Many students, foreign medical graduates and those applying to receive a medical license in the United States find themselves accused of “irregular behavior” while taking the Step 1, Step 2 or Step 3 exams of the United States Medical Licensing Examinations (USMLE) administered by the National Board of Medical Examiners (NBME). Often the conduct turns out to be something that is not significant, was inadvertent, was not intended to provide any unfair advantage to the test-taker or is otherwise justifiable or explainable. Nevertheless, because of the extremely serious consequences a finding of “irregular behavior” may have, the applicant should act immediately upon being advised of a pending inquiry; he or she should take appropriate steps to attempt to defend himself or herself.
The USMLE defines “irregular behavior” as conduct that includes (but is not limited to) the following:
1. Seeking, providing, or obtaining unauthorized access to examination materials.
2. Providing false information, making false statements, or similar conduct in relation to application forms, scheduling permits, or related documents.
3. Taking an examination when the examinee is not really eligible for it (or attempting to do so).
4. Impersonating another test-taker or engaging a different person to take the examination for the actual applicant.
5. Obtaining, giving, or receiving assistance during the examination or attempting to do so (except for certain authorized acts).
6. Making notes in the secure areas of the test center, except for notes on the writing materials provided at the test center for this purpose.
7. Failing to comply with or follow any USMLE policy, procedure, or rule.
8. Failing to follow instructions of the test center staff.
9. Abuse or harassment (verbal or physical) of test center staff or any other disruptive or unprofessional behavior at the test center.
10. Being in possession of any unauthorized materials, including photographic equipment, or communication or recording devices, including electronic paging devices and cellular telephones, in the secure testing areas.
11. Changing or misrepresenting your examination scores to others.
12. The unauthorized reproduction of any examination materials or dissemination of them by any means, including via the Internet (this includes, for example memorizing them and repeating them, restructuring them, discussing the actual questions and answers, etc.). Note: all test questions and testing materials are copyrighted. You could be prosecuted or sued for violation of the NBME’s copyrights, and this has actually happened.
13. Communicating or attempting to communicate about specific test questions, answers, items, or cases with any other examinee, potential examinee, or preparation group at any time.
Some of the foregoing actions seem to be fairly common sense as far as what any person should know is prohibited. However, other forms of more innocuous behavior can result in accusations which fit within the above.
For example, we have been consulted by examinees accused of “irregular behavior” when they have done the following:
1. Wearing a wrist watch during the examination.
2. Taking a nationally advertised examination preparation course attended by hundreds of people when the preparation course allegedly had obtained unauthorized access to actual examination questions.
3. Using a cell phone, Blackberry or other communications device at the exam center.
4. Talking with another exam taker in a bathroom during the test.
5. Discussing test questions and the testing process on a blog.
6. Discussing the substance of test questions and cases with others.
7. Writing or marking something down prior to being instructed to do so.
8. Making a stray mark on an examination after being instructed at the exam center that you were not allowed to do so.
9. Failing to follow the orders of a proctor at an exam center.
10. Not being able to produce the correct form of identification (in this case, the monitor requested a photo driver’s license, when the applicant did not have one).
If you are accused of “irregular behavior” we advise you to immediately consult with an attorney who has actual experience in dealing with these matters. If the event is considered to be significant, you will be advised of this in writing and will be given an opportunity to explain it. Have your attorney help prepare this; don’t attempt to do it yourself.
If you are given the right to an appeal or a hearing in this matter, be sure to request this in writing by at least two different forms (e.g., via U.S. mail, via telefax, via Federal Express) that include proof of sending and proof of delivery. DO NOT RELY ON E-MAIL ALONE. Be sure that it is received at the NBME office (or the address specified in the letter you receive) within the time specified in the letter or the Bulletin setting forth the procedures you must follow. You have a number of procedural rights given to you in these matters. Exercise them in a timely and effective way.
Retain the services of an attorney who has experience working on NBME matters to represent you. Plan on attending any hearings (these are usually held at the NBME offices in Philadelphia, Pennsylvania), in person. All documents, statements, photographs, and other materials upon which you intend to rely should be clearly labeled, organized, indexed, copied and submitted ahead of time (similar to how it would be done in a court trial or hearing). Be sure that your attorney attends the hearing with you. Don’t retain the services of an attorney for this process if the attorney is not going to be available to represent you in person at the hearing in Philadelphia.
Unfortunately, many who are accused of “irregular behavior” do not realize the serious consequences that a confirmed finding of this can have. Although technically, it is not the same as “cheating” it can carry the same adverse stigma that “cheating” can have. It can prevent you from becoming licensed on time, delay your career, prevent you from obtaining desirable residencies and fellowships, prevent you from obtaining desirable employment, and have other consequences.
For additional information and documents related to “irregular behavior” and other legal matters visit our website at www.TheHealthLawFirm.com.
