How Public Test Offerors Can Minimize Legal Exposure: A Q&A With Donald Balasa
By Robert C. Shaw, Jr., PhD
Donald A. Balasa, JD, MBA (left), is a rare resource because of his experiences while operating a certification organization, the American Association of Medical Assistants (AAMA), plus his training as a lawyer. Having also been a National Commission for Certifying Agencies (NCCA) commissioner, Balasa has closely observed the ways many certification programs operate and is readily regarded as an expert at the intersection of occupational certification and the law.
Robert C. Shaw, Jr., PhD, is the senior vice president of examinations and internal psychometrician for the National Board for Respiratory Care (NBRC) and co-chair of the I.C.E. Publications and Editorial Committee. Shaw recently spoke with Balasa about his background in credentialing, as well as his recent article on the Ogletree v. Cleveland State University court decision.
Robert Shaw (RS): Tell me about your experiences directing and leading the certification activities of the AAMA.
Donald Balasa (DB): I have been the CEO and house legal counsel of AAMA since 1990. The Certifying Board (CB) of the AAMA awards the Certified Medical Assistant (CMA [AAMA]) credential. There had been a history of some AAMA leaders resisting the pursuit of NCCA accreditation for the CMA (AAMA) Certification Program, but I was able to persuade them that obtaining NCCA accreditation was essential for demonstrating the quality of the credential. I proposed amendments to the AAMA bylaws that enabled the CB to meet the autonomy requirements of the NCCA Standards, the AAMA House of Delegates enacted these amendments and the CMA (AAMA) Certification Program became NCCA accredited in 2006. I subsequently persuaded the CB of the importance of also obtaining accreditation under ISO 17024. The CB of the AAMA was granted accreditation by the International Accreditation Service (IAS) under ISO 17024 in 2016.
RS: How does your law training fit with your occupational certification work?
DB: One of the most crucial responsibilities of my position at the AAMA has been protecting the legal scope of work of medical assistants. An aspect of this responsibility is helping to draft legislation and proposed regulations requiring medical assistants to have education and a current credential to perform advanced tasks such as preparing and administering injections. I quickly discovered legislators and regulators are reluctant to support such measures unless it can be shown that medical assisting credentials accurately differentiate between competent and non-competent medical assistants. This led me to the NCCA Standards and NCCA accreditation.
RS: I understand you are an active volunteer with I.C.E. Can you share a bit about your time serving on various committees and councils, and on the NCCA Commission?
DB: I have been on the I.C.E. Government Affairs Committee for most of the years from 2005 to the present day. While serving on this committee, I was asked to draft comments on behalf of I.C.E. about the legislation that became the Americans with Disabilities (ADA) Amendments Act. This sparked my interest in ADA issues that continues to this day. I served as a NCCA commissioner for six years, three of those as the group’s chair. This year I am also serving on the I.C.E. Accreditation Services Council.
A Deep Dive Into the article ‘How Public Test Offerors Can Minimize Legal Exposure in Light of Ogletree v. Cleveland State University’
The Winter 2023 issue of the CLEAR Exam Review featured Balasa’s article “How Public Test Offerors Can Minimize Legal Exposure in Light of Ogletree v. Cleveland State University.” Aaron Ogletree was a student at Cleveland State University who was enrolled in a chemistry course. A room scan occurring just before a test was remotely administered in spring 2021 stimulated Ogletree’s legal claim to Fourth Amendment constitutional protection against unreasonable searches and seizures. The article reports the case was decided by summary judgment on Aug. 22, 2022, which means the court reached its decision without needing a full trial.
The article states the university delegated the decision about what security measures would be used for a given test to each professor. The chemistry professor required a room scan, which happened to be Ogletree’s bedroom, with the intent to secure the content. However, the court could see there were other potential security practices that were not required such as having the test taker remain within view of the video camera. In the article, Balasa offers four suggestions public test providers can consider to protect their programs from similar legal challenges.
RS: Your first piece of advice states that those who offer remote administrations of tests should ensure the policies for remote proctoring are applicable to all examinees testing remotely. Do you expect certification programs will be able to follow this advice relatively easily?
DB: First, let me clarify that the Fourth Amendment’s prohibition of unreasonable searches applies only to government actors, such as state universities and state licensing bodies. It does not apply to private certifying bodies or test vendors.
My sense is certification programs are generally aware that remote testing policies and processes must be applicable to all remote examinees and enforced consistently. (This is especially the case for certification programs accredited under the NCCA Standards and ISO 17024.) Consequently, I believe most certification programs will not have difficulty following this first piece of advice.
RS: Professors generally tend to protect what they think falls under their academic freedoms. What is your expectation about the probability there could be pushback in an academic setting about a one-size-fits-all remote testing solution?
DB: Schools are not held to the same testing standards certification and — to an even greater extent — licensing bodies are held. In my opinion, schools will continue to be permitted to allow some students to take a test remotely and others to take the same test in person. However, all students taking the exam remotely must follow the remote testing procedures established by the school, just as all students taking the exam in person must follow the in-person testing procedures established by the school.
RS: Your second piece of advice reports a persuasive point supporting the court’s decision was the fact that a room scan could be viewed by other students. You described this fact as “surprising and inexplicable.” Can you speak to the relative ease you would expect certification programs will have in avoiding exposure of room scans to peers, and explain why you were surprised by this procedure at Cleveland State?
DB: Frankly, I was quite taken aback by Cleveland State University’s remote proctoring mechanism allowing examinees to see the room scans of other examinees. Although I am not particularly knowledgeable about remote testing technology, my understanding is test candidates seeing the room scans of others has not been an issue with remote proctoring. Therefore, I expect that most certification programs will not find it burdensome to keep private the room scans of test takers.
RS: Your third piece of advice addresses giving adequate notice about security measures for remotely proctored tests. Case details are described in the article about a notice that had been given in the syllabus but then removed by the professor, at Ogletree’s request, followed by an email notice Ogletree received two hours before the remote test. You seem to advise a certification program should be able show how it made some effort to verify each examinee received notice about the security procedures. Can you offer some concrete, practical verification methods you could see a certification program use?
DB: It is recommended that some documented effort be made to verify the people testing remotely have been given ample and adequate notice of the security requirements. This could be as simple as the testing body sending an email and/or text message to the examinees and asking each one to respond that they received the instructions and agree to abide by them. Ample and adequate notice would depend on the nature of the examination. For typical computer-based or paper-and-pencil tests, twenty-four (24) hours of notice would usually be sufficient.
RS: When thinking about notifications, it seems there could be a parallel between a syllabus from an academic course and a candidate handbook from a certification program because both seem to give upfront notification. Does showing that upfront notice was given help demonstrate there was enough time between notification and the remote test? Is there a burden on a certification program to seek out some indication that the upfront notification has been comprehended?
DB: I agree a course syllabus is comparable, to some extent, to a candidate handbook. Demonstrating that upfront notice about examination requirements was given in the course syllabus strengthens the legal position of the school. Nevertheless, as I stated in my answer to the previous question, it is advisable to give further written notice to the student/examinee shortly before the examination. A school or testing body does not have an affirmative legal duty to furnish proof the examinee received and understood the notification sent by the testing body. Being able to show the testing body gave timely notice to the examinee and attempted to verify the examinee’s receipt of the notice, however, will help the testing body in cases similar to Ogletree v. Cleveland State University.
RS: Your fourth piece of advice focuses on implementing most or all possible security measures for remote tests that are expected to protect against cheating. By using less than a full set of security procedures, the article seems to say that Cleveland State University did not convince the court it was serious enough about test security to require a room scan that could expose a student’s bedroom to other students. I struggle to imagine certification boards and staff are not supposed to think critically about the interface between their program and the candidates. I can see how using every available security procedure protects against a legal claim; however, if a program is willing to explain how it evaluated each potential element and was convinced it had omitted no critical security measures, then could that be a legitimate choice?
DB: Your understanding of the court’s reasoning in Ogletree is accurate. I agree it is legally permissible for a testing body to choose which security measures it will employ to best “preserve the integrity of its test,” as the Ogletree court puts it. Of course, as we learned in Ogletree, the implementation of these security measures must not infringe on the constitutional rights of examinees or violate any laws.
RS: Thank you, Donald, for taking time to share your expertise with the I.C.E. community. I encourage you to make your closing statements about the Ogletree decision.
DB: A school is different from a testing body and is permitted to give its instructors substantial discretion about whether to give examinations and whether the exams should be proctored, unproctored or partially proctored; difficult or easy; closed book or open book. But the key point is this: If a college course requires tests, the school must make sure that all examinees are treated comparably and fairly.
Schools must make sure that the degree of stringency in all aspects of its remote testing procedures is consistent. Even though the inadequate notice given to Mr. Ogletree and the visibility of his room scan to other students were factors in the court’s decision, Cleveland State’s fatal flaw was that it was very strict in requiring pre-test room scans, but very lenient about examinees walking off camera during the test. This inconsistency was the primary reason, I would argue, why the court ruled in favor of Ogletree. The court reasoned that the lax “off-camera” policy during the test rendered the room scan superfluous and unnecessary, and thus unreasonable under the Fourth Amendment.