In Re O.M.

ENTRY ORDER

2023 VT 14

SUPREME COURT DOCKET NO. 23-AP-048

FEBRUARY TERM, 2023

In re O.M. } Original Jurisdiction
}
} Board of Bar Examiners

In the above-entitled cause, the Clerk will enter:

¶ 1. In this expedited appeal, applicant challenges the Board of Bar Examiners’ denial
of his request for testing accommodations for the February 2023 Vermont Bar Exam. Given the
expedited nature of the appeal, we issued an entry order on February 16, 2023, that contained our
mandate only. We held that the Board acted within its discretion in denying applicant’s request.
We now address appellant’s arguments.*

¶ 2. The record indicates the following. Applicant is a third-year law student. In late
November 2022, he sought permission to take the bar exam early, which was granted. See
generally V.R.A.B. 9 (describing application process for early examination). Applicant also
requested testing accommodations—specifically, time-and-a-half in which to take the exam—due
to a disability. See V.R.A.B. 28 (allowing for reasonable accommodations for qualified applicants
with disabilities and stating that applicants “seeking a reasonable accommodation may consult the
Board’s website for further information and instructions”); see also General Instructions for
Requesting Test Accommodations for Vermont Bar Examination (Nov. 2020) [hereinafter General
Instructions], at 1, available at https://www.vermontjudiciary.org/sites/default/
files/documents/900-00030.pdf [https://perma.cc/639H-JGHY] (stating that “[a] qualified
applicant with a disability who is otherwise eligible to take the bar examination, but who cannot
demonstrate under standard testing conditions that he/she possesses the knowledge and skills to be
admitted to the Vermont Bar, may request reasonable test accommodations”); 28 C.F.R.
§ 36.309(a) (stating that “[a]ny private entity that offers examinations or courses related to
applications, licensing, certification, or credentialing for secondary or postsecondary education,
professional, or trade purposes” must “offer such examinations or courses in a place and manner
accessible to persons with disabilities or offer alternative accessible arrangements for such
individuals.”).

¶ 3. The Board’s stated policy is “to administer the bar examination . . . in accordance
with the Americans with Disabilities Act [(ADA)], as amended.” General Instructions, supra, at
1. This includes providing “additional testing time and other accommodations when necessary to
ameliorate the impact of the applicant’s disability on the applicant’s ability to take the bar
examination.” Id.; see also 28 C.F.R. § 36.309(b)(2) (recognizing that “[r]equired modifications
to an examination may include changes in the length of time permitted for completion of the

*
On February 3, 2023, we temporarily designated the electronic case file in this case as
confidential under V.R.P.A.C.R. 9(a)(1) at applicant’s request pending a final ruling and any
objection by appellee. Appellee did not object and we now issue a final ruling designating the
electronic case file in this case as confidential. We refer to applicant by his initials in this public
opinion.
examination and adaptation of the manner in which the examination is given”). Applicants
requesting accommodations “must submit documentation from one or more qualified professionals
that provides information on the diagnosed impairment(s), the applicant’s current level of
impairment, and the rationale for the accommodations requested on the bar examination,” as well
as “verifying documentation of his or her history of accommodations, if any.” General
Instructions, supra, at 1. The instructions state that “[a]ccommodations granted elsewhere do not
necessarily entitle an applicant to accommodations on the bar examination, although the Board
gives considerable weight to documentation relating to past accommodations received in similar
testing situations or in response to an IEP [(Individualized Education Plan)] or Section 504 plan.”
Id.; see also 28 C.F.R. § 36.309(b)(1)(v) (providing that testing entity must, in considering
accommodations request, “give[] considerable weight to documentation of past . . .
accommodations . . . received in similar testing situations, as well as such . . . accommodations . . .
provided in response to an Individualized Education Program (IEP)” or “Section 504 Plan”). The
Board considers accommodation requests for the February Bar Exam timely if received by
December 1, but the timeline can be extended for “extraordinary circumstances.” General
Instructions, supra, at 2; see also V.R.A.B. 9(c)(2)(B) (requiring that applications to take bar exam
be received by December 1 for February exam); V.R.A.B. 9(f) (requiring request for
accommodations to be “filed no later than the Application deadline, except upon a showing of
extraordinary circumstances”).

¶ 4. The Board’s instructions include various forms that must be submitted in support
of a request for testing accommodations. This includes, as relevant here, “a comprehensive
evaluation report from the qualified professional who conducted an individualized assessment of
the applicant and is recommending accommodations on the bar examination on the basis of a
psychological disability.” General Instructions, supra, Form 5, at 1. As part of this form, the
qualified professional must indicate their recommended testing accommodations and explain the
basis for their recommendation. With respect to a request for extra time, the professional must
explain “why extra testing time is necessary and describe how [they] arrived at the specific amount
of extra time recommended.” Id. at 5. Applicants must also provide verifying documentation of
their prior accommodations history, if any. Id., Form 1, at 6. Applicants have the burden of
establishing their “compliance with the Application process.” V.R.A.B. 9(c).

¶ 5. On November 27, 2022, applicant requested testing accommodations using the
Board’s application form. He provided information related to his disability and explained why he
had not filled out certain required Board forms in support of his request, including Form 5
referenced above. Applicant noted that his requested accommodation (time-and-a-half) was
provided to him in high school, law school, and for purposes of taking the Law School Admissions
Test (LSAT). The National Conference of Bar Examiners was also considering this same
accommodation request for the Multistate Professional Responsibility Examination (MPRE).
Applicant submitted a 2014 letter from a mental health professional stating that applicant had been
diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) and an anxiety disorder in
2011; a copy of his Section 504 Student Plan from high school; a letter from the Law School
Admission Council identifying his testing accommodations for the LSAT; and information about
the testing accommodations he received at law school. An associate dean of applicant’s law school
also completed a form concerning applicant’s law school testing accommodations. This form
reflected that applicant had documented diagnoses of ADHD and Generalized Anxiety Disorder
(GAD), but it misstated the permanent accommodations that applicant received. Applicant also
submitted a November 2020 email from a mental health professional at his university who stated
that she had diagnosed applicant with GAD in September 2020 based on an “Assessment
Interview.” The counselor described the severity of the disorder as moderate and chronic though
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she noted that it was expected to improve with treatment. The counselor stated that applicant’s
symptoms impacted his ability to study and take exams. She noted that applicant had had testing
accommodations since high school and that he had found time-and-a-half to be effective for him.

¶ 6. Applicant separately explained to the Board that he was unsure about which
disability-related form he should complete because his diagnosis did not fit neatly into the forms.
He explained that his 2014 evaluation formed the basis of his 504 plan and LSAT accommodations
and he did not receive treatment related to the diagnoses because he had learned various coping
skills and the accommodations he received helped him focus during examinations. Applicant
recounted that in trying to complete the forms, he attempted to use his university’s free counseling
resources but his request was denied as he did not regularly use their services and they did not
provide “one-off” evaluations for purposes of a form like that supplied by the Board. He stated
that several other providers declined to complete the form for the same reason. Applicant asserted
that it would be unduly burdensome for him to hire someone for the purpose of filling out the
Board’s form. He asked that the Board approve his requested accommodation based on the
uniform accommodations he received in high school, law school, and on the LSAT.

¶ 7. In a January 4, 2023 email, Licensing Counsel told applicant that the Board had
denied his accommodations request. As summarized by Licensing Counsel, the Board found that
applicant had been diagnosed with anxiety based on one assessment interview without any
systemic testing and he had not submitted documentation in support of a diagnosis of ADHD. It
further found that applicant failed to tie these conditions to the need for the requested
accommodations. It noted that although applicant was provided extra time in law school, that was
based on a hand injury rather than anxiety or ADHD.

¶ 8. Applicant moved for reconsideration on January 24, 2023, and included additional
materials in support of his request. He explained that his law school had erred in describing his
accommodations—an error the school acknowledged—and applicant submitted a corrected
statement. This document showed that in law school, applicant received a permanent
accommodation of time-and-a-half for examinations due to his GAD diagnosis. Applicant also
explained that he had been diagnosed in 2020 with anxiety based on multiple sessions over the
course of three months, not on one assessment interview. He provided a statement from his
counselor to this effect. Applicant added that the NCBE had granted his request for time-and-a-
half for the MPRE. Finally, applicant noted that while a 2014 letter from his provider discussed
ADHD, he withdrew the request for any accommodation based on ADHD because he had
subsequently received accommodations based solely on GAD.

¶ 9. On February 2, 2023, Licensing Counsel notified applicant via email that the Board
had denied his reconsideration request. As summarized by Licensing Counsel, the Board found
that applicant failed to file a completed Psychological Disability Verification form (Form 5), which
called for evidence of a comprehensive evaluation. It reiterated that applicant failed to tie his
anxiety condition to the need for testing accommodations and reasoned that applicant’s failure to
engage in treatment undermined his request for accommodations. The Board also questioned why
applicant relied only on GAD in his reconsideration request and did not include ADHD as he had
initially. Finally, the Board cited the December 1, 2022, filing deadline for all materials related to
accommodation requests and noted that applicant submitted new materials in support of his motion
for reconsideration well outside this deadline. Applicant appealed to this Court under V.R.A.B.
25 and the appeal was expedited at his request.

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¶ 10. Applicant argues that the Board did not follow the ADA or its own rules in reaching
its conclusion. He essentially argues that he provided sufficient information to support his
accommodations request and he should not have been required to complete the Board’s forms. He
maintains that it was unduly burdensome for him to find a qualified professional to complete the
Psychological Disability Verification form. He further contends that the Board erred and violated
the ADA by taking it upon itself to determine if he had a disability and if his disability rendered
him eligible for accommodations. Applicant maintains that the Board should not require proof of
systematic testing to support a diagnosis. According to applicant, the Board also erred by:
mischaracterizing his 2020 diagnosis as based on a “single assessment interview”; finding that he
did not tie his GAD diagnosis to specific testing accommodations; and faulting him for not
receiving ongoing treatment, dropping his request for any accommodation based on ADHD, and
the timing of his submissions.

¶ 11. On review, we recognize the Board’s “broad discretion in enforcing the Rules of
Admission.” In re Birt, 2020 VT 55, ¶ 6, 212 Vt. 500, 237 A.3d 1263. We nonetheless engage in
nondeferential review and are not bound by the Board’s findings and decisions. Id. While we
agree with several points raised by applicant, we conclude that the Board acted within its discretion
in denying his accommodations request.

¶ 12. Before turning to the merits, we express our concern about the informal nature of
the Board’s decisions. Applicant submitted a written request with supporting materials to the
Board. Rather than receiving a written decision from the Board, he received an email from
Licensing Counsel summarizing the Board’s rationale. We recognize the time-sensitive nature of
accommodation requests. Nonetheless, given the important nature of these requests, and mindful
of the formal requirements that applicants must follow in requesting accommodations, it would be
better practice for the Board to issue a signed written decision that can be provided directly to
applicants. Cf. Harris v. Harris, 149 Vt. 410, 414, 546 A.2d 208, 211 (1988) (recognizing benefits
of written findings “to assure consideration of the [relevant] factors, facilitate appellate review and
satisfy the parties that the case was fully and fairly evaluated”).

¶ 13. Turning to the merits, we find the Board’s instructions consistent with the law and
we conclude that it acted within its discretion in rejecting applicant’s request.

¶ 14. As set forth above, the Board requires applicants to provide a comprehensive
evaluation from a qualified professional in support of an accommodation request. The qualified
professional must directly tie the requested accommodations, including the precise amount of extra
time requested, to the applicant’s psychological disability. General Instructions, supra, Form 5, at
5. This is consistent with the ADA Guidance document cited by applicant. See 28 C.F.R.
§ 36.309(b); U.S. Dep’t of Justice, Civil Rights Div., Disability Rights Section, ADA
Requirements (2014) [hereinafter DOJ Guidance] (providing guidance on 28 C.F.R. § 36.309),
available at https://archive.ada.gov/regs2014/testing_accommodations.html [https://perma.cc/
TB7L-DH7V]. The DOJ guidance states that:

[t]esting entities should defer to documentation from a qualified
professional who has made an individualized assessment of the
candidate that supports the need for the requested testing
accommodations. . . . Candidates who submit documentation (such
as reports, evaluations, or letters) that is based on careful
consideration of the candidate by a qualified professional should not
be required by testing entities to submit additional documentation.

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DOJ Guidance, supra; see also Ware v. Wyoming Bd. of L. Examiners, 973 F. Supp. 1339, 1357
(D. Wyo. 1997) (rejecting argument that bar-exam applicant’s “treating physician merely had to
certify she had the disability in order for her [accommodations] request to be granted,” explaining
that “[t]he law demands that the Board tailor accommodation to each disabled applicant’s specific
needs” and, to do so, it must “explain[] the standard testing procedure to the professional who then
must make a recommendation regarding how that procedure must be changed to accommodate a
specific individual’s disability”).

¶ 15. Applicant failed to provide this critical documentation showing that a qualified
professional had engaged in “an individualized assessment . . . that supports the need for the
requested testing accommodations.” DOJ Guidance, supra. Putting aside his failure to complete
Form 5 itself, the information that he provided was insufficient. Applicant’s counselor did not
explain why the particular accommodation that applicant requested was warranted for the bar exam
based upon applicant’s functional limitations. She merely indicated that applicant had had testing
accommodations since high school and that he had found time-and-a-half to be effective for him.
The counselor’s email was from November 2020, moreover, and she did not directly address
“applicant’s current level of impairment.” General Instructions, supra, at 1. The 2014 letter that
applicant submitted referenced a 2011 diagnosis by other entities and similarly did not link
applicant’s functional limitations to the specific accommodations applicant requested for the bar
exam. While applicant contends that he did provide the necessary information for the Board to
grant his request, the Board acted within its discretion in concluding otherwise. We reject the
suggestion that obtaining the information on Form 5 placed an undue burden on applicant. Without
this key information, the Board could not properly evaluate applicant’s request. Applicant bore
the burden of establishing his current need for an accommodation and he failed to meet that burden
here.

¶ 16. The authority cited by applicant does not persuade us otherwise. Applicant largely
relies on the DOJ guidance document referenced above, which discusses the relevant ADA
implementing regulations. That document recognizes that “[i]ndividuals with disabilities are
eligible to receive necessary testing accommodations” and “[a] testing entity must administer its
exam so that it accurately reflects an individual’s aptitude, achievement level, or the skill that the
exam purports to measure, rather than the individual’s impairment (except where the impaired skill
is one the exam purports to measure).” DOJ Guidance, supra (explaining that “[u]nder the ADA,
an individual with a disability is a person who has a physical or mental impairment that
substantially limits a major life activity (such as seeing, hearing, learning, reading, concentrating,
or thinking)”).

¶ 17. The guidance further provides that:

[a]ny documentation if required by a testing entity in support of a
request for testing accommodations must be reasonable and limited
to the need for the requested testing accommodations. Requests for
supporting documentation should be narrowly tailored to the
information needed to determine the nature of the candidate’s
disability and his or her need for the requested testing
accommodation. Appropriate documentation will vary depending
on the nature of the disability and the specific testing
accommodation requested.

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Id.; see also 28 C.F.R. § 36.309(b)(iv) (explaining that testing entities must assure that “[a]ny
request for documentation, if such documentation is required, is reasonable and limited to the need
for the modification, accommodation, or auxiliary aid or service requested”). The guidance
provides examples of types of documentation, including: “[r]ecommendations of qualified
professionals; [p]roof of past testing accommodations; [o]bservations by educators; [r]esults of
psycho-educational or other professional evaluations; [a]n applicant’s history of diagnosis; and
[a]n applicant’s statement of his or her history regarding testing accommodations.” DOJ
Guidance, supra. It notes that “[d]epending on the particular testing accommodation request and
the nature of the disability, . . . a testing entity may only need one or two of the above documents
to determine the nature of the candidate’s disability and his or her need for the requested testing
accommodation.” Id. If that is the case, the “testing entity should generally limit its request for
documentation to those one or two items and should generally evaluate the testing accommodation
request based on those limited documents without requiring further documentation.” Id.

¶ 18. In this case, as indicated above, applicant did not submit a sufficient
recommendation by a qualified professional as to his requested accommodations. While applicant
did provide a corrected statement of the accommodations that he was receiving in law school, the
Board was not obligated to grant his request based solely on the accommodations that applicant
was receiving in law school and had received previously, even assuming arguendo that the much
shorter MPRE and LSAT are equivalent high-stakes tests equivalent to the two-day bar exam. See
id. (stating that “[i]f a candidate requests the same testing accommodations he or she previously
received on a similar standardized exam or high-stakes test, provides proof of having received the
previous testing accommodations, and certifies his or her current need for the testing
accommodations due to disability, then a testing entity should generally grant the same testing
accommodations for the current standardized exam or high-stakes test without requesting further
documentation from the candidate”); see also Ware, 973 F. Supp. at 1357 (stating that while
“information regarding past accommodations may be helpful to the Board, the fact that a person
has been granted a particular accommodation in the past does not mean that such accommodations
are presumably reasonable,” explaining that “[e]ach testing agency has an independent duty under
the ADA to determine reasonableness on a case-by-case basis” and recognizing that “emphasis
should not be on consistency of accommodation, but rather on meeting documented need for
individual accommodation”). We are troubled, however, by the Board’s failure to discuss
applicant’s accommodation history once applicant, via his law school, provided the Board with
the correct information. Given the “considerable weight” to be given to an applicant’s
accommodations history, it would have been helpful both for applicant and for purposes of our
review to better understand how the Board weighed this information in reaching its conclusion.
As noted above, however, applicant’s prior accommodation history did not compel the Board to
grant his request, as applicant suggests, and the Board acted within its discretion in denying the
request given applicant’s failure to provide key information regarding his requested
accommodations from a qualified professional.

¶ 19. Finally, while it does not change the result here, we agree with several points raised
by applicant with respect to the Board’s decision. The Board did not explain, and it is not clear,
why it believed that applicant’s decisions on how to treat his GAD undermined his request for
testing accommodations. Cf. DOJ Guidance, supra (explaining that “[u]nder the ADA, an
individual with a disability is a person who has a physical or mental impairment that substantially
limits a major life activity (such as seeing, hearing, learning, reading, concentrating, or thinking)”
and “[t]he determination of whether an individual has a disability generally should not demand
extensive analysis and must be made without regard to any positive effects of measures such as
medication, medical supplies,” or other similar measures). The Board also faulted applicant for
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failing to pursue an accommodation based on ADHD. Applicant explained to the Board why he
had chosen not to pursue an accommodation based on ADHD but the Board did not acknowledge
his explanation. We also agree with applicant that he acted appropriately in filing supplemental
materials that responded to evidentiary issues identified by the Board in its initial decision. This
included correcting several errors made by third parties. Licensing Counsel encouraged applicant
to do so. Under the circumstances, we do not consider these submissions untimely. We note that
while the Board observed that these materials were submitted after the filing deadline, it did not
indicate that it was refusing to consider them. See id. (recognizing that “the process [for reviewing
and approving testing accommodations] should provide applicants with a reasonable opportunity
to respond to any requests for additional information from the testing entity, and still be able to
take the test in the same testing cycle”).

¶ 20. Ultimately, these errors and omissions do not undermine our conclusion that the
Board acted within its discretion in denying applicant’s request based on his incomplete
application. We therefore uphold its decision to deny applicant’s request for testing
accommodations.

The Board’s denial of applicant’s request for a testing accommodation for the February
2023 Bar Exam is affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

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