“It’s all a big scam, ” the gravel-voiced orthopedic surgeon from the Pennsylvania coal country told us at the recent AAOS (American Academy of Orthopaedic Surgeons) annual meeting.
“I’ve been a practicing surgeon for over 30 years and I’m forced to pay thousands of dollars each year to a private credentialing organization for something which has nothing to do with my licensing, doesn’t make me a better surgeon nor proves I’m still competent. “
“Above and Beyond Licensing”
The organization is the ABMS (American Board of Medical Specialties). On its website, the ABMS says that board certification “is a voluntary process that goes above and beyond licensing requirements—it’s a commitment to continually expand knowledge in a medical specialty.”
Our surgeon continued that the ABMS has agreements with 24 other corporations such as the Board of Orthopaedic Surgery (https://www.abos.org/) to impose enormous recertification burdens on physicians, which are not justified by any evidence of better patient care. “And it’s not voluntary if you want to practice medicine at a hospital, ” he added.
He told us AAPS (Association of American Physicians & Surgeons Inc.) is going to sue the board (ABMS) for restraint of trade. Then the story got better. He said, “Their lawyer is Phyllis Schlafly’s ‘kid’ [Andrew Schlafly].”
The AAPS is an avowed conservative political organization of physicians formed in 1947. It doesn’t run in the lofty circles of the big medical organizations like the AMA (American Medical Association) and AAOS. Throw in the name Schlafly and this promised to line up as a conservative versus liberal fight.
But, our Pennsylvania surgeon was a lifelong and proud Democrat. The issue of credentialing is bigger than partisan politics as we’ve seen in New Jersey where the Attorney General is trying to permanently revoke a medical license because a physician was not properly credentialed.
Lawsuit: “Constraint of Trade”
As the coal country surgeon predicted, on April 24, 2013, AAPS filed suit in federal court in New Jersey against the ABMS for restraining trade and causing a reduction in access by patients to their physicians.
AAPS is suing to end antitrust law violations and misrepresentations by ABMS concerning its proprietary recertification program, which they argue, reduces that access by patients to physicians.
ABMS, Hospital, Medical Society Collusion
In addition to the agreement with the 24 separate corporations, AAPS argues that ABMS has acted in concert with a standard-setting organization, The Joint Commission, to compel physicians to spend enormous amounts of time and money to comply with ABMS’s proprietary ABMS Maintenance of Certification®. “There is no justification for requiring the purchase of Defendant’s product as a condition of practicing medicine or being on hospital medical staffs, yet ABMS has agreed with others to cause exclusion of physicians who do not purchase or comply with Defendant’s program, ” states the suit.
“Moneymaking Scheme”
In fact, they argue that ABMS’ program is a “moneymaking, self-enrichment scheme that reduces the supply of hospital-based physicians and decreases the time physicians have available for patients, in violation of Section 1 of the Sherman Act.”
ABMS, according to the suit, also makes false and misleading statements in disparagement of physicians who decline to participate in the ABMS program. “ABMS enriches itself, its executives, and its coconspirators by promoting falsehoods that its proprietary product is somehow indicative of the professional skills of a physician, when it is not.”
The Case of “Dr. J.E.”
The suit was filed in New Jersey, because an AAPS member (Dr. J.E.) was excluded from the medical staff at SMC, a hospital in Somerville, New Jersey. He had refused to be recertification with one of the private corporations. According to the suit, he runs a charity clinic that has logged more than 30, 000 visits, but now none of those patients can see him at the local hospital “because of the money-making scheme of recertification.”
Dr. J.E. had been on the SMC medical staff for 29 years. (A Google search for hospitals in Somerville showed one hospital with the initials “SMC”—the Somerville Medical Center.) The hospital’s website states that it has been designated as a Primary Stroke Center by the Joint Commission and received the Joint Commission’s Gold Seal of Approval for total hip and total knee replacement.
According to the suit, Dr. J.E. had been board certified by The American Board of Family Practice, which subsequently changed its name to The American Board of Family Medicine (“ABFM”).
In 2011, claims the suit, SMC refused to allow Dr. J.E. to remain on its medical staff “unless he complied with an extremely burdensome and impractical recertification procedure under the ABMS MOC®.”
ABMS Requirements
“Although J.E. had been fully certified in good standing with the predecessor to ABFM, Defendant’s agreement with ABFM required imposing the following extremely burdensome requirements for recertification under ABMS MOC®:
- Completion of 50 MC-FP points (acquired by doing modules)
- Minimum of 1 Part II Module
- Minimum of 1 Part IV Module
- One additional module of [his] choice (Part II or Part IV)
- Completion of 150 credits of acceptable CME (minimum 50% Division I), acquired in last three years
- Compliance with ABFM Guidelines for Professionalism, Licensure, and Personal Conduct which includes holding a currently valid, full and unrestricted license to practice medicine in the U.S. or Canada
- Submission of three MC-FP Process Payments; one payment at the start of each module
- Submission of application and accompanying full examination fee for the MC-FP Examination
- Successful completion of the MC-FP Examination.”
AAPS claims this demand is far in excess of 100 hours for a typical physician. Furthermore, there is the possibility of an “unjustified rejection of recertification for reasons having no proven connection with patient care and imposes many thousands of dollars in fees and travel expenses.”
Since complying with the recertification requirements would result in an hour-for-hour reduction in his ability to provide care to many charity patients, Dr. J.E. decided to serve his patients rather than comply with the recertification burdens.
As a result, the suit claims that effective June 24, 2011, SMC excluded Dr. J.E. from its medical staff, as a result of “Defendant ABMS’s agreements with other entities to require the ABMS MOC® program.”
Pecuniary Interests
It’s all about the money, argues AAPS. “Defendant and its co-conspirators have a substantial pecuniary interest in requiring physicians to purchase their products.”
According to publicly available IRS Form 990, AAPS divulges the “immense self-enrichment by executives at Defendant ABMS and its co-conspirators, ” including the following:
- Kevin B. Weiss, ABMS Executive $562, 456 (2011)
- James Puffer, ABFM Executive $727, 885 (2011)
- Christine Cassel, American Board of Internal Medicine (ABIM) Executive $794, 852 (2010)
AAPS charges AMBS with the following counts:
COUNT I – Restraint of Trade in Violation of Section 1 of the Sherman Act
By seeking and obtaining agreement by The Joint Commission to require enforcement by hospitals of formal recertification requirement, AAPS charges that ABMS has restrained trade by inducing health insurance companies and plans to exclude physicians who do not purchase and comply with the certification program.
AAPS alleges that ABMS has further restrained trade by acting in concert with the previously referenced 24 corporations to “seek an endorsement by the influential Federation of State Medical Boards (FSMB) of “maintenance of licensure” (MOL), in order to impose Defendant’s ABMS MOC® as a requirement of licensure by state medical boards.”
In 2011, AAPS claims the FSMB formed an MOL Implementation Group that has “acted in concert with Defendant ABMS in order to require parts of Defendant’s ABMS MOC® program as a condition of licensure by state medical boards.”
Those agreements and concerted actions are, alleges AAPS, a per se violation of Section 1 of the Sherman Act because they are plainly anticompetitive, like a group boycott of a supplier.
AAPS is asking the judge to declare null and void the agreements between ABMS and medical societies and a triple refund of fees received from AAPS members.
COUNT II – Negligent Misrepresentation
ABMS uses phrases like “Not Meeting MOC Requirements” to describe physicians who decline their product. This, claims AAPS, creates the “false impression that Defendant’s ABMS MOC® is indicative of the medical skills of physicians, and that as a result physicians who decline to purchase Defendant’s product are likely to be less competent.”
“Many of the questions asked of physicians as part of Defendant’s ABMS MOC®, for which physicians must provide the preferred answers in order to be recertified, have no relevance to the quality of care that the physician provides, and there is no meaningful public accountability or transparency as to whether the answers preferred by Defendant are really the best answers.”
AAPS wants the Court to make ABMS to take down such statements from their website and stop identifying which physicians have recertified and which ones have not. And they want a jury trial.
The Court has not made any rulings on AAPS’s lawsuit, nor has a trial date been set. If a trial is allowed, New Jersey will continue to be ground-zero for fights over credentialing.
