AAMC Reporter: September 2008

Federal Proposals Could Affect Testing, Fraud Lawsuits

Two separate federal proposals currently under the radar of many in the academic medicine community may weaken the integrity of standardized tests such as the Medical College Admission Test (MCAT), and make it easier to sue large organizations that receive government grants.

Proposed changes to the Americans with Disabilities Act (ADA) would expand the definition of "disability" in a way that might substantially increase the number of individuals requesting special testing accommodations. Revisions to the False Claims Act (FCA) would create more liability for certain institutions in fraud cases, increase the ceiling on financial penalties that can be granted in such lawsuits, and remove certain legal defenses against so-called qui tam suits, in which individual plaintiffs are eligible to receive all or part of any financial penalty imposed by a court.

"The revisions to both of these laws could have farreaching, unintended consequences for academic medicine," said AAMC President and CEO Darrell G. Kirch, M.D. "The FCA revisions could make teaching hospitals, universities, and others more vulnerable to frivolous lawsuits. The ADA revisions could result in a greater number of accommodations on the MCAT exam, which could raise questions about score comparability, fairness, and, potentially, issues of public health and welfare. Unfortunately, the good intentions in these cases are offset by very serious problems."

The ADA defines an individual with a disability in part as someone who has difficulty carrying out what are termed "major life activities." Under the proposed revisions, difficulties with "thinking" and "concentrating" would be classified as "major life activities," meaning anyone who presents with a specific diagnosis pertaining to these functions could theoretically receive special testing accommodations. Conditions such as attention deficit/hyperactivity disorders and various learning disabilities could receive greater consideration under the ADA as a result of the revisions. Standardized testing organizations, including the AAMC, the National Board of Medical Examiners, and the Federation of State Medical Boards say that the new rules would be difficult to implement fairly and could lead to a significant increase in requests for more testing time and other special accommodations.

"It is far more difficult to confirm the existence of mental impairments and to evaluate the resulting functional limitations than it is when dealing with physical impairments," said the AAMC in a letter to lawmakers. "The number of individuals diagnosed with [learning disabilities] has increased significantly in the past 20 years, and it will increase further should the [ADA revisions] be enacted…If someone improves his or her test scores because of extra testing time or other accommodations that were granted based upon a questionable or inaccurate diagnosis, or an impairment that does not substantially limit the person's ability to learn, significant fairness issues arise."

No one in the academic medicine community seems to believe that a person with disabilities cannot or should not become a physician. However, some students diagnosed with difficulties in thinking or concentrating, who then receive special testing accommodations as a result, may eventually weaken the physician pool, according to medical education leaders.

"I think accommodating disabilities is a very important thing to do," said Lois Margaret Nora, M.D., J.D., president of Northeastern Ohio Universities Colleges of Medicine and Pharmacy. "What you can't lose sight of are the critical attributes of the physician workforce, and ensuring that these attributes are adequately evaluated in a standardized setting."

Under the proposed False Claims Act revisions, any person submitting financial claims to a grantee or other recipient of federal funds, in addition to the actual recipient of the funds, could be susceptible to federal fraud lawsuits. It could also greatly increase the amount of money that a plaintiff could receive from a court decision. One prime interpretation of the revision holds that if a plaintiff claims that $10,000 of a $100,000 government grant was misspent, the court could now award up to triple the amount of the entire $100,000 grant, rather than triple the amount that was allegedly misspent. The revisions would also exempt qui tam plaintiffs from a federal requirement that those who claim fraud in federal court support those claims with a specific level of detail. The current FCA covers "any holder of money that was once federal," which means teaching hospitals, as recipients of Medicare and other federal funds, and medical schools, as recipients of research grants, are potentially affected.

On the whole, the FCA is intended to make it easier for citizens to act as "whistleblowers" against federal contractors they believe are defrauding the government. Persons filing under the act stand to receive a portion of any recovered damages.

"[The proposals] will impose enormous burdens on nonprofits, universities, hospitals, and businesses of all sizes," a letter to lawmakers from the AAMC and 19 other organizations stated.

In July, the U.S. Supreme Court narrowed the application of the FCA. While the specific legal impacts of the decision remain unclear, the court's decision centered on an argument over whether federal government contractors and their employees can be held liable under the FCA for fraudulently obtained funds. The Supreme Court unanimously said yes.

Congress is expected to pass the ADA revisions and send them to the president's desk in the fall, according to legislative analysts. The FCA revisions, meanwhile, are not expected to advance to House and Senate votes before the end of the year.

—By Scott Harris