Does the American Board of Internal Medicine (ABIM) have a right to require maintenance of certification (MOC) for internists to stay board-certified? That’s what was at issue in oral arguments Thursday before a federal appeals court.
“We allege there’s no connection between MOC and any benefit to doctors, patients, or the public,” said C. Philip Curley, the attorney for the internists suing the ABIM. “This case is not about standards; it’s about $100 million in fees that ABIM generates” as a result of tying MOC to board certification.
“This case is about the right of ABIM to set its own standards for what it means when it says the physician is board-certified,” said Leslie John, the attorney representing the board. “The appellants claim they’re entitled to lifetime certification because they would rather not take the periodic examinations. But that is not the product that they bought … Three different courts all looked at these allegations, and each reached the same conclusion — that they don’t amount to an antitrust claim.”
The class-action lawsuit against ABIM was brought by four internists — Gerard Kenney, Alexa Joshua, Glen Dela Cruz Manalo, and Kathleen Murray-Leisure — who had an adverse experience with ABIM’s MOC program, which requires internists to take periodic examinations — either every 2 years or every 10 years, depending on which option they choose — to maintain their board certification. Kenney and Manalo did not buy MOC, and ABIM revoked their certifications. Joshua bought MOC but did not pass an MOC test and ABIM revoked her certification. Murray-Leisure bought MOC, did not pass a MOC test, and ABIM revoked her certification, but she passed later and ABIM reinstated her certification.
The suit alleges that ABIM acted illegally by requiring doctors to buy one of its products — MOC — in order to keep using its other product — board certification — a practice known as “tying.”
“In addition to money damages, Plaintiffs ask that ABIM be enjoined from revoking certifications of internists who do not buy MOC,” their lawsuit reads. “Plaintiffs do not contend ABIM should be prevented from determining its own standards, or be required to accept any other CPD [continuous professional development] product as a substitute for certifications or MOC. There is no legitimate business or pro-competitive justification for ABIM’s tying of certifications and MOC.”
The doctors sued ABIM in federal district court in late 2018. The following year, ABIM asked the court to dismiss the case, which it did. Now the physicians have appealed to the federal Court of Appeals for the Third Circuit in Philadelphia, where a three-judge panel heard Thursday’s oral argument.
Their lawsuit is being funded by the Practicing Physicians of America, a doctors’ group with a goal of ending MOC. “Unnecessary time requirements and financial burdens are robbing patients of their time with physicians,” the group says on its website. The organization’s treasurer, Westby Fisher, MD, is a vocal MOC critic, with articles on his blog and in medical journals inveighing against the program.
Fisher contends that one of ABIM’s purposes for its MOC program is to enrich itself. “Corresponding to the implementation of time-limited certification, $55 million of physician testing fees were transferred from the American Board of Internal Medicine to its Foundation between 1989 and 1999,” Fisher, a cardiac electrophysiologist and former MedPage Today columnist, wrote in a 2016 article for the Journal of Interventional Cardiology and Electrophysiology. “From 2000 through 2007, an additional $20.66 million [was] transferred from the ABIM to its Foundation, culminating in the purchase of a $2.3 million luxury condominium in December 2007.”
The current cost of the MOC program is $650 for a 10-year recertification exam for general internists, or $130 if internists choose to re-certify via a shorter “knowledge check-in” every 2 years. Subspecialists’s fees are higher: $1,200 for the 10-year exam and $240 for the knowledge check-ins. The ABIM took steps in 2016 to increase its financial transparency, making its audited financial statements and IRS 990 forms available on its website.
“ABIM is the monopoly seller of certifications and if internists do not buy MOC, ABIM revokes their certifications,” the lawsuit notes. “Internists whose certifications are revoked by ABIM because they do not buy MOC are no longer eligible for hospital admitting and other privileges, employment, insurance coverage, and other requirements necessary for the successful practice of medicine. ABIM uses its monopoly power over certifications to force internists to buy MOC or have their certifications revoked.”
ABIM attorney John pointed out that doctors know what they’re buying with their initial board certification. “When they upfront bought that product, they knew there would be a continuing obligation as part of the certification program, that they would have to demonstrate that they possessed requisite knowledge to hold themselves out and say ‘Yes, I am ABIM- or board-certified,'” she said. “So there is no ‘forcing’ because there is the knowledge upfront at the time of purchase of what certification entails, and that is the periodic demonstration of knowledge.”
The court gave no indication regarding when it might issue a ruling in the case, which is one of four MOC antitrust cases currently pending in the courts. Defendants in the other cases include the American Board of Medical Specialties as well as the boards of radiology, psychiatry and neurology, emergency medicine, and anesthesia.