Earlier this year a Boston Globe article reported that the Massachusetts Department of Transitional Assistance (DTA), the state TANF agency, was found by the U.S. Department of Health and Human Services Office for Civil Rights to have violated the rights of two of its learning disabled clients. (See the Globe, January 23, 2001.) I have been given a copy of a January 19, 2001, letter from the HHS to the DTA which details the ways in which the DTA discriminated against these and other "similarly situated persons with learning disabilities by denying these persons an opportunity to participate in DTA's Employment Services Program (ESP)." The ESP is intended to provide clients with basic and secondary education, supported work, job search or job skills training. I am going to quote extensively from this letter because I believe it illuminates the U.S. Department of Health and Human Services' expectations of how state transition employment (welfare) agencies should be treating clients who have--or may have--learning disabilities.
The two pieces of regulatory language relevant to the investigation cited in the letter were: 1) HHS's implementing regulations regarding Section 504 of the Rehabilitation Act of 1973, 45 C.F.R. 84.4 (a) and (b), which state, in relevant part: "No qualified disabled person shall, on 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." The language continues to detail the kinds of discriminatory actions which are prohibited. 2) 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. This section details the ways in which clients may not be excluded or discriminated against.
The investigation found three kinds of violations: 1) "Denial of equal opportunity to learning disabled individuals to participate in or benefit from TAFDC program." (TAFDC is Transitional Aid to Families with Dependent Children.) This refers in large part to "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 need in order to have an equal opportunity to participate in the TAFDC program." The investigation found that "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 employment programs.... 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."
2) "Using criteria or methods of administration that have the effect of subjecting qualified individuals with learning disabilities to discrimination on the basis of disability." The letter states that "the disability-based discrimination...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 disabilities, to refer TAFDC beneficiaries with learning disabilities to appropriate services, to make modifications in programs, policies or practices to provide disabled individuals with auxiliary aids or to otherwise accommodate these individuals' needs."
3) "Failure to make reasonable modifications necessary to avoid discrimination on the basis of disability in the TAFDC program." The letter states that the investigators found that "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." In the concluding section the letter states that "in addition, through this investigation, and through other civil rights enforcement activities, OCR has 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."
David J. Rosen is Director of the A.L.R.I.