Board Shoots: Does Not Score

August 4, 2010 9:22 am

By Dale J. Atkinson, JD

The issue of delegation of authority and the extent to which statutes and rules or regulations should designate by name a private sector examination (like the NABP North American Pharmacist Licensure Examination®) or a passing standard as a mandatory prerequisite to licensure always presents interesting legal issues. Equally important is the necessity of the regulatory board to follow the mandates of the enabling legislation to ensure legal sustainability for actions taken. Consider the following.

The California Medical Practice Act created and empowered the Medical Board of California (board) to protect the public through enforcement of standards relevant to the licensure of physicians. The practice act calls for the board to, among other criteria, administer licensing exams as a prerequisite to licensure. Specifically, the statute requires applicants to “obtain a passing score established by the [board]…” Further, the law calls for the board to “establish a passing standard by resolution.” Such legislation had been in place for multiple decades.

One of the exams relied upon in the licensure process is the United States Medical Licensing Examination (USMLE) developed by the National Board of Medical Examiners and the Federation of State Medical Boards (FSMB). The USMLE is a three-part examination used by medical boards to assess minimum competence of applicants. Part III of the USMLE has been used by the board since 1994. In short, the board approved an oral resolution in November 1994 that it would accept the USMLE Part III for licensure purposes in the state of California. However, the board did not name or establish a passing score for any of the USMLE parts in that oral resolution or any resolution since that date. Instead, the board has accepted the recommended passing score established by the FSMB as the standard to be applied to California applicants.

Historically, the board undertook various actions to accept and recognize the USMLE as part of its licensure process, including entering into a contract for use of the exam. The 1999 contract for use of Part III delegated from the board to the FSMB all aspects of the exam. The board retained only the right to refer applicants to the FSMB, inform the FSMB of any eligibility requirements that may exist in addition to the FSMB requirements, and to make final decisions concerning requests for test accommodations. This legal relationship was reconfirmed in a letter of understanding signed in 2003.

In addition to the California statute that empowered the board to recognize an examination or examinations for purposes of the licensure process, the statute provides that applicants must pass Part III of the USMLE on no more than four attempts in order to be eligible for licensure. Thus, applicants who fail to successfully complete Part III on four attempts are ineligible for licensure in California.

A graduate of Stanford University and the University of Rochester School of Medicine and Dentistry (referred to as applicant) was undertaking her residency in neurosurgery at the Los Angeles County Hospital and University of Southern California Medical Center. As a residency participant, she was not licensed to practice medicine. In March 2008, the applicant registered to take Part III of the USMLE. At that time, the passing score recommended by the FSMB and utilized by the board was 184. USMLE materials note that the passing level is reviewed periodically and may be adjusted at any time and that such changes will be posted on the USMLE Web site.

In April 2008, a notice appeared on the Web site stating that the minimum passing score for Part III had been raised from 184 to 187 and that the new passing score would apply to examinations administered after May 1, 2008. On May 13, 2008, the applicant took Part III of the USMLE and received a score of 184, below the passing standard set by the FSMB. Because this was the fourth attempt, the board notified her that she was not eligible for licensure. Subsequent requests for a waiver of the exam limits were denied by the board.

The applicant filed a petition for a writ of mandate seeking an order that she had passed the exam and for the board to issue her a license. The trial court denied her requests finding that the board implicitly adopted the USMLE passing scores when it recognized the use of the USMLE and that such action satisfied the statutory requirements related to the necessity of a resolution establishing the passing score. The court also recognized the historical recognition of the passing scores dating back to the early 1990s as evidence of compliance with the statutory mandate. The applicant appealed the matter to the appellate court.

On appeal, the applicant argued that the board did not comply with the statute by formally adopting a resolution establishing the passing score. She also argued that the lower court erred by finding that the board implicitly adopted the passing score, by not finding that the board improperly delegated its authority to the FSMB to establish the passing score, and that her due process rights had been violated.

The appellate court reviewed the history of the interactions between the board and the FSMB, including an analysis of the contractual relationship. It further noted that, according to the board’s executive director, it “has nothing to do with the administration of the USMLE.” According to her testimony, “…the board receives the scores for its applicants and accepts the scores as determinative of whether an applicant has passed the USMLE. To [her] knowledge, the board has never questioned nor had reason to question the passing score for the USMLE.” Finally, the court noted that the board “believes it no longer has the authority to set the passing score,” despite the statutory mandate.

Simply stated, the appellate court phrased the issue as, can the statutory mandate that the board establish the passing score by resolution be satisfied impliedly by the board’s consistent acquiescence in the USMLE recommended score and its transferring of administrative control over the examination to the FSMB? The appellate court held that it cannot.

The court focused on the unambiguous language of the statute that requires the board to establish the passing score by resolution. A resolution is a “formal expression of opinion, will, or intent voted by an official body or assembled group.” While it does not require the same formality of the enactment of a statute or promulgation of a rule, a resolution is adopted by a recorded vote of the governing body in accordance with statutory open meetings and agendas laws.

The appellate court held that the lower court erred by recognizing that the board could implicitly fulfill its requirement to adopt a resolution through acquiescence of past actions and that such recognition abrogated the statute. Further, although recognizing the USMLE through contracts and letters of understanding, the board never addressed the passing score through any of its formal actions. The board simply approved the USMLE without adopting the examination’s passing score via resolution. The appellate court held that there is nothing in the statutory scheme that authorizes the board to adopt the passing score by means other than through formal resolution. Because such formal action was not taken, the board failed to meet its statutory obligations.

Turning its attention to the relief sought, the court held that the applicant is entitled to an order mandating that the board comply with the statute and adopt a passing standard by means of a formal resolution. However, the court also held that it cannot order the board to declare her 184 score received on the fourth attempt to have met a passing standard as there existed no valid resolution by which the score could be declared a passing score. The court held that without an established passing score, the fourth administration was a “futile act” and that it would be unjust to treat the exam administration in question as a legitimate and, in the applicant’s case, last attempt to become licensed to practice medicine in California. Thus, the court concluded that the applicant should be offered another opportunity to take Part III after the board has adopted a passing score through a formal resolution. The court did not address any issues related to previous applicants and/or licensees.

This case presents an important example of reading, understanding, and following the statutory mandates imposed upon boards of pharmacy related to undertaking the essential public protection responsibilities of enforcing the practice act in the interest of public protection. While it may be easy to defer to NABP as the expert in minimum competence exams, board involvement in understanding the development, administration, scoring, passing standard, and maintenance of a legally defensible examination program (even where the statute may not require it) is good practice.

Marquez v. Medical Board of California, 182 Cal. App. 4th 548 (App. Ct. CA 2010)