Chapter 12: Do Diversion Practices that Discourage Individuals from Applying for Benefits Violate the ADA?

      More than half of state TANF programs are using “diversion” strategies in their TANF programs to prevent or discourage individuals from applying for benefits until other options for support are attempted. [790]  “Diversion” is a term used to describe many things.  In some cases, it refers to offering only one-time short-term benefits.  In others, it refers to efforts by programs to discourage people from applying for cash benefits and encourage them to seek help from families, charity, or food pantries.[791]  Some programs divert applicants by turning people away and telling them to return to the welfare center on another day.[792] Others emphasize lifetime benefit limits and work requirements to discourage people from using benefits until they have no other option. Sometimes diversion refers to efforts to assist people getting jobs or providing additional supports.  The focus in this Chapter, however, is on diversion efforts that discourage people from applying for benefits.

      Diversion strategies have been extremely effective in reducing welfare rolls.  Preliminary data from Oregon and Wisconsin estimate that approximately 40 percent of applicants who were likely to qualify for cash assistance are being diverted.  During the first seven months of 1997, Oregon diverted 74 percent of the people who were likely to be eligible.[793]  In New York City, 84% of the people seeking assistance at one local center left without filling out applications the same day during the center’s first month of operation, and another center diverted 69% of individuals seeking assistance during its first month of operation.[794]  

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      A. The Discriminatory Impact of Diversion

      Diversion obviously diverts both people with and without disabilities from applying for benefits. Despite the impact of diversion on everyone attempting to apply for benefits, there is an argument that diversion violates the ADA.  Diversion practices are extremely likely to have a “particularly exclusionary effect”[795] on people with disabilities. Requiring multiple trips to welfare centers to apply for benefits creates a barrier for people with disabilities because some are unable to make these trips, or can do so only with difficulty.  Mobility and other impairments may make it difficult to travel; medical appointments related to disabilities may conflict with TANF appointments; lack of accessible transportation can make it difficult or impossible to make multiple trips to welfare centers; lack of available child care for children with disabilities can also make multiple trips difficult or impossible.  Discouraging people from applying for benefits, or telling them to return at a later date, also creates barriers for individuals with psychiatric and cognitive disabilities (such as mild mental retardation) because these individuals may not understand why they are being sent away and think they are being permanently turned away from services.

      Under Title II, diversion practices are likely to exclude people with disabilities from benefits;[796] deny people with disabilities an opportunity to participate in the program;[797] provide an opportunity to participate that is not as effective as that provided to others;[798] and operate as criteria or methods of administration that have the effect of impairing the objectives of the program for people with disabilities.[799]  They also function as eligibility criteria that screen out or tend to screen out people with disabilities from the full and equal enjoyment of the program.[800]  Because this type of diversion, by definition, is designed to discourage individuals from applying for benefits, any disparate impact on people with disabilities means that people with disabilities have a less effective opportunity to participate in the TANF program.  And, because diversion is an intentional barrier to services, diversion practices make a compelling disparate impact claim. Moreover, there will be no question in many instances that the inability to return to a welfare center on multiple occasions or the failure to understand that they are allowed to return at a later date is caused by or related to an individual’s disability.  

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      B. Reasonable Modifications to Diversion Policies

      One extremely modest modification to diversion practices would be to change the information provided to potential applicants to include information to diversion practices about exceptions to benefit limits and work requirements that might apply to people with disabilities. This would help prevent individuals with disabilities from being dissuaded from applying for benefits based on an inaccurate and unnecessarily pessimistic impression of work requirements and benefit limits.  

      Advocates can also argue that welfare programs modify their practices so that they  “selectively divert” only people without disabilities.  As a practical matter, however, this would be impossible to implement. Given the high numbers of people with hidden and undiagnosed disabilities in the TANF population and the limited information programs have about applicants at this stage, attempting to exclude people with disabilities from diversion efforts is doomed to failure, and many people with disabilities would be diverted anyway.  Moreover, “selective diversion” would require welfare agencies to have some means of identifying people who should be exempt from diversion.  Programs would probably have to interview or screen all potential applicants for disabilities during their first visit to a welfare center, which is of questionable legality,[801] labor-intensive, and presumably antithetical to the whole purpose of diversion, which often involves providing little or no individual contact with agency staff during the initial visit to a welfare center.  Therefore, advocates may want to take the position that the only way to prevent diversion from having a discriminatory effect on people with disabilities is to eliminate this type of diversion strategy altogether.

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C. Fundamental Alteration and Undue Burden

      Providing additional information about TANF exemptions to potential applicants will not change the substance or nature of TANF benefits[802] and it is practically cost-free. Distributing forms to potential applicants to flag possible disabilities that might make diversion should not be particularly burdensome, although it may require welfare workers review these forms before they decide whom to divert.

Advocates can argue that, if the purpose of diversion is to encourage people to look for employment or other sources of support and discourage people from exhausting time-limited benefits unless they have no other options, this purpose has little relevance to TANF applicants with disabilities who are extremely unlikely to find unsubsidized work simply by looking for it.[803]  Building on the rationale of cases challenging high school and college athletic participation rules,[804] advocates can argue that the purpose of encouraging people to look for work before applying for TANF benefits is not compromised if diversion is waived for people who are extremely unlikely to find work in any event.[805] In fact, if state program materials describe the purpose of diversion as reducing the cost of benefits programs by discouraging people from applying for benefits, diversion is working all too well for people with disabilities.  State program materials and program officials, however, are unlikely to describe diversion efforts program purposes in this way. If state authorizing legislation does not refer to diversion at all, it will be difficult for TANF programs to argue that modifying diversion policies is a fundamental alteration of program purpose.  The fact that people may receive benefits more often, or more quickly, as a result of modifying diversion polices, does not change the nature or duration of the benefits.

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      D. What if the State Defines the Program as a “Diversion Program” or Defines Diversion as the Purpose of the Program?

      Even if state statutes and other materials describe diversion as a “program,” modifying diversion practices would not be a fundamental alteration.  TANF programs are obviously not diversion programs alone—they are benefits programs that may have other goals.  Diversion is a practice, not a program, and it could not be a program in and of itself for the purpose of ADA analysis. Delay or denial of service is not a “service, program or activity.”  If diverting individuals from benefits were considered a “program,” no discriminatory treatment or impact on people with disabilities that creates a barrier to TANF benefits could ever be actionable under the ADA.  This is obviously not what Congress had in mind when it specifically stated that TANF programs must comply with the ADA.  For the purposes of ADA analysis, it is the services that individuals are being diverted from that is the relevant program.

      Some state plans identify diversion as a program purpose.[806]  Even then, diversion can never be the sole purpose of a TANF program because diversion only makes sense as a program goal if there is a benefits program from which people can be diverted. Clever statements of program purpose do not change this.