totaled $8,248,569. What are “other” expenses you ask? Look no further than Part IX (“Statement of Functional Expenses”)

These include things like credit card processing fees, office expenses, insurance, etc. I wouldn’t pretend to have any idea about how much the ABR should spend on staplers and toner.

Expenses are hard to parse because they’re grouped into large nebulous categories.

• In 2016, the ABR spent $2,204,166 for Exam Services. Given that the ABR owns its own testing center, the exams are administered by employees, and the questions are largely written by volunteers, I would personally be interested in having these big numbers broken down some more. In 2017, this dropped down to $466,472.
• $1,292,317 was for conferences, conventions, and meetings. The ABR does reportedly convalesce in Hawaii twice annually. This is down from $1,534,608 in 2016.
• Legal services accounted for $45,439 in 2017. Watch for that number to rise substantially in 2019.
• $1,051,695 was for “Other fees”—who knows? These are often payments made to various independent contractors that don’t fall into the other categories likes investment management fees, IT, etc.
• Another mil for office expenses. Another mil for occupancy (rent, utilities, real estate taxes, etc).
• And a big $5.4MM for salaries/wages of the nonexecutive rank and file.

What we do know from Schedule J, which details compensation information, is that the ABR does “reimburse board members for companion’s travel.” That could even be housed separately in the $640,464 figure for travel, which is distinct from the $1.3MM above for conferences/meetings. Twice annual all-expense-paid trips for the family to Hawaii do sound nice.

The ABR doesn’t run lean.

War Chest

Rising revenues have nicely padded the ABR’s current assets, which totaled $51,737,127 in 2017, up from $49.5 million in 2016 and $45.7 million in 2015.

The ABR does claim $10.8MM in liabilities, so according to its 990, the net assets total $40.8MM. However, these liabilities include $8,914,139 in “deferred revenue.” This is to say, the lower figure is meaningless in a common-sense interpretation. Deferred revenue is a mostly BS accounting technique used to refer to payments made in advance for services not yet rendered. In this case, it’s a convenient way to make it look like you’re making less money than you really are. Based on the figure, it would seem the ABR jams all the MOC fees in there, though it’s not as though they offer refunds.

In everyday terms, most would argue that all of the ABR’s revenue is “unearned.” Regardless, outside of clever spreadsheets, that cash isn’t really a liability. It’s all sitting in the bank.

So, the ABR was really holding on to a war chest of almost $52 million in 2017.

Even with questionable payroll, staffing, and vacation meeting practices, the ABR still has an annual operating revenue surplus (aka a profit) of a million bucks. What size of “reserves” will finally be sufficient to “cover unexpected capital expenses,” so to speak? Maybe the slush fund was to cover the inevitable lawsuit. Outside of its testing business, the ABR investment portfolio itself gained almost a million in 2017 and almost two million in 2016.

Even if the ABR stopped making a profit on fees (hard to do even with an impressive meeting budget), they would still likely make money every year. The portfolio proceeds would certainly be enough, for example, to drop the resident and fellow fees down to attending levels from their current $300 premium ($640/yr for trainees vs $340/yr for MOC).

The ABR Foundation

The ABR does maintain a separate “Foundation” that is a 501(c)3 organization. The ABR Foundation, unlike the ABR, is able to receive tax-exempt charitable donations. The nebulous purpose of the ABR Foundation is “to demonstrate, enhance, and continuously improve accountability to the public in the use of medical imaging and radiation therapy.” Like you, dear reader, I have no idea what that means.

Later, the mission of the foundation is described: “The Foundation carries out the scientific, educational and charitable purpose of the mission of the American Board of Radiology.” I have a hard time picturing that too. The final description of the mission: “to demonstrate, enhance, and continuously improve accountability to the public in the use of medical imaging and radiation therapy.” Darn, that still doesn’t help.

In 2017, it only made money from investments on its net assets (now $1.6MM). No one gave them any money, and they awarded no new grants. Why?

Because, since 2015:
“The Foundation is re-evaluating program services offered to determine how to most effectively achieve the mission statement. During this period of re-evaluation, no new contributions are currently being accepted. Current program commitments for sponsorships continue to be serviced.”

In 2014, the ABR awarded two grants:
1. $95,000 to create a national brachytherapy registry and QA program
2. $25,550 to create ethics and professionalism instructional modules

But 2013 was a much more interesting year:
The ABR Foundation somehow managed to receive $202,348. Total expenses were $305,982:
1. $95k again went to the brachytherapy project
2. $77,599 went to “summit meetings/conduct symposiums to optimize a national strategy for safe and appropriate medical imaging”
3. An additional $115,908 were also “meetings expenses”

So, it’s meetings all the way down.

Either way, the foundation seems mostly defunct now.

American Board of Radiology International

Is a “disregarded entity” that made $178,750 for total assets $539,649 in 2016. Its stated purpose is to “provide guidance in a radiology certification exam program.” Yes, a program. I have no idea.

Conclusion

Whew.

So to summarize, I am not an accountant. If you or someone you love has more information about the ABR’s operations or financial workings, please feel free to contact me. I would love to update this post (or all my posts, for that matter). I feel strongly that there should be more information available to candidates and diplomates, and it would be much better if it came unwhitewashed from the ABR itself rather than from someone throwing snarky potshots from the sidelines like myself.

The ABR makes a lot of money from trainees and radiologists who have zero say in its operations and to whom the ABR does not feel accountable.

The ABR’s expenses are hard to parse but are clearly not super-duper efficient in their use of very generous certification fees.

The war chest was around $52 million in 2017, is almost certainly higher now, and will continue increasing every year for the foreseeable future due to essentially compulsory MOC.

Assuming any of the current lawsuits progress to discovery and aren’t confidentially settled, we can eventually expect some fascinating news in the years to come. In the meantime, those legal fees certainly aren’t going to help their bottom line.