CHAPTER
15: DOES THE ADA REQUIRE TANF PROGRAMS TO PROVIDE EDUCATION, |
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Chapter 15: Does the ADA Require TANF Programs to Provide Education, Training, or Support Services to People with Disabilities? Does the ADA Place Constraints on These Services?
Under PRWORA, states have no obligation to provide
employment-related, child care, transportation, mental health, substance
abuse or other support services. PRWORA
merely gives states the option of developing an individual
responsibility plan that “describes the services the State will
provide the individual so that the individual will be able to obtain and
keep employment in the private sector and describe the job counseling
and other services that will be provided by the State.”[882]
While states risk penalties if they fail to meet federal participation
rates,[883]
states may be able to meet these rates without developing additional
education and training programs and supportive services, or they may not
view development or expansion of these programs and services as a means
of achieving compliance with participation rates. In
fact, a number of states have failed to meet the two-parent work
participation rates,[884]
which suggests, among other things, that additional support services are
needed. Some state TANF programs require support services to be provided
when work participation is mandatory,[885]
but many do not. Does the ADA impose any requirements on TANF programs
with respect to employment and support programs?
A. The Obligation to
Provide Meaningful Access to Existing Support Services
If a TANF program provides no employment, education, training or
other programs and services to anyone, the ADA does not require it to
develop programs and services. But
if it provides any employment-related, education and training or
supportive services at all, those services are “programs” subject to
ADA requirements. This
means that people with disabilities must have an equal opportunity to
participate in and obtain these programs and supportive services[886] and an equal opportunity to achieve the same
result or benefit from these services.[887]
For that to occur, existing supportive services and programs will
often have to expand and change.
To take one example, if a TANF program operates basic education
courses for TANF recipients, this qualifies as a “program, activity or
service” under Title II that must be accessible to people with
disabilities, including those with learning disabilities.[888]
To accomplish this, all of the individual basic education courses
for TANF recipients, viewed together, must be accessible to and usable
by people with learning disabilities.
Each and every basic education course need not serve people with
learning disabilities, but the program as a whole must be accessible to
and usable by people with learning disabilities and provide an equal
opportunity for people with disabilities to participate and benefit.
To achieve this, it may be necessary to add instructors
experienced in teaching learning-disabled individuals to existing
courses; provide aides or tutors experienced in working with
learning-disabled individuals; operate additional basic education
courses so there are enough slots to serve TANF clients with learning
disabilities without requiring people with learning disabilities to wait
longer or travel a considerable distance further than others; contract
with private organizations to operate basic education courses so that
there are enough slots to meet the needs of clients with learning
disabilities and others who are interested; modify training materials
and teaching methods; or make other reasonable modifications in policies
and practices so that people
with learning disabilities when necessary to avoid discrimination unless
it would fundamentally alter the program.
The failure to do any of these things may therefore violate the
ADA. The more limited a
TANF program’s existing education, training and support services are,
the greater the likelihood that they will fail to provide an equal
opportunity for people with disabilities to participate and benefit.
B. Providing Programs to Prevent or Remedy Discrimination
When a TANF program requires individuals to participate in
particular work or training programs to receive benefits, and there are
an insufficient number of programs or program slots available in the
geographic area that are appropriate for people with disabilities, it
violates the ADA to sanction individuals who are unable to fulfill work
requirements on the basis that they did not participate in work training
programs. Sanctioning
individuals under these circumstances would use eligibility criteria for
benefits that screen out people with disabilities in violation of the
ADA. The same is true when people with disabilities need support
services such as child care or transportation to participate in work or
training programs, if the reason these services are not available to
or usable by people with disabilities is disability-related. One
way to remedy or prevent such discrimination is to create additional
appropriate programs so that people with disabilities have a meaningful
and equal opportunity to satisfy TANF program requirements.
A TANF program is not specifically required to do this, however,
because there are additional ways to prevent or remedy the
discrimination. One is to modify existing supportive services, if there
are a sufficient number to serve people with and without disabilities,
so that some are accessible to and usable by people with disabilities.
Other possible remedies would be to eliminate work or training
participation requirements altogether or exempt those who cannot satisfy
the requirement because of an insufficient number of appropriate program
slots. Some states do
exempt from benefit time limits months in which support services that
individuals need to work were not provided to them.[889]
C. Fundamental Alteration and Undue Burden
Many, if not all, education and training programs and other
supportive services that people with disabilities need as reasonable
modifications to be able to satisfy work requirements can be funded out
of federal TANF funds, because PRWORA permits, with certain specified
exceptions, TANF funds to be spent in any manner reasonably calculated
to accomplish the purposes of TANF.[890]
This would certainly include programs and services needed to
enable people to work and become self-sufficient.[891]
In addition, PRWORA permits states to transfer TANF funds into
other block grants that were created to fund some of these supportive
services, such as the Child Care and Development Block Grant.[892]
Thus, states have no viable argument that providing these
services as reasonable modifications would be a fundamental alteration
of TANF by forcing states to use TANF funds for other purposes.
D. Does the ADA Allow States to Operate Separate Programs for
People with Disabilities?
Many advocates believe that people with disabilities are more
likely to receive appropriate education, training, and other services if
they participate in programs that serve only people with disabilities,
because the needs of people with disabilities are frequently ignored in
other programs. Moreover,
if programs serving only people with disabilities are funded exclusively
with separate state funds, the TANF program could provide needed
services to people with disabilities and at the same time exclude these
individuals from the state’s work participation rates, thereby
eliminating any danger that providing these programs as an alternative
to work would have a negative effect on a state’s ability to meet
federal work participation rates. One
pressing question, therefore, is whether the ADA permits TANF programs
to do this.
Title II places several constraints on the operation of separate
programs for people with disabilities.
It prohibits state and local governments from providing separate
programs or services for people with disabilities “unless such action
is necessary to provide qualified individuals with disabilities with
aids, benefits or services that are as effective as those provided to
others.”[893]
It also prohibits agencies from denying qualified individuals
with disabilities “the opportunity to participate in programs or
activities that are not separate or different, despite the existence of
permissibly separate or different programs or activities;”[894]
requires agencies to administer programs in the “most integrated
setting appropriate to the needs of qualified individuals with
disabilities,”[895]
and permits public entities to provide services to people with
disabilities “beyond those required by” Title II.[896]
Taken together, these provisions prohibit TANF programs from
providing segregated programs for people with disabilities unless
existing programs cannot be modified to include and effectively serve
people with disabilities. By
implication they also prohibit TANF programs from failing to make an
effort to modify existing programs so that people with disabilities can
participate in them, and then use that failure as a justification for
operating separate programs for people with disabilities.
In addition, they permit TANF programs to provide or operate
services such as drug and alcohol treatment and mental health programs
to recipients who need them even though they are designed exclusively
for people with particular disabilities. However, because Title II
prohibits programs from denying qualified individuals with disabilities
the opportunity to participate in services and programs “that are not
separate or different, despite the existence of permissibly separate
programs,”[897] the existence of these separate programs cannot
be used as a justification for excluding people with disabilities from
programs serving people without disabilities.
Even if permissible separate state programs for people with
disabilities exist, they do not eliminate the right of people with
disabilities to participate in integrated programs.[898]
Advocating for separate education, training, and other programs
for people with disabilities poses many dangers, even when the
inclination to do so stems from a realistic assessment of the limits of
existing programs and a concern that clients’ needs will not be met in
those programs. While
separate programs for people with disabilities may have short-term
appeal when the needs of clients with disabilities are not being met in
existing programs, segregation may have adverse long-term consequences. Segregated programs may increase the danger that individuals
with disabilities will be “tracked” into particular types of skills
training and jobs, which may not match their interests or use their full
potential. Segregation
often fosters stigma.[899]
And, it does not adequately prepare people with disabilities for
an integrated work life. Moreover,
if one reason for placing people with disabilities in separate programs
is to provide them with needed services while removing them from the
population of people who must satisfy federal work participation rates,
this can be achieved without placing people with disabilities in
separate programs. If states segregate federal TANF funds from state
maintenance of effort funds, they can provide services to people with
disabilities in integrated programs, and as long as those individuals
receive assistance funded only with state funds, they do not have to be
included in calculating state participation rates.[900]
E. Program Admission Criteria
Education, training or other support programs cannot have
admission criteria that screen out people with disabilities unless they
are “necessary for the provision of the service, program or activity
being offered.”[901] For example, a day care program cannot refuse to
admit children with disabilities, children who use medication or
children with particular types of disability-related behaviors such as
emotional problems.[902] If
the program provides day care, the essential eligibility requirement for
the program is being a child and needing supervision and care (and
possibly meeting financial criteria), not being a child needing
supervision and care who is disability or medication-free. Likewise,
requiring a high school diploma for admission to a program that trains
TANF recipients for jobs involving heavy labor in the construction
industry would violate the ADA by screening out people with some
disabilities, such as learning disabilities and mild mental retardation,
who cannot satisfy this requirement, when a high school diploma is not
needed to train for or perform jobs involving heavy manual labor.
However, it would be permissible to require applicants to be able
to lift heavy objects as a condition of admission even though this has
an exclusionary effect on individuals with disabilities who cannot lift
heavy objects, because lifting heavy objects is related to the ability
to do heavy manual labor jobs.
Because all of the training courses viewed together are also
considered to be a program for ADA purposes, even if one particular
training course has legitimate entry criteria that screen out people
with disabilities, the complete mix of training courses cannot do so.
If there is a heavy concentration of courses for jobs involving
heavy labor and only a few courses for people who cannot do this type of
work because of disabilities, the TANF training program does not provide
an equal opportunity to participate.
F. The Implications
of the Lack of Entitlement to Employment Programs and Supportive
Programs
The fact that neither TANF nor the ADA creates an entitlement to
education, training, and other programs has several implications for
advocacy efforts.
Some states link work exemptions and benefit time limits, and
exempt families from the benefit time limits if the adult in the family
is exempt from work requirements.[903] Where
this is so, people with disabilities who have obtained exemptions from
both work requirements and time limits may find it difficult to obtain
education and training, because education and training slots may be
reserved for people subject to work requirements who will be without
benefits, and possibly wages as well, if they don’t obtain the
education and training they need. The ADA will probably not serve as an
effective means of obtaining education and training programs for
exempted individuals with disabilities in this situation. Using
participation in work activities as an eligibility requirement for
education and training programs may have a disparate impact on people
with disabilities who cannot work,[904]
but a TANF program’s decision to allocate available education and
training slots to those who may need them to participate effectively at
current work activities or be ready to work when benefits run out will
seem fair to many policy makers and courts.
Though exempted individuals are disadvantaged by this allocation
of services making a discrimination claim would be difficult because
under this program design people with disabilities may be receiving
fewer education and training services, but they are also receiving TANF
benefits for a longer period of time than others.
As counter-intuitive as it may seem to deny services to those who
may most need them to be able to work, litigation may not be the best
avenues for addressing this issue.
In programs that link work requirements and time limits in this
way, clients also need to be made aware of the effect of “opting
out” on obtaining education and training.
As it will not always be possible to use the ADA to require the
development of additional education and training programs and other
supportive services, non-litigation advocacy on this issue is critical.
Advocates should urge states to develop additional support
services and argue that such programs are cost-effective if they enable
individuals who are currently exempt from work requirements to obtain
and retain jobs.[905] Advocates
should also point out that PRWORA allows states to define work to
include services, such as education and training, mental health, and
substance abuse programs. Furthermore,
states can provide these services after 24 months without risking
penalties for failing to meet federal work participation rates if these
services, and other assistance provided to individuals are paid for
through state maintenance of effort funds. In addition, some support
services are not considered “assistance” under TANF and does not
subject a family to federal benefit time limits or work participation
requirements.[906]
Thus, in some instances, support can be provided beyond the
60-month lifetime limit for receiving federal TANF assistance.[907] Back to the top [884]. In fiscal year 1999, every state and the District of Columbia met the overall PRWORA work participation rate, but of the 36 states and the District of Columbia and Guam, which were subject to the two-parent rate, 10 failed to meet this rate. See Third Annual TANF Report, supra note 22, at 1. [885]. See, e.g., Cal. Welf. & Inst. Code § 11323.2 (West 1999)(“necessary supportive services shall be available to every participant in order to participate in the program to which he or she is assigned, ... or the participant shall have good cause for not participating...”); 305 Ill. Admin. Code tit. 89 §112.82(c) (West 1999) (“ TANF participation in work and training activities shall not be required if supportive services are needed for effective participation but unavailable from the Department or some other reasonable available source.”); Or. Admin. R. 461-130-0327(1)(a) (“a client is excused for good cause in the following circumstances: . . . adequate child care, or day care for an incapacitated person in the household cannot be obtained”); (add no transportation available); Mich. Comp. Laws Ann. § 400.57g(3) (West 1997) (“ recipients who are willing to participate in activities leading to self-sufficiency but who require child care or transportation in order to participate shall not be penalized if the family independence agency determines that child care or transportation is not reasonable available or provided to them.”). [887]. See 28 C.F.R. § 35.130(b)(1)(iii) (1999). See also OCR TANF Guidance, supra note 242, Technical Assistance § V (“[j]ob training programs for welfare participants must provide sign language interpreters for deaf students when it is necessary to ensure effective communication for those students”). [888]. See Ramos v. McIntire, Civ. Action No. 98-2154-E (Mass. Superior Court, Suffolk Co.) (Complaint filed April 28, 1998) (learning disabled individuals challenge the failure of a TANF program to provide basic literacy programs for people with learning disabilities and failing to consider learning disabilities when assigning recipients to training programs). [889]. See Liz Schott, Center on Budget and Policy Priorities, State Choices on Time Limit Policies in TANF-Funded Programs (1998) [hereinafter State Choices on Time Limits], available at http://www.cbpp.org/9-1-98wel.htm. [892]. See 42 U.S.C.A. § 604 (d) (West 2000). See supra Part I.1.C.iii. See also Second Annual TANF Report, supra note 835, at 55, § VI (listing employment training, substance abuse services and mental health services as services that TANF grants can fund). [898]. See OCR TANF Guidance, supra note 242, Technical Assistance § V (“[a] county vocational training program may offer special training opportunities for people with vision impairments, but it may not require people with vision impairments to participate in the special program or refuse to permit them to participate in courses open to other program participants”). [902]. See OCR TANF Guidance, supra note 242, Technical Assistance § V ([t]he director of a county day care program for the children of welfare recipients who are attending employment training programs may not refuse to accept children who have emotional problems or who take medication for a disability into the program”). See also U.S. Department of Justice, Commonly Asked Questions About Child Care Centers and the Americans with Disabilities Act (1997), available at http://www.usdoj.gov/crt/ada/childq%26a.htm. [904]. Whether it does will depend in part on the nature of the other exemptions to work requirements and time limits in the program. [905]. See Ancillary Services, supra note 9 (discussing the cost-effectiveness of substance abuse treatment and the high cost of mental illness as compared with mental health services); Legal Action Center, Making Welfare Reform Work: Tools for Confronting Alcohol and Drug Abuse Problems Among Welfare Recipients (1997) (discussing cost-effectiveness of drug and alcohol treatment programs); U.S. Government Accounting Office, Child Care: Child Care Subsidies Increase Likelihood that Low Income Mothers Will Work, GAO/HEHS-95-20 (1994), available at http://frwebgate.access.gpo.gov/cgi-bin/multidb.cgi (discussing data demonstrating a link between the availability of fully subsidized child care and the likelihood that low-income mothers would work). |
