Introduction

        The passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA),[1] which abolished the Aid to Families with Dependent Children (AFDC) program and made several other drastic changes in welfare programs, has presented a number of challenges to welfare advocates.  As advocates search for strategies to protect their clients under a radically different system in which welfare is not a federal entitlement,[2] and states have enormous flexibility in how they design programs, civil rights laws are frequently mentioned as a possible source of protection for clients.

        An alarming number of Temporary Assistance for Needy Families (TANF) applicants and recipients have disabilities.  A 1996 survey by the Urban Institute using data from national health surveys found that between 27.4% and 29.5% of families receiving AFDC had either a mother or a child with a disability.[3]  In another study using self-reported data from AFDC recipients in California, 43% of the respondents reported disabilities or chronic health problems in mothers or children.[4]  Psychiatric disabilities, learning disabilities, mild mental retardation and addiction disorders are particularly common among welfare recipients.[5] Studies have found that 20% to 33% of welfare recipients have learning disabilities.[6] One study found that 30% of welfare recipients tested had learning disabilities and another 26% were mildly mentally retarded, which means that more than half of the welfare population had one of these disabilities. [7]  The California study found that 36% of the respondents met the criteria for at least one mental health diagnosis.[8] Other studies have estimated that 6% to 23% of all welfare recipients have mental health issues when mental health issues are defined narrowly, and 13% to 39% have mental issues when broader definitions are used. [9]  Estimates of substance abuse among welfare recipients range from 16% to more than 33%, depending on how questions are asked.[10]  Regardless of how studies define disability, it is likely that when all of these conditions are considered together, more than half of the families applying for or receiving TANF have at least one family member with a physical or mental limitation. For a variety of reasons, many of these individuals do not qualify for or are not receiving Supplemental Security Income (SSI).

        The prevalence of disabilities in TANF clients raises a number of issues for clients, advocates, and policy makers.   People with disabilities may be more likely to need particular programs, program modifications, and supportive services in order to work or participate in education and training programs or fulfill other federally defined “work activities.”  These programs and supports may not be available.  Existing programs may be segregated, or TANF agencies may make stereotyped assumptions in program assignments.  Barriers to obtaining benefits, including obstacles in the application process itself, are also an issue for many people with disabilities.  When people cannot work because of disability, there is the question of whether programs must modify work requirements and time limits.  People with disabilities may be particularly prone to sanctions because appropriate programs and supports are not provided, sanction notices are not understandable, and disabilities restrict individuals from complying with procedures required to avoid sanctions.

        Many TANF applicants and recipients have disabilities that have not been diagnosed.  One study identified 70% of the welfare recipients tested as having learning disabilities, mild mental retardation or other special learning needs that had not been previously identified by the public school system.[11] The most prevalent disabilities among TANF recipients are also those that frequently go undiagnosed, because they are not visible or are stigmatized, because of lack of adequate medical and mental health care, or for other reasons. This raises a host of additional issues, including: whether TANF programs have an obligation to screen and assess applicants and recipients to identify disabilities; the timing of assessments; how disability is defined in TANF programs; and whether TANF programs have an obligation to individuals whose disabilities have not been diagnosed.

        The Americans with Disabilities Act (ADA)[12] has been mentioned as a likely source of protection for TANF clients. However, many welfare advocates feel less than fluent in the complexities of the ADA and how it might apply to TANF programs.  In addition, many disability rights advocates are not familiar with PRWORA.  Advocates in both groups have expressed an interest in learning more about the area of law with which they are less familiar.  This Manual is an attempt to assist in that process. 

        This Manual addresses the legal obligations under the ADA of TANF programs and private programs under contract with TANF.  For this reason, it primarily focuses on Title II of the ADA, which applies to state and local governments, agencies, and departments of state, and organizations under contract with state and local governments to provide services to clients of state and local government and their agencies.  There are many issues that may arise for clients of the TANF program under other Titles of the ADA, including Title I, which governs employment, and Title III, which applies to privately operated places of public accommodation. For the most part, however, they are not addressed in this Manual. Advocates should not overlook these issues when they arise, and should turn elsewhere for information and guidance.

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A. How to Use the ADA       

        There is a great deal of inconsistency in the ADA case law. To some extent this is inevitable, given the nature of Title II concepts.  However, it is also the result of other factors, including the fact that the ADA is a relatively new statute, and there is much court and practitioner confusion.  This inconsistency can be frustrating, but it also presents an opportunity for creative advocacy. This Manual provides examples of how courts have approached particular issues, and attempts to distinguish easy arguments from more difficult ones, but it is not an exhaustive discussion of the case law.  Do not assume that there is uniformity in the case law on every issue or that you are precluded from making particular legal arguments because the cases discussed in the Manual reject it.  

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B. The Philosophy of the Manual

        This Manual discusses the statutes, regulations, and agency and court interpretations of the ADA.  This does not mean that it advocates using litigation to address every, or even most, issues.  Litigation cannot do everything.  Many legal claims, if successful, will give people with disabilities the same poor-quality programs and services that TANF recipients without disabilities receive, and nothing more.  When government agencies operating programs are resistant to change, litigation may be necessary, but cooperative efforts to improve programs and procedures is always preferable because, if successful, they will improve services for everyone.

        The ADA is not just a means of enforcing legal rights; it is also a guide for designing and operating state and local government programs.  The ADA embodies core concepts by which all programs should abide, such as the right to individualized treatment, the right to equal and meaningful access to services, and the right to reasonable program modifications.  Conveying this message to TANF programs and getting programs to adopt and apply these core concepts may accomplish more than litigation. Advocates should also urge TANF programs to see that ADA compliance is consistent with, and arguably necessary to, accomplishing the goals of PRWORA.  Many people with disabilities will not be able to work or achieve economic independence without program modifications and supports.                   

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C. Your Goals

        Welfare and disability advocates want to improve TANF programs for everyone not just people with disabilities.  ADA enforcement will often change the way services are provided to everyone, even though it applies only to people with disabilities, people with a “record of” or “regarded as” having disabilities, and people who are discriminated against based on their association with an individual with a disability.  Sometimes this will occur because the nature of the modification requires a change in program design or implementation that will affect everyone. Sometimes it will occur because it is impractical for programs to implement changes for people with disabilities alone.  At other times it will occur because advocates will be able to persuade programs to extend particular changes to everyone.  When making policy arguments, advocates can argue that a program modification is desirable for everyone, but legal constraints will sometimes require that arguments be made only on behalf of individuals protected by the ADA. 

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D. How to Use this Manual   

        The Manual is divided into three parts: Part One summarizes PRWORA and the ADA, including Title II ADA prohibitions and requirements, planning requirements, and ADA enforcement issues (i.e., the Eleventh Amendment).  Part Two discusses core ADA Title II concepts in greater detail and discusses how each concept might apply to TANF programs.  Part Three addresses a number of specific questions that frequently arise under TANF, such as whether TANF programs are required to provide education, training, and other programs to people with disabilities and whether it would be a reasonable modification under the ADA to extend benefits to TANF recipients beyond a state’s lifetime benefit limit. Readers should consult chapters on specific TANF issues in conjunction with Part Two, which provides the framework for answering specific questions about how the ADA applies to TANF programs.