Chapter 17: Does the ADA Require Programs to Modify the Lifetime Limit for TANF Cash Benefits for People with Disabilities?

      PRWORA imposes a 60 month lifetime limit on federal cash assistance,[993] but states are free to set shorter benefit limits.[994]  Many have done so, some as short as 21 months. [995]  Although many states have exceptions to time limits for some people with disabilities, many do not,[996] and those that do may not make exceptions to everyone with disabilities who needs them. The result is that people with disabilities will be subject to lifetime limits on cash benefits when they are not able to support their families and need additional benefits.  Does the ADA require states to extend TANF benefits beyond state lifetime benefit limits for people with disabilities? 

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A. Do Time Limits Have a Disparate Impact on People with Disabilities?

      Time limits for benefits create a hardship for many TANF recipients, but may have a particularly harsh impact on people with disabilities.  People with disabilities on the whole may be less ready to work when they exhaust lifetime benefits, for a number of reasons related to their disabilities, including:  

1) the failure to receive appropriate support programs and reasonable modifications in programs during the benefit period that would have made them ready for work, due to absence or unavailability of programs to meet their needs;  

2) the failure to be appropriately assessed for a disability or given an appropriate plan that would help the individual receive the services needed to prepare for work;  

                3) lack of accessible transportation to jobs and job interviews;  

                4) the failure to make modifications in the job application process;  

5) the disability itself is sufficiently limiting as to make work impossible or possible only at great risk or pain, when benefits are due to end;    

                6) discrimination by employers against people with disabilities; and  

                7) lack sufficient time to become work-ready.

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B. Discrimination in Providing Services at an Earlier Point in Time

      One possible ADA argument is that people with disabilities are affected by time limits to a greater extent than others because they need education and training programs, support services, and reasonable modifications to become ready for work.  Thus, one result of the failure to provide these services when people are receiving benefits is that people with disabilities are, on the whole, less ready to work when benefits are exhausted.  This argument has numerous drawbacks.  The first is the difficulty in proving that the failure to receive these services at an earlier point in time is the reason for lack of readiness to work.  Another is that many people without disabilities need these services as well and thus disparate impact may be difficult to prove.  A third is that there is little evidence that either Congress or states intended to make ending cash assistance contingent on an individual’s ability to work.  And, where states explicitly treat TANF benefits and work requirements as separate programs, it will be even more difficult to link the two.[997]  States may also argue that extending benefits is not the only way to remedy this type of disparate impact, and they can satisfy their obligations under the ADA by providing people with disabilities with additional education, training, and support services after benefit limits have been reached.  However, a strong argument can be made that this is not an adequate remedy because one purpose of providing assessments, programs, modifications, and supports is to assist people in becoming ready for work before their benefits run out.  

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C. Is There an Argument that People with Disabilities Need More Time to Become Self-Sufficient?              

      The argument that lifetime limits on benefits discriminate against people with disabilities because they generally need more education, training, and support before they can become economically independent, and therefore need to receive cash benefits for a longer period of time while they are preparing for work, is also problematic.  The ADA claim would be that additional cash benefits are needed to “[p]rovide a qualified individual with a disability with an aid, benefit or service that is not as effective in affording an equal opportunity to obtain the same result . . . or to reach the same level of achievement as that provided to others.”[998]  There is certainly evidence that people with disabilities are more likely to stay on benefits for longer, and have a greater difficulty finding work.  This is particularly true for individuals with drug and alcohol problems, psychiatric disabilities, cognitive disabilities, and learning disabilities.[999]  Disparate impact, however, may be difficult to demonstrate, because disability is not the only barrier associated with needing public benefits for longer periods of time.[1000]

      Moreover, it may be difficult to prove that people with disabilities have been denied “meaningful access” to TANF benefits under the Choate standard.[1001]  If people with disabilities have been given the same number of months of benefits as others  (or in some cases more, if some months of benefits were excluded from the calculation), the discrimination claim would be based on the fact that people with disabilities need more time.   This is a very difficult disparate impact claim.  The lifetime benefit limits do not meet the disparate impact test in Choate, because time limits “leave both handicapped and nonhandicapped Medicaid users with identical and effective services fully available for their use, with both classes of users subject to the same limitation;”[1002] there is no evidence that people with disabilities “will be unable to benefit meaningfully” from the benefit they do receive; [1003] the time limit does not have a “particular exclusionary effect” on people with disabilities;[1004] and the time limit does not “distinguish between those whose coverage will be reduced and those whose coverage will not on the basis of any test, judgment or trait that [people with disabilities] as a class are any less capable of meeting or less likely of having.”[1005] 

      It is difficult to argue that people with disabilities have been denied meaningful access to cash benefits when they have received between 21 and 60 months of benefits (or more if the time clock has been tolled).  If the purpose of the benefits is to provide income support to families in need, that purpose was fulfilled during the months in which benefits were received, and it was fulfilled to the same degree that it was fulfilled for families without members with disabilities.  This type of claim may be somewhat stronger if TANF programs described the purpose of benefits in a particular way, but given the Choate meaningful access standard, and the difficulty of demonstrating a “particular exclusionary effect” on people with disabilities, it would still be extremely difficult. In Choate, people with disabilities who used hospital services during a recent year were more than three times as likely to need more than the maximum amount of hospital coverage provided by the state Medicaid program as those without disabilities using hospitals that year,[1006] and people with disabilities were more than four times as likely as Medicaid recipients without disabilities to need five days more than the maximum covered amount,[1007] but the Court was still not satisfied that the limit distinguished on the basis of a test or trait “that people with disabilities are less capable of meeting or less likely of having.”  

      Arguing that “readiness to work at the time limit” is the trait people with disabilities are less likely to meet is not a viable means of getting around the problem discussed above, because state time limits are framed in terms of months, not readiness to work.  In addition to the fact that there may be little if any evidence to support such an argument, “readiness to work” would not necessarily require TANF programs to offer any particular duration of benefits.  In Choate, the Supreme Court identified the general purpose of Medicaid as “assuring that individuals will receive necessary medical care,”[1008] but did not hold that this required states to provide any particular duration of hospital coverage in their Medicaid programs. At a minimum, an argument of this kind would have to be based on statements of purpose in state statutes, plans, and other TANF program materials linking the benefit cap to the assumption that people will be ready to work when benefits are exhausted.

      One difference between the facts of Choate and TANF time limits is that in Choate the coverage limit only had a disparate impact on a small percentage of Medicaid recipients with disabilities and an even smaller percentage of the overall state Medicaid population.  The data showed that the coverage limit would fully meet the hospital needs served of 95 percent of state Medicaid recipients with disabilities.[1009]  In contrast, a much larger percentage of TANF recipients with disabilities would not have their full need for income support met under lifetime benefit limits.  But Choate’s holding did not rely heavily on these statistics.  In fact, the Court seemed more concerned with the prospect of interpreting Section 504 in a manner that would in effect require an entity subject to Section 504 to assess the effect of every contemplated action on people with disabilities and adopt the least harmful alternative.[1010]  Given the fact that benefits time limits are neutral and the same limit applies to everyone; the fact that they do not restrict initial access to benefits but affect the amount of services provided; the fact that neutral benefit limits will always be insufficient some people; the fact that many people without disabilities will also need benefits beyond the time limit; and the fact that PRWORA gives states maximum flexibility in program design; a challenge to neutral benefit time limits under the ADA would be extremely difficult.  

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D.  Fundamental Alteration and Undue Burden

       If it were possible to make a successful discrimination argument challenging a lifetime limit for cash benefits, it would be possible to overcome a state’s fundamental alteration or undue burden arguments.

      When a state has adopted a lifetime benefit limit that is less than 60 months, it would not be inconsistent with PRWORA for states to extend that time limit and provide TANF cash benefits for up to 60 months.  Even where a state has adopted a 60-month lifetime limit, it would not be a fundamental alteration of or inconsistent with PRWORA to extend benefits beyond that limit, because benefits that are provided after the time limit has been reached could be paid for with state maintenance of effort funds.[1011]  In addition, PRWORA specifically allows states to exempt up to 20 percent of the average monthly number of families receiving assistance from the 60 month requirement for “hardship,”[1012] or if the family has an member who has been battered or subject to extreme cruelty.[1013] Nothing prevents a state from defining “hardship” to include people with disabilities.  If a state chooses not to include people with disabilities in this exemption, it can hardly rely on this choice to argue that it would be a fundamental alteration to do it for people with disabilities.  Extending benefits does not change the eligibility requirements for or the substance of TANF benefits (though it does change the overall amount of benefits provided).  As many states already provide extensions of time limits for a variety of reasons, they already have a process in place to make individualized determinations of eligibility for extensions and thus cannot reasonably argue that granting extensions would be an undue burden because of the cost of creating such a mechanism.

      Other PRWORA provisions undercut arguments that it would be burdensome to the state to extend benefits beyond a state’s lifetime benefit limit.  PRWORA has a “reasonable cause” exception to penalties for non-compliance with the 60-month requirement, [1014] and an exception to penalties when a state corrects or discontinues the violation under an approved corrective action plan.[1015]  Thus states have a number of opportunities to avoid any penalties they risk incurring by extending federal cash benefits beyond 60 months.

      It would not be advisable to argue that extending the time limits to people with disabilities who are unable to work would not be a fundamental alteration because the purpose of time limits make no sense when applied to these individuals.[1016]  The purpose of benefit limits is not just to motivate people to work, but to make people less dependent on benefits.  Ending benefits will achieve that purpose for everyone, whether they or not they are able to work at that time.

      Generally, concrete, limited extensions of time are more likely to be regarded as reasonable than open-ended ones under the ADA.[1017]  Therefore, any requests for extensions of benefits should be for finite amounts of time when possible.  Advocates can also argue that months in which an individual did not receive appropriate education and training programs or other services and supports needed because of disability should not be counted towards the time limit.[1018]

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E. Can States Deny Extensions of Time Limits to Individuals with Disabilities Who Have Been Sanctioned?

      A number of states require TANF recipients who want to continue to receive benefits beyond a lifetime benefit limit to show “good faith” compliance with work requirements or other TANF program requirements.  Others deny extensions to individuals who have been sanctioned for non-compliance with work requirements.[1019]  States will probably take the position that people with disabilities who cannot meet work requirements or those who have been sanctioned are not “qualified individuals” with disabilities under the ADA because they do not meet an essential eligibility requirement for receiving additional benefits. However, when individuals with disabilities are unable to meet these requirements for reasons related to their disabilities, these requirements are “eligibility criteria” for the extension of benefits that  “screen out or tend to screen out” people with disabilities from the full and equal enjoyment of benefits[1020] and methods of administration that have a discriminatory effect.[1021]  People with disabilities may be unable to satisfy these requirements for all of the reasons previously listed in the Manual.  They include: the failure of programs to adequately screen and assess disabilities;[1022] the failure to provide appropriate work placements and education and training programs; failure to provide reasonable modifications at these placements and programs;[1023] and so on. Programs may also have sanction procedures that make it more likely that people with disabilities will be sanctioned, including notices and procedures that are difficult for people with disabilities to understand or follow.[1024]  Programs may also define work narrowly, making it more difficult for people with disabilities to fulfill work requirements.[1025]  In all of these situations, the TANF program is using the result of one type of discrimination to discriminate in another manner, by using these results as criteria for eligibility for continued benefits.  Preliminary data indicating that people with disabilities are being sanctioned at higher rates than those without disabilities[1026] suggests that requiring families to have sanction-free records will have a disparate impact on people with disabilities.  In addition, even if states do not investigate the reasons for program requirements under other circumstances, a strong argument can be made that to avoid discriminating on the basis of disability, they must do so if they require a sanction-free record as a condition of obtaining an extension of benefits.

      States will no doubt argue that showing good faith compliance and having a record free of sanctions are “essential eligibility requirements” for receiving additional benefits and that they have no obligation to modify these essential program requirements for people with disabilities.  There are two possible approaches advocates can take in response. One is to argue that cash benefits up to the lifetime limit and extensions of those benefits are one program,[1027] and people who have already received cash benefits (who continue to meet other eligibility requirements) are therefore obviously qualified for that program.  To support this argument, advocates can argue that the substance of the benefits and of continued benefits past the state time limit are the same, and every eligibility requirement, with the exception of showing good faith compliance or having a record free of sanctions, is the same.  In addition, state statutes and regulations are unlikely to describe the cash benefits program and extension of those benefits past a lifetime limit as separate programs.  One problem with this argument is that it may appear inconsistent with arguing that the requirements for receiving continued benefits are “eligibility criteria” that screen people with disabilities out of the program or service of continued benefits, which suggests that continued benefits are a separate program, at least for some purposes. There may be some instances in which a state’s program for individuals who have exhausted benefits under a time limit does qualify as a separate program.  Advocates can also argue that cash benefits up to the lifetime limit are one program, and benefits beyond that point another, and the continued benefits program uses the effects of discrimination in one program as eligibility criteria for another, and the effect of failing to provide appropriate screening and assessment, support programs, and reasonable modifications at work placements cannot be essential eligibility requirements.

      States may also try to argue that their benefits extension policies do not discriminate because benefit extensions are not required by the TANF program but are something “extra.”[1028]  This is irrelevant. State and local governments and agencies are not permitted to administer any program, service or benefit in a manner that has a discriminatory effect.