Many Actions Can Result in Allegations of Irregular Behavior or Irregular Conduct

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

I have written many blogs in the past, on allegations of irregular behavior being brought against medical students, foreign medical graduates and others applying to take examinations to qualify for a medical license in the United States. These have previously focused on charges made by the United States Medical Licensing Examination (USMLE) Secretariat (an affiliate of the National Board of Medical Examiners (NBME)) and the Educational Commission for Foreign Medical Graduates (ECFMG). In this blog, I will discuss similar allegations made by the National Osteopathic Board of Medical Examiners (NBOME) and the types of actions that are considered “irregular conduct.”

To read several of my prior blogs on these topics, click here to read one on common mistakes made on the USMLE exam or click here to read one on what to do if you receive an inquiry from the USMLE, ECFMG, or NBME.

Charges of “Irregular Behavior” or “Irregular Conduct” Are Similar No Matter What Organization Made Them.

The NBOME is the organization that confirms credentials, tests and regulates osteopathic physicians applying for licenses in the United States.

Like the other organizations mentioned above, it has certain types of conduct (or misconduct) it prohibits that can result in adverse actions being taken against the applicant. The USMLE and the ECFMG refer to these as “Irregular Behavior.” The NBOME refers to these as “Irregular Conduct.” They include, for example, actions that could be termed “cheating” or attempting to gain an unfair advantage on an examination or providing false information on an application.

Irregular Conduct: Definition.

The NBOME defines the term “Irregular Conduct” to include:

any behavior on the part of any candidate [applicant] that violates the integrity or security of the examination, behavior that is disruptive to administration of the examination, or behavior deemed by the NBOME in its sole discretion to be inappropriate in connection with the application, registration, taking, administration, integrity, and security of any NBOME examination.

The key part to this definition is that the NBOME reserves the right to make such determinations “in its sole discretion,” which is a subjective standard that is usually not subject to being second-guessed by a court or other agency.

Examples of “Irregular Conduct.”

The Bulletin of the NBOME provides the following as examples of Irregular Conduct:

1. Copying, fraud, deceit, or other dishonest conduct.

2. Refusal to provide a proper ID or permit photo documentation or other identification for ID verification at any time. Providing false or forged identification upon presentation for testing at a test center. It should be noted that this is to ensure the test-taker is the correct individual and that a “ringer” is not being used.

3. Communication or attempts to communicate with others during the examination other than authorized test center professional staff.

4. Removal of or attempts to remove any test material, scrap paper, or whiteboard from the assigned test area. These organizations are very serious about protecting the integrity of the examination questions and answers, so they go overboard to protect them.

5. Non-compliance with test center rules and regulations and security requirements, including operating test center equipment without reasonable care. This is self-explanatory.

6. Providing or receiving unauthorized information about the content of an examination. We have seen numerous cases of this occurring (or at least being charged against applicants) as a result in participation in Internet listervs and forums on these examinations. Even asking for “cases,” “questions,” or “subjects” from an examination may result in an allegation of irregular conduct.

7. Violation of the NBOME’s non-disclosure or confidentiality policies or the candidate’s non-disclosure agreement.

8. Communication or attempts to communicate about the content, format, or specific test items with another candidate or with any outside source or party (including use of telephones, personal computers, internet access, test review companies, or any other means) at any time, either before, during, or after an examination. See the comments directly above. Posting, downloading or requesting such materials from others has been charged as irregular conduct.

9. Using or having available or access to any unauthorized device, text, notes, or other material that could assist the candidate in taking the examination. Bringing personal property into the test area is considered by the NBOME to violate the security of the examination. This would include, for example, an iPad, smartphone, smartwatch or other types of electronic devices that can access the Internet or notes, “crib sheets,” outlines, or any other type of written assistance.

10. Providing false admittance information or altering applications, score reports, transcripts, or certificates. We have seen an example where an applicant who passed an examination altered his test report to show a higher grade. He was caught, as is usually the case, and received an adverse finding and this was noted on his permanent record with the testing organization.

11. Disrupting another candidate or candidates. This can include, for example, pulling a fire alarm during an examination, setting a fire in the building where the examination is being administered, talking to someone else or any type of noisy or disruptive conduct.

12. At any time (i.e., before, during, or after any examination) verbally or physically harming or threatening to harm the test center professional staff, other examinees, test center employees, or NBOME personnel, representatives or agents, including telephone and in-person encounters regarding scheduling, scores, or score reporting. Although we have never heard of actual cases of most of these types of conduct, we understand that sometimes angry applicants have threatened staff members and personnel. Therefore, one should always be courteous and respectful in all dealings with test center and NBOME staff and personnel.

13. “Unprofessional Conduct” which we will discuss in Part 2 of this blog.

14. Other behavior deemed by the NBOME to be unethical or unprofessional. This is, of course, a “catch-all” provision that allows the NBOME to charge an applicant with just about anything that it believes is irregular conduct.

Unprofessional Conduct and Actions that NBOME can Take.

In Parts 2 and 3 of this blog, I will discuss what the NBOME deems to be “unprofessional conduct” as well as the actions it may take and procedures that apply to an applicant facing such allegations.

Stay tuned for part 2 and part 3!

View Our Other Blogs on Our Experience with the USMLE, ECFMG, and NBME, and Hearings on “Irregular Behavior.”

Our law firm is had a great deal of experience representing students and graduates in disputes with and defending charges of “irregular behavior” against the USMLE, ECFMG and the NBME.

To learn more, read two of my prior helpful blogs here titled, “Medical Students, Interns & Residents Beware: A Finding of “Irregular Behavior” Can Ruin Your Medical Career Before it Starts,” and  “USMLE Hearing? Organization, Timing, and Evidence are Crucial.”

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: 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

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