Public Assistance Sanctions and People with Disabilities

November 2, 2009

Author: Don Friedman

Public Assistance Sanctions and People with Disabilities 1

A stark reality of New York’s welfare system is that over time many households have their benefits reduced or terminated as a result of sanctions for alleged non-compliance with the public assistance work rules.  At any given point in time, roughly 10% of the public assistance (PA) population is being sanctioned. 

In New York City, a similar snapshot of a point in time will reveal about 25% of the households with an employable individual either being sanctioned or trying to address a threatened sanction.  Over the course of year, it is likely that a third to a half of the PA population is impacted by sanctions.2  For this reason, it can be characterized as a “punishment-driven” system.  Many of those who are sanctioned are people with disabilities.  This article will discuss the relationship between sanctions and disabilities, suggest some advocacy tools for preventing the imposition of sanctions, and conclude with a brief look at efforts to improve the situation.

Introduction
Sanctions are frequently imposed against PA recipients who, because of their disabilities, are not able to adequately understand or comply with requirements and assignments.  There are some important protections in the law, but they are too often disregarded. 

Widespread research indicates, not surprisingly, that people with disabilities are disproportionately represented among PA recipients who are sanctioned. Also prominent among the recipients most likely to be sanctioned are people with multiple barriers to employability, a population that also  includes many recipients with disabilities.3  The remainder of this article looks at some strategies for challenging threatened sanctions.

Willful and Without Good Cause
The Social Services Law requires that a sanction not be imposed unless the individual failed to  comply “willfully and without good cause.”4 Willfulness is not defined in the law, but this might be called a subjective test, looking to the state of mind of the individual and asking the question, did the person intentionally fail to comply?  This sometimes overlooked sanction criterion can be valuable when, for example, because of a mental disability, a person’s noncompliance should not be deemed willful, and therefore no sanction should be imposed.

Good cause is a more objective standard, looking not at the state of mind of the individual but asking instead whether the individual presented a reasonable excuse for noncompliance.  An illness, the illness of another household member and lack of child care are among the good cause factors listed in the regulation,5 but the list is not exclusive, and many other circumstances can qualify as good cause for noncompliance.

Sometimes, both the willfulness and good cause factors may be applicable to excuse a failure to comply.  One important example relates to the impact of depression on the ability to engage in work activities.  Some local districts have been reluctant to recognize the potentially disabling impact of depression.  Hopefully this situation has improved following court decisions emphasizing that depression can certainly be a disabling condition and therefore can support a finding of good cause for non-compliance.6  I would suggest that in such instances, the failure to comply might also be characterized as not willful.7

Good Cause and the Evaluation of Employability
A concern for advocates is that local districts too often do not adequately evaluate client employability and fail to recognize disabling conditions.  As a result, clients may be given inappropriate assignments with which they are unable to comply.  The result will likely be the triggering of the sanction process.  In such cases, if a fair hearing is requested, it can provide the client and the advocate with an additional opportunity to present evidence concerning the client’s medical condition, and to establish good cause for noncompliance.  Ideally the client should be prepared to introduce evidence that is more thorough and persuasive  than the evidence that had been presented during the employability evaluation.  In any event, even if the client failed to challenge the initial finding of employability, judges in fair hearings have regularly accepted such evidence, finding not necessarily that the original determination of employability was wrong, but rather that the client has established good cause for noncompliance.

The Americans with Disabilities Act
The Federal Americans with Disabilities Act applies broadly to ensure that people with disabilities have equal access to, among other things, public benefits programs.8  Where necessary to ensure equal access for people with disabilities, state and local governments must make “reasonable modifications” to program rules and policies.  In March 2006, OTDA issued an administrative directive outlining local actions and rules that would be required to ensure general compliance with the ADA.9  And in 2004, OTDA added to their Employment Policy Manual a statement about ADA compliance specifically in the context of the welfare work rules.10  While OTDA’s instructions may not sufficiently comport with the mandates of the ADA, they do provide an important array of rights for people with disabilities.

OTDA policy directs districts:

• to notify clients of their rights under the ADA, including the possibility of receiving an exemption from the work rules based on a disability,
• to refer clients with barriers to work participation to qualified professionals for evaluation, and
• to determine whether and what types of accommodations may be appropriate. 

Accommodations short of exemption may also be provided, such as flexibility with appointments and limitations on the types of activities that may be assigned.  Clients have a right to challenge the  actions or inaction of the district through the conciliation and fair hearing process.11  Advocates have reported that when they raise ADA claims in fair hearings, those claims are often not addressed in the final decision, but the client is likely to prevail on other grounds. Local districts are also directed to designate an ADA coordinator who will address ADA grievances, so there are two distinct processes that can be pursued to assert ADA rights.

Policy Advocacy
For years, advocates have discussed ways in which the welfare work rules might be modified to better protect the rights and well-being of people with disabilities. One effort currently taking shape is being led by the Economic Justice and Social Welfare Network, which is hosted by the Federation of Protestant Welfare Agencies in New York City. The focus is upon policies that would, among other things, reduce the frequency of sanctions by ensuring that disabilities and other valid reasons for noncompliance would be thoroughly investigated before punitive action is taken, and that would mitigate the harm currently caused by inflexible durational sanction periods.  For more information, contact Liz Accles at FPWA, laccles@fpwa.org.

Conclusion
Too many people with disabilities are never able to receive needed benefits, or find themselves improperly sanctioned for alleged noncompliance with program rules.  Advocates are encouraged to vigorously assert disability-related claims, where appropriate, to  protect clients against sanctions.  Further, bear in mind that the overarching protections discussed here, most notably the ADA, apply to the entire range of public benefits rules and procedures.  The capacity to cite these rights to guard against wrongful punishments and to ensure access to benefits represents an underutilized but powerful resource.  Please share your experiences in this realm and continue the discussion, by contacting the author at dfriedman@empirejustice.org. 

Footnotes

1  Many of the issues discussed in this article are examined in greater detail in “An Advocate’s Guide to the Welfare Work Rules,” by Don Friedman, 2/08, http://www.empirejustice.org/assets/pdf/issue-areas/public-benefits/welfare-work-rules.pdf. 

2  This data is derived from recent editions of OTDA’s Temporary and Disability Assistance Statistics and HRA Weekly Caseload Engagement Status. The final estimate of the annual impact of sanctions is my own rough estimate based on known data.

3  See, for example,  Andrew Cherlin, Linda Burton, et al, “Sanctions and Case Closings for Noncompliance:  Who Is Affected and Why,” Policy Brief 01-1 from the Welfare, Children & Families Study at Johns Hopkins University; Dan Bloom and Don Winstead, “Sanctions and Welfare Reform,” Brookings Institution, Policy Brief No. 12, January 2002; Heidi Goldberg, “Improving TANF Program Outcomes for Families with Barriers to Employment,” Center on Budget and Policy Priorities, January 22, 2002; Shawn Fremstad, “Recent Welfare Reform Research Findings:  Implications for TANF Reauthorization and State TANF Policies,” Center on Budget and Policy Priorities, January 2004.

4  The Social Services Law is not as clear on this as we would like, but the rule may be found by reading SSL §341(1) together with §342.  In addition, a number of court decisions have confirmed this principle.  See, for example, Dost v. Wing, 792 N.Y.S.2d 105 (2nd Dept. 2005)(“A local agency may not discontinue a recipient’s public assistance benefits unless the recipient’s failure to comply with one of the department’s work rules is found to be willful and without good cause…”); Earl v. Turner, 757 NYS2d 255 (1st Dept. 2003) (The burden rests on the agency to establish that the petitioner missed her appointment without good cause and willfully).

5  18 NYCRR §385.12(c).

6  See, for example, Diaz v. Wing, 755 NYS2d 34 (1st Dept. 2003)(The petitioner established good cause for not returning a required form to the agency where she provided medical evidence of major depression. The court rejected as “irrational” the fair hearing decision finding that depression was not a mental condition under the relevant regulation); Leon v. Wing, 776 NYS2d 152 (Sup. Ct. N.Y. Co., 2003) (The agency improperly ruled that depression could not be the basis for a finding of good cause for failure to comply). Diaz and Leon are not work rules cases, but are included here because of their recognition of the potentially disabling impact of depression and of the fact that it can be the basis for a finding of good cause.

7  It might be argued that any time a person did not willfully fail to comply, they can probably be found to have good cause for noncompliance, so that willfulness does not add to the protection of the good cause test.  I tend to think that the presence of both tests, if adhered to by local districts and in the hearing process, does afford an additional layer of protection.

8  The ADA prohibition against discrimination on the basis of disability by state and local governments is found at Title II, 42 USC §12131; 28 CFR Part 35.

9  06 ADM-05, “Providing Access to Temporary Assistance Programs for Persons with Disabilities and/or Limited English Proficiency,” dated 3/31/06.

10  “Federal Disability Laws and Employment Requirements,” Employment Policy Manual, Department Policy for §385.2, starting at p. 21.

11  The conciliation procedures are described at 18 NYCRR §385.11(b); the fair hearing process is described in 18 NYCRR Part 358.