Courts Reject Antitrust 'Tying' Claims Based on Recertification Requirements

By Julia E. Judish, Esq

In important decisions for certification organizations, two federal district courts recently dismissed antitrust challenges to recertification requirements. In the first case, Kenney v. Am. Board of Internal Medicine, 2019 WL 4697575 (E.D. Pa., Sept. 26, 2019), several plaintiffs who had obtained initial certification from the American Board of Internal Medicine (ABIM), a medical specialty certification board in internal medicine, claimed that ABIM’s recertification requirements violated the Sherman Act, a federal antitrust statute, among other claims.

At its formation in 1936, ABIM had originally provided lifetime Board certification to physicians who passed ABIM’s initial certification examination. ABIM later adopted maintenance of certification (MOC) requirements for Board-certified internists, including requiring Continuing Medical Education (CME) credits every two years and passage of a recertification examination every 10 years. As of 2018, ABIM has permitted Board-certified physicians to recertify either by taking a Knowledge Check-In test every two years or by passing the traditional recertification examination every 10 years, both of which are now open-book. Physicians certified by ABIM before 1990 are exempt from these MOC requirements, however, and can list themselves as Board-certified without passing additional examinations or earning CME credits. 

The plaintiffs in Kenney lost their ABIM certification status because they either opted not to participate in MOC activities or failed to pass ABIM’s recertification examination. All alleged loss of income or employment opportunities as a result. ABIM did not dispute that internists who do not maintain Board certification suffer substantial economic consequences. Many hospitals and medical practices require internists to hold current ABIM certification as a condition of employment or of hospital consulting and admitting privileges, and many insurers require Board certification for reimbursement. Meeting MOC requirements also entails direct expenses on the part of internists, including CME and examination fees, as well as calling for a substantial time commitment.

Plaintiffs asserted that ABIM had unlawfully tied initial certification and MOC in violation of the Sherman Act, arguing that initial certification and MOC are separate products. Under antitrust principles, unlawful tying occurs when a seller uses its market power to coerce buyers into purchasing a tied product as a condition of sale of another, distinct product. The court categorically rejected that argument, holding that that ABIM certification is a single product and that initial certification and MOC are merely elements or parts of that unified product. The court also rejected plaintiffs’ argument that ABIM violated antitrust law by not recognizing less stringent and less expensive MOC offerings from a different organization: “Much like a university has a right to ensure that students who earn a degree have met certain requirements set by that university, ABIM has a right to ensure it is certifying internists that meet ABIM’s standards.”

Plaintiffs had supported their argument that initial certification and MOC are distinct products by pointing to the grandfathered internists who hold lifetime certification from ABIM.  The court rejected that argument also, finding “no support as to why ABIM should not be allowed to modify its certification process over time. We see no problem that at some point ABIM realized there was a need to have its certified internists undergo an MOC program, whether because the internists could not keep up with the advances in their particular field, saw their skills diminish or any other reason.”

Less than two months later, the U.S. District Court for the Northern District of Illinois relied on Kenney in dismissing a Sherman Act lawsuit against the American Board of Radiology (ABR).  In Siva v. American Board of Radiology, the plaintiff had argued that ABR’s initial certification and MOC were separate products, reasoning, in part, that “[i]f MOC were genuinely essential to the purposes of board certification and therefore of a piece with initial certification, … ABR would require it for everyone, not only younger doctors.” The court rejected that argument: “This was once a one-stage process, and it is now a multi-stage process, but it does not follow that the certification process consists of separate products; now as ever, there is only one product.” 

These rulings may have ramifications even beyond the antitrust arena. Holding that “ABIM has the right to control who it is certifying and what standards and requirements are necessary,” the Kenney decision affirms the right of private certification organizations to establish their own credentialing standards, as well as to revisit and refine those standards and requirements over time. As the Siva court explained, “what ABR sells to its certified physicians — and, indirectly, to the other industry participants who rely on ABR’s credentialing of physicians — is essentially an endorsement based on a ‘formula, including all that it entails’ … for assessing physicians’ knowledge, skill and understanding.” Both the Kenney and Siva decisions stand for the principle that certification organizations have a right to “control the quality of [their] product.”