Maryland Grants ADA Accomodation For Diagnosed ADHD

The Maryland Supreme Court has granted a bar applicant’s accomodation request

The State Board of Law Examiners (“SBLE”) had denied the accomodations sought by the applicant.

Headnote

Supreme Court of Maryland held that bar applicant met burden to prove both that he has “disability” under Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 to 12213, and that test accommodation he requested—i.e., 50% additional time to take Uniform Bar Examination (“UBE”)—was warranted. Supreme Court adopted two-step test for determining whether bar examination test accommodation request should be granted. First step is to determine whether applicant meets definition of word “disability” under ADA—i.e., whether applicant has “physical or mental impairment that substantially limits one or more major life activities of such individual[.]” 42 U.S.C. § 12102(1)(A). Second step is to determine whether test accommodation requested by applicant would be “reasonable, consistent with [] nature and purpose of [] examination and necessitated by [] applicant’s disability.” Bd. R. 3(a).

Supreme Court observed that, under ADA and related federal regulations, definition of disability should be broadly construed, and evidence of past test accommodations must be given considerable weight. Supreme Court determined that requirement that request be consistent with nature and purpose of UBE and necessitated by disability does not impose additional burden of proof exceeding reasonableness requirement of ADA, but rather is part of reasonableness analysis.

Supreme Court concluded that, in light of “ADHD Verification Form” completed by medical doctor who found that applicant met criteria in DSM-IV for “ADHD[,] inattentive type” and recommended that applicant be provided additional time and other test accommodations as to law school exams, applicant met burden to prove that he had disability under ADA and that requested test accommodation was reasonable, necessary, and consistent with nature and purpose of UBE. Court sustained applicant’s exceptions to recommendation of panel of Accommodations Review Committee to uphold denial by State Board of Law Examiners (“SBLE”) of applicant’s test accommodation request, reversed denial, and remanded matter to SBLE with instruction to grant applicant’s test accommodation request.

Applicant had not been accomodated until law school

Mr. Chavis testified that he did not request test accommodations in high school or college because he “didn’t want anyone to think there was anything wrong with” him. Mr. Chavis explained that leaving a classroom to take a test would have been “embarrassing” when he was a child. And, doing so would have been “humiliating” when he was in college.

Mr. Chavis testified that before his last year of law school, however, he spoke to counselors and finally realized that he “needed to address the problem, and that there was no need to be embarrassed.” As a result, according to Mr. Chavis, he “did everything [he] could do to ensure that [he] got the help that [he] needed.” Mr. Chavis testified that his test accommodations in law school “leveled the playing field in terms of allowing [him] just to have the same opportunity as other people would have who don’t need accommodations.

The SBLE had sought and relied on the report of a licensed psychologist after referring the matter to an Accomodations Review Committee (“ARC”)

On the same day as the hearing, the ARC issued a Hearing Report in which it recommended upholding SBLE’s denial of Mr. Chavis’s test accommodation request. Relying on the first criterion that Dr. Lewandowski identified—i.e., that the applicant must “have an evidence-based diagnosis of a mental or physical disorder from a qualified professional”—the ARC determined that “there was no showing by [Mr. Chavis] of any diagnostic or any data-based evidence related to [his] assertion of ADHD.” Addressing the second criterion that Dr. Lewandowski identified—i.e., that “the disorder substantially limits [the applicant] in a major life activity as compared to most people”—the ARC indicated that “no objective evidence or testimony was presented by [Mr. Chavis] related to a showing of substantial limitation in any major life activity, nor how there were limitations regarding functions required on the” UBE. In other words, according to the ARC, Mr. Chavis “did not show any evidence that he has a disability that substantially limits him in sitting for the [UBE], nor did [he] provide objective evidence of any functional limitations.” (Footnote omitted).

The ARC reasoned that, “[e]ven presuming that [Mr. Chavis] meets the legal definition of disability, which could be the case, he does not seem to have met the second criterion[,]” under which he needed to establish a “nexus between the alleged disability and the reasonable accommodations he may or may not have received.” The ARC explained that “[t]he basis of this decision was the weight of the expert evidence from Dr. Lewandowski and his assessment that there was insufficient evidence to show an impairment that warranted accommodation under the [ADA].” According to the ARC, “Dr. Lewandowski’s testimony and a thorough review of the records/evidence submitted by [Mr. Chavis] clearly set forth that there was insufficient evidence to show [his] impairment substantially limited him in sitting for the [UBE].

Majority rejection of denied accomodations

we do not agree that Mr. Chavis’s responses were necessarily concessions. As this Court pointed out during the show cause hearing, given that Mr. Chavis consistently contended before the ARC that he needs test accommodations, it would not be fair to view his responses to SBLE’s counsel’s questions on cross-examination as concessions that he lacks an impairment for which a test accommodation would be warranted. In addition, Mr. Chavis’s alleged concessions were not among the stated bases for the ARC’s recommendation to uphold SBLE’s denial of his request for a test accommodation.

When he made these alleged concessions, Mr. Chavis was a self-represented applicant giving answers, under oath, to leading questions being asked during his cross-examination. Mr. Chavis expressed confusion regarding SBLE’s counsel’s questions, and, from Mr. Chavis’s perspective, he may have believed that his testimony amounted to nothing more than looking at Dr. Lewandowski’s report and confirming that he agreed that Dr. Lewandowski had expressed certain opinions. Under these circumstances, we decline SBLE’s invitation to uphold the ARC’s recommendation based on alleged concessions by Mr. Chavis.

Dissent of Judge Booth, joined by Chief Judge Fader and Judge Gould

Respectfully, I dissent.

In this case, Mr. Chavis seeks a test accommodation under the Americans with Disabilities Act (“ADA”) on the basis of Attention-Deficit/Hyperactivity Disorder (“ADHD”). According to the Center for Disease Control and Prevention (“CDC”), “ADHD is one of the most common neurodevelopmental disorders of childhood. It is usually first diagnosed in childhood and often lasts into adulthood.” Center for Disease Control and Prevention, What is ADHD?, available at https://perma.cc/2DQW-TP75. A healthcare provider diagnoses ADHD by using guidelines in the American Psychiatric Association’s Diagnostic and Statistical Manual, Fifth Edition (“DSM-5”). Center for Disease Control and Prevention, Symptoms and Diagnosis of ADHD, available at https://perma.cc/J5HW-ZDXA. “This diagnostic standard helps ensure that people are appropriately diagnosed and treated for ADHD.” Id. “Using the same standard across communities can also help determine how many children have ADHD, and how public health is impacted by this condition.” Id.

Judge Booth would remand to give the applicant an opportunity to expand the record

in overruling Mr. Chavis’s exceptions on this record, I would remand this matter to SBLE, with instructions for SBLE to “provide [Mr. Chavis] an opportunity to correct any deficiencies in the accommodation request before the filing deadline” for the next administration of the Bar Examination as permitted under Maryland Rule 19-206(b).

(Mike Frisch)