The ABR’s New “Agreements”

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.