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Berger v. National Board of Medical Examiners

United States District Court, S.D. Ohio, Western Division

August 27, 2019




         Plaintiff, Brendan J. Berger, brings this action against the National Board of Medical Examiners ("NBME") alleging, inter alia, violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Mr. Berger alleges he is a person with a disability under the ADA and is entitled to extra testing time and other accommodations based upon a learning disability and Attention Deficit Hyperactivity Disorder ('ADHD"). NBME denies that Mr. Berger is disabled within the meaning of the ADA or entitled to accommodations. This matter is before the Court on Mr. Berger s motion for a preliminary injunction (Doc. 20) and NBME's response in opposition (Doc. 27). On July 29 and 30, 2019, the Court held an evidentiary hearing on plaintiffs motion. The parties have submitted proposed findings of fact and conclusions of law. (Docs. 34, 35, 36). For the reasons stated below, the undersigned GRANTS plaintiffs motion for preliminary injunction.

         I. Findings of Facts

         A. The Parties

         1. Brendan Berger began medical school at the American University of the Caribbean School of Medicine (AUC) in 2011. (Doc. 30, Tr. 65-66).

         2. He was expected to graduate from AUC in 2015. (Doc. 30, Tr. 66:9-13).

         3. Mr. Berger has completed all course work and clinical rotations necessary to graduate from AUC with a Doctor of Medicine (M.D.) degree except for passing the United States Medical Licensing Examination ("USMLE") Step 2 CK. (Doc. 30, Tr. 29:15-23).

         4. The NBME is a not-for-profit organization that administers the USMLE together with the Federation of State Medical Boards. The NBME reviews, processes, and approves (or denies) requests for accommodations presented in accordance with the ADA. (DX 23, Declaration of Catherine Farmer, Psy.D. At ¶¶ 3, 4).

         B. The USMLE

         5. The USMLE is designed to assess a physician's ability to apply knowledge, concepts, and principles, and to demonstrate fundamental patient-centered skills, that constitute the basis of safe and effective patient care. (DX 23, Farmer Decl. at ¶ 4).

         6. There are three Steps to the USMLE, namely USMLE Step 1, USMLE Step 2 Clinical Knowledge (CK), USMLE Step 2 Clinical Skills (CS), and USMLE Step 3. All exams must be passed before an individual with an M.D. degree is eligible for medical licensure in the United States. (DX 23, Farmer Decl. at ¶ 6).

         7. Mr. Berger has taken the USMLE Step 1 without accommodations. A passing score was set at 192. Mr. Berger passed with a scaled score of 198. (PX 38).

         8. Mr. Berger took the Step 2 CS exam, without accommodations, for the first time on April 13, 2016. (Doc. 30, Tr. 152). He did not pass. (Doc. 30, Tr. 152-53).

         9. Mr, Berger took the Step 2 CS exam, without accommodations, a second time on August 17, 2016. He received a passing outcome. See Step 2 CS Score Report (Aug. 17, 2016) (DX 16 at 5-6).

         10. Mr. Berger has taken the Step 2 CK exam twice, without testing accommodations and under standard testing conditions. He did not achieve a passing score on either attempt. Step 2 CK Score Reports (DX 16 at 7-10).

         11. The USMLE Step 2 CK under standard administration consists of approximately 318 multiple choice test items, divided into eight 60-minute blocks, administered in one nine-hour testing session. (Plaintiff Complaint and Defendant's Answer at ¶ 37).

         12. NBME's published performance data indicates that 95%-96% of examinees from US/Canadian schools pass the USMLE Step 2 CK. (PX 57). AUCs published performance data reflects that 89% to 92% of AUC's students pass the USMLE Step 2 CK. (PX 58).

         C. Mr. Berger's Academic History

         13. Mr. Berger's mother is from the United States of America and his father is from France. (Doc. 30, Tr. 19-20). His mother is fluent in French, as are his two older sisters. (Doc. 30, Tr. 26, 119-20).

         14. English was the primary language spoken in Mr. Berger's home during his childhood, and he speaks English fluently. 2010 Beach Report (PX 5 at ¶ 000016). While some French was spoken in the home, it is estimated that during Mr. Berger's early childhood, more that 90% of the time English was spoken around him. (Doc. 30, Tr. 22:1-25, 23: 3-11). Mr. Berger is presently unable to speak French. (Doc. 30, Tr. 35:14-15).

         15. Mr. Berger attended a public school in the first grade.

         16. While in first grade he received intervention for literacy skills and also received tutoring at home. (Doc. 30, Tr. 38:2-39:4).

         17. Mr. Berger was homeschooled in the second, third and fourth grades due to the difficulty he was experiencing in reading and learning. (Doc. 30, Tr. 29, 39). He was home- schooled by his mother, a professional educator, who provided intensive instruction on reading, spelling, written expression, and math computation from second through fourth grades. (PX 33).

         18. While in second grade Mr. Berger was evaluated by a psychologist, Jeanne Artner, Ph.D., due to trouble with reading and behavioral concerns. Dr. Artner reported that Mr. Berger s behaviors raised the possibility of Attention Deficit Disorder. She further recommended teaching methods to stress a phonics approach in reading sight words and using a multisensory technique in reading lessons. (PX 17).

         19. Mr. Berger took the Stanford Achievement Tests in the second, third and fourth grades. (PX 18, PX 19, PX 20); (Doc. 30, Tr. 134-35). His Total Reading and Reading Comprehension scores were rated average in the second and third grades and above-average in fourth grade. The Stanford Achievement Tests Score Reports do not reflect standard or nonstandard test administration.

         20. Mr. Berger resumed his school-based education at the St. Gabriel Consolidated School in the fifth grade and attended that school through the eighth grade. (Doc. 30, Tr. 40).

         21. While attending St. Gabriel School, Mr. Berger was given accommodations, which included extended time to complete class assignments, examinations, and quizzes. He was administered oral exams because of his difficulty reading. He was also allowed to take tests in a small quiet room. (Doc. 30, Tr. 40:15-41:3); (PX 1).

         22. Mr. Berger took the Iowa Tests of Basic Skills and Cognitive Abilities Test in the sixth grade. (PX 21). His total reading score was in the 96th percentile nationally and his reading comprehension score was in the 82nd percentile. (Id.). The score report does not reflect whether or not Mr. Berger received accommodations on the test.

         23. Mr. Berger attended Archbishop Moeller High School (Moeller) from ninth through twelfth grades. During ninth, tenth, and part of eleventh grade, Mr. Berger was given informal accommodations by his teachers, which included extra time to complete tests, extra sets of textbooks for highlighting, and use of audio books to address issues of reading and sustained focus. (Doc. 30, Tr. 41:17-44:19).

         24. During Mr. Berger s eleventh grade year, he underwent a psychoeducational evaluation with Dr. Alexander Smith in January through February 2003. (PX 23). Following his evaluation, Mr. Berger received formal accommodations set forth in a Moeller Assistance Plan, which continued to provide extended time for reading and writing assessments due to his difficulty completing such tasks, a separate area for testing, and allowance for extra copies of texts and use of audio tapes of novels. (Doc. 30, Tr. 42:22-45:15); (PX 2).

         25. During the eleventh grade, Mr. Berger took the PSAT exam without accommodations. (Doc. 30, Tr. 46:8-10). Mr. Berger testified he struggled with the time constraints of the exam. (Doc. 30, Tr. 46:11-47:4). He testified he ran out of time while testing and omitted answers to some questions. (Doc. 30, Tr. 48-51). He acknowledged there was a "guessing penalty, '' students were encouraged not to guess, and his omitted answers did not come only at the end of sections. (Doc. 30, Tr. 138-39). Mr. Berger scored in the 72nd percentile on the verbal section and in the 73th percentile on the writing skills section of the PSAT. (Doc. 30, Tr. 51:13-52:5); (PX 3 and DX 24-5).

         26. In Mr. Berger's senior year, the College Board granted his request for accommodations on all College Board Exams, which included the SAT, PSAT, and AP exams. He was approved for “50% Extended Time accommodations." (Doc. 30, Tr. 52:6-25); (PX 4)

         27. In January 2004, Mr. Berger took the SAT with 50% extended time and scored in the 91st percentile nationally on the Reading section of the test. (Doc. 30, Tr. 53:7-25); (PX 25).

         28. Mr. Berger began college at the University of Cincinnati ("UC"). At the start of his matriculation, he submitted a request for accommodations to the University's Disability Services Office. The University of Cincinnati approved Mr. Berger s request and granted him accommodations, including double (100%) extended time, a proofreader, and audio versions of written text. He also took exams with extended time at the Disability Services Office. (Doc. 30, Tr. 54:3-55:14); (PX 27).

         29. Mr. Berger graduated from UC in 2009, with a B.A. degree in Asian Studies and a B.S. degree in Biology. (Doc. 30, Tr. 55); UC Transcript (PX 28).

         30. While at UC, Mr. Berger spent a year abroad in Japan, where he learned and became fluent in Japanese, (Doc. 30, Tr. 35, 120).

         31. Mr. Berger enrolled at the American University of the Caribbean School of Medicine in 2011 and is currently on an indefinite leave of absence. (Doc. 30, Tr. 66). He received "time and a half in a reduced distraction environment as his testing accommodation" at AUC. AUC Letter (May 2013) (PX 10). Mr. Berger's class rank in the Medical Sciences part of the school's curriculum was 70 out of 92 students, with a grade point average of 78.97. In the Clinical Sciences portion of the school's curriculum, Mr. Berger achieved 11 grades of "honors" and 2 grades of "pass." AUC Transcript (DX 15).

         32. Mr. Berger has applied for and has been granted accommodations for the Graduate Record Examinations ("GRE"). (Doc. 30, Tr. 161). The accommodations include 100% extended time over two consecutive days, breaks, a separate room, and an MP3 Audio Test Format. (Doc. 36) (PX 64) (PX000521).

         D. The Medical College Admission Test ("MCAT")

         33. The MCAT is a standardized exam, lasts several hours, contains multiple-choice questions, and is administered on a computer. See MCAT Essentials at 3 (DX 17). The purpose of the MCAT "is to test the skills and knowledge that medical educators and physicians have identified as key prerequisites for success in medical school and the practice of medicine." with questions in the Physical Sciences, Biological Sciences, and Verbal Reasoning, as well as two 30-minute essays. (Id. at 3-5).

         34. Mr. Berger took the MCAT twice, first in 2009 and again in 2010, both times with no accommodations.

         35. In 2009, in anticipation of taking the MCAT, Mr. Berger applied for accommodations but was denied. (Doc. 30, Tr. 57:11-18).

         36. Mr. Berger spent many hours studying for the MCAT. He took study courses and studied independently. Compared to his peers he put in more time and a greater effort studying for the MCAT. (Doc. 30, Tr. 57:23-58:19).

         37. Mr. Berger took the exam in 2009 without accommodations. He utilized many strategies to get through the examination. He found it difficult to complete each section, particularly the verbal reasoning section. He found that he wrote in many random answers because he was unable to complete the exam. (Doc. 30, Tr. 58:20 - 60:3).

         38. Due to being unable to complete substantial portions of the MCAT, Mr. Berger was not able to demonstrate his knowledge and skill when taking the 2009 MCAT. (Doc. 30, Tr. 60:4-7).

         39. Mr. Berger's total score on the 2009 MCAT was 25, placing him in roughly the 45th to the 51 st percentile of all individuals who tested when he did. MCAT Score Reports (DX 24-4). His verbal reasoning score fell in the 27th to the 37.8th percentile and his writing score fell in the 11.9th to the 35.1 st percentile. (PX 55).

         40. Mr. Berger requested accommodations when he took MCAT a second time in 2010 based upon a learning disability diagnosis. Request (DX 2ID). The test administrator, the Association of American Medical Colleges ("AAMC"), denied his request, noting, among other things, that his 2009 "non-accommodated MCAT score was solidly average even compared to the elite group who take the MCAT." See AAMC Denial Letter (May 2010) (DX 21E).

         41. Mr. Berger requested reconsideration of AAMC's denial of accommodations in June 2010, supported by a report of additional testing done by Cheryl Beach, Ph.D. AAMC again concluded that accommodations were unwarranted. See MCAT Letter at 1 (July 13, 2010)(DX9atCMB-0176).

         42. Mr. Berger put forth a greater effort studying for the MCAT in 2010. He studied for nearly a year. His study efforts included taking a study course and working on strategies to optimize his ability to get through the questions as quickly as possible. He typically studied three to five hours a day for the MCAT. (Doc. 30, Tr. 62:7-63:3).

         43. Mr. Berger utilized a different strategy for taking the MCAT in 2010. He testified that his test-taking strategy on the verbal section of the 2010 MCAT exam was "'to actually not read the passages at all" and "just read the questions" that followed each passage. (Doc. 30, Tr. 63; Tr. 65 (stating that his "strategy" was "just reading the questions and not reading the paragraph"). He would read the questions that followed lengthy passages, and he would quickly attempt to pick the best answer by reading a couple of sentences in the paragraph. He attempted to take educated guesses based on his limited review of the questions and passage. (Id.).

         44. Mr. Berger's verbal reasoning score increased to the 67.8th to the 83.4th percentile. His physical science results declined to the 11.6th percentile to the 23.8th percentile, and his biological science score declined to the 26.8th percentile to the 41.9th percentile. (PX 30). 2010 MCAT Score Report (DX 24-4).

         45. Mr. Berger's second MCAT score placed him roughly in the 38th-44th percentile. MCAT Score Reports (DX 24-4).

         E. American University of the Caribbean School of Medicine

          46. Mr. Berger did not gain admission to U.S. medical schools but was able to gain admission to AUC.

         47. When Mr. Berger started medical school at AUC, he applied for accommodations, which entailed submitting his documentation to the staff in charge of reviewing accommodation requests. (Doc. 30, Tr. 67:7-14).

         48. AUC approved accommodations including 50% extended time on tests and exams. (Doc. 30, Tr. 67:13-23).

         49. Additionally, in order to get through the reading material in medical school, Mr. Berger utilized different assistive technologies such as text to speech. (Doc. 30, Tr. 67:24-68:4).

         50. During Mr. Berger's AUC matriculation, he took several exams. He took computerized multiple-choice exams that were prepared by professors. He also took "Shelf exams, which are medical school subject matter computerized exams prepared by the NBME. Mr. Berger received 50% extended time for both the medical school prepared exams and the Shelf exams. He passed each of the Shelf exams. (Doc. 30, Tr. 68-69; 94-95); (PX 42).

         F. Mr. Berger's Speech, Language, and Psychoeducational Evaluations

         51. Mr. Berger has impairments in reading, processing, and attention. He testified that with anything that involves reading, he needs to seek out ways to use assistive technologies such as audio books or text to speech. (Doc. 30, Tr. 32:16-33:15).

         52. Mr. Berger testified that on standardized exams, because he is not able to read fast and comprehend, he runs out of time when extended time accommodations are not provided. (Doc. 30, Tr. 33-34).

         53. Mr. Berger was seen by Sharon Collins, M.S., a speech language pathologist, when he was in kindergarten because his parents were concerned about his language skills. Ms. Collins administered assessments relating to Mr. Berger's articulation skills, language development, auditory processing, and ability to remember and reproduce letters in a specific order. See Speech and Language Evaluation Report at 2-3 (PX 16 at ¶ 000239-240). Her clinical impressions were age-appropriate articulation and expressive language skills; delayed receptive language abilities in the areas of auditory closure, processing complex directions and statement; and delayed written language skills. (PX000240).

         54. Mr. Berger was next evaluated in 1994, when he was in the second grade. Jeanne Artner, Ph.D., interviewed Mr. Berger and his mother and administered various academic skills assessments. See Psychological Test Report at 1-4 (PX 17 at PX000243-246). Mr. Berger "earned average range standard scores" and performed at his grade level. (Id. at 5); (PX000247). There were some discrepancies between his academic skills and his Full-Scale IQ that "could lead to him being classified as a student with learning disabilities." (Id.). Dr. Artner did not specifically diagnose a learning disability. (See Id. at 8-9); (PX000250-51); (DX 24, Lovett Decl. ¶ 32). Dr. Artner recommended that Mr. Berger be "enrolled in the special classes for gifted and talented students" if he returned to public school. Artner Report at 9 (PX000251).

         55. Dr. Artner reported that some of Mr. Berger s behaviors during the evaluation "raised the possibility that he might have Attention Deficit Disorder without Hyperactivity." Id. She recommended that his mother "discuss the behaviors with a physician" if she had concerns in that regard. (Id. at 9); (PX000251). Dr. Artner did not diagnose Mr. Berger as having ADD or ADHD.

         56. Mr. Berger was next evaluated in early 2003, by Alexander Smith, Ed.D., ABPP. Mr. Berger was a junior in high school, and he was "concerned about doing well" on his college admission test and wanted "assistance around documenting any learning disorder so that accommodations might be appropriately applied." Psychoeducational Evaluation Report at 8 (2003) (PX 23 at PX000274).

         57. Dr. Smith administered a battery of assessments to Mr. Berger that are intended to assist in diagnosing learning and attention disorders. Id. (PX000267). Based on those assessments. Dr. Smith concluded that: (i) "Brendan currently functions in the Superior to Average Range of intelligence"; (ii) "Significant discrepancies exist between areas of intellectual functioning"; (iii) "Greatest deficits are noted in processing speed, affecting timed tests"; (iv) "Brendan demonstrates discrepancies between ability and achievement in Written Expression but not within Ohio LD Guidelines"; and (iv) "There do not appear to be problems of vigilance or distractibility with continuous performance tasks," but the problem of distractibility is still evident both subjectively and qualitatively in organizing and sticking to a task. (PX 23 at PX000267, 271). Dr. Smith reported that "given the difference between Verbal and Performance portions of this assessment (19 point discrepancy), and for the statistically significant discrepancy between Verbal IQ and Written Expression measures, further consideration could be achieved by the admissions and release committee, and an 'override' could be considered, resulting in a possible qualification for special education assistance." (PX000272). Dr. Smith also reported that the "results of this psychoeducational evaluation indicate that while he has very superior verbal and conceptual abilities, there are significant problems in speed of processing and working memory which affect his written language skills in particular." (PX000274).

         58. Dr. Smith provided a suggested diagnosis of "Learning Disorder of Written Language 315.2 (DSM-1V)." (PX000274).

         59. Mr. Berger returned to Dr. Smith in 2008 to obtain "an updated psycho-educational re-evaluation that may allow him to seek accommodations" on the MCAT. Psycho-educational Re-evaluation Report at 1 (2008) (PX 29 at PX000292).

         60. Dr. Smith's 2008 report began by summarizing the findings he made in 2003: Mr. Berger's "verbal ability was in the superior range, his performance in the average range, [and] his full-scale IQ in the high average range." Id. (PX000293). He then discussed the results from the assessments he administered as part of his latest evaluation. The WAIS-III results indicated that Mr. Berger continued to function "in the Superior to Very Superior range of intelligence," with some "relative strengths in verbal reasoning and comprehension skills" and some "relative weaknesses in memory and processing speed abilities." Id. (PX000296). "[R]elative to his overall abilities," Mr. Berger processed "new visual material less efficiently," but "psychometrically" his "scores are still in the average range." Id. (PX000297). His W1AT- II results showed no issues in the academic areas of Reading or Mathematics. Id. (PX000298). Mr. Berger "continue[d] to show a major discrepancy between his overall ability and his use of written language." Id. "[A]lthough his Written Language score falls in the low average range, it is significantly below the expected level for his ability." Id.

         61. Dr. Smith reported that "there are a number of cognitive symptoms which, when taken together, resemble an attention deficit disorder without hyperactivity. . . . While indeed there may be a blend of ADD and learning disability symptoms which overlap clinically, there is a preponderance of evidence in the direction of a specific learning disability. (Given that ADD itself is also a diagnostic category under which the ADA law may apply, a further discussion of differential considerations may be a bit moot)." Id. (PX000299-300).

         62. Dr. Smith noted that "[a] final set of issues, as set forth in the MCAT's Documenting Learning Disabilities guidelines for examiners, concerns "substantial limitation' which impacts specific areas of function based in an 'average member of the population.' The problems of processing speed, visual memory, and written language do indeed continue to disrupt Mr. Berger's performance, especially during test-taking. This is particularly true in the area of written composition. While his score for written language score falls within the average range, it is in the low end, barely within a standard deviation of the mean. DSM-IV-TR criteria for the Disorder of Written Expression call for writing skills to be below those expected for someone his age, intelligence and age-appropriate education. The criteria further specify that these skills significantly interfere with academic achievement or activities of daily living that require the composition of written text. They also require that such deficits are in excess of any sensory limitations. These conditions apply to Mr. Berger's case." Id. (PX000300).

         63. Dr. Smith opined that "Mr. Berger has been able to attain his current academic performance because of the accommodations for a learning disability. As noted above, he has received these accommodations throughout his time at the University of Cincinnati, and in his final two years in high school. In comparison with the average student taking the MCAT, it is unlikely that he could be fairly evaluated, or be able to accurately demonstrate his capabilities without being given extra time. In my opinion, based upon the clinical data of this assessment, he is eligible, under the ADA for appropriate accommodations for the MCAT for a learning disability for written language. He would be best served by allotting him time and a half for essay questions." Id. (PX000300).

         64. Dr. Smith's 2008 report reflects a diagnosis under the Diagnostic and Statistical Manual of Mental Disorders ("DSM"), Fourth Edition, of "Disorder of Written Expression"" (DSM-IV 315.2) and "Rule out" Attention Deficit Disorder, NOS (DSM-IV 314.9). Id.

         65. Mr. Berger went to see Dr. Smith a third time, in March 2010, after his initial request for accommodations on the MCAT exam was denied by the Association of American Medical Colleges. Dr. Smith administered additional assessments relating to possible learning disorders and ADHD to redress the deficiencies cited by the AAMC in its letter denying Mr. Berger s request for accommodation and to provide further clarification of the nature of Mr. Berger's learning problems. See Addendum for Psycho-educational Evaluation for MCAT Accommodations (2010) (PX 32) (PX000310). Dr. Smith reported that the additional testing demonstrated Mr. Berger's "need for accommodations by not only re-establishing lowered scores for written expression, but also by expanding the parameters of his disabilities to include significant deficits for fluency in reading and math" Id. (emphasis added).

         66. In reporting test results. Dr. Smith noted that "scores with asterisks indicate significantly lowered scores when compared to the general population and not only to discrepancies between Mr. Berger's abilities and academic achievement, as required in the [AAMC's] letter of 10/28/10.” Id. (PX000310) (emphasis in the original). These included scores on academic fluency, reading fluency, math fluency, and writing fluency on the Woodcock-Johnson III Tests of Achievement. Dr. Smith reported that "[s]ignificantly lowered W-J III scores, each more than one standard deviation below the mean for his age range in the normal population, exist in reading fluency, math fluency, and academic fluency" and these "deficits are consistent with those original results in the 10/2/08 [report] where lowered speed of processing in the intellectual assessment also revealed a similar trend." Id. (PX000311, PX000314).

         67. On the Nelson-Denny Reading Test Form-G, Mr. Berger's score on reading comprehension was “significantly lower." Id. (PX000312). Dr. Smith found it "noteworthy that Mr. Berger encountered the same types of problems of visual fatigue on this particular timed test of comprehension that he has addressed in the previous [2008] assessment. Essentially, Mr. Berger fails to complete timed tests of lengthy text where comprehension tasks are required. As discussed below, this is now understood as a form of dyslexia. It is a pattern of 'labored reading' resulting from incomplete but necessary over-learning of phonological processing to make word recognition and association more automatic. While his WJ-III scores do not show major inadequacies in letter-word recognition itself, the slowing of this phonological process appears to affect the speed of comprehension." Id. (PX000312) (emphasis in the original).

         68. Dr. Smith reported that the "results from the Nelson-Denny Reading Test, Form G Extended Time also support the presence of a learning disability, based upon his lowered score for comprehension for timed portions. This is a consistent result seen across several of the tests. Mr. Berger s problematic 'checking' slows his fluency of performance and organization across reading, math and written language. When these deficits in checking are further considered, it may be that an underlying problem with accurate phonemic encoding affects subsequent word recognition which in turn prolong the time necessary for comprehending the longer volumes of text required in timed sequences. This finding may explain an overall trend in significantly lowered timed portions and clarify further his need for accommodations. The scores in themselves indicate a lowered achievement when timed sections are utilized. As ...

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