Key Points

• In an announcement by the US Department of Health and Human Services Office for Civil Rights (OCR) in August 2023, OCR appeared to adopt the position that being “in recovery from a substance abuse disorder” is a disability covered by the nondiscrimination provisions of the Americans with Disabilities Act (ADA). By extension, under this position, local agencies may not discriminate against such persons in qualifying people to become foster parents.
• Disability law does not support OCR’s position on this issue. Disability law is inapplicable to applications for foster parenting, as ADA protections routinely apply only to people seeking the “outputs” of a service or program, not people wanting to be an “input” or service provider.
• Applying disability law to foster parenting this way creates great risk for foster children and confusion for foster care agencies. OCR should revise its position and send corrective guidance to state and local agencies.

Introduction

Under the Biden administration, the US Department of Health and Human Services (HHS) Office for Civil Rights (OCR) pressured state foster care agencies to be more receptive to applicants for foster parenting who are “in recovery” from or “in treatment” for a substance abuse disorder.¹ As legal professionals and experts in child welfare law and practice, we are writing to urge the OCR to reverse this course of action because it puts extraordinarily vulnerable children at greatly heightened risk of further harm in the foster care system. And disability law does not support OCR’s position on this issue.

On August 8, 2023, the OCR announced an agreement with the Commonwealth of Pennsylvania “to Advance the Rights of People in Recovery and Involved in Child Welfare Services.” In that announcement, OCR appeared to adopt the positions that (1) being “in recovery from a substance abuse disorder”—which seems to mean simply that an applicant is not using at the moment—is a disability covered by the nondiscrimination provisions of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 and (2) local agencies therefore may not discriminate against such persons in qualifying people to become foster parents.² The OCR complaint involved a prospective foster parent’s allegation that he or she was denied the ability to foster based on the use of medically assisted treatment for opioid use disorder. However, OCR appears to have taken the broad position that child protective services agencies are prohibited from considering substance abuse history in any of their child welfare activities, “including but not limited to child protective services, adoption, traditional and kinship foster care services, and safe haven programs.”³

Precisely which bases OCR deemed impermissible for denying a foster parent’s application is not entirely clear from the announcement, which refers variously to

• An agency having “denied an individual the opportunity to apply to be a foster parent because she receives medication for the treatment of substance abuse disorder,”
• “Unfounded discriminatory assumptions that medications for substance abuse disorder limits [sic] their ability to be effective foster parents,”
• “Discrimination against individuals . . . in treatment for opioid use disorder,”
• “Protections” for “individuals with a substance use disorder,”
• “Working with . . . those in recovery from a substance use disorder,”
• “Not imposing eligibility requirements that screen out individuals . . . because of treatment for substance use disorder,” and
• “Discrimination in the child welfare system based on their receipt of medications for opioid use disorder or participation in medication-assisted treatment programs.”⁴

From these statements, agencies are left uncertain whether they may even consider that an applicant has an addiction if that individual happens to be sober when they apply. Perhaps even current use must be ignored if the applicant is receiving medication or is “in treatment.” The announcement also leaves uncertain whether agencies may consider that a person is dependent for sobriety on access to medication that might be difficult to obtain. Or that the particular medication a person is taking has proven serious side effects (e.g., blackouts, severe nausea, and hallucinations) that could be incapacitating for periods of time.

We do not believe OCR needs to resolve these uncertainties, though they seem to have been causing foster care agencies around the country a great deal of anguish. It need not do so because the disability laws are simply inapplicable to applications for foster parenting. We urge OCR to revise its position and advise state and local agencies accordingly.

Disability Law Is Inapplicable to Foster Parent Qualification

The ADA governs state and local government agencies, and its Title II applies to “public services.” Section 504 governs “any program or activity receiving Federal financial assistance,” as foster care systems do. Both laws state that no “qualified individual” shall be excluded from participation in or denied the benefits of a public service or program solely “by reason of” a disability.⁵

Courts have routinely held that ADA Title II protections extend only to people seeking the “outputs” of a service or program, not to people wanting to be an “input.” Courts have not considered whether the same is true under Section 504 in the public service context, but they routinely state that interpretation of Section 504 piggybacks on interpretation of corresponding provisions of the ADA.⁶ We elaborate on these points below.

At base, what is most troubling about the OCR reading of the disability laws is that it treats foster care as intended to benefit people who wish to be foster parents. On the contrary, states create foster care systems for the benefit of maltreated children, whose needs and vulnerability are pronounced. OCR has no authority to displace states’ intentions and say foster care is actually a public service for adults who want to take children into their homes for whatever reason. Title II and Section 504 protect individuals as potential recipients of the benefits of public services and programs. Thus, only children can legitimately complain about disability-based exclusion from foster care.

Further, though Section 504 also extends to employment, foster parents generally are not employees of local child welfare agencies but rather should be viewed as volunteers or independent contractors. Disability laws are thus entirely inapplicable to the foster parent application process. It is deeply troubling for OCR to opine otherwise because it puts these especially vulnerable children at risk of further trauma.

Courts have not had to analyze the particular issue of disability law’s applicability to foster care. But there is substantial case law establishing the general principle that protection in the public service context is limited to recipients. In many instances, employees of public entities have predicated employment-discrimination claims on Title II, and courts have rejected these claims on the grounds that Title II was not intended to address discriminatory treatment of people wishing to be providers of public services rather than recipients.⁷ The explanation given is that Title II concerns service outputs and benefits to service receivers, not “inputs” needed to provide the services, such as employees.

For example, in rejecting a complaint by a former staff member at the University of Oklahoma, the 10th Circuit Court of Appeals explained:

Ordinarily speaking, an agency’s services, programs, and activities refer to the “outputs” it provides some public constituency. The phrase does not refer to the “inputs,” like employees, needed to make an agency’s services, programs, and activities possible. A university’s services, programs, and activities might include courses in Bach, biophysics, or basket weaving—outputs provided to its students—but not the professors, piano tuners, or other people needed to make those offerings possible. Employing people isn’t a service, program, or activity the university provides: it is a means or method the university uses to provide its services, programs, and activities. On this much, nearly every court to have faced the question agrees. . . .

A close look at the statutory terms confirms their point. “Services” are ordinarily understood as acts “done for the benefit . . . of another.” Webster’s Third New International Dictionary 2075 (2002). . . . A university may offer academic instruction, meals and living quarters, even places to play and make friends—doing all of these things to benefit its students. A university may employ people as a means to provide these benefits. But one doesn’t usually think of employing people as itself a benefit a university seeks to provide, as some sort of end in and of itself.

Much the same might be said of the term “program.” The statute says that disabled persons may not be denied the right to “participat[e] in” or receive the “benefits of” a public entity’s “programs.” . . . But we don’t ordinarily understand employees who help make programs possible as themselves participating in or receiving their benefits. The phrase “programs of a government entity” refers to its “project[s] or scheme[s],” Webster’s, supra, at 1812 . . . not, usually at least, to the employment of those needed to effect an agency’s projects and schemes.

. . . And here the placement of the term “activity” suggests an effort to capture all the outputs the public entity provides to the public it serves, to be comprehensive in that respect, not necessarily to rope in everything the entity does. . . .

. . . If Congress had wanted to prohibit discrimination in all aspects of a public entity’s operations, it easily could have said just that—indeed, it has in other anti-discrimination statutes. . . .

. . . Ms. Elwell argues that the phrase “or be subjected to discrimination by any such entity” is a “catch-all” prohibiting discrimination by a public entity, regardless whether it occurs in a service, program, or activity the entity provides or in some other way or function. . . .

. . . [However,] § 12132 prohibits discrimination only against “qualified individuals.” In § 12131(2), Congress defines “qualified individual[s]” to include only those “individual[s] with a disability who . . . meet[] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”  And, as we have already explained, virtually every court to face the question has interpreted the words “services,” “programs,” and “activities” in § 12132 to mean an agency’s “outputs.” . . . . . . While the first clause prevents an agency from baldly “exclud[ing]” or “den[ying] benefits” to handicapped individuals, the second clause prevents an agency from, say, making it disproportionately more difficult for handicapped individuals to participate; unfairly disadvantaging them compared to others; or otherwise discriminating against them in the manner the agency provides its services, programs, and activities. On this reading, the former clause may ban balder and more obvious acts of discrimination, but the latter is needed to address subtler if equally inequitable acts of discrimination.⁸

Similarly, in rejecting a police officer’s ADA Title II claim against the town that employed him, a federal district court stated:

If asked what services, programs, and activities it provided, the Town might respond that it provided basic municipal services such as public education, public transportation, or law enforcement. It would not answer that it hired teachers, bus drivers, and police officers. These municipal services are considered the Town’s “outputs,” while the personnel and equipment engaged to provide such services would be considered the Town’s “inputs.” The latter are not services or programs that citizens seek to participate in or receive benefits  from; they are conduits used by the public entity  to provide services, programs, and activities.⁹

One does not find similar analysis in Section 504 cases; people complaining of discrimination in employment have no reason to try to fit their claim into the framework of access to public services and programs under that statute. Should persons wishing to participate in providing services as nonemployees, such as foster parents, claim protection under Section 504, courts would no doubt invoke the oft-stated principle that interpretations of the ADA extend also to corresponding provisions of Section 504.¹⁰

Thus, ADA Title II and corresponding provisions of Section 504 are simply inapplicable to the qualification of people to serve as foster parents because foster care is a service for children and not for the people who want to be foster parents. Foster parents are an input; care of children is the output. The fact that aiming to ensure adults equal opportunity to be an input could result in denying to some children the intended output—that is, a safe substitute home—reinforces that OCR was fundamentally misguided in 2023 in applying disability laws to the foster parent qualification process.

Even If Disability Law Applied, OCR Guidance Is Misleading

Even if it were appropriate to apply disability law to foster parent applicants, OCR should have been clearer about what exactly the law would require of foster care agencies, in these respects:

1. OCR should have made clearer that having a substance abuse disorder does not constitute a disability. An individual seeking the law’s protection has the burden of showing that the disorder substantially interfered with a major life activity while they were using or that current treatment of the disorder does so.¹¹ The Biden administration OCR’s broad reference to substance abuse disorder is therefore overreaching in this respect as well. Most court decisions finding persons in recovery disabled involved persons living in a rehabilitation facility because they could not safely live independently. Applicants for fostering presumably live independently at the time they apply, so to receive ADA or Section 504 protection at all, they would need to demonstrate to an agency that when they use (which they might resume doing at any moment), it substantially interferes with their daily functioning. This reinforces the point above about the inappropriateness of treating access to children as the benefit of foster care services or treating applicants for foster parenting as the beneficiaries of foster care. It would mean that the more impaired an adult is, the stronger their right to be a foster parent.
2. The OCR announcement’s suggestion that taking medication is a disability is conceptually confused, and courts are unlikely to agree with OCR on this point. Taking medication can limit life activities—for example, if it must be taken very often and is difficult to administer or if it has disabling side effects. But it is conduct, not a physical or mental impairment. There does not appear to be any case law support for the proposition that taking medication for any kind of physical condition, or any other treatment for a physical impairment, is a disability. Thus, someone whose addiction did not interfere with major life activities cannot claim to have a disability on the grounds that the treatment they receive for the addiction does so.
3. Relatedly, OCR should have made the following points clearer in its announcement regarding equal access for addicted persons:
   1. It is targeting only irrational prejudice, and agencies may exclude someone from fostering if they determine on an individualized basis that the person’s condition—whether because relapse is likely or because side effects of treatment are likely to interfere with childcare— creates an actual, significant risk to a child placed with them even if reasonable accommodations are made. The actual agreement between OCR and Pennsylvania (as opposed to the announcement, which is likely all that local agencies will read) suggests this. Citing HHS’s own regulations, it states: “DHS [the Pennsylvania Department of Human Services] will ensure that the CYS [county children and youth] agencies’ safety requirements are based on actual risks that pertain to the Participant with a disability and not on mere speculation, generalizations, or stereotypes about individuals with disabilities.” Further, the agreement does not preclude “removing a child from a Participant with a disability or denying the placement of a child with a Participant with a disability if DHS through the CYS agency determines the Participant represents a direct threat to the safety of the child.”¹² Agencies should be able to take into account that addiction is very difficult to keep under control and that relapse rates are extremely high.
   2. Agencies are not required to go to unreasonable lengths to accommodate someone with a disability—that is, to provide an accommodation that entails undue hardship or change to the program’s fundamentals.¹³ Ensuring that a person with a substance abuse disorder does not relapse and endanger a child in their care would likely be quite difficult, given that relapsing takes only seconds and can endanger a child immediately. An agency might have to test so often or monitor so continuously that the burden on all involved is too great and the foster home no longer resembles a normal home.

Fundamentally, OCR is mistaken in invoking disability laws to pressure foster care agencies into selecting addicted persons as foster parents for abused and neglected children. Agencies are free under federal law to exclude people from consideration as foster parents on the basis of an addiction, whether or not the person is at the time of application actively abusing drugs or alcohol, or on the basis of established side effects of treatment. We respectfully request that OCR send corrective guidance to state and local agencies.