Accommodation Denial Affirmed

The Kentucky Supreme Court affirmed the denial of testing accommodations to a bar applicant

Phelps began having issues with college examinations at the University of Kentucky in 2016. She consulted with Dr. Matthew Nelter and was tested for Attention Deficit/Hyperactivity Disorder (“ADHD”). Phelps had not previously been diagnosed with ADHD. The first ADHD checklist that Phelps completed measured childhood ADHD symptoms, and the second checklist tested for current symptoms of ADHD. Dr. Neltner determined from her Quotient test that Phelps struggled with inattention and impulsivity. A minimum score of 46 completed is predictive of childhood ADHD—Phelps scored a 49. On the second checklist, Phelps scored high on the inattentive, hyperactive, and impulsive factors. As a result, Dr. Neltner determined Phelps needed medication to help treat her ADHD symptoms.

In 2017, Phelps began receiving accommodations from the University of Kentucky for her ADHD. In a 2019 letter directed to Phelps, the University of Kentucky stated that, in accordance with the ADA Amendments Act of 2008 and the University Accommodation Procedure, the following accommodations would be made for her: 50% extra time on exams and quizzes; a private, low distraction room for all exams and quizzes; and availability of paper copies of all exams and quizzes. Phelps later successfully completed the Law School Admission Test (“LSAT”) without requesting any accommodations.

After completing her undergraduate degree at the University of Kentucky, Phelps began law school at the Salmon P. Chase College of Law at Northern Kentucky University (“NKU”). While at NKU, Phelps received the following accommodations: 50% extra time on her exams and a private testing room. She sought treatment from Dr. Samreen Munir to address her ADHD symptoms, but Phelps switched doctors in 2022, continuing her ADHD treatment with Dr. Kenneth Lin. Dr. Lin affirmed Phelps’ ADHD diagnosis based on her previous medical reports and charts, his own examination of Phelps, the ADHD diagnosis criteria, and standard questionaries. In Dr. Lin’s opinion, Phelps’ ADHD diagnosis negatively affected her ability to take exams, and he agreed with the academic accommodations she had received.

In 2023, Phelps was approved by the National Conference of Bar Examiners (“NCBE”) for the following accommodations during the Multistate Professional Responsibility Examination (“MPRE”): up to 15 minutes of stopthe-clock break time, one small snack, and ear plugs. She received a passing score on the MPRE. That same year, Phelps applied to sit for the July 2023 Kentucky Bar Exam. Phelps submitted an examination accommodation request to the NST Committee based on her ADHD diagnosis and celiac disease, which requested 50% additional time on all portions of the exam, a 15 minute stop-the-clock break per testing session, a private room, and access to water and a snack.

In addition to the NST Committee, Phelps’ application was reviewed by Dr. Timothy Allen, MD. Dr. Allen is a medical consultant and expert used by the Kentucky Office of Bar Admissions (“KYOBA”) who is board certified by the American Board of Psychiatry and Neurology. Additionally, he is board certified in forensic psychiatry, general psychiatry, and brain injury medicine. He is a distinguished fellow of the American Psychiatric Association and has been a practitioner for over 20 years. After reviewing Phelps’ request, including the medical records she provided, Dr. Allen recommended that Phelps receive a semi-private testing room to accommodate her celiac disease, but did not find  that her cognitive status required additional time for the exam. The NST Committee granted Phelps a semi-private testing room as requested for her celiac disease, but all other accommodations were denied. Phelps appealed the NST Committee’s decision to the KBBE which denied her appeal. She did not seek further relief from this Court. Phelps attempted the July 2023 exam without ADHD accommodations and failed the exam.

Phelps registered to sit for the February 2024 exam and requested the same accommodations. This time her accommodations request was reviewed by Dr. Michael Gordon, Ph.D. Dr. Gordon is an expert for the KYOBA and a professor of psychiatry and behavioral sciences at SUNY Upstate Medical University. He has been inducted into the Children and Adults with AttentionDeficit/Hyperactivity Disorder (“CHADD”) Hall of Fame and received the Keith Conners’ Award for Scientific Contribution to the Field of ADHD.

After reviewing Phelps’ application for accommodations for the February 2024 exam, Dr. Gordon determined that her application was “weak on external evidence,” and did not provide objective childhood evidence of a history of ADHD. Dr. Gordon observed that Phelps was able to perform well enough on the college and law school admissions exams without accommodations to be admitted into college and law school. He took note of Phelps’ own narrative describing how she reported doing very well in school and had been placed in “gifted” classes beginning in kindergarten. Phelps also reported she excelled in her position as a pharmacy assistant. Dr. Gordon stated that a person who met the criteria for ADHD “would find the demand of such tasks to be overwhelming.” Based on his expertise, Dr. Gordon did not believe Phelps’ demonstrated ADHD symptoms that “caused substantial impairment over the course of her life” and recommended denying her accommodations request. After reviewing Phelps’ application and Dr. Gordon’s findings, the NST Committee granted Phelps’ request for a semi-private room to accommodate her celiac disease but denied her other requests based on her ADHD diagnosis. She appealed the decision to the KBBE, which affirmed the decision. Phelps did not seek relief from this Court, took the February 2024 exam, and failed it a second time.

She sought accommodations for the third attempt

On July 1, 2024, Phelps received a letter from the NST Committee stating her request for a semi-private testing room free of gluten allergies would be provided to her, but all other requested accommodations for the July 2024 exam were denied. Phelps appealed the decision of the NST Committee to the KBBE, arguing she had a disability under the ADA because she had a mental impairment through her ADHD; that her ADHD limited her ability to concentrate and read, which qualifies as a major life activity under the ADA; that her current treating physician, Dr. Lin, confirmed that her life activities were limited; and that her past testing accommodations support her position. The KBBA affirmed the decision of the NST Committee, explaining that the NST Committee committed no errors in denying Phelps’ accommodation request and it was not persuaded by the additional documentation she provided. Thus, Phelps declined to sit for the July 2024 exam and filed this original action.

Denial affirmed

In the current case, Phelps has not demonstrated that she is unable to read or concentrate any less than the average person in the general population. Like the students from Price, she too was placed in gifted classes as a child and presented no substantial evidence of childhood ADHD. Phelps did not provide the KBBE with any updated evidence of impairment after receiving treatment, as she only provided documentation corroborating her 2016 diagnosis. This was noted in Dr. Allen’s review of Phelps’ July 2023 and July 2024 NST accommodations request when he stated that Phelps did not provide an “objective evaluation documenting her current levels of attention, or measurements of her executive function, processing speed, reading comprehension, or reading fluency.” In coming to this conclusion, Dr. Allen reviewed the medical records Phelps provided, which included reports from, Dr. Munir that she had performed adequately in college without any problems since establishing medication to treat her ADHD. Sutton, 527 U.S. at 483, 487. After further reviewing the accommodations, Phelps received at the University of Kentucky and NKU Chase College of Law, transcripts, and GPAs Dr. Allen did not believe the documents submitted by Phelps provided “any information to aid in an assessment of her current levels of functioning as it pertains to the potential impact of ADHD on her standardized test-taking ability.” See Healy v. Nat’l Bd. Of Osteopathic Med. Examiners, Inc., 870 F.Supp.2d 607, 620 (S.D. Ind. 2012) (considering plaintiff’s good academic record without accommodations and plaintiff’s psychologist’s testimony that plaintiff had average reading processing skills, the court concluded the plaintiff did not present any substantial limitation in reading compared to the average person in the general population).

Conclusion

Without any other documentation to help explain how her current cognitive function makes her requested accommodations reasonable, especially given the fact that she has mitigated her ADHD by taking medication, we see no reason to disagree with Dr. Allen and Dr. Gordon. Sutton, 527 U.S. at 483, 487. SCR 2.082(1) requires the bar exam to be administered in “a manner that is fair and equitable” and, because Phelps has not demonstrated how her ADHD symptoms cause substantial impairment in her life, we hold there is no basis to conclude that denying her requested accommodations was unfair or inequitable. Poole, 694 S.W.3d at 399.

(Mike Frisch)