Chapter 14: Does the ADA Require TANF Programs to Screen to Identify Disabilities?

      TANF programs cannot possibly move people from welfare to work, or even place people into appropriate education, training and work programs, without taking disabilities into account, and they can not take disabilities into account if they are not aware of them.  Given the high number of TANF applicants and recipients with diagnosed and undiagnosed disabilities, the scope of any obligation by TANF programs to identify or confirm the existence of disabilities in applicants and recipients is critical. PRWORA contains no requirement that TANF programs conduct disability screenings and assessments.[829]  Nevertheless, a number of arguments can be made that TANF programs must provide or arrange for both screening and assessment of disabilities for those who want to be screened and assessed, or in the alternative, must take other measures to avoid discrimination under the ADA.

      The ADA applies to the disability screening and assessment process even though many of the people who go through these processes are people with disabilities. Even assuming that the disability screening and assessment process is considered to be a program in its own right,[830] the fact that a program or service exists solely for people with disabilities does not remove it from the ambit of the ADA.[831] Moreover, problems with screening and assessments create a barrier to accessing TANF benefits.  The failure to properly screen and assess people with disabilities denies people with disabilities an equal opportunity to participate in and benefit from TANF benefits, and education and training programs.  If disabilities aren’t properly identified and accommodated, appropriate programs and supports will not be provided that enable people to work, and exemptions from work requirements and time limits will not be provided to many people with disabilities.

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      A. Do TANF Programs Have an Obligation to Conduct Initial Disability Screenings?

      A strong argument can be made that TANF programs have an obligation under the ADA to conduct some type of initial screening to identify likely disabilities for those individuals who wish to be screened.  As a practical matter, this may be the only way that TANF programs can meet their obligation under the ADA to make reasonable modifications in the application process and avoid discriminating against people with disabilities in Work First activities.  Given the high number of TANF clients with undiagnosed disabilities, there is a particularly high risk that discrimination will occur in all of these activities without an affirmative effort by TANF programs to identify those people who might have disabilities and need modifications in the early stages of their contact with the TANF program. Screening is also necessary to identify everyone who may need a more extensive disability assessment. 

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      B. Do TANF Programs Have an Obligation to Provide In-Depth Disability Assessments?

      There are two possible ADA arguments that programs have an obligation to conduct in-depth disability assessments for those who want them.  The first is that the information obtained from these assessments is necessary to develop an adequate Individual Responsibility Plan (IRP).[832]  PRWORA requires TANF programs to make “an initial assessment of the skills, prior work experience, and employability of each recipient of assistance under the program” who is 18 years old or has not completed high school or obtained a high school equivalency diploma and who is not in school.[833]  States then have the option to develop, “on the basis of the assessment,” in consultation with the individual, an IRP that identifies specific employment goals and the services that the state will provide so that the individual can obtain a job and stay employed.[834]  PRWORA plainly contemplates that the initial assessments will be used by TANF programs in drafting IRPs.  Although PRWORA does not require states to develop IRPs, every state has chosen to adopt IRP requirements.[835]

      A strong argument can be made that it is not possible to assess the skills of people with disabilities or create an adequate IRP without accurate, detailed information about the existence and nature of an individual’s disability and its affect on “employability.”  Apart from those limited situations in which TANF programs already have detailed information about clients’ disabilities or can easily obtain it from other agencies or providers, the only way for programs to meet their obligation to make an initial assessment, and draft an adequate IRP, is to conduct and arrange for such assessments.  Because PRWORA allows states to reduce or terminate benefits to those who do not comply with signed IRPs,[836] and some states have opted to impose this requirement,[837] it is all the more important that IRPs be based on adequate assessments that accurately identify clients’ abilities and needs. The failure to conduct in-depth assessments has a discriminatory effect on the ability of people with disabilities to obtain adequate IRPs.

      TANF programs may take the position that in-depth assessments are not needed to draft IRPs or do other employment and service planning because PRWORA gives states 30 days, or at state option, 90 days after eligibility for benefits is determined, to conduct “initial assessments,”[838] and many decisions must be made by TANF programs within this period of time.  PRWORA does give TANF programs up to 90 days to conduct “initial assessments,” and many program decisions are made before then.  Nevertheless, the best way to avoid ADA violations down the road is to conduct early in-depth assessments.

      Advocates may be reluctant to frame arguments around the IRP process because of the one-sided and onerous nature of IRPs in some TANF programs.[839]  In some TANF programs, recipients can be held to IRP requirements but state TANF enabling legislation does not appear to create a reciprocal requirement for programs to provide the services promised on the IRP, even when individuals cannot possibly meet goals listed on the IRP without them.[840]  When TANF programs ignore a state requirement to draft IRPs or ignore IRPs that have been drafted, there may be good reasons for advocates to avoid arguments that rely on IRP requirements.  Otherwise, there may be little to lose by using these requirements to obtain meaningful disability assessments.

      The second ADA argument is that conducting in-depth disability assessments is not only the best way—but may be the only way—to ensure that TANF programs do not violate the ADA.  If people with disabilities do not receive adequate, comprehensive disability assessments, some TANF clients with disabilities are likely to be placed in work experience, community service, job training or other programs that are not appropriate for them given their disabilities, or placed in such programs without appropriate reasonable modifications.[841]  In addition, some people with disabilities are likely to be sanctioned for failure to comply with work or other program requirements when non-compliance is related to these oversights and thus could have been prevented.[842] In-depth assessments are a reasonable modification necessary to avoid discrimination,[843] at least for those individuals identified in brief screenings forms as likely to have disabilities. The failure to conduct in-depth assessments on those likely to have disabilities also violates the ADA prohibition on using methods of administration that have a discriminatory effect [844] or that substantially impair the accomplishment of program objectives for people with disabilities.[845]

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     C.  Fundamental Alteration and Undue Burden

      Conducting short screenings and in-depth disability assessments does not conflict with PRWORA’s purposes.  It is consistent with the PRWORA goal of ending dependence on government benefits by increasing states’ ability to determine the types of supportive programs and services people with disabilities need to become ready for work.[846]  Indeed, screening and assessment is necessary to achieve these goals. In addition, comprehensive disability assessments may be consistent with state program purposes.  Statements of program purposes related to ending dependence on benefits and encouraging people to work should be consistent with providing comprehensive assessments when necessary, because they will enhance the process of identifying appropriate services, programs, and modifications that will speed the process of helping people become employed.

      States may take the position that in-depth assessments are a new, distinct program or service, and that it would fundamentally alter the TANF program to require them to provide a new service.  Advocates can argue that screenings and assessments are not a distinct program or service but a necessary means of providing existing services in a non-discriminatory manner.  In addition, from a client’s perspective, the assessment probably has no independent value.   It may also be possible to argue that assessments are not a new service because the relevant service is disability identification, which includes initial cursory screenings, which many programs already provide.  However, it is probably beyond dispute that in some circumstances, this type of assessment is a new service that is distinct from existing programs provided by TANF agencies.

      States may also take the position that conducting comprehensive disability assessments is an undue burden because they are so costly.  However, some comprehensive disability assessments will be paid for by vocational rehabilitation programs and Medicaid, so the entire cost will not fall on TANF agencies.[847]  In addition, the Welfare-to-Work program requires operating entities to “ensure that there is an assessment of the skills, prior work experience, employability and other relevant information,”[848] and HHS requires Welfare-to-Work programs use TANF assessments for this purpose “where appropriate.”[849]  Thus both TANF and Welfare-to-Work programs will use some of these assessments, and Welfare-to-Work programs will benefit from not having to conduct all of their own assessments.  At the very least, some of the resources available from the Welfare-to-Work program should be included when calculating the funds available for assessments in analyzing whether it would be a fundamental alteration or undue burden.  In addition, assessments are likely to be cost-effective in the long run, by facilitating placement in appropriate jobs and programs that lead to employment.[850]  In light of the Olmstead plurality opinion, however, the relevance of long-term savings to the determination of fundamental alteration is unclear at best.[851]

      Under PRWORA, assessments are considered “program,” not “administrative,” costs,[852] and are not counted towards the 15 percent limit on administrative expenditures that applies to both federal TANF and state maintenance of effort funds.[853]  This means that states have more flexibility to use funds for assessments without placing pressure on TANF programs to cut administrative costs.  This should reduce the burden of paying for assessments.

      States may argue that providing such assessments is a fundamental alteration or undue financial burden because the assessments are medical services and programs are prohibited from using TANF funds for medical services.[854]  Assessments are not a medical service; no medical treatment is being provided, and the purpose of the assessment is not to identify a medical diagnosis for the purpose of treatment, but rather to identify the need for appropriate non-medical programs and services. HHS declined to define “medical services” in the TANF regulations, leaving TANF programs with maximum flexibility to apply their own understanding of the term.[855]  This should be helpful in arguing that they do not meet a state’s definition of medical service.  Even if the assessments were considered medical services, PRWORA doesn’t prohibit states from using their own funds for medical services. 

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      D. Disability Screening and Assessment Must be Voluntary

      Some clients may resent the additional burden of participating in an in-depth disability assessment or feel that being singled out for such an assessment is itself discriminatory.  Others may want to refuse screenings and assessments out of fear that TANF programs will use the results as a reason to contact child or adult protective services, or require participation in mental health drug or alcohol treatment.  Though TANF programs violate the ADA if they fail to provide disability screening and assessment, in some instances they will also violate the ADA if they require individuals to be screened and assessed for disabilities.

      Advocates can argue that requiring TANF applicants or recipients to participate in disability screening and assessment violates the ADA by using methods of administration that have a discriminatory effect[856] and using eligibility criteria that screens out or tends to screen out people with disabilities from full and equal enjoyment of the program.[857]  Even if people with disabilities aren’t denied benefits based on the results of a screening or assessment, requiring screening and assessment will “screen out” people with disabilities because many people with disabilities will decide not to apply for benefits if screening and assessment are required. 

      In addition, under some circumstances TANF programs may meet the definition of “employers” or “employment agencies” under Title I of the ADA in relation to individuals in the TANF program.[858] Title I severely limits the ability of employers to ask job applicants and employees about their disabilities and to request medical tests or information.[859] Because it is not clear in TANF programs when the applicant-employer or employer-employee relationship is established, or whether it will be in any particular instance, the only way to ensure that the rights of TANF applicants and recipients are protected is to apply the most stringent of the Title I protections to TANF applicants and employees.

      As discussed in Chapter 12, PRWORA permits (but does not require) TANF programs to test benefits and recipients for illegal drugs and to sanction those who test positive for such drugs.[860]  Thus it will not be possible to argue that drug tests are unnecessary and improper medical inquiries or medical tests under the ADA.

      There have been many ADA challenges to program screening processes used on people with actual or suspected disabilities.  In many of these cases, plaintiffs argued that disability screening processes imposed additional unnecessary and burdensome requirements on people with disabilities, or tended to screen out qualified individuals with disabilities from services, licenses, and employment.  Cases have challenged questions about health and mental health history and alcohol and substance abuse on applications for admission to the bar; medical licenses; judicial screening forms;[861] applications for drivers’ license renewals;[862] and procedures for demonstrating the need for accommodations for learning disabilities.[863]  A number of these cases have held that screening procedures that included broad questions about past medical and mental health treatment violated the ADA as overly broad and unnecessary[864] or because they imposed additional eligibility requirements on people with disabilities.[865] One important difference between many of these cases and TANF disability screenings and assessments is that in most of these cases, screening results were used to identify individuals who did not meet program eligibility requirements who therefore would be excluded from the program.  Their very purpose was to “screen out” people with disabilities.  In TANF programs, in theory at least, the purpose of disability screening and assessment would be to determine eligibility for reasonable modifications and the nature of the modifications needed, to determine the types of eductions and training programs needed, and to establish eligibility for exceptions to program requirements.    As many TANF programs want to avoid the expense of disability screening and assessment, they may be unlikely to argue that they have the right to screen and assess TANF applicants and recipients.  If they did want to make such an argument, they might argue that they have this right because Title II permits eligibility criteria when they are “necessary for the provision of the service, program or activity being offered.”[866]  The critical issue is the meaning of the phrase “service, program or activity” in this context. If the service, program or activity in question is TANF benefits, this argument is easily dismissed, because TANF programs have no need to know about disabilities to determine eligibility for cash and other benefits.[867]  If, however, the “service” includes program supports, reasonable modifications or exceptions to program requirements, TANF programs have a stronger argument that they need information about recipients’ disabilities to determine eligibility for these services and program exceptions. Even then, however, individuals may be able to demonstrate eligibility by other means. In some situations, eligibility for reasonable modifications will be obvious or can be established by providing other documentation of disability, and there would be no legitimate basis to require people to be screened and assessed by the TANF program.  

      In a few instances, TANF programs may have a stronger argument that information about applicants’ disabilities is necessary to determine eligibility for benefits.  When a TANF program is designed in such a way that the existence of a disability is relevant to whether an individual is eligible for TANF benefits or to the amount of benefits provided, programs have a much stronger argument that disability-related information is necessary for the provision of the service.  In Wisconsin, for example, the TANF program has four different “tiers” for people at different stages of job readiness, and the amount of benefits people receive depends on which of the four tiers an individual is placed in. The lowest tier is for individuals in need of drug, alcohol or mental health treatment, and participation in treatment programs is a condition of receiving benefits.[868]  As the TANF program may not be able to determine what tier an individual is in without screening for drug, alcohol, and mental health problems,[869] it may be difficult to argue that screenings for at least these conditions are not necessary to provide benefits in that program.[870] 

      Though the ADA does not permit TANF programs to require disability screening and assessment as a condition of receiving benefits in most instances, there are many reasons to encourage clients to be screened and assessed for disabilities where the possibility of disability exists.  Without proof of disability, it will be difficult for clients to show that they need and are entitled to reasonable modifications, exemptions from work requirements, support services needed to fulfill job search and work requirements, and eligibility for special programs designed for people with disabilities.  Before advising clients to forgo this process, it is important that clients understand the trade-offs involved.

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      E.  Can an Existing Screening or Assessment Process Violate the ADA?

      TANF programs use a variety of methods to identify individuals with physical or mental conditions in order to identify individuals entitled to exceptions from work and other program requirements.  Some of these methods may violate the ADA.  A screening tool may fail to identify all of the individuals who may need program modifications.  The assessment process may be so lengthy, complex or unpleasant that it serves as a barrier to accessing benefits or exemptions from work requirements.[871]  Buildings where assessments are conducted may be inaccessible. Programs may refuse to make home visits to conduct assessments or arrange for or provide transportation to assessments when reliable accessible public transportation does not exist and disabilities make travel to the assessment site difficult or impossible.  If staff conducting the assessments are poorly trained, this may have discriminatory effects when disabilities are missed entirely or not properly identified as a result.[872] Programs may provide insufficient time to gather and provide medical documentation required as part of the assessment process or fail to assist individuals in gathering this documentation. They may refuse to accept pre-existing current adequate documentation from other sources,[873] particularly when individuals have disabilities that do not change over time, such as learning disabilities or mild mental retardation. Requiring updated medical information on an unnecessarily frequent basis may create an unnecessary and discriminatory barrier to benefits, program modifications, and exceptions to program requirements.[874]  Programs may close case files or sanction individuals with disabilities who are unable to keep appointments to get assessments when the failure to do so is disability-related.  All of these practices may constitute “criteria and methods that have a discriminatory effect.”[875] and may violate several other Title II requirements.

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      F. The Definition of Disability Used by TANF Programs

      When TANF programs make exceptions to program requirements for people with disabilities, it is very likely that they do not define disability in the same way that it is defined under the ADA.[876]  State TANF programs are using a wide range of disability definitions. For example, California TANF program (CalWORKS) exempts from work requirements individuals who provide medical proof of a disability that will last for more than 30 days and “significantly impairs the recipient’s ability to be regularly employed or participate in welfare-to-work activities, provided that the individual is actively seeking appropriate medical treatment.”[877] The New York TANF program exempts from work requirements individuals who are “disabled or incapacitated” as defined by the welfare agency or a private doctor referred by the agency and those who are “ill or injured to the extent that he/she is unable to engage in work for up to three months.” [878]

      The disability definitions used by TANF programs will have an enormous affect on who will receive modifications, work exemptions and other protections.  When a TANF program uses a definition of disability that is different than the ADA definition, there is a danger that some people who meet the ADA definition—who are therefore entitled to reasonable modifications and other ADA protections—will not receive them. Though neither PRWORA nor the ADA specifically require TANF programs to use any particular definition of disability in their programs, programs must provide everyone who meets the ADA definition of a “qualified individual with a disability” with reasonable modifications if they need them. If, as a result of a disability definition used by a TANF program, people who meet the ADA definition of disability and need reasonable modifications do not receive them, the definition of disability used by the program must be changed or the program must address this problem in some other way, or the program has violated and will continue to violate the ADA.   Advocates should work to eliminate inappropriately narrow definitions of disability used by TANF agencies and advocate for definitions that are at least as broad as the ADA, on the theory that definitions that are less broad will inevitably result in legally actionable discrimination against some people with disabilities.   Ideally, agencies should have flexible definitions that leave room for individuals to come forward and demonstrate a medical condition that requires a modification of program procedures or requirements.

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     G. The Timing of Disability Assessments

      When TANF programs refer individuals to outside agencies for disability assessments, the assessment process may take so long that many important decisions are made before the results are available.  Programs in some cases will therefore conduct employability assessments, draft IRPs, and make work or other program placements before assessment results are available.  In some cases, assessment results are not available until an individual has already been sanctioned for non-compliance or the agency has already closed the individual’s case.

      Advocates should argue that, to avoid discriminating on the basis of disability, TANF programs must refrain from taking any adverse action in an individual’s case before the assessment results have returned, unless the program makes an independent effort to investigate the reason for non-compliance.[879]  Some states prohibit programs from imposing sanctions before assessments are completed.[880]  Others prohibit work assignments before assessments are completed, unless the assignment is not inconsistent with the possible limitation.[881]  If programs cannot make appropriate placements in work or education activities without assessment results, waiving work and other program participation requirements before the results are available may be the only way to avoid discrimination.