By Achal A. Aggarwal, J.D., M.B.A., Attorney, The Health Law Firm
The National Board of Medical Examiners (NBME) is an organization that sets certain standards for anyone seeking licensure in the U.S. It prepares and administers state recognized examinations for medical students and medical residents, to assure they meet certain requirements for clinical knowledge (CK) and ability to interact effectively with patient using the English language, the latter know as “clinical skills” (CK). The NBME’s mission is centered on the assessment of physicians. The NBME develops and manages the United States Medical Licensing Examination (USMLE) through the USMLE Secretariat.
The USMLE is a multi-part professional examination sponsored by the NBME and the Federation of State Medical Boards (FSMB). In order to obtain a license to practice medicine or to participate in medical specialty residency programs in the U.S., one must take and successfully pass all four parts of the USMLE. Each part of the USMLE is referred to as a “step.”
Foreign medical graduates must register with and be screened by the Educational Commission for Foreign Medical Graduates (ECFMG), in order to take the USMLE step examinations and become licensed in the U.S. They must also pass all of the steps of the USMLE.
The USMLE is administered in four parts: USMLE Step 1, USMLE Step 2 Clinical Knowledge (CK), USMLE Step 2 Clinical Skills (CS), and the USMLE Step 3.
When a medical student or medical resident is suspected of compromising the validity, integrity, or security of the examination process, the USMLE and the NBME will investigate. The investigation is to determine whether or not that student or resident obtained proprietary information or helped others to cheat on the USMLE.
The Consequences of Irregular Behavior Charges.
When the USMLE, NBME, or ECFMG has initially determined that a student, medical school graduate, resident or fellow, may have committed some act that may have violated the integrity of the examination, may have attempted to gain an unfair advantage over other test-takers, or may have violated the security of the test, then it will charge that student or resident with what is called “irregular behavior.” This term could probably be interchanged with the word “cheating” but is much broader than and may encompass far more than what you would normally think of as cheating.
A charge of irregular behavior can have many unforeseen adverse consequences. Not only can these be adverse actions taken by the NBME, USMLE, or ECFMG, they may extend even wider.
The NBME, USMLE, or ECFMG may, for example void test scores, prohibit you from taking a test exam for a number of years, ban you from ever taking the step exams again, or may simply mark your transcript of test scores with the finding of “Irregular Behavior” (think of a big red stamp on your transcript that says “Irregular Behavior” or “Cheated”). However, such a finding may also result in the student’s being expelled from their medical school, not receiving a medical degree, or prevented from applying in the match program.
However, before the medical student or resident is officially charged with committing irregular behavior, the USMLE, NBME, or ECFMG sends a letter informing the individual of the charge and giving the person ceratin rights. The letter also offers the student or resident an opportunity to defend the allegation and attend a hearing in front of a committee (usually called the “Committee for Individualized Review” or CIR) in Philadelphia, Pennsylvania.
What to Do If You Receive a Letter from the USMLE Accusing You of Irregular Behavior.
The letter will usually include certain information and analysis including: the number of times the student or resident took the particular Step examination previously, the percentage of actual test questions to which the student was exposed, how well other test-takers did on the same individual questions, the time spent on the questions, the actions the person allegedly committed which violated the organization’s guidelines, and other information that may be relevant regarding the alleged “Irregular Behavior.”
Details on the rights the individual has to retake the tests or to challenge the findings by requesting a hearing is also included. These are contained in a section of the letter or in a separate attachment called “Policies and Procedures.”
If requested in writing in a timely manner, the CIR will schedule a time to review the facts surrounding the allegations (a hearing) and to hear from the individual. The person may just submit an explanation in writing without requesting an in-person hearing, but we recommend strongly against this. The student or resident may request and attend a hearing before the committee, in person or with an attorney (which we strongly recommend), if he or she so desires. The hearing takes place in Philadelphia.
Evidence may be submitted by the student, including his or her own testimony. The student may have legal representation (an attorney) with him or her at the hearing. Hearings have resulted in students having their test scores validated and being allowed to progress with their professional careers unfettered. They have also resulted in bans from ever retaking the step exams (in the most egregious cases).
Important Factors to Consider for a Hearing Before the Committee for Individualized Review.
Attending a hearing before the CIR is not a process that should be taken lightly, not is it a procedure that you should attempt without experienced counsel. We do not recommend attending such a hearing without an attorney and plenty of advance preparation.
When deciding whether or not to hire an attorney to represent you in this matter, consider the cost and time you expended in preparing for and taking these examinations. In addition, consider the time you will lose from your medical education, residency, internship, or future career if your passing scores are not validated and your studies and career are delayed. It seems illogical not to retain the services of an attorney experienced with this type of matter and this type of hearing, given the high stakes at issue. Even if you have some knowledge of law, evidence, and civil procedure, it is difficult to represent yourself while also being your own witness. Those who are not experienced in such matters will make fundamental mistakes that will harm their case.
Procedural guidelines furnished by the committee need to be followed regarding how evidence is given to the committee and presented at the hearing. Preparation for the hearing would include meetings in advance, preparation of questions and answers and other matters to help ensure a proper presentation. One who is not familiar with such proceedings may overlook key issues and concentrate on issues that are not relevant to the committee’s determination. Any presentation of documents for consideration at the hearing must include excellent organization and a professional presentation. This must be done well in advance of the hearing. In certain cases, it may be necessary to hire an expert witness if the issues and facts require it; however, live witnesses, other than the individual charged, are not allowed at the hearing. It is important to note that the CIR will have its own attorney present at the hearing and there are several attorneys who may be on the committee itself.
Finally, anyone with a charge of irregular behavior should remember that the CIR is not comprised of individuals who are “on your side.” The CIR’s purpose is to ensure that the USMLE policies and procedures are strictly enforced and will enforce them if it does not find your case convincing. The best way to make your strongest argument is to hire someone who has experience with CIR hearings and has won cases in front of it.
Everyone needs someone on their side and we strongly encourage you to hire someone who knows the process associated with Irregular Behavior and the CIR and who will fight for your right to defend yourself.
Contact a Health Care Attorney Experienced in the Representation of Medical Students, Interns, Residents and Applicants, Fellows and Those Involved in Graduate Medical Education.
The Health Law Firm and its attorneys represent interns, residents, fellows and medical school students in disputes with their medical schools, supervisors, residency programs and in dismissal hearings. We have experience representing such individuals and those in graduate medical education programs in various disputes regarding their academic and clinical performance, allegations of substance abuse, failure to complete integral parts training, alleged false or incomplete statements on applications, allegations of impairment (because of abuse or addiction to drugs or alcohol or because of mental or physical issues), because of discrimination due to race, sex, national origin, sexual orientation and any other matters.
To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
About the Author: Achal A. Aggarwal is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.
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