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Court dismisses monopoly charges against American Board of Internal Medicine

A federal court in Pennsylvania, in a September 26 decision, dismissed a complaint by several physicians unhappy with the re-certification process of the American Board of Internal Medicine, rejecting the plaintiffs' claims that the Board certification process is maintained as an improper monopoly and that the board makes misleading claims about the benefits of certification.

(Kenney v. American Board of Internal Medicine)

The Board issues private certification for internists, for which it requires periodic re-certification and continuing education credits, which its certificate holders must purchase from the Board. Doctors licensed when the Board issued life-long certification, prior to 1990, are grandfathered into the system and do not need to participate in continuing education requirements.

Additionally, since the 1990 change, the Board has periodically introduced additional certification maintenance requirements, each requiring an increase in payment or the time spent on maintenance. When a physician does not maintain certification, the Board keeps an entry for the person on its website, but lists them as “Not Certified.”

The plaintiffs brought suit against the Board, claiming various inappropriate policies: That they are forced to purchase continuing education credits from the Board or forfeit their certification, meaning that the board has improperly tied its re-certification service to its initial certification, that the Board has created an improper monopoly for itself in those credits, and that the board had improperly induced other medical industry entities to require that physicians have their certification by misleading them about the benefits of certification.

Many hospitals, insurers, and other medical entities require Board certification for employment or participation, the plaintiffs noted, pointing out that they suffered exclusion following either their decisions not to renew their certification or their failure to meet the re-certification requirements.

Judge Robert Kelly of the U.S. District Court for the Eastern District of Pennsylvania issued a decision September 26, dismissing the case.

In response to the claim by the plaintiffs that the Board was improperly tying together two separate products—the initial certification and the continuing education credits—Judge Kelly disagreed, holding that the two were, despite appearances, parts of a single product. In both cases, wrote the judge, doctors are simply purchasing certification from the Board.

“Internists are not buying ‘initial certification’ or ‘maintenance of certification,’ but rather ABIM certification,” he concluded.

The judge also disagreed with the plaintiffs’ assertion that the Board maintained an improper monopoly over its re-certification credits, holding that the Board’ control over such programs was the only feasible option. “Through offering its own [Maintenance of Certification] program, ABIM has full control over the standards required to achieve certification,” Judge Kelly wrote.

“It would entirely alter the nature of the certification if outside vendors could re-certify internists and potentially disrupt the trust hospitals, patients, and insurance companies place on the ABIM certification.” Third-party certification credits were simply not feasible without the permission of the Board, he said.

Finally, Judge Kelly held that the plaintiffs failed to show any anti-competitive conduct on the part of the Board. The plaintiffs’ claims were based, in part, on a claim that certification by the Board did not actually have a beneficial impact on medical practice and that the Board had misled other entities in the health professions to believe otherwise.

However, the judge held in dismissing the suit, the facts of the case showed this was incorrect. “The . . . Complaint, itself, provides more reasonable and legitimate explanations as to why hospitals and medical service providers require ABIM certification, such as ABIM’s long-established history of certification and its creation of a national standard to compare internists from different states.”