Chapter 8: Program, Service or Activity

A.  In General

      Title II prohibits discrimination in “services, programs or activities” of public entities.  This  has been construed broadly to include a wide range of government operations, including prison programs for inmates,[554] animal quarantine laws,[555] zoning decisions,[556] access to streets and sidewalks,[557] and even programs that people participate in involuntarily, such as police arrests.[558]

      The definition of a “program, service or activity” is relevant to three Title II issues.  The first is the “program access” standard, which requires a “program” to be accessible “when viewed in its entirety.”[559]  The second is program purpose, which affects whether a particular program modification would be reasonable or a fundamental alteration or undue burden.  The third is defining the group with whom people with disabilities will be compared for the purpose of determining whether discrimination has occurred. The outcome of ADA claims therefore often turns on the question of what constitutes a discrete “program.”  As the Ninth Circuit has noted, “[t]he key issue . . . is one of characterization.” [560]

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(i) Broad or Narrow Program Definition?

      Program definition in ADA cases is a tricky business. Consequently, it is difficult to make sweeping recommendations about which program formulations are advisable for advocates to use in ADA claims. There is no rule that will cover every situation. Some general considerations follow.

      In disparate treatment cases, it is more advantageous if programs are defined broadly enough to include a comparison group.  If a program is defined too narrowly, the services for people with disabilities will be regarded as a separate program and there will be no group in the same program receiving better treatment.[561]

      At the same time, in disparate treatment cases there is a danger that if a program or service is defined too broadly it will dilute the evidence of disparate treatment.[562]

      In disparate impact cases, narrow program definitions are often beneficial for people with disabilities because broad ones dilute the appearance of disparate impact.[563]  For example, in Alexander v. Choate,[564] the Supreme Court defined the relevant program or service as the entire Tennessee Medicaid program, not the Tennessee Medicaid program coverage for inpatient care.  The Court then noted that the Medicaid program “has the general aim assuring that individuals will receive necessary medical care.”[565]  It then held that meaningful access to this program wasn’t denied to Tennessee Medicaid recipients with disabilities, despite the fact that people with disabilities who needed hospital care were more than three times as likely to need more care than was covered by Medicaid than people without disabilities needing such care.   If the Court had defined the relevant program or service as Medicaid inpatient care, the difference in hospital use between Medicaid recipients with and without disabilities may have had a greater impact on the Court.

      Broad program definitions make claims of denial of program access more difficult.  If the relevant program is defined as all of the welfare centers in a city, the fact that some are not accessible to wheelchair users is not sufficient to prove a violation of the program access standard.  If each center is considered to be a separate program, the failure to make even one center wheelchair accessible may violate the program access standard, unless the center arranges for another way to deliver services to wheelchair users that is equivalent in terms of the time it takes to receive benefits, travel distance and any other relevant factors.[566] 

      In some situations, there may be both disparate impact and disparate treatment discrimination.  As it may be beneficial for one claim to frame the program or service in one way but beneficial in another claim to frame it in another, careful thought is required about the effect that program definition will have on all claims and issues.

      In Olmstead v. L.C.,[567] the first Supreme Court decision interpreting some of the core Title II concepts, a plurality of the Court used an extremely broad program definition when defining the relevant group for analyzing the state’s fundamental alteration defense. Olmstead challenged the failure to place individuals with disabilities who were living in institutions into the community under Title II’s requirement that services be provided in the most integrated setting appropriate to the needs of people with disabilities, and the Title II reasonable modification requirement.[568]  The plurality stated that the state could meet its burden of proving that the relief sought by the plaintiffs, which was to receive services in the community, would be a fundamental alteration if it could show that, “in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of individuals with mental disabilities.”[569]  The plurality did not call the state’s entire mental heath service system a “program,” and the relevance of this characterization was to analyze the state’s defense, not to determine whether there was disparate impact discrimination.  It is therefore not clear how relevant this is to program definition for purposes of assessing disparate impact or treatment.  However it is possible that future courts will look to Olmstead as guidance on defining the relevant program definition for determining whether disparate impact or treatment has occurred.

      Some types of discrimination do not fall neatly into “disparate impact” or “disparate treatment” categories. The Title II requirement that services be provided in “the most integrated setting appropriate to the needs of qualified individuals with disabilities,”[570] is one example.  Segregation of people with disabilities may be the result of disparate treatment or disparate impact or both.  In many cases it may not be possible to tell whether disparate treatment or impact is the cause of the segregation, and the segregation may be the result of many factors and actions by many agencies.  Advocates need to give careful thought on how to frame program definitions in such instances.

      There is a potential tension between program definition and undue burden and fundamental alteration analysis, at least in disparate impact cases. Generally, the broader the program definition, the greater the funds available for modifications for people with disabilities. In such cases, it should be more difficult for a state or local government to demonstrate that modifications would be an undue burden.[571]  Further, the broader the program definition, the easier it will be to identify statements of program purpose that are consistent with particular program modifications sought for people with disabilities.[572]  Yet broader program definitions may also make it more difficult to prove a disparate impact on people with disabilities.  Advocates need to consider this potential trade-off when framing Title II arguments.

      It may be possible to argue that program definitions for the purpose of showing discrimination and for measuring funds available to pay for program modifications are not, or need not be, the same.  Arguably, Olmstead applied two different program definitions: the program within which discrimination existed was residential mental health services in the community, whereas the program for the purpose of defining available funds for reasonable modifications was the state’s entire mental health budget.  One court has interpreted Olmstead in just this way.[573]  There is a strong argument that there is no reason why program definitions for these two purposes should be identical, and given the fact that resource allocation between government programs is often the cause of discrimination, the definition for the purpose of measuring available resources to remedy the problem should be much broader than the definition used for the particular program within which discrimination occurs.       

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      (ii) Is it One Program or More than One?

      In Olmstead, the plurality did not discuss its reasons for identifying the state’s entire mental health services system as the relevant universe for determining whether the relief plaintiffs sought would be a fundamental alteration. Courts rarely explain their reasons for conceptualizing programs as they do.  The factors listed below have been mentioned in the case law as relevant to program definition in Title II cases.  It is unclear, however, whether courts will continue to consider these factors relevant after Olmstead.  

1) Statute versus regulation: When the state statute defines a program as one program but implementing regulations treat it as two separate programs, the statute’s formulation of the program controls.[574]  

2) Statements of legislative purpose: In Weaver v. New Mexico Human Services Department,[575] the fact that the state enabling legislation for the state’s general assistance program for needy families and program for people with disabilities had a single motivating purpose was relevant to the court’s decision to view them as a single program.  

3) Use of the singular or plural in state enabling legislation: In Weaver, the New Mexico Supreme Court also relied on the fact that the statute referred to the benefits for needy families and people with disabilities in the singular as “a single General Assistance program.”[576]  

4) Budget act formulation: The fact that the benefits to needy families and people with disabilities was a single item in the state budget was deemed relevant to the determination that there was a single program in Weaver.[577]  

5) Whether the benefit is the rule or an exception to the rule: In Does 1-5 v. Chandler, the Ninth Circuit reasoned that because the only people who qualified for general assistance in the state were children and people with disabilities, these populations were exceptions to the general rule that there was no general assistance program.  The court held that this weighed against viewing the benefits for these two groups as a unified program.  Instead, the court viewed assistance to these two groups as two separate programs, each of which was an exception to the general rule that most individuals are not entitled to cash assistance.[578]  

6) Whether the program allows participants to obtain the same benefits or service by different means: In Raines v. Florida,[579] a federal district court held that because a state statute allowed prisoners to earn maximum incentive gain time in one of four ways, the gain time program was one program regardless of how the time was earned, and thus state regulations giving prisoners who were unable to work full time for medical or disability-related reasons a lesser opportunity to benefit from the program violated the ADA.

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      B. Program, Service or Activity in the TANF Program 

      Because PRWORA gives states maximum flexibility to use federal TANF grants and state maintenance of effort funds as they choose, the definition of “program, activity or service” will differ from one state’s TANF program to another, and possibly even one county’s program to another.  In addition, program definition will depend on the nature of the discrimination.  If the application process is discriminatory, the relevant program may be “TANF benefits,” or even several different benefit programs (including food stamps and Medicaid) combined. No determination has been made about the type of benefits and services an applicant needs or is entitled to when the discrimination occurs, and the barriers to accessing benefits may affect access to all of these benefits. If the discrimination occurs at a later stage, narrow program definitions will probably be more appropriate.

      Typically, ADA and Section 504 cases define programs by the benefit or service provided, not the funding source that provides it.  In cases challenging discrimination in the Medicaid or AFDC programs, for example, the fact that funding came from a state or federal source, or both, was usually irrelevant to program definition.[580]  So the fact that a TANF employment-training program is funded with federal TANF block grant dollars or maintenance of effort funds[581] will usually be irrelevant to program definition.  But there may be circumstances in which particular sources of funding also qualify as programs.  One is when a funding source is discriminating in its use of funds.

      Another issue that may arise is whether benefits programs and work requirements are one program or two.  If they are one program, statements of program purpose related to helping needy individuals that typically appear in legislation, regulations and state plans for benefit programs are arguably relevant to the state work requirements.  This helps to support an argument that it would not be a fundamental alteration of the program to modify work requirements for people with disabilities and continue to provide them with benefits, as this would be consistent with the program goal of aiding the needy.  On this issue as well, the answer will be different from one state to another because states have structured and codified their benefits program and work requirements in a variety of ways.  New York, for example, has codified its benefits program and work requirements separately.[582]  In contrast, California treats both as part of CalWORKS, its TANF program.[583]  Even where benefits and work requirements are codified as parts of a single program, however, it is important to approach this type of argument with caution.  Congress was well aware when it enacted PRWORA that cash assistance would end for some families before the adults in those families were employed, and it did not prohibit TANF programs from ending cash assistance to such families.

      Even where benefits and work programs are arguably separate programs for some purposes, a work program may be relevant to whether there is discrimination in the related benefits program.  Whenever satisfying the requirements of one program is a requirement for the receipt of benefits or services of another program, the first program is an eligibility requirement for the second. If the first, “prerequisite” program is designed or administered in a discriminatory manner, both programs have discriminated, the first program by its own direct actions, and the second program by using the first as an “eligibility criteri[on]” for its program.  Therefore, if participation in work activities is a requirement for receiving TANF cash assistance and the work activities are designed or operated in a discriminatory manner, the benefits program violates Title II by using the discriminatory work program as the basis for qualifying for benefits.