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.


David Rinaldi, MD 06.27.19 Reply

This year the ABIM is starting to rescind board certifications that were supposed to be good for 10 years, for lack of participation the their MOC program.
In 2013, I completed the required ABIM MOC program prior to taking my Hematology Re-Certification Exam. I took and passed the exam, also in 2013.   My previous recertification was active until 2014, so the most recent exam certified me from 2014-2024. 
A few weeks ago, I went to the ABIM web site to check the status of a physician I would potentially be working with, and I also checked my own status.  Both my Internal Medicine and Medical Oncology Certifications were “Certified, not participating in MOC”, but my Hematology was “Not Certified”.   I assumed it as an error and contacted the ABIM.   I was told that my certification was rescinded in February 2019 for lack of participation in their MOC program.  Apparently, their rules changed in January 2014 and MOC participation became mandatory to keep ones certification. I earned well over 100 hours of on-line CME from Up to Date during the 5 years after my certification, as required per MOC rules, but didn’t get any MOC credit for this. I was told Up to Date CME credits didn’t count towards MOC until 2016. I’m sure it’s because the Up to Date CME program now is superior to its program 3 years ago and has nothing to do with not paying the ABIM’s yearly fees for MOC participation ! Regardless, retroactive MOC credit is not allowed. Since I didn’t know about the MOC program requirement changes, I didn’t do whatever was necessary to get the MOC credit.
I’m sure the ABIM must have sent emails regarding their MOC program change, but I’m also sure they went to my Junk Folder and I never read them.  Why would I, my next certification exam wouldn’t be until 2024. I would think with something as important as changing the ABIM board certification rules whereby the they can rescind a certification 5 years early, they would have made sure all certified MD’s were aware of the change by regular mail, or better yet, certified mail.  
I’m willing to bet I’m not the only ABIM certified physician who will find out this year that their board certification was rescinded.
Hopefully our voices will be loud enough to yet again force a change in ABIM MOC policy, since the ABIM of course is a well respected organization representing us physicians who’s only goal is to optimize patient care.

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