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FBBE will pay for required mental health, substance abuse evaluations

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Applicants to The Florida Bar who are asked to have an evaluation for potential mental health or substance abuse problems will have that evaluation paid for by the Florida Board of Bar Examiners, under a new policy adopted effective March 21.

According to a FBBE press release, the new policy continues the Bar Examiners’ policies to promote wellness among law students and Bar applicants.

The FBBE will pay up to $3,000 per applicant for evaluations.

Scott Baena“The board may provide applicants the option of undergoing an evaluation or an investigative hearing to determine whether the applicant is fit for admission to the Bar,” said FBBE Chair Scott Baena. “In some cases, applicants may opt for the hearing because of the associated fees of an evaluation. The board wishes to encourage applicants to seek diagnosis and treatment and is hopeful it will do so by paying the associated fees.”

He said only a few Bar applicants — less than 0.5 percent of the around 4,000 annual applicants — have been asked to get independent evaluations.

“The board has encouraged mental health or substance treatment whenever appropriate for more than 20 years,” Baena said. “The board’s commitment to promoting wellness for applicants and future attorneys is stronger than ever.”

Michele Gavagni, FBBE executive director, noted the board last year changed its website, application, and mental-health disclosure requirements to make clear it is not seeking information about law students who have sought help because of the stress of law school, grief, or anxiety.

“Law school is a very stressful time, we understand that,” Gavagni said. “People should not be afraid to seek that type of counseling. We want to encourage them to do that.”

The March 28 FBBE press release noted it “investigates substance use disorders and certain severe mental-health disorders that have impaired or could impair an applicant’s ability to practice law.

“It’s a very difficult line, because we want to be as respectful as we can to applicants’ right to privacy, while still fulfilling our charge from the Supreme Court to protect the public,” Gavagni said.

As for paying for the evaluations when needed, she noted, “We believe this doesn’t affect a large number of applicants, but it does have a large effect on a few applicants.”

The policy came as the FBBE on March 24 settled a federal lawsuit charging it with violating the Americans with Disability Act in the way it handled an application from a military veteran. Because the settlement terms were confidential parties would not discuss any relationship between that case and the policy.

In that case, plaintiff Julius Hobbs had argued the FBBE should accept the findings of his therapist rather than requiring an additional, independent examination at his expense. He also contested the requirement to pay a special hearing fee and for a transcript if he challenged the FBBE’s decision to have a special hearing in his case.

Hobbs had applied for Bar membership during his first year in law school, hoping to qualify for student legal internships that require an FBBE review and which also reduces the FBBE’s application fee. He served 10 years in the military, attaining the rank of captain and served three tours in Iran and Afghanistan.

He was arrested for DUI in 2006 and 2012, but not convicted and he was diagnosed with, and received treatment for, alcohol abuse disorder and adjustment disorder by the U.S. Department of Veterans Affairs.

Hobbs withdrew his early application after the FBBE asked for the evaluation, but, according to Northern U.S. District Judge Robert L. Hinkle, who issued a ruling in the case in February, is expected to reapply later this year when he finishes law school.

Hinkle found that Hobbs was covered by the ADA because he either had a record of a covered impairment or the FBBE regarded him as having a covered impairment. But he also concluded that the FBBE had a reasonable concern because of the DUI arrests and information that Hobbs regularly drank more beer than recommended by his last treating professional.

“To be sure, since his last DUI arrest, he has performed well in school, and there is no evidence that he has suffered adverse effects of alcohol use,” Hinkle wrote.

He dismissed the plaintiff’s motion for summary judgment, but only partially granted the FBBE’s motions to dismiss and for summary judgment.

The case records do “not resolve without genuine dispute the question whether the ADA prohibits part of the evaluation the board demanded before Mr. Hobbs withdrew his application and is likely to demand again,” Hinkle wrote in his order. ‘Nor does the record resolve without genuine dispute the question whether Mr. Hobbs can be required to pay for the evaluation.”

Hobbs was represented by Matt Dietz, of the Disability Independence Group, Inc., in Miami, and Dietz praised the FBBE action.

“I don’t think that any entity can charge a person with a disability extra to evaluate that person,” he said, “It’s the same with an employer that cannot charge an employee when the employer wants to send the employee out for additional medical evaluations.”

Judge Hinkle asked during a hearing on the summary judgment motions if a Bar applicant suspected of financial irregularities would be charged by the FBBE for the cost of a forensic accountant, Dietz said, and was told there would be no charge in that case.

“This is another step in the path to a stigma-free Florida Bar,” Dietz said. “As Scott Baena said, people can feel free to get the treatment they need without feeling undue burden.”

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