International medical graduates can run into several significant issues with their certification for the USMLE Step 3 exam, taking the exam, and then using the passing results to qualify for U.S. state medical board licensure. If you have faced and lost such an issue, preventing you from proceeding with the exam or with licensure after passing the exam, you may have an appeal available to you under ECFMG, USMLE, or state medical board protective procedures. A successful appeal may get your state licensure back on track.
An appeal can be your best, last-chance effort to save your U.S. medical practice and career. Don't pursue an appeal on your own or with unqualified attorney representation. Your U.S. medical practice and career are worth far too much to risk losing an appeal, too. Instead, retain the Lento Law Firm's premier Professional License Defense Team's highly skilled and effective attorneys to pursue your ECFMG, USMLE, and state medical board appeals. Call 888.535.3686 or use our contact form now for your best appeal advocacy and outcome.
The Nature of an Appeal
Before considering the specific appeals that ECFMG, USMLE, and state medical board procedures authorize, consider the basic nature of an appeal. An appeal involves the losing party's request to a higher authority that the higher authority reverses the decision below that the losing party appeals. As an international medical graduate, you may, for instance, have been unable to convince ECFMG officials to qualify you to sit for the USMLE Step 3 exam. Your appeal of that decision would take your matter from the ECFMG's Credentials Committee to its Review Committee for Appeals. The members of each ECFMG committee would be different. Different officials with different experiences and perspectives would decide whether the first officials erred in making their decision denying you certification for the USMLE Step 3 exam.
An appeal is thus like the proverbial second bite at the apple. You had one chance before the initial decision-maker. You lost that chance for whatever reason. Now, you get a second chance before a different decision maker, who may not hold the same biases or conflicts of interest that the first decision maker exhibited or who may have broader, deeper, or finer judgment. You also get the chance to point out the first decision-maker's errors. Appeals attempt to cancel out errors induced by anomalies in the skills, experience, judgments, and opinions of decision-makers.
Common Grounds for an Appeal
An appeal is not quite, though, simply a second chance at a better, more favorable decision. Technically, appeals must generally identify one or more errors in the decision below that affected the outcome. An appeal that simply asks the appeal decision maker to decide differently is likely to be unsuccessful. Instead, the appeal must generally show that the first decision maker made errors, and not merely harmless errors but instead material errors that led to an incorrect outcome. While the errors may be many and various, depending on each case, common errors sometimes serve as grounds for a successful appeal, including the following.
A Decision Contrary to Law
The first common ground for appeal is that the decision below was contrary to law. Section 120.68 of the Florida Administrative Procedure Act, for instance, “The agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action[.]” An example would be if the state medical board determined that your criminal misdemeanor conviction for writing an insufficient funds check long before attending medical school constituted a disqualifying conviction for licensure if the state statutes on disqualifying convictions clearly provided that only felony convictions or convictions for violence crimes or crimes directly related to medical practice were disqualifying grounds for licensure.
Errors Considering Immaterial or Unduly Prejudicial Evidence
Errors considering evidence that is immaterial or the undue prejudice of which substantially outweighed the modest materiality are another ground for an appeal. Irrelevant matters could, for instance, include a graduate's disfavored political party, religious affiliation, or sexual orientation. Unduly prejudicial matters of arguable relevance could include a graduate's prior substance abuse or minor criminal convictions, long since rehabilitated. If the international medical graduate's appeal shows that the ECFMG, USMLE, or state medical board officials considered such evidence in denying the graduate the certification, examination, or licensure that the graduate seeks, then the appeal body could reverse the decision below and grant the graduate the relief the graduate seeks.
Errors Reaching Decisions Without Supporting Evidence
A second ground for a successful appeal can be the absence of evidence in the record below supporting the allegations that led to the international medical graduate's denial of certification, examination, or licensure. ECFMG, USMLE, and state medical board officials must generally have evidence supporting the grounds on which they deny certification, examination, or licensure. Section 120.68 of Florida's Administrative Procedure Act, for instance, permits the reversal of an agency decision when the decision's factual findings are not “supported by competent, substantial evidence in the record” of the matter. Complainants can't generally just make up the allegations, expecting officials to accept them. The officials must generally have a testifying witness, document, or circumstantial evidence that the graduate did as the complainant alleges. For instance, a USMLE official who refused to validate and release a passing Step 3 exam score based on cheating allegations would generally need the statement or testimony of an examinee or test center official attesting to first-hand observations of the cheating, or video surveillance, electronic proof, or other documentary evidence of the cheating. Without that supporting evidence, a decision that the graduate cheated might well be reversed on appeal.
Bias or Prejudice in the Decision Below
A third common ground for a successful appeal is that the decision-maker below exhibited bias or prejudice in reaching the decision. Bias or prejudice may involve the graduate's race, ethnicity, national origin, religion, age, sex or sexual orientation, or disability, among other protected classes and characteristics. An appeal official or panel may draw bias or prejudice from statements the ECFMG, USMLE, or state medical board decision maker made during the course of the hearing or in the decision itself, reflecting such bias or prejudice. One rarely infers bias or prejudice from an adverse decision alone, even one against the great weight of the evidence, without some expression of the bias or prejudice, such as a joke, slur, epithet, or the like. But the fact that the decision may well not have been adverse in the absence of bias or prejudice, and the better weight of the evidence in favor of the graduate, can confirm bias or prejudice as a proper appeal ground on which to reverse the adverse decision.
Conflict of Interest in the Decision Below
A fourth common ground for a successful appeal is that the ECFMG, USMLE, or state medical board official making the decision below or the investigator prosecuting the charges had a conflict of interest that may have turned the outcome against the international medical graduate. A conflict of interest is one that weighs against the official's independent judgment. For instance, if the decision maker below earns more money or has some other form of financial windfall from finding against the international medical graduate, then the decision maker would have a conflict of interest. For another example, if the decision maker had dual roles, such as the role of prosecutor and judge or jury, then an appeal panel might consider those roles to present a conflict of interest. If the appeal shows that the decision maker's personal or other interests may have influenced the decision against the graduate, then the appeal panel may reverse the decision and grant the graduate the requested relief if the record clearly supports it.
Errors Exceeding the Scope of Authority
Another common ground for a successful appeal is that the ECFMG, USMLE, or state medical board official making the decision below exceeded the official's authority. ECFMG and USMLE policies and procedures and state professional licensing laws grant their officials limited express authority. An official should carry out the assigned duties relative to certification, examination, and licensure only with the granted authority. The ECFMG Policies and Procedures on Irregular Behavior, for instance, state that an international medical graduate may appeal a decision when “having a reasonable basis to believe” that the Credentials Committee “did not act in compliance” with the ECFMG's authorizing policies and procedures. For example, if the USMLE officials withheld a passing Step 3 exam score because they believed that the graduate might have a character issue relative to domestic violence allegations in a divorce complaint, those officials may well have exceeded their authority. Character and fitness issues of that kind may be for the state medical board's character and fitness committee, not for a medical examination official.
A Decision Clearly Against the Evidence's Weight
Another common ground for a successful appeal is that the ECFMG, USMLE, or state medical board decision below was against the great weight of the evidence on the record. The ECFMG's Policies and Procedures on Irregular Behavior, for instance, expressly authorize an appeal when the Credentials Committee's decision was “clearly contrary to the weight of the evidence before it.” Your ability to appeal based on the evidence's weight is another reason why you should retain us for your formal hearing, to make the best record possible with all your best evidence. ECFMG, USMLE, or state medical board officials may have some evidence against you, even if only weak evidence or evidence lacking trustworthiness and credibility. But if we can present your mountains of convincing evidence in defense, then misconduct findings based on the weak evidence may be clearly contrary to the weight. We could then appeal and obtain a reversal in the unfortunate event of an initial adverse decision.
Due Process Violations
Another common ground for a successful appeal is a violation of your due process rights. State medical boards generally owe their applicants constitutional due process for licensure when making decisions affecting the applicant's property or liberty interests. An international medical graduate likely has a property and liberty interest in practicing medicine in the graduate's chosen U.S. state. Due process includes your right to notice of the misconduct charges sufficient for your defense and an opportunity for a hearing before a qualified and independent decision maker. The ECFMG and USMLE may owe similar due process obligations. Due process violations may occur on any of the following common grounds:
- the officials taking action against you fail to tell you what they allege you did wrong as a basis for their actions, especially after you demand a detail of the charges;
- the officials taking action against you do not give you timely notice of the charges and evidence against you until it is too late for you to defend yourself;
- the officials taking action against you withhold exonerating or mitigating evidence from you, especially when you request all material evidence relating to the charges;
- the officials taking action against you do not give you adequate time to retain us, consult with us, and let us help you prepare and present your defense case;
- the officials taking action against you refuse to offer you a formal hearing at which to appear with our assistance, where you can testify to your account and let us cross-examine adverse witnesses;
- the officials taking action against you frustrate or prohibit the attendance of your witnesses, refusing to issue subpoenas compelling or enabling their attendance or
- the officials taking action against you present witnesses whom they know to be testifying falsely or documents they know are false or altered in material respect.
The Challenge of a Successful Appeal
A strong and successful appeal generally requires more than simply pointing out to the appeal panel the errors the ECFMG, USMLE, or state medical board decision below committed, even if those errors are sufficient legal grounds for reversal. A successful appeal also generally requires the strategic exercise of refined judgment to make a compelling case for reversal of the decision below. The challenge of an appeal is that the appeal officials who will review your submission often know the decision makers below. Those appeal officials may hold the decision-makers below in high regard or at least respect their position to make credibility judgments from personal observation of the witnesses. Indeed, depending on the forum and grounds for the appeal, the appeal body may have to resist substituting its judgment for the judgment of the hearing officials below on the credibility of witnesses or weight to give the evidence. We can help you make your best case on appeal.
Best Appeal Outcomes
The best form of relief that an international medical graduate may hope to obtain is a reversal of the adverse decision below and a grant of the relief the graduate sought. For instance, if the appeal is from an ECFMG decision not to certify the graduate for the USMLE Step 3 exam and a U.S. medical residency, then the best appeal outcome would be a decision granting Step 3 exam certification and certification for a U.S. medical residency. Likewise, the best outcome of an appeal from a USMLE decision that the graduate cheated on the Step 3 exam would be a decision that the graduate did not cheat and an order releasing the validated, passing exam score. The best outcome of an appeal of a state medical board decision denying your licensure would be an order granting you a medical license. Depending on the record below, the grounds for the adverse action against you, and the grounds for your appeal, you may win everything you need simply through the appeal. Let us help you make the best case for your greatest relief on appeal.
Alternative Appeal Outcomes
An appeal may result in different outcomes. Appeal results are not always all or nothing. You may not simply win or lose your appeal. An appeal official or panel may stop short of providing the appealing international medical graduate with complete relief. Instead, a remand for further proceedings may be the appeal panel's decision. A remand would generally be for the body below to reconsider its decision in light of the appeal body's grounds for remand. If, for instance, the appeal body found that the decision-maker below exceeded permissible authority, then on remand, the decision-maker should decide again based only on the authority that the appeal body held the decision-maker had the power to exercise. If, instead, the appeal body finds that the decision-maker considered irrelevant or unduly prejudicial evidence, then the decision-maker on remand would decide again without considering the evidence.
Some remands result in a different decision. An international medical graduate who initially lost may win on remand. However, other remands result in a proverbial rubber stamp for the initial decision. An international medical graduate who loses initially may lose again on remand. It all depends on the facts, circumstances, and grounds for the remand. Our attorneys can not only make your best case on appeal for full relief. We can also represent you on remand for the best chance to make a better decision. And if you lose again on remand, we may have grounds to appeal again for another reversal and, this time, full relief on appeal.
Risks of Appeals Without Representation
Some international medical graduates or other graduates who represent themselves in ECFMG, USMLE, and state medical board proceedings and lose those proceedings feel competent to pursue their own appeal. Medical graduates have vast medical knowledge and substantial medical skills. Yet individuals without substantial legal training and, beyond basic legal training, specific knowledge, skills, and experience in administrative appeals are generally not qualified for self-representation in licensing appeals. Even bright and highly accomplished medical graduates generally lack legal research, legal writing, and legal advocacy skills, not to mention the necessary knowledge and skills for complex administrative proceedings. Even if you do have substantial law, administrative, advocacy, and procedural skills, exercising those skills on your own behalf can be hazardous. Lawyers have a saying that the lawyer who represents himself or herself has a fool for a client. A litigant needs independent advice, counsel, and perspective. You need our highly qualified representation for your ECFMG, USMLE, or state medical board appeal. Don't take your appeal on your own, risking your medical career in the process.
Risks of Unqualified Appeal Representation
Do not retain an unqualified representative to take your ECFMG, USMLE, or state medical board appeal. Local general practice attorneys, family law attorneys, and real estate attorneys generally lack the procedural knowledge and advocacy skills necessary for professional licensing administrative appeals. Local criminal defense attorneys or civil litigation attorneys will also generally lack knowledge of the special administrative rules, customs, and procedures, as well as the medical licensing bodies and their roles, standards, and internal procedures. An unqualified lawyer can be worse than no lawyer at all. You generally have only one good shot at an appeal. Don't waste it without our proper, highly qualified attorney representation. The attorneys on our Professional License Defense Team know the administrative rules, regulations, customs, and conventions, as well as the medical licensing bodies and their requirements. Get our help with your ECFMG, USMLE, and state medical board appeals.
Appeal Services We Provide
A strong and successful appeal requires more than simply pointing out to the appeal panel the errors the ECFMG, USMLE, or state medical board decision below committed. Appeals are among the most technical of all the things that attorneys do. Appeals generally require multiple steps in precise order, meeting strict deadlines, with each submission in the precisely correct form. A successful appeal also generally requires convincing the appeal official or panel, swaying the appeal decision makers with your authority, addressing the injustice of the result below, and weighing the weight of your rationale. Below are some of the services we provide when making your best appeal arguments for reversal of the decision.
Timely Claiming the Appeal
The first service our attorneys provide in taking your ECFMG, USMLE, or state medical board appeal is to claim the appeal timely. Although the rules differ for each administrative forum, appeals generally require that you claim the appeal within a specific time with a specific document sent by the proper means to the correct appeal official. The ECFMG's Policies and Procedures on Irregular Behavior, for instance, provide, “The notice of appeal must be received by ECFMG within thirty (30) days of the date on which the notification advising the individual of the Medical Education Credentials Committee's decision was mailed to the individual.” Wait too late to file the appeal or send it to the wrong official by the wrong means, and you may have lost your appeal before you even argue it. Our attorneys can ensure a timely appeal.
Obtaining and Transmitting the Record Below
The next service our attorneys provide in taking your ECFMG, USMLE, or state medical board appeal is to obtain the record of the decision below. In the case of an ECFMG irregular behavior proceeding, that record below includes the stenographic record of the hearing before the ECFMG's Credentials Committee. Obtaining the stenographic record may require contacting a court reporter or other official to order the transcript while showing the appeal administrator that you have done so in a timely manner. The record below may also include exhibits and other documents you or others present at the hearing or that the investigation report and file include. Our attorneys ensure that everything you need for your best appeal makes its way into the record that the body below transmits to the appeal officials.
Analyzing the Record Below
We then analyze that record evidence, page by page, until we have identified the grounds for your ECFMG, USMLE, or state medical board appeal. The most important step of the appeal is identifying the grounds for reversal of the adverse decision below. Identifying grounds can take substantial law knowledge, skill, and experience. Choosing the right grounds to advocate among many potential grounds can be the most important strategic decision we make.
Researching and Drafting Your Appeal Arguments
The next service our attorneys provide in taking your ECFMG, USMLE, or state medical board appeal is researching and drafting your appeal arguments. Simply identifying the appeal grounds in the record below is not enough. Our attorneys must also summarize that record accurately with citations to the record, present the law that identifies those grounds as reversible errors, and advocate that law and error in a clear, concise, and comprehensive legal brief. The craft of writing an appellate brief is the highest of lawyer crafts, requiring the greatest skill and experience. Trust our attorneys with your appeal briefing.
Appearing at Oral Argument of Your Appeal
The next service our attorneys provide in taking your ECFMG, USMLE, or state medical board appeal is to appear at any appeal argument on your behalf. Some administrative forums rely on written briefing, while others require briefing but permit oral argument. When our attorneys appear on your behalf at oral argument, we can point out in summary and convincing form why the appeal official or panel should reverse, as our written brief has already shown. Oral arguments of appeals can win or lose cases, just as briefing can win or lose an appeal.
Reviewing and Implementing the Appeal Decision
The next service our attorneys provide in taking your ECFMG, USMLE, or state medical board appeal is to help you review and implement the appeal decision. Appeal decisions can be difficult to interpret. A loss can look like a win, and vice versa. We can help you understand the import of the appeal decision, whether you have gained all or part of the relief you need for your medical licensure. We can also help you see that the appropriate officials and the correct agencies have implemented the appeal decision. If, for instance, your ECFMG appeal reversed an adverse ECFMG decision denying you USMLE Step 3 certification, we can ensure that USMLE officials recognize your appeal win and let you take the Step 3 exam. If, for another example, the appeal decision provides for a remand for further proceedings before the state medical board, we can appear on your behalf before that board to advocate for your full and final relief with a medical license.
Seeking Further Review of an Adverse Appeal Decision
The next service our attorneys can provide, if necessary, is to seek further review of an adverse ECFMG, USMLE, or state medical board appeal decision. You may have taken the losing appeal on your own or with other attorney representation. If so, you may still retain us to see if you have further administrative appeals to take or whether a court challenge of the appeal decision is available to you. State administrative procedure acts, like Section 120.68 of the Florida Administrative Procedure Act, often expressly authorize judicial review of an adverse agency decision. Our attorneys know how to determine whether you have such a right to court review and, if so, whether you have the grounds for court reversal of your adverse agency appeal decision. We can then represent you in that court litigation as necessary and warranted. Our attorneys' appeal services thus run the breadth from the first opportunity to appeal all the way through to evaluation, implementation, and even court challenge of the appeal decision.
Premier Professional License Appeals Available
If you are an international medical graduate needing to appeal an ECFMG, USMLE, or state medical board decision, the Lento Law Firm's premier Professional License Defense Team has the skilled and experienced appellate attorneys to represent you. Your international medical education and future medical practice as a licensed physician in the United States are worth protecting and preserving through every last resort, including exhausting all appeals. Call 888.535.3686 or use our contact form to retain us to pursue your appeal rights for your best medical licensing outcome.