Let me be the first to admit I am not a lawyer, much less an expert on antitrust legal issues. (That is stating the obvious.) But I am a physician who has felt first-hand the squeeze applied to my bank account and psyche by the monopoly power enjoyed by the American Board of Medical Specialties (ABMS) and their member boards over the many years I have had to endure their repeated testing.
For most US physicians, board certification is anything but voluntary as the ABMS and their member boards suggest. The history of board certification did NOT require MOC when hospital credentials, insurance panel participation, and malpractice coverage began requiring the lifetime credential before 1990. Only AFTER the 1990 change in "rules" imposed by ABIM that their certification was suddenly "time limited," did physicians become trapped and had to purchase MOC. For this reason, I know if I do not repeatedly "re-certify" by paying the ABIM their fees and performing their continuing professional development programs (however they have been morphed over the years) I could lose my ability to work as a physician - the profession I have practiced for over thirty years.
It is that nauseating "squeeze" that has lead a number of physicians to file suit against these powerful (and we now have learned, highly financially conflicted) tax-exempt US specialty "medical boards." Personal luxury condominiums with chauffeur-driven town cars, off-shore retirement accounts, first-class and spousal travel to resort meeting locations offered to a few lucky and highly-marketed physician "experts" has kept the process going for years at the expense of their less well-to-do and politically connected colleagues.
Maintaining this monopoly has come at a huge direct cost to working physicians. The cost of hiring felonious "test security" personnel, lobbying Congress, hospitals, and the insurance industry has seen the costs for "re-certifying" mushroom over 654-766% in the last twenty years.
Since the onset of the coronavirus pandemic, with the exception of a video chat on Fox News by Richard Baron, MD, the President and CEO of the American Board of Internal Medicine (ABIM), the medical boards have largely gone underground. Instead, they are content with letting their 400+ lawyers work to preserve their fiefdom by arguing that board certification is one "voluntary" product.
Where Does the Precedent-setting ABIM Antitrust Lawsuit Stand?
In December 2018, the ABIM was sued by four internal medicine physicians who claimed the ABIM engaged in illegal antitrust activities. That lawsuit was later amended to include racketeering and unjust enrichment claims. But that lawsuit was never tried because a senior district court judge sided with the ABIM on September 26, 2019 that initial certification and Maintenance of Certification are one product, "ABIM certification:"
"Internists are not buying “initial certification” or “maintenance of certification,” but rather ABIM certification. This is made clear by hospitals and other medical service providers requiring ABIM certification, in general. This fundamental misconception about the nature of the entire certification product offered by ABIM undercuts Plaintiffs’ arguments."
With that decision, the plaintiff's antitrust claims were dismissed with prejudice, but the racketeering and unjust enrichment claims were dismissed without prejudice. So the plaintiffs appealed the district judge's ruling to the Appellate Court level on 4 May 2020 and argued the judge ruled erroneously:
"Plaintiffs allege: internists differentiate between certifications and MOC; ABIM has always sold them separately; ABIM treats the two products as separate; ABIM bills and accounts for certifications and MOC separately; and other vendors sell CPD (continuous professional development) products like MOC that keep internists current without selling certifications. Case: 20-1007 Document: 22-1 Page: 21 Date Filed: 05/04/2020 13 The district court ignored these allegations and erroneously concluded that certification and MOC are one product. A-29. In doing so it arrogated to itself determination of the ultimate factual issue, improperly weighed facts, resolved inferences against Plaintiffs, and considered “facts” asserted by ABIM outside the Complaint, all of which are improper on a motion to dismiss. See Flora v. County of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015); Kedra v. Schroeter, 876 F.3d 424, 433 (3d Cir. 2017) ; Sweda v. Univ. of Pa., 923 F.3d 320, 326 (3d Cir. 2019)."
In response, the ABIM has argued otherwise in their recently filed brief:
"The district court properly dismissed plaintiffs’ Section 1 tying claim because plaintiffs failed to plead factual allegations plausibly demonstrating that MOC and initial board certification are separate products capable of being tied. The district court considered each of plaintiffs’ factual allegations and, drawing upon the case law and common sense, rejected plaintiffs’ argument that MOC and initial board certification should be considered separate products. Instead, the court concluded that plaintiffs’ allegations make clear that there is no demand for MOC separate and apart from the demand for board certification. ABIM offers a single certification program for internists to demonstrate their excellence. That program includes initial certification and MOC. As plaintiffs acknowledge, ABIM is entitled to set its own standards in determining who qualifies for its recognition."
But the ABIM conveniently never mention the grandfather issue in their brief - that is, the discriminatory practice of exempting older physicians certified before 1990 from having to perform MOC. Instead, they claim in this brief that "ABIM has always sold MOC together with Initial Certification." Senior physicians like myself know nothing could be further from the truth.
The Plaintiff's response to the ABIM's brief is due July 27, 2020. If the opposition to motion to dismiss the lawsuit against the American Board of Radiology (another ABMS member board also sued for antitrust violations) is any indication, holes in the ABIM's argument that initial certification and MOC are a "single product" could soon surface and lead to the Plaintiffs finally getting their day in court.
We can only hope.
P.S.: Physicians wanting to support the Plaintiffs in their David-vs-Goliath effort are encouraged to contribute to the GoFundMe campaign created on their behalf.