Physicians File Lawsuits against Boards over Maintenance of Certification

Critics have expanded their tactics challenging maintenance of certification (MOC) requirements by filing several class-action lawsuits against the boards that administer MOC tests and programs.

The first of these suits was filed in December 2018 against the American Board of Internal Medicine (ABIM) by four internists who allege they have been harmed by ABIM’s anti-competitive practices regarding MOC.

On Feb. 19, 2019, three physicians in California proposed a class-action lawsuit against the American Board of Medical Specialties, American Board of Anesthesiology, and American Board of Emergency Medicine for antitrust violations. On Feb. 26, 2019, a radiologist in Tennessee filed a similar class-action suit against the American Board of Radiology. And on March 6, 2019, two psychiatrists filed suit against the American Board of Psychiatry and Neurology.

The initial suit against ABIM provided a template for the others. The four physicians all passed initial internal medicine boards, as well as those in other subspecialties, such as gastroenterology and infectious disease. The plaintiffs allege they have been harmed by being listed as “not certified” after not passing MOC exams—despite having passed the initial exams that are enough for older, “grandfathered” physicians to maintain their certification.

The suit also alleges that ABIM has illegally tied its initial certification test to its maintenance of certification product, used its monopoly position in the initial certification market to create a monopoly in the MOC market, used various anti-competitive actions to thwart competition from other potential MOC providers, forced physicians to purchase MOC, and charged inflated monopoly prices.

The plaintiffs amended their suit in January 2019 to include a charge that ABIM violated the Racketeer Influenced and Corrupt Organizations (RICO) Act by waging a campaign to deceive the public, hospitals, insurance companies, medical corporations, and media that MOC “benefits physicians, patients and the public and constitutes self-regulation by internists,” which misled these entities into requiring “internists to participate in MOC in order to obtain hospital consulting and admitting privileges, reimbursement by insurance companies, employment by medical corporations and other employers, malpractice coverage, and other requirements of the practice of medicine.”

Motion to dismiss

ABIM responded to the lawsuit on March 19, 2018, with a motion to dismiss the complaint.

“Plaintiffs may disagree with ABIM and members of the medical community on whether ABIM certification provides them value, but their claims have no basis in the law,” said Richard J. Baron, MD, president and CEO of ABIM. “With advances in medical science and technology occurring constantly, periodic assessments are critical to ensure internists are staying current and continuing to meet high performance standards in their field.”

“Board certification is a voluntary process, and is not required to practice medicine in any state,” ABIM notes in explaining its response to the lawsuit. “Many patients, healthcare institutions, and insurers rely upon certification as a tool that, along with other markers, informs them about a physician’s credentials.”

This question of whether or not MOC is actually voluntary is a key point on which the lawsuit could turn. Niran S. Al-Agba, MD, a board-certified pediatrician in solo practice in Silverdale, Wash., says that, like other states, Washington has outlawed using MOC as a “requirement for having a medical license, but [it has] not outlawed [requiring MOC] for being on staff at a hospital. So, if you are going to be affiliated with any hospital, you are required to do MOC, and if you are going to contract with certain insurance companies, you are required to be on staff at a hospital.”

ABIM responds that the decisions of healthcare institutions and insurers to require certification are independent of any of ABIM’s actions.

GoFundMe campaign supports suits

Al-Agba is on the board of directors of Practicing Physicians of America (PPA), a membership organization fighting to end MOC. PPA is sponsoring a GoFundMe campaign to fund federal class-action lawsuits against MOC.

PPA launched the GoFundMe campaign in May 2018 to raise funds to explore the possibility and lay the groundwork for potential litigation. By September 2018, the campaign had met its initial goal of $150,000, enough to launch the lawsuit. By early April 2019, more than 1300 people had donated almost $260,000 toward a new goal of $400,000.

“PPA has created a way for physicians to donate money to their colleagues. We don’t take any money off the top of this GoFundMe account. The money is going 100% to help these plaintiffs,” Al-Agba said. “Almost 1400 different physicians spread across the country and across many medical specialties [are] supporting plaintiffs that aren’t in the same specialty [who] have been harmed by maintenance of certification. That fact alone tells you how unhappy physicians are.” The money is funding the lawsuits against ABIM, the American Board of Radiology and the American Board of Psychiatry and Neurology.

Al-Agba hopes there will be some resolution to the ABIM suit by the time of her next 10-year MOC exam in 2022, but an ongoing suit by the Association of American Physicians & Surgeons (AAPS) shows how long the process can be. AAPS, an organization dedicated to “individual liberty, personal responsibility, limited government [and a] free-market medical system,” filed a similar antitrust suit in 2013 against the American Board of Medical Specialties (ABMS) for “restraining trade and causing a reduction in access by patients to their physicians. The ABMS has entered into agreements with 24 other corporations to impose enormous ‘recertification’ burdens on physicians, which are not justified by any significant improvements in patient care,” according to its website.

That suit has languished. The merits of the case have yet to be heard, after years of motions to dismiss and responding counter-motions. In the latest action, a judge delayed a status conference on ABMS’s motion to dismiss from April 10 to May 3, 2019.

A testing moratorium?

Other forces could well bring major changes to MOC before these lawsuits play out. In response to the report of the ABMS Vision Initiative Commission calling for changes in MOC, the Council of Medical Specialty Societies sent comments that proposed “a moratorium on the use of the high stakes, summative examination for continuing certification until ABMS and its member boards can implement the recommended changes to continuing certification.”

The American College of Radiology also sent comments to ABMS endorsing this call for a moratorium “until many programmatic deficiencies are corrected” and noted: “The ABMS and its member boards should carefully consider the anti-trust implications for their actions.”

That comment is noteworthy when combined with a question raised on the “Dr. Wes” blog of Westby G. Fisher, MD, a prominent MOC critic and one of the founders of PPA: “How many more ABMS member boards will be sued?”

June 2019 (Vol. 11, Number 6)