CHAPTER
10: REASONABLE MODIFICATIONS, FUNDAMENTAL ALTERATION, AND UNDUE
ADMINISTRATIVE OR FINANCIAL BURDEN |
Chapter 10: Reasonable Modifications, Fundamental Alteration, and Undue Administrative or Financial BurdenA.
In General
Title II regulations have a number of different defenses and
exceptions that apply to various Title II requirements. Public
entities are not required to make reasonable modifications necessary
to avoid discrimination when it would fundamentally alter the nature
of the program, activity, or service.[598]
In addition, public entities are not required to take action to
achieve program access, or to ensure effective communication with
applicants, recipients and the general public, when doing so would
fundamentally alter the nature of the program, activity or service, or
be an undue financial or administrative burden.[599] DOJ
regulations and Interpretive Guidance treat fundamental alteration and
undue burden as affirmative defenses,[600]
and many courts have as well.[601]
The Supreme Court appears to have endorsed this interpretation.[602]
Title II regulations do not contain a fundamental alteration
and undue burden defense for any other Title II requirements,[603]
and the legislative history of Title II suggests that Congress
intended these defenses to apply only in limited circumstances.[604] Nonetheless,
most courts have assumed that both defenses apply to other Title II
requirements.[605] Many
advocates believe that courts would never interpret Title II
requirements to be absolute, and have not pressed for an
interpretation of Title II that would leave state and local
governments without any defense to some Title II requirements. In any
event, as most program changes necessary to avoid discrimination could
be framed as reasonable modifications, there is some logic to applying
the defenses more broadly. Advocates
should assume that, despite the language of the regulations, courts
will treat most if not all Title II claims as if the fundamental
alteration and undue burden defenses apply.
Although one might assume that "fundamental alteration”
refers to the nature of the modification and "undue burden” to the
cost and inconvenience of implementing the modification, in practice
courts treat these terms as interchangeable. In Olmstead v. L.C.,
for example, the plurality opinion discusses a cost-based defense as a
fundamental alteration issue.[606]
The discussion that follows therefore treats the two defenses
as interchangeable.
(i) Fundamental Alteration and Undue Burden Procedural
Requirements
Title II regulations contain procedural requirements for public
entities that wish to assert a fundamental alteration or undue burden
defense: 1)
A decision that a particular action, modification or provision of
auxiliary aids and devices would be a fundamental alteration or undue
financial or administrative burden must be made by the head of the
public entity or his or her designee.[607] 2)
Before such a determination is made, all
of the resources available for use in the operation of the program or
service must be considered.[608] 3)
The public entity's determination must be accompanied by a written
statement of the reasons for the decision.[609] 4)
If an agency determines that a particular action would be an undue
financial or administrative burden, this is not a justification for
the public entity to do nothing.
Instead, the public entity must take any other action that
would not be a fundamental alteration or undue burden but that would
nevertheless ensure that, to the maximum extent possible, individuals
with disabilities receive the benefits and services of the entity.[610]
Though many defendants assert fundamental alteration and undue
burden defenses, few cases mention these procedural requirements or
discuss whether defendants have complied with them.[611]
Advocates may want to request written justifications when
public entities refuse to make program modifications and if litigation
ensues, argue that defendants have violated this requirement and that
after-the-fact justifications should be viewed skeptically by courts. (ii)
The Program Flexibility Concept
A basic tenet of the reasonable modification requirement is
that state and local governments have the flexibility to decide how
they will satisfy their obligation to make reasonable modifications.[612]
An agency's refusal to provide the particular modification requested
by or for a person with a disability is not necessarily
discrimination; if the agency offers another modification that is
effective, it has satisfied its legal obligation.[613] (iii)
Relevant Factors in Reasonable Modification, Fundamental Alteration
and Undue Burden Analysis
Although the question of whether a modification is reasonable
is highly fact-specific, courts have treated the following factors as
relevant to whether a modification is reasonable or a fundamental
alteration: 1)
Is the modification required by
or consistent with state law?:
When a requested modification is consistent with state enabling
legislation for a program, courts have held it would not be a
fundamental alteration of the program to make the modification.
In Helen L. v. DiDario,
the Third Circuit required a state Medicaid agency to provide
attendant services to a Medicaid recipient in her home, which would
enable her to leave a nursing home where she had been living.
The court held that this was not a fundamental alteration in
part because state attendant care legislation stated that community
living was among its goals.[614] (2)
Does state legislation mention
the requirement the person with a disability seeks to modify?: In Easley
v. Snider,[615]
the Third Circuit rejected an ADA challenge to a state attendant care
program that excluded individuals
who were not mentally alert. Plaintiffs
argued that the exclusion had a discriminatory effect on people with
psychiatric and other disabilities that affected mental alertness, and
argued that individuals with mental disabilities who were not alert
should be admitted into the program and permitted to use surrogates to
direct their care. Reversing a judgment for the plaintiffs, the Third Circuit
held that it would be a fundamental alteration to do so, in part
because one of the three purposes of the program identified in the
statute was for people with disabilities to control their attendant
care.[616] Given this statutory language, the court
reasoned that consumer direction of the service was not just a means
of providing service, but an essential program requirement.[617]
One of the most troubling aspects of this decision is that
another purpose of the program mentioned in the statute was to enable
people with disabilities to live in their own homes and communities.[618]
However, the court did not discuss this purpose or examine whether the
attendant program at issue was the only one serving people with
disabilities in the region, in which case individuals excluded from
this program would be prevented from obtaining any community home care
services, in clear conflict with this other program purpose. Thus, the
decision appears to privilege one statutory purpose over another. 3)
Does the modification change the
eligibility requirements for the program?:
In Helen L. v. DiDario,[619] the Third Circuit suggested that if a
modification does not change program eligibility requirements, this
tips in favor of a determination that it is not a fundamental
alteration under the ADA. In
Helen L., the issue was
whether Medicaid recipients eligible for attendant services would be
served in an institutional or a community setting, but eligibility
requirements for the service were the same, so providing this service
in the home as opposed to an institution would not alter program
eligibility requirements. 4)
Does the modification change the
substance of the program or service?: In Helen
L. the court also reasoned that providing the service in the
community instead of an institution was not a fundamental alteration
because it would not change the substance of the attendant care
service.[620] 5)
Is the modification a complete
waiver of a program requirement or another type of change?: Courts
generally view waivers of program requirements less favorably than
other types of program modifications.[621]
When the only modification that would enable an individual to
participate in a program is a complete waiver of a rule or eligibility
requirement, a number of courts have held that the modification would
be a fundamental alteration. Several
cases have been brought under Titles II and III of the ADA by high
school and college athletes with disabilities seeking modifications in
rules limiting participation in interscholastic sports for students
over age 19, limiting participation to 8 semesters, or limiting
participation to students who can satisfy particular academic
requirements. Older students who were in school for a longer period of
time or at an older age as a result of disabilities, and students
unable to satisfy academic requirements as a result of disabilities,
have argued that these rules have a discriminatory effect.[622] While
some plaintiffs in these cases obtained preliminary or permanent
relief,[623] preliminary relief was denied in others,[624]
and in others still, preliminary relief was reversed on appeal.[625]
In some of the decisions that were unfavorable to plaintiffs,
the fact that the modification sought was a complete waiver of an
existing rule weighed in favor of holding that it would be a
fundamental alteration.[626] 6)
Is a complex factual
determination required to decide whether a rule should be modified for
an individual?: Some
courts have rejected plaintiffs' Title II, Title III, and Section
504 claims on the basis that the remedy sought, namely, an
individualized determination as to whether a rule should be modified
for an individual with a disability, would require a complex factual
assessment that was difficult to perform or resource-intensive.[627] 7)
Does the program already have a
waiver provision or other means of applying for an exception to the
program requirement?: When a program already provides a mechanism
for making individualized determinations about whether a rule will be
waived for some individuals, courts have held that it is not a
fundamental alteration or undue burden to create, or to expand an
existing waiver process for waiver requests for disability-related
reasons.[628]
At the same time, courts have also viewed a program's failure
to have any mechanism for granting exceptions to rules as an
indication that defendants made no effort to consider the needs of or
accommodate people with disabilities.[629] However,
some courts have suggested that infrequent granting of waivers under a
pre-existing waiver process might indicate that program requirements
were essential.[630] 8)
Does the agency make or allow
the modification in other circumstances?:
A number of Title II and Title III cases have held that when a
program makes a program modification for reasons other than disability
or in other circumstances, it would not be a fundamental alteration to
make the same modification for people with disabilities as a
modification under the ADA. [631] 9)
Is there evidence that the
modification would save money?: Prior to Olmstead
v. L. C.,[632]
when a modification was a less expensive way of delivering services
than existing methods, this significantly undercut undue burden
arguments. For example,
in cases challenging programs for failing to provide services in the
"most integrated setting” appropriate for the needs of people with
disabilities[633] courts have considered the fact that providing
mental health and attendant care services in the community is far less
expensive than providing services in institutions.[634]
Arguments about cost savings have been made successfully in the
other types of Title II cases as well.[635] However,
as discussed below, Olmstead
has significantly altered the legal landscape on this issue. 10)
Does the modification appear to
give people with disabilities "more” than others?:
Modifications that appear to give people with disabilities more of
something than others get are less likely to be viewed as reasonable.
This is so even though Title II regulations provide that
"nothing in this part prohibits a public entity from providing
benefits, services, or advantages to individuals with disabilities, or
to a particular class of individuals with disabilities beyond those
required by this part.”[636] The
fact that programs are allowed to provide more of something to people
with disabilities, however, does not mean that they have discriminated
if they fail to do so. In addition, courts may interpret this
provision to mean only that public entities can offer special benefits
and services that people with disabilities need because they have
disabilities, such as programs that teach people Braille or education
programs for people with learning disabilities, not more of the same
benefit. Of
course, many modifications can be characterized either as "more”
of something than other people receive or as "creating a level
playing field” by providing something that is necessary for people
with disabilities to have the same
opportunity to benefit from the program as others.
Under Alexander v. Choate,[637]
and Southeastern Community
College v. Davis,[638]
a modification is considered to be "more” or "extra” only when
it would fundamentally alter the nature of the program.[639] The
fact that everyone does not receive the same amount of a benefit or
service after the modification is made does not necessarily mean the
modification is unreasonable. Although
characterization plays a large role in determining whether a
modification is reasonable, there are some important guideposts for
assessing the strength of an ADA reasonable modification argument.
Title II requires an "opportunity to participate in and
benefit from” programs and services, and an "equal opportunity to
obtain the same result, to gain the same benefit or reach the same
level of achievement. ”[640] It does not require equal results.[641]
In many situations, the line between reasonable and
unreasonable is the difference between a modification that creates an
equal opportunity and one that creates equal results. (11)
Is the modification necessary
for people with disabilities to receive any services?:
Modifications that affect initial access to services are more likely
to be viewed as reasonable than modifications that increase the amount
of services people with disabilities receive. When a barrier of some
kind prevents an individual or group of individuals with disabilities
from obtaining any services at all from a program, the remedy for this
type of discrimination usually gives everyone access to the same
service, but does not change the amount of services people are
entitled to receive. Thus
the remedy is less likely to raise issues of fairness that arise when
people with disabilities are given "more” than others.
To take one example, requiring applicants to a local government
program to use a driver's license as the only means of
identification has a discriminatory effect on people who are blind and
those with other disabilities that make it difficult or impossible to
drive. A program can remedy this discrimination by changing its rule
and accepting alternative forms of identification, which will give
everyone an equal opportunity to satisfy the identification
requirement of the application process.
It would not give some people with disabilities more benefits
than others would. Nor
would it give people with disabilities more benefits than they would
have received had there been no discrimination. In contrast, when a neutral limit on services, like the
14-day hospital coverage limits in Choate,
has a disparate impact on people with disabilities, in order to remedy
the disparate impact, the program must either: (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. (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]
(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.
(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.
(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.
(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. 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]
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.
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. (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.
(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]
(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.
Because many TANF programs have multiple goals and goals are
often phrased in general terms, state authorizing legislation and state
plans will rarely provide definitive answers to the question of what
program changes would be a fundamental alteration under the ADA.
Sometimes it is unclear whether statements in authorizing
legislation or state plans qualify as statements of purpose.
Nevertheless, even statements paraphrasing the "general assurances”
required by PRWORA may be helpful in arguing that many program changes
would not be a fundamental alteration.
To take a few examples, New York TANF authorizing legislation
states that it is "the policy of the state that there be programs
under which individuals receiving public assistance will be furnished
work activities and employment opportunities and necessary services in
order to secure unsubsidized employment that will assist participants to
achieve economic independence.”[715]
This statement of purpose is consistent with a number of program
modifications for people with disabilities.
Because it is framed in terms of the availability of services,
rather than ending public assistance or requiring people to work,
modifying work requirements, and providing supports so that people with
disabilities can participate in and benefit from education and training
programs is consistent with this stated purpose.
In addition, because the purpose is framed in terms of the state
providing services, it would not be a fundamental alteration of this
purpose for the state to create programs where an insufficient number of
programs exist. Further,
New York's state TANF plan states that New York "intends to”
conduct a program that "provides assistance to needy families with (or
expecting) children and promotes individual responsibility and family
independence.”[716]
Most modifications, including exemptions from work requirements
and extensions of time limits, would be consistent with this goal.
CalWORKS, California's TANF program, is operated at the county
level, and each county has drafted its own plan.
The San Francisco plan contains "objectives” and
"principles,” including several objectives relating to linkages
between job seekers, businesses and service providers; strengthening
child support enforcement; establishing career centers in disadvantaged
neighborhoods; and creating more on-the-job and work experience
opportunities for those transitioning from welfare to work.[717] There
are no goals concerning public assistance and none that mention reducing
the use of assistance or increasing employment.
Program modifications that exempt people with disabilities from
work requirements they cannot fulfill or that extend benefits beyond
time limits should not fundamentally alter the plan's stated goals.
Sacramento's plan has very different language.
Among the "major program goals and objectives” listed in the
plan's Executive Summary are "to reduce dependence on government
assistance by promoting job preparation, work and marriage;” "to
support overall state efforts to implement a system of outcomes which
include … the extent to which recipients have obtained unsubsidized
employment;” and "to assist the State in reducing child poverty.”[718]
The goal of reducing public assistance is to be carried out
through "job preparation, work and marriage.” While this language
places greater emphasis on work and reducing the use of public benefits
than the San Francisco plan, an argument can still be made that
providing exemptions from work requirements and extensions of time
limits for people with disabilities that are unable to work despite job
promotion efforts does not conflict with these goals. Certainly,
providing reasonable modifications to enable people with disabilities to
be able to work is compatible with these goals.
The goal of reducing child poverty is consistent with extending
benefits when failure to do so would cause greater poverty in children.
A "fact sheet” from the county welfare agency also lists
several program purposes, including, "promote and encourage work to
enable families to become self-sufficient,” and "provide financial
aid for children who lack financial support and care.”[719]
These purposes are also consistent with many program
modifications for people with disabilities. (iv)
Include all Available Sources of Funding for TANF Programs and
Recipients in Assessment of Fundamental Alteration and Undue Burden
When analyzing whether TANF program modifications would be a
fundamental alteration and undue burden, all available funding must be
considered, including federal TANF funds and state maintenance of effort
funds.[720]
Depending upon the modification sought, other sources of funding,
including funding for training, vocational, educational, child care,
community service and other programs,[721]
funds available from the Workforce Investment Act,[722] the Transportation Equity Act for the 21st
Century (TEA),[723] and any other similar sources of funding must
be considered.
An assessment of fundamental alteration and undue burden should
also include any TANF contingency funds available to states during an
economic downturn,[724] and any performance bonuses available to
states.[725] Even
if a state did not obtain or seek a particular source of funding, it
must be included in the fundamental alteration and undue burden analysis
if the funding could have been sought and obtained.[726]
Indeed, a state's failure to seek available sources that could
be used for programs and modifications for people with disabilities
should be considered powerful evidence that a state cannot make a
showing of undue burden. According
to a survey conducted by the U.S. General Accounting Office between July
and December 1998, six states decided not to participate in the
Welfare-to-Work formula grants at all.[727]
Thus, some states have clearly not sought all available funding. (v)
State Surpluses
It should be very difficult for TANF programs to prove that
program modifications would be a fundamental alteration and undue burden
if the state has substantial amounts of unspent TANF funds, which is the
case in many states.
The combined effect of PRWORA's federal block grant formula,
state maintenance of effort requirements and rapidly decreasing welfare
caseloads has resulted in surpluses of unspent TANF funds in most
states. Indeed, most
welfare programs have more funding available now for programs serving
low income people than they did before PRWORA went into effect.[728] The
General Accounting Office estimated that in fiscal year 1997, 46 states
had more resources than they would have under the old welfare programs,
with a median increase of 22 percent, or about $4.7 billion additional
state and federal funds nationwide.
Unlike Welfare-to-Work grants, which must be returned to the
federal government if they are not used within three years,[729]
and unlike state maintenance of effort expenditures, which must be made
within the same fiscal year,[730]
states may carry over any unspent federal TANF funds.[731] By
the middle of fiscal year 2000, states carried over a total of $8.3
billion in unspent funds.[732] To
quote GAO: these additional resources "present states with a unique
opportunity to invest more in programs that can help people find and
keep their jobs and prevent them from returning to welfare while still
saving some resources for a ‘rainy day'.”[733] Clearly,
many states have not taken full advantage of this opportunity.[734]
Indeed, some states are using the new fixed federal financing formula
for federal TANF grants to reduce their own spending on programs for the
poor, instead of investing it in new programs.[735] Even
under the Olmstead plurality standard, states should have difficulty
demonstrating that the cost of many types of modifications for people
with disabilities is a fundamental alteration given these unspent funds. (vi)
The Significance of Segregated and Separate State Funds
PRWORA allows states to co-mingle their maintenance of effort
funds with federal TANF funds, segregate these funds within a program
receiving federal TANF funds so that the state funds are spent on
families who receive services paid for entirely by these funds, or use
the funds for programs that receive no federal TANF funding at all.[736]
Individuals receiving benefits funded only with state funds are
not subject to the 60 month lifetime benefit limit[737]
or work requirements.[738]
This means that states have the ability to serve families without
having to include them in the federal work participation rates.
Consequently, states
cannot convincingly argue that some program modifications for people
with disabilities, such as exemptions from work requirements and
permitting individuals to participate in activities that do not satisfy
federal work participation requirements, would be a fundamental
alteration or undue burden by putting states at risk of being unable to
meet PWRORA work participation requirements. The states' ability to
separate and segregate state funds seriously undermines this type of
fundamental alteration and undue burden argument.
(vii) The Relevance of Other Exceptions in TANF Programs
PRWORA contains a number of mandatory and optional exceptions to
its requirements.[739] In
addition, TANF programs may also have additional exceptions to
particular policies and requirements.
Many of these exceptions are for reasons other than disability.
One possible argument is that because a TANF program makes
exceptions to a particular program rule or requirement for reasons other
than disability, it would not be a fundamental alteration to make the
same modification as a reasonable modification for a disability.
This argument would be based on a number of cases holding that
when a program makes exceptions to rules and requirements for reasons
other than disability, it would not fundamentally alter the program to
make the same exception to people with disabilities as a modification
for their disabilities.[740]
However, there are some important differences between the
exceptions made in these cases and exceptions to TANF requirements.
The principal difference is that the cases did not involve
exceptions to program requirements that were created by federal or state
statutes. Most involved program rules. In
Alexander v. Choate, the Supreme Court rejected an interpretation of Section 504
that would have required recipients of federal funds to consider whether
each contemplated action could be carried out in a way that caused fewer
disadvantages to people with disabilities.[741]
Interpreting the ADA to require state and local governments and
agencies to grant exceptions to people with disabilities each time the
legislature granted an exception to a program requirement to anyone else
or for any other reason would do just that.
Most courts are likely to hold that Congress and state
legislatures are free to carve out some exceptions to requirements
without also having to grant the same exception to people with
disabilities. While the
existence of an exception to program requirements for reasons other than
disability suggests that it would not be a fundamental alteration to
modify the same program requirement for people with disabilities, the
fact that the program grants the exception in other circumstances does
not mean that it is discriminatory to fail to do so for people with
disabilities. In addition,
PRWORA's emphasis on state flexibility in program design may make this
type of argument more difficult, especially as Congress plainly
contemplated that states would create their own program and work
requirements. The existence
of exceptions to rules for reasons other than disability is likely to be
of greater relevance when these exceptions are informal, not legislated.
Nevertheless, if a program maintains that it is unable to provide
a particular program modification, it may be of some relevance to a
court that the program is already providing this modification for
others. (viii)
Fundamental Alteration Should be Analyzed for the Individual
Advocates should argue that the pertinent question should be
whether a TANF program or program purpose will be fundamentally altered
for the individual or a group of individuals with disabilities if a
modification is provided; not whether it would be altered for everyone.
If the purpose of sanctioning individuals for non-compliance with work
requirements is to encourage recipients to improve compliance and take
work requirements seriously, an argument can be made that this purpose
will not be served when sanctions are imposed on individuals who are not
able to comply because of their disabilities.
Thus it will not alter the purpose of sanctions it they are not
applied to those individuals.
An individualized analysis of TANF program purposes is not only
consistent with the ADA,[742]
it is consistent with PRWORA. PRWORA
contains provisions requiring states to take a close look at the
abilities and interests of individual recipients.
The Individualized Responsibility Plan provisions[743] place an emphasis on the abilities, skills and
employment goals of individual TANF recipients, and the services that
will be provided to enable each recipient to meet those goals.
Similarly, the preamble to the interim regulations of the
Welfare-to-Work program requires operating entities to ensure that there
is "an individualized strategy for transition to unsubsidized
employment in place for each participant.”[744]
TANF programs may argue that an individualized analysis of
fundamental alteration and program purpose is not appropriate for some
TANF modifications because making exceptions to program requirements for
individuals with disabilities will send a message to other program
participants that they need not take work or other program requirements
seriously. Therefore,
a program may argue, making program modifications for people with
disabilities will fundamentally alter the program by affecting
compliance with program requirements by others.
In contrast, waiving the eight semester rule or the rule
requiring students to expect to graduate by age 19, so learning disabled
individuals can participate in interscholastic athletics,[745]
will not cause 18 year-olds without disabilities to behave any
differently than they would if these exceptions were not made.
However, the desire to send a message to other program
participants about the consequences of non-compliance with program
requirements should not justify the application of rules to people with
disabilities when they have a discriminatory effect and do not serve
their intended purpose when applied to those individuals. (ix)
Whose Obligation is it to Provide Reasonable Modifications in TANF Work,
Training and Other Programs?
Because welfare programs have a variety of different
relationships with work, education, and training programs and these
programs are organized in a variety of ways, it will not always be clear
who has the obligation under the ADA to provide reasonable modifications
to clients. In some situations, more than one entity will have this
obligation.
Title II requires public entities to make reasonable
modifications to its own programs and services.
Depending upon how the program is described in state laws,
regulations, plans, agency manuals, and other materials.
This means that in some situations a training, education or work
program is part of the TANF program, and the TANF agency will have an
obligation to provide reasonable modifications to individuals after they
have been placed in these programs.
In other situations, a TANF agency may simply refer individuals
to those programs, in which case it is the responsibility of these other
programs to provide program modifications on the job or at the education
or other program. Even when
this is the case, however, the TANF agency may have an obligation to
provide particular types of modifications, such as those that enable
program participants to access these other programs.
For example, if the TANF program makes placements or referrals to
these programs, it must make modifications to the referral or placement
process so that people with disabilities have an equal opportunity to
participate in and benefit from this referral and placement process.
In some instances, that will mean providing assistance so that
people with disabilities can contact and communicate with and navigate
these programs.
In addition, some TANF programs have a sufficient amount of
control over the terms and conditions of employment of TANF recipients
to meet the definition of "employer” or "employment agency”
under Title I of the ADA.[746] When this is so, the TANF program will have an
obligation under Title I to provide reasonable accommodations to
applicants and employees on the job, in addition to their obligation
under Title II to provide reasonable modifications in the TANF program.
This, however, does not necessarily remove the obligation of other
entities to provide reasonable accommodations to the individual. In many
situations both the work or work training program and the TANF program
will have an obligation under Title I to provide reasonable
modifications to TANF applicants and recipients at job placements.
Finally, if a TANF program denies benefits, sanctions, or takes
other adverse action against people with disabilities based on
non-compliance with work, training, job search or other requirements,
and modifications were not provided to the individual, even if the TANF
agency was not operating the program in question, the TANF program has
discriminated on the basis of disability.
Thus in some instances TANF programs may have an obligation to
provide reasonable modifications at jobs or other placements they do not
operate or control in order to avoid discriminating against TANF
recipients. Back to the top [600]. See 28 C.F.R. §§ 35.130(b)(7); 35.164; see also 28 C.F.R. app. pt. A § 35.150 ("The burden of proving that compliance with paragraph (a) of § 35.150 would fundamentally alter the nature of a service, program or activity or would result in undue financial and administrative burden rests with the public entity”). [601]. See, e.g., L.C. v. Olmstead, 138 F.3d 893, 904 (11th Cir. 1998), aff'd in part, 527 U.S. 581 (1999); Gorman v. Bartch, 152 F.3d 907, 913 (8th Cir. 1998); McNally v. Prison Health Servs., 46 F. Supp.2d 49 (D. Me), reconsideration denied, 52 F. Supp.2d 147 (D. Me. 1999); Kathleen S. v. Dep't of Pub. Welfare, 10 F. Supp.2d 460, 471 (E.D. Pa. 1998). [602]. See Olmstead v. L.C., 527 U.S. 581, 605-06 (1999). Although the Court did not discuss burdens of proof, it squarely placed the burden of demonstrating that a modification would be a fundamental alteration with the defendant: "If, for example, the State were to demonstrate that it had an effectively working plan for placing qualified persons with mental disabilities in less 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.” Id. at 605-06. [603]. Some, however, contain exceptions when actions are "necessary” for reasons specified in the regulations. See e.g., 28 C.F.R. §§ 35.130(b)(1)(iv); 35.130(b)(8) (1999). [604]. See H. R. Rep. No. 101-485(III), at 50-51 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 473-74. [605]. See, e.g., Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), cert. denied, 506 U.S. 813 (1995) (applying fundamental alteration defense to Title II's requirement that services be provided in the "most integrated setting appropriate to the needs of qualified individuals with disabilities”); Heartz v. Morton, No. Civ. 98-317-B, 1999 WL 1327398 (D.N.H. Jan. 8, 1999) (same); Williams v. Wasserman, 937 F. Supp. 524, 528 (D. Md. 1996) (same). But some courts have held that in particular types of Title II cases, some Title II defenses do not apply. See, e.g., Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 733-35 (9th Cir. 1999) (holding that the fundamental alteration defense, described by the court as the "reasonable modification" test, does not apply in challenges to facially discriminatory laws). [611]. See, e.g., Olmstead, 527 U.S. 581 (Title II procedural requirements not mentioned); Sandison v. Michigan High Sch. Athletic Ass'n, 64 F.3d 1026, 1034-36 (6th Cir. 1995) (same); Aughe v. Shalala, 885 F. Supp. 1428, 1431-32 (W.D. Wash. 1995) (same). But see Tugg v. Towey, 864 F. Supp. 1201, 1209-10 (S.D.Fla. 1994) (court mentions failure to comply with Title II procedural requirements). [612]. See, e.g., Davis v. Francis Howell Sch. Dist., 138 F.3d 754 (8th Cir. 1998) (holding that a school did not discriminate by refusing to administer medication above the customary dose to student when it allowed parents or their designee to do so); Maczacyj v. New York, 956 F. Supp. 403 (W.D.N.Y. 1997) (holding that a masters program with a required on-site component did not discriminate against individual with panic disorder who was unable to deal with social situations when school offered several accommodations, including a separate room in which to retreat, accompaniment by a friend, and waiver of attendance at social events).
[613]
See id. [614]. See 46 F.3d 325, 337-38 (3d Cir. 1995). See also Kathleen S. v. Department of Pub. Welfare, 10 F. Supp.2d 460, 470, 470-71 (E.D. Pa. 1998) (holding that state Medicaid program must provide services to institutionalized individuals with psychiatric disabilities in the community where state law, like the ADA, requires placement of individuals with psychiatric disabilities in the least restrictive environment). But cf. Randolph v. Rodgers, 170 F.3d 850, 859 (9th Cir. 1999) (holding that existence of state law requiring sign language interpreters in prisons was not conclusive of whether it would be an undue burden to provide them). [617]. See id. at 303; see also Marshall v. McMahon, 22 Cal. Rptr.2d 220, 226 (Ct. App. 4th 1993) (affirming judgment for defendants in a case challenging exclusion of people with mental impairments from protective oversight home care under Section 504 on the basis that people with mental disabilities were not "otherwise qualified” because they lacked the ability to "self direct”). [620]. See id. at 337; see also Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999) (holding that providing safety monitoring to people with psychiatric disabilities in a Medicaid home health care program would change the substance of the services provided, and was therefore not required under the ADA); Charlie H. v. Whitman, 83 F. Supp.2d 476, 501 (D.N.J. 2000) (involving a challenge to the failure to train foster parents of children with disabilities, in which the court held that plaintiffs were challenging the substance of the services provided, which is not actionable under the ADA); Charles Q. v. Houstoun, 1996 U.S. Dist. LEXIS 21671 (M.D. Pa. Apr. 22, 1996) (following Helen L. in requiring state to provide outpatient psychiatric services); Henrietta D., 81 F. Supp.2d at 432 (denying defendant's motion for summary judgment because plaintiffs sought access to existing public benefits, not a change in the benefits provided); Howard v. Dept. of Soc. Welfare, 655 A.2d 1102 (Vt. 1994) (holding that allowing 18 year olds with disabilities to continue receiving AFDC benefits would not be a fundamental alteration because it wouldn't change the nature of the benefits provided). [621]. See, e.g., Davis v. Francis Howell Sch. Dist., 138 F.3d 754, 757 (8th Cir. 1998) (waiving school policy refusing to administer medications to children in more than the recommended maximum dose even when prescribed by a doctor is unreasonable); Weinreich v. Los Angeles Co. Metro. Transp. Auth., 114 F.3d 976, 979 (9th Cir. 1997) (transportation authority is not required to waive requirement that applicants seeking a half-fare card for people with disabilities submit updated medical information every three years); Jacobsen v. Tillmann, 17 F. Supp.2d 1018, 1026 (D. Minn. 1998) (the ADA does not require waiver of mathematics requirement of teacher certification test). [622]. Some of these cases were brought under Title III of the ADA, which applies to privately owned or operated places of public accommodation, and Section 504, not Title II of the ADA, but their analysis is equally applicable to Title II claims. [623]. See, e.g., Washington v. Indiana High Sch. Athletic Ass'n Inc., 181 F.3d 840, 852 (7th Cir.), cert. denied, 120 S. Ct. 579 (1999) (preliminary injunction affirmed); Bingham v. Oregon Sch. Activities Ass'n, 37 F. Supp. 2d 1189, 1202 (D. Or. 1998) (holding that waiving the eighth semester rule was a reasonable modification); Dennin v. Connecticut Interscholastic Athletic Conference, 913 F. Supp. 663 (D. Conn. 1996) (preliminary injunction granted), vacated as moot, 94 F.3d 96 (2d Cir. 1996); Johnson v. Florida High Sch. Activities Ass'n, 899 F. Supp. 579, 586 (M.D. Fla. 1995), vacated and dismissed as moot, 102 F.3d 1172 (11th Cir. 1997); Doe v. Marshall, 459 F. Supp. 1190 (S.D. Tex. 1978) (preliminary injunction granted), vacated on other grounds, 622 F.2d 118 (5th Cir. 1980), cert. denied, 451 U.S. 993 (1981); Booth v. Univ. Interscholastic League, No. Civ. A-90-CA-764, 1990 WL 484414, at *5 (W.D. Tex. Oct. 4, 1990) (preliminary injunction granted); Univ. Interscholastic League v. Buchanan, 848 S.W.2d 298, 304 (Tex. App. 1993) (affirmed permanent injunction). [624]. See Rhodes v. Ohio High Sch. Athletic Ass'n, 939 F. Supp. 584, 592 (N.D. Ohio 1996) (holding that plaintiff was not discriminated against "solely by reason of” disability); Cavallaro v. Ambach, 575 F. Supp. 171 (W.D.N.Y. 1983). [625]. See, e.g., McPherson v. Michigan High Sch. Athletic Ass'n, 119 F.3d 453, 462 (6th Cir. 1997); Sandison v. Michigan High Sch. Athletic Ass'n, Inc., 64 F.3d 1026 (6th Cir. 1995); Pottgen v. Missouri State High Sch. Activities Ass'n, 40 F.3d 926, 931 (8th Cir. 1994). [627]. See, e.g., Davis v. Francis Howell Sch. Dist., 138 F.3d 754 (8th Cir. 1998) (holding that waiving school policy of refusing to administer more than customary dose of medication would require burdensome determination of safety of each request); McPherson v. Michigan High Sch. Athletic Ass'n, Inc, 119 F.3d 453, 462 (6th Cir. 1997) (en banc) (holding that evaluating waiver requests of a rule prohibiting students from participating in inter-school sports for more than eight semesters to determine whether a particular student's participation would give a team an unfair competitive advantage would be burdensome); Olinger v. United States Golf Ass'n, 205 F.3d 1001 (7th Cir. 2000) (holding that it would be burdensome to evaluate requests to waive walking requirement at U.S. Open), rehearing en banc denied, 2000 U.S. App. LEXIS 14464 (June 22, 2000). [628]. See, e.g., Bingham v. Oregon Sch. Activities Ass'n, 37 F. Supp.2d 1189, 1201-02 (D. Or. 1998) (holding that a waiver of the eight semester limit for high school athletes was a reasonable modification because waivers were granted for other program eligibility rules); Ganden v. National Collegiate Athletic Ass'n, 1996 U.S. Dist. LEXIS 17368 at *14 (N.D. Ill. Nov. 21, 1996) (Title III case denying a preliminary injunction to learning disabled athlete challenging denial of eligibility from college athletic program based on grade point average and core courses taken, but holding that it would not be a fundamental alteration to modify core course requirement because a waiver process was already in place); Univ. Interscholastic League v. Buchanan, 848 S.W.2d 298, 302-03, Nos. 3-92-108-CV, 3-92-161-CV (Feb. 3, 1993) (holding that providing a waiver procedure for making fitness determinations for students over age 19 to participate in college athletics would be a reasonable accommodation under Section 504); Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 913 F. Supp. 663 (D. Conn.) (preliminary injunction granted), vacated as moot, 94 F.3d 96 (2d Cir. 1996) (Title III case). But see McPherson, 119 F.3d at 462 (fact that defendant already has waiver process does not mean it wouldn't be unduly burdensome because individualized determination that would have to be made about whether waiving the rule would lead to unfairness is a different type of determination). [629]. See, e.g., Booth v. Univ. Interscholastic League, No. A-90-CA-764, 1990 WL 484414, at *4 (W.D. Tex. Oct. 4, 1990). [630]. See, e.g., Bowers v. National Collegiate Athletic Ass'n, 9 F. Supp.2d 460, 478 (D. N.J. 1998). [631]. See, e.g., Martin v. PGA Tour, Inc., 994 F. Supp 1242, 1248 (D. Or. 1998), aff'd, 204 F.3d 994 (9th Cir.), cert. granted, 121 S. Ct. 30 (2000) (holding under Title III that it was not a fundamental alteration of professional golf association tournament to allow golfer with a mobility impairment to ride in golf cart during a tournament when other association golf tournaments allowed players to use golf carts); Washington v. Indiana High Sch. Athletics Ass'n, Inc., 181 F.3d 840, 852 (7th Cir.), cert. denied, 120 S. Ct. 579 (1999) (court holds that argument that it would be a fundamental alteration to grant a waiver to a student with a disability "particularly unpersuasive” where school had previously granted waivers of a rule limiting participation in high school athletics to eight semesters); Bingham v. Oregon Sch. Activities Ass'n, 37 F. Supp.2d 1189 (D. Or. 1999) (holding that it was a reasonable modification to grant exceptions to rule limiting participation in high school sports to eight semesters for disability-related reasons when exceptions were granted for other reasons); Galusha v. New York State Dep't of Envtl. Conservation, 27 F. Supp.2d 117, 125 (N.D.N.Y. 1998) (where state park allowed many motorized vehicles to use roads despite rule prohibiting access by motorized vehicles, it was not an undue burden to allow motorized wheelchair users to use them); c.f. Bowers v. National Collegiate Athletic Ass'n, 9 F. Supp.2d 460, 478 (D.N.J. 1998) (the fact that college athletic program waived core course requirement at the request of a college and later amended rules to allow students to request waivers created genuine issue of material fact as to whether core course requirement was an essential eligibility requirement). [633]. See 28 C.F.R. § 35.130(d)(1999) ("A public entity shall administer services programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”). [634]. See, e.g., Helen L. v. DiDario, 46 F.3d 325 (3rd Cir. 1995); Charles Q. v. Houstoun, 1996 U.S. Dist. LEXIS 21671 (M.D. Pa. Apr. 22, 1996). [635]. See, e.g., Tugg v. Towey, 864 F. Supp. 1201 (S.D. Fla. 1994) (failure of county mental health program to renew contracts of mental health professionals who spoke sign language violated ADA where funding these individuals would in fact be less expensive than using mental health counselors unfamiliar with sign language in addition to sign language interpreters to serve deaf clients). [640]. 469 U.S. at 304; see also Davis, 442 U.S. at 397; 28 C.F.R. §§ 35.130(b)(1)(ii), (iii) (1999). [641]. See Choate, 469 U.S. at 304; Davis, 442 U.S. at 397; see also ADA Title II Technical Assistance Manual, supra note 254, at § II-3.3000. [642]. See, e.g., Howard v. Dep't of Soc. Welfare, 655 A.2d 1102, 1110 (Vt. 1994) ("we do not decide if such circumstances would amount to a fundamental alteration because [the defendant] has presented no evidence on the number of children who would qualify under modification criterion”); Kathleen S. v. Department of Pub. Welfare, 10 F. Supp. 2d 460, 471 (E.D. Pa. 1998) (noting that defendant produced no evidence that providing appropriate community services to plaintiff class institutionalized in psychiatric hospital would be a fundamental alteration); see also. Borowski v. Valley Central Sch. Dist., 63 F.3d 131, 142 (2d Cir. 1995) (in Section 504 employment case, court notes that defendant presented no evidence of the cost of an accommodation, its budget or other relevant information though it made an undue hardship argument). [645]. See Onishea, 171 F.3d 1289, 1304 (11th Cir. 1999) (en banc), cert. denied sub nom Davis v. Hopper, 120 S. Ct. 931 (2000). [649]. See Rodriguez v. DeBuono, 44 F.Supp. 2d 601 (S.D.N.Y.), vacated, 197 F.3d 611 (2d cir. 1999). [653]. See 29 C.F.R. pt. 1630 app. §1630.9 (1999) ("Generally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.”); see also U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act Q.39 (1999) [hereinafter EEOC Reasonable Accommodation Guidance] available at http://www.eeoc.gov/docs/accommodation.html. The Guidance makes an exception to this requirement when an employer knows the individual has a disability and the disability may be the very reason the individual does not make a request. Mental retardation is the example given. [654]. See supra Part I.2.B.iii-C.iv and Part I.3. Arguably this requirement comes from Title II's prohibition on "methods of administration” with a discriminatory effect, Title II's planning requirements and other Title II provisions, not Title II's reasonable modification requirement. [656]. See supra Part I.3.B. Unfortunately, however, the OCR TANF Guidance does not reflect this distinction. It states that a benefit provider may violate the ADA or Section 504 by making an inappropriate referral to job placement opportunities because of a failure to properly and individually take into account a person's "known” disabilities. See OCR TANF Guidance, supra note 242, at Overview.
[663].
All of the Section 504 regulations mentioned by the plurality as
providing the model for Title II apply only to discrimination in
employment. Many
Section 504 regulations typically have one set of requirements for
discrimination in employment and another for access to the
agency's programs and services. It is far more likely that
Congress intended the Section 504 standards for access to programs
and services, not those for employment, to be the model for Title II
regulations. [664]. Johnson v. Florida High Sch. Activities Ass'n, 899 F. Supp. 579, 586 n.8 (M.D. Fla. 1995), vacated as moot, 102 F.3d 1172 (11th Cir. 1997). [665]. See Beno v. Shalala, 30 F.3d 1057, 1073 (9th Cir. 1994). Because the Ninth Circuit held that its only jurisdiction to review the waiver was under the limited Administrative Procedure Act (APA) "arbitrary and capricious” standard, it did not reach the question of whether the waiver program violated the ADA. Instead, it held that the waiver violated the APA because the administrative record contained no evidence that HHS considered the plaintiffs numerous objections to the waiver, including its impact on people with disabilities. See id. at 1074. [666]. See, e.g., Washington v. Indiana High Sch. Athletic Ass'n Inc., 181 F.3d 840, 851 (7th Cir. 1999); Ganden v. Nat'l Collegiate Athletic Ass'n, Inc., 1996 U.S. Dist. LEXIS 17368 (N.D. Ill. Nov. 21, 1996); Dennin v. Connecticut Interscholastic Athletic Conference, 913 F. Supp. 663 (D. Conn 1996), vacated as moot, 94 F.3d 96 (2d Cir. 1996); Johnson v. Florida High Sch. Activities Ass'n, 899 F. Supp. 579 (M.D. Fla. 1995), vacated as moot, 102 F.3d 1172 (11th Cir. 1997); Booth v. Univ. Interscholastic League, No. A-90-CA-764, 1990 WL 484414 (W.D. Tex. Oct. 4, 1990); Univ. Interscholastic League v. Buchanan, 848 S.W.2d (Tex. App. 1993) (court does not use "fundamental alteration” language but holds individualized determination required). [668]. See, e.g., Dennin, 913 F. Supp. at 668, vacated as moot, 94 F.3d 96 (2d Cir. 1996); Johnson, 899 F. Supp. at 585, vacated and dismissed as moot, 102 F.3d 1172 (11th Cir. 1997); Booth, 1990 WL 484414, at * 4 (preliminary injunction); Doe v. Marshall, 459 F.Supp. 1190 (S.D. Tex. 1978) (preliminary injunction), vacated, 622 F.2d 118 (5th Cir. 1980). But see Bowers v. Nat'l Collegiate Athletic Ass'n, 974 F. Supp. 459 (D.N.J. 1997) (denying preliminary injunction on the basis that allowing all special education classes to count towards NCAA's "core course” requirement for college athletes would violate purpose behind requirement), summary judgment motion granted in part, 9 F. Supp.2d 460 (D.N.J. 1998); Ganden, 1997 U.S. Dist. LEXIS 17368, at *15. [669]. See, e.g., McPherson v Michigan High Sch. Athletic Ass'n, 119 F.3d 453 (6th Cir. 1997); Sandison v. Michigan High Sch. Athletic Ass'n, 64 F.3d 1026 (6th Cir. 1995); Pottgen v. Missouri State High Sch. Activities Ass'n, 40 F.3d 926 (8th Cir. 1994); Sadler v. Univ. Interscholastic League, No. A-91-CA-836, 1991 WL 633967 (W.D. Tex. Nov. 25, 1991). [670]. See, e.g., McPherson, 119 F.3d at 462; Sandison, 64 F.3d at 1033; Pottgen, 40 F.3d at 931. In Sandison, the court also applied an incorrect standard in assessing whether a modification was required, stating that ‘modification' connotes a moderate change. See 64 F.3d at 1033. [671]. See Sutton v. United Airlines, Inc., 527 U.S. 471, 483 (1999) (finding that "whether a person has a disability under the ADA is an individualized inquiry”). [672]. See 42 U.S.C.A. § 12111(8) (West 2000). [673]. See 28 C.F.R. pt. 35 app. A § 35.104 (1999); 28 C.F.R. § 36.208 (c) (1999); 29 C.F.R. § 1630.2(r) (1999); see also Sch. Bd. of Nassau County. v. Arline, 480 U.S. 273, 287 (1987) (remanding issue of whether teacher with recurring tuberculosis posed health threat to students and co-workers to trial court for individualized inquiry); ADA Title II Technical Assistance Manual, supra note 254, at § II-2.8000. [682]. See L.C. v. Olmstead, No. 95-CV-1210-MHS, 1997 U.S. Dist. LEXIS 3540 (N.D. Ga. Mar. 26, 1997). [704]. See Juvelis v. Snider, 68 F.3d 648 (3d Cir. 1995) (holding that waiving a Medicaid domicile rule for one developmentally disabled person was not a fundamental alteration under Section 504 because the rule itself was not challenged and the essential nature of the program was not altered). [705]. This has already occurred. See, e.g., Heartz v. Morton, No. CIV. 98-317-B, 1999 WL 13273898 (D.N.H. Jan. 8, 1999) (denying a preliminary injunction to nursing home resident seeking a community placement in part because granting relief would allow the plaintiff to jump ahead of others on a waiting list or require the defendant to provide the same relief to everyone ahead of him on the list, which be a fundamental alteration and would violate Medicaid's cost effectiveness requirement). [706]. But see Pascuiti v. New York Yankees, 87 F. Supp.2d 221, 224-25 (S.D.N.Y. 1999) (applying Olmstead to undue burden analysis). [708]. See Pascuiti, 87 F. Supp.2d at 224-25 (applying Olmstead to accessibility of city-owned sports stadium). [709]. The Second Circuit made this very point in Rodriguez v. City of New York when it distinguished the facts of that case from Olmstead, where "the Court addressed only -- where Georgia should provide treatment, not whether it must provide it.” Rodriguez v. City of New York, 197 F.3d 611, 619 (2nd Cir. 1999), cert. denied, 121 S. Ct. 156 (2000). [712]. This situation is easily distinguishable from the situation in Easley v. Snider, 36 F.3d 297 (3d Cir. 1994), where the court held that one of the program purposes identified in the statue was in direct conflict with the modification that was sought. [716]. New York State Dep't of Soc. Servs., New York State Plan and Executive Certification: Administration of the Block Grant for Temporary Assistance for Needy Families (effective Nov. 1, 1999) at http://www.dfa.state.ny.us/tanf/. [717]. See San Francisco Department of Human Servs., San Francisco County CALWorks Plan (Jan. 7, 1998) at http://www.dss.cahwnet.gov.wtw.countypl.html. [718]. Sacramento County CalWORKS Plan (Dec. 3, 1997) at http://www.dss.cahwnet.gov.wtw.countypl.html. [719]. Sacramento County Dep't of Human Assistance, CalWORKS Fact Sheet (rev. Jan. 2000) at http://www.co.sacramento.ca.us/dha/afdcfact.html. [722]. See Workforce Investment Act of 1998, Pub. L. No. 105-220, 112 Stat. 936 (1998) (codified as amended in scattered sections of 29 U.S.C.A.). [723]. See Pub. L. No. 105-178, 112 Stat. 107 (1998) (codified as amended in scattered sections of U.S.C.A.). TEA provides competitive grants to states and localities to develop flexible transportation systems to connect welfare recipients and other low income individuals to jobs and employment-related activities. [727]. The states that decided not to participate in the formula grants in fiscal year 1998 were Idaho, Ohio, Mississippi, South Dakota, Wyoming and Utah. See U.S. General Accounting Office, Welfare Reform: Status of Awards and Selected States' Use of Welfare-to-Work Grants (1999) available at http://frwebgate.access.gpo.gov/cgi-bin/miltiddb.cgi. [728]. See U.S. General Accounting Office, Welfare Reform: Early Fiscal Effects of the TANF Block Grant, AIMD-98-137 (Aug. 1998) [hereinafter August 1998 GAO Report] available at http://access.gpo.gov/cgi-bin/miltiddb.cgi. [732]. See Ed Lazere, Center on Budget and Policy Priorities, Unspent TANF Funds in the Middle of Federal Fiscal Year 2000 (Aug. 2, 2000) < http://www.cbpp.org/8-2-00wel.pdf>. Some of this $8.3 billion represents funds that states have committed to spend but not yet spent. [734]. See Robert Pear, States Declining to Draw Billions in Welfare Money, N.Y. Times, Feb. 8, 1999, at A1. [735]. See Jason DeParle, Life After Welfare: Spending the Savings; Leftover money for Welfare Baffles, Inspires, States, N.Y. Times, Aug. 29, 1999, at 1 (nat'l ed.). [739]. See, e.g., 42 U.S.C.A. § 607(e)(2) (West 2000) (exception to sanctions for failure to satisfy work requirements for single custodial parents of children under six where appropriate child care is not available); 42 U.S.C.A. § 607(b)(5) (West 2000) (exception to work requirements and exclusion from work participation rates permitted for single custodial parents of children under one year of age); 42 U.S.C.A. § 608(a)(7)(C) (West 2000) (hardship exception and the exception for individuals who were battered or subject to extreme cruelty to the prohibition on using federal funds for assistance after 60 months). |
