Professional Boards, Take Heed
MedPage Today Article
MedPage Today
GKG Law’s Steve Fellman and Rich Bar were published by MedPage Today on October 24. Their article, “Professional Boards Take Heed,” can be seen in its entirety here and below.
Op-Ed: Professional Boards, Take Heed
Minimizing antitrust risks in light of recent rulings
While 2020 has been fraught with uncertainty, at least one thing is quite evident: antitrust compliance remains a high priority of the Department of Justice, particularly within the realm of healthcare and board activities.
Rulings in two recent cases — SmileDirectClub LLC v. Tanja D. Battle et al. and Lazarou et al. v. American Board of Psychiatry and Neurology — serve as good reminders that medical board professionals and their counsel must be more vigilant than ever to minimize antitrust risks and liability when it comes to credentialing, board composition, and supervisory review.
In the SmileDirectClub case, the plaintiff sued the Georgia Board of Dentistry and its 11 individual board members (nine practicing dentists licensed in Georgia, one dental hygienist, and one non-dental professional) based on alleged antitrust, due process, and equal protection violations. The board members filed a motion to dismiss the antitrust violations, but the district court denied the motion to dismiss, finding that, based on the complaint, there was insufficient evidence to conclude that the litmus Midcal active supervision test had been met. The members of the board appealed, and the three-judge panel of the Eleventh Circuit issued a 2-1 decision to send the case back to the district court.
It is recommended that state medical board members and their legal counsel monitor forthcoming decisions from the case, as this matter serves as a good reminder of some foundational antitrust truths:
- When a state board is composed of active industry participants, the board members are not automatically granted antitrust immunity. Actions of state boards must meet the Midcal active supervision test.
- When a state board composed of active practitioners is engaging in activities that have a possible anti-competitive impact, even if the state board members are governor-appointed, it is crucial for antitrust counsel to review the proposed course of conduct to ensure that it meets antitrust requirements.
- The ultimate test is not what the supervisor is authorized to do or even what the supervisor says was done. The test is whether the supervisor made an independent antitrust analysis of the underlying facts and concluded that the proposed action does not violate the antitrust laws.
In Lazarou et al. v. American Board of Psychiatry and Neurology, two Illinois-licensed psychiatrists filed a class-action lawsuit against the American Board of Psychiatry and Neurology (ABPN), a nonprofit certification organization separate from any state licensing authority. The plaintiffs charged that the ABPN was requiring doctors using its certification program to also use its continuing education program in violation of the antitrust laws. However on Sept. 11, 2020, Judge Martha M. Pacold of the U.S. District Court for the Northern District of Illinois granted ABPN’s motion to dismiss, citing the 2019 decisions in Kenney et al. v. American Board of Internal Medicine and Siva v. American Board of Radiology. The plaintiffs do have the ability to file an amended complaint.
It is recommended that medical certification entities and their legal counsel monitor additional updates related to this decision. As it stands, the following key truths can be extracted:
- Under current antitrust laws, certification boards do have a right to adopt and revise continuing education programs as part of a certification program.
- A certification board also has the right to require certificants to use its own continuing education program rather than a competitor’s continuing education program.
- The district court distinguished this case from other cases in which a professional society required a person to join the society in order to qualify for certification.
- This decision supports other recent cases that, in relation to antitrust analysis, hold that a certification board offering a program that includes both an initial certification and a continuing education component is selling one singular product.
- Certification boards should review this decision for guidance on how to structure their certification and continuing education programs to minimize antitrust risks.
