foregoing mental health treatment

Before getting started on the second blog entry of the week, as mentioned in the first blog entry of the week, a few housekeeping matters are in order. First, it is that time of year again to vote for the ABA 100. I have been thrilled to be part of that for the last four years running and would love to make it five. I know I have lots of loyal readers, and I would greatly appreciate your vote. You can vote here. I have received reports from those seeking to vote on their mobile phone, that you may have a hard time finding the submit button. It is a little arrow in a blue box at the bottom of the screen. People tell me that the problem does not occur if you are voting on a laptop or a PC. Second, leaving for a family vacation to California Sunday. This week my daughter is still home from school, and Saturday, we are going to see the Book of Mormon. So, do not expect a blog entry from me for the week of July 23. Also, since my daughter starts school August 1, it may be the middle of that week before I get a blog entry up. Finally, July 26 is the 28^th anniversary of the ADA. Congratulations! It has helped people with disabilities come a long way, but there is still a long way to go.

Turning to the subject of our blog entry, on more than one occasion, I have consulted on behalf of professionals who had licensing’s boards go after them on the basis of their disability. It is a real problem, especially among medical professionals, but not exclusively so. The case of the day, Hobbs v. Florida Board of Bar Examiners, should serve as a wake-up call for licensing boards to reevaluate their behavior or face discovery and possible liability in ADA lawsuits. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning standing; court’s reasoning ripeness; court’s reasoning mootness; court’s reasoning Florida Supreme Court as improper party; court’s reasoning sovereign immunity; court’s reasoning with respect to failure to state a claim; and takeaways. Of course, the reader is free to concentrate on any or all of the categories.

I

Facts

As a first year student at a Florida law school, plaintiff submitted to the Florida Board of Bar Examiners a Florida Registrant Bar Application. The Board allows and encourages first-year student to do this if they intend to apply for membership in the Florida Bar upon graduation.

One of the questions on the application form is whether the applicant had been treated for any severe thought or mood disorder substance-use disorder within the prior five years. Plaintiff truthfully answered yes because he had been treated at a Veterans Administration Medical Center by a Doctor Michael Stewart, a clinical psychologist. He had diagnosed an adjustment disorder with mixed anxiety and depressed mood as well as alcohol-use disorder. Plaintiff also disclosed that he had been arrested twice for driving under the influence of alcohol.

Plaintiff attributed his conditions to his service in Afghanistan and Iraq where, as an Army captain, he had the responsibility for 175 soldiers while working to counter improvised explosive devices. He submitted the application with the letter from Dr. Stewart, which said that plaintiff had undergone treatment and has made significant progress. It also said that plaintiff would suffer no deleterious effects in the legal profession.

In response to the disclosed information, the Florida Board of Bar Examiners asked for ALL of plaintiff’s medical records. They also insisted that plaintiff submit to a full evaluation, including: a complete medical history and physical examination; a psychiatric evaluation with psychological testing and psycho-social testing; biological drug and alcohol screening on at least two occasions; and a substance use disorder evaluation. The Florida Board of Bar Examiners insisted that these procedures be conducted by one of 11 doctors specified by the Board, only six of whom had offices in Florida and only one of whom had an office in Tampa where the plaintiff was a student. Further, the Florida Board of Bar Examiners said that the plaintiff would have to pay for these procedures at an estimated cost of up to $5000. Finally, the Florida Board of Bar Examiners said that the doctor might also need to conduct inpatient evaluation, but if that was necessary, the doctor would explain the reasons and seek the Florida Board of Bar Examiners permission.

The Florida Board of Bar Examiners did not explain its demand for a complete physical examination even though in the ordinary understanding of the term that would encompass medical information wholly unrelated to anxiety or alcohol-use disorders or fitness to practice law. Also, the Florida Board of Bar Examiners did not explain its demand for a complete medical history back to birth, which would also include information unrelated to anxiety or alcohol-use disorders or fitness to practice law. The Board did tell the plaintiff that he could have an investigative hearing before it. Anybody seeking an investigative hearing must pay a $250 fee.

As a result of all this, plaintiff withdrew his application. However, he still intends to practice law in Florida upon law school graduation, May 2019, and intends to apply for admission to the Florida Bar at that time.

II

Court’s Reasoning That Plaintiff Has Standing

1. In order to have standing, a plaintiff must meet the following criteria: 1) plaintiff must have suffered an injury in fact. That is, an invasion of a legally protected interest that is concrete and particularized, and actual or imminent (not conjectural or hypothetical); 2) there must be a causal connection between the injury and the conduct complained of; and 3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
2. Plaintiff applied to the Florida Bar, paid the fee, and was required to disclose extensive private information allegedly in violation of the ADA and the Rehabilitation Act.
3. Plaintiff was told that his application would be processed only if he submitted to further invasive procedures at substantial cost-procedures plaintiff asserted were unnecessary, violated his privacy, and violated the ADA and Rehabilitation Act.
4. Plaintiff has already suffered a past injury by paying the fee, having his privacy interests affected, and having to abandon his application rather than suffer further invasive procedures that he alleged would have violated federal law.
5. Plaintiff alleged that if he applied began, he will suffer the same injury and will be required to pay for and undergo invasive physical and mental examinations. Plaintiff reapplying for readmission is not speculative as he is a law student at a Florida law school and has already tried once to apply to the Florida bar.
6. Plaintiff is suffering an actual ongoing injury because the only way to avoid giving a yes answer to the mental health treatment question is to wait five years until he was last treated for the mental health condition. Accordingly, since she was last treated in 2016, he would have to wait until 2021 to apply without answering the mental health question in the affirmative, and, in the meantime, would have to forgo treatment until then.
7. The Florida Board of Bar Examiners procedures force the plaintiff to immediately choose one of three options: foregoing treatment; delaying his application; or submitting to an invasive examination that is alleged to violate federal law. Plaintiff argued “with some force,” (court’s actual words), that providing applicants an incentive to forgo treatment is the wrong approach to mental-health or substance-abuse issues.
8. Since the Board’s procedures caused the plaintiff’s injury and will cause the same injury again if they are not enjoined or abandoned, there is a clear causal connection between the Board’s procedures and the injuries complained of.
9. It is certain that the injury can be redressed by a favorable decision because if the court orders discontinuation of the practices in violation of the ADA or Rehabilitation Act, the Board would discontinue the practice.

II

Court’s Reasoning Plaintiff’s Claim Is Ripe

1. Damages to the plaintiff have already occurred.
2. Plaintiff is a rising third-year student ranking high in his class and expects to graduate in about 12 months, which is not much longer than it sometimes takes to adjudicate a claim of this kind.
3. Plaintiff’s prior application and the Florida Board of Bar Examiners response to that application frame the issue sufficiently to make them fit for a judicial decision.
4. Withholding court consideration not only causes considerable hardship to the plaintiff but to the Florida Board of Bar Examiners and the court as well. That is, it benefits nobody to require the claims addressed on an emergency basis later rather than in an orderly fashion now.
5. Plaintiff filed a lawsuit in time to allow full and fair consideration of the positions and issues certain to come to a head soon.

III

Court’s Reasoning Plaintiff’s Claim Is Not Moot

1. Plaintiff’s claim for past damages is not moot because he has asserted the claim and the defendants have not paid it.
2. Plaintiff seeks an injunction to prevent future violations. That is, he has not abandoned his intention to apply for Florida Bar membership and the Florida Board of Bar Examiners has not abandoned its position that he must submit to the procedures they demanded.

IV

Court’s Reasoning That the Florida Supreme Court Is Not a Proper Party

1. Plaintiff did not allege that the Florida Supreme Court had any role in processing plaintiff’s application.
2. Based upon a rule adopted by the Florida Supreme Court, the proper defendant in a lawsuit challenging action taken by the Board of Bar Examiners is the Board of Bar Examiners and not the Florida Supreme Court.
3. Effective relief can be granted against the Florida Board of Bar Examiners and its executive director regardless of whether the Florida Supreme Court is named.

V

Court’s Reasoning Denying Motion to Dismiss ADA and Rehabilitation Act Claims on the Grounds of Sovereign Immunity

1. A State waives its 11^th amendment immunity from a Rehabilitation Act claim when it accepts federal funds because such a waiver is an unambiguous condition for accepting the funds in the first place.
2. The Rehabilitation Act waiver only extends to claims based on conduct of the department receiving the federal funds.
3. While the Florida Board of Bar Examiners itself does not receive federal funds, other entities within the Florida court system do receive federal funds. Accordingly, whether the Florida Board of Bar Examiners has 11^th amendment immunity depends upon whether the Florida Board of Bar Examiners is part of the same department as a court system entity receiving federal funds.
4. A bright line test for determining what constitutes a department doesn’t exist. However, the following matter, but none of them are necessarily dispositive standing alone: how a state organizes offices and personnel; whether units share a budget; whether units are headed by the same person or board; whether employees can be hired and fired or otherwise managed by the same person or board; whether a unit has its own separate budget or its own ranking officer or governing board; and whether units have similar functions or unrelated functions.
5. The Florida Board of Bar Examiners has repeatedly and successfully in the past insisted that it is an arm of the Florida Supreme Court fully protected from federal lawsuits on that basis. As a result, those decisions combined with the Florida Board of Bar Examiners relationship to the Florida Supreme Court, suggest that for Rehabilitation Act purposes, the Board is part of the same department as the Florida Supreme Court, and therefore, a motion to dismiss the Rehabilitation Act claim fails at this time.
6. In short, if the Florida Supreme Court receives federal funds, the Rehabilitation Act applies to the Florida Board of Bar Examiners since it is an arm of the Florida Supreme Court. However, if the Florida Supreme Court, like the Florida Board of Bar Examiners itself, does not receive federal funds, then the Rehabilitation Act does not apply to the Florida Board of Bar Examiners. If it is later determined that the Florida Supreme Court does not receive any federal funds, a motion to dismiss the Rehabilitation Act claim on the basis of sovereign immunity can be filed later.

VI

Court’s Reasoning That Plaintiff Has Not Failed to State a Claim

1. If, as plaintiff alleged, the Florida Board of Bar Examiners required him to submit to invasive procedures and to expend funds not because those requirements serve a purpose in determining his fitness to practice law but only because he has a disability, then the Florida Board of Bar Examiners violated the ADA.
2. Placing unnecessary hurdles in the path of a person with a disability is exactly is an ADA violation as described in the findings section of the ADA, 42 U.S.C. §12101(a)(1).
3. The Board does have every right to fully inquire about an applicant’s fitness to practice law. Some mental health conditions are indeed proper subject of inquiry. Driving under the influence in the past is a proper subject of inquiry. After all, an attorney must be able to remain focused and sober in order to handle a client’s business under stressful conditions.
4. Plaintiff was treated by a well-qualified clinical psychologist at a Veterans Administration facility. Even so, the Florida Board of Bar Examiners refused to rely on that evaluation, which was formed after multiple therapy sessions, and instead insisted that plaintiff undergo an extremely broad evaluation by one of 11 doctors chosen by the Florida Board of Bar Examiners.
5. No evidence exists that any of the 11 doctors chosen by the Florida Board of Bar Examiners could match plaintiff’s Doctor’s expertise in dealing with conditions secondary to participation in war.
6. While the Florida Board of Bar Examiners may believe that a patient’s own treating professional may be unduly supportive of the patient or even that a Veterans Administration professional may be unduly supportive of the veteran, it is also possible to believe that a professional who routinely accept referrals from the Florida Board of Bar Examiners may be overly demanding of an applicant with a disability.
7. Plaintiff’s complaint plausibly alleges that the scope of the evaluation the Board demanded was not reasonably related to plaintiff’s fitness to practice law.

VII

Takeaways

1. As I mentioned above, the actions of licensing boards against persons with disabilities because of their disability is a real problem across a variety of disciplines and throughout the country. This case means that there is now a decision saying licensing boards need to be aware that the ADA and the Rehabilitation Act need to be dealt with. Accordingly, many of their practices will need to be reevaluated.
2. Sovereign immunity arguments may actually come back to bite a defendant with respect to whether sovereign immunity is waived when it comes to the Rehabilitation Act claims. That is a bit counter-intuitive, but the reasoning of the court makes sense.
3. As the system is set up now, people trying to get into the profession, whatever that profession may be, have a disincentive to deal with their MH problems before they get into the profession. That doesn’t make a lot of sense. This case may help change that.
4. Plaintiff here was a very sympathetic figure having served in Afghanistan and Iraq as an Army captain and having had the responsibility for 175 soldiers working to counter IED’s.
5. As I have said elsewhere in this blog, especially in the employment context, it is one thing to ask for documentation to see how to deal with an accommodation request, but that request must be reasonable. Same is true with respect to licensing boards, which are a public entity under title II of the ADA.
6. If you are licensing entity, make sure in addition to asking for narrowly focused documentation, that you do an individualized analysis so that you are not insisting on a resolution that doesn’t match the applicant’s disability.
7. Don’t forget about direct threat, which we have discussed numerous times in this blog entry, such as here.
8. Placing unnecessary hurdles in the path of a person with a disability is exactly what the ADA and for that matter the Rehabilitation Act were designed to prevent against.
9. The five year window for mental health as by the Board has been held to be permissible in litigation around the country. The problem was not the question per se, but rather the Board’s reaction to the affirmative response.
10. The Rehabilitation Act, with some exceptions such as hospitals and places of education (29 U.S.C. §794), only extends to departments taking federal funds and not to all of the operations of the entity.
11. Licensing boards may want to reconsider automatic evaluations of applicants regardless of the evidence. Further, when such evaluations are called for, licensing boards will want to make sure that the evaluator is qualified for the particular set of conditions the applicant is faced with.
12. ADA cases do have to deal with sovereign immunity and that can get complicated. A nice workaround is where the end of the accept federal funds, then you can go with a Rehabilitation Act claim. Keep in mind, two things. First, with some exceptions, as noted above, the federal funds must track the offending department. Second, causation is different under the Rehabilitation Act (solely by reason of), than it is under the ADA (by reason of), but that, such as in this case, may not matter.
13. Training, training, training, and more training on the ADA/Rehabilitation Act is needed for licensing boards.