Hanover, Virginia Department of Social Services (DSS) Letter of Findings
U.S. Department of Health and Human Services
Office for Civil Rights
Letter of Findings
Ms. Donna T. Douglas, Director
Hanover Department of Social Services
12304 Washington Highway
Ashland, Virginia 23005
(Complainant’s and other names and identifying information have been redacted throughout this document)
Dear Ms. Douglas:
This letter is to advise you that the Department of Health and Human Services' (HHS) Office for Civil Rights (OCR) has completed its investigation of the above-referenced complaint, which was received in our office on June 22, 2005. In the complaint, Complainant (the complainant) alleged that the Hanover Department of Social Services (Hanover DSS or the recipient) discriminated against her on the basis of her race by delaying her applications for medical assistance and on the basis of her disability by refusing to allow her to have her therapy/service dog accompany her to appointments with Hanover DSS staff. For the reasons discussed below, we find that the recipient did not discriminate against the complainant on the basis of her race. However, we find that the recipient did discriminate against the complainant on the basis of disability by failing to appropriately respond to her request for a reasonable modification in the recipient's policy, practice or procedure, and that the recipient's policy discriminates against persons with disabilities.
Our investigation was conducted under the following authorities: Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. §§ 2000d-2000d-7, and its implementing regulation, 45 C.F.R. Part 80, which prohibit discrimination based on race, color, or national origin by recipients of Federal financial assistance through the Department of Health & Human Services (HHS); Section 504 of the Rehabilitation Act of 1973, as amended (Section 504), 29 U.S.C. § 794, and its implementing regulation, 45 C.F.R. Part 84, which prohibit discrimination on the basis of disability by recipients of Federal financial assistance through HHS; and Title II of the Americans with Disabilities Act of 1990 (Title II), 42 U.S.C. §§ 12131-12134, and its implementing regulation, 28 C.F.R. Part 35, which prohibit discrimination on the basis of disability by public entities. As a recipient of HHS funds through the Virginia Department of Social Services, Hanover DSS is obligated to comply with Title VI and Section 504 and their implementing regulations. As a public entity, Hanover DSS is obligated to comply with Title II and its implementing regulations.
The complainant, who is Caucasian, alleges that the recipient discriminated against her on the basis of her race by effectively delaying her application for medical assistance for more than a year. The complainant alleges that her caseworker, Ms. G (name redacted), who is African-American, refused to provide her with the information she requested, failed to return her phone calls, and avoided direct conversation with her when meeting in person. The complainant alleges that the caseworker's conduct caused the complainant to ask the Hanover Community Service Board (CSB) to intercede on her behalf, and to accompany her to meetings with her caseworker, who would then speak only with the CSB representatives.
The complainant also alleges that the recipient discriminated against her based on her disability (physical and mental disabilities) when the caseworker initially refused to allow her therapy/service dog to accompany her to meetings at Hanover DSS and subsequently refused to meet with her in the dog's presence.
Hanover DSS denies that any member of its staff discriminated against the complainant on the basis of race or disability. Hanover DSS states that Ms. F (name redacted), the recipient's Eligibility Manager, reviewed the complainant’s application in accordance with Federal and State requirements and determined the complainant to be ineligible because her income exceeded the limit allowed under the Medicaid program. Ms. F acknowledged that the complainant and her caseworker had a "contentious relationship," but denied that it was the result of racial discrimination or that it delayed the processing of the complainant's application for medical assistance benefits.
With regard to the complainant's allegation that she was denied the accommodation of her therapy/ service dog, Hanover DSS states that it permitted the complainant to bring her dog to appointments with her caseworker, but acknowledged that it conducted those meetings "in a large room that allowed separation between the caseworker and the dog."
Findings of Fact
Hanover DSS is an agency of the Commonwealth of Virginia. Located in Ashland, Virginia, Hanover DSS offers residents of Hanover County a variety of benefits and social services, including, but not limited to, child welfare services, eligibility determinations for medical assistance, food stamps, and Temporary Assistance for Needy Families (TANF).
The complainant is a 65-year-old Caucasian woman with (documented physical and mental disabilities). She first applied for medical assistance and food stamps in December 2001, at which time she was denied benefits because her income level was above the eligibility limit. Because she met all other eligibility requirements for medical assistance except income, the complainant was placed on a six month "spend down" program, at the completion of which she met the eligibility amount. She continued to receive benefits until August 2004.
On July 20, 2004, Hanover DSS received a letter the Complainant had received a monetary settlement due to a casualty related accident. With the proceeds from that settlement, the complainant reimbursed Medicaid for some charges previously paid on her behalf.
Between August 2004, and April 2005, the complainant continued to submit medical bills in order to qualify for the "spend down," but she was not approved for medical assistance because of lack of documentation. The complainant appealed the decision, but withdrew her appeal June 16, 2005. According to the record, Ms. G met with the complainant and representatives of the Hanover CSB several times during this period in an effort to compile the documentation required for the complainant’s "spend down."
Sometime in or around April 2005, the complainant visited Hanover DSS for a meeting regarding her eligibility for medical assistance. On that day, apparently for the first time, the complainant was accompanied by a dog (named “X”). Ms. G, who had always met the complainant in the Hanover DSS offices but who admitted to being afraid of dogs, told the complainant that she could not bring “XX into the office. The complainant stated, and Ms. G did not deny, that the complainant informed Ms. G that (the dog) was a therapy/service dog and offered to provide her with a "certification" to prove it.(See End Note 1) Ms. G still refused to permit the complainant to bring (the dog) into the office. The meeting was ultimately held at the CSB offices in a large room, with the complainant and (the dog) seated some distance from Ms. G.
Hanover DSS stated that it had no policy regarding service dogs, explaining that such a policy would have emanated from the state agency, the Virginia Department of Social Services. Hanover DSS did provide OCR with a poster containing a caricature of a dog and the following statement: "No Animals Allowed Unless Certified Service Animal (Documentation must be provided)."
In April 2005, the complainant contacted VDMA for a review of the eligibility determination and to lodge a discrimination complaint against the staff of Hanover DSS. VDMA referred the complainant back to Hanover DSS. Following the complainant's contacts with VDMA, Ms. F met with the complainant several times between April 22, 2005 and May 18, 2005 and determined that the complainant did in fact meet the "spend down." The complainant withdrew her appeal on June 16, 2005. She was given another Medicaid application on April 22, 2005, and assured that Ms. F, not Ms. G, would handle the reevaluation of the complainant's "spend down."
Issue I: Whether the recipient discriminated on the basis of race by delaying the complainant's application for medical assistance benefits
The regulation implementing Title VI provides, in pertinent part, as follows:
(a) No person in the United States shall, on the basis of race, color, or national origin be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program to which this part applies.
(b)( 1) A recipient...may not...on ground of race, color, or national origin:(i) Deny an individual any service, financial aid, or other benefit provided under the program.
45 C.F.R. §§ 80.3(a) and (b)(l)(i).
In analyzing claims of intentional discrimination, OCR relies on principles established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (McDonnell Douglas), and its progeny, including Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) (Burdine), and St. Mary's Honor Center v. Hicks. 509 U.S. 502 (1993) (St. Mary's). Applying those principles, OCR must first determine whether there is sufficient evidence to support a prima facie case of race discrimination. To conclude that a prima facie case has been established, OCR must find that the evidence gives rise to an inference of discrimination, that is, evidence which if otherwise unexplained would lead a trier of fact to conclude that the challenged action was more likely than not the result of impermissible factors. See Burdine. 450 U.S. at 1094. The particular requirements for demonstrating a prima facie case may vary with "differing factual situations." McDonnell Douglas, 411 U.S. at 802, n. 13.
To establish a prima facie case of discrimination based on race, OCR must find evidence that: (1) the complainant was eligible for the recipient's program in question; (2) she was subjected to some adverse action by the recipient; and (3) others, similarly situated, but not members of the complainant's racial group, were not subjected to the same adverse action or the evidence, if otherwise unexplained, would lead a reasonable person to conclude that discrimination is more likely than not the reason for the alleged action.
If OCR concludes that the evidence establishes a prima facie case, OCR must then determine whether the recipient has either rebutted the complainant's allegations or offered a legitimate, non-discriminatory reason for its action(s). If OCR concludes that the recipient has offered a legitimate non-discriminatory reason for its action(s), OCR must then determine whether or not the reason or reasons the recipient offered are pretextual, i.e., that the proffered reason is false" and that discrimination was the real reason." St. Mary's, 502 U.S. at 515 (emphasis in original).
We conclude that there is no prima facie case of race discrimination in this case. The complainant was eligible to apply for medical assistance benefits (and subsequently received them) but was subjected to an adverse action when she did not receive benefits from August 2004 to April 2005. However, our investigation did not reveal any similarly situated individuals of a different race who received benefits. Our investigation also disclosed no evidence that would lead a reasonable person to conclude that race discrimination was more likely than not the reason for the delay in complainant's receipt of medical assistance benefits. A Hanover DS manager provided evidence of a "contentious relationship" between the Caucasian complainant and her African American caseworker, described by the complainant herself as personal animosity toward her by the caseworker. However, that mere lack of civility or contentiousness in a relationship, assuming the complainant's allegations in this regard to be true, does not, by itself establish a prima facie case of race discrimination. The complainant has identified no specific behavior or statement on the part of any Hanover DSS staff member which, on its face, could be viewed as racially motivated, nor did our investigation reveal such evidence.
Even assuming that the evidence established a prima facie case of race discrimination, Hanover DSS has asserted that its determination of the complainant's eligibility was based on legitimate non-discriminatory reasons: the complainant did not meet the income requirement for medical assistance and was unable to produce the documentation required to meet the "spend down." The record as a whole supports the conclusion that this reason was the real reason that the complainant did not receive medical assistance benefits for the period in question. Therefore, we find that Hanover DSS did not discriminate against the complainant on the basis of race.
Issue 2: Whether the recipient discriminated on the basis of disability by failing to provide a reasonable modification to its program regarding the use of an animal by a person with a disability seeking or receiving services
The regulation implementing Section 504, at 45 C.F.R., §84.4 provides, in pertinent part, as follows:
(a) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives or benefits from Federal financial assistance.
(b)(l) A recipient, in providing any aid, benefit, or service, may not...on the basis of handicap:(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person 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 handicapped person with an aid, benefit, or service that is not as effective as that provided to others.
(iv) Provide different or separate aid, benefits, or services to handicapped persons…
See also, 28 C.F.R. §§ 35.13O(a), and (b)(l)(i)-(iv), respectively, for the comparable Title II regulatory provisions.
The U.S. Supreme Court has made clear that Section 504 requires recipients to make reasonable modifications to their programs in order to ensure meaningful access to qualified persons with disabilities. Alexander v. Choate. 469 U.S. 287, 301(1985). The Title II implementing regulations specifically address the issue of reasonable modifications as follows:
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.
28 C.F.R. §35.130(b)(7) (reasonable modification).
The Department of Justice regulations implementing Title III of the ADA state that, in general, public accommodations must "modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability." 28 C.F.R. § 36.302(c)(l). The regulation defines "service animal" to include "any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability." 28 C.F.R. § 36.104. Section 36.302 "reflects the general intent of Congress that public accommodations take the necessary steps to accommodate service animals and to ensure that individuals with disabilities are not separated from their service animals." 28 C.F.R. pt. 36, App. B, p. 701 (2005). That section "also acknowledges ... that, in rare circumstances, accommodation of service animals may not be required because a fundamental alteration would result in the nature of the goods, services, facilities, privileges, or accommodations offered or provided, or the safe operation of the public operation would be jeopardized." Id.
Department of Justice Guidelines
In April 2002, the Department of Justice published a document entitled "ADA Business Brief: Service Animals," which provides guidance to public accommodations, i.e., business and organizations that serve the public, regarding their obligations to persons with disabilities who use service animals (Attachment 1). Among other things, the document states as follows:
* Businesses may ask if an animal is a service animal or ask what tasks an animal has been trained to perform, but cannot require special ID cards for the animal or ask about the person's disability.
* People with disabilities who use service animals cannot be .. . isolated from other patrons, or treated less favorably than other patrons.
* A person with a disability cannot be asked to remove his service animal from the premises unless: (1) the animal is out of control and the animal's owner does not take effective action to control it.. or (2) the animal poses a direct threat to the health or safety of others.
* Allergies and fear of animals are generally not valid reasons for denying access or refusing service to people with service animals. ADA Business Brief: Service Animals, April 2002 (emphasis in original).
The Department of Justice has published additional guidance regarding service animals, Commonly Asked Questions about Service Animals in Places of Business (Attachment 2). Among other things, this document states:
3. Q: How can I tell if an animal is really a service animal and not just a pet?
A: Some, but not all, service animals wear special collars and harnesses. Some, but not all, are licensed or certified and have identification papers. If you are not certain that an animal is a service animal, you may ask the person who has the animal if it is a service animal required because of a disability. However, an individual who is going to a restaurant or theater is not likely to be carrying documentation of his or her medical condition or disability. Therefore, such documentation generally may not be required as a condition for providing service to an individual accompanied by a service animal. Although a number of states have programs to certify service animals, you may not insist on proof of state certification before permitting the service animal to accompany the person with a disability.
4. Q: What must I do when an individual with a service animal comes to my business?
A: The service animal must be permitted to accompany the individual with a disability to all areas of the facility where customers are normally allowed to go. An individual with a service animal may not be segregated from other customers.
Although the above referenced Department of Justice regulations and guidance are specifically applicable to Title III of the ADA, which prohibits discrimination based on disability by public accommodations, the regulations and guidance are consistent with OCR's interpretation of Section 504 and with Title II of the ADA with respect to the obligations of public entities to make reasonable modifications so as to permit the use of a service animal by a person with a disability." (See End Note 2)
When the complainant brought (the dog) to the meeting in question and identified her as a therapy/service animal, the complainant was essentially requesting that Hanover DSS make a reasonable modification for her disabilities. Our investigation revealed that Hanover DSS responded to the complainant by first refusing to meet with her at all, and subsequently by agreeing to meet with her only in non-Hanover DSS space. Hanover DSS reported to OCR that it did not have a policy on service animals (except insofar as the poster requiring documentation of certification constitutes a policy).
OCR finds that the evidence is insufficient to establish that (the dog) met the legal standard to be considered a service animal. Specifically, the evidence does not establish that (the dog) was "individually trained to do work or perform tasks for the benefit of an individual with a disability." See 28 C.F.R. § 36.104. Therefore, OCR can not conclude that Hanover DSS discriminatorily denied the complainant a reasonable modification for a service animal.
However, even if (the dog) was not a service animal, when the complainant requested Hanover DSS to provide a reasonable modification for her disabilities, Hanover DSS had a duty under Section 504 and Title II to consider whether the complainant had a right to a reasonable modification and, if so, what modification was appropriate. This duty required Hanover DSS to engage in an interactive process with the complaint to discuss her request and to determine an appropriate response, based on an individualized consideration of the complaint's disability, and taking into account the nature of Hanover DSS's program. Hanover DSS did not determine whether the complainant was able to demonstrate a need for a reasonable modification or what modification, if any, was appropriate. Rather, Hanover DSS responded by first refusing to provide service to the complainant and then by providing service to the complainant in a manner that was different from the service it provided other individuals.
OCR finds that Hanover DSS's failure to appropriately consider the complainant's request for reasonable modification discriminated against her on the basis of disability. This violated 45 C.F.R. § 84.4(a) and 28 C.F.R. § 35.13O(a), respectively, the general Section 504 and ADA implementing regulatory prohibitions against discrimination based on disability. Further, OCR finds that the Hanover DSS requirement for documentation of certification for a service animal is inconsistent with applicable legal standards. The documented certification is an unnecessary requirement and results in DSS's unwarranted refusal to reasonably accommodate persons with disabilities. Accordingly, OCR finds that the requirement for documented certification constitutes a service animal policy that violates 45 C.F.R. § 84.4(a) and 28 C.F.R. §35.130(a).
As noted above, Hanover DSS has stated that any service animal policy would have emanated from the Virginia Department of Social Services (State DSS). OCR is separately addressing with the State DSS the responsibility to accommodate service animals as necessary to avoid discrimination on the basis of disability. However, Hanover DSS, as a recipient of federal financial assistance, has an independent obligation to comply with Section 504 and therefore cannot rely on the presence or lack of a state agency policy as a defense in this matter. Hanover DSS also has an independent obligation to comply with Title II.
In order to be found in compliance with the applicable regulatory provisions Hanover DSS is required to take the following corrective steps:
1) Revise and issue a policy to staff and clients regarding the use of service animals. The policy should reflect Department of Justice guidance, which states that public entities cannot require persons with disabilities to provide documentation regarding the service animal in question.
2) Conduct training for all staff in the following areas:
i) serving persons with disabilities, including those with mental disabilities
ii) providing reasonable modifications to persons with disabilities
iii) the agency's policy on the use of service animals.
3) Submit to OCR a written statement indicating how it plans to inform all new hires of its policy and practices on the use of service animals.
4) Post notices in key locations informing clients and the public of its policy and practices on the use of service animals.
Hanover DSS has 60 days to take the steps cited above in order to be found in compliance with Section 504 and Title II, and the applicable provisions of their respective implementing regulations. Failure to complete these steps within the designated time frame will result in OCR referring the case for enforcement action, which may subject the recipient to a loss of federal financial assistance.
We wish to advise you that this determination is not intended, nor should it be construed, to cover any other issues regarding civil rights compliance which may exist but were not specifically addressed during our investigation.
All persons filing a complaint with OCR and against whom OCR has rendered a determination partially or totally adverse (i.e., no violations) to the complainant may challenge that determination and request an administrative review of the investigation. The opportunity to challenge a determination is provided under OCR's administrative, discretionary authority and is not a statutory or regulatory requirement. This opportunity is granted solely for the purpose of ensuring that all of the evidence relevant to the investigation has been considered. The granting of an administrative review does not and should not be construed to mean that the original findings will be modified or reversed. OCR will notify the agency if OCR's findings might be affected by any information the complainant provides.
The request for a review of the findings must be sent to OCR headquarters, at the following address, within 30 days from the date of this letter. Please note that extensions or changes of this time limit will not be considered without good reason. The complainant may challenge the findings of this investigation by submitting a written request to:
Tamara L. Miller
Deputy Director for Civil Rights
Office for Civil Rights
Department of Health and Human Services
200 Independence Avenue, SW
Washington, D.C. 20201
The complainant's challenge must be limited to those issues raised in the complaint or during the course of our investigation. In addition, the complainant must identify the findings(s) of the regional office with which she disagrees; state specifically the reason for disagreement with the findings; and submit information the complainant believes the regional office overlooked in the investigation of the complaint. Merely stating that the complainant is unhappy or disagrees with the investigative findings will not constitute sufficient grounds to challenge the findings.
The HHS Deputy Director for Civil Rights will determine whether the complainant has provided a sufficient basis for a full review of our investigation. That HHS Deputy Director for Civil Rights will inform the recipient and the complainant of the final decision in writing.
The filing of an administrative complaint with OCR may not fully protect the complainant's personal rights or the rights of persons on whose behalf the complaint is filed. Under OCR procedures, the complainant is not a party to the investigation, or any subsequent enforcement proceedings. The complainant may have a right to file a civil action to remedy discrimination by a recipient of Federal financial assistance or other covered entity. The complainant may wish to consult an attorney about his/her right to pursue a private cause of action, any applicable statute of limitations, and other relevant considerations.
The complainant has the right not to be intimidated, threatened, or coerced by a recipient or other covered entity or other person because he or she has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing held in connection with a complaint. We wish to advise you that under the Freedom of Information Act, it may be necessary to release this document and related correspondence in response to any inquiry. In the event we receive such a request, we will make every effort to protect information which identifies individuals or that, if released, would constitute an unwarranted invasion of privacy.
We appreciate your cooperation regarding this matter.
Paul F. Cushing
1. ADA Business Brief: Service Animals, U.S. Department of Justice, April 2002 (See http://www.ada.gov/business.htm)
2. Commonly Asked Questions about Service Animals in Places of Business, U.S. Department of Justice, August 2007 (See http://www.ada.gov/qasrvc.htm)
cc: Secretary Anthony Conyers, VADSS
Harold Hobson, Civil Rights Program Administrator, VADSS
1. In offering to provide "certification," the complainant was apparently referring to two statements of doctors. Dr. J, the complainant's treating doctor, stated that the complainant suffers from recurring depression and that it is her "professional opinion that having a canine companion is as medically necessary for [the complainant] as medication." Dr. J asked that (the dog) be considered a "therapy dog." Dr.P. stated that the complainant has a "helper dog, given her medical diagnosis, and requires that she accompany her." Hanover DSS was apparently unaware of these two opinions on the date that Ms. G refused to allow (the dog) into DSS space.
2. Because the requirements of Section 504 and the ADA are similar in many respects, courts generally apply the same analysis to both. See, e^ , Davis v. University of North Carolina, 263 F.3d 95, 99 n 4 (4th Cir. 2001). Indeed, relying on the legislative history of the ADA, one circuit court has applied the Title III regulatory provision governing service animals in a Title II case. Crowder v. Kitigawa, 81 F.3d 1480 (9th Cir. 1996), quoting William Simon's statement that "[a]s an auxiliary aid, the use of assistive animals is protected by the [ADA], in public accommodations as well as public services." 135 Cong. Rec. D956.