(1) Provide more days of coverage just to people with disabilities but not others;

                                (2) Provide more coverage to everyone; or

(3) Create an individualized system in which every one gets the numbers of days of coverage he or she needs.  

      Two of these possible remedies will provide more days of coverage to some than to others, which is likely to appear unfair.  Moreover, at least two, and probably all three of these remedies increase the amount of services provided overall, which is likely to be more costly to the program and therefore less likely to be considered reasonable. 

Back to the top

(iv) When Does the Cost of a Program Modification Make it a Fundamental Alteration or Undue Burden?

      There are many ways to conceptualize the cost of most program modifications. Though many defendants make fundamental alteration and undue burden arguments based on cost, few put forth specific cost information in support of their arguments.[642]  Although a simple comparison between the cost of a modification and an agency or program budget is no longer the only factor relevant to making fundamental alteration determinations,[643] case law making such calculations may nonetheless be informative.  Some examples follow:  

1) A panel of the Eleventh Circuit held that it would not be an undue burden to add one correction officer to a prison at a cost of under $25,000 so that inmates with HIV could be integrated into regular prison programs where annual budget of the Department of Corrections was $178 million.[644]  On rehearing en banc, the Eleventh Circuit made a different assessment of risk and cost, and held that a $1.7 million cost for additional prison guards out of a $163 million budget would be an undue burden when the prison system was already 124 guards short at its current budget level.[645]  

2) A federal district court held that providing hepatitis inoculations for staff and residents, which would cost $4,600 - $6,500 plus $500-1600 each year, was not an undue burden for a residential program with a $ 4 million annual budget, and one-time cost of $500-1,500 plus $400-600 each year was not an undue burden for school with $1.1 million annual budget.[646] On appeal, the Eighth Circuit reversed on other grounds.[647]  

3) In reversing summary judgment for the defendant, the Second Circuit held that a $6 million cost to improve public transportation accessibility out of a $490 million federal grant was not “massive” or burdensome under Section 504, in part because federal regulations suggested spending 5 percent on improving transportation access to people with disabilities.[648]  

4) In a motion for a permanent injunction, a district court held that an estimated $40.8 million cost for the first year of providing safety monitoring for people with mental disabilities in a Medicaid home care program, 10% of which would be paid by the City and 40% of which would be paid by the State, and an estimated $42 million penalty the City would incur for failing to meet federal cost containment goals, was not an undue burden, but “a mere fraction of” the $2.7 billion cost of the state’s Medicaid home care program.[649]  On appeal, the Second Circuit vacated on the basis that safety monitoring was a separate service, which the program had no obligation to provide.[650]

Back to the top

      (v) Reasonable Modifications Versus Reasonable Accommodations

      Title II regulations require public entities to make “reasonable modifications” unless it would be a “fundamental alteration.”[651]  In contrast, Title I, which governs employment, requires employers to make “reasonable accommodations” unless it is an “undue hardship.”[652] 

      Advocates may want to take the position that these standards are not identical. Generally, under Title I employees must ask employers for reasonable accommodations to be entitled to them,[653] whereas state and local government agencies must make programs accessible even in the absence of individual requests for modifications.[654]  In addition, Title I in most instances requires only that employers make accommodations to the “known” disabilities of employees and applicants,[655] whereas Title II plainly requires state and local government agencies to make policy and practice changes even in the absence of knowledge about whether particular applicants and recipients of services have disabilities.[656]

      The law is unclear on whether there is a difference between the two standards. The “reasonable modifications” requirement in Title II regulations is based on Title III of the ADA, which has an identical requirement.[657] The fact that Congress used the “reasonable accommodation” and “undue hardship” language in Title I and “reasonable modifications,” and  “fundamental alteration” in Title III certainly suggests that Congress intended the reasonable modification and reasonable accommodation requirements to be different standards.  The legislative history, however, is inconsistent on the issue.  At one point it refers to both undue hardship and undue burden in the same sentence, noting that each standard has a different exception.[658]  Elsewhere, though, the terms are described as “analogous”[659] or are used interchangeably.[660]

      A few recent developments may make it more difficult to argue that the reasonable accommodation requirement of Title I and the reasonable modifications requirement of Title II are different standards. In Olmstead v. L.C.,[661] the Supreme Court, for the first time, interpreted the Title II reasonable modification requirement.  The plurality opinion ends with a footnote that Congress intended the reasonable modification standard to be “consistent with” the reasonable accommodation standard of Section 504 regulations.[662]  The rationale offered in this footnote is questionable at best.[663]  The main point of the footnote is that factors other than cost should be considered in determining whether a modification is reasonable under Title II.  The plurality believed that the Eleventh Circuit considered only cost in determining that providing the relief sought by the plaintiffs in the case was reasonable, and in its view, this was incorrect. Advocates can argue that the Olmstead footnote means no more than that cost should not be the only consideration in reasonable modification determinations.  It does not mean that the two standards are identical in every respect.          

Back to the top

      (vi) Is it the General Purpose of a Rule or its Purpose as Applied to the Individual with a Disability that is Relevant?

      Program rules and requirements should be “a means to an end,”[664] not be an end themselves.  Program rules, no matter how legitimate their purposes generally, may not make sense as applied to particular individuals with disabilities.  This may be because the problem the rule seeks to address does not exist in the case of the individual with a disability, or the individual with a disability is unable to comply with the rule because of a disability so the motivating purpose of the rule is ineffective and unnecessary. When this is the case, a strong argument can be made that modifying or waiving the rule for the individual with a disability would not be a fundamental alteration, because the rule would not have achieved its purpose anyway if it was applied to that individual.  In other words, advocates should take the position that the relevant question in “fundamental alteration” analysis should be whether the purpose of a rule makes sense as applied to the particular individual seeking the modification, and whether it would fundamentally alter the purpose of the rule to modify it for that individual, not whether the rule generally makes sense.  In a challenge to an AFDC waiver allowing California to reduce benefits and use work incentives, the Ninth Circuit used a similar rationale when it noted that HHS’ decision to approve a federal waiver that reduced benefits and imposed work requirements on people with disabilities who could not work was “absurd,” particularly when the waiver program offered no child care, work training, or other services people would need to be able to work.[665]  Some Title II cases have taken an individualized approach to analyzing whether program or rule changes would be a fundamental alteration.[666]  The outcome of many cases turns on whether the court uses this approach. 

        The issue has arisen most often in cases brought by students with disabilities seeking modifications of rules limiting participation in interscholastic sports by prohibiting participation by older students, students who have already participated for 8 semesters and students who cannot meet minimum academic requirements.[667]  The stated purpose of these rules is usually to protect students’ safety by excluding players who are older, and therefore likely to be larger than other students, and to prevent teams from having an unfair advantage by filling their teams with larger and more experienced athletes.  Some courts have held that it would not violate these purposes to allow students with disabilities who are older or beyond the semester limit because of disabilities to continue to participate when they were not likely to hurt others and there was no question of unfair advantage.[668]  Other courts, however, have considered only whether the purpose of these rules were legitimate generally.[669]  Finding they were legitimate, these courts inevitably conclude that waiving these rules for particular individuals would be a fundamental alteration.[670]  

      An individualized analysis of whether modifying the rule for an individual with a disability is a fundamental alteration is consistent with the overall scheme of the ADA.  The ADA is based on the premise that the abilities and needs of people with disabilities are individualized.  It requires individualized assessments of whether an individual has a disability protected by the law;[671] whether an individual is qualified to perform a job;[672] and whether an individual has a disability that poses a “direct threat” to the health and safety of others;[673] to name a few of the individualized determinations required.  In the employment context, the EEOC has indicated in its ADA Title II Technical Assistance Manual that “blanket” medical standards prohibiting everyone with a particular medical condition from serving in particular jobs are presumptively suspect precisely because they don’t use an individualized determination.[674] Making an individualized determination of whether the purpose of a rule would be fundamentally altered if it is modified for a particular individual with a disability would be consistent with this approach.  

Back to the top

      (vii) The Timing of Fundamental Alteration and Undue Burden Determinations

      The very nature of fundamental alteration and undue burden means that the question of whether program changes would be a fundamental alteration or undue burden may well change over time.  As program administration improves and programs benefit from experience, technological changes, and economies of scale, a modification that was not reasonable in the past may become so.  Advocates should always insist that public entities revisit these issues overtime as programs, funding, infrastructures, and state economies change.  

Back to the top

      (viii) The Title II Necessity Exception

      Title II also contains a necessity exception for two of its provisions: the prohibition on the use of eligibility criteria that screen out or tend to screen out people with disabilities,[675] and the prohibition on the use of separate aids, benefits or services.[676]  There is little case law interpreting this exception, though courts that have applied it appear to approach it in much the same way that they approach fundamental alteration and undue burden analysis.  For example, in Howard v. Department of Social Welfare,[677] the welfare agency argued that it provided cash assistance to 18-year-olds only if they attended school and expected to graduate by age 19, thereby excluding some 18-year-olds with disabilities because imposing this rule was necessary to receive federal funds.  The Vermont Supreme Court rejected this argument on the basis that nothing in the AFDC statute prohibited states from spending state funds to provide those benefits, and because the state had not attempted to get HHS to make an exception and provide federal funds for those 18-year-olds in order to avoid discrimination.[678]  There does not appear to be any discussion in the case law about whether necessity is an affirmative defense, though this would be consistent with the general approach of Title II.

Back to the top

B. The Olmstead Decision

      In Olmstead v. L.C.,[679] the Supreme Court for the first time interpreted Title II’s fundamental alteration defense.  The case involved two individuals who challenged their continued institutionalization under the Title II requirement that services be provided in the “most integrated setting appropriate to the needs of qualified individuals with disabilities”[680] and the reasonable modification requirement. [681]

      The district court granted a permanent injunction and ordered the State to place plaintiffs in community-based programs.[682]  It held that segregation was a form of discrimination and rejected the State’s argument that it lacked the funds to serve plaintiffs in the community.  The court held that it was not a fundamental alteration to serve plaintiffs in the community because the State already had community-based programs for people with mental disabilities, and it was less expensive to provide community-based services than to serve people in institutions.[683]

      The Eleventh Circuit affirmed in part, but remanded on the question of whether it would be a fundamental alteration.[684]  To meet its burden on the cost defense, the Eleventh Circuit held that the State would have to demonstrate that spending additional funds to serve the plaintiffs in the community would be “so unreasonable given the demands of the State mental health budget that it would fundamentally alter the services [the state] provides.”[685]  Before certiorari was granted, the district court held on remand that the State had not met this burden.[686]

      The Supreme Court affirmed in part, vacated in part, and remanded.[687] A majority of the Court affirmed the Eleventh Circuit’s holding that unjustified segregation is discrimination,[688] but there was no majority agreement on the standard courts should apply to determine whether community placement would be a fundamental alteration. In an opinion written by Justice Ginsburg, a plurality of four Justices rejected the Eleventh Circuit’s standard for measuring cost on the basis that it was overly simplistic.  Specifically, it reasoned that because the institution in which plaintiffs lived would not close if plaintiffs moved into the community, the state would continue to bear the costs of running the institution as well as community services if relief was granted.[689]  The plurality also reasoned that the Eleventh Circuit standard would leave the state “virtually defenseless” in this type of lawsuit because the cost of providing community services to a few plaintiffs would always be small in comparison with a state’s entire mental health budget.[690]  Instead, the plurality articulated a standard that allows the state to show that, given “the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the state has undertaken to provide for the care and treatment of a large and diverse population of persons with mental disabilities.”[691]  Elsewhere in the opinion the plurality spoke of the state’s “obligation to mete out [] services equitably.”[692]  Thus, the plurality placed greater emphasis on the fairness of resource allocation than on absolute dollar amounts. The plurality explained that if a defendant could show that it had a “comprehensive. . . effectively working plan for placing qualified persons with mental disabilities in least restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the state’s endeavors to keep its institutions fully populated, the reasonable modification standard would be met.”[693]  The plurality also stated that individuals should not be able to jump to the top of a waiting list for community services by bringing lawsuits.[694]

      Justice Stevens concurred in the judgment, but would have affirmed the Eleventh Circuit.[695] He favored an interpretation in which a state would have to serve institutionalized individuals with disabilities in the community who are ready for such placements unless the state could show that spending funds to do so would be unreasonable when viewed in light of the state’s mental health budget.

      In a separate concurrence written by Justice Kennedy and signed by Justice Breyer, Justice Kennedy took a narrower view of the state’s obligations, stating that to prove discrimination, people with disabilities should be required to show either differential treatment of people with mental disabilities compared to a similarly situated group or policies motivated by “animus or unfair stereotypes.”[696]  He expressed the view that such a test might be met on the facts of the case because people with mental disabilities were forced to give up community life to receive the services they need, while others are not.[697]  He also expressed the view that under the reasonable modification standard, “a State may not be forced to create a community treatment program where none exists,”[698] and he emphasized the importance of deferring to the views of treatment professionals.[699]  He cautioned that if the prohibition on unnecessary segregation is applied without care, states may be pressured into compliance “on the cheap,” and place people with mental disabilities into the community without appropriate services.[700]

      The dissent, authored by Justice Thomas, took the position that the ADA does not prohibit “disparate treatment among members of the same protected class”[701] and segregation of people with disabilities is not discrimination “by reason of disability” because the plaintiffs did not claim that disability was the reason for their segregation.[702]  The dissent also expressed concerns about infringement on states’ decisions about how to deliver services.[703]

Back to the top

      C. The Implications of Olmstead: Open Questions and Possible Strategies

      In some respects Olmstead is obviously a victory for people with disabilities, because a majority of the Court recognized that unnecessary segregation is a form of discrimination, and to withstand an ADA challenge on the failure to serve people with disabilities in the community, states must not create plans for moving some people with disabilities currently in institutions into the community.  At the same time, many aspects of the decision are troubling, and may make it easier for defendants to prove that program modifications would be a fundamental alteration. One danger posed by the decision is that states will attempt to use their failure to provide adequate services to some individuals with disabilities as a justification for their refusal to provide reasonable modifications to others with disabilities.  Under the test articulated by the plurality, the less services a state provides, the easier it is to demonstrate that it need not do more for those people already receiving some services.  Nonetheless, this “race to the bottom” standard is plainly inconsistent with the intent of the plurality. 

      As there is currently little case law interpreting Olmstead, advocates have maximum leeway to shape its application. Below are some of the questions left unanswered by the decision and arguments advocates may want to consider.

      Prior to Olmstead, defendants confronted many potential obstacles when they tried to demonstrate that program modifications would be a fundamental alteration or undue burden in lawsuits brought on behalf of one person or a few people,[704] for a number of reasons. It is easier for plaintiffs to frame a modification for one person as an exception to a rule, whereas providing modifications for a class begins to look like a change in the rule.  In addition, the cost of a modification for one or a few individuals is usually minuscule compared with the budget for the agency or the program in question.  Third, the question of how many other people need or would qualify for the same modification is not raised by plaintiffs in an individual case and the onus is therefore on defendants to raise the issue and come forward with information on the number of other people who may have similar needs, as well as the cost of providing the same modifications for all of them.  If defendants have no process in place for making exceptions to program rules for people with disabilities, they are unlikely to know how many other people might seek the same type of modification.        

      Olmstead complicates the situation. The plurality’s concern that individual plaintiffs should not be allowed to jump to the head of a waiting list by filing lawsuits may suggest that individual cases have lost some of their advantage.[705]   Yet, because the plurality’s fundamental alteration standard considers the fairness of granting relief to plaintiffs in light of the overall resources available for programs and the current allocation of those sources, the larger the group of plaintiffs, the greater the share of resources they already receive.  Because Olmstead was not a class action, it did not address how fairness of resource allocation will be measured in class actions and it is not possible to determine how advocates should weigh the relative advantages of individual cases and class actions.

      As there was no majority opinion in the case, it is unclear how much weight lower courts will give to the plurality opinion.  However, given Justice Stevens’ concurrence, a strong argument can be made that the plurality opinion is the “floor” for the reasonable modification standard, as a majority of the Court embraced either this standard or one that is more protective of plaintiffs.

      It is unclear whether the standard in the plurality opinion is a standard for determining whether the ADA has been violated or a standard for determining the timing of relief.  Though the opinion phrases the standard in a number of different ways, the reference to “reasonable pace” could be interpreted as addressing only the question of the timing of relief for ADA violations.  This would leave advocates free to argue for a different, more generous standard for proving whether a public entity has to provide a modification at all.  While the difference between these two interpretations may be insignificant to plaintiffs waiting for community placements, it might matter a great deal in other types of cases, where the timing of compliance is less of a problem for public entities and the defense has taken the position that the ADA does not require the relief sought by plaintiffs at all.

      Olmstead was brought under two Title II legal theories: the prohibition on unnecessary segregation, and the requirement that public entities make reasonable program modifications.  The reasonable modification requirement in Title II has a fundamental alteration defense, but not an undue burden defense.[706]  This may leave advocates free to argue for a different standard for undue burden.

      Unnecessary segregation, the issue in Olmstead, is different in some respects from many other types of discrimination against people with disabilities. Waiting lists, for example, do not exist for many programs and services and many reasonable modifications.  Moreover, unlike many Title II compliance issues, much of the resistance to serving people with mental disabilities in the community is political, not economic.  Institutions have been favored in part because they provide jobs in communities.  The plurality was aware of this and addressed this issue in the legal standard it articulated by requiring states to demonstrate that the “reasonable pace” of implementing an integration plan is not “controlled by [a] State’s endeavors to keep its institutions fully populated.”[707]  This type of resistance will not exist in many other situations.  Because some aspects of Olmstead do not transfer automatically to other Title II issues, it may be possible to argue that a reasonable modification standard identical to the one in Olmstead should not apply to other types of cases. Though there has been very little litigation to date on the issue, it appears that courts will apply at least some aspects of the Olmstead standard to issues other than unnecessary segregation.[708]

      The plurality opinion does not provide guidance on the question of how courts are to measure the fairness of resource allocation. This leaves room for advocates to propose standards addressing this issue.

      The opinion did not address the question of which funds are to be considered  “available resources” when determining whether a state must provide community placements (or, by analogy, comply with other ADA requirements). Advocates should take the position that funds are “available” to states if they can make the effort to obtain them, even when they do not make the effort. The standard should be interpreted in a manner that avoids creating a disincentive to seek funding for programs or modifications. 

      Advocates should argue that the Olmstead standard should be adapted to the particular type of discrimination at issue.  Though job retention in communities will not be a major reason for resistance to many types of ADA compliance, other forms of resistance to ADA compliance may exist.  Applying the framework of the plurality opinion, public entities should be required to demonstrate good faith in making other types of reasonable modifications.

      It may be possible to argue that a narrower definition of “fundamental alteration” should apply to Title II issues other than unnecessary segregation.  Unnecessary segregation claims largely focus on where people with disabilities receive services, not whether they receive them.[709]  Individuals seeking relief in unnecessary segregation claims are already receiving services of some kind.  Thus an argument can be made that courts should view these claims somewhat differently than claims in which the resulting discrimination is that people with disabilities receive less services than others or no services at all.

      If the reasonable modification and reasonable accommodation standards are treated by courts as synonymous, it may be more difficult to obtain program-wide systemic changes through the reasonable modification provision in Title II.  Advocates may therefore need to rely on the reasonable modification requirement less, and other requirements of Title II, such as the prohibition on using criteria or methods of administration that have a discriminatory effect,[710] more.

      If under the plurality standard, states must have “effectively working plans” for complying with Title II’s integration mandate, advocates can argue that Olmstead should be interpreted to require state and local government programs to develop plans for achieving compliance with other aspects of Title II issues as well, particularly where compliance requires structural changes or will take time to implement. Advocates can further argue that Title II entities that have not done so cannot meet their burden on a fundamental alteration defense.  This argument compliments Title II’s transition and self-evaluation plan requirements.

      Advocates should argue that the “reasonable pace” standard should be interpreted in light of the particular modification that is sought.  Public entities should not be given the same latitude on simple modifications as complex ones.  While it might take months to transition people with psychiatric or developmental disabilities to community programs, posting signs informing program applicants and recipients of their rights under the ADA, establishing procedures to make sign language interpreters available on an as-needed basis, and making staff available to assist people with disabilities in accessing benefits and services should not take much time.

      In addition, advocates should take the position that “reasonable pace” should be interpreted in the light of the consequences of failing to provide the particular modification.  When people with disabilities seek modifications needed to obtain any benefits or services, or those needed to avoid termination of benefits or services, the pace that is reasonable should be much faster than in other situations, because the result of delay is that people with disabilities receive no benefits or services.

      Finally, advocates should take the position that “reasonable pace” should be interpreted in light of the nature of the particular program in which a modification is sought.  While a delay of months may be reasonable when the issue is moving people from institutions into the community, because of the time involved in locating appropriate community services or creating those services it they did not already exist, a delay of one day may be too long when the benefit in question is public assistance, the very intent of which is to assist people in meeting basic needs in times of serious need.

Back to the top

      D. Reasonable Modifications, Fundamental Alteration and Undue Burden in TANF Programs

      Reasonable modification, fundamental alteration, and undue burden are relevant to every program change that advocates may want to seek for TANF applicants and recipients.  The question of whether these changes are reasonable is highly fact-specific, and Part Three discusses in greater detail some of the likely modifications advocates might want for their clients with disabilities. Nevertheless, some principles and recommendations apply to many Title II TANF issues, and are discussed below.

Back to the top

(i) ADA Modifications and Program Flexibility

      Because PRWORA gives states tremendous flexibility in how they design and administer TANF programs, many features of TANF programs are permitted, but not required, by PRWORA.  Consequently, many program features that have a discriminatory effect on people with disabilities are permitted but not required by PRWORA, and many program changes advocates may seek on behalf of their clients are permitted but not required by PRWORA as well.  Advocates should focus their efforts on seeking modifications of these program features, because they do not require programs to make changes that are prohibited PRWORA itself, which would be far more likely to constitute a fundamental alteration.

      Title II also gives public entities flexibility in how they meet their ADA obligations.  Providing programs and supports to TANF applicants and recipients with disabilities may be one way a TANF program can prevent or remedy discrimination, but it is probably not the only way it can do so.

      To take one example, a TANF program may have requirements that applicants must satisfy before their applications for benefits are processed, such as job search requirements.  These requirements may have a discriminatory effect on applicants with disabilities because they may be less able to satisfy these requirements for reasons related to their disabilities.  If the program does nothing at all to address the issue, it has violated Title II.  But if it chooses to do something, it can choose which option to take.  The program can:  

                1) waive the requirement entirely for people with disabilities;  

2) provide people with disabilities with supports such as accessible transportation, readers, and other measures, to provide an equal opportunity to have their applications processed;  

3) shorten the period of job search required if this would provide equal access to benefits;  

4) modify the job search requirement in other ways that would enable people with disabilities to have an equal opportunity to benefit from TANF benefits;  

5) create an alternative requirement for people with disabilities who cannot participate in job search, as long as it is no more difficult than job search requirements, enables people with disabilities to have an equal opportunity to access benefits, and does not violate other ADA provisions, such as the prohibition on unnecessary segregation; or,  

               6) eliminate the job search requirements for everyone.  

      As long as the modification effectively addresses barriers in the application process caused by the job search program, the TANF program can choose among these remedies.  However, if job search is a program in its own right that provides a service or benefit to people with disabilities, as opposed to simply functioning as an eligibility requirement for benefits, some of the options listed above may be unacceptable if they do not remedy the denial of equal access to the job search process.

Back to the top

      (ii) The PRWORA Statement of Purpose

      The purpose of PRWORA is to “increase the flexibility of States in operating a program designed to  

1) provide assistance to needy families so that children may be cared for in their own homes or the homes of relatives;  

2) end the dependence of needy parents on government benefits by promoting job preparation, work and marriage;  

3) prevent and reduce out-of-wedlock pregnancies and establish annual numerical goals for preventing and reducing the incidence of these pregnancies; and  

4) encourage the formation and maintenance of two-parent families.”[711]   

The program purposes of PRWORA are the purposes of TANF programs, not PRWORA itself.  Put differently, a TANF program is permitted under PRWORA to have one of the four goals listed in PRWORA and to have additional program goals.  Therefore, it should be difficult for TANF programs to argue that program modifications for people with disabilities conflict with the goals of PRWORA itself and are therefore would fundamentally alter TANF programs. 

      Generally, many program modifications that people with disabilities need, including help in the application process, help with job search, changes in sanction procedures so that people with disabilities are not sanctioned for disability-related reasons, and even modifications of time limits, are consistent with one of the four purposes mentioned in PRWORA, which is aiding needy families so they can care for children at home.  Many other possible program modifications for people with disabilities, such as modifications in job training and education programs and providing aids and services so that people with disabilities can participate in and benefit from these programs, are consistent with another one of the four goals mentioned in PRWORA, ending dependence by promoting job preparation and work.  Even when program modifications promote only one of the goals of a TANF program, if they don’t conflict with others, an argument can be made that they shouldn’t be considered fundamental alterations.[712]

      Although PRWORA refers to increasing state flexibility in its statement of purpose, state flexibility is not independent of other TANF goals in PRWORA.[713] An argument that program modifications for people with disabilities are a fundamental alteration simply because they conflict with PRWORA’s goal of increasing state flexibility should fail.  As all ADA requirements could be construed as restricting state flexibility, this interpretation would absolve TANF programs from having to make any reasonable modifications, which is clearly not what Congress had in mind when it included language in PRWORA that TANF programs are subject to the ADA.[714]

Back to the top

(iii) Statements of Purpose in TANF Programs

      In light of the enormous flexibility that PRWORA gives to states to design their own programs, state TANF program statements of purpose are at least as important as PRWORA’s statement of purpose in determining whether a particular program modification would be a fundamental alteration under the ADA.

      Because TANF programs may have one of the four goals specified in PRWORA as well as additional goals, these additional program goals will be relevant to whether particular program modifications are a fundamental alteration under the ADA.  For example, if a TANF job training program has a stated goal of decreasing dependence of needy parents on government benefits but also has a stated goal of lifting people out of poverty, providing program modifications so people with disabilities can participate in training for higher-paid jobs, even though training for lower-paid jobs is available and would not require program modifications, would further the goal of lifting people out of poverty, even though it may not be necessary to further the goal of decreasing dependence on government benefits.  Therefore, advocates would have a strong argument that the modifications would not fundamentally alter the program by conflicting with TANF program goals.