ADA Considerations in Medical Licensure Testing

1. ADA Considerations in Medical Licensure Testing January 2006 Summit Meeting American Association of Osteopathic Examiners Janet D. Carson, J.D.

2. I. ANNOTATION OF SCORES A. APA Standards

3. Standard 10.11 • When there is credible evidence of score comparability across regular and modified administrations, no flag should be attached to a score. When such evidence is lacking, specific information about the nature of the modification should be provided, if permitted by law, to assist test users properly to interpret and act on test scores.

4. Annotation of Scores B. Doe v. National Board of Medical Examiners (NBME)

5. Doe: 11/99 District Court • Doe requested and was granted extra testing time on USMLE Steps on the basis of a disability, and, consistent with USMLE policy, his transcripts were annotated to reflect his receipt of accommodations. • Doe challenged this policy. • The lower court granted plaintiff’s motion for a preliminary injunction and ordered NBME “to report Doe’s Step 1 and Step 2 USMLE scores as though plaintiff took the first and second steps of USMLE without accommodation for his disability.”

6. Doe: 12/99 Court of Appeals • Vacated the Order of the District Court, concluding that the lower court had abused its discretion in finding that plaintiff would likely succeed on the merits. • “[F]lagging does not constitute an ipso facto violation of Title III of the ADA.”

7. Doe: 12/99 Court of Appeals • “Doe bore the burden of showing that his scores were comparable to non-accommodated scores in terms of predicting his future success and …he failed to meet this burden.” • “If Doe were to establish either that his scores are psychometrically comparable to the scores of candidates who take the test under standard conditions, or that his scores will be ignored by the programs to which they are reported, he might have demonstrated a reasonable likelihood of success on the claim.”

8. Doe: 4/05 District Court • Defendant’s Motion for Summary Judgment granted. • Court’s Memorandum filed under seal. • Plaintiff appealed.

9. Doe: 1/06 Court of Appeals • Oral argument • Decision on appeal pending

10. Annotation of Scores C. Turner v. Association of American Medical Schools (AAMC)

11. Turner v. AAMC • Suit brought under CA state law which the court describes as having the “most generous standards for disability accommodations among the 50 states.” • AAMC argued that the Commerce Clause of the US Constitution bars plaintiffs from pursuing claims based upon CA law. • Commerce Clause prohibits states from discriminating against or burdening flow of interstate commerce.

12. Turner: 4/05 CA Superior Court • “If the AAMC were concerned that disabled California residents were getting an undisclosed advantage over the disabled residents of other states, then the AAMC could use a ‘California flag’ to identify tests that were taken by persons who are ‘disabled’ under California (but not federal) law.”

13. Turner: 4/05 CA Superior Court • “The applicants could potentially apply for an accommodation under California or federal law or elect not to apply for any accommodation….[and] could, therefore determine whether they wanted their test scores to be evaluated with no flag, with the ADA accommodation flag, or with a California accommodation flag.”

14. II. Collateral Issues for Licensing Authorities Raised by Doe’s Argument Questions about Disability on Applications for Licensure

15. Collateral Issues • The purpose of the annotation is to inform score users that evidence of score comparability is lacking. It does not disclose the nature of the disability that was the basis for the accommodated administration. • Test accommodations are granted to individuals who have documented that they have a physical or mental impairment that substantially limits them in a major life activity. • Doe claims an interest in keeping the fact that he has a disability private.

16. Collateral Issues • The fact that an individual has a disability does not mean that he/she is not “otherwise qualified”. • To what, if any, extent does a medical licensing authority have a legitimate interest in asking an applicant about the existence of a physical or mental impairment that substantially limits that individual in a major life activity? • Who should decide whether an applicant’s disability will / may have implications for the ability of the applicant to engage in the general undifferentiated practice of medicine in a safe manner?

17. Collateral Issues • Limited inquiries by a licensing authority about certain recent psychiatric disabilities were found to be acceptable in Applicants v. Texas State Board of Law Examiners 1994) • The Court in that case concluded that: “The Board would be derelict in its duty if it did not investigate the mental health of prospective lawyers….focusing on only those serious mental illnesses that experts have indicated are likely to affect present fitness to practice law.”

18. Collateral Issues • In Medical Society v. Jacobs, the New Jersey Medical Society alleged that certain questions on initial and renewal applications for medical licensure in that state constituted an unlawful inquiry into the existence of a disability. • The challenged questions included: “Have you ever suffered or been treated for any mental illness or psychiatric problems?” “Do you have any uncorrected physical handicap which causes substantial impairment of, or limitation on, your ability to practice medicine and surgery?”

19. Collateral Issues • While denying the request for a preliminary injunction because plaintiff had not carried its burden of immediate and irreparable harm, the court concluded that plaintiff had a high probability of succeeding on the merits (October 1993). • The court stated that “it is the extra investigation of qualified applicants who answer ‘yes’ to one of the challenged questions that constitutes invidious discrimination”.

20. Collateral Issues • The case subsequently settled. The parties agreed that certain health status questions would no longer be asked. They also agreed that certain questions could be asked without further challenge by the Medical Society, including: • “Do you have a medical condition which in any way impairs or limits your ability to practice medicine with reasonable skill and safety? If yes, please explain.” • “Are the limitations or impairments caused by your medical condition reduced or ameliorated because of the field of practice, the setting or the manner in which you have chosen to practice? If yes, please explain.”

21. Collateral Issues • What response do individuals who received accommodations on the licensing examination give to questions such as the preceding? • To what extent are auxiliary aids and devices or other accommodations available to and utilized by such individuals in their practice settings to eliminate or mitigate the impact of their disabilities?

22. Collateral Issues • Limited attention has been given to the issue of how licensing authorities can best assure that otherwise qualified individuals with disabilities have equal access to medical licensure, while also assuring that they are protecting the public when granting a license for the general undifferentiated practice of medicine. • Further research in this area and discussion of such issues may be helpful.

23. III. Who Is Disabled? Recent Litigation

24. Recent Litigation • The cases summarized below illustrate some differences of opinion with respect to: • Whether test-taking is a “major life activity” (Compare Baer and Singh); and • Whether the comparison group for assessing “substantial limitation” is “most people” (Baer, Brown, and Wong) or “persons of comparable age and educational background” (Singh).

25. Baer v. NBME • Plaintiff requested test accommodations (extended testing time) on Step 1 on four occasions on basis of LD and ADHD. • Each request was denied by NBME, with most recent denial in January 2005. • Plaintiff filed action in April 2005, seeking a preliminary injunction. • Plaintiff’s motion denied (May 2005).

26. Baer: 5/05 District Court • “While Baer has shown that she likely suffers from some weakness or impairment that adversely affects her ability to read, comprehend and process written material quickly, she has not shown that she is likely to succeed in demonstrating that her impairment has such a severe impact on her that it can properly be regarded as ‘substantially limiting’ her in a ‘major life activity’.…”

27. Baer: 5/05 District Court • “…[T]here is , at least potentially, a difference between what a psychologist may mean when she uses the term ‘disability’, and what the relevant statute means when it uses that term.” • “It is possible for a person to be diagnosed by a psychologist as having a ‘learning disability’, for example, and yet not to be considered to have a ‘disability’ within the meaning of the ADA.”

28. Baer: 5/05 District Court • “Baer’s evidence does not show that her reading weakness affects her in her activities of daily life. Her claim is that she is disadvantaged when required to take standardized tests under regulated time pressure.” • “The specific task of taking timed tests, however, is not the kind of ‘major life activity’ protected under the ADA.” • But see: 1997 District Court opinion in Bartlett v. NY State Board of Bar Examiners found that test-taking is within the ambit of “major life activity”.

29. Brown v. University of Cincinnati • Plaintiff excelled in high school and college without accommodations . • After his dismissal from medical school because of academic deficiencies had been recommended, plaintiff was diagnosed as having a reading disorder and a generalized anxiety disorder. • Defendant’s motion for summary judgment was granted (June 2005).

30. Brown: 6/05 District Court • “Certainly, [plaintiff’s] level of achievement greatly exceeds that which the average, unimpaired individual is able to attain, so that it is not reasonable to say that plaintiff was significantly restricted in the ability to learn as compared to ‘the average person in the general population’.”

31. Singh v. George Washington University • Plaintiff was informed of dismissal due to poor academic performance. • “Plaintiff, looking to explain her poor performance, contacted the School’s Disability Support Services” and was diagnosed with dyslexia, a mild disorder of processing speed, and a phonological disorder. • Request to be reinstated was denied. • Defendant’s motion for summary judgment denied (March 2005)

32. Singh: 3/05 District Court • “[W]hether test-taking is itself a major life activity or a crucial component of the major life activity of learning, the court concludes that a plaintiff with an impairment that substantially limits her ability to perform on tests has an actionable ADA claim.”

33. Singh: 3/05 District Court • “[D]efendant’s proposition that an ADA plaintiff claiming an impairment that limits her learning must be compared to the general population … is untenable for a number of reasons.” • “[A]n ADA plaintiff can be substantially limited in the major life activity of learning based on comparisons of her success to others of comparable age and educational background.” • “[T]he mere fact that the plaintiff was, before medical school, generally successful [without accommodations] as compared to all of America is not the important question.”

34. Wong v. University of California • UC denied Wong’s request for accommodations and dismissed him from medical school for failure to meet academic requirements. • District Court granted UC’s motion for summary judgment, concluding that Wong failed to present a triable issues of material fact as to whether he is disabled (January 2001). • Wong appealed. Court of Appeals affirmed the lower court’s judgment (August 2004) . Court of Appeals denied petition for rehearing and amended its earlier opinion (June 2005)

35. Wong: 6/05 Court of Appeals • “The diagnosis that Wong had a learning disability did not constitute a legal opinion or a concession that Wong was “disabled” under the meaning of the Acts.”

36. Wong: 6/05 Court of Appeals • “The relevant question for determining whether Wong is “disabled” under the Acts was not whether he might be able to prove to a trier of fact that his learning impairment makes it impossible for him to keep up with a rigorous medical school curriculum. It was whether his impairment substantially limited his ability to learn as a whole, for purposes of daily living, as compared to most people.”

37. Wong: 6/05 Court of Appeals • “The level of academic success Wong has achieved during the first two years of medical school, without any special accommodation provided to him by the school, made that proposition [of substantial limitation in learning as compared to most people] implausible. His record was to the contrary.”