Two psychiatrists are suing the American Board of Psychiatry and Neurology (ABPN) over its maintenance of certification program, contending that the board has created a monopoly over the MOC market and that its process violates antitrust laws.
Dr. Larry R. Faulkner
The lawsuit, filed March 6 in U.S. District Court for the Northern District of Illinois, alleges that the board is illegally tying its initial certification product to its MOC product, and that ABPN is using anticompetitive actions to prevent and limit competition from new MOC providers. The suit is filed as a class action on behalf of all psychiatrists and neurologists required by ABPN to buy MOC to maintain their certifications. The plaintiffs seek damages and injunctive relief arising from the alleged violations.
In an interview, ABPN President and CEO Larry R. Faulkner, MD, said the legal challenge has no merit.
“The ABPN intends to defend itself vigorously and anticipates that, like other similar cases previously filed against the American Board of Medical Specialties and other member boards, this lawsuit will be dismissed.”
Plaintiff Emily Lazarou, MD, an Odessa, Fla.-based psychiatrist, did not return messages seeking comment. The other plaintiff, Aafaque Akhter, MD, a psychiatrist based in Norton, Mass., declined to comment at the advice of his attorneys. In a LinkedIn post, Dr. Akhter wrote that he filed the class action to put an end to MOC.
“This moneymaking operation has to be abolished,” he wrote in the post. “MOC has to go.
The 35-page complaint against the ABPN contends that the organization’s antitrust and monopolistic actions have resulted in overly burdensome conditions for physicians forced to buy MOC, and that the board’s requirements constrain the supply of psychiatrists and neurologists, thereby harming competition. The ABPN has made tens of millions of dollars in MOC revenue from psychiatrists and neurologists, the suit alleges, while physicians face countless hours away from their practice and families in order to meet MOC demands, to the physicians’ financial detriment. The challenge also asserts that ABPN’s grandfather clause – which exempts from MOC physicians who received initial certifications prior to Oct. 1, 1994 – discriminates against younger physicians, women, and persons of color, all of whom are underrepresented in the group of psychiatrists and neurologists grandfathered by ABPN.
The lawsuit details how MOC has personally and professionally affected the plaintiffs. In 2017, Dr. Lazarou, a forensic psychiatrist who also practices telepsychiatry, asked the ABPN in advance for a private room during her upcoming 10-year MOC examination. At the time, Dr. Lazarou was nursing her twin newborns and needed the private room to pump, according to the lawsuit. The suit alleges that ABPN would not make an accommodation for Dr. Lazarou to pump at the testing site; however, as a professional courtesy, board officials allowed her to travel to a test center farther away that had private rooms. Because the distance required Dr. Lazarou to be away from her newborns for an extended period, she did not take the MOC examination, and her ABPN certification lapsed, according to the suit. Because of the lapse, she is no longer able to practice telepsychiatry, which has resulted in a loss of income and to the detriment of patients who need telepsychiatric care, she claims in the lawsuit.