A Finding of “Irregular Behavior” on Your U.S.M.L.E. Step Transcript Can Ruin Your Medical Career Before it Starts

Monday, June 10, 2013
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Many medical students and interns receive letters from the National Board of Medical Examiners (NBME), United States Medical Licensee Examination (USMLE) Secretariat advising them that they are suspected of "irregular behavior" on a Step examination.  Virtually any infraction of the USMLE rules contained in its Bulletin or the rules of the testing center can result in such an accusation.  Although "irregular behavior" is not the same thing as "cheating," it is often thought of as the same by medical school officials and residency program directors.  A notice of irregular behavior may hold up and delay your entry into a residency program, your graduation from medical school, and your job opportunities.  Your examination scores will be held up while the matter is investigated until a Committee review or hearing can be held.

It is very important that anyone accused of irregular behavior immediately consult with legal counsel experienced in such matters.  Do not believe rumors abound about the best way to handle such matters.  Similarly, medical school deans, program directors, clinical professors and departmental chairs who have had no direct involvement in such investigations or hearings by the USMLE often have completely incorrect ideas on the best approach to handling such matters.

We have represented a number of medical students, interns and residents in hearings on irregular behavior and we have consulted with many before on these matters.


Examples of Bad Advice.

The following are examples of erroneous advice we have heard was given to those accused of irregular behavior:

1.    You shouldn't have a lawyer represent you in such matters because this will make the Committee angry at you.

2.    You don't need a lawyer because you can just explain it yourself.

3.    You just write a statement and explain it; the Committee will understand and find in your favor.

4.    You do not need to request a hearing on it because if you submit documents, the Committee will review them, find in your favor and no hearing will be necessary.

5.    If you request a hearing on the matter, you do not need to attend it in person.

6.    If you request a hearing, an attorney is not allowed to represent you at the hearing.

7.    You should not worry about the Committee finding against you because you can always appeal the finding or sue in court.

The above advice is wrong.  Not only is it wrong, but it is so wrong it is laughable to those of us who represent those accused of irregular behavior on a routine basis.


The Importance of Retaining Experienced Legal Defense.

The biggest problem faced by one accused of irregular behavior who does have a valid defense is to concisely and adequately explain the situation so that it is easily understandable to each and every Committee member who must vote on it.  Additionally, you must produce evidence that supports what you are saying.  Evidence may be documentary evidence, the testimony of yourself and other witnesses, and the testimony of one or more expert witnesses.

Someone who is not trained in the legal profession and who is not familiar with such hearings will be unfamiliar with the process even though such hearings are not as formal as court hearings.  Additionally, it is easy for a non-lawyer who is not familiar with the rules of the USMLE to fail to address those concerns and get side tracked on irrelevant matters.

The USMLE Committee on irregular behavior examines dozens of cases during the short time it actually meets.  If your case is not important enough to request a hearing on and to be there in person, then, of course, it will receive far less attention than one where a hearing is held with the subject in attendance.

Additionally, documents, statements, affidavits, expert witness reports and other documents presented to the Committee as evidence should be well organized, indexed, with a table of contents, pages numbered and summarized.  This will better present an organized, easily understood defense.  Sending in a few stray documents with no organization or explanation how the documents relate to the issues can be less than effective.


Testimony During a Hearing.

We always urge the in-person attendance of the individual accused of irregular behavior at the hearing so as to be available to answer any questions the Committee may have.  An honest, truthful person should not fear appearing in front of the Committee and testifying as to the facts.  This may be the only evidence available of what actually happened or of an absence of any malicious intent to violate the rules.  Since such hearings are always held at the NBME offices in Philadelphia, Pennsylvania, this may present a challenge to someone living outside the United States or on the other side of the country.  Nevertheless, it is crucial.

The presence of an experienced lawyer who is familiar with such proceedings is invaluable.  I view my roll in such cases as being there to clearly and adequately explain the Respondent's position and make sure that sufficient testimony and evidence are introduced to prove that my client's version is the truth.  This is often not the time for aggressive legal tactics that many trial lawyers assume are effective.  An effective communicator and one who understands medical and academic issues involved will be more successful.

Furthermore, someone who does not regularly participate in hearings, trials and other administrative proceedings will be in a completely foreign environment.  It is difficult enough to present your position on paper, supported by documents, in a clear and organized fashion.  It is even more difficult for an inexperienced individual to present such a case in person at a hearing.  In the stress of the hearing process, questions get misheard or misunderstood.  The wrong answers are given.  The individual being accused and other witnesses may not understand the question being asked or the issues that should be addressed.  Answers that do not concisely and directly address the issues or answer the questions may be interpreted as untruthful answers or an attempt to avoid the issues.  It is very difficult and awkward for a person to both testify and ask himself questions in such a proceeding.


Do Not Bank on Appealing Your Hearing and Winning.

As with any case, your odds of winning are much higher at the initial hearing than on an appeal.  Very few cases are reversed on appeal.  Appeals are not for the purpose of reviewing the facts of the case or producing new evidence that was not produced at the hearing.  Appeals are usually only heard when there is concern over legal violations or violations of the rules during the proceedings.  If the record of the underlying hearing is inadequate, the likelihood of success in an appeal is unlikely.  One of my rules of legal advocacy is that you win your case at the lowest possible level and at the earliest possible opportunity.  This means requesting a hearing and winning your case there.  Doing an inadequate job at the hearing and believing you can later win on an appeal is not smart.


Consequences of an Irregular Behavior Finding.

If a finding of irregular behavior is made against you, then this usually means that your best score is voided, and you must retake it.  The Committee may require you to wait a year or more to retake the examination.  This can prevent you from obtaining or entering a residency program or it may delay you from graduating.  Furthermore, the notation that you were found to have committed irregular behavior will be placed on your Step exam transcript.  This will be reported out when your test scores are reported.

As indicated above, many medical decision makers view this as similar to cheating.  It may disqualify you for many jobs or residency programs that you would otherwise be considered for.

If the time and money you have spent on your medical career is valued by you, you will act promptly to retain legal counsel experienced in USMLE hearings and procedures to represent you.  You wouldn't perform surgery on yourself.  You shouldn't attempt to represent yourself in such legal matters.


Contact Experienced Health Law Attorneys Today.
 
The attorneys of The Health Law Firm provide legal representation to medical students, residents, interns and fellows in academic disputes, graduate medical education (GME) hearings, contract negotiations, license applications, board certification applications and hearings, credential hearings, and civil and administrative litigations.
 
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


Comments?

Have you faced the Committee? What was the experience like? Did you retain experienced legal counsel? Please leave any thoughtful comments below.


About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of 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 Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.


Tag Words: National Board of Medical Examiners (NBME), medical students, medical resident, irregular behavior, United States Medical Licensing Examination (USMLE), Examination Committee for Foreign Medical Graduates (ECFMG), cheating, USMLE preparation course , USMLE hearings , USMLE appeals, defense attorney, defense lawyer, legal representation, health care attorney, health care lawyer, medical student lawyer, medical student attorney, medical resident lawyer, medical resident attorney, medical intern lawyer, medical intern attorney, civil proceeding, criminal proceeding, administrative proceeding, medical administrative hearings, administrative law, The Health Law Firm, defense attorney, defense lawyer


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6/10/2013

Comments:

Response to: A Finding of “Irregular Behavior” on Your U.S.M.L.E. Step Transcript Can Ruin Your Medical Career Before it Starts
Wednesday, June 29, 2016
Lor says:

Hi, dear Lawyer. I requested that USMLE committee remove the annotation of Irregular Behavior from my USMLE record. And they sent me this message. I am writing in response to your email dated November 2, 2015 in which you request that we remove the annotation of Irregular Behavior from your USMLE record.  The Policies and Procedures provided to you with our March 12, 2012 letter prior to the review of this matter by the Committee on Individualized Review make it clear that, if it is determined that irregular behavior occurred, an annotation to that effect will be entered in the individual’s record and will appear on the individual’s score report and transcripts.  I further stated in my April 24, 2012 letter that the finding of irregular behavior by the Committee on Individualized Review may be appealed to the USMLE Composite Committee within a 60-day time limit from the date of notification of the Committee’s decision. The time limit for filing an appeal h

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