After a nearly five-year effort, I regret to inform each of you that our battle to end the anti-competitive conduct of American Board of Medical Specialties (ABMS) regarding Maintenance of (Board) Certification (MOC) was unsuccessful. The rehearing petition and rehearing en banc in the case against the American Board of Psychiatry and Neurology was denied by the Seventh Circuit Court of Appeals in Chicago. We at Practicing Physicians of America (PPA) thank the plaintiff physicians who devoted significant time to assist in this legal effort. We hope our supporters have gratitude for the brave physicians who stood against the corporatization and profiteering within our own house of medicine.
After filing three separate antitrust lawsuits over the past five years and satisfying all legal requirements to move our case to trial, the Seventh Circuit Court of Appeals (based in Chicago) “moved the (antitrust) goalposts” (quoting the dissenting judge in the 2:1 split decision) for physicians to prove liability and have their day in court. In retrospect, the fact these cases were lost in Chicago, home of the American Medical Association, American Board of Medical Specialties, the American Hospital Association, and the Accreditation Council on Graduate Medical Education is lost on no one. Unfortunately, the implications of this decision on all US physicians nationwide are far-reaching.
Nearly 3000 US physicians contributed nearly half a million dollars to Practicing Physicians of America’s GoFundMe to raise funds for the plaintiffs in these legal trials against MOC (many donated more than once). The leadership at PPA and the plaintiffs in these cases are forever grateful. In addition, the law firm of Robinson Curley, LLC worked tirelessly on behalf of all working US physicians, filing these lawsuits (two of which went to appeal) against various AMBS member boards. I asked the lead attorney, Mr. Philip Curley, to share his comments on his thoughts from a legal standpoint on this effort. He graciously accepted and I include his thoughts below.
Our legal theory was simple: ABMS and the specialty Boards in an attempt “to corner” the CME market, illegally tied MOC to certifications by forcing doctors to buy MOC or forfeit their certifications. Seven different judges and courts, however, offered multiple reasons to deny doctors their day in court. First, they theorized that MOC and certifications were, in fact, the same and, thus, could not be tied. When this was overturned on appeal, they shifted gears claiming that MOC could not cause competitive injury because it did not offer CME credits. Of course, this was also a non-starter because doctors do earn CME credits for MOC.
Confronted with this reality, the final justification offered for dismissing our claim was that because MOC (supposedly) cost more than other CME products it was not truly in competition with those other CME products. There was, however, absolutely no evidence to support this new cost-based contention. Worse, the Judges ignored our argument that even assuming MOC was more expensive, the very nature of an illegal tie is that consumers (doctors) are forced to buy an overpriced tied product (MOC) because the seller (the specialty Boards) has market power in the tied product (certifications), shown here by their forfeiture of certifications of doctors who do not buy MOC.
While the outcome is highly disappointing, at least some good has come out of the struggle. The mandatory intensive, high-stakes ten-year MOC examination is a thing of the past (unless one chooses). In its place is a combination of so-called longitudinal quizzes specifically designed to ensure that few, if any, doctors fail. But do these dumbed-down MOC requirements really “certify” anything? What has not changed is the excessive MOC fees that have resulted in many hundreds of millions of dollars being taken out of doctors’ pockets, now sitting unused in the bank accounts of the specialty Boards.
What does the future hold? The power of ABMS and the specialty Boards over doctors will only increase. Since 2005 when the Boards began selling MOC through 2023, the number of accredited CME providers has declined almost forty percent. Soon, ABMS and the specialty Boards will fully control state licensure through MOC, to go along with the control they already exercise over insurance, hospital and admitting privileges, and other aspects of the practice of medicine. With legal redress no longer an option, perhaps the only avenue left for doctors is to assert their collective strength directly with the Boards by participating more actively in their governance and policymaking processes.
Due to the economic concentration over the last twenty years resulting from venture capital firms and other “investors” most doctors have had control of their own profession taken away. They are now wage earners with little say in how they practice. This is likely a major reason why many doctors are retiring early. There is a critical shortage of doctors, and even fewer persons who aspire to someday join the profession. I fear the failure of the Courts to allow us to challenge ABMS, the specialty Boards, and MOC will only accelerate these trends. I hope I am proved wrong.
What Now?
Practicing Physicians of America would encourage all physicians to join and support the National Board of Physicians and Surgeons, the only organization that allows physician self-selected CME to maintain their original ABMS board certifications. Moving forward, advocating that hospital organizations Medical Executive Committees recognize and insist that the National Board of Physicians and Surgeons (NBPAS) be recognized as a credible alternative to ABMS MOC in ALL hospital systems nationwide.
Westby G. Fisher, MD
Co-founder, Practicing Physicians of America
