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Lack of documentation dooms test accommodations lawsuit

A medical student who sued the National Board of Medical Examiners and his medical school for not providing testing accommodations for a reading disorder saw his claims dismissed August 23 by the U.S. Court of Appeals for the Tenth Circuit because he had failed to inform the NBME that he had provided them with all the documentation available on his disability

(Cunningham v. University of New Mexico Board of Regents).

The University of New Mexico Medical School placed the student, Chad Cunningham, on academic leave in 2009 because he had not passed the first step of the United States Medical Licensing Examination (USMLE), the national test for a medical license, a step the school requires to advance to the third year of study. Cunningham, who suffers from Irlen Syndrome, a reading disorder that results in headaches after long periods of reading, had already failed the test twice and a third failure would force him to leave the school.

Cunningham had failed the exam twice and one more failure would mean he could not continue in medical school. However, the student’s complaint asserted contingent future harm and was thus not ripe for review, the court said. His assertion that he would risk his medical exam career if he took the exam without a judgment entitling him to accommodation did not by itself constitute hardship.


Cunningham claimed that his failing grades on the USMLE had been due to the bright fluorescent lighting in the testing rooms, which, because of his condition, caused him to experience severe headaches. Although he requested a disability accommodation for his second try at the exam, the NBME, which administers the USMLE, denied his request. Cunningham, the NBME explained, had not provided the needed documentation of his past accommodations.

Although Cunningham had requested and been denied similar accommoda- tions from the school in the past, he did so again now, seeking help in establishing his claim before the NBME and to avoid a mandatory deadline for his completion of the medical school program. The school rejected his request again.

Now on leave, with the deadline for completing medical school approaching, Cunningham brought suit against the school and the NBME, claiming violations of the Americans with Disabilities Act and breach of contract.

The case eventually made its way to the circuit court, which issued a decision by Judge Jerome Holmes dismissing the suit. The court ruled that Cunningham’s ADA claim against the Board of Medical Examiners was not yet ripe for review. The NBME, Judge Holmes explained, had only provisionally denied Cunningham on the grounds that it did not have sufficient information to evaluate his request. Cunningham had acted prematurely by filing suit instead of providing the documentation.

As for his claims against the university, Cunningham failed to show that he required help as a result of his syndrome. “Notwithstanding his accommodation request to UNM,” Holmes wrote, “Mr. Cunningham demonstrated that he did not need an accommodation to pass his medical school classes or tests.” His trouble was with the USMLE, a test that was not controlled by the school.

Last, in response to Cunningham’s claim that the school should allow him extra time to graduate, Holmes wrote that such a request would be an unreasonable accommodation because it would require the university to change its advancement requirements.