Medical Board Defends System of Certifying Doctors in 3rd Circuit Fight

Medical personnel talk as they care for Covid-19 patients at DHR Health in McAllen, Texas, on July 29. (AP Photo/Eric Gay, File)

PHILADELPHIA (CN) — The American Board of Internal Medicine urged the Third Circuit on Thursday to snuff out claims that its certification process for physicians is a predatory money grab.

Roughly 100,000 doctors lobbed the allegation in a 2018 class action, blasting the maintenance-of-certification, or MOC, process under which they not only must buy an initial certification but also pay annual fees.

The MOC program requires certified doctors to take an exam every two to 10 years to make sure their knowledge is up to date. The fee in 2019 for the MOC was $160, plus an additional assessment fee; for 2020 the fee went up $5.

Failure to enroll in the MOC results in the doctors being listed as “not certified” on the board’s website. Though no state requires doctors to be certified by the board, several in the class claim they lost their jobs after they did not enroll in MOC and therefore had their certification revoked.

For example, lead plaintiff Gerard Kenney lost out on a job offer that he claims would have doubled his salary when he opted to not renew his certification through MOC.

Kenney and other physicians are appealing after a federal judge ruled in favor of the board last year, concluding that the doctors were not forced to buy the MOC program, as they say, but instead simply had to renew their certification or allow it to lapse. 

Further the court found that the board has every right to certify who it deems fit and set the requirements to uphold that certification. It said doctors could always pursue the alternative of using the MOC program offered by the National Board of Physicians and Surgeons. 

Before a three-judge panel in Philadelphia this morning, the board’s attorney Leslie John urged the court to affirm, stressing that doctors are not entitled to life-long certification and that the MOC is important to stay current in the medical field. 

The Ballard Spahr lawyer also argued that the doctors know what they’re getting into when seeking the initial certification. 

“There is no forcing because they have knowledge up front at the time of purchase of what the status of a certification entails,” said John.

U.S. Circuit Judge Michael Chagares seemed unsure, however, about whether doctors have any way out of purchasing the MOC. 

“Yeah it’s true, you don’t need the board certification,” said Chagares, a George W. Bush appointee. “But is it really feasible to not have it in reality?”

John continued to press the point that no one is being forced into anything, and that the board is entitled to dictate the certification process.

Attorney for the physicians Philip Curley vehemently denied that his clients were not forced to purchase the MOC, emphasizing the economic harm they faced after losing their certification.

Curley, of Robison Curley law firm, said that his clients are the reason behind the success of the MOC program, which is projected to rake in $5.7 billion between 2015 and 2024.

“MOC is only successful because it’s mandatory to buy,” said Curley.

A study conducted by MDLinx in 2018 that surveyed over 500 physicians found that only 4% found the MOC program to enhance their ability to practice.

Attorneys for both parties did not immediately respond to a request for comment. Their briefs were filed on May 4, in the case of Curley, and on July 6, in the case of John.

U.S. Circuit Judges Joseph Greenaway Jr, a Clinton appointee, and Richard Nygaard, a Reagan appointee, rounded out Thursday’s panel.

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