Psychiatrists File Class-Action Suit Against ABPN Over MOC

Two psychiatrists, one of whom is an APA member, have filed a class-action lawsuit against the American Board of Psychiatry and Neurology (ABPN) alleging that its requirements for Maintenance of Certification (MOC) are illegal and anticompetitive.

The suit, filed on behalf of all physicians required by the ABPN to purchase MOC to maintain their initial certifications, levels sweeping allegations against the entire MOC project. It encompasses three specific charges: unjust tying of MOC to initial certification, anticompetitive conduct, and unjust enrichment of the ABPN and its officers through fees collected from physicians required to purchase MOC.

Filed on March 6 in the United States District Court for the Northern District of Illinois, the suit specifically cites APA as being among the organizations (along with the American Academy of Neurology and others) that have protested against MOC. Similar suits concerning MOC have been filed against the American Board of Radiology and the American Board of Internal Medicine.

“Approximately 70,000 psychiatrists and neurologists have purchased initial ABPN certifications,” the suit charges. “ABPN has throughout the relevant period controlled the market for initial certification of psychiatrists and neurologists in the United States. Through its MOC program, ABPN has also controlled the market for maintenance of certification of psychiatrists and neurologists. ABPN has unlawfully obtained and maintained its monopoly power in the market for maintenance of certification services for the anticompetitive purpose of requiring psychiatrists and neurologists to purchase MOC and not deal with competing providers of maintenance of certification services.”

Specific plaintiffs in the suit are Emily Elizabeth Lazarou, M.D., and Aafaque Akhter, M.D. Lazarou, a resident of Florida, is a graduate of the University of Texas Medical School and completed her residency in general adult psychiatry in 2006 at the University of South Florida in Tampa, Fla., where she was chief resident. In 2007, Lazarou completed a fellowship in forensic psychiatry.

Akhter finished medical school at Patna Medical College in Bihar, India, and received his diploma in psychological medicine from the Royal College of Surgeons in Ireland. He has also passed the MRCPsych (I) examination conducted by the Royal College of Psychiatrists in London. He completed his residency in general adult psychiatry in 2002 at Harvard Medical School. He is a resident of New York.

The suit encapsulates nearly all the complaints that physicians and physician groups, including APA, have leveled against MOC, the requirements for which are widely regarded in the medical community as burdensome, costly, and unrelated to improving physician practice or patient care.

“We will be watching this lawsuit carefully,” said APA CEO and Medical Director Saul Levin, M.D., M.P.A. “Many of our members share the same concerns about MOC. APA supports lifelong learning but also has a long history of advocating for meaningful MOC programs that do not add to the administrative burdens of clinical practice.”

Larry Faulkner, M.D., president and CEO of the ABPN, told Psychiatric News the suit is groundless.

“ABPN believes the putative class-action lawsuit filed by Emily Elizabeth Lazarou and Aafaque Akhter that charges the ABPN with conspiring to violate various antitrust laws is completely without merit,” he said. “This lawsuit will be both costly and disruptive to efforts by the ABPN to provide useful information to the physicians we serve and to foster the provision of high-quality, specialty physician services. The ABPN intends to defend itself vigorously and anticipates that, like similar cases previously filed against the American Board of Medical Specialties and other Member Boards, this lawsuit will be dismissed.”

The suit encompasses three specific charges:

• Illegal “tying” in violation of Section 1 of the Sherman Antitrust Act. The suit alleges that the ABPN is tying its MOC product to initial certification and is thereby in violation of the Sherman Antitrust Act, which outlaws monopolistic business practices. The plaintiffs argue that initial board certification and MOC are separate products, but that by revoking certification if a person does not purchase MOC, the ABPN has illegally tied them. (The suit also points out that the ABPN “grandfathers” psychiatrists who obtained certification before 1994—exempting them from MOC requirements—and alleges that this demonstrates MOC is not required for maintaining initial certification. The complaint further alleges that “By ‘grandfathering’ older psychiatrists and neurologists, ABPN has also discriminated against younger physicians, including women and persons of color, who are underrepresented in the group of psychiatrists and neurologists ‘grandfathered’ by ABPN.”)

• Illegal monopolization and monopoly maintenance in violation of Section 2 of the Sherman Antitrust Act. The plaintiffs charge that by requiring MOC to maintain certification, the ABPN has created a wholly new and artificial market for certification that has generated substantial revenue for the ABPN.

• Unjust enrichment. The suit cites tax records showing that between 2004 and 2017, after the advent of MOC, the ABPN’s net assets skyrocketed 730 percent, from $16,508,407 to $120,727,606. “These data demonstrate that ABPN MOC is an ever-increasing revenue source and apparently immensely profitable for ABPN,” the lawsuit states. The suit notes that residents and early career physicians pay the bulk of fees associated with initial board certification and that the ABPN “created a lucrative new revenue source by imposing MOC on older and more established doctors.”

The text of the suit also emphasizes that many hospitals, health systems, and insurance companies have required completion of MOC for privileges and enrollment in provider networks.

“Many hospitals … have adopted bylaws mandating that physicians purchase MOC,” the suit states. “[M]any Blue Cross Blue Shield companies … require physicians to participate in MOC to be included in their networks. In addition, patients whose doctors have been denied coverage by BCBS because they have not complied with MOC requirements are typically required to pay a higher ‘out of network’ coinsurance rate to their financial detriment. … Doctors who lose hospital privileges because they have not complied with ABPN MOC requirements face the possibility of also losing coverage under the hospital’s malpractice policy and must purchase more expensive insurance elsewhere.” ■