Internists Initiate Class-Action Suit Against ABIM Over MOC

Ken Terry

December 10, 2018

Four internists from around the country recently filed a class-action antitrust suit on behalf of over 100,000 internal medicine physicians against the American Board of Internal Medicine (ABIM), alleging that the ABIM illegally ties its initial board certification to maintenance of certification (MOC) exams that internists and internal-medicine subspecialists must pay for in order to keep their certification.

Filed in the federal court for the Eastern District of Pennsylvania, the suit claims that ABIM has tied its MOC product to initial board certification to prevent competition.

"To drive sales of MOC and to monopolize the market for MOC, the ABIM has forced physicians to purchase maintenance of certification, charged inflated monopoly prices for MOC, and thwarted competition in the market for maintenance of certification," says the complaint.

The ABIM's MOC program, the suit states, has allowed the organization to collect "hundreds of millions of dollars in related fees from internists." Although the complaint does not provide a source for this claim, the ABIM has said that its certification and MOC activities generated almost $57 million in fiscal 2015.

The suit argues that the ABIM's MOC program is designed chiefly to produce revenue for the board. "One analysis projected that complying with MOC costs internists an average of $23,607 in money and time cost over a 10-year period, with costs up to $40,495 for some specialists," the suit states.

The complaint also says that the ABIM has squelched competition from organizations that offer "cheaper, less burdensome, and more innovative forms of MOC desired by internists." The sole party cited by the plaintiffs is the National Board of Physicians and Surgeons (NBPAS). This organization was established in January 2015 to provide a competing MOC product, not only to internists, but also to physicians in other specialties.

The ABIM has thwarted the NBPAS by not recognizing its MOC exams for internists, according to the suit.

The plaintiffs include Gerard Francis Kenney, MD, a gastroenterologist in Pennsylvania; Alexa Joshua, MD, a general internist in Michigan; Glen Dela Cruz Manalo, MD, a gastroenterologist in Washington; and Katherine Murray-Leisure, MD, an infectious disease specialist in Massachusetts. They are bringing their class action on behalf of all internists required by the ABIM to purchase MOC to maintain their initial certification.

The plaintiffs have requested the court declare that the ABIM's MOC-related actions are an unreasonable restraint of trade and that it has created an illegal monopoly. They ask the court to enjoin ABIM from continuing this conduct. And they seek a financial judgement against ABIM on behalf of the class, as well as legal costs.

ABIM's Response

In a statement about the suit, the ABIM said, "ABIM is disappointed to learn of a lawsuit filed on behalf of four diplomates...ABIM leadership, volunteers, and staff have spent the last several years working with broad segments of the diverse internal medicine community to make ABIM's program better and enhance the value of ABIM certification to diplomates and the public."

In 2018, as the suit acknowledges, the ABIM began allowing its diplomates to opt-out of the high-stakes 10-year exam and instead take shorter, more frequent online exams to maintain their certification. This year, the ABIM said, more than 6000 diplomates used this Knowledge Check-in to revalidate their knowledge of internal medicine.

So far, only general internists and nephrologists have had this option, the ABIM noted. Eight more subspecialties will be able to use the Knowledge Check-in in 2019, and nine other subspecialties will be added in 2020.

The ABIM has also begun to collaborate with the Accreditation Council for Continuing Medical Education to simplify the integration of MOC with accredited continuing medical education. And the ABIM is discussing the creation of alternative pathways for MOC, starting in 2019 with the American College of Cardiology, American College of Physicians, and American Society of Clinical Oncology.

Long-Running Battle

The internists' suit is the latest skirmish in a long-running battle over the MOC requirements that the ABIM established in 1990 and has since revised several times.

Many internists, as well as other physicians who are subject to their own specialty boards' MOC criteria, object to being forced to spend many hours on studies to maintain their board certification. They're also understandably fearful about losing their board certification, on which their hospital privileges and participation in insurance panels depends, if they fail the recertification exam.

And there have been vociferous protests about the MOC fees charged by the ABIM and other specialty boards.

These concerns came to a head at the American Medical Association (AMA) 2017 Annual Meeting. During that conference, the AMA's House of Delegates failed to adopt the key parts of a resolution that would have required the national association to weigh-in on state legislation to protect physicians against loss of hospital privileges and decredentialing by health plans if they don't maintain board certification.

Opponents of the measure did not want states to get involved in board certification and credentialing. Supporters said that physicians needed help from the AMA to prevent serious economic and career consequences for physicians who didn't participate in MOC or failed MOC exams.

In the antitrust lawsuit, all four plaintiffs explain how they fell afoul of the ABIM's MOC process and detail the consequences they suffered. For example, Murray-Leisure has a lifelong internal medicine certification because she obtained her initial board certification in 1984. (Physicians first certified before 1990 are grandfathered in.) But she was certified as an infectious disease subspecialist in 1990, and that certification was terminated after she failed the ABIM's MOC examination in 2009.

As a result, Murray-Leisure's hospital removed her privileges as an infectious disease consultant in 2011. She retook the MOC exam in 2012 and passed it, and the hospital restored her consulting privileges. But she lost a year's worth of consulting income and her reputation was tarnished by the episode, the suit said.

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