Howard v. DSW

Annotate this Case

HOWARD_V_DSW.93-342; 163 Vt 109; 655 A.2d 1102

[Filed 30-Dec-1994]

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.

No. 93-342

Elaine Howard, Clara Parker Supreme Court
and Carolyn Clark
On Appeal from
v. Human Services Board

Department of Social Welfare May Term, 1994

Cornelius Hogan, Secretary

James C. May, South Royalton Legal Clinic, and Ian C. Ridlon, Robert C. Brannan,
Cynthia E. Frantz, Ronald G. McMallen and Jacob B. Parkinson, Legal Interns,
South Royalton, for plaintiffs-appellants

Jeffrey L. Amestoy, Attorney General, Montpelier, Christina M. Byron, Assistant
Attorney General, and George Collins, Legal Intern, Waterbury, for
defendant-appellee

Steven S. Zaleznick, Patricia A. DeMichele and Bruce Vignery, Washington, D.C.,
for amicus curiae American Association of Retired Persons

Marilyn Mahusky-Anderson, Rutland, and Judith F. Dickson, Burlington, Vermont
Developmental Disabilities Law Project, for amicus curiae Vermont Protection
and Advocacy, Inc.

PRESENT: Allen, C.J., Gibson, Morse and Johnson, JJ., and Peck, J. (Ret.),
Specially Assigned

Gibson, J. Plaintiffs Elaine Howard, Clara Parker and Carolyn Clark
appeal from a decision of the Secretary of the Agency of Human Services
(Secretary), reversing a decision of the Human Services Board (Board) and
terminating plaintiffs' Aid to Needy Families with Children (ANFC) benefits
when their children reached age eighteen because the children were not
expected to graduate from high school by age nineteen. Plaintiffs claim that
it is solely due to the children's disabilities that they could not graduate
by age nineteen, and thus, terminating ANFC benefits on this basis violates
(1) the Rehabilitation Act of 1973, 29 U.S.C. 794, (2)

the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12132, and
(3) the Equal Protection Clause of the Fourteenth Amendment to the
Constitution of the United States. We reverse the decision of the Secretary
and reinstate the order of the Board, granting plaintiffs ANFC benefits until
their children reach age nineteen.

Plaintiffs are three mothers who were recipients of ANFC benefits. When
these causes arose, each mother had a child who was attending school
full-time and doing well. All the children were expected to graduate from
high school at either age nineteen or age twenty. Each child has repeated at
least one year of early elementary school because of a disability. The three
children have been diagnosed with specific learning disabilities, and two of
the children also have hearing impairments. All three have received special
education services. See 3 Code of Vermont Rules, Department of Education
2362(1)(a) (1992) (to be eligible for special education, student must have
disability). The Department of Social Welfare (DSW) does not dispute that,
as a result of these disabilities, these children could not graduate before
turning age nineteen.

Prior to the eighteenth birthday of each child, the parent received
notice from DSW that her benefits were to be terminated after the eighteenth
birthday of her child. ANFC regulations provide:

An individual qualifies under the age criterion as a child
if he or she is under 18. In addition, an 18 year old child
is eligible if he or she is a full-time student in a
secondary school or an equivalent level of
vocational/technical training and is expected to complete
high school or the equivalent program before reaching his or
her nineteenth birthday.

5 Code of Vermont Rules, Welfare Assistance Manual (WAM) 2301 (1994).
Although DSW provides ANFC benefits for needy children age eighteen who are
full-time students, it does so only for those children expected to graduate
during that year. Because the children in this case did not meet this test,
they did not meet the ANFC eligibility requirement for needy, eighteen-
year-old students.

Plaintiffs appealed the decision of DSW to the Human Services Board,
which concluded that plaintiffs' children did not meet the WAM 2301
graduate-by-age-nineteen requirement solely because of their disabilities.
Further, it held that denying ANFC benefits to the parents of these students,
on the basis of disability, denied them the opportunity to participate in the
ANFC program to the same extent as other parents of needy, eighteen-year-old
students. To comply with the Rehabilitation Act of 1973 and the Americans
with Disabilities Act of 1990, the Board decided that DSW was required to
make reasonable modifications to the ANFC program to prevent discrimination
on the basis of disability. Thus, it held that where the failure to meet the
graduation requirement results solely from the child's disability, the ANFC
recipient is entitled to receive benefits until the child attains age
nineteen. Accordingly, the Board directed DSW to pay plaintiffs ANFC benefits
until these children reached age nineteen.

The Secretary of Human Services accepted the findings of the Board but
reversed its decision under the authority granted by 3 V.S.A. 3091(h)(1).
The Secretary determined that the Rehabilitation Act would be the applicable
statute because it prohibits discrimination in state agencies that receive
federal financial assistance. He noted, however, that the graduation
requirement in WAM 2301 mirrors the eligibility requirement of the federal
Aid to Families with Dependent Children (AFDC) statute, see 42 U.S.C.
606(a)(2), that AFDC is a federal- state matching fund program, and that
participating states must comply with federal statutes and regulations to
receive federal funding. Consequently, the Secretary concluded that DSW was
required to impose the graduation requirement. This appeal followed.

First, we address the jurisdictional issues raised by the parties. DSW
argues that the Human Services Board exceeded its authority by holding that
the Rehabilitation Act and the ADA conflict with federal AFDC eligibility
criteria. According to DSW, the Board does not have authority to determine
which federal law to apply in the event of such a conflict. We do not decide
this issue because we do not accept DSW's characterization of the Board's
decision.

The Board did not conclude that the federal laws at issue conflicted, nor did
it hold either law invalid. The Board determined that applying the
graduation requirement in WAM 2301 to plaintiff's children violated both
the ADA and the Rehabilitation Act. It concluded, however, that reasonable
modifications to the requirement could be made to avoid discrimination on the
basis of disability and ordered such modifications to be made. We view this
action as applying both AFDC and federal disability law. The Board modified
a decision of DSW that was in conflict with federal disability law, action
the Board is explicitly authorized to do. See 3 V.S.A. 3091(d) (board has
authority to reverse or modify agency decisions based on rules that board
determines to be in conflict with state or federal law); see also Stevens v.
Department of Social Welfare 159 Vt. 408, 417, 620 A.2d 737, 742 (1992)
(Legislature intended Board to hear any case in which individual is aggrieved
by DSW action or policy).

Plaintiffs argue that the Secretary erred as a matter of law in
reversing the Board because he failed to comply with 3 V.S.A. 3091(h)(1),
which requires the Secretary to "issue a written decision setting forth the
legal, factual or policy basis for reversing or modifying a board decision or
order." Plaintiffs maintain that the Secretary's decision was incomplete
because he did not address plaintiffs' claims under the ADA or the equal
protection clause; he addressed only the claims under the Rehabilitation Act.
Generally, we would remand a case to allow the Secretary to consider issues
that he has failed to address. See 2 C. Koch, Administrative Law and
Practice 9.13C, at 152 (Supp. 1995) (court must remand if agency rationale
inadequate); Beno v. Shalala, 30 F.3d 1057, 1074-75 (9th Cir. 1994)
(remanding to Secretary of Health and Human Services because court should not
infer agency had considered issues unless record so indicates). An agency
decision should provide a reasonable explanation of its conclusion on each
claim before it to provide an adequate record for review, to preclude
perfunctory decision- making, and to satisfy interested members of the
public. See 1 C. Koch, supra 6.55, at 276.

Although the Secretary's decision is not a model of clarity, we construe
it as concluding that neither the ADA nor the Rehabilitation Act apply to
DSW. See 2 C. Koch, supra 9.13C,

at 151 (court should try to make sense of explanation of less than ideal
clarity). He states that "[t]he Rehabilitation Act is the legislation that
would apply to the Department," but then concludes that the AFDC eligibility
requirements adopted in 1981 are what ultimately govern. In the interest of
judicial economy, we do not remand for a decision of plaintiffs' claim under
the Equal Protection Clause because we reverse the Secretary's decisions
under the Rehabilitation Act and the ADA, and therefore, do not reach the
equal protection issue.

II.

Plaintiffs bring this suit under both 504 of the Rehabilitation Act
and Title II of the ADA. Initially, we note that Title II of the ADA
provides persons with disabilities the same rights and remedies as those
provided by 504 of the Rehabilitation Act. 42 U.S.C. 12133; Coleman v.
Zatechka, 824 F. Supp 1360, 1367 (1993). The Rehabilitation Act applies only
to programs that receive federal financial assistance, however, while the ADA
applies to all public entities. See 29 U.S.C. 794(b); 42 U.S.C. 12132.
In the instant case, both statutes apply. DSW is subject to the
Rehabilitation Act because it receives federal financial assistance, and it
is subject to the ADA because it is a public entity. See 42 U.S.C.
12131(1) ("public entity" means any State government and any department or
agency of State government).

We analyze plaintiffs' claims under the ADA because the ADA is the most
recent enactment of Congressional intent to prohibit discrimination on the
basis of disability. Nonetheless, we note that Congress intended that Title
II of the ADA be interpreted consistently with prior interpretations of
504 of the Rehabilitation Act. Conner v. Branstad, 839 F. Supp. 1346, 1357
(S.D. Iowa 1993). Thus, our analysis here is consistent with an analysis
under 504 of the Rehabilitation Act. Cf. 42 U.S.C. 12134(b)
(regulations under Title II of ADA shall be consistent with regulations under
504 of Rehabilitation Act). Moreover, case law construing the
Rehabilitation Act is authoritative in construing the ADA, and thus we look
to those cases as well in drawing our conclusion in this case.

The purpose of the ADA is "to provide a clear and comprehensive national
mandate for

the elimination of discrimination against individuals with disabilities." 42
U.S.C. 12101(b)(1). Title II of the ADA provides "no qualified individual
with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such
entity." 42 U.S.C. 12132. To be covered by the ADA, plaintiffs' children
must be (1) qualified individuals, (2) with disabilities, (3) denied
benefits, (4) by a public entity, (5) by reason of their disabilities. There
is no dispute that the children in this case are individuals with
disabilities.(FN1) Nor is there any dispute that plaintiffs were denied
benefits by a public entity for the year that their children were age
eighteen, although parents of other needy, eighteen-year-old students were
entitled to receive ANFC benefits. Nor has DSW contested the Board's finding
that the sole reason that these children do not qualify for ANFC benefits is
because their disabilities have prevented them from graduating by age
nineteen. Accordingly, these children have been denied ANFC benefits by a
public entity on the basis of their disabilities.

The issue, therefore, is whether plaintiffs' children are "qualified
individuals" under Title II of the ADA. A "qualified individual with a
disability" is "an individual with a disability who, with or without
reasonable modifications to rules, policies, or practices, . . . meets the
essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity." 42
U.S.C. 12131(2) (emphasis added). Neither DSW nor the Secretary maintains
that plaintiffs fail to meet any of the eligibility criteria except the
graduation requirement. Thus, we must examine whether the graduation
requirement is an essential eligibility requirement for ANFC, and if so,
whether reasonable modifications could be made to this requirement to allow
plaintiffs to qualify for ANFC benefits while their children are

eighteen years of age.

This analysis follows the decision of the United States Supreme Court in
a similar case brought under 504 of the Rehabilitation Act. In Alexander
v. Choate, 469 U.S. 287 (1985), Medicaid recipients brought a class action,
alleging that a proposed fourteen-day limit on inpatient coverage would have
a discriminatory effect on people with disabilities because the percentage of
disabled Medicaid recipients requiring more than fourteen days of care was
higher than the percentage of nondisabled Medicaid recipients requiring such
care. Indeed, the claimants maintained that any limit on the number of
inpatient care days would have a disproportionate effect on people with
disabilities and therefore violated the Rehabilitation Act. The Court upheld
the fourteen-day limitation, stating that "[t]he new limitation does not
invoke criteria that have a particular exclusionary effect on the
handicapped." Id. at 302 (emphasis added). Moreover, the Court noted that
the limitation was "neutral on its face" and did "not distinguish between
those whose coverage will be reduced and those whose coverage will not on the
basis of any test, judgment, or trait that the handicapped as a class are
less capable of meeting or less likely of having." Id. (emphasis added).
Nonetheless, the Court recognized that, in some circumstances, reasonable
accommodations in a grantee's program or benefit may have to be made to
assure meaningful access to a program. Id. at 301.

We believe that the graduation requirement in WAM 2301 is precisely
the type of "criterion" or "test" to which the Court was referring in
Alexander, because it has "a particular exclusionary effect" on persons with
disabilities. Indeed, ANFC coverage is reduced by one year of benefits on the
basis of this test, that children with learning disabilities as a class are
less capable of meeting. The fourteen-day limitation in Alexander is
analogous to the ANFC age criterion qualifying all individuals under eighteen
years of age. Neither the fourteen-day nor the eighteen-year-old age
limitation exclude individuals, or reduce benefits, on the basis of a test
that screens out a class of disabled persons. Needy, eighteen-year-old
students, however, qualify only if they are able to meet the graduation
requirement, a test that tends to exclude those

students who have or have had learning disabilities. See 28 C.F.R.
35.130(b)(1)(ii) (1993) (public entity may not, on basis of disability,
afford qualified individual with disability opportunity to benefit from aid
that is not equal to that afforded others).

III.

Plaintiffs have established that the graduation requirement in WAM
2301 tends to exclude persons with disabilities from qualifying for the
age-eighteen ANFC benefits. ADA regulations provide:

A public entity shall not impose or apply eligibility
criteria that screen out or tend to screen out an individual
with a disability or a class of individuals with
disabilities from fully and equally enjoying any service,
program, or activity, unless such criteria can be shown to
be necessary for the provision of the service, program, or
activity being offered.

28 C.F.R. 35.130(b)(8)(emphasis added). Accordingly, to uphold this
eligibility criterion, DSW must show that the graduation requirement is
necessary for the provision of the ANFC program and, consequently,
plaintiffs' children do not meet an essential eligibility criteria. See
Coleman, 824 F. Supp. at 1369-70 (examining eligibility requirements to
determine whether they are necessary to program "and can properly be
considered `essential' eligibility requirements").

DSW first argues that it must impose the graduation requirement in WAM
2301 to comply with the federal AFDC statutes. AFDC, like the Medicaid
program at issue in Alexander, is a cooperative federal-state social service
program that is part of the Social Security Act. See 42 U.S.C. 601-687;
Stowell v. Ives, 976 F.2d 65, 68 (1st Cir. 1992). States that choose to
participate in the program must obtain approval for a state plan from the
Secretary of the Department of Health and Human Services (HHS) before
receiving the federal funding contribution. Stowell, 976 F.2d at 68. These
social welfare programs are administered by the states but must comply with
federal statutes and regulations. Id. Federal law provides that, to qualify
for AFDC, a child must be:

(A) under the age of eighteen, or (B) at the option of the
State, under the age of nineteen and a full-time student in
a secondary school

(or the equivalent level of vocational or
technical training), if, before he attains age nineteen, he
may reasonably be expected to complete the program of such
secondary school (or such training).

42 U.S.C. 606(1)(a) (emphasis added). According to DSW, it is required to
enforce the graduation requirement in order to receive federal funding for
the Vermont ANFC program. We disagree for three reasons.

First, federal law does not impose the graduation requirement. Under
the federal AFDC scheme, it is the option of the participating state to
accept federal matching funds for needy, eighteen-year-old, full-time
students expected to graduate before reaching age nineteen. DSW selected
this option.

Second, we find nothing in the AFDC statute or implementing regulations
that prohibits a state from granting benefits to families with needy children
in the absence of federal matching funds. On the contrary, under federal
regulations, a state plan under the AFDC statute must "provide that the State
agency will establish methods for identifying the expenditures for assistance
for any groups included in the plan for whom Federal financial participation
in assistance may not be claimed." 45 C.F.R. 233.10(a)(2) (1993).
Assuming that the federal government would not provide any contribution to
ANFC benefits for plaintiffs in this case, DSW may, nonetheless, provide such
benefits from State funding. Cf. Engelman v. Amos, 404 U.S. 23, 24 (1971)
("nothing in federal [AFDC] statute prohibits a State from making vendor
payments so long as they are made from state funds without federal
matching").

Finally, and perhaps most importantly, there is nothing in the record to
indicate that HHS has refused to make reasonable accommodations by providing
AFDC matching funds in individual cases where necessary to prevent
discrimination on the basis of disability. Absent such a showing, we will
not conclude that federal matching funds are not available where the ADA
demands reasonable accommodations to a federal-state cooperative benefit
program. We note that HHS promulgated the regulations implementing the
Rehabilitation Act, which provide

that reasonable modifications required by the Act for educational
institutions include "changes in the length of time permitted for the
completion of degree requirements." 45 C.F.R. 84.44(a). We see no reason
that HHS would not consider the same modification to be reasonable when
applied to a benefit program.

DSW next argues that the Vermont Legislature has not appropriated funds
to provide benefits to needy, eighteen-year-old, full-time students who are
not expected to graduate by age nineteen, and that the Commissioner of DSW
has no affirmative obligation to request ANFC funding for other children.
The Vermont statute provides ANFC benefits for a needy child who:

Is under the age of eighteen years, or, if the
commissioner determines that appropriated funds permit, is
under the age of twenty-one years and, as determined under
standards prescribed by the commissioner, is a student
regularly attending a secondary school, or is regularly
attending a course of vocational or technical training
designed to fit him for gainful employment[.]

33 V.S.A. 1101(1)(B) (emphasis added). DSW maintains that, under this
statute, the Commissioner of DSW determines whether there is sufficient
funding in the appropriation to grant benefits to any children who have
reached eighteen years of age.

We agree with DSW that the commissioner has the authority to determine
whether funding is sufficient to provide benefits to children who have
attained age eighteen, and that the commissioner has no obligation to request
such funding from the Legislature. Neither assertion, however, supports the
notion that DSW may rigidly employ a screening criteria that tends to
discriminate against a class of disabled persons in order to remain within
appropriation limits. To comply with Title II of the ADA, DSW must adopt a
nondiscriminatory benefit structure, within current appropriations or by
requesting additional funding. We conclude that DSW has not shown that the
graduation requirement is necessary for the provision of the ANFC program.
This criterion is therefore not an essential eligibility requirement;
consequently, plaintiffs'

children are "qualified individuals" under the ADA.(FN2) Cf. Concerned
Parents to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986, 990 (S.D. Fla. 1994) (only essential eligibility requirement for
city-sponsored recreational program is to request benefit of recreational
program).

DSW's main argument, however, is that WAM 2301 is exempt from the
requirements of the Rehabilitation Act and the ADA because it mirrors 42
U.S.C. 606(a). DSW maintains that it is only required to follow the AFDC
statute, and that neither the Rehabilitation Act nor the ADA is applicable.
DSW also argues that because the AFDC graduation requirement, 42 U.S.C.
606(a), was enacted after 504 of the Rehabilitation Act, it trumps the
discrimination law. We find no authority to support these contentions.

Prior to 1981, the AFDC statute defined "dependent child" to include
children under the age of eighteen and children under age twenty-one
regularly attending school. 42 U.S.C.A. 606(a) (historical and statutory
notes). In an effort to cut spending, Congress redefined "dependent child"
in the Omnibus Budget Reconciliation Act of 1981 to include only children
under age eighteen and children under age nineteen expected to graduate
before attaining age nineteen. 42 U.S.C. 606(1)(a). According to DSW,
neither the ADA nor the Rehabilitation Act "amends" or "supersedes" the AFDC
statute to extend benefits to individuals who are not covered by the 1981
definition. It contends that Congress was fully aware of the obligations
imposed by the Rehabilitation Act but nonetheless enacted the new "dependent
child" definition; Congress did not intend the Rehabilitation Act to impose
additional conditions on AFDC state recipients.

We disagree because we do not believe that Congress intended public
entities acting under the authority of federal legislation to be exempt from
the Rehabilitation Act or the ADA.

The ADA was intended to provide comprehensive legislation to eliminate
discrimination against individuals with disabilities. 42 U.S.C.
12101(b)(1). The rationale of DSW suggests that Congress must include a
nondiscrimination clause at the end of every statute it enacts in order to
provide the protection of the ADA. We also reject the notion that applying
the ADA and the Rehabilitation Act to the ANFC program means that the
disability laws supersede the AFDC statute; rather, they merely require
flexibility in administering the AFDC program to ensure that disabled
individuals are not excluded from participation on the basis of disability.

DSW cannot rigidly apply eligibility rules that disqualify disabled
individuals by reason of their disabilities. See Pandazides v. Virginia Bd.
of Educ., 946 F.2d 345, 349 (4th Cir. 1991) (defendants cannot "mechanically
invoke any set of requirements" and pronounce disabled applicant not
qualified). The ADA requires an individualized assessment and a
determination of reasonable accommodation on a case-by-case basis. D'Amico
v. New York State Bd. of Law Examiners, 813 F. Supp. 217, 221 (W.D.N.Y.
1993); accord Pandazides, 946 F.2d at 349; Glanz v. Vernick, 756 F. Supp. 632, 638 (D.Mass. 1991); Coleman, 824 F. Supp. at 1369. In sum, we conclude
that the ADA does not conflict with the AFDC statute but, rather, demands
reasonable accommodations for qualified individuals with disabilities.

IV.

Plaintiffs request that DSW make reasonable modification of the
graduation requirement to comply with Title II of the ADA. In Alexander, the
Supreme Court explained that 504 of the Rehabilitation Act does not
require "fundamental" or "substantial" modifications in a program but that
"reasonable" accommodations in the program may have to be made to ensure
meaningful access for qualified individuals with disabilities. 469 U.S. at
300-01. "[T]he ultimate question is the extent to which a grantee is
required to make reasonable modifications in its programs for the needs of
the handicapped." Id. at 299 n.19. Consistent with Alexander, regulations
promulgated pursuant to Title II of the ADA provide:

A public entity shall make reasonable modifications in
policies,

practices, or procedures when 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). Thus, DSW must modify the graduation requirement
unless it can demonstrate that modification of this criterion would
fundamentally alter the nature of the ANFC program.

DSW has not shown how the modification requested would alter the nature
of the ANFC program. The main objective of the ANFC program is to support
needy children. Beno, 30 F.3d at 1070. DSW asserts that ANFC is a
means-tested public assistance program, but does not claim that plaintiffs
are not needy or explain how enforcing the graduation requirement in these
cases furthers the goals of the ANFC program. On the contrary, DSW argues
that the criterion is a limitation on providing benefits to needy children.
Benefit programs must have limits; however, limits cannot be imposed by
criteria that discriminate against classes of disabled persons. Such a limit
is not fundamental to the nature of the ANFC program. See Concerned Parents,
846 F. Supp. at 991 (city not required to offer recreational programs to
public, but "when it does provide and administer such programs, it must use
methods or criteria that do not have the purpose or effect of impairing its
objectives with respect to individuals with disabilities").

DSW also claims that extending benefits for plaintiffs herein would
fundamentally alter the program because there are "conceivably" many more
families with disabled children who are not expected to graduate by age
nineteen as a result of a disability. According to DSW, extensions of
benefits cost money and none of it would be federally matched, thus turning a
cooperative federal-state program into a state-funded program for qualifying
disabled persons of this age group. We do not decide if such circumstances
would amount to a fundamental alteration of the program because DSW has
presented no evidence on the number of children who would qualify under the
modified criterion ordered by the Human Services Board, and no

evidence that the federal government has refused to make reasonable
modifications to its funding participation. Arguments based entirely on
"conceivable" facts are insufficient to support the burden, under 28 C.F.R.
35.130(b)(7), of "demonstrating" that the modification would fundamentally
alter the nature of the ANFC program.

Finally, DSW argues that plaintiffs' request for extended benefits is
not required under the ADA because the ADA merely requires DSW to treat
disabled individuals equally to nondisabled individuals. According to DSW,
extending plaintiffs' benefits until their children reach age nineteen
amounts to affirmative action, which is not required under the ADA. DSW
relies on Southeastern Community College v. Davis, 442 U.S. 397, 411 (1979),
in which the United States Supreme Court stated that 504 of the
Rehabilitation Act does not impose an "affirmative action obligation on all
recipients of federal funds." The Court clarified this statement in
Alexander, however, explaining that, in the context of Davis, the term
"affirmative action" referred to modifications of programs that would be
substantial or fundamental alterations in the nature of the program, rather
than changes that would be reasonable accommodations. Alexander, 469 U.S. at
300-01 n.20. Thus, modifications that are reasonable are not affirmative
action.

We conclude that DSW has not shown that the graduation requirement is
fundamental to the ANFC program, nor has DSW argued that the modification
requested by plaintiffs is unreasonable. We hold that extending plaintiffs'
ANFC benefits until their children reach age nineteen is a reasonable
modification of the graduation requirement and is, therefore, mandated by
Title II of the ADA.

Finally, plaintiffs argue that if they prevail, they are entitled to an
award of attorney fees pursuant to 29 U.S.C. 794a(b) (court may award
reasonable attorney's fees to prevailing party in action brought under 504
of the Rehabilitation Act) and 28 C.F.R. 35.175 (1993) (court may award
reasonable attorney's fees to prevailing party in action brought under ADA).
DSW

has not contested such an award in the event that plaintiffs prevail. We
conclude that plaintiffs have prevailed in this action and therefore grant
them reasonable attorney's fees.

Reversed. Decision of the Human Services Board is reinstated, and the
case is remanded for determination of attorney's fees and costs.

FOR THE COURT:

_________________________________
Associate Justice

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Footnotes

FN1. A disability is "a physical or mental impairment that substantially limits
one or more of the major life activities," or "a record of such impairment."
28 C.F.R. 35.104 (1993). Regulations implementing the ADA recognize
specific learning disabilities as impairments and learning as a major life
activity. Id. 35.104 Disability (1)(ii) & (1)(2).

FN2. Even if the graduation requirement were an essential eligibility
requirement, DSW must consider whether "nonqualifying" disabled individuals
may become qualified with reasonable modifications. See Concerned Parents
to Save Dreher Park Center v. City of West Palm Beach, 846 F. Supp. 986, 990
(S.D. Fla. 1994).

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Concurring

No. 93-342

Elaine Howard, Clara Parker Supreme Court
and Carolyn Clark
On Appeal from
v. Human Services Board

Department of Social Welfare May Term, 1994

Cornelius Hogan, Secretary

James C. May, South Royalton Legal Clinic, and Ian C. Ridlon, Robert C.
Brannan, Cynthia E. Frantz, Ronald G. McMallen and Jacob B. Parkinson, Legal
Interns, South Royalton, for plaintiffs-appellants

Jeffrey L. Amestoy, Attorney General, Montpelier, Christina M. Byron,
Assistant Attorney General, and George Collins, Legal Intern, Waterbury, for
defendant-appellee

Steven S. Zaleznick, Patricia A. DeMichele and Bruce Vignery, Washington,
D.C., for amicus curiae American Association of Retired Persons

Marilyn Mahusky-Anderson, Rutland, and Judith F. Dickson, Burlington, Vermont
Developmental Disabilities Law Project, for amicus curiae Vermont Protection
and Advocacy, Inc.

PRESENT: Allen, C.J., Gibson, Morse and Johnson, JJ., and Peck, J. (Ret.),
Specially Assigned

Morse, J., concurring. I concur in the Court's judgment, but I write
separately to express my view that DSW's legal position justifying
withholding of ANFC benefits was frivolous, caused a waste of judicial
resources, and unfairly placed the unnecessary burden of litigation on
plaintiffs.

The facts were not in dispute. DSW admitted that the children were
disabled, did not meet the graduation requirement solely because of their
disabilities, and met every other eligibility criteria for ANFC benefits.
Obviously, graduation -- unlike residence, age, financial need, and
deprivation of parental support or care, see 33 V.S.A. 1101 -- was not an
"essential" element of the ANFC program. DSW simply did not contest that the
regulation in issue discriminated against plaintiffs. Its defense was the
mere existence of the regulation. In a flurry of rhetoric, DSW ceded its
case and argued that a regulation that undeniably discriminated against
disabled children had to be followed. DSW contended it was exempt from the
mandates of the Rehabilitation Act and the ADA. The question is why?

The answer lies in a statement made in DSW's brief to this Court. "[DSW]
cannot make an independent determination that the federal law conflicts with
504 or the ADA and still participate in the federal program. If a state
fails to adhere to provisions of the federal program, it loses federal
financial participation." (Emphasis added). In other words, DSW would not
follow the law if it meant losing federal receipts. Yet, as a public entity
that receives federal funding, DSW is required to "make reasonable
modifications in policies, practices, or procedures when the modifications
are necessary to avoid discrimination on the basis of disability." 28 C.F.R.
35.130(b)(7) (federal regulations promulgated by Department of Justice
implimenting ADA and governing nondiscrimination on basis of disability in
state and local government services).

This disturbing posture was maintained even though DSW, in light of the
ADA, did nothing to determine the availability of federal funds. At oral
argument counsel for DSW confirmed its lack of inquiry.

Justice Gibson: Has the Secretary made any effort to
determine whether federal funds would be available if the
[18]-year-old disabled were to be compensated?

Counsel: I think it's fairly clear within the statute and
the [regulations] that you set up your state plan according
to the regulations and only state plans that have been
approved, that those are the benefits you are going to get.

Justice Gibson: I take it your answer is no.

. . . .

Justice Gibson: . . . [H]ow can the Secretary deny benefits
without checking with the federal government as to its
interpretation?

Counsel: This is a fairly straight-forward statute . . . .

It is most regrettable that an issue as predictable as the one here would
reach this Court without any effort by DSW to resolve it with the applicable
federal agency. Because DSW made no effort to determine the availability of
federal funds, this Court cannot be sure that any actual conflict exists.

It seems that this case was an effort to steer an imagined funding problem
to the judiciary. Rather than the judiciary being the "court of last resort"
to resolve a real dispute, it was the first stop to resolve a funding dilemma
in difficult fiscal times. DSW's failure to take initiative created a
hardship on the three families involved in this appeal, as well as
unnecessary litigation. This hardship and waste of resources might have been
avoided with a telephone call early on to the United States Department of
Health and Human Services.

___________________________
Associate Justice

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