Since December 2018, Practicing Physicians of America has supported multiple plaintiffs who have filed class action antitrust lawsuits against member boards of the American Board of Medical Specialties (ABMS). The reason for this was quite simple: until 1990, board certification was a lifetime, entirely voluntary, medical accolade. After that time, ABMS board certification became “time-limited” and required ongoing payments to “maintain” one or more board certifications that were increasingly required by insurers and hospitals for physicians to practice medicine. As such, there is now forcing of lifelong physician payments to the various AMBS member boards without any independent credible evidence Maintenance of Certification improves patient care quality or safety.
Why was time-limited board certification really started? Because it was purely a “political decision” according to Richard Baron, MD, President and CEO of the largest ABMS member board, the American Board of Internal Medicine (ABIM). There was no other reason for its implementation; it benefitted the entire network of non-profit organizations that comprise physician self-regulation, including the AMA, ABMS, ACGME, the ACCME, AHA, and CMSS (Committee for Medical Specialty Societies). It was a decision imposed only on younger, more vulnerable physicians while exempting senior physicians certified before 1990. The boards needed money to fund their salaries and operations, not to assure “the public” physicians were keeping up with their fields as the ABIM implied at the time. (Physicians already had to provide their states proof of continuing education for their state licensure using self-selected educational credits.)
Board certification has proven remarkably lucrative for the ABMS member boards. Even tiny boards like the American Board of Psychiatry and Neurology (ABPN) have amassed over $172 million in assets and equities while showering their president and CEO over a whopping $2.8 million in a single year, $1.9 million of which was a “bonus.” In fact, according to its Forms 990, ABPN reported net assets of $12,610,227 before the launch of MOC in 2004. In other words, it took ABPN almost seventy years to generate net assets of $12,610,227 from selling certifications. In the twenty years since ABPN began forcing doctors to buy MOC, its net assets have skyrocketed 1,344 percent to $169,554,844 in 2022, including more than $140,000,000 in holdings in cash, savings, and securities at year-end 2022. Most of the over $155,000,000 increase in net assets is attributable to MOC fees charged to psychiatrists and doctors.
A QUICK REVIEW OF THE LEGAL BATTLE AGAINST MOC
But the road to legal reckoning has not been a kind one for physicians who have attempted to sue various member boards of the ABMS. At every turn, judges have managed to find legal escape hatches for the ABMS member boards to avoid having the cases heard in court. Physicians who filed complaints were ridiculed by some and urged to drop appeals. This was especially true for the four plaintiffs who filed the first class action antitrust case against the American Board of Internal Medicine in the Third District Federal Court in Philadelphia in December, 2018 and amended in January 2019. A senior judge and Reagan appointee who was deciding the last case of his career was appointed the case. (Bad news for physicians but good news for hospitals and insurance companies.) As expected, he ruled that MOC and initial board certification were not separate products, implying there was no grounds to proceed with the case and setting a precedent for all cases decided later.
Next up was the class action antitrust lawsuit filed against the American Board of Radiology (ABR) on behalf of all US radiologists in the 7th District Federal Court in Chicago. Not surprisingly, the District judge relied heavily on the precedent set by the 3rd Circuit in Pennsylvania and dismissed the suit against the ABR. But his suit was appealed. Importantly, the three judge panel at the Appellate Court level did establish that initial certification and Maintenance of Certification were separate products. Nonetheless, the appeals court upheld the dismissal of plaintiff’s claims because it did not feel MOC was a substitute for other continuous professional development (CPD) products. This argument was new and had not been addressed before by either the lower court or the parties.
Which leads us to the last class action case to be decided: the case against the American Board of Psychiatry and Neurology. This case was also filed in the Seventh District Federal Court in Chicago and continues to winds its way through legal proceedings. The lower court recently requested that the parties file a brief addressing the impact of the ABR Appellate Court opinion. Plaintiffs explained how the Plaintiff in the ABR case had found certification and MOC to be separate products, and described in detail how MOC was indeed a CPD product, and that MOC and other CPD products are interchangeable with each other, but the court was not convinced and dismissed the case with prejudice, but offered the Plaintiff a final chance to file an amended complaint to prove otherwise. That second amended complaint was recently filed 15 Dec 2023.
To economists and antitrust experts, the second amended complaint against ABPN is compelling. But physicians are not having to prove their case to economists and antitrust experts. They are trying to convince one judge that fully understands the implications of this decision and how it would disrupt the entire medical self-regulatory market valued at an estimated annual $1 trillion. The ABPN has until late February to file their counter-arguments. We can expect the judge to render his ruling several months later.
SO WHAT IS MOST LIKELY TO OCCUR?
Given the implications of his ruling and the prior legal decisions already rendered, finding a legal loophole to dismiss the second amended complaint against ABPN remains the most likely outcome. But sometimes, just maybe, the judge could rule there might be a lucrative medical antitrust monopoly and side with the Plaintiffs. If so, doctors may finally get their day in court to argue their case before a jury if the judge decides the case against ABPN has merit. If not, the bureaucratic physician self-regulators in America will prevail and the quiet exit of experienced more senior clinical physicians who understand the ruse will continue.
Sadly, it is becoming increasingly evident that keeping physicians from expressing their concerns regarding MOC is the intended endgame for corporate medicine. Replacing experienced physicians with a lesser-experienced workforce is clearly economically cheaper. Artificial intelligence is being promoted over experience in medicine. Those physicians who remain behind will be left no choice but to march lockstep with their corporate overlords at the expense of their patients.
