POWER OF INTELLIGENCE

Insight Center: Publications

Protecting the Public Health Is No Easy Matter for Testing Organizations

Health Care Law Alert

Author: Charles S. Marion

4/28/2006

After the administration of one of its licensing examinations in July 2002, the National Board of Podiatric Medical Examiners (NBPME) received anonymous mailings from test takers in Florida and New York indicating that individuals in those states had access to test content before taking the exam. With the assistance of its testing contractor, NBPME launched an investigation and concluded that the test’s security had been breached in four states.

The most egregious breaches occurred in Florida and New York, where podiatry students conspired to send e-mails to a group of established addresses with any questions they remembered from the exam during the four-day testing period. Because neither NBPME nor its testing contractor could determine which individuals passed the test legitimately and which did not, it invalidated the scores of all test takers in the states in question.

Incidents of cheating and other improper conduct on “high stakes” examinations are on the rise, as is litigation over such incidents. This is not surprising, given the substantial amount of time and money individuals invest in studying to be doctors, podiatrists and other professionals; the competition among professional schools to claim the highest passing rates among their students on such exams; the ease with which information can be shared due to advances in technology; and government authorities’ need for a reliable way of determining who should be licensed in various professions and occupations.

Amid these competing pressures, the public health and safety aspects of these examinations are often overlooked. The NBPME’s examinations serve an important public purpose – they assist state licensing boards in deciding which individuals have the knowledge and competencies necessary to practice as podiatrists. If state boards licensed individuals without knowledge of basic science subjects, such as anatomy and physiology (which are tested on NBPME’s Part I Basic Science Examination), the welfare of the patients these individuals treat would be at risk.

Within weeks of NBPME’s decision to invalidate the scores, two lawsuits were filed by groups of students against NBPME and its testing contractor in Florida and Ohio, asserting defamation and breach of contract. A third case was subsequently filed in New York. Pepper Hamilton represented NBPME in the Florida and New York litigation.

The plaintiffs claimed that it was improper for NBPME to invalidate all of the scores in the states in question, because NBPME did not have evidence that every student engaged in misconduct. The plaintiffs, who considered themselves innocent, claimed that NBPME defamed them when it posted a notice on its Web site describing the invalidation decision and identifying the four podiatry schools whose students’ scores were affected.

Part of the breach of contract claim included allegations that NBPME had breached the provisions of its Bulletin of Information for its exams by denying requests for appeal hearings following the decision to invalidate the scores. The Bulletin did contain a provision regarding an appeal process; however, it was NBPME’s position that such appeals were available only in cases of individual misconduct, and not for group invalidations.

The denial of hearing claim was the only claim on which the plaintiffs prevailed in the Florida and New York cases. NBPME prevailed on all other claims. The courts in all cases held that NBPME did not defame any of the test takers, since NBPME made factual and true statements regarding the security breach. The courts also ruled that NBPME did not breach its contract with the test takers, and acted in good faith, in determining that all of the scores on the July 2002 exam in the four states in question had to be invalidated. The courts recognized that, in situations where the validity and integrity of an entire examination is called into question or compromised, invalidating the scores of everyone who took the test is proper, even those who allegedly are “innocent,” because the scores are tainted by the misconduct. The New York court stated:

The significant consideration in deciding whether or not to invalidate a test score is thus not whether the individual candidate engaged in misconduct, but whether the candidate’s test results are tainted by misconduct. As exemplified in this case, NBPME may have reason to invalidate candidates’ test results even when they are innocent. Doe v. National Board of Podiatric Medical Examiners, No. 03 Civ. 4034 (RWS), 2005 WL 352137 (S.D. N.Y. Feb. 15, 2005).

The New York court’s ruling affirmed the principle that the testing organization, and not the court, is in the best position to determine the validity of its own examination:

So long as the test provider fulfills its contractual obligation to consider relevant material provided by the test taker [a different testing organization lost a case years ago in which it invalided a test taker’s score but then failed to consider material the test taker submitted in order to prove his score’s validity] and otherwise acts in good faith, the testing service – not the courts – must be the final arbiter of both the appropriate weight to accord that material and the validity of the test score. This Court will not interfere with that discretionary determination unless it is performed arbitrarily or irrationally. Id.

In the New York and Florida cases, the courts ordered NBPME to conduct appeal hearings for those plaintiffs who requested them. NBPME conducted the hearings, considered the evidence and issued opinions affirming its invalidation of the scores. Those opinions were challenged, but the courts upheld the invalidations and found that NBPME had acted in good faith, and not arbitrarily or irrationally, in making its decisions. In Florida, the court recognized the important public health aspects of the exam:

Standardized tests for licensure hold a special place in the public trust as they are used as the basis for qualifying professionals who are responsible for aspects of public health. While the invalidation of test scores of every [Florida] student appears to be a harsh measure, this must also be balanced with NBPME’s public safety responsibility that mandates that it zealously guard the integrity of the exams it certifies. . . . The integrity of these scores must be maintained; otherwise, in a larger sense, public health may be put in jeopardy. Thus, they must be allowed to invalidate scores upon credible evidence of a global breach of testing integrity, including e-mails containing possible test questions. Maupin v. National Board of Podiatric Medical Examiners, No. 03-20011-CIV (S.D. Fla. July 2, 2003).

In light of the growing number of incidents of misconduct with respect to “high stakes” tests, testing organizations must take steps to insure the security and integrity of the examination process. NBPME and other testing organizations which hire subcontractors to develop and administer examinations should make sure that subcontractors take all available and necessary steps to guarantee the examinations’ security, validity and reliability. Testing organizations should include provisions in subcontractor agreements that obligate subcontractors to take such steps, and require them to defend and indemnify the testing organizations in the event any problems or litigation arise. In enforcing these measures, testing organizations should respect the test takers’ due process rights, and afford opportunities to appeal or challenge score invalidation.

Test-takers and schools also must do their part. While it is appropriate for schools to provide information regarding licensing and other examinations to students, and teach subjects that will be tested, they should emphasize ethical issues and implement codes of conduct which require students to act appropriately with respect to these examinations, and not engage in cheating or other misconduct.

Charles S. Marion

This article is informational only and should not be construed as legal advice or legal opinion on specific facts.