Published: November 23, 2020
By Julia E. Judish, Pillsbury Winthrop Shaw Pittman LLP, and Tom Granatir, American Board of Medical Specialties (ABMS)
In a series of recent court decisions, specialty medical boards that have adopted recertification or maintenance of certification (MOC) requirements have successfully defended against claims that their policies violate federal antitrust law, winning their motions to dismiss the complaints.
The plaintiffs in these cases — including Lazarou v. American Board of Psychiatry and Neurology (ABPN) and Association of American Physicians & Surgeons, Inc. (AAPS) v. American Board of Medical Specialties (ABMS) — argued that the boards’ requirement that physicians “buy” recertification or MOC from the board in order to maintain their certification status constitutes unlawful “tying” of products under the Sherman Act. The Federal Trade Commission describes tying as forcing consumers interested in buying one product to buy a second (or tied) product that the consumer either does not want to purchase or may prefer to obtain from a different seller.
In rejecting these claims, courts have held that initial certification and MOC or recertification are a single product — i.e., holding certification status from the specialty board — rather than two distinct products. The AAPS and Lazarou decisions distinguished this fact pattern from the challenged practices in Talone v. American Osteopathic Association (AOA); in Talone, the two “tied” products were AOA certification and membership in the AOA, as osteopathic physicians had been required to hold AOA membership to maintain their AOA certification. Although the Talone case settled before a definitive ruling on the lawfulness of those requirements, a federal court denied the AOA’s motion to dismiss in June 2017, holding that the plaintiffs had sufficiently alleged facts that could support a finding that the AOA tied two distinct products, and that it had market power in the tied product.
The AAPS decision also rejected the plaintiff’s arguments, as alleged in the complaint, that specialty medical boards “conspired with health insurers and hospitals” to require that physicians maintain board certification as a condition of being in-network with insurers or of holding medical privileges at hospitals. The court observed that the widespread choice by hospitals and insurers to require MOC has “an alternative explanation” more plausible than an unlawful conspiracy: hospitals and insurers “independently decided MOC provides useful information.”
Indeed, the court’s observation is confirmed by the results of surveys of hospital credentialing practices over the last several years, which have shown a slight rise in certification requirements as a condition for hospital privileges. In a 2014 survey by the ABMS, about 65% of hospitals reported requiring some form of certification from a specialty board as a condition for granting privileges. Four years later, just over 70% reported certification requirements in a 2018 survey by the National Association for Medical Staff Services, conducted in association with the American Hospital Association and the Council on Medical Specialty Societies. About 40% of hospitals accept alternative board certifications offered by specialty medical boards other than ABMS member boards, including the 16 boards of the American Osteopathic Association and the 20 boards of the American Board of Physician Specialties, among others. Only half of the hospitals with certification requirements also require MOC, which may reflect the fact that 30% of ABMS Board certified physicians hold a “grandfathered” status for their non-time-limited certifications that predated the implementation of universal recertification or MOC requirements.
The demand for certification is influenced by many complex factors affecting hospital and physician services. Physician trends include the growth of specialization in medicine and the demand for demonstrated specialty expertise, the decline of independent practice and commensurate growth in physician employment and the development of organized specialty practices. Hospital consolidation, specialty physician density, the increasing demand on hospitals by payers to meet quality metrics for payment and accreditation standards for medical staff management that call for ongoing and focused practice evaluation also affect hospital privileging decisions. Many of these trends will be accelerated by the COVID-19 pandemic.
All of these trends increase demands for standardization, quality and demonstrated competence, which are the ultimate drivers of specialty certification for physicians. These factors apply as well to non-physician professions and explain why employers, consumers and payers prefer or may insist on professionals holding a voluntary certification. However much certifying boards believe in their programs, and however proud participants are to be certified, the value of certification is in the end largely determined by employers and by the recipients of the professional service (whether patients, clients or consumers) who rely on what the certification signifies.
Beyond the specific antitrust law implications of these cases — as well as similar decisions in 2019 in Kenney v. Am. Board of Internal Medicine and Siva v. American Board of Radiology1 — these court decisions more broadly stand for the proposition that a private certification organization has “the right to control who it is certifying and what standards and requirements are necessary,” as stated in Kenney, as well as to review and modify those standards and requirements as they deem best.
Ultimately, ensuring that certification status reflects the certifying organization’s evidence-based endorsement that its certificants have met the profession’s established standards for knowledge, competencies and skills is what engenders public trust in and bestows value on the certification.
1. A previous Credentialing Insights article by Julia Judish explains the holdings in the Kenney and Siva cases.