NABP Legal Briefs: 107th Annual Meeting Report of Counsel: Catch Me If You Can

July 12, 2011 1:04 PM

Originally published in the June-July 2011 NABP Newsletter

By Dale J. Atkinson, JD

On behalf of its member boards of pharmacy, NABP develops, administers, scores, and maintains multiple examination programs for use in the licensure process. These examinations command significant attention by NABP and consume large portions of NABP staff time and financial resources. As with any high stakes licensure examination program, NABP examinations are also the subject of robust security measures to ensure that they are not compromised or subject to exposure to candidates or others looking to exploit access to secure exam materials. Pre-disclosure of exam items not only threatens the security of the program, but also threatens the legal defensibility determinations contingent upon pass-fail results.

While NABP operates multiple examination programs, this report will focus on the North American Pharmacist Licensure Examination^® (NAPLEX^®). The NAPLEX is a minimum competence assessment tool developed for uniform use by pharmacy boards as one indicator of licensure eligibility. The benefits of a uniform examination program are obvious pertaining to the economies of scale, legal defensibility, validity, and reliability as related to pharmacy boards, as well as increased flexibility related to the mobility of practitioners. Licensure eligibility criteria are established through the enactment of statutes and promulgation of regulations. Pharmacy boards are governmentally established regulatory entities and licensure as a pharmacist is mandatory prior to practice. Indeed, the unlicensed practice of pharmacy subjects such individuals to administrative, civil, and criminal sanctions. Finally, and based upon this governmental oversight of the profession, licensees are entitled to certain due process rights before an adverse action is taken by a pharmacy board. While the above-referenced recap of pharmacy boards and the licensure process may be elementary, sometimes it is worth restating the obvious to place certain issues into context.

To ensure the confidentiality of proprietary matters and processes concerning its high stakes licensure examinations, NABP enters into detailed agreements with vendors, employees, and volunteers involved in the development, administration, scoring, and maintenance of these assessment mechanisms. Further, candidates for licensure seeking to sit for the NAPLEX are prohibited from using aids or obtaining assistance during the examination and cannot disclose examination content to others. In spite of these and other measures, confidential exam materials and other protected information for all the regulated professions continues to flow in the form of review courses, chat rooms, e-mail correspondence, printed text, and every other conceivable method of communication. In the technologically advanced world of today, protected information can be disseminated globally at the push of a button. Enforcement of protected intellectual property rights is a daunting, but essential, task to ensure the defensibility of the uniform licensure examination program relied upon by the NABP member boards.

The purpose of this year’s Report of Counsel is to address what appears to be a movement, whether real or perceived, of publicized activities which result in the compromise or breach of these high stakes licensure and certification examinations. Sometimes these alleged breaches occur at the hands of those which regulatory boards and licensees would least likely expect. This report will not only explore some of the factual findings resulting in exam compromises, but also the legal implications to those involved in the examination process. Exam compromises affect exam owners, regulatory boards, candidates for licensure, employers of licensees, hospitals, health care programs, academic programs, examination vendors, insurance carriers, the judiciary and, ultimately, the public served.

NABP v Board of Regents of the University System of Georgia, et al

Most NABP constituents are familiar with the fact that in August 2007, the NAPLEX program was entirely shut down due to an alleged breach in exam security. As a result, for approximately five weeks, no applicant in any jurisdiction was able to sit for the NAPLEX and become licensed as a pharmacist. Investing significant resources, NABP began the process of reconstituting the exam program and ultimately brought the NAPLEX back on line for use by NABP member boards of pharmacy. The allegations were investigated resulting in the eventual commencement of litigation in federal court by NABP against those alleged to have perpetrated this compromise. Astonishingly, the defendants in this litigation included the Board of Regents of the University System of Georgia, as well as a professor of the pharmacy academic program who was also assistant dean for student affairs with the College of Pharmacy of the University of Georgia. The very university and professor charged with educating would-be pharmacists are alleged to have operated a review course using examination items gathered from former students who had recently sat for the NAPLEX. These former students were alleged to have been encouraged to provide recalled items to the professor. Through this scheme, NABP contends hundreds of NAPLEX items were compromised.

Perhaps more startling was the fact that this particular university and professor were the subject of previous allegations by NABP concerning similar examination compromise in the mid 1990s, which resulted in a settlement agreement wherein the school and the professor agreed to cease and desist all copying, transcribing, or other use of NABP copyrighted materials and examination questions. The previous settlement agreement became a part of the litigation initiated in 2007 involving these same parties.

NABP pharmacy board members, executive directors, and staff are likely familiar with the immunity principles designed to allow regulatory board public protection responsibilities to be undertaken free of influence and threat of litigation. Without such protective measures, vacancies on pharmacy boards would be rampant, as individuals would be reluctant to subject personal assets to the potential reversible errors committed by volunteer board members in the good faith regulation of the profession. Immunity comes in different shapes and sizes dependent upon the alleged wrongdoing of the public servant and can be generally characterized as absolute immunity (or judicial immunity) and qualified immunity. Immunity principles are also designed to limit federal court jurisdiction over state entities under the United States Constitution. The aforementioned NABP litigation is a shining example of such prohibition. Consider the following.

Based upon the facts set forth in this report, NABP instituted litigation in federal court in August 2007 against the Board of Regents for the University System of Georgia and against two professors in their individual capacities, alleging copyright infringement for appropriating NABP written materials protected by the Copyright Act. In May 2008, NABP also instituted an action in state court regarding certain other contract and tort claims.

In the federal litigation, NABP seeks damages and injunctive relief against the University System of Georgia and the professors and alleges three counts, including copyright infringement. Based upon the facts alleged by NABP, an emergency temporary restraining order was entered which prohibited the defendants from undertaking certain actions related to the examinations. Also, the court ordered the US Marshall, assisted by NABP attorneys, to search and seize certain identified materials.

Soon after, the University System of Georgia filed a motion to dismiss the case arguing the court lacked subject matter jurisdiction based upon the Eleventh Amendment of the US Constitution. Some characterize this Eleventh Amendment prohibition of a federal court adjudicating a case against a state as sovereign immunity. In short, the University System of Georgia argued that, based upon sovereign immunity, the federal court could not adjudicate this case because it involved a state entity (the University System of Georgia) being sued by a private entity (NABP) in a federal court. Complicating the issues is the fact that federal courts have exclusive jurisdiction to adjudicate matters brought under the Copyright Remedy Clarification Act (CRCA). That is, NABP’s remedies under the copyright act can only be pursued in federal court setting the stage for this legal dichotomy.

The District Court granted the University System of Georgia defendants’ motion to dismiss under the Eleventh Amendment and the remaining counts related to breach of the 1995 settlement agreement and misappropriation of trade secrets were also dismissed, with the court finding it lacked jurisdiction to adjudicate the remaining counts. NABP appealed the matter to the 11th Circuit Court of Appeals.
On appeal, NABP argued that sovereign immunity does not bar its claims for damages and injunctive relief. NABP argued that Congress, through the enactment of the CRCA, abrogated state sovereign immunity, meaning that state entities were subject to federal court jurisdiction regarding rights pursued by copyright owners.

As summarized by the Court of Appeals, “sovereign immunity is no bar to a claim for damages when Congress validly abrogates the States’ sovereign immunity through legislation.” Congress may abrogate the states’ sovereign immunity when it:

1. unequivocally expresses its intent to abrogate the immunity through a clear legislative statement; and
2. acts pursuant to a valid exercise of constitutional power.

As stated by the court, Congress unequivocally expressed its intent to abrogate the states’ sovereign immunity. Having determined this congressional intent, the court turned its attention to whether the CRCA was enacted pursuant to a constitutional provision granting Congress the power to abrogate. The court addressed this issue reviewing Article 1 of the US Constitution as well as the Fourteenth Amendment. The court also examined whether NABP was afforded due process where its “private property is allegedly expropriated by a state or legal entity of the state.” Under both theories, the court held in favor of the University System of Georgia finding that neither provision supported NABP’s arguments.

Accordingly, the court of appeals held that the University System of Georgia was entitled to Eleventh Amendment immunity and that the federal courts lacked subject matter jurisdiction to adjudicate the copyright claims for damages against the University System of Georgia. The appellate court did find that the federal courts maintained jurisdiction over the University System of Georgia for prospective injunctive relief, which NABP is seeking in order to prohibit future use of protected materials. NABP filed a petition for rehearing en banc requesting that the full panel of judges consider its appeal of the motion to dismiss. The professors remain in the federal court litigation related to injunctive relief and damages as they are sued in their individual capacities. The state court litigation remains pending and will adjudicate alleged contractual breaches based upon the 1995 settlement agreement.

The immunity nuances play a significant role in this very complex case. If, ultimately, it is decided that NABP or other testing organizations are without federal recourse to pursue alleged copyright infringement damages against a state entity under federal law, then an unequal standard is established for litigating copyright infringement matters involving private and public universities as defendants.

Of course, exam breaches are not unique to pharmacy. Several other professions have been the subject of recent exam compromise issues resulting in a variety of actions and reactions.

Federation of State Boards of Physical Therapy

The following is an excerpt from the Federation of State Boards of Physical Therapy (FSBPT) FSBPT New Brief July 2010:
 

FSBPT suspends NPTE examination for all graduates of certain overseas programs.

In response to pervasive, ongoing security breaches by significant numbers of graduates of physical therapy schools from certain foreign countries, the Federation of State Boards of Physical Therapy (FSBPT or Federation) has temporarily suspended National Physical Therapy Examination (NPTE) testing for all graduates of schools located in those countries, pending the development of a separate, secure exam for those graduates (to be called the NPTE-YRLY). The new policy applies only to graduates of physical therapy schools in Egypt, India, Pakistan and the Philippines, and is applied based upon the location of the applicant’s first/primary physical therapy program, not the applicant’s country of origin or citizenship.

Like NABP, FSBPT is a not-for-profit association whose membership consists of the regulatory boards of physical therapy. FSBPT provides programs and services to its member boards, including the development, administration, scoring, and maintenance of a uniform licensure examination. Based upon the security breaches, FSBPT developed an alternative examination for such candidates. Such alternative exam was to be launched for use in May 2011. Thus, candidates from these identified countries were required to wait to sit for the licensure exam.

Certain impacted candidates filed suit in Superior Court of Fulton County Georgia seeking a declaratory judgment finding that the exam policy was unenforceable and injunctive relief allowing such candidates to sit for the NPTE, rather than the to be developed NPTE-YRLY exam. The defendants in the case were both the FSBPT as well as the Georgia State Board of Physical Therapy. The Georgia State Board adopted the FSBPT decision to utilize the NPTE-YRLY.

In a very short opinion entered February 9, 2011, the superior court judge entered judgment in favor of the candidates finding that the adoption of the FSBPT decision constituted the promulgation of a rule without following the procedural requirements of the Georgia Administrative Procedures Act. In addition, the court held that this “testing prohibition” policy exceeded the Georgia State Board’s statutory authority because it resulted in the “imposition of non-uniform exam requirements on otherwise qualified candidates based solely on the country in which they received their physical therapy training.” Finally, the court noted that the Georgia State Board “violated its affirmative duty under law to individually determine the competence and qualifications of each prospective physical therapy candidate by delegating to the [FSBPT] the decision as to who is eligible to take the NPTE in Georgia.” This opinion applies only to the state of Georgia.

National Board of Examiners of Optometry

Below is an excerpt from a May 5, 2010 press release issued by the National Board of Examiners in Optometry (NBEO).

NATIONAL BOARD OF EXAMINERS IN OPTOMETRY PLACES HOLD ON PART I SCORES
The Board of Directors of the National Board of Examiners in Optometry (NBEO) has placed a hold on the release of Part I scores. This release was scheduled for May 5, 2010. The National Board is postponing the release of scores pending an investigation into evidence of possible cheating by a significant number of exam candidates. Scores will not be released until the investigation has been completed. This examination was administered to optometry candidates at 18 different sites across the US and Canada on March 16-17, 2010. The NBEO’s investigation into that exam administration is focusing on three primary concerns. The Board is investigating the possibility that some candidates may have had improper access to confidential exam items before the examination. In addition, the Board is investigating whether candidates taking the examination engaged in an organized attempt to memorize exam content in order to reproduce it for use by other students taking future administrations. The Board also is investigating the possible involvement in such activities of at least one faculty member.

Such unethical conduct, if it occurred, would constitute cheating and would be a violation of NBEO examination policies and rules binding on examination candidates. Those NBEO policies and rules were established to protect the security, integrity, and credibility of the examination.

American Board of Internal Medicine

Below is an excerpt from a June 9, 2010 press release issued by the American Board of Internal Medicine (ABIM). ABIM is an entity which provides specialty certification to physicians.

ABIM Sanctions Physicians for Ethical Violations

Unprecedented action reflects ongoing commitment to protect the integrity of the medical board certification process Philadelphia, PA, June 9, 2010 – The American Board of Internal Medicine (ABIM) took formal action today to sanction 139 physicians for soliciting or sharing confidential examination questions used to certify doctors in internal medicine and its subspecialties. ABIM has also initiated legal action in the U.S. District Court for the Eastern District of Pennsylvania last week against five physicians who were among the most egregious offenders.

The sanctioned physicians participated in Arora Board Review, an independent, New Jersey-based test-preparation course that purported to help physicians prepare for board certification exams. Participants in the course were encouraged to relay questions from memory to the company immediately after they took an ABIM examination. They were also provided with questions obtained by other physicians who had completed ABIM examinations.

Through an extensive investigation, ABIM established that the physicians being sanctioned shared or solicited actual ABIM examination questions – a significant breach in the professional standards ABIM requires of all of its board-certified physicians and any physician taking the exam for certification. Hundreds of questions were compromised and immediately removed from the ABIM exam question pool.
Each physician who signs up for an ABIM examination is directed, in writing, not to discuss exam content. In addition, before each test, physicians sign a ‘pledge of honesty’ to not disclose, copy, or reproduce any portion of the material contained in the examination and are warned that ABIM will impose severe penalties on any physician involved in efforts to provide examination question content to others.

As a follow up, below is an excerpt from a June 17, 2010 press release issued by ABIM.

ABIM Reaches a Settlement With Arora Board Review

Permanent Injunction is Issued Against Course and Course Operator

Philadelphia, PA, June 17, 2010 – On June 10th, the American Board of Internal Medicine (ABIM) reached a settlement with Arora Board Review and Rajender Arora, MD, owner and operator of Arora Board Review. Under the terms of the settlement agreement:

Dr. Arora is not Board Certified.

Arora Board Review and Dr. Arora are permanently enjoined from copying, distributing or selling any materials that incorporate the content of ABIM Examinations.

Arora Board Review and Dr. Arora are permanently enjoined from collecting, soliciting or encouraging others to collect ABIM Examination content.

Arora Board Review may not offer a live test-prep course at any time in the future.

Arora Board Review is paying damages to ABIM.

The permanent injunction was signed by Judge Curtis Joyner of the US District Court of Pennsylvania on Thursday, June 10 and orders that Arora Board Review is permanently enjoined from “creating, reproducing copying, distributing, offering for sale, selling and/or publicly displaying any materials of any kind and in any medium that infringe ABIM’s copyrights in its Certifying Examinations.” The injunction also ordered that Arora is prohibited from “collecting, soliciting or encouraging third parties to collect and/or share the content of ABIM Examinations.”

“We are pleased that our efforts to protect the integrity of our examinations have been successful,” added Christine Cassel, President and CEO of the American Board of Internal Medicine. “While the damages we have received can not begin to cover the costs of replacing the questions compromised by Arora Board Review, they send an important message that we will do what it takes to protect the examination process.”

But Wait, There’s More. . .

In addition to the aforementioned press releases and newsletter stories, the following are several titles and short synopses of articles recently in the news.

“FBI Test Scandal Explodes: Investigation Finds Widespread Cheating on Domestic Spying Exam,” by Dan Froomkin, The Huffington Post, September 27, 2010 (Widespread cheating on an exam intended to test agents on domestic intelligence-gathering guidelines.)

“Security Breach Compromises ISTEP Exam,” The Indy Channel, March 7, 2011 (Security breach – test coordinator leaked question to Facebook teachers group – of the Indiana Statewide Testing for Educational Progress-Plus prompts the Indiana Department of Education to launch statewide investigation.)

“Alleged SAT exam breach probed,” by John Hildebrand, News Day, March 14, 2011 (National administrators investigate alleged breach of testing security in Great Neck, NY.)

“Japanese police start probe into exam breach,” The Yomiuri Shimbun, February 3, 2011 (Investigation into Kyoto University entrance exam questions leaked to the Internet, possible criminal offense; education minister asks for cell phone ban at test sites.)

“High number of erasure marks shadow soaring test scores in D.C. schools,” by Erica Green, The Baltimore Sun, March 28, 2011
(USA Today investigation finds the number of answers changed from wrong to right on standardized tests was too high; questions possible testing improprieties.)

“Magic ‘improved’ schools just happen to have a lot of eraser marks on their tests,” by Jack Stuef, Wonkette, March 28, 2011 (USA Today investigation finds consistent pattern of wrong answers erased and changed to right ones.)

“Civil Service says no police-exam breach; tip termed ‘total fabrication,’” by Jeb Phillips, The Columbus Dispatch, June 30, 2010 (Civil Service Commission investigation found no evidence of a security breach on promotion exams given to police officers; anonymous letter that sparked investigation was a fraud.)

Some may question the moral fiber of our society as illustrated by a number of these and other scandals that almost appear to be an every day occurrence. Others may applaud the discovery and publication of these events as the advent of a new day whereby cheating scandals are deemed newsworthy and merit front page coverage. Regardless, NABP and its sister organizations must continue to be diligent in their efforts to maintain the legal defensibility and security of each respective examination program. Member regulatory boards must also understand and actively participate in this process to ensure reliance is appropriate in the licensure process.