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License with an asterisk: Court okays restricted license where ADA test accommodation used

Licensing boards have power to limit the licenses obtained through testing accommodations for disabilities, the U.S. Court of Appeals for the 10th Circuit affirmed in an April 2 decision (Turner v. National Council of State Boards of Nursing)

The nursing candidate whose application formed the basis of the case, Barry Turner, suffers from dyslexia. In 2009, he took and failed the NCLEX-RN, the national nurse licensing exam. Turner blamed his failing grade, in part, on anxiety caused by the format of the exam, which adjusts the difficulty of the questions seen by individual candidates based on their in-test performance.

Originally, he had sought accommodations for the test. But after being informed that a license granted after a test passed with the aid of accommodations would be “restricted and limited,” Turner declined to follow though on his request and took the test without accommodations.

When he received a failing grade, Turner attempted to appeal the result to the board and the National Council of State Boards of Nursing, which administers the test. Both rejected the request, and Turner brought suit, claiming violations of the U.S. Constitution and the Americans with Disabilities Act.

In his suit, Turner claimed that the testing organizations had violated his constitutional rights to equal protection when they informed him that it would restrict his license were he to take the test with accommodations. The board, he argued, had no rational basis for believing that his dyslexia would impair his nursing practice, and thus had no rational basis for restricting his license.

The court did not agree. “Legitimate public safety concerns could provide a rational basis for Kansas to restrict the license of a nurse who had to take the licensing exam with accommodations in order to pass it,” wrote Judge Carlos Lucero. Despite his assertions about his dyslexia, Turner had failed to rebut this reasonable fear, and the court dismissed his suit.