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March 11, 2021
A recent federal court ruling affirmed that associations and other private certification bodies have the right to establish their own credentialing standards.
ASAE and the Institute for Credentialing Excellence (I.C.E.), founding members of the Professional Certification Coalition (PCC), filed an amicus brief in the case, Kenney v. American Board of Internal Medicine. The initial complaint, filed by a group of internal medicine specialty physicians, alleged that ABIM illegally “tied” certification and re-certification in violation of antitrust laws. It also alleged that ABIM charged inflated monopoly prices for its maintenance of certification (MOC) program and induced hospitals and other employers to require ABIM certification. The suit was filed as a class action on behalf of all internists and subspecialists required by ABIM to purchase MOC recertification testing.
In a Feb. 25 ruling, the United States Court of Appeals for the Third Circuit affirmed the district court’s earlier dismissal of plaintiffs’ claims. The court affirmed the District Court’s finding that plaintiffs failed to plausibly allege the first element of a tying claim, because the plaintiffs could not prove that ABIM’s initial certification and MOC are separate products.
“MOC is structured to reflect a physician’s continuing expertise (over the decade after initial certification) and ultimately reflects the same thing that initial certification represents—that the physician presently meets ABIM’s standard for certification,” the court said.
The PCC’s amicus brief supported the district court’s decision based on the broader principle of the right of private certification bodies to define and enforce their own credentialing standards.
“The entire professional certification community should be pleased that a federal appellate court, for the first time, determined that initial certification and re-certification of professionals is a single continuum, not two separate ‘products’ that could potentially be illegally tied together,” said ASAE General Counsel Jerald Jacobs, partner at Pillsbury Winthrop Shaw Pittman LLP. “The Third Circuit court affirmed the lower court, which went even further by declaring that certification organizations must remain free to establish their own certification criteria.”
“I.C.E. was pleased to participate in the filing of the amica brief on behalf of the credentialing community along with ASAE and with the support of the Pillsbury Winthrop Shaw Pittman LLP law firm,” said I.C.E. Executive Director Denise Roosendaal, CAE. “The outcome could not have been better for protecting the practices of credentialing bodies on initial certification and recertification.”