PART III: USING THE ADA TO ADDRESS COMMON PROBLEMS IN TANF PROGRAMS

Chapter 11: Does the ADA Require TANF Programs to Help Applicants with Disabilities with the Benefit Application Process and with Navigating the System?

      The TANF application process raises two types of issues for people with disabilities. The first is barriers to access that might occur when applying for any public benefits, such as a lack of physical accessibility of offices, and the need for assistance in completing applications and navigating the system.[747]  The second is barriers specific to TANF programs, including diversion policies, job search requirements, and other policies and requirements intended to discourage individuals from receiving assistance.[748]  

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      A. The Obligation to Make Reasonable Modifications in the Application Process

      The ADA requires welfare agencies to provide a variety of different types of assistance to applicants for TANF benefits.  This assistance is required as a reasonable modification of policies, practices, and procedures that are necessary to avoid discrimination.[749] It is also required because without such assistance, welfare agencies’ application processes are a method of administration that have a discriminatory effect on people with disabilities.[750]  Failing to provide modifications during the application process also prevents people with disabilities from having an equal opportunity to benefit from the TANF program,[751] otherwise limits the enjoyment of rights and advantages enjoyed by others receiving the benefits,[752] and denies meaningful access to TANF benefits, to name only a few of the applicable ADA prohibitions.

      In fact, in its Title II Technical Assistance Manual, the Department of Justice uses this very program modification as an example of the type of reasonable modifications that may be required under Title II.  It states:  

A county general relief program provides emergency food, shelter, and cash grants to individuals who can demonstrate their eligibility.  The application process, however, is lengthy and complex.  When many individuals with mental disabilities apply for benefits, they are unable to complete the application process successfully.  As a result, they are effectively denied benefits to which they are otherwise entitled.  In this case, the county has an obligation to make reasonable modifications to its application process to ensure that otherwise eligible individuals are not denied needed benefits.  Modifications to the relief program might include simplifying the application process or providing applicants who have mental disabilities with individualized assistance to complete the process.[753]  

      In addition, the OCR TANF Guidance provides the following example of a reasonable modification:  

[a] welfare program with a complicated application form will need to modify its application form or provide someone to help fill out the form when a person with a mental disability is unable to complete the form.[754]  

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      B. Fundamental Alteration and Undue Burden

      Advocates have a very strong argument that providing reasonable modifications during the application process is not a fundamental alteration or undue burden.  This assistance does not change the nature or substance of TANF benefits,[755] the substantive eligibility requirements for benefits, or the manner in which benefits are provided.[756]  Making these modifications is not prohibited by federal law[757] and there is a strong argument that it is consistent with one of the TANF program goals mentioned in PRWORA, which is to “provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives.”[758]  It is also unlikely that state law will have purposes that conflict with these modifications.  The cost of providing this assistance should not be substantial.  The barriers addressed by these modifications prevent some individuals with disabilities from getting any benefits, which courts are likely to view as a compelling reason for modifications.[759]   Finally, the modifications put everyone on an equal footing by providing an equal opportunity to receive benefits; they do not give people with disabilities “more” than others.[760]

      As the barrier denies meaningful access to the application process, the relevant inquiry is whether individuals are qualified to apply for benefits, not whether they would ultimately be able to qualify for them.[761]  Moreover, where welfare agencies use joint applications for TANF and other benefits, the relevant question is whether an individual is qualified to apply for any of these benefits, not just TANF.           

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      C. Possible Reasonable Modifications

      Clients may need and be entitled to a wide range of modifications during the TANF application process.  A partial list of such modifications follows:  

1) readers to read application forms for people whose disabilities impair their ability to read, including individuals with learning disabilities, mild mental retardation, visual impairments, and any conditions treated with medication that causes blurred vision;  

2) assistance in filling out forms for individuals whose disabilities impair their ability to complete forms, such as individuals with learning disabilities, psychiatric disabilities, visual disabilities, orthopedic, musculoskeletal, neurological and other disabilities;  

3) providing additional explanations of forms and their requirements for individuals whose disabilities impair their ability to understand the forms;  

4) providing an aide or additional person to accompany individuals through different stages of the application process, where such assistance is needed for physical, cognitive, psychiatric or other disabilities;  

5) providing flexibility in appointment times, waiting times, and other aspects of the appointment process;[762]  

6) making additional phone calls, advocating for, and taking other steps to assist individuals with disabilities with other stages of the application process;  

7) helping individuals with disabilities to gather necessary documentation to demonstrate eligibility for services, including making phone calls on their behalf, accepting alternative forms of documentation and verification, where disabilities impair the ability to gather this information;  

8) allowing individuals with disabilities to apply for benefits and attend other appointments at alternative sites, where disabilities impair access to existing sites, either because they are not physically accessible, because auxiliary aids and services are not provided, or because of transportation barriers;  

9) modifying the application process in other ways, by allowing applicants to apply by telephone, mail, home visits, or by other means;  

10) allowing family members, friends or others to attend and participate in various stages of the application process even where rules would otherwise prohibit attendance or participation;  

11) simplifying the application process in other ways, by modifying application forms, eliminating steps in the process, or by other means, as long as programs can still obtain the information needed to make eligibility determinations;  

12) providing auxiliary aids and devices, such as qualified interpreters, note takers, transcribers, assistive listening devices (such as TTYs), open and closed captioning,[763] when necessary to ensure effective communication with people with disabilities, giving primary consideration to the aids and devices of the individual’s choice. Using a note pad to communicate with individuals who are speech or hearing impaired during some parts of the application process, may not be sufficient for more complex and lengthy interactions in which complex information must be conveyed and understood.[764]  Where clients have limited reading and writing skills, TTYs may not be adequate and interpreters may be required.[765]  

13) using telecommunication devices for the deaf (TDDs) or equally effective means of communication (such as telephone relay services) to communicate by telephone with applicants, recipients and members of the public who are speech or hearing impaired.[766]  In Interpretative Guidance, the DOJ has encouraged agencies that have extensive contact with the public to have TDDs, and identified “public aid offices” as among those having extensive contact.[767]  

14) extending time periods for keeping pending applications open for people with disabilities to provide additional time to submit documentation demonstrating eligibility for benefits.[768]  

      Agency policies prohibiting staff at welfare centers from making any of the modifications listed above or prohibiting staff from assisting applicants with applications for benefits violate the ADA.  

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      D. Notice of the Availability of Modifications

      Title II notice requirements require TANF programs to provide notice to applicants of their right to the modifications listed above. To be effective, notices must give examples of modifications and not just use the term “reasonable modifications,” which is meaningless to many people.  In addition, notices should give examples of conditions that may qualify as disabilities that entitle people to modifications, including assistance during the application process. TANF programs should not assume that applicants know how “disability” is defined under the ADA. Given the high number of TANF applicants and recipients with undiagnosed disabilities, this assumption would be particularly inappropriate.  Notices should give examples of disabilities, and some examples should be described not just in terms of medical diagnosis but in terms of symptoms, such as difficulty reading or writing, trouble standing for long periods of time, or extreme nervousness.  

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      E. Do TANF Programs Need to Know Which Individuals Have Disabilities to Provide Reasonable Modifications?

      TANF programs can eliminate many barriers in the application process by changing program policies and procedures, and they can do so without any need to know which applicants or potential applicants have disabilities.  Requiring welfare workers to offer particular types of assistance to everyone during the application process and having a designated employee at each site to arrange for non-routine program modifications are examples of such practices.  Programs can also adopt policies on how to handle modification requests and assign responsibility for providing modifications at each site.  These changes require no knowledge of particular applicants’ disabilities. Given the limited knowledge TANF programs have about applicants and their disabilities at this stage, these types of policy changes are essential to avoiding discrimination during the application process.

      Title II requires TANF programs to make reasonable modifications when they are “necessary to avoid” discrimination on the basis of disability.[769]  The preventive nature of this requirement also suggests that agencies need not know which particular individuals have disabilities and are at risk of experiencing discrimination to make program modifications. In addition, Title II prohibits programs from using methods of administration that have a discriminatory effect.[770]  This too requires programs to eliminate such methods even in the absence of specific requests for modifications or knowledge of who will benefit from them.  

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      F. Can TANF Programs Ask Potential Applicants for Benefits if They Have Disabilities in Determining Who Needs Assistance with the Application Process?

      Welfare programs know less about clients before they have applied for benefits than at any other time. Some individuals who need assistance with the application process or other modifications will not ask for them even when notices inform them of the right to assistance.  Unless this assistance is provided to everyone, programs will need to know which particular individuals need and want this type of assistance in order to provide it effectively. This raises a host of questions about the rights of TANF programs to ask about the disabilities of potential applicants. 

      Some welfare advocates have suggested that as soon as potential applicants enter the welfare center, programs should hand out a one-page form with a brief check list likely to identify the existence of a disability and the need for assistance in the application process.[771]  While this approach has some appeal, it also has a number of practical, and possibly legal, drawbacks.

      At an absolute minimum, TANF programs would have to make completion of such forms optional.  Requiring potential TANF applicants to provide information about their disabilities, particularly before they have even applied for benefits, is unjustified and probably violates Title II. Though Title II regulations do not speak to the issue directly, the DOJ Title II Technical Assistance Manual states that “[a] public entity may not make unnecessary inquiries into the existence of a disability.”[772] Information about applicants’ disabilities is not needed by TANF programs to determine who is eligible to apply for benefits.  Thus there is a strong argument that TANF programs have no need to know this information at this time and inquiries about disabilities are unnecessary.[773]  

      Requiring individuals to reveal the existence of a disability before they have applied for benefits will inevitably deter many individuals from applying for benefits simply because they do not want to reveal this information.  Even when TANF programs make answering such questions optional, many applicants will believe that they will not receive benefits unless they provide the information.  Others will not understand that they are optional, due to language barriers, developmental disabilities, or other reasons. This raises the question of whether even optional questionnaires can satisfy the requirements of Title II.  Given this deterrent effect, asking such questions probably violates Title II’s prohibitions on the use of “eligibility criteria that screen out or tend to screen out” people with disabilities from the full and equal enjoyment of the program that are not “necessary for provision of the service, program or activity being offered,” [774] and on using methods of administration that have a discriminatory effect.[775]         

      If TANF programs do ask potential applicants about their disabilities and advocates choose not to object to this process, advocates should urge TANF programs to adopt, publish, and comply with confidentiality policies that prohibit the sharing of the information requested on these forms with those outside the agency.  Although Title II does not specifically address whether state and local government programs must keep such information confidential, confidentiality is essential. Potential applicants must be assured that the information will not be shared with other agencies, or requesting the information will inevitably screen out people. 

      In addition, asking potential applicants questions about their disabilities may violate Title I of the ADA, which prohibits discrimination in all terms and conditions of employment.[776] The U.S. Equal Employment Opportunity Commission (EEOC), which enforces Title I, has issued Enforcement Guidance that discusses the relationship between TANF agencies, recipients, and organizations operating job programs.[777]  The Guidance makes clear that under some circumstances, TANF agencies meet the Title I definition of “employer” or “employment agency” in their relationship with TANF recipients, and TANF recipients will sometimes meet the definition of “employee” in their relationship with TANF agencies.  It identifies a number of criteria relevant to determining whether an employment relationship exists between the TANF agency and benefits recipient, including: whether the TANF agency has the right to control when, where, and how the TANF recipient performs the job; the hours of work and the duration of the job; and other factors.[778]   The Guidance makes clear that no one factor is determinative, and the critical issue is whether the TANF program has the right to exercise control over the worker’s employment.[779]            

      Title I of the ADA severely restricts employers and employment agencies from asking job applicants questions about their disabilities and from requiring applicants to provide medical records or submit to medical examinations.[780] A question is prohibited if it is “likely to elicit information about a disability.”[781] There are only a few exceptions to this prohibition. According to Guidance, employers may tell applicants about the availability of reasonable accommodations during the hiring process itself and ask applicants if they need such accommodations. [782]  In addition, employers can ask whether applicants will need a reasonable accommodation on the job and what type of accommodation is needed when the employer could “reasonably believe that the applicant will need reasonable accommodations to perform job functions.”[783] Under the Guidance, this reasonable belief could be based on an applicant’s obvious disability, an applicant who voluntarily discloses a hidden disability, or any other circumstances that would justify an employer’s reasonable belief that the applicant will need a reasonable accommodation.[784]  The Guidance does not say what circumstances would justify an employer’s reasonable belief.  Employers may tell applicants about the availability of reasonable accommodations during the hiring process and ask applicants if they need accommodations for this process. Title I also restricts the questions employers are permitted to ask and medical information they are permitted to request from applicants who have been given conditional offers of employment[785] as well as from existing employees.[786] In general, Title I places the greatest restrictions on employers’ ability to ask questions about disabilities when they are dealing with job applicants.    

      The implications of these restrictions for TANF programs are not entirely clear.  Some, but not all TANF agencies will qualify as employers under Title I in their relationships with some TANF clients, and some but not all TANF clients will qualify as employees of the TANF program.  However, when individuals are applying for benefits, it will often be unclear which applicants will later qualify as employees and when TANF programs will qualify as employers in their relationship with those employees.  Nevertheless, because many welfare agencies will go on to establish the legal equivalent of an employer-employee relationship with some TANF recipients under the ADA, they should be subject to the Title I restrictions in their dealings with TANF applicants and recipients.  Moreover, the fact that some TANF applicants will not become employees of the TANF agency does not defeat the applicability of Title I, because Title I protects job applicants, many of whom never become employees of the employer.   Further, individuals who enter welfare offices with the intention of applying for TANF are more analogous to job applicants than to applicants who have conditional job offers or to current employees, and so the Title I regulations governing the job application process are the ones that should apply.  As Title I imposes the greatest restrictions on employers at the earliest stages of the employment process, the most protective standard should apply to applicants and potential applicants for TANF benefits.

      If the Title I restrictions on medical examinations and inquiries for job applicants are applied to TANF applicants and those entering welfare centers with the intention of applying for TANF benefits, the following rules emerge: TANF programs cannot ask any questions of applicants that are “likely to elicit information about a disability,” but they can inform applicants and potential applicants about the availability of assistance with the TANF application process. In addition, TANF programs can ask a particular applicant or potential applicant if he or she will need a reasonable modification if there is reason to believe that the individual might need one because of an obvious disability, voluntary disclosure of a disability, or a reasonable belief that an individual has a disability based on objective factors.  Under these criteria, making targeted offers of help with the application process or other reasonable modifications is permissible.

      States may argue that because TANF programs do not have the same motive to screen out applicants with disabilities that employers have to screen out applicants with disabilities from jobs, the Title I restrictions should not apply to TANF programs. However, the danger that asking disability-related questions will screen out people with disabilities from the TANF program does exist. In addition, this argument should not carry much weight because Title II prohibits programs from using methods of program administration that have a discriminatory effect,[787] not just the intentional exclusion of people with disabilities.

      Advocates may want to work with TANF programs to develop a list of objective criteria for programs to use in identifying individuals that they would be justified under Title I in approaching to ask about disabilities and modifications. Though any list has a danger of making inappropriate generalizations about people with disabilities and encouraging programs to stereotype individuals, it is still preferable to the unfettered discretion of welfare agency staff.

      Advocates should encourage TANF programs to put questions to applicants in functional, not diagnostic terms, by asking about whether the individual needs help, and not a diagnosis. In addition, programs should offer help in every instance before they ask someone if he or she has a disability, even when they might be justified under EEOC Guidance in asking right away.  

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      G. Can Programs Require Documentation of a Disability to Prove Eligibility for Assistance During the Application Process?

      In some situations, the ADA permits the entity providing the modification or accommodation to ask for proof that an individual has a disability that would entitle the individual to an accommodation. For example, in the employment context, Title I of the ADA allows employers to require applicants and employees to provide proof that they have disabilities that entitle them to reasonable accommodations.[788]  While no regulation or case law addresses this specific issue, it would be particularly unreasonable for TANF programs to require documentation of a disability before providing help with the benefits application process.  Given the prevalence of undiagnosed disabilities, many will not have such documentation.[789]   Moreover, the very disabilities that make it difficult for people to complete applications on their own will often make it difficult for people to obtain and provide this documentation.  Requiring documentation will also discourage people from requesting assistance.