Class Action Lawsuit against the ABMS

There are separate class action antitrust lawsuits against the ABIM, ABR, and ABPN.

But there’s also a class action lawsuit against the umbrella organization, the American Board of Medical Specialities (ABMS), which names all of the member boards as “co-conspirators.” The premise is the same in all of the suits: the ABMS and its member boards have a competition-squashing monopoly on initial board certification and use that dominance to illegally tie mandatory lifelong payments in the form of MOC-fees lest doctors lose their hard-earned certifications.

There’s an interesting excerpt from a Department of Justice letter in the middle that I’m going to pull a couple of passages from (emphasis mine):

Because, like other forms of professional standards-setting, certification can become a de facto requirement for meaningful participation in certain markets, a certification requirement may create a barrier to entry. In such circumstances, certification may function more like licensing requirements – establishing who can and cannot participate in a market – rather than voluntary certification that can help patients and others distinguish on quality among a range of providers.

The more certification comes to resemble licensing, the more such industry self-regulation raises similar concerns. For example, as the U.S. Supreme Court has explained, though market participants offer important and needed experience and expertise about their practice and profession, such professionals, when empowered to set licensing requirements without meaningful review, “may blend [ethical motives] with private anticompetitive motives in a way difficult even for market participants to discern.” Similarly, competitive concerns can arise when private standard-setting processes become “biased by members with economic interests in restraining competition.” The governing members of a dominant certifying body may have incentives to set certification requirements more stringently than is necessary to certify that providers have the relevant knowledge and skills. In situations where one certifying body has become dominant, such that physicians cannot turn to alternative bodies for a similar certifying function, market forces might not constrain the dominant body from acting on these incentives.

Which is to say: the DOJ wrote an excellent summary of the current situation several years ago.

The chance of these cases actually going to a jury trial does seem a bit higher when the Department of Justice and Supreme Court have already put words on paper warning of the dangers of “self”-regulation and legitimizing the complaints against these certifying organizations.

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