TEXAS WORKFORCE COMMISSION
LETTER
ID/No: WD 24-01
Date: June 22, 2001
Key Word: Administration
To: Local Workforce Development Board Executive Directors
Agency Executive Staff
LWDA Coordinators
Agency Local Offices
From: Barbara Cigainero, Director of Workforce Development
Subject: Prohibition Against Discrimination Based on Disability or
Limited
English Proficiency in the
Administration of Workforce Services
PURPOSE:
To ensure that Local Workforce
Development Boards (Boards) provide equal
opportunity and access to all
federally-funded workforce services to individuals
with learning, emotional or
behavioral disabilities, or with Limited-English
Proficiency (LEP).
REFERENCES:
United States Civil Rights Act
of 1964, Title VI
Rehabilitation Act of 1973,
Section 504
Americans with Disabilities Act
of 1990, Title II
Workforce Investment Act of 1998
(Public Law 105-220), Section 188
29 Code of Federal Regulations
37.35 and 37.8, Implementation of the
Nondiscrimination and Equal Opportunity
Provision of the Workforce
Investment Act, revised July 1,
2000
Department of Health and Human
Services, Office of Civil Rights, Policy
Guidance, entitled “Title VI’s
Prohibition Against National Origin
Discrimination as It Affects
Limited English Proficiency Persons,”
and issued August 30, 2000
Department of Labor, Civil
Rights Center, Policy Guidance, entitled
“Enforcement of Title VI of the
Civil Rights Act of 1964; Policy
Guidance on the Prohibition
Against National Origin Discrimination
as It Affects Persons with
Limited English Proficiency,” and issued
January 17, 2001
Department of Health and Human
Services, Office of Civil Rights, Summary
of Policy Guidance entitled,
“Prohibition Against Discrimination on the
Basis of Disability in the
Administration of Temporary Assistance for Needy
WD Letter 24-01
2
Families,” and issued January
19, 2001
Department of Health and Human
Services, Office of Civil Rights, Decision
Against Massachusetts Department
of Transitional Assistance regarding
Office of Civil Rights Complaint
Number 01-98-3055, and issued
January 19, 2001
BACKGROUND:
Certain federal civil rights
laws prohibiting disability discrimination apply to the
administration of Temporary
Assistance for Needy Families (TANF). Title VI of
the Civil Rights Act of 1964
prohibits discrimination based on national origin by
any activity receiving federal
assistance. Title II of the Americans with
Disabilities Act of 1990 (ADA)
protects individuals with a disability from being
excluded by reason of that
disability from participation in or benefit from services
or activities of a public
entity. Section 504 of the Rehabilitation Act of 1973
prohibits the same
discrimination by entities that receive federal financial
assistance.
Lawsuits have been filed against
several states, including Massachusetts, alleging
failure to make reasonable
accommodations for persons with learning disabilities
who receive services funded
under TANF. A January 19, 2001, decision by the
United States Department of
Health and Human Services’ (DHHS) Office of Civil
Rights (OCR) was used as part of
a lawsuit against the State of Massachusetts.
In the wake of the DHHS OCR
decision against Massachusetts, DHHS released a
Policy Guidance, “Prohibition
Against Discrimination on the Basis of Disability
in the Administration of
Temporary Assistance for Needy Families,” clarifying
what will be applied in OCR
compliance reviews and/or investigations of
complaints of disability discrimination.
This policy guidance supplements
previously released OCR policies
that explained how federal civil rights laws
applied to certain aspects of
welfare reform, and that the failure to provide
“meaningful language access”
might also violate civil rights laws.
Grassroots groups and advocates
are using federal civil rights laws to seek
“meaningful language access”
policies. They have reported that some state and
local entities providing
workforce services fail to provide “meaningful language
access,” such as translation
services and materials in languages other than
English, to low-income persons
with LEP. This has resulted in persons with LEP
being denied access to critical
federally-funded benefits and services, including
those funded under TANF, Welfare-to-Work
(WtW), the Workforce Investment
Act (WIA), and Food Stamp
Employment and Training (FSE&T). The denial of
access to persons with LEP may
violate federal civil rights laws.
PROCEDURES:
Boards must ensure that all
individuals with learning, emotional or behavioral
disabilities or with LEP have
equal opportunity and access to all federally-funded
WD Letter 24-01
3
workforce services, including
those funded under WIA, TANF, WtW, and
FSE&T.
Boards must comply with all
federal civil rights laws and regulations, and should
review the following:
• Section 504 of the Rehabilitation Act of 1973: Under
Section 504, “covered
entities” include “any state or
local agency, private institution or organization,
or any public or private entity
that (1) operates, provides or engages in health
or social service programs and
activities and that (2) receives federal financial
assistance from DHHS directly or
through another recipient/covered entity.”
Guidance is available at http://www.hhs.gov/ocr/504.html
• Title II, ADA: The ADA prohibits discrimination against
individuals with
disabilities who receive state
and local services. Boards must ensure that they
and their contractors are in
compliance with the ADA. Guidance is available
at http://www.hhs.gov/ocr/ada.html
• DHHS OCR Guidance, entitled “Prohibition Against
Discrimination on the
Basis of Disability in the
Administration of TANF (Temporary Assistance for
Needy Families),” and issued
January 19, 2001. This guidance may be
accessed at http://www.hhs.gov/ocr/prohibition.html.
This guidance addresses the
application of federal civil rights laws prohibiting
discrimination against
individuals with disabilities in TANF. It details how
Section 504 of the
Rehabilitation Act and Title II of ADA relate to welfare
services.
This guidance covers any entity
that receives federal assistance from DHHS,
including state, county, and
local welfare agencies, and public and private
contractors and subcontractors.
Accordingly, Boards and their contractors
must adopt methods for
administering welfare services to ensure equal
opportunity for persons with
disabilities in all aspects of the delivery of TANF
services, including
applications, assessments, work activities, sanctions, and
time limits.
This guidance also describes
“promising practices” including policies,
procedures, and other
recommended steps that Boards can take to ensure
meaningful access to TANF
services by people with disabilities. It identifies
essential requirements that the
DHHS OCR will apply in its compliance
reviews and investigations.
These are not new requirements; they reiterate
ADA and Section 504 principles
that DHHS OCR has been enforcing for
years that require:
WD Letter 24-01
4
• equal access through the provision of appropriate services;
• the modification of policies, practices, and procedures to
provide such
access, unless doing so would
result in a fundamental alteration to the
services; and
• the adoption of nondiscriminatory methods of
administration.
• DHHS OCR Decision Against the Massachusetts Department of
Transitional
Assistance (DTA) regarding OCR
Complaint Number 01-98-3055, issued
January 19, 2001, included as
Attachment 1 to this WD Letter:
OCR’s investigation revealed
that DTA had three types of violations1:
1) Denied equal opportunity to
individuals with learning disabilities to
participate in or benefit from
DTA’s TANF services through:
• inadequate assessment processes;
• failure to identify the obstacles to employment that
confront
individuals with learning
disabilities; and
• failure to identify what measures individuals with learning
disabilities need in order to
have equal opportunities to participate
in TANF activities.
2) Used criteria or methods of
administration that had the effect of
discriminating against
TANF-eligible individuals with learning
disabilities. DTA provided
little training or technical assistance to
DTA employees, DTA contractors,
or vendors on learning disabilities
among its TANF population.
Employees were not trained to:
• identify or assess whether individuals may have learning
disabilities;
• refer individuals with learning disabilities to appropriate
services;
• make modifications in services, policies, or practices by
using
auxiliary aids for individuals
with disabilities; or
• otherwise accommodate individual needs.
3) Failed to make reasonable
modifications necessary to avoid
discrimination against
TANF-eligible individuals with learning
disabilities.
• Section 188 of the Workforce Investment Act (WIA) of 1998
Discrimination is also
prohibited under Section 188. Boards and their
contractors must comply with
Section 504 and the ADA in their
administration of WIA and all
other services operated through One-Stop
Service Delivery Centers.
1 Blank lines in WD Letter 24-01, Attachment
1, signify the omission of names of the parties to the
complaint in
the Massachusetts case.
WD Letter 24-01
5
Guidance is available at
http://wdsc.doleta.gov/disability/pdf_docs/tein_16_99.pdf
• 29 Code of Federal Regulations (CFR) 37.35 and 37.8,
Implementation of the
Nondiscrimination and Equal
Opportunity Provision of the Workforce
Investment Act, revised July 1,
2000: These sections may be accessed at
http://www.access.gpo.gov/nara/cfr/index.html
by scrolling down and
searching for
"29CFR37.35" and "29CFR37.8" as directed.
Boards should review WIA’s
nondiscrimination and equal opportunity
regulations that prohibit
discrimination, and specifically the requirements to:
• provide information in languages other than English, and
ensure access
to persons with LEP to WIA
services on an equal basis with those
proficient in English; and
• ensure that communications with individuals with
disabilities are as
effective as communications with
individuals without disabilities.
• DHHS OCR guidance on Title VI’s Prohibition Against
National Origin
Discrimination as It Affects
Limited English Proficiency Persons, dated
August 20, 2000, which may be
accessed at http://www.hhs.gov/ocr/lep/.
Boards must comply with the
following four requirements to ensure
“meaningful language access”:
1) A thorough assessment of
language needs, including the identification
of language needs of each LEP
individual; situations in which the
individual will need language
services; resources needs; and how to
make these resources available;
2) A comprehensive written
policy to ensure meaningful communication
with LEP individuals. This
includes notices to LEP individuals of
their rights to free language
assistance; staff training; monitoring; and
translation of written
materials. The guidance warns that the use of
family, friends, and/or minor
children as interpreters can raise Title VI
liability issues;
3) Training staff to
implement the language access policy. At a
minimum, staff must be able to
recognize potential disabilities and
conduct initial screenings to
identify possible disabilities for
individuals who agree to be
screened. Boards must ensure that service
providers and those entities to
which a referral is made have the
requisite training and
knowledge; and
4) Vigilant monitoring to
ensure that LEP individuals can access services.
DHHS posts related information
on LEP guidance on its web site:
WD Letter 24-01
6
• Department of Labor (DOL) OCR Policy Guidance, “Prohibition
Against
National Origin Discrimination
as it Affects Persons with Limited English
Proficiency,” issued January 17,
2001, which may be accessed at:
http://www.usdoj.gov/crt/cor/lep/dollep.pdf. This guidance clarifies the
responsibilities of state and
local entity-recipients of DOL federal funds in
providing assistance to
individuals with LEP.
Boards should review their
written policies concerning prohibited discrimination
based on disability including
learning, emotional, or behavioral disabilities and
against national origin as it
affects persons with LEP. Boards must take
appropriate affirmative steps to
ensure that their service providers and all
appropriate staff are in
compliance with all federal civil rights laws and
regulations.
ACTIONS REQUIRED:
Boards should review the
documents referenced in this WD Letter and ensure that
all federal nondiscrimination
laws, regulations, policies and procedures for
individuals with learning,
emotional or behavioral disabilities or LEP are
implemented and followed.
INQUIRIES:
Direct inquiries to Reagan
Faulkner at (512) 936-3563 or by e-mail at
Reagan.Faulkner@twc.state.tx.us.
ATTACHMENT:
Attachment 1: Department of
Health and Human Services, Office of
Civil Rights, Decision Against the
Massachusetts Department
of Transitional Assistance
Regarding OCR Complaint
Number 01-98-3055, issued
January 19, 2001
Rescissions: None Expiration:
Continuing
WD 24-01,
Attachment 1 1
DEPARTMENT OF
HEALTH AND HUMAN SERVICES
January 19,
2001
Ms. Claire McIntire
Commissioner
Massachusetts
Department of Transitional Assistance
600 Washington
Street
Boston, MA
02111
Re: OCR
Complaint Number 01-98-3055
Dear Ms.
McIntire:
The Office for
Civil Rights (OCR), U.S. Department of Health and Human Services (HHS), has
completed its investigation of the
above
referenced complaint filed on behalf of ____and ___ against the Massachusetts
Department of Transitional Assistance (DTA).
These
complaints concern DTA's administration of its Transitional Aid to Families
with Dependent Children (TAFDC) program. The
TAFDC program
is funded, at least in part, by the federal government’s Temporary Assistance
for Needy Families (TANF) block grant
to the States.
See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42
U.S.C. § 601 et. seq.
Complaint No.
01-98-3055 alleges that DTA discriminated against ___ and ___, and other
similarly situated persons with learning
disabilities by
denying these persons an opportunity to participate in DTA's Employment
Services Program (ESP), one aspect of the
TAF'DC program.
___and ___'s complaint asserts that DTA discriminates against individuals with
learning disabilities because there
are no
appropriate ESP services for clients with learning disabilities, and because
DTA has failed to make reasonable accommodations
in its policies
and practices that are necessary to avoid disability-based discrimination.I/
OCR concludes
that DTA violated the fights accorded and by Section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. § 794) and the
HHS
implementing regulations, 45 C.F.R. Part 84, and Title II of the American with
Disabilities Act, 42 U.S.C. § 12131 et. seq., and
its
implementing regulations at 28 C.F.R. Part 35. Moreover, we conclude that DTA
fails generally to provide for the needs of
individuals with learning
disabilities in the TAFDC program, because:
I/ In addition,
on October 21,1998, OCR received a complaint about DTA's TAFDC program filed by
the Alliance for Young
Families. This
complaint concerns the Young Parents Program. a TAFDC program for young parents
and/or pregnant teens under 20
who do not have
a high school diploma or GED. The Alliance for Young Families complaint alleges
that DTA discriminates against
Young Parents
Program (Y'PI:') beneficiaries with learning disabilities by failing to provide
payments to YPP contractors that are
sufficient to
allow these contractors to provide appropriate services to YPP beneficiaries
with learning disabilities. In this Letter of
.Findings. OCR
does not address the Alliance for Young Families complaint; the complaint
remains open and continues to be
investigated by
OCR.
Page 2 -
Complaint No. 01-98-3055
WD 24-01,
Attachment 1 2
(1) DTA denies
individuals with learning disabilities an opportunity to participate in or
benefit flora the TAFDC program that is equal
to the
opportunity afforded individuals without disabilities (2) DTA utilizes methods or
administration that have the effect of subjecting
qualified
individuals with learning disabilities to disability-based discrimination; and
(3) DTA fails to make reasonable modifications
in TAFDC
programs necessary to avoid discrimination against individuals with learning
disabilities on the basis of disability- We find
that DTA needs
to take remedial measures to comply with Section 504 and the ADA. Thc details
of our investigation are provided
below.
DETERMINATION
JURISDICTION
AND AUTHORITY
The Office for
Civil Rights has jurisdiction over these complaints pursuant to Section 504 of
the Rehabilitation Act of 1973 (Section
504), 29 U.S.C.
§ 794, and its implementing regulations, 45 C.F.R. Part 84. Section 504, and
its implementing regulations prohibit
discrimination
on the basis of disability by recipients of Federal financial assistance. All
entities that receive Federal financial
assistance from
the U.S. Department of Health and Human Services (HHS) either directly or
indirectly, through a grant, contract or
subcontract,
are obligated to comply with the Section 504 statute and regulations. The
Massachusetts Department of' Transitional
Assistance
receive Federal financial assistance from the U.S. Department of Health and
Human Services for its program, including
$911,330,312 in
FY 1997, $1,039,240,479 in FY 1998, $460,117,22S in FY 1999 and $469,933,339 in
FY 2000.
The complaints
were also investigated under Title II of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12131 et. seq. and its
implementing
regulations at 28 C.F.R. Part 35. Title II of the ADA prohibits discrimination
on the basis of disability in State and local
government
programs and services. The Department of Health and Human Services is
designated by federal regulation with the
responsibility
to investigate ADA complaints against State and local governments with regard
to the administration of social services,
programs or
activities. See 28 C.F.R. § 35.190(b)(3). As persons diagnosed with significant
learning disabilities, and india's case with
mild mental
retardation, the complainants meet the definition of persons with disabilities
as set forth in the regulations pursuant to
Section 504 and
Title II of the ADA at 45 C.F.R § 84.3(j)(t)(r) and 28 C.F.R. §35.104
respectively. As TAFDC beneficiaries ___ and
___ meet the
eligibility criteria for participation in DTA's Employment Services Program,
making them qualified persons with a
disability) as
set forth in 45 C.F.R. §84.3(k)(4) and 28 C.F.R. §35.104.
Any TANF
program or activity operated or administered by a State or local government
must comply with Title II of the ADA. Any
program funded
with Federal TANF funds must comply with Section 504. -See 42 U.S.C. § 60B(d);
45 C.F.R. § 260.35(a)(2),(3)
Page 3 -
Complaint No. 01-98-3055
WD 24-01,
Attachment 1 3
PROCEDURAL
BACKGROUND AND DESCRIPTION OF COMPLAINTS
The complaint
on behalf ___ was timely filed with OCR on April 28, 1998. On May 19, 1998, OCR
notified DTA of ___’s complaint-
This complaint
was amended to include a complaint by ___ on March 10. 2000, and OCR notified
DTA of the amendment on March
10, 2000. OCR's
complaint investigation involved a systemic review of DTA's services with
respect to TAFDC
beneficiaries with learning disabilities.
OCR evaluated the specific cases of ___, and ___ to determine whether DTA’s
conduct in these matters constituted
discrimination
on the basis or disability, and to determine whether these cases suggested
systemic problems.
The
Massachusetts federal and state funded AFDC program, a cash assistance program
for income eligible families with dependent
children, was
renamed TAFDC and modified by statute in 1995 to provide time limited cash
assistance, job skills training and adult
basic education
and GED programs, job search and placement services, and to require
participation in program activities that would
lead to gainful
employment. M.G.L. c, 118, § 2; Mass. St. 1995, c. 5, §110. Although
Massachusetts has adopted a "work first"
approach to its
TAFDC program. TAFDC beneficiaries have a statutory right to participate in
education and job training programs that
will increase
the potential for economic self-sufficiency. Mass. St. 1995, c. 5, § 110 (h);
106 C.M.R. 207.140. TAFDC beneficiaries
who arc not required
to participate in DTA's Employment Services Program (106 C.M.R. 207 et. seq.)
are eligible to participate in
education and
training programs on a voluntary basis, regardless of whether or not they arc
subject to the TAFDC work requirement.
Id.
Page 4
Complaint No. 01 -98-3055
In
investigating this complaint, OCR obtained documents from DTA, from DTA
contractor Service Delivery Areas (SDAs) and from
vendors who
subcontract with DTA through DTA's contractors. OCR also interviewed employees
of DTA, SDAs and vendors. OCR
conducted site
visits to DTA and SDA offices in New Bedford, Lawrence, Cambridge, Lowell and
Boston, and visited vendors in New
Bedford, Fall
River, and Dartmouth. OCR conducted site visits to and
. 4/ ___ found
the New Bedford Child and Family Service program on her own without a referral
from DTA.
~oo5
Page 5 -
Complaint No. 01-98-3055
interviews in
Supported Work Programs in Boston and Fall River, OCR was accompanied on most
site visits by Judith Subanny,
DTA's Director
of Equal Opportunity. OCR interviewed ___ legal counsel for ___ and ___, and
other Massachusetts advocates
knowledgeable
about the TAFDC system. OCR also, obtained information about recent findings of
the Boston Public Health
Commission
which have been conveyed to DTA, concerning former TAFDC beneficiaries in
Boston who were terminated from the
TAFDC rolls.
Finally, OCR reviewed legal pleadings, deposition transcripts, documents
produced in discovery and a court ruling in
Ramos v.
Mclntire, No. 98-02154E (Mass. Superior Ct.), ___ and ___’s pending civil
lawsuit claiming disability discrimination by
DTA.
FINDINGS AND
ANALYSIS
OCR's
investigation addressed whether DTA violated Section 504 of the Rehabilitation
Act and HHS implementing regulations, and/or
the ADA and its
regulations, by denying ___, ___, and other TAFDC beneficiaries with teaming
disabilities the opportunity to
participate in
or benefit from the TAFDC program that is equal to the opportunity DTA provides
to TAFDC beneficiaries without
disabilities.
In making its determination, OCR evaluated whether DTA utilized methods of
administration that had the effect of
subjecting
___and___ to discrimination on thc basis of disability and whether DTA made
reasonable modifications in TAFDC policies
or procedures
that were necessary to avoid disability-based discrimination against ___, and
___, and other individuals with learning
disabilities.
The regulatory
language relevant to this investigation is as follows:
HHS'
implementing regulations regarding Section 504 of the Rehabilitation Act of
1973, 45 C.F.R. § 84.4(a) and (b), state, in relevant
WD 24-01,
Attachment 1 4
part:
(a) No
qualified person with a disability shall, en the basis of disability, be excluded from
participation in, be denied the benefits of, or
otherwise be
subject to discrimination under any program or activity which receives or
benefits from Federal financial
assistance.
(b)(1)
Discriminatory actions prohibited:
A recipient, in
providing any aid, benefit, or service may not, directly or through
contractual, licensing or other arrangements,
on the basis of
disability:
(i) Deny a
qualified person with a disability the opportunity to participate in or
benefit from
the aid, benefit or service;
(ii) Afford a
qualified person with a disability an opportunity to participate in or benefit from the
aid, benefit or service that is
not equal to
that afforded others;
(iii) Provide a
qualified person with a disability with an aid, benefit or service that is not as
effective as that provided to others;…
Page 6 -
Complaint No. 01-98-3055
(b)(4) A
recipient may not, directly or through contractual or other arrangements
utilize criteria methods of administration
(i) that have
the effect of subjecting qualified persons with disabilities to discrimination on the
basis of disability,
(ii) that have
the purpose or effect of defeating or substantially impairing accomplishment of
the objective of the
recipient's
program with respect to persons with disabilities.
The Department
of Justice's implementing regulations regarding the application of the ADA to
programs of State and local
government, 28
C.F.R. § 35.130, state, in relevant part:
(a) No
qualified individual with a disability shall, on the basis of disability, be
excluded from participation in, be denied
the benefits of
the services, programs, or activities of a public entity, or be subjected to
discrimination by any public
entity.
(b)(1) A public
entity, in providing any aid, benefit, or service, may not, directly or through
contractual, licensing, or other
arrangements on
the basis of disability-
Page 7 -
Complaint No. 01-98-3055
(b)(3) A public
entity may not, directly or through contractual or other arrangements,
utilize criteria or methods of
administration:
(i) That have
the effect of subjecting qualified individuals with disabilities to
discrimination
on the basis of disability;
(ii) That have
the purpose or effect of defeating or substantially impairing accomplishment
0fthc objectives
of the public
entity's program with respect to individuals with disabilities; or
(iii) That
perpetuate the discrimination of another public entity if both public
entities are
subject to common administrative control or are agencies of the same State ....
(b)(7) A public
entity shall make reasonable modifications ill policies, practices, or
procedures when flee modifications are
necessary to
avoid discrimination on thc basis disability, unless the public entity can
demonstrate that making the
modifications
would fundamentally alter the nature of the service, program, or activity.
OCR's
investigation revealed that DTA violated these regulations. Our Endings concern
three types of violations: (1) failing to provide
___, ___, and
other individuals with learning disabilities with an opportunity to participate
in or benefit from the TAFDC program that
is equal to the
opportunity provided to individuals without disabilities; (2) utilizing methods of
administration that have the effect of
subjecting ___,
___, and other individuals with learning disabilities to discrimination on thc
basis of disability; and (3) failing to make
reasonable
modifications necessary to avoid disability-based discrimination against __,
___, and other TAFDC beneficiaries who have
learning
disabilities.
Denial of equal
opportunity to individuals with learning disabilities to participate in or benefit from
TAFDC program:
DTA fails to
provide individuals with learning disabilities with the opportunity to benefit
from or participate in the TAFDC program
that is equal
to the opportunity DTA provides to individuals without disabilities, In large part
DTA's failure to provide
WD 24-01,
Attachment 1 5
individuals with learning disabilities
with equal opportunity results from inadequacies in the TAFDC assessment
process and from DTA's failure to identify the
obstacles to
employment that confront individuals with learning disabilities and what
individuals with learning disabilities in order to
have an equal
opportunity to participate in the TAFDC program.
Under the
requirements of the federal TANF statute, tile DTA is required to access the
"skills, prior work experience and
employability"
of each TANF recipient who is at least 18 years old or has not completed high
school or obtained a GED certificate. 42
U.S.C. §
608(b)(1); 45 C.F.R. § 261.11. Neither DTA nor its contractors or vendors
conduct any screening or assessment to determine
whether TAFDC
beneficiaries have learning disabilities, or to determine whether these
disabilities would, hinder their ability to benefit
from TAFDC
education, job skills or
Page 8 -
Complaint No. 01-98-3055
employment
programs. For example, as noted above, neither ___ nor ___ were ever screened
or assessed for learning disabilities by
DTA, its
contractors or its vendors.
When
individuals apply for TAFDC benefits, DTA determine their financial
eligibility, and whether they are exempt or non-exempt
from time and
work requirements. In the initial intake interview, thc DTA case worker asks
the client if there are "barriers" to
employment. The
reference to "barriers" is not further denied; there are no specific
questions related to learning disabilities- DTA case
workers do not
ask questions that might aid in determining wheeler a TAFDC beneficiary has a
learning disability. For example, case
workers do not
generally ask questions regarding a history of special education classes, even
for those individuals under the age of 20
and other
individuals who are likely to have recently been enrolled in school. 5/ DTA
does not require its workers to ask applicants if
they can read
or write. DTA case workers are given little, if any, training or support to
help workers determine whether a beneficiary
may have a
disability, particularly if the disability is not readily apparent. 6/ In
addition, although case workers may attempt to
determine
whether a beneficiary has certain disabilities that could be the basis for an
exemption from Massachusetts' two-year time
limit for
receipt of TAFDC benefits and work requirements.7/ There is no express
provision in the Massachusetts TAFDC regulations
for exempting
individuals based on learning disabilities.8/
7/ See Mass.
St. 1995, c. 5.§ 110(c)(1).
8/ See 106 CMR
'§ 203.530, 106 CMR, § 203.540, 106 CMR, § 203.545 (regarding disability
exemptions). One provision of
Massachusetts'
TAFDC regulations does. however, provide for a disability exemption for older
individuals who are illiterate
and who can do
only sedentary work. See 106 CMR. § 203.545(C)(5).
Page 9 -
Complaint No. 0 I-98-3055
Moreover, DTA
has made no effort to determine the number of individuals with learning
disabilities who receive TAFDC benefits,
even though
studies in other states have indicated that approximately 25% to 40% of TANF
beneficiaries have learning disabilities.
DTA has not
obtained or analyzed any information regarding whether individuals with
learning disabilities have an equal opportunity
to participate
in the TA.FDC program.9/
DTA's
Employment Services Program (ESP), a Component of the TAFDC program, provides
activities such as basic and secondary
education,
supported work, job search or skills training. All TAFDC beneficiaries, even
those exempt from work requirements and
time limits may
participate in the ESP.I0/ State regulations require DTA to develop an annual
Employment Development Plan for all
ESP
beneficiaries, and require that the Employment Development Plan include, among
other things, a description of the beneficiary’s
employment goal
and the activities needed to meet this goal.11/
9/ For example,
in 1998, two high-level DTA administrators testified in depositions in the
Ramos litigation that DTA had not
gathered
information about individuals with disabilities in the TAFDC program. See
deposition transcript of Judith Subanny, DTA
Director of
Equal Opportunity, pages 66-71 Sept. l, 1998) (testifying that she had never
been requested by anyone in DTA to give
thought to how
to address the needs of individuals with disabilities in DTA education and training
programs, that she had never had any
conversations
with anyone within DTA regarding how issues relating to learning disabilities
might impact DTA's Employment Service
Program, and
that she had never undertaken, or been asked to undertake, any analysis of the
impact on people with disabilities of
DTA's
"work first" approach to welfare reform as reflected in the TAFDC
program). See also deposition testimony of Margo Blaser,
Director of
Employment Services for DTA's Employment Services Program, page 97 (testifying
that to her knowledge, no one in DTA
or in the Employment
Services Program had done any analysis of what impact, if any, a "work
first" welfare reform approach has on
WD 24-01,
Attachment 1 6
individuals
with disabilities). See also letter from DTA Director Of Equal Opportunity to
OCR (July 16, 1999) (responding to an
inquiry from
OCR about the number of TAFDC beneficiaries with learning disabilities by
staling that DTA does not collect data on
TAFDC
beneficiaries with learning disabilities).
10/ See Mass.
St. 1995, c. 5, § 110(h); 106 CMR § 207.000(E).
Page 10 -
Complaint No. 01-98-3055
Service
Delivery Areas (SDAs) contract directly with DTA to deliver employment and
training services for the ESP.I2/ SDAs conduct
an initial
interview to obtain information about the beneficiary, including the
beneficiary's educational and employment background
and a
discussion of available services to assist the beneficiary in obtaining and
maintaining a job. In addition, SDAs administer a basic
test of
educational level (most SDAs use the TABE (Test of Adult Basic Education)), and
conduct a subsequent interview. SDAs refer
TAFDC
beneficiaries; who score at the fourth grade level or higher on the TABE test
to ESP vendors (community-based agencies,
schools and
other non-profit organizations), who contract with SDA to provide TAFDC
beneficiaries with ESP services.
OCR found,
however, that the assessment process utilized by SDAs does not include any
mechanism to ascertain whether TAFDC
beneficiaries have
disabilities, including determining whether beneficiaries have learning
disabilities that would interfere with their ability
to participate
in the ESP. One SDA Executive Director told OCR, "We don't bother asking
DTA clients about disabilities, because we
know TANF
clients are automatically eligible for our services. It isn't important to ask
them about disabilities to determine their
eligibility, so
we don't-"
Even if ESP
providers wanted to refer TAFDC beneficiaries for an assessment of possible
disabilities, DTA does not appear to have a
standard
mechanism for these referrals. In 1998, the ESP's Director of Employment
Services testified in a deposition in the Ramos v.
McIntire
litigation that she was unaware of any DTA procedures by which ESP providers
could reefer TAFDC beneficiaries for
diagnostic
testing if ESP providers suspect that the recipient has some form of
disability.13/. SDA staff told OCR that they had. on
occasion,
referred public assistance beneficiaries to the Massachusetts Rehabilitation Commission
[MRC) for a full assessment of
learning
disabilities. Through OCR's investigation, however, we could not discern any
established or routine system for making such
referals.14/
Even if TAFDC
beneficiary obtains a TABE score below the fourth-grade level, the SDA does not
assess the beneficiary for
disabilities,
including learning disabilities that manifest themselves ,in very low literacy
levels. For example, ___ was never screened
or assessed for
disabilities by the New Directions, the New Bedford SDA, even after the results
of an educational achievement test
indicated that
___’s reading skills were below the second grade level. Beneficiaries who
12/ It is our
understanding that Service Delivery Areas are now known as Workforce Investment
Areas. During our
investigation,
the term Service Delivery Area was in use. so that term, and the abbreviation
SDA, is used in this letter.
13/ Deposition
testimony of Margo Blaser, page I01.
14/ For
example, we leaned that New Directions, the New Bedford SDA that administered
an educational test to ___, has
referred 17
individuals to the MRC over the past five years. New Directions did not,
however, refer H.R. to the MRC for an
assessment.
WD 24-01,
Attachment 1 7
Page 11 -
Complaint No. 01-98-3055
score below the
fourth grade level on the TABE test are considered "difficult to
serve" and may be verbally referred to programs or
agencies
outside the DTA system such as a local school system for adult basic education
or the MRC.15/ With respect to the
availability of
MRC services, however, we learned that TAFDC beneficiaries who have specific
learning disabilities. but who do not
have any
disabilities in addition to a learning disability, may not be eligible for MRC
services.16/
Our
investigation also determined that apart from the issue of assessments, DTA,
SDAs and ESP vendors do not provide services that
are appropriate
for individuals with learning disabilities. DTA's ESP Director of Employment
Services testified in her deposition in the
Ramos litigation
that she was unaware of anyone in DTA having clone an analysis of what
education and training services are most
appropriate for
individuals with disabilities, including individuals with learning
disabilities, and that site was unaware whether any ESP
components had
staff trained to recognize and respond to the needs of individuals with
learning disabilities.17/ DTA's Director of
Equal
Opportunity testified, in a September 1998 deposition in the Ramos litigation
about a phone conversation with ___'s legal
counsel, in
which counsel asked the Director if DTA had any programs for individuals with
disabilities, and the Director responded
"Not that
I'm aware of."18/
15/ For
example, one of the adult basic education programs ___ attended referred___ to
the MRC for possible Services, but
MRC told ___
that it could only place her in a work program, and could not assist her with
her educational needs.
16/ An MRC
Deputy Commissioner gave deposition testimony in the .Ran3q~ litigation that
MRC serves individuals who, as
a result of an
individual assessment, are identified as having the most severe functional
limitations. Deposition transcript of Warren
McManus, MRC
Deputy Commissioner, Vocational Rehabilitation Services Division, pages 6-8, 10
(Oct. 6, 1998). The Deputy
Commissioner
testified that individuals who have specific learning disabilities, but who do
not have any additional disabilities, are, in
general,
unlikely to have sufficiently severe disabilities to receive MRC services.
Deposition transcript of Warren McManus, pages 15-
17, 68.
17/ Deposition
testimony of Margo Balsa, pages 108-109, 153.
18/ Deposition
testimony of Judith Subanny, pages 47--49. In addition, Dianne Juarez, ___'s
most recent case worker
testified in
July 2000 that she did not think she had ever been provided with a list of job
training providers who have staff trained to
work with
individuals with learning disabilities. Deposition transcript of Dianne Juarez,
pages 11,50-51. Katherine Bourne, education
coordinator for
DTA's Employment Services Program, testified in December 1999 that to her
knowledge no list of appropriate adult
basic education
or ESP services or for adults with learning disabilities existed. Deposition
transcript of Katherine Bourne, page 106-
107 &
deposition exhibit 10 (Dec. 29, 1999).
Page 12
-Complaint No- 01-98-3055
The lack of
appropriate adult education programs for individuals with learning
disabilities, and the lack of adequate information about
available
programs, results in DTA workers' inability to provide TAFDC beneficiaries with
the assistance they require to have an equal
opportunity to
participate in the TAFDC program. For example, ___'s DTA case worker knew that
___, was looking for an
educational
program, and that ___ believed herself to be a slow learner.19/ The case
worker's assistance to ___ in finding a program,
however, was
limited to ___'s case worker giving ___ referrals to agencies that the case
worker thought might be able to help, even
though it is
unclear clear whether the worker's belief about these programs were
accurate.20/ DTA's failure to contract with adult
education
programs that are appropriate for individuals with learning disabilities is
further exemplified by the fact that ___ was unable
to successfully
complete any of thc GED or adult basic education programs in which she was
enrolled, although her attendance in these
programs was
good and although she consistently expressed to program providers her desire to
learn how to read and wrlte.21
In addition,
although some individuals with low TABE scores (as well as other individuals
with severe and/or multiple barriers to
employment) are
referred to an ESP component called the Supported Work Program. there is no
indication that this program is
appropriate for
TAFDC beneficiaries with learning disabilities because Supported Work Program
providers do not assess whether
TAFDC
beneficiaries have disabilities, do not train Supported Work Program staff to assist
individuals with learning disabilities, and have
no systematic
method of serving TAFDC beneficiaries with learning disabilities.
WD 24-01,
Attachment 1 8
21/ In a civil
discovery response in the Ramos litigation, DTA stated that it did not know
whether any ESP program to which
___ and ___
were referred had staff specially trained to teach individuals with learning
disabilities. See Interrogatory Response 5,
Commissioner's
Response to Plaintiffs' Second Set of Interrogatories to the Defendant, Ramos
v. McIntire.
Page 13 -
Complaint No. 01-98-3055
As a result of
its failure to recognize that learning disabilities constitute a significant
barrier to successful TAFDC program
participation,
DTA fails to provide programs or services sufficient to ensure that individuals
with learning disabilities have the
opportunity to
benefit or participate in the TAFDC program that is equal to the opportunity
afforded individuals without disabilities. In the
absence of any
basic screening or assessment of TAFDC beneficiaries who may have learning
disabilities and in the absence of any
other systemic
information about how individuals with disabilities have fared in the TAFDC
program, DTA is unable to determine the
number of
clients with learning disabilities needing assistance or to identify the
resources that are needed to provide appropriate
services and
accommodations for these individuals. Thus, although the DTA has set up a
system of contractors and vendors to
provide basic
education, training, job skills and job search services for TAFDC
beneficiaries, TAFDC beneficiaries who have learning
disabilities
arc denied equal access to these services in violation of the ADA and Section
504.
2. Using
criteria or methods of administration that have the effect of subjecting
qualified individuals with learning disabilities to
discriminate on
the on the basis of disability
The ADA's
regulatory prohibition against discriminatory methods of administration
"refers to official written policies" of a public
agency
"and to thc actual practices" of the agency.22/ OCR's investigation
determined that the actual practices of DTA have the effect
of subjecting
qualified individuals with learning disabilities to discrimination on the basis
of their disability.
The disability-based
discrimination to which ____, ____, and other TAFDC beneficiaries with
disabilities have been subjected -- the
denial of equal
opportunity to benefit from the TAFDC program -- is a result of the fact that
DTA provides little, if any, training or
technical
assistance to DTA employees, or to DTA contractors or vendors, regarding
learning disabilities among the TAFDC
population. DTA
does not train its employees to identify or assess whether TAFDC beneficiaries
may have learning disabilities23/, to
refer TAFDC
beneficiaries with learning
22/ See 28
C.F.R. Part 35, Appendix A, § 35.130, at 467 (1996). The ADA and its
implementing regulations prohibit criteria
and methods of
administration that have the effect of subjecting individuals with disabilities
to discrimination, whether those methods
of
administration axe utilized "directly" by a public agency "or
through contractual or other arrangements." 28 C.F.R. §
35.130(b)(3)(i).
HHS Section 504 regulations contain a similar prohibition. See. 45 C.F.R. §
84.4(b).
23/ As noted
previously, in a July 2000 deposition in the Ramos litigation, ___’s most
recent case worker testified that she
had never
received training regarding hew to recognize whether an individual may have a
learning disability. This worker also testified
that she had
never received training on the ADA or Section 504 of the Rehabilitation Act.
Deposition transcript of Dianne Juarez, page
11.
~]\
Page 14 -
Complaint No. 01-98-3055
disabilities to
appropriate services24/, to make modifications in programs, policies or
practices, to provide individuals with disabilities with
auxiliary aids
or to otherwise accommodate these individuals' needs. In a September 1998.
deposition in the Ramos litigation, DTA's
Director of
Equal Opportunity testified that although DTA managers and supervisors had
received training regarding the ADA,
including
training concerning accommodating individuals with disabilities, this training
was not provided to non-supervisory and nonmanagerial
DTA staff.
Moreover, the manager and supervisor training did not include any discussion of
access to educational
programs for
individuals with cognitive impairments.25/ The Director of Equal Opportunity
also testified that DTA had never
arranged for
ESP providers to receive training concerning thc ADA, that thc Director did not
know whether PTA requires ESP
providers to
obtain training regarding their ADA obligations, and that the Director did not
know whether any ESP providers have staff
trained to
accommodate or teach individuals with teaming disabilitie.s.26/ DTA's Director
of Employment Services for the ESP
testified in
her July 1998 deposition in the Ramos litigation that she had never had or
directed any communication with ESP
WD 24-01,
Attachment 1 9
community
service program providers regarding their obligations to meet thc needs of
individuals with disabilities.27/ DTA
contractors and
vendors told OCR that they have never received training, technical assistance
or guidance from DTA regarding the
identification
or assessment of TAFDC beneficiaries with learning disabilities or the
provision of appropriate services, auxiliary aids or
other
accommodations for these individuals.
24/ For
example, DTA's Director of Equal Opportunity testified although she thought the
Massachusetts Rehabilitation
Commission
(MRC} may be all appropriate place to refer TAFDC
beneficiaries with learning disabilities for services, thc Director was
unaware of rely
training for DTA workers concerning referrals to MRC, and that she herself had
never caused a TAFDC beneficiary to
be referred to
the MRC. Deposition testimony of .Judith Subanny, pages 49, 57-58. Similarly,
DTA's Director of Employment
Services for
ESP testified in a July 1998 deposition in the Ramos litigation that she was
unaware of any written instructions to DTA
case workers
regarding making appropriate referrals to MRC. Deposition transcript of Margo
Blaser, page 67. Ms. Blaser also
testified that
she was unaware of any training sponsored by the DTA central office, although she
described a proposal for a pilot
program with
two DTA offices involving referrals of some individuals to MRC and
cross-training of DTA and MRC staff. Deposition
transcript of
Margo Blaser, pages 68-77.
25/ Deposition
testimony of Judith Subanny, pages 40-42. Similarly, Ms. Subanny testified that
she had neither provided
instruction or
caused anyone else at DTA to provide instruction to DTA workers regarding what
steps they should take if they
encounter a
TAFDC recipient who cannot read, and that she could not remember whether DTA's
ADA training for managers and
supervisors
included training regarding services for individuals who cannot read or can
only read with difficulty. Deposition testimony
of Judith
Subanny, pages 56-57.
26/ Deposition
testimony of Judith Subanny, pages 42, 72-
27/ Deposition
testimony of Margo Blaser, page 43.
Page 15 -
Complaint No. 01-98-3055
OCR. also
learned through its investigation that DTA had been offered, but did not accept
no-cost training for its staff through the
Bridges to
Practice program at the Massachusetts Department of Education. This program
would have provided training to DTA staff
to enable them
to screen and/or assess TAFDC beneficiaries with learning disabilities, and
would have trained DTA vendors to
develop strategies
in teaching to better help persons with learning disabilities- When OCR asked
DTA why the agency had not availed
itself of this
training opportunity, DTA told OCR that DTA staff had been so overwhelmed with
training that DTA did not want to
implement
additional training programs.
___, ___, and
other TAFDC beneficiaries with learning disabilities have also been subjected
to disability-based discrimination as a
result of DTA's
failure to monitor its own programs, and the programs of its contractors and
vendors, to determine whether these
programs are
being operated in a discriminatory manner with respect to individuals with
learning disabilities. Such monitoring might
properly
include determining whether TAFDC beneficiaries with learning disabilities have an
opportunity to participate in and benefit from
TAFDC that is
equal to the opportunity granted individuals without disabilities, whether DTA, its
contractors and vendors make reasonable
modifications
necessary to avoid discrimination against individuals with learning disabilities,
whether DTA, its contractors and vendors have
in place
nondiscriminatory policies and procedures and whether the staff of DTA,
contractors and vendors are properly implementing
these policies
and procedures.28/
In sum, DTA's
employs discriminatory methods of administration, premised on DTA's failure to
acknowledge learning disabilities as a
substantial
barrier to equal access to the TAFDC program, and its failure !o adopt policies
and practices that do not result in
discriminatory
services to people with disabilities.
WD 24-01,
Attachment 1 10
3. Failure to
make reasonable modifications necessary to avoid discrimination on the basis of
disability in the
TAFDC program
DTA fails to
ensure that individuals with learning disabilities have an equal opportunity to
benefit from or participate in the TAFDC
program because
DTA does not make reasonable modifications to its programs, policies and
practices that are necessary to avoid
disability-based
28/Appropriate
monitoring of DTA and its vendors would be consistent with DTA's obligation to
evaluate its services,
policies and
practices for compliance with the ADA and to modify any services, policies or
practices that. do not comply with the
ADA- See ADA
regulations at 28 C.F.R. § 35.105. In a September 1998 deposition, DTA's
Director of Equal Opportunity testified that
as a result of
training from the Massachusetts Commission Against Discrimination, the Director
believed that a self-evaluation plan
should be
created upon changes to a public agency's facilities or programs, and that DTA
created a self-evaluation plan in 1594, but
that DTA had
not undertaken a self-evaluation plan after thc changes in its public cash
assistance program created by Massachusetts'
1995 welfare
reform legislation. Deposition transcript of Judith Subanny, pages 59-65.
Page 16 -
Complaint No- 01-98-3055
discrimination.
DTA's failure to make reasonable modifications is exemplified by its failure to
incorporate into its assessment process
any efforts to
determine whether TAFDC beneficiaries have learning disabilities, whether a
!earning disability impacts beneficiaries'
ability to
participate in or benefit from TAFDC programs, and whether reasonable
modifications to the program or to program
participation
requirements might be made in order to ensure equal access. Because DTA does
not take steps to learn what TAFDC
beneficiaries
with learning disabilities need in order to have an equal opportunity to
participate in the TAFDC program, DTA has no
basis upon
which to determine what modifications would be reasonable in terms of meeting
beneficiaries' needs while not resulting in
an undue burden
on or fundamental alteration of the TAFDC program.29/ In the absence of
reasonable modifications, TAFDC
beneficiaries
with learning disabilities have not been afforded an equal opportunity to
benefit from the TAFDC program.
Our
investigation also found that beneficiaries with learning disabilities are
subjected to disability-based discrimination because DTA
its contractors
and vendors take few steps to modify policies, practices or procedures in order
to ensure that TAFDC beneficiaries with
learning
disabilities who score below the fourth grade level on the TABE test have an
equal opportunity to participate in or benefit
from the TAFDC
program. For example, after completing an assessment of ___’s educational
level, New Directions. the New
Bedford SDA,
determined that its vendors did not have programs for individuals with the low
level of educational achievement
reflected in
___’s test scores, New Directions did not take steps to determine whether ___’s
low test scores were related to a possible
disability, or
whether New Directions or its vendor could make reasonable program
modifications in order to serve ___. Rather. New
Directions
decided to verbally refer ___outside the SDA vendor network, to the adult
literacy program at the New Bedford High
School. Our
investigation did not discover any steps taken by New Directions to determine
whether the New Bedford High School
adult education
program would have been appropriate for ___. Moreover, the verbal referral
system described to us is inadequate
because there
arc apparently no provisions to provide follow-up services for those TAFDC
beneficiaries who require such services in
order to have
an equal opportunity to participate in the ESP. For example, New Directions
told OCR that it does not follow up on
verbal
referrals, and that it is up to the TAFDC beneficiary to decide whether she
will act on the referral.
OCR's investigation
also revealed that DTA appears to have few policies or procedures regarding the
provision of TAFDC services to
individuals
with disabilities, and DTA's obligation to make reasonable modifications or its
policies and procedures. The limited policy
guidance DTA
has provided to staff regarding the needs of TAFDC beneficiaries with disabilities does
not include any specific information
about
individuals with learning disabilities. We reviewed a "Field Operations
Memo," issued by DTA to its staff in October 1998,
which informs
staff of DTA's
29/ As
discussed below, thc ADA and Section 504 provides that public entities need not
make modifications that would result
in a
fundamental alteration of or an undue burden to the entity's programs.
Page 17 -
Complaint No. 01-98-3055
WD 24-01,
Attachment 1 11
obligation to
comply with the ADA and to provide reasonable accommodations for
"qualified recipients with disabilities in order to allow
these
individuals "to meet Department requirements and utilize Department
services."30/ The October 1998 Field Operations Memo
refers to
individuals with physical or mental disabilities, but does not include any
examples of specific disabilities, including learning
disabilities.
In its brief discussion of reasonable accommodations, the October 1998 Field
Operations Memo does not include any
mention of
beneficiaries with learning disabilities or how DTA might accommodate the needs
of these individuals.31/ The October
1998 Field
Operations Memo directs DTA staff to contact DTA's Director of Equal
Opportunity if a TAFDC beneficiary informs staff,
or staff
"otherwise become aware," of physical or mental condition that is
preventing the recipient from meeting DTA requirements or
utilizing DTA
services.32/ Our investigation did not obtain any information indicating that
DTA employees are using the information
in the October
1998 Field Operations Memo to obtain reasonable accommodations for TAFDC
beneficiaries with learning disabilities.
In March 2000,
DTA's Director of Equal Opportunity told OCR that she had never received a
request for accommodations for a
TAFDC
beneficiary with learning disabilities, or a complaint that a
beneficiary with learning disabilities was unable to complete a TAFDC
proexam.33/
In addition,
DTA's Director of Equal Opportunity testified in her deposition that she did
not know whether any ESP programs in
Massachusetts
had staff who were trained to accommodate individuals with learning
disabilities.34/ This testimony is consistent with
the information
OCR obtained from the D'I'A contractors and vendors we interviewed. These
contractors and vendors
30/
Massachusetts Department of Transitional Assistance Field Operations Memo 98-50
(Oct. 23, 1998).
31/ Field
Operations Memo 98-50 contains one example of an accommodation for an'
individual with severe depression, one
example o fan
accommodation for an individual with mobility impairments, and another example
of an accommodation for an
individual
whose unspecified disability prevents in-person travel to a DTA office. In the
context of discussing whether a
TAFDC recipient with a disability
meets the "essential elements" of the TAFDC program, Field Operations
Memo 98-50 includes two examples of
individuals
with unspecified disabilities:
32/ DTA
repeated this directive to staff in a September 1999 Field Operations Memo
regarding cooperation with child
support
enforcement requirements. See Massachusetts Department of Transitional
Assistance Field Operations Memo 99-25 (Sept. l,
1999).
33/ In
addition, just prior to the issuance of Field Operations Memo 98-50, in
September 1998. DTA's Director of Equal
Opportunity
testified ill a deposition in the Ramos litigation that she had never been
involved in arranging for a reasonable
accommodation
for any TAFDC recipient who was a participant in the ESP program. Deposition
transcript of Judith Subanny, pages
67-68.
34./ Deposition
testimony of Judith Subanny, page 72.
Page 18 -
Complaint No. 01-98-3055
were unanimous
in stating that they had never received any guidance from DTA regarding program
modifications, or accommodations
or auxiliary
aids for TAFDC beneficiaries with disabilities. Although most contractors and
vendors told OCR that they would have
tried to
provide any "extra help" or accommodation needed by TA.FDC
beneficiaries with teaming disabilities, and vendors also stated
that they
weren't sure who would pay for specific accommodations or auxiliary aids.
Contractors and vendors also told OCR that they
had never been
told by DTA what aids they would be required to provide, or what their
obligation was with respect to program
modifications.
Moreover, we learned that ESP "accommodations" for persons with
disabilities consist largely, of if not entirely, of
additional
hours of one-on-one or .small group work with one beneficiary or a group of
beneficiaries. No matter how well intentioned,
this type of
"extra help" is not necessarily appropriate to meet the needs of
TAFDC beneficiaries with learning disabilities, particularly
because it is
unconnected to any assessment of the beneficiaries' specific disabilities or
needs.
As discussed in
this letter, DTA fails to provide TAFDC beneficiaries with learning
disabilities with an equal opportunity to benefit
from the TAFDC
program. By not making reasonable modifications in its policies, practices and
procedures, DTA has failed to
address the
disability-based discrimination to which beneficiaries with learning
disabilities are subjected.
WD 24-01,
Attachment 1 12
CONCLUSIONS
Based on our
investigation, OCR concludes that DTA has violated the ADA and Section 504 by:
(1) failing to afford ___ and ___ an
opportunity to
participate in or benefit from the TAFDC program that is equal to the
opportunity DTA provides :to TAFDC
beneficiaries
who do not have learning disabilities; (2) providing ___ and ___ with TAFDC services
that are not as effective in affording
equal
opportunity to obtain the same result, gain the same benefit or reach the same
level of achievement as TAF'DC beneficiaries
without
disabilities; (3) limiting ___ and ___ enjoyment of the rights, privileges,
advantages or opportunities enjoyed by people without disabilities
TAFDC
beneficiaries; (4) utilizing methods of administration that had the effect of
subjecting ___ and ___ to discrimination on the
basis of
disability; and by (5) failing to make reasonable modifications in TAFDC
policies, practices or procedures that were necessary
to avoid
disability-based discrimination against ___ and ___. See ADA regulations at 28
C.F.R. § 35.130(b)(I), 28 C.F.R. § 35.
I30(b(3) and 28
C.F.R. § 55.130(b)(7), and Section 504 regulations at 45 C,F.R § 84.4(b)(1) and
45 C.F.R. § g4.4(b)(4).35/
35/ OCR's
concludes that DTA violated ___'s rights under Section 504 and Title lI of
the ADA despite
___’s exemptions from DTA time limits and work requirements, her eventual
receipt of SSI
benefits and her-recent move from Massachusetts. The disability-based
discrimination
identified in our investigation occurred while ___ resided in Massachusetts and
while she was a
TAFDC "recipient" (receiving TAFDC benefits first for herself and her
children
and, after
___'s receipt of SSl, for her children only) within the meaning of
Massachusetts law.
See Mass. St.
1995, c. 5, §110(a).
Page 19 -
Complaint No. 01-98-3055
In addition to
its specific findings with respect ___ and ___, OCR, finds that DTA
discriminates generally against individuals with
learning
disabilities in its TAFDC program. OCR's finding of systemic discrimination is
based on tile information it obtained regarding
the policies,
practices and procedures of DTA and DTA contractors and vendors, with respect m
TA.F'DC beneficiaries with learning
disabilities.36/
As described
above, our investigation revealed that DTA has no policies, procedures or practices
designed to determine whether
TAFDC
beneficiaries have learning disabilities. We also learned that neither DTA nor
the Service Delivery Areas (SDAs) with which
DTA contracts
to administer the Employment Services Program. (ESP) for TAFDC beneficiaries
have any established or routine
mechanism for
assessing whether TAFDC beneficiaries who are assigned to ESP have learning
disabilities. We learned that neither
DTA nor SDAs
have developed programs that can meet the needs of individuals with learning
disabilities. ~ We learned that neither
DTA nor SDAs
have any established or routine mechanism for referring TAFDC beneficiaries
with learning disabilities to ESP
programs,
including basic and secondary education programs, that can meet their needs.
Our investigation also revealed that neither
DTA nor SDAs
take adequate steps to ensure that TAFDC programs make reasonable modifications
in order to avoid disability-based
discrimination
against individuals with leaning disabilities, including individuals, such as ___
and ___, whose disabilities manifest
themselves in
part in veryl0w literacy levels.
OCR has
concluded that these practices denied ___ and___ the opportunity to enjoy the
same level of access to the TAFDC program
as DTA affords
to TAFDC beneficiaries who do not have disabilities. ___ and ___ were unable to gain
thc same benefit from the TAFDC
program as
TAFDC beneficiaries without disabilities because the nature and extent of ___ and ___’s
disabilities were not identified or
assessed by the
DTA or its contractors, and because neither the DTA nor its contractors
provided ___ and ___ with an ESP program
that was
appropriate for their needs. Moreover, in failing to formally and effectively
refer ___ and ___ to GED or other basic
education
programs that could meet the needs of individuals with learning disabilities,
DTA failed to make reportable modifications in
its program
that were necessary to avoid disability-based discrimination against ___ and
___. DTA and its contractors also failed to
ensure that the
GED and other basic education programs either provided by contractors, or to
which ___ and ___- were referred, made
reasonable
modifications in order to avoid disability-based discrimination against ___ and
___, the benefit DTA provides to
persons without disabilities -access
to a program designed to move TAFDC beneficiaries from welfare to work and
self-sufficiency was denied
to___ and ___
on the basis of these individuals' disabilities.
36/ OCR does
not now reach a conclusion about the extent to which individuals who have
disabilities other than learning
WD 24-01,
Attachment 1 13
disabilities
have an equal opportunity to benefit from the TAFDC program. OCR may, however,
examine this issue in depth in
conjunction
with its ongoing civil rights enforcement activities. OCR would welcome the
opportunity to discuss issues affecting
individuals
with disabilities in addition to learning disabilities as part of the voluntary
compliance process discussed at the end of this
letter.
Page 20-
Complaint No. 01-98-3055
Through
structuring and operating the TAFDC programs in the manner described above, DTA
utilized methods of administration that
had the effect
of subjecting ___ and ___ to discrimination on the basis of disability.
Moreover, because these methods of
administration
constitute DTA's actual and routine practices, they have the systemic effect of
subjecting TAFDC beneficiaries with
learning
disabilities to discrimination.
The fact that
DTA utilizes contractors and vendors in its administration of the TAPDC program
does not insulate DTA from a finding
that DTA has
violated Section 504 and the ADA. Implementing regulations for Section 504 and
the ADA state clearly that a recipient
of federal
funds (in the context of Section 504) or a State or local government program
(in the context of !he .ADA), may not directly
or indirectly
(e.g., "through contractual or other arrangements”) put into place, or
allow to be put into place, a system or program
which has the
effect of subjecting qualified individuals with disabilities to discrimination
on the basis of disability. Thus, the critical
question in a
Section 504 or ADA analysis is whether DTA, in administering the TAFDC program,
has directly or indirectly put into
place, or
allowed to be put into place, a system or program that has the effect of
subjecting individuals with disabilities to
discrimination.
As part o fits overall administration of the TAFDC program, DTA is responsible
,for ensuring that TAFDC
beneficiaries with disabilities
have an opportunity to participate in all program benefits and services that
can potentially move them from dependence to
self-sufficiency
that is equal to the opportunity afforded TAFDC beneficiaries without
disabilities. If a system is in place that does not
provide
individuals with meaningful access to the TAFDC program on the basis of
disability, DTA has a responsibility under the ADA
and Section 504
regulations to make the modifications necessary to provide meaningful access,
unless such modifications constitute a
fundamental
alteration of thc TAFDC program. OCR is aware that DTA includes in its ESP
vendor contracts a requirement that
vendors comply
with the ADA. This contractual requirement is insufficient by itself to
discharge DTA's responsibilities under the ADA
and Section
504. however, in light of the problems identified in our investigation,
Neither the ADA
nor Section 504 requires modifications that "fundamentally alter" the
nature of a governmental program or activity.
Nothing in our
investigation to date leads to the conclusion that making reasonable
modifications to the TAFDC program to facilitate
equal access to
thc program by TAFDC recipients with learning disabilities would result in a fundamental
alteration of the program. Both the
governing state
and federal statutes and stale regulations for the TAFDC program support our
conclusion that providing ___, ___, and
other TAFDC beneficiaries
with learning disabilities with an :adequate assessment and an ESP program
(including reasonable modifications)
appropriate to
their needs would be consistent with the TAFDC program's goals of
"promoting the principles of family unity,
individual
responsibility and self-reliance and ... structur[ing] financial and economic
incentives and disincentives that promote such
principles,..."
See Mass. St. 1995, c. 5 § 110 (describing purposes of TAFDC program). See also
Mass, St. 1995, c. 5, § 110 (h)
(encouraging
the implementation of an individualized employment development plan
"designed to enable said recipient to attain
economic
self-sufficiency"); see also 42 U.S.C. § 601(2) (federal TAN'F statute,
staling that one purpose of the statute is to "end the
dependence of
needy parents On government benefits by promoting job
Page 21 -
Complaint No. 01-98-3055
preparation,
work and marriage"). In addition, through this investigation and through
other civil rights enforcement activities, OCR bas
become aware
that numerous other States have recognized the need to provide TANF
beneficiaries with learning disabilities with equal
access to TANF
programs through reasonable program modifications.- Several states have
incorporated the screening and assessment
of and the
provision of appropriate services to individuals with learning disabilities
into their TANF programs.37/ As noted above, our
investigation
revealed that DTA had the opportunity to participate in a program that would
have provided free training to DTA staff
concerning
individuals with learning disabilities, but that DTA chose not to aw4l itself
of this opportunity. We are unaware of any
formal
agreements between DTA and sister agencies, such as the State Department of
Education or the Massachusetts Rehabilitation
· Commission,
that would train DTA staff about learning disabilities or otherwise aid DTA in
providing appropriate services to
WD 24-01,
Attachment 1 14
TAFDC
beneficiaries with learning disabilities.38/ We are also aware that the
plaintiffs in the Ramos litigation have alleged that
the cost of
assessments to determine whether TAXDC beneficiaries have disabilities may be borne
by the Massachusetts Division of
Medical
Assistance upon request from DTA. All of these factors lead to our conclusion
that the modifications necessary to avoid
discrimination
against individuals in the TAFDC program would not constitute a fundamental
alteration of the program.
OPPORTUNITY FOR
VOLUNTARY COMPLIANCE
When an OCR
investigation indicates that a recipient of HHS assistance or a covered entity
under Title I2 of the ADA has failed to
Comply with
applicable regulations, the recipient is given an opportunity to take the
corrective actions necessary To remedy the
violation. If
compliance cannot be secured by voluntary means, it may be effected by
suspension or termination of, or refusal to grant
or to continue
Federal financial assistance, when a violation is found after
37/ See e.g.,
National Governor's Association Reports Online, "Serving Welfare
Recipients With Learning Disabilities in a
Work First
Environment "(July 28, 1998) (attached). In our investigation, we learned
that DTA was aware of the recommendations
contained in
this paper, and that a DTA staff member urged her superiors to take action
based on the information the paper contained.
See deposition
transcript of Katherine Bourne, pages 39-43, 63-65 and deposition exhibits 4
and 5.
DTA employees
testified in deposition in the Ramos litigation that such agreements have been
discussed, but not
formalized or
implemented. See deposition transcript of Katherine Bourne, pages 43-45, 50,
115-130 and deposition exhibits 11 and
12; deposition
transcript of Margo Blaser, pages 69-76 and deposition exhibit 6. See also
deposition transcript of MRC Deputy
Commissioner
Warren McManus, pages 61-69. In July 2000, the MRC's Director of
Storewide Programs told OCR that MRC and
DTA were
discussing entering into a new Memorandum of Understanding, but that these
discussions were still at a preliminary stage.
The MRC
administrator told OCR that a prior Memorandum of Understanding between the
agencies was old and outdated.
Page 22 -
Complaint No. 01-98-3055
opportunity for
hearing, or by any other means authorized by law, including a recommendation
that the Department of Justice bring an
action to
enforce Section 504 and or the ADA.
The corrective
actions OCR considers necessary in this case are as follows39/:
DTA must:
Modify its
procedures to provide for initial screening and, when appropriate, full
assessment of TAFDC beneficiaries to determine
whether these
individuals have learning disabilities, and to determine whether these learning
disabilities would interfere with
beneficiaries'
ability to participate in TAFDC programs;
Based on the
assessments described above, provide TAFDC beneficiaries with learning
disabilities with sufficient services and
programs to
ensure that these individuals have an opportunity to benefit from and
participate in TAFDC programs that is equal to the
opportunity DTA
provides to TAFDC beneficiaries who do not have disabilities;
Ensure that
DTA, as well as its contractors and vendors, make reasonable modifications in
programs, policies and procedures that are
necessary to
avoid discrimination based on disability against individuals with teaming
disabilities;
Eliminate
methods of administration that have the effect of subjecting individuals with
learning disabilities to disability-based
discrimination,
including at least: (1) providing adequate training for DTA employees regarding
the assessment and provision of
appropriate
services to individuals with learning disabilities; (2) ensuring that such
training, when necessary to avoid discrimination
based on
disability against individuals with learning disabilities, be provided to DTA
contractors and vendors; (3) ensure that technical
assistance
regarding thc needs of, appropriate services find reasonable modifications for
individuals with learning disabilities is
available to
DTA employees and to DTA contractors and vendors; and (4) monitor DTA and DTA
contractors and vendors to ensure
compliance with
any voluntary agreement between DTA and OCR, and
WD 24-01,
Attachment 1 15
Otherwise
determine and implement what relief is appropriate for TAFDC
beneficiaries with learning disabilities as a whole, and for ___ and
___
specifically.
39/ In formulating
a plan for corrective action, OCR strongly suggests that DTA more aggressively
pursue formulating
partnerships
with other State agencies (including tile Department of Education, the
Department of Public Health and Massachusetts
Vocational
Rehabilitation Commission) and other potential providers to provide appropriate
assessment services and reasonable
accommodations
for TAFDC beneficiaries with disabilities.
Page 23 -
Complaint No. 01-98-3055
OCR is
interested in working with DTA to resolve thc violations identified by our
investigation in a cooperative and proactive manner,
and in
providing DTA with technical assistance in making changes to ensure that
individuals with teaming disabilities have m equal
opportunity to
benefit from the TAFDC program. To this end, we suggest that representatives of
OCR and representatives of DTA
meet within
approximately 14 days after the dale of this letter to discuss necessary
corrective actions and specific strategies to ensure
that corrective
actions are carried out. If DTA does not agree to take the required corrective
actions, formal enforcement action may be
taken.
OCR
determinations do not affect the fight of an aggrieved person to file or
maintain a private civil action to remedy alleged
discrimination
by a recipient of Federal financial assistance. Such a person may wish to
consult an attorney about his/her right to
pursue a
private cause of action, any applicable statutes of limitations and other
relevant considerations.
Pleased be
advised that no recipient may intimidate, threaten, coerce or discriminate
against an individual because he or she has made
a complaint,
testified, assisted or participated in any manner in an action to secure fights
protected by the civil rights statutes enforced
by OCR (45
C.F.R. §80.7(e))
Under the
Freedom of Information Act, it may be necessary to release this document and
related correspondence and records upon
request. In the
event OCR receives such a request, we will make every effort to protect, to thc
extent provided by law, information
which
identifies individuals or which, if released, would constitute an unwarranted
invasion of privacy (5 U.S.C. § 552)
We wish to
thank you for your cooperation during the course of this investigation. If you
have any questions, please contact Vicki Hill,
Equal
Opportunity Specialist, at (617) 565-1344 (voice) or (617) 565-1343 (TOD), or
Peter Chan, Deputy Regional Manager. at
(617)565-1353.
Sincerely
yours,
Caroline I.
Chang
Regional
Manager
Office for
Civil Rights
Region I
enclosure
cc:
complainants