Class Action Lawsuit Against ABIM MOC Program Dismissed

Ken Terry

September 27, 2019

A federal court has struck down a class-action suit by four internists against the American Board of Internal Medicine (ABIM) over its maintenance-of-certification (MOC) program. As of press time, attorneys for the plaintiffs could not be reached and it was not known whether the ruling would be appealed.

Judge Robert F. Kelly, from the US District Court for the Eastern District of Pennsylvania, yesterday granted ABIM's motion for dismissal of the amended complaint. Kelly disallowed all of the counts in the suit, including two alleged violations of the Sherman Act, an alleged violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), and a claim of unjust enrichment.

The internists' suit, filed in late 2018 and amended early this year, claimed, "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."

Starting in 1990, ABIM issued time-limited initial certifications and required internists to take must-pass exams every 10 years or lose their board certification, the judge noted. Doctors who were board-certified before 1990 were not required to recertify. (ABIM recently dropped the requirement that internists take decennial exams, but the group still requires them to complete ABIM-designed knowledge assessments to qualify for recertification.)

Board certification is critical to doctors because hospital privileges and insurance contracts are usually available only to physicians who are board-certified. The plaintiffs — 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 — claimed they had lost job opportunities, employment, admitting privileges, or insurance coverage because they had either declined to participate in ABIM's MOC program or had failed MOC exams.

Nevertheless, in dismissing the RICO claim, the court ruled that none of the plaintiffs had suffered economic injury as a direct result of ABIM's conduct. If they had lost employment opportunities or job responsibilities, he said, that was because of their employers' actions.

"The employers established ABIM certification as a performance requirement for their internists," Judge Kelly noted. "Plaintiffs were either unable or unwilling to meet that requirement and suffered adverse actions because of it."

He also dismissed the complaint that some plaintiffs had been economically harmed by being forced to purchase MOC programs from ABIM. The physicians had purchased a time-limited certification from ABIM, knowing that it would lapse in time and that they would have to participate in MOC to extend their certification. "At no point did ABIM require or 'force' plaintiffs to purchase MOC," the decision said.

Similarly, the court rejected the unjust enrichment charge, which alleged that ABIM had wrongfully obtained fees by forcing internists to purchase MOC or have their certification terminated. It isn't wrong for ABIM to keep the MOC fees because it didn't force the plaintiffs to purchase MOC, the court said.

No Linking or Monopoly

The heart of the case was the two charges brought under the Sherman Antitrust Act. The plaintiffs first argued that ABIM had unlawfully linked the purchase of the MOC program to their initial board certification. ABIM countered that initial certification and MOC are not separate products; internists buy ABIM certification for a limited period of time and then they have the option to renew it.

Judge Kelly agreed. "Internists are not buying 'initial certification' or 'maintenance of certification,' but rather ABIM certification," he said. "This is made clear by hospitals and other medical service providers requiring ABIM certification, in general."

He also rejected the argument that ABIM had prevented the National Board of Physicians and Surgeons from gaining traction in the MOC market by refusing to accept its cheaper board recertification. "It would entirely alter the nature of the [ABIM] certification if outside vendors could re-certify internists and potentially disrupt the trust hospitals, patients, and insurance companies place on the ABIM certification," the judge said.

Finally, the court said plaintiffs had been unable to establish any anticompetitive conduct to support a claim of monopolization under the Sherman Act. "As we described above, ABIM's MOC product is not a separate market, but rather a part of its offering in the overall certification market. ABIM cannot have a monopoly in a market that does not exist."

Ruling Should Lay Objections to Rest, ABIM Says

In a statement, ABIM President and CEO Richard Baron, MD, said, "ABIM is pleased that the [court] dismissed in its entirety a lawsuit that alleged physicians were harmed by the requirements for maintaining ABIM board certification."

Baron told Medscape Medical News that he believes the court ruling lays to rest the objection of some internists that they're being forced to pay fees for MOC.

As for those physicians who say they'd rather take CME courses of their choice, Baron pointed out, "ABIM has developed a collaboration with ACCME to enable physicians to choose what activities work best for them and simultaneously earn both CME credit and MOC points."

From 2015, when this partnership began, nearly 160,000 ABIM diplomates have earned more than 14 million points toward their MOC while simultaneously obtaining CME credits, he said.

Still, many internists don't like the idea that their careers could be terminated if they don't get recertified. "ABIM supports voluntary certification," Baron responded. "[American Board of Medical Specialties (ABMS)] policy, with which we agree, is that board certification by any ABMS board shouldn't be the sole criterion for staff privileges.

"ABIM has no control over how others, including hospitals and health systems, use our credential; our responsibility is to put out a credential that means something and has real standards behind it," he added. "We are proud that it is viewed as providing information to the profession and the public that a physician is staying current in medical knowledge and practice."

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