CHICAGO (CN) — A group of doctors maintained to a Seventh Circuit Court of Appeals panel on Wednesday that a medical specialty board that sells psychiatry certifications nationwide to recent medical residency graduates who complete the requisite certification exam forced members to buy classes and take an exam to maintain their certifications.
The certifications are voluntary and not required for doctors to be licensed. However, virtually all states require doctors to purchase “continued medical education” products — defined by the American Medical Association as educational activities which aim to maintain, develop or increase the knowledge and skills a physician uses to serve their patients and the public —to obtain their licenses.
The class of plaintiffs of the antitrust complaint filed against the American Board of Psychiatry and Neurology in the Northern District of Illinois in 2019 claim that through “maintenance of certification” programs, the group unlawfully obtained a monopoly power in the market.
They say the anti-competitive purpose of requiring certificate-holders to purchase maintenance products constitutes a monopoly. They also said doctors view those products as interchangeable with other continued medical education products and referred to them as commercial substitutes.
Representing the plaintiffs, attorney Philip Curley argued that 2019’s Siva v. American Bd. of Radiology provides a road map for what must be claimed to state an antitrust claim against a medical board such as ABPN.
“Siva first found that certification products and continuing medical education products were separate and also noted that the parties in that case didn’t really dispute that,” Curley, an attorney with Chicago-based firm Robinson Curley, said.
“But Siva then went on to hold that in order to show that MOC products fell within the continuing education market, three conditions must be met: the MOC must contain educational content, the doctors must earn CME credits from MOC and the MOC must not be redundant of other CME products,” he added.
Curley argued that plaintiffs plausibly claimed all three of the conditions laid out in Siva.
“ABPN does not appear to seriously dispute this, instead, it relies on stare decesis and a handful of other alternative grounds to affirm dismissal,” he said, referencing a legal doctrine that holds courts will follow precedent in making decisions.
Christopher Sullivan, one of the attorneys for the board, said in court and in the board’s appellees’ brief that the plaintiffs’ relied on the same legal grounds and even the same drafts used in Siva, which was dismissed by the federal court in 2019 and affirmed by the Seventh Circuit in 2022.
“Every court that has looked at this, including this court in Siva, has dismissed with prejudice at the pleading stage,” Sullivan said. “So what that is telling you is that there are no set of facts — in other words — while that fact is new, the theory is the same, the analysis is the same, the relative competitive market is the same as Siva. Nothing, materially, has changed.”
Sullivan also tore down plaintiffs’ claim that the certificate maintenance products and continued education products are reasonably interchangeable. He added that all continued medical education comes from third parties, and the board does not participate in the continued medical education markets.
U.S. Circuit Court Judge Candace Jackson-Akiwumi shared some of Sullivan’s skepticism related to the reasonably interchangeable argument.
“How is reasonably interchangeable met, when it seems to me that all of the scenarios that you paint still have doctors going to third party vendors for CME at some point,” she asked Curley.
Curley maintained the board leverages its monopoly to force psychiatrists and neurologists to buy their own maintenance product and he noted that in some states the maintenance products can be used in place of other continued education products.
The U.S. District Court for the Northern District of Illinois initially dismissed the plaintiffs’ complaint for not plausibly claiming that the initial certification and the maintenance of certification were separate products, or that the maintenance of certification was interchangeable with other continuing education products.
The board formerly issued lifelong certifications, but now those certificates last only a decade and require participation in the maintenance of certification program. Since the organization did away with lifelong certificates, it charges each physician an annual average of $212 in fees for participating in those maintenance programs.
“This required, among other things, passing a secure, proctored, high-stakes, cognitive MOC examination every ten years; completing a specified number of CME credits, including a certain number of Self-Assessment (‘SA’) CME activities pre-approved by ABPN; and fulfilling burdensome and meritless Improvement in Medical Practice (‘PIP’) requirements,” the class of plaintiffs wrote in their initial complaint.
U.S. Circuit Court judges Michael Scudder, a Donald Trump appointee, and Nancy Maldanado, a Joe Biden appointee, joined Joining Jackson-Akiwumi on the panel, which did not indicate when it might issue a ruling.