Many hospitals and medical staffs include, as part of their medical staff bylaws, a requirement that physicians obtain initial board certification in the physician’s specialty and continuously maintain board certification (“Maintenance of Certification” or “MOC”), as one element of demonstrating ongoing clinical knowledge and competence. MOC requires physicians to engage in continuous learning and quality improvement, pass an MOC examination, generally every 10 years and to complete various MOC learning activities between examinations. By including MOC as a requirement for initial or renewed medical staff membership and clinical privileges, hospitals and their medical staffs may screen applicants to include those physicians who can demonstrate a higher level of current clinical knowledge and competence, as evidenced by MOC, among other factors.

The Medicare Conditions of Participation for Medical Staff (“CoPs”), 42 C.F.R § 482.12(7), require a hospital’s governing body to ensure that the grant of medical staff membership or clinical privileges is not based solely on board certification. But the CoPs do not prohibit hospitals and their medical staffs from requiring initial board certification or MOC, so long as board certification or MOC is not the sole criteria. MOC has come under legal challenges in the past few years. We address two cases and state anti-MOC legislation below.

Kenney v. American Board of Internal Medicine

The largest certifying body for internal medicine, the American Board of Internal Medicine (“ABIM”), is currently defending an antitrust and Racketeer Influenced and Corrupt Organizations Act (“RICO”) challenge to the requirement that internal medicine physicians purchase ABIM’s MOC program.

On December 6, 2018, four internists filed a class action suit, Kenney, et al. v. American Board of Internal Medicine,1 against ABIM on behalf of 200,000 internists required by ABIM to purchase its MOC product. The current causes of action include antitrust violations (alleging monopoly power in the MOC market and the illegal tying of initial board certification and MOC) and RICO violations, (alleging that ABIM was “unjustly enriched” through its MOC product). The complaint alleges that ABIM controls the market for initial board certification of internists, with more than 80% of internists purchasing initial ABIM certifications, and that ABIM controls more than 95% of the market for MOC of internists.²

ABIM filed a motion to dismiss the lawsuit on March 18, 2019. ABIM’s motion to dismiss is currently pending. If the court denies ABIM’s motion to dismiss, resolution of this case could take years. Ultimately, if the physicianplaintiffs win the Kenney lawsuit, this could impact ABIM’s future MOC product offerings.

Notably, Kenney v. ABIM is not a class action against hospitals and medical staffs but was brought against ABIM, an independent evaluation organization. The class action is based on the allegation that MOC creates unnecessary administrative burden and expense for internists. Notwithstanding the Kenney case, hospitals and medical staffs are still free to incorporate initial board certification and MOC requirements into their respective medical staff bylaws, unless prohibited by state law.

Association of American Physicians & Surgeons, Inc. v. American Board of Medical Specialties

This case was originally filed in 2013 in the Northern District of Illinois (Cause No. 1:14-cv-02705) as a restraint of trade (Sherman Act Section 1) claim alleging a per se restraint of trade. The original petition also alleged a cause of action for negligent misrepresentation under Illinois state law. The Association of American Physicians & Surgeons, Inc. (“AAPS”) specifically alleged that the American Board of Medical Specialties (“ABMS”), through agreements with The Joint Commission, precluded doctors from receiving privileges at hospitals if they did not participate in the MOC program provided by ABMS. The AAPS claimed these agreements reduced the supply of physicians available to treat patients and limited patients’ access to their own physicians by precluding them from receiving privileges at certain hospitals that adopt MOC requirements.³

AMBS filed a motion to dismiss for failure to state a claim under F.R.C.P. Rule 12(b)(6).⁴ On September 30, 2017, the court dismissed AAPS’s claims, finding that AAPS failed to allege sufficient facts to suggest that ABMS has sufficient market power to restrain trade and failed to allege evidence of an agreement suggesting a per se unlawful restraint of trade such as a horizontal agreement among competitors to fix prices or divide markets. Further, the court found that AAPS failed to identify any false statements of material fact sufficient to state a claim for negligent misrepresentation under Illinois state law. The motion to dismiss was granted without prejudice and the court permitted AAPS the opportunity to amend the complaint to cure the deficiencies identified in the court’s opinion.

AAPS amended its complaint in January of 2018 and added a class action claim. AAPS also added claims for deceptive trade practices under Illinois state law.⁵ In March of 2018, ABMS filed another motion to dismiss on the basis of failure to state a claim. In the alternative, the motion seeks to strike AAPS’s class action allegations. ABMS’s current motion to dismiss primarily relies on the same grounds as the initial motion to dismiss, specifically that AAPS failed to provide evidence `of a per se restraint of trade and failed to provide evidence that ABMS has sufficient market power to retrain trade. The motion has been fully briefed at this time and is awaiting final disposition.⁶

State Anti-MOC Legislation

Several states have passed legislation to limit MOC requirements. Oklahoma was the first state to do so when it passed Oklahoma Statute, Title 59, § 492 in 2016. Section 492 amended Oklahoma’s Allopathic Medical and Surgical Licensure and Supervision Act (the “Act”), to prohibit a requirement that physicians maintain certification or MOC as a condition of licensure, reimbursement, employment or admitting privileges at a hospital in Oklahoma.⁷ In December 2017, however, the Oklahoma Attorney General (“AG”) issued an opinion on hospital privileging and constitutional aspects of requiring MOC. The AG concluded that despite the amendment to the Act, an Oklahoma hospital may still refuse to grant medical staff membership or privileges to a physician based on lack of medical specialty board certification, but that board certification must not be the only basis for granting privileges. The AG Opinion reasoned that the amendment to the Act did not alter a hospital’s authority under other statutes and administrative rules to require specific medical training as a condition to granting hospital privileges.⁸

Following Oklahoma’s anti-MOC legislation, Arizona, Georgia, Kentucky, Maine, Maryland, Missouri, North Carolina, South Carolina, Tennessee, Texas and Washington have all passed some form of anti-MOC legislation. In particular, Georgia law outright prohibits MOC from being used as a condition for state licensure or as a prerequisite for staff privileges in state medical facilities, reimbursement from third parties or malpractice insurance coverage. The Georgia law does not appear to prohibit a hospital from inquiring into a physician’s MOC status. The Texas MOC legislation provides that hospitals and health facilities may not differentiate between physicians based on MOC; however, there are a number of exceptions to the law notably that hospitals may differentiate on the basis of MOC if the medical staff votes to authorize the ability of the hospital to differentiate on the basis of maintenance of certification.⁹

MOC and the Medical Staff, What’s Next?

Nothing in the Kenney case, the Association of American Physicians & Surgeons, Inc. case, the CoPs or federal law prohibits hospitals and their medical staffs from using MOC as a factor in determining whether to grant a physician medical staff membership and privileges as one indicator of individual physician competence. Hospitals and their medical staffs are advised, however, to look to state laws to determine the extent to which any state law anti-MOC legislation prohibits the medical staff from requiring MOC.

_{1 Kenney v American Board of Internal Medicine, Cause No 2118-CV-05260-RK (E.D. Penn.)}

_{2 See Note 1, supra.}

_{3 Association of American Physicians & Surgeons, Inc. v. American Board of Medical Specialties, Cause No. 14-cv-02705 (N.D. Ill., Eastern Division);}

_{4 2014 WL 12513395}

_{5 2018 WL 7368810}

_{6 2018 WL 7368919}

_{7 Oklahoma Statute, Title 59, § 492}

_{8 Okla. A.G. Opinion 2017-13}

_{9 Tex. Occ. Code Sec. 151.0515.}