Filing 31


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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA A A R O N L. HARTMAN, P l a in tif f , v. N A T IO N A L BOARD OF MEDICAL E X A M IN E R S , D e f e n d a n t. C iv il Action No. 09-5028 MEMORANDUM M a rc h 9, 2010 Pollak, J B e f o re the court is a suit by plaintiff Aaron L. Hartman against defendant National B o a rd of Medical Examiners (NBME) arising under the Americans with Disabilities Act (A D A ). Plaintiff has moved for a preliminary injunction (docket no. 8) directing d e f en d a n t NBME to provide certain accommodations when plaintiff takes the United S ta te s Medical Licensing Examination (USMLE) Step 2 Clinical Skills examination. The requested accommodations are (1) use of an electronic text-to-speech device, (2) d o u b le the length of time for patient encounters, and (3) replacement of telephone patient e n c o u n te rs with in-person patient encounters. Following discovery, the defendant o p p o s e s the request for use of a text-to-speech device, but acquiesces in the other re q u e sts . A five-day hearing has been held to take testimony and hear argument. I. 1. F in d in g s of Fact A a ro n Hartman is a fourth-year medical student at SUNY Stony Brook School of M e d ic in e . 2. H a rtm a n has a profound stutter that can result in pauses between syllables­called b lo c k s ­ ra n g in g from several seconds up to periods of half a minute or more. 3. H e has completed all the requirements for graduation from Stony Brook except p a s s in g the USMLE Step 2 Clinical Skills (CS) examination. 4. H e has failed the USMLE Step 2 CS examination once. He seeks to take it a s e c o n d time. If he fails the examination three times, there is a substantial lik e lih o o d that he will be dismissed from medical school, as Stony Brook states its p o lic y is to dismiss students who have failed the examination three times. 5. H a rtm a n hopes to enter a pathology residency once he graduates from medical s c h o o l. 6. H e has chosen pathology partially due to his impaired speech because it will in v o l v e marginal or no contact with patients. 7. W ith o u t passing the USMLE Step 2 CS, he will be unable to apply to some re sid e n c ie s, begin most residencies, or obtain state medical licensure. 8. 9. T h e NBME designs and administers the USMLE Examination. T h e USMLE Step 2 CS Examination consists of encounters­chiefly person-top e r s o n but a few by telephone­with twelve standardized patients. 2 10. S tan d a rd ize d patients are persons who are trained by the NBME to present a s ta n d a rd iz e d case for evaluation and diagnosis to the medical student taking the e x a m in a tio n and to evaluate the student's ability to communicate and develop r a p p o r t with patients. 11. F o r each encounter (apart from a small number of unscored encounters) the Step 2 C S test-taker is evaluated based on three scoring components. 12. T h e Integrated Clinical Encounter (ICE) Component evaluates the test-taker's a b ility to complete a patient note summarizing the test-taker's (1) findings c o n c ern in g the patient encounter, (2) diagnostic impression, and (3) initial patient w o rk -u p , based on patient information gathered by history-taking and physical e x a m i n a tio n . 13. T h e Communication and Interpersonal Skills (CIS) component assesses (1) q u e stio n in g skills, (2) information-sharing skills, and (3) professional manner and ra p p o rt. 14. T h e Spoken English Proficiency (SEP) component assesses clarity of spoken E n g lish communication within the context of the doctor-patient encounter. 15. E a c h component is evaluated on a pass-fail basis and all three components must be p a ss e d within a single administration in order to receive a passing score on the U S M L E Step 2 CS Examination. 16. T h e standardized patients grade the CIS and SEP sub-components, while trained 3 p h ys ic ia n s grade the ICE component. 17. In October of 2008, Hartman first requested accommodations for the USMLE Step 2 CS Examination. He requested double time and use of a teletypewriter (TTY) d e v ic e for the telephone encounters. 18. T h e NBME rejected his request and instead provided him with time-and-a-half for e a ch patient encounter and in-person patient encounters instead of telephone p a t ie n t encounters. 19. In June of 2009, Hartman took the Step 2 CS examination using the a f o r e m e n t io n e d accommodations. 20. H a rtm a n received a passing score on the ICE and SEP components, but failed the C IS component and, in consequence, received an overall failing score. 21. P la n n in g to take the USMLE examination a second time, Hartman, in the fall of 2 0 0 9 , requested accommodations including (1) double time for each patient e n c o u n te r, (2) replacement of telephone encounters with in-person encounters, and ( 3 ) use of a text-to-speech device during the in-person patient encounters. 22. T h e NBME denied Hartman's request to use a text-to-speech device, but agreed to p ro v id e Hartman with double time for each patient encounter and in-person e n c o u n te r s instead of telephone encounters. 23. T h e present litigation springs from the NBME's continuing refusal of Hartman's re q u e st to be permitted to use a text-to-speech device during in-person patient 4 en co u n ters. Hartman wishes to use this device intermittently, when he has severe s tu t te r in g blocks. 24. H a rtm a n used the text-to-speech device, from time to time, during his testimony in c o u rt. In the numerous intervals in which he did not use the text-to-speech device, th e re were frequent blockages, some of them lengthy. When, after a block, H a rtm a n was able to speak, the words he articulated were clear, correctly p ro n o u n c e d , normal English. II . A n a ly sis I n order to merit the extraordinary relief of a preliminary injunction, Hartman must m e e t four factors: "(1) whether the movant has shown a reasonable probability of success o n the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3 ) whether granting preliminary relief will result in even greater harm to the nonmoving p a rty; and (4) whether granting the preliminary relief will be in the public interest." Doe v . Nat'l Bd. of Med. Exam'rs, 199 F.3d 146, 154 (3d Cir. 1999). Hartman's probability of success on the merits depends on his likelihood of p re v a ilin g under the ADA's standard for requiring reasonable accommodations. In order to succeed on an ADA claim for discrimination in testing Hartman must show: "(1) that [ ]h e is disabled, (2) that [his] requests for accommodations are reasonable, and (3) that th o s e requests have been denied." D'Amico v. New York State Bd. of Law Exam'rs, 813 F . Supp. 217, 221 (W.D.N.Y. 1993). Hartman made a sufficient showing of likelihood of 5 s u c c es s on all three elements. The first and third factors are not seriously disputed. The c re d ib le testimony of John Tetnowski, Ph.D, confirms that Hartman's speech is affected b y a profound stutter that substantially impairs one or more major life activities. Dr. T e tn o w s k i characterized Hartman as one of the three most severely afflicted stutterers he h a s seen in his professional career. Thus, Hartman is likely to succeed in showing that he is a person with a disability. Next, he testified, and documents support, that he requested th e accommodations from the NBME and his requests were denied­the third requirement u n d e r the ADA. L a stly, he has made a sufficient showing that he would be likely to prevail in p ro v in g that his requests for accommodations have been reasonable. In seeking, pursuant to the ADA, modification of an examination, it is a plaintiff's burden to show the e x is te n c e of a reasonable modification, and then a defendant has the opportunity to prove th a t the modification is an undue burden or fundamentally alters the examination. Bowers v . NCAA, 118 F. Supp. 2d 494, 521 (D.N.J. 2000). The Department of Justice has issued re g u la tio n s interpreting this standard to require, inter alia, that: The examination is selected and administered so as to best ensure that, when the e x a m in a tio n is administered to an individual with a disability that impairs sensory, m a n u a l, or speaking skills, the examination results accurately reflect the in d iv id u a l's aptitude or achievement level or whatever other factor the examination p u rp o rts to measure, rather than reflecting the individual's impaired sensory, m a n u a l, or speaking skills (except where those skills are the factors that the ex am inatio n purports to measure). 2 8 C.F.R. § 36.309(b)(1)(i). The use of a text-to-speech device is a reasonable 6 a c co m m o d a tio n so long as it does not preclude assessment of the particular skills the e x a m in a tio n purports to measure, thereby fundamentally altering the examination. T h e use of the text-to-speech device does not interfere with the ability of the N B M E to score Hartman's performance on the examination. The use of the device is m e re ly an aid to, and not a replacement of, his normal speaking voice, which the e x a m in e rs can still grade for the Spoken English Proficiency section of the examination. Hartman demonstrated during his testimony that he can use the device in a manner that a m e lio ra te s his most severe blocks or speech disfluencies but does not replace his normal s p e e ch . During his testimony, much of his verbal communication was through his spoken v o ic e rather than the text-to-speech device. Hartman spoke in his own voice clearly and a rtic u la te ly. Intermittent use of the text-to-speech device will not hinder the standardized p a t ie n t s' ability to grade how and with what skill Hartman can speak in the English la n g u a g e .1 B u t, in deference to defendant's view that this is a fundamental alteration, I will let d e f en d a n t require that Hartman also be tested without the accommodation. If Hartman ta k e s the examination with the text-to-speech device, the NBME has the option of I note that the USMLE Composite Committee has considered whether providing the accommodation of a sign language interpreter to wholly replace a test-taker's speech fundamentally alters the Step 2 CS examination. The committee concluded that using an interpreter does not fundamentally alter the ICE and CIS components, but does fundamentally alter the SEP component. The Committee recommended that passing score on those components would be reported as "Pass (ICE and CIS only)." USMLE Composite Committee Meeting, January 24, 2005, Meeting Summary. There has been at least one test-taker who was granted use of a sign language interpreter and passed both the ICE and CIS components. 7 1 re q u irin g that Hartman also take the examination with only the accommodations of d o u b le time and the replacement of telephone patient encounters with in-person patient e n c o u n ter s. Thus, the NBME can elect to (1) have Hartman achieve a score both with an d without the accommodation of the text-to-speech device and (2) provide in its report o f the examinations an explanation of the accommodations provided at each a d m in is tr a tio n . The second element­irreparable injury­is also present. Any further delays will lik e ly cost Hartman another year in applying to residency programs, and graduating from m e d ic a l school. If he takes the test without the text-to-speech accommodation, he risks an o ther failure, which will leave him a single chance to pass the examination before ru n n in g the grave risk of dismissal from medical school. The third element for a preliminary injunction­weighing the equities­also favors th e plaintiff as the delay of his potential passage of the examination will result in the irre p a ra b le harm, discussed above. In contrast, any asserted harm to the NBME's testing p ro c e s s is obviated by allowing defendant to require that Hartman take the Step 2 CS e x a m in a tio n again without the text-to-speech accommodation. The weighing of the e q u itie s favors Hartman, so long as the NBME can elect to have him also take the e x a m in a tio n without the text-to-speech device in order to provide the NBME with p ro te c tio n against what it fears would, otherwise, be a dilution of the integrity of the s c o rin g process on the USMLE examination. 8 T h e last element­the public interest­also favors Hartman. The public has an interest in the elimination of discriminatory hurdles for those with disabilities. In a d d itio n , the longer Hartman continues to be barred from entering the profession, the lo n g e r society is prevented from enjoying the work of a very promising medical student. However, as the NBME points out, the public also has an important interest in m a in ta in in g high standards for those entering the medical profession. Having Hartman ta k e the examination twice­once with the requested text-to-speech accommodation and o n c e without­will serve both these goals, as his medical school, residency programs, and s ta te licensing boards will have a complete picture of the skills of Hartman as tested by th e USMLE Step 2 CS. The four factors determining whether a preliminary injunction should issue favor H a rtm a n . However, for reasons stated above, to protect against what the NBME p e rc e iv e s to be a threat to the integrity of the USMLE Step 2 CS testing process, I c o n d itio n Hartman's use of the text-to-speech device on the NBME being able to elect th a t he also take the examination with only the accommodations of double time and the re p la c em e n t of telephone encounters with in-person patient encounters. The NBME can th e n include an explanation of the accommodation given during each examination along w ith the score for each examination. T h e plaintiff, fearing further delay in his residency applications, wishes to take the e x a m in a tio n and receive his score as soon as feasible. Witnesses for the NBME testified 9 th a t the USMLE Step 2 CS examinations is scored by what is called the cohort process, w h e re , in order for the results to be statistically significant and unbiased from each s ta n d a rd iz e d patient's grading peculiarities and the differing difficulty levels between c a se s, each individualized test-taker's results are normed against the result of all testta k e rs over a several week period. Thus, for any examination conducted in March of 2 0 1 0 , the scoring cannot feasibly be completed before April 21. Due to these competing c o n sid e ra tio n s , Hartman and the NBME are to complete testing, once with the a c co m m o d a tio n of a text-to-speech device, and then, if the NBME so elects, once without th e text-to-speech device, before March 27, 2010. The NBME then must release the s c o re s to both examinations on April 21, 2010. III. C o n c lu s io n F o r the above reasons, I grant Hartman's request for a preliminary injunction re q u irin g that he be allowed use of a text-to-speech device, double time for each patient e n c o u n te r, and replacement of the telephone patient encounters with in-person e n c o u n te rs . However, the NBME has the right to require that Hartman also take the e x a m in a tio n without the accommodation of a text-to-speech device and require that the sc o re s of both examinations be produced together with an explanation. The parties are to c o o p e ra te in drafting a joint proposed order implementing this memorandum and submit it to the court no later than Friday, March 12, 2010. 10

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