The ABR Lawsuit Continues

I thought after the last dismissal that the class-action lawsuit against the American Board of Radiology had died, but it continues.

Last week on February 16th, the “Court Of Appeals 7th Circuit” on YouTube (1.1k subscribers, in case you’re curious) streamed a brief 20-minute back-and-forth between the lawyers and the appeals court judges.

You can listen to the audio-only video on YouTube here (the ABR portion runs from 1:57 to 2:18, but that link should take you to the correct timestamp). In typical pandemic fashion, the ABR’s lawyer accidentally started off muted.

The case was heard by a panel of three judges. It is striking how short the oral arguments were: merely 20 minutes, and honestly barely enough time for the lawyers to do more than refer to the things they’ve written in the past and make mistakes.

The lawyers also seem incapable of addressing questions meaningfully. They either answer in circles or by restating points in ways that suggest that they may not actually know the answers.

I would not claim to have a meaningful understanding of the legal standing of the claim(s) against the ABR nor the ABR’s rebuttal to those claims, but you can read the most recent brief against the ABR here. Section titles under the heading “Statment of Facts” include such gems as “MOC is a Pure Money-Making Venture, for Which Monopoly Prices Are Charged, and Which Has Enriched ABR’s Coffers by More than $90 Million” and “There Is No Evidence of Any Benefit from MOC.”

If you’d like some background reading about the Sherman Antitrust Act, enjoy.

Fungibility

The initial judge seems to focus on whether MOC and other CPD (continuing professional development aka CME) products are fungible (i.e. mutually interchangeable), which of course they aren’t in the strict sense because the ABR has a monopoly in the certification market and no radiologist can choose to do anything other than be compliant with MOC or risk being unemployable.

From my reading, that’s sorta the whole point of the lawsuit.

OLA (ABR’s “online longitudinal assessment” program) may essentially be a CME product, but let’s be real here: Radiologists are not really paying the ABR for the OLA experience; they are–and have always been–paying for the credential.

“MOC” isn’t “Recertification”

There’s an interesting point where the ABR lawyer engages in historically inaccurate wordplay (at 2:08) saying that “recertification by its nature is different than MOC” because “it suggests that someone has to take a test to recertify,” whereas the ABR “chose a different path” in MOC because MOC “going forward post-2002” would require a “maintenance component, not recertification.”

This is super duper untrue because the switch to “time-limited certification” in 2002 was still very much the era when MOC actually did include a recertification test every ten years. The move to OLA didn’t take place until 2019, so the “different path” is a much much more recent fork in the road. (This is of course not to mention the simple fact that OLA functions as a test (taken in “tutor mode”) spread out over time with statistical assessment carried out after the participant answers 200 questions).

The ABR’s lawyer argues that Siva [the plaintiff] knew he had to do ongoing MOC when he got his certification as opposed to another exam-based recertification paradigm as she previously alluded to. But this is in fact also demonstrably false. Part of Siva’s initial complaint was that after passing the ABR’s 10-year recertification exam, he wasn’t given any credit toward MOC when the ABR started OLA in 2019. He did recertify. It didn’t matter how many years were left before your next test under the old (but still modern) system, you still had to do OLA (and pay the fees) on day 1.

At this point, a second judge asks the ABR lawyer point blank “what are the other MOC requirements [outside of OLA]?” and she dodges because she clearly doesn’t know. She says, “I believe that there are other components, but I don’t want to get too far outside of the allegations, your honor,” which is, essentially, I could bore you with the details but…

He basically calls her out but doesn’t make her clarify.

MOC is Whatever We Say It Is

That same judge then goes on to bizarrely toss the ABR a bone and explains he was asking about the other components in order to parse the plaintiff’s argument against the ABR precisely because he believes it would be “extremely difficult” to argue that there is separate market demand for products “akin” to OLA.

This is an amazingly off-the-mark supposition in a world where there are several commercially successful products akin to OLA including multiple radiology-specific question banks (nearly all of which also predate the ABR’s OLA offering.) He then goes on to say he thinks radiologists are basically also paying the ABR for other random CME courses, which is also untrue.

Perhaps recognizing this friendly mistake about the uniqueness of OLA, the ABR’s attorney responds (paraphrasing):

ABR: no, that’s the wrong question because demand for OLA is irrelevant; it’s demand for MOC that matters, and MOC is whatever the ABR says it is.
Judge: “You can’t evade the substance of section 1 through the label [MOC], you know that…without using the label, what is the content of what you call MOC.”
ABR: …ABR is entitled to determine the content of its certification.

Essentially, the judge is trying to figure out if there is separate demand for some of the components of MOC, which is, of course, yes. But (but!) the ABR’s response: that demand is irrelevant because–to invoke the parlance of my people–MOC ingredients are only kosher if they’ve been given a hechsher by the authority of the ABR.

In real life, these are the quick answers to the judge’s query:

• For OLA, as we just described, there is inarguably a robust market of radiology-specific question banks, most of which provide some assessment component and some of which even also provide official CME. These are largely analogous to the ABR’s OLA offering with the key distinction that the ABR doesn’t control them and profit from them. (And I suspect it is this desire to distance MOC from CPD that prevents the ABR from offering CME credits for the work required to do OLA despite very frequent requests from diplomates).
• The non-OLA components are merely rubber-stamping the CME and QI/QA work that doctors basically have to do anyway. I think most people would agree it would be “extremely difficult” to argue that these provide independent value.

“That Cannot Possibly Be Your Position”

In response to the ABR’s it’s-my-party-and-I’ll-cry-if-I-want-to stance, the judge is flabbergasted:

“There’s no possible way…You can’t take the position that ‘we are the ones that certify and therefore we can define the content of the certification requirement without regard to the limitations of section 1 [of the Sherman Antitrust Act].’ That cannot possibly be your position”.

The ABR lawyer says no, but she’d just said that very thing and then literally reiterates it again in almost the same words.

This was presumably met with a long blank stare during the very pregnant pause in the audio.

So, she meant yes.

And the ABR is not entirely wrong, because MOC isn’t really a CPD product. The CPD part of MOC (OLA) is merely the veneer of credibility for the program. MOC isn’t really about CME.

It’s a tithe.

Conclusion

The reality is that every single person talking in that courtroom made statements that would be comically false to any practicing physician in any specialty and any participating member board of the American Board of Medical Specialities.

It’s no surprise that legal cases take forever, cost a fortune, and are generally unsatisfying. Over two years since the initial lawsuit was filed and the system still doesn’t even know the basic nuts and bolts of what recertification “continuing” certification actually requires and means for physicians.