The American Board of Emergency Medicine (ABEM) recently launched a new online system for ABEM certification called MyABEM. The new portal allows physicians access to multiple services including updating contact information, applying for certification, registering for exams, viewing scores, and completing activities for certification. The goal of MyABEM, according to ABEM, is to streamline the certification process and enhance the user experience for emergency physicians.

But to opt into the new portal, physicians must agree to new waiver requirements. The “Release of ABEM” in the Continuing Certification Agreement is a provision that requires physicians to waive their right to litigate against ABEM for any disagreement with an ABEM decision related to certification activities. This would include “eligibility determination, exam development, administration, and scoring, as well as decisions to deny or revoke certification,” said ABEM President James D. Thomas, MD, in a statement. “This clause does not apply to lawsuits initiated by physicians for other reasons, such as antitrust.”

Dr. Thomas explained that the purpose of this clause is to help ABEM keep fees to physicians at reasonable levels, as lawsuits can be expensive to defend even if the plaintiff loses the case. “Without this clause, those costs would be passed on to ABEM-certified physicians,” he said. “The provision that ABEM may seek reimbursement of legal fees from plaintiffs is also to ensure that costs are not passed on to ABEM-certified physicians.”

He pointed out that “similar provisions have been upheld in at least three litigated cases against member boards of the American Board of Medical Specialties. These provisions are required by several other certifying Boards.”

Rade B. Vukmir, MD, an emergency, critical care and neurocritical care physician, and professor of clinical emergency medicine at Drexel University in Philadelphia, agreed that such waivers are not uncommon. “I have seen these waivers many times, among societies and boards,” he said. “While I can’t speak for ABEM, their position is that this is the same waiver that existed before.”

The rollout of MyABEM, however, was more than just the introduction of a new waiver, Dr. Vukmir explained. It also signaled the development of a more personalized experience for participants, which has been a growing trend among medical societies and boards.

“They used it as an opportunity to review a waiver document, but this is also part of a broader move to protect professional information, especially in this day and age, where people share everything on social media,” said Dr. Vukmir. “Your entire career may be on LinkedIn, and I think the [ABEM] Board did this in a responsible manner by wanting to protect this information.”

Board information and certification status is protected information, he explained. “They’ve added a two-factor verification component to this, so again, this was a broader issue than just a waiver. MyABEM is looking more at protecting personal information.”

Part of Doing Business

Dr. Vukmir explained that in any business, there is a choice of consenting or not consenting to a specific requirement. “There are often waivers to be signed, and in any contract you sign, there is a dispute clause,” he said. “The dispute clause gives you certain rules for how you do something, such as mandating that mediation or arbitration must occur before you litigate.”

The waivers are usually there to save costs, and all parties need to sign them to proceed with the contract. Generally, participation is contingent on signing the clause. “If you don’t sign it, you may not be able to participate, as in this situation with ABEM,” he said. “In any business arrangement, there tends to be provisions to address downstream liability for both parties in that context.”

ACEP Responds

After hearing concerns from some physicians regarding the waiver, ACEP reached out to ABEM to seek clarification as to the reason for these attestations. “After discussion with ABEM leadership, and extensive review by ACEP staff and ACEP General Counsel, we believe that this clause is not significantly different from the previous indemnification clauses that diplomats and candidates have been signing for decades,” said L. Anthony Cirillo, MD, FACEP, President of ACEP. “In ACEP’s discussion with ABEM, it became clear that the indemnification clause was instituted to protect against the kind of costly lawsuits that have occurred in the past. The most notable of these cases was the Daniel case, which ended up being a 15-year-long antitrust lawsuit challenging the primacy of emergency medicine residency training as a fundamental standard for board certification.”

The Daniel v. American Board of Emergency Medicine lawsuit, filed in 1990, challenged ABEM’s decision to end the “practice track” for board certification. The plaintiffs alleged that this was done to restrict competition in the market for emergency physicians, and that it violated antitrust laws. Specifically, the physicians were seeking to restore, temporarily, the practice track route so they could qualify for the ABEM board certification examination. The case grew to include over 175 plaintiffs and 30 defendants. However, after 15 years of litigation, the court found that the plaintiffs failed to allege an antitrust injury and the case was dismissed.

“Despite our common goal of continuously improving the standards of emergency medicine practice, it is important to understand that ACEP and ABEM are separate organizations,” said Dr. Cirillo. “ACEP knows that, as a member-focused professional association, our members look to ACEP to be their voice and to help them understand and navigate changes in the specialty.”

Roxanne Nelson is a Seattle-based RN and award-winning medical writer who has been widely published in both professional and consumer publications.