Title II of the ADA of 1990 "is intended to protect qualified individuals with disabilities from discrimination on the basis of disability in the services, programs, or activities of all State and local governments."8 The ADA defines "disability" as a physical or mental impairment that substantially limits one or more of the major life activities, and the law specifically requires state and local governments to make reasonable accommodations when necessary to avoid discrimination on the basis of disability.9 Of the four barriers to work considered here, three are disabilities covered by the ADA - substance abuse,10 mental health problems, and learning disabilities.11 States and localities designing and implementing screening and assessment approaches and referrals to services must ensure that they do not discriminate against qualified individuals with disabilities. State and local TANF programs may not use criteria that screen out or tend to screen out an individual with a disability from participating unless such criteria can be shown to be necessary for the service or program. 12 Although the states we spoke to did not specifically identify this as an issue they were grappling with, all states and localities must ensure that their programs meet the guidelines of the ADA. 13
States we spoke to identified several reasons why they developed or were newly developing screening and assessment processes for TANF clients. The reason cited most frequently was meeting the increasing annual federal work participation requirements. In fact, it bears repeating here that welfare agencies are primarily concerned with identifying unobserved disabilities only in so far as they are barriers to employment and participation in work activities. TANF caseload declines are believed to have left many states with an increasing proportion of recipients facing challenges in their efforts to transition from welfare to work. Although states have generally had no trouble meeting work participation rate requirements to date, as increasing proportions of long-term TANF recipients face barriers to work, states are anticipating that meeting federal work requirements will be increasingly difficult.
Time limits provide incentives for TANF agencies to identify unobserved barriers to employment
Many states also indicated that approaching time limits are another reason for increased emphasis on screening and assessing TANF clients for unobserved barriers to employment. Many states, and particularly those with time limits shorter that the federal 60-month limit, are beginning to consider the ramifications of time limits on meeting the needs of clients remaining on TANF. Getting clients screened, assessed, referred, treated, and into work when they have a significant barrier to employment can take time. As the federal 60-month time limit approaches, more and more states will be faced with less and less time to remove or mitigate barriers to work for hard-to-serve TANF clients.
How does the Family Violence Option provide an incentive to screen and assess?
Another reason states mentioned for beginning or enhancing screening and assessment practices specifically related to domestic violence victims receiving TANF is the Family Violence Option (FVO). The FVO enables states that adopt this option to provide temporary waivers from work requirements for domestic violence counseling, safety planning, and other related services. States that adopt the FVO agree to:
Screen and identify individuals who are receiving assistance under TANF and who have a history of domestic violence while maintaining the confidentiality of such individuals;
Make referrals for counseling and supportive services; and
Waive program requirements, pursuant to good cause, such as time limits (for as long as necessary), if complying with the requirements would make it more difficult to escape from domestic violence or unfairly penalize the individual in light of her past or current experience with domestic violence.14
Thirty-two states had adopted the FVO and had all policies and procedures in place as of May 1999.15
8 U.S. Department of Justice. The Americans with Disabilities Act Title II Technical Assistance Manual Covering State and Local Government Programs and Services. Washington, DC: U.S. DOJ, undated.
9 See U.S. Department of Justice. 28 CFR 36.104, Americans with Disabilities Act. Washington, DC: U.S. DOJ, July 26, 1990.
10 Individuals currently using illegal drugs are not protected from discrimination under the ADA, however, the ADA does prohibit denial of health services or rehabilitation services to an individual on the basis of current illegal drug use if the individual is otherwise entitled to such services.
11 U.S. DOJ undated.
12 U.S. DOJ undated.
13 For more information see U.S. Department of Labor. How Workplace Laws Apply to Welfare Recipients. Washington, DC: U.S. DOL, May 1997, U.S. Department of Health and Human Services. Civil Rights Laws and Welfare ReformAn Overview. Washington, DC: U.S. DHHS, August 1999, U.S. Department of Health and Human Services. Technical Assistance for Caseworkers on Civil Rights Laws and Welfare Reform. Washington, DC: U.S. DHHS, August 1999.
14 Public Law No. 104-193, 104th Congress, 2nd Session, Section 402(a)(7). August 22, 1996.
15 Raphael, Jody and Sheila Haennicke. Keeping Battered Women Safe Through the Welfare-to-Work Journey: How are we Doing? Chicago, IL: The Center for Impact Research, September 1999.