Melnick, Donald E. MD
Dr. Melnick is president, National Board of Medical Examiners, Philadelphia, Pennsylvania.
Correspondence should be addressed to Dr. Melnick, NBME, 3750 Market Street, Philadelphia, PA 19104; telephone: (215) 590-9546; e-mail: firstname.lastname@example.org.
Editor's Note: This is a commentary on Smith WT, Allen WL. Implications of the 2008 amendments to the Americans with Disabilities Act for medical education Acad Med. 2011;86:768–772.
In this issue, Smith and Allen1 outline the potential effects of the 2008 amendments to the Americans with Disabilities Act (ADA) on medical education. Although the ADA Amendments Act (ADAAA) did not change the basic definition of “disability” or the comparison group against which an individual's impairment is to be measured,* the authors accurately note that Congress relaxed certain court-imposed limitations on what must be shown to establish that someone is “disabled” within the meaning of the ADA and, therefore, eligible to seek protection under the law. The authors outline some of the potential implications of the ADAAA for medical schools in their admissions processes, in providing accommodations to individuals with disabilities during their medical education, and in assessing the skills and qualifications of students, both intramurally and in examinations for medical licensure and specialty certification.
I disagree with the authors' analysis of exemplar cases, particularly Jenkins v NBME. The appellate court merely remanded the case to the district court because of the latter's reliance on the Toyota decision, repudiated in the ADAAA; the court of appeals disclaimed any “appellate attempt to give more precise definition in the abstract to the revised Congressional language.”2 In Wong, nothing suggests that the court's decision would preclude a defendant from arguing that the plaintiff does not have a qualifying disability. However, I agree with the authors' central conclusion about ADA compliance: The medical profession, including its academic institutions, should focus more on the appropriateness of accommodations in the context of “the ultimate relationship of medical education to the practice of the profession of medicine”1 than on the procedural issues of ADA eligibility that prompted the passage of the ADAAA. The profession has made little progress since the ADA took effect in 1990 in reaching consensus on the minimum essential physical and cognitive requirements of being a physician that cannot be compromised without fundamentally threatening patient well-being, our institutions' educational mission, and the profession's social contract. The intention to broaden the coverage of the ADA with the ADAAA should refocus efforts on deciding when accommodations are warranted in the course of undergraduate and graduate medical education and physician licensure, all of which share the goal of producing skilled individuals who can deliver safe and effective health care.
The Profession's Conflicting Obligations
Codes of medical ethics have emphasized the primacy of patient well-being since the time of Hippocrates, particularly when patient needs are in conflict with those of the physician. For example:
The principle of primacy of patient welfare is based on a dedication to serving the interest of the patient. Altruism contributes to the trust that is central to the physician–patient relationship. Market forces, societal pressures, and administrative exigencies must not compromise this principle.3
At the same time, the profession of medicine for millennia has recognized its obligation to guide aspiring physicians into the profession, and our ethos as a helping profession naturally leads us to support individuals with disabilities, including those who seek to join the profession of medicine. Although there are individuals whose disabilities prevent them from achieving the goal of becoming a licensed physician, there are many individuals with disabilities who can contribute significantly to the medical profession. Moreover, individuals with disabilities who successfully navigate the rigors of medical education and licensure may well have a deeper understanding of and compassion for the needs of certain patients.
It is in the collision of these two professional imperatives that medicine, and its educational establishments in particular, are challenged by the ADA. On the one hand, our professional culture demands that we provide an effective learning environment for all students. Our professional values also encourage us to support aspiring individuals who pursue careers in medicine despite physical or cognitive limitations. On the other hand, our desire to help such individuals pursue careers in medicine and their desire to become physicians must not “compromise patient well-being, the educational missions of our institutions, or the essential functions of the profession and its social contract.”1 State medical licensing authorities feel this inherent tension just as keenly. Starting with the questions they ask of prospective candidates on license applications, regulators seek meaningful insight into conditions limiting the physician's current ability to practice safely as well as the physician's self-awareness of such limitations.4
Further, when we evaluate whether accommodations are warranted for a particular individual with a diagnosed impairment, we must also attend to equity for those not receiving accommodations. Accommodations are intended to give individuals with disabilities an equal, not a superior, opportunity. Although the ADAAA requires that we accommodate disabled students, it does not require programs to provide accommodations that are not reasonable or that would fundamentally alter the purpose of the educational or assessment program.5 Indeed, Congress reinforced this fact by including in the ADAAA a provision stating that nothing in the act is intended to alter the long-standing proposition that “modifications in policies, practices, or procedures, including academic requirements in postsecondary education” need not be made if they would “fundamentally alter the nature of the goods, services, facilities, advantages, or accommodations involved.”6
The profession has a responsibility, not often evident in court cases related to the ADA, to place the interests of patients above the interests of the aspiring student.
Accommodating Disabilities Without Fundamental Alteration of Education or Assessment
Although it is appropriate under the ADA for medical education institutions to deny accommodations that are not reasonable or that make fundamental alterations to the educational program, the profession has done little to develop consensus on what might constitute a fundamental alteration in the preparation and assessment of a physician. The Liaison Committee on Medical Education (LCME) requires that each medical school formally articulate “technical standards for the admission of applicants with disabilities”; in the past five years, only 6% of medical schools undergoing full accreditation surveys have been cited for failure to meet this standard (personal communication, D. Daniel Hunt, cosecretary, LCME, December 20, 2010). However, there are no similar standards for graduate medical education, and there is no national consensus among state licensing authorities regarding essential physical and cognitive capabilities for physicians, even if a minimum set of defined capabilities exists. In those instances where such standards have been identified, little progress has been made in accumulating evidence to document whether a specific accommodation does or does not represent a fundamental alteration. Courts have established few precedents that address the issue of fundamental alteration.†
Our current educational model requires each physician to demonstrate a minimum proficiency in the undifferentiated practice of medicine. What are the requisite physical and cognitive abilities? Do they include ability to auscultate (adequate hearing), ability to palpate or suture (motor and sensory facility), ability to interpret visual information, such as the appearance of skin lesions and retinal images (visual acuity and color discrimination), ability to make decisions under time pressure in a chaotic environment (rapid cognitive processing, attention, and concentration), and/or ability to gather information accurately from and convey information to and about patients (speech, hearing, written communication)? We might reach consensus that an undifferentiated physician should be able to perform all of these core functions and that accommodations that circumvent their performance in education or assessment represent fundamental alterations.
However, it is easy to envision specific physician practice roles in which one or more of these abilities would be irrelevant. We might be tempted to argue that availability of such limited practice roles, and the willingness of some states to provide limited licensure for physicians with specific impairments, allows accommodations that would circumvent the demonstration of even core abilities. If we agreed that limited practice might be warranted for individuals with certain disabilities, we would still need to define the requisite capabilities for each domain of authorized practice. And, if we allow accommodations for these core abilities, will patients be placed at risk when receiving care during the generalist graduate medical education experience? Are we willing to bypass this experience as a fundamental requirement of becoming a physician?
Medical education has made progress in creatively providing accommodations for students with disabilities that presumably do not represent fundamental alterations of the educational experience. Hosterman and colleagues7 provide an overview of a rich set of tools for providing accommodations in the medical education environment. Testing programs—including MCAT, United States Medical Licensing Examination, and specialty certifying examinations—have diligently sought ways to provide accommodations that do not represent fundamental alterations, mislead score users, or create inequities for persons without disabilities. These organizations are often criticized for being too strict, but much is at stake in the roles they play. The overriding goal of medical education and licensure is to produce qualified physicians who possess the knowledge and skills to be entrusted with the health and well-being of other individuals. In litigation over accommodations requested by a medical school student or graduate, who is the advocate for the health and welfare of the public?
The Challenge: An Evidence-Based Approach to Accommodations
Only when our profession engages with these questions will medical schools, residency programs, national assessment programs, and licensing authorities be able to coherently meet their obligations under the ADA while at the same time respecting the primacy of patient interests. We should engage in a national dialog and research endeavor to determine whether we can agree on an evidence-based model of essential abilities for medical practice. Then, we should seek to support individuals with disabilities in any way possible that does not fundamentally alter our ability to teach and assess these essential abilities. These activities should also include research necessary to ensure that the accommodations in fact level the playing field rather than provide an unwarranted advantage or result in licensure of individuals who are not fully capable of delivering safe health care.
Failure to address these questions effectively will almost certainly lead to confusion about what accommodations are reasonable for those wishing to practice medicine, particularly in an environment where the cultural and legal perceptions of disability have expanded as exemplified in the ADAAA. If we do not focus our attention on evaluating accommodations requests in a manner that recognizes the primacy of patient well-being and the profession's social contract, we abrogate our core responsibility to patients. Disabled individuals with the skills and abilities to deliver safe and effective health care should be actively supported at every stage of the educational continuum, and more should be done to increase the number of qualified individuals with disabilities in the ranks of the profession. In all cases, however, the ultimate and overriding goal must be promoting and protecting the health and welfare of the patients we take an oath to serve.
The author is grateful to Shelley V. Green, JD, for her editorial comments.
The author is a full-time employee of the National Board of Medical Examiners.
1 Smith WT, Allen WL. Implications of the 2008 amendments to the Americans with Disabilities Act for medical education. Acad Med. 2011;86:768–772.
2 Jenkins v National Board of Medical Examiners, US App. LEXIS 2660 (2009).
3 Medical Professionalism Project. Medical professionalism in the new millennium: A physician's charter. Project of the ABIM Foundation, ACP-ASIM Foundation and the European Federation of Internal Medicine. Ann Int Med 2002;136:243–246.
5 Powell v NBME, Univ Conn, et al. 364 F3d 79 (2004). U.S. App.
6 Americans with Disabilities Act, 42 USC §12210(f) (1990).
7 Hosterman JA, Shannon DP, Sondheimer HM. Medical Students With Disabilities: Resources to Enhance Accessibility. Washington, DC: Association of American Medical Colleges; 2010.
* The ADAAA was enacted in response to a series of decisions by the United States Supreme Court which imposed relatively strict standards for establishing that a person is disabled within the meaning of the ADA. All of the cases arose in the context of employment, not higher education or professional licensure. The amendments are intended to make it easier for an individual to show that he or she is disabled for purposes of being covered by the ADA. The central definition of “disability” has not changed, however; a person must still show that he or she has a diagnosed physical or mental impairment that substantially limits the individual's ability to perform one or more major life activities. Likewise, the law has not changed the method of determining whether impairment results in “substantial” limitations for a given individual; as before, that determination is made by comparing the ability of the individual in question to perform the applicable life activity with the ability of most people in the general population to perform that same activity. The relevant comparator group remains “most people in the general population.” Cited Here...
† Southeastern Community College v Davis, a 1979 Supreme Court case under the Rehabilitation Act of 1973, held that the college was not required to change its nursing program or provide accommodations to allow an individual with a hearing disability to participate. Also under the Rehabilitation Act, in 1992, the First Circuit Court of Appeals held in Wynne v Tufts that a medical school's failure to offer an alternative format for a multiple-choice exam did not constitute failure to make a reasonable accommodation. Cited Here...