New Legal Support for Continuing Education Requirements in Certification Programs

fellman-bar_certification October 20, 2020 By: Steven John Fellman and Richard Bar

Is it a violation of antitrust law for a certification board to require approved continuing education for professionals who wish to maintain their certification? A federal court recently said no, joining two other courts that have reached the same conclusion.

Many certification boards and associations with certification programs require that certified professionals comply with continuing education requirements in order to maintain their certification. In the recent decision in Lazarou v. American Board of Psychiatry and Neurology, a federal judge in Illinois ruled that requiring continuing education as part of a certification program is permissible under the antitrust laws.

The key issue in this case involves the antitrust concept of “tying,” which occurs when a seller has sufficient economic power with regard to a product to force a buyer to purchase another product or service in order to purchase the first product.

The plaintiffs, Emily Elizabeth Lazarou and Aafaque Akhter, are psychiatrists licensed to practice medicine in Illinois. The American Board of Psychiatry and Neurology is a private nonprofit certification organization separate from any state licensing authority. Although ABPN certification is not required for obtaining a license to practice medicine, many hospitals, insurance companies, medical employers, and malpractice carriers require ABPN certification in order for psychiatrists and neurologists to receive hospital consulting and admitting privileges, reimbursement by third-party insurers, employment by medical corporations, and more. ABPN requires that that the medical professionals it certifies must take ABPN-approved continuing education programs to maintain their certification.

Lazarou and Akhter, both ABPN-certified psychiatrists, filed a class action lawsuit alleging that the continuing education requirement violated the antitrust laws, arguing that a seller may not tie the purchase of one product to the purchase of a second product. They claimed that ABPN was illegally tying the purchase of its continuing education program to the purchase of its certification program. 

The ruling recognizes a certification board’s right to adopt and then revise continuing education programs as part of a certification program.

The plaintiffs also argued that ABPN was attempting to monopolize the psychiatric certification market. They alleged that, when ABPN initiated its certification program in 1935, applicants had to meet certain requirements and were then certified for life. No further examinations or continuing education was required. In 1994, ABPN began issuing 10-year rather than lifetime certifications and also began requiring continuing education to maintain certification. However, physicians who were certified before October 1, 1994, were exempt from that requirement. The plaintiffs charged that ABPN was using the continuing education requirement to profit financially.

In its motion to dismiss the complaint, ABPN argued that it was selling only one product—a certification that included both an initial certification component and a continuing education component. Therefore, there was no illegal tying. 

The court agreed with ABPN, citing two previous decisions that had held that initial certification and maintenance of certification was a single product (Kenny v. American Board of Internal Medicine from the Eastern District of Pennsylvania and Siva v. American Board of Radiology from the Northern District of Illinois). The court granted the motion to dismiss without prejudice, allowing the plaintiff to file an amended complaint.

There are several key takeaways from this decision:

  • The ruling should be reassuring to certification boards, as it recognizes their right to adopt and then revise continuing education programs as part of a certification program.
  • In addition, based on the facts of this case, the court recognized that the certification board had the right to require certificants to use its own continuing education program and was not required to include a competitor’s program.
  • Finally, the court distinguished this case from others in which a trade association or professional society required a person to join the organization in order to qualify for certification. In this case, ABPN’s sole activity was its certification program. There was no requirement that an applicant for certification be a member of any organization.

The ABPN decision supports other recent cases that hold that a certification board offering a program that includes both an initial certification and a continuing education component is selling only one product. Certification boards should review this decision and the Kenny and Siva rulings for guidance on how to structure their certification and continuing education programs to minimize antitrust risks.

Steven John Fellman

Steven John Fellman is of counsel at GKG Law PC in Washington, DC.

Richard Bar

Richard Bar is a principal at GKG Law PC in Washington, DC.