Protecting the Rights of TANF Applicants and Recipients with Disabilities: New Tools, Resources and Litigation
From March 2001 Welfare News
Protecting the Rights of TANF Applicants and Recipients with Disabilities: New Tools, Resources and Litigation
Several significant recent developments, including the issuance of detailed guidance by the Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services, a major favorable OCR ruling, and a forthcoming manual for advocates, will assist advocates seeking to use the Americans with Disabilities Act and Section 504 of the Rehabilitation Act on behalf of their clients in TANF programs. This article reviews those developments and other recent relevant litigation.
Advocates have long been aware of the high numbers of individuals with serious physical and mental limitations among TANF applicants and recipients. Numerous studies have confirmed that many adults and children applying for and receiving TANF, and previously, AFDC, benefits, have disabilities. Many of these individuals do not qualify for, or do not receive, Supplemental Security Income.
The prevalence of disabilities among TANF applicants and recipients has numerous implications for TANF applicants and recipients, advocates, and policy makers. Many people with disabilities need program modifications and support services to be able to fulfill TANF work requirements. Others need program modifications and support services to participate in and benefit from education and training programs. The need for adequate screening and assessment is particularly acute for applicants and recipients with disabilities, as it is it unlikely that disabilities will be identified and appropriate program placements and program supports will be provided without it. Some individuals with disabilities are unable to navigate existing benefits application processes or procedures for challenging sanctions. Others are unable to participate in work requirements and need exemptions from work requirements.
The Applicable Law
The failure to provide program modifications and support services, adequate screening and assessment, exemptions from work requirements, and the failure to operate programs so that they are accessible to and usable by people with disabilities may violate the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act of 1973 (Section 504), both of which prohibit discrimination against people with disabilities.
Title II of the ADA applies to the programs and services of state, city and county governments, whether those programs are provided directly by the government or indirectly by other organizations under contract, licensing or other arrangements. In addition, employers operating TANF work programs, and some TANF programs themselves, are covered by Title I of the ADA, which prohibits discrimination in all aspects of employment. Privately operated education, training child care programs, and private organizations that conduct assessments for TANF programs are also subject to Title III of the ADA, which prohibits discrimination against people with disabilities by privately operated “places of public accommodation.”
Section 504 applies to all entities that receive federal funds. This includes state and local government agencies operating TANF programs with federal TANF funds, and public or private entities that operate education, training, employment, child care or other programs using federal funds.
HHS OCR Guidance
Earlier this year, the Office of Civil Rights at the U.S. Department of Health and Human Services issued policy guidance on the prohibition on discrimination on the basis of disability in the administration of TANF programs. This guidance supplements earlier guidance issued by OCR in August 1999 on the application of a number of federal civil rights laws to TANF programs. The January 2001 guidance focuses in greater detail than earlier guidance on how the ADA and Section 504 apply to numerous aspects of TANF program design and operation. The guidance identifies essential requirements of a TANF program that is compliant with ADA and Section 504 that OCR will apply in its compliance reviews and investigation of discrimination complaints.
The guidance should be useful in informal advocacy with TANF programs, administrative complaints and litigation. It supports arguments about the broad reach of the ADA and Section 504 into all aspects of TANF program design and administration and contains many examples of program modifications that can address or prevent ADA and Section 504 violations by TANF programs. Though the guidance only addresses the application of the ADA and Section 504 to TANF programs, the guidance should also be helpful in advocacy efforts involving other state and local government programs. The guidance is available athttp://www.hhs.gov./ocr/prohibition.html.
Summary of the OCR Guidance. The guidance discusses two concepts at the heart of the ADA and Section 504: (1) the right of people with disabilities to be treated as individuals based on facts and objective evidence rather than generalizations and stereotypes; and (2) the right of people with disabilities to have a meaningful, effective and equal opportunity to participate in and benefit from programs and services. The first concept prohibits programs from excluding people with disabilities from TANF work, education and training programs based on the assumption that people with disabilities can participate in only low-level activities. The second requires TANF programs and work, education and training programs to provide reasonable accommodations, auxiliary aids and services and effective communication unless the TANF agency can demonstrate that it would fundamentally alter the program or be an undue financial and administrative burden. It requires programs to make reasonable modifications in policies, practices and procedures when necessary to avoid discrimination, unless the agency can demonstrate that it would fundamentally alter the nature of the program or service. It also requires programs to use criteria and methods of program administration that do not have a discriminatory effect.
The guidance makes clear that these principles and requirements apply to all aspects of TANF programs including the benefits application process; notices and other procedures for informing applicants and recipients about their rights; TANF program requirements; education, work and training programs; training of program staff; and the training and practices of organizations under contract with the TANF agency to serve TANF recipients.
Screening and Assessment. Applying the governing principles to the TANF screening and assessment process, the guidance states that intake workers should be trained to recognize potential disabilities and should conduct an initial screening to identify possible disabilities using reliable screening tools. If there is an indication that an individual has a disability that may impact the ability to participate in and benefit from proposed program assignments, the guidance goes on to state that the individual should receive a more in-depth assessment conducted and interpreted by trained individuals using validated screening instruments. Significantly, the guidance states that disclosure of a disability by program applicants and participants, and participation in screening and assessment, must be voluntary. Further, it states that the privacy and confidentiality of information about applicants’ and recipients’ disabilities should be protected. Given the wide variety of arrangements between TANF programs and education and training programs and employers and the lack of specificity in Title II regulations about whether and when State and local government programs can ask about disabilities and about confidentiality of this information, this discussion is particularly important.
Appropriate Programs and Services. The guidance states that the programs and services provided to TANF participants with disabilities must be appropriate for their individual needs. The guidance makes clear that this may require programs to provide specialized instruction, mentoring, on-the-job training or job skills training to individuals with learning disabilities or mental retardation. It requires job opportunities to be physically accessible to individuals with mobility impairments, and service providers with the knowledge and experience to serve people with disabilities. It also means that TANF programs must ensure that individuals with disabilities can participate in all programs and services for TANF recipients, not just programs designed specifically for people with disabilities.
Reasonable Modifications to Work Requirements and Time Limits. The guidance makes clear that TANF programs should make reasonable modifications to program requirements for individuals unable to meet those requirements. Examples offered in the guidance are: making program modifications to facilitate compliance with work and other program requirements; exemptions from work requirements and time limits for people with disabilities when they are unable to comply with these requirements with or without reasonable modifications; modifying sanctions for non-compliance with program requirements; and granting extensions or temporary exemptions to TANF requirements for people with disabilities. Significantly, however, the guidance also states that TANF agencies must allow individuals with disabilities who are granted exemptions from work requirements to participate voluntarily in TANF programs and must provide accommodations to these individuals to facilitate participation. This discussion suggests that TANF programs that have an “all or nothing” approach to imposing work requirements and providing programs and supportive services should revise their approach.
Effective Communication with Applicants and Recipients. TANF programs must ensure effective communication with individuals with speech, hearing or visual impairments. This means providing interpreters, note-takers and materials in alterative formats if it is necessary to ensure that communication is effective. In addition, TANF programs may not exclude people from programs and services because they are provided in inaccessible buildings. Agencies do not have to make structural changes to buildings where other methods, such as relocating programs, are effective in providing equal access.
Staff Training. The guidance states that to in order to ensure that programs are not administered in a manner that has a discriminatory effect, programs should train staff to provide equal access for people with disabilities, ensure that staff of contract agencies are similarly trained, establish clear policies that incorporate modifications to policies and practices for people with disabilities, and conduct regular oversight of programs to ensure that people with disabilities have equal access.
Fundamental Alteration and Undue Burden. The guidance makes clear that TANF agencies and work, education, training and other programs do not have to make any program changes that would be a fundamental alteration of the program or that cause an undue financial and administrative burden.
Promising Practices. The guidance contains examples of “promising practices” that help ensure that TANF programs comply with the ADA and Section 504. The guidance makes clear that these practices are not mandatory requirements, but rather are one way for TANF agencies to meet their legal obligations under Section 504 and the ADA. Many of the practices discussed have been adopted by some TANF programs. The guidance identifies states that have adopted each practice described and reports and web sites where advocates can obtain more information on these practices and programs. It also contains a helpful checklist to help identify areas of program administration that may need modification.
Some of the promising practices mentioned in the guidance include: conducting studies to determine the prevalence of disabilities in the TANF population; developing ADA checklists for each step of a TANF program process to determine whether there are barriers to access that need to be addressed; simplifying the benefits application process; notifying TANF applicants of their right to assistance during the application process and about other reasonable modifications; providing comprehensive case management; and following up with TANF recipients with disabilities who miss appointments and deadlines.
A number of the promising practices discussed in the guidance involve establishing formal relationships between TANF agencies and other agencies serving people with disabilities, so that TANF recipients with disabilities receive assessment, vocational rehabilitation, mental health and other services that make it possible to find and keep jobs. Examples of agencies with whom TANF agencies can form these relationships include state vocational rehabilitation agencies, community colleges and non-profit agencies. Reimbursement systems that serve as an incentive for contract agencies to serve clients with disabilities are also mentioned as a possible reasonable modification.
Work Requirements and Time Limits. The guidance discusses a number of promising practices that relate to work requirements and time limits, including: extending benefits beyond the state-imposed or 60 month federal limit on benefits; modifying job search requirements; extending time limits for people with learning disabilities to enable them to complete education and training programs; making modifications to work requirements so that people with disabilities can receive medical or mental health treatment; using TANF funds for “allowable activities,” such as remedial education; providing an opportunity to challenge work assignments on the basis that they are not compatible with an individual’s disability before a placement is made; providing education, training and supports for education and training for longer period of time; broadly defining the activities that count as work activities; allowing TANF recipients to enroll in basic education programs; and exempting people with disabilities from work requirements when they cannot carry out work requirements with or without a reasonable modification. The guidance also mentions modifications in work requirements for parents of children with disabilities.
Unresolved Legal Issues
The guidance is far more specific about ways in which the ADA and Section 504 apply to the design and operation of TANF programs than prior HHS guidance on the issue. Nevertheless, the guidance leaves a number of questions unresolved. To a large extent this is a function of the law itself, as many ADA and Section 504 issues are highly fact-specific.
Is a Program That Fails to Follow the Guidance in Violation of the ADA or
Section 504? The largest question left unanswered by the guidance is whether the failure to implement the program modifications discussed in the guidance violates the ADA or Section 504. The guidance does not say that the failure to implement any or all of the promising practices discussed in the guidance necessarily constitutes a violation of the ADA or Section 504. Rather, the practices are one way that a program can meet its obligations under these laws. Programs may be able to meet their obligations under the ADA and Section 504 in some other way.
When is a Program Modification a Fundamental Alteration or Undue Burden? Under the ADA and Section 504, the question of whether a particular program change will be a fundamental alteration or undue burden is highly fact-specific. It depends on a number of factors, including the stated purpose of the program in the federal welfare law (PRWORA), state statutes, regulations and other materials; the cost of the program changes; and other factors. However the guidance does not give examples of modifications that would be a fundamental alteration or undue burden and explain why these program changes would not be required under the particular circumstances. Thus, it sheds little light on this issue.
In fact, many modifications needed by people with disabilities will not be a fundamental alteration and undue burden. Many are plainly consistent with PRWORA’s goal of ending dependence of needy parents on government benefits by promoting job preparation. Many others are consistent with PRWORA’s goal of providing assistance to needy families so that children can be cared for in their own homes. Many modifications will also be consistent with program goals states in state statutes, regulations and state and local TANF plans. As for the financial cost of modifications, given state TANF surpluses in many states, it will be difficult for many states to argue in many situations that program modifications are a fundamental alteration or undue burden on the basis of cost.
Exempting Individuals From Work Requirements or Time Limits When Reasonable Modifications Are Not Provided.The guidance does not directly address whether individuals must be exempt from work requirements when program modifications would have made it possible for an individual with a disability to participate in work activities but are not provided. Given the failure of many TANF programs to provide appropriate programs and supports for people with disabilities, this is a critical question affecting many TANF recipients. Advocates can argue, however, that when modifications could enable an individual with a disability to participate are not provided, it would be consistent with the guidance to argue that exemptions from program requirements are required instead.
Recent Litigation and Administrative Complaints
To date, there has been little litigation on the application of the ADA and Section 504 to TANF programs. In recent months, however, there have been a number of legal developments, including a favorable federal court decision and a favorable OCR ruling.
In September 2000, a New York federal district court granted a permanent injunction in Henrietta D. v. Giuliani, a lawsuit filed in 1995 challenging the failure of the New York City welfare agency to provide meaningful and equal access to public benefits to people with HIV and AIDS. The city agency operates a special division to serve people with HIV and AIDS. The court held that defendants violated the ADA and Section 504 because this division did not issue benefits to people with HIV and AIDS in a timely manner in approximately one-third of all cases. Defendants admitted that they did not even track the length of time they took to process and provide applications for some types of benefits. In addition, the court found that defendants violated the maximum ratios of intensive case managers to clients required by law.
Plaintiffs argued, and the court agreed, that the agency’s special division for people with HIV and AIDS was its means of providing reasonable modifications under the ADA to applicants and recipients of public benefits with HIV and AIDS so that they could access welfare benefits. The court held that the division’s systemic failure to provide benefits within the legally mandated time frames and with appropriate case ratios violated the ADA and Section 504. The court rejected the argument, frequently made by defendants in disability discrimination cases, that the division serving people with HIV and AIDS was a separate program, and therefore that differences between this division and the delivery of benefits to other welfare recipients did not constitute discrimination. The court also rejected the argument that plaintiffs were required to prove intentional discrimination, holding that this was not necessary when the legal claim was the failure to provide reasonable modifications. The court also held that the State was liable for failing to supervise the City in its operation of its public benefits program and defendants violated federal Medicaid and Food Stamps law, and federal and State constitutions. The decision can be found at 119 F. Supp.2d 181 (S.D.N.Y. 2000).
A month later, the Second Circuit affirmed the denial of a permanent injunction in Wright v. Guiliani, another case challenging the failure of the New York City welfare agency to meet it obligation to provide public benefits to individuals with HIV and AIDS. Plaintiffs argued that the failure to provide medically appropriate emergency housing to people with HIV and AIDS, as local law requires, violated the ADA and Section 504. The district court held that to succeed on their ADA claim, plaintiffs would have to prove that they were denied adequate emergency housing as compared with homeless individuals without disabilities. Because there was no evidence in the record about how this comparison group was treated, the district court denied the preliminary injunction, though it also denied the defendants’ motion to dismiss the ADA and Section 504 claims. The Second Circuit affirmed the denial of a preliminary injunction and accepted the district court’s analysis that a program had to deny both meaningful and equal access to a benefit to violate the ADA, and therefore that plaintiffs’ experience must be compared to individuals without disabilities seeking emergency housing. This decision can be found at 230 F.3d 543 (2d Cir. 2000).
On February 9, 2001, the California Superior Court denied a writ of mandate in Fry v. Saenz, a challenge to a state welfare rule that provides TANF benefits to children up to the age of 18 or up to the age 19 if the child attends school full time and is expected to graduate by age 19. The suit challenges this rule under the ADA and Section 504 on the basis that it discriminates against 18 year olds with disabilities who are not expected to graduate by age 19 because of their disabilities. Prior to TANF, federal AFDC law prohibited states from using federal funds for cash assistance for 18 year olds unless they were expected to graduate by age 19.
Two cases challenged the AFDC rule under the ADA and Section 504: one was successful and the other was not. Now, federal law allows states to use federal TANF funds for 18 year old full-time students even if they are not expected to graduate by age 19. Many states, however, have retained the requirement that a student have an expected completion date by age 19. Given the removal of the federal prohibition, the legal argument that it would not be a fundamental alteration to extend benefits to 18 year olds who are not expected to graduate because of their disabilities is stronger under TANF. The court did not write an opinion in support of the ruling.
Plaintiffs are represented by Paula Gaber, Clare Pastore and Dick Rothchild, Western Center on Poverty Law (213-487-7211); Ann Menasche, Legal Aid Society of San Diego (619-471-2630); Brian Lawlor, Legal Services of Northern California (916-551-2150), Kan Tung, Legal Services of Northern California (707-462-4117).
In January, 2001, the Region I Office of the Office of Civil Rights of HHS issued a favorable decision in a complaint filed on behalf of two Massachusetts TANF recipients with learning disabilities. OCR found that the Massachusetts TANF agency violated the ADA and Section 504 by referring the complainants to education and training programs taught by individuals with no experience teaching people with learning disabilities; failing to provide modifications needed to participate in and have an equal opportunity to benefit from these programs; failing to conduct disability screening and assessment to identify the specific nature of complainants’ disabilities even after one complainant told the agency about her learning problem and the other had a history of attending special education; failing to evaluate whether it could serve people with disabilities effectively; failing to monitor its own compliance with the ADA and Section 504; and failing to monitor compliance by the programs and agencies under contract to serve TANF recipients. In addition, OCR found that the TANF program violated the ADA and Section 504 by failing to train staff about how to recognize and accommodate people with disabilities, about programs and services available for people with disabilities, and about the ADA.
The decision is one of the first, if not the first, to deal with the obligations of TANF programs towards people with learning disabilities, which are extremely prevalent in the TANF population. The case is Ramos v. McIntire (OCR Complaint No. 01-98-3055, decided January 19, 2000). Complainants’ attorney is Ruth Bourquin of Massachusetts Law Reform Institute, tel. 617 357-0700, firstname.lastname@example.org. Copies of the decision are available at www.masslegalservices.org/OCR-to-McIntire.pdf.
In February 2000, Greater Boston Legal Services filed an ADA complaint with Region I of the Office of Civil Rights of HHS on behalf of all of their clients with mental disabilities. The complaint alleges that the Massachusetts welfare agency violates the ADA by using policies and practices that screen out people with mental disabilities from qualifying for work exemptions and good cause. It also claims that a number of other methods of program administration have a discriminatory effect. Among the methods challenged are: failing to investigate the reasons for non-compliance with program requirements before sanctioning individuals; failing to fully inform individuals about what constitutes good cause; and failing to train staff about mental disabilities and how to recognize them. In addition, a number of claims challenge the reasonable accommodation process, including: failing to advise people of their right to reasonable accommodations; failing to train staff about the process for obtaining reasonable accommodations and the types of accommodations available; failing to provide reasonable modifications when they are requested; failing to monitor the process of providing reasonable accommodations; failing to have a grievance process when reasonable accommodations are denied; and requiring individuals to document disabilities before providing them with reasonable modifications even when the accommodation is needed to help with program documentation requirements. Attorneys who filed the complaint are Melanie Malherbe (617 603-1625), Brian Flynn, at 617 603-1629, email@example.com, and Michelle Lerner.
New Manual Available for Advocates on TANF and the ADA
Advocates have another new tool at their disposal to use in advocating for people with disabilities in TANF programs. Using Title II of the ADA on Behalf of Clients in TANF Programs, a new manual for welfare and disability advocates, will be available shortly on the Welfare Law Center website at www.welfarelaw.org. The manual was written by Cary LaCheen, a Senior Attorney at the Welfare Law Center who has many years of experience as a disability rights lawyer. The manual contains an extensive discussion of Title II of the ADA and a legal analysis of questions such as what types of assistance the ADA requires TANF programs to provide during the application process to applicants with disabilities, whether the ADA requires TANF programs to provide education, training and support services to TANF recipients with disabilities and disability screening and assessment to TANF applicants and recipients who have or may have disabilities, and whether the ADA requires TANF programs to modify time limits for people with disabilities. The manual contains an extensive discussion of the case law and, unlike the OCR guidance, discusses the strength of various legal claims and the types of program changes that are likely to be considered reasonable modifications as well as those that are likely to be considered a fundamental alteration.
Advocates interested in impact legal representation on these issues should contact Cary LaCheen at lacheen @welfarelaw.org. Questions about state program and policy design for individuals with disabilities or multiple barriers to employment can be directed to Eileen Sweeney or Heidi Goldberg at the Center on Budget and Policy Priorities or the staff of the Center for Law and Social Policy.
– Cary LaCheen –