[bksvol-discuss] Re: OT: Social Security Administration may be in violation of Section 504 of the Rehabilitation Act.
- From: "Lynn I" <lynnskyi@xxxxxxxxxxxxx>
- To: <bksvol-discuss@xxxxxxxxxxxxx>
- Date: Wed, 21 Oct 2009 13:26:40 -0500
Hello Everyone! The subject line of my previous message implied that Social Security was found to be in violation of Section 504 of the Rehabilitation Act. Actually, the finding of the Court is that it may have violated Section 504 of the Rehabilitation Act by failing to provide certain accommodations to people who are blind or visually impaired. I wanted to clarify this point. Blessings. Lynnsky ----- Original Message ----- From: Lynn I To: bookkshare volunteer list Sent: Wednesday, October 21, 2009 12:54 PM Subject: [bksvol-discuss] OT: Social Security Administration found to be in violation of Section 504 of the Rehabilitation Act. Hello Everyone! Below is a message from Melanie Brunson, Executive Director, American Council of the Blind, regarding a ruling by United States District Court Judge WILLIAM ALSUP For the Northern District of California, relating to the Social Security Administration's failure to provide accommodation to people who are blind or visually impaired, with respect to notification of SSA benefits and various processes. It makes for some interesting reading. Please read so you will know what you are entitled to receive from the Social Security Administration. Blessings. Lynnsky block quote Hello all. As many have already heard, we received word late yesterday that Judge Alsup has issued an order in our case against the Social Security Administration, in which he finds that agency's failure to provide notices to blind and visually impaired beneficiaries, as well as representative payees, to be a violation of Section 504 of the Rehabilitation Act. This is a major victory of ACB, the individual class members, and the lawyers who helped us present our case. Because these lists do not allow me to share the entire text of the court's decision here, I will paste some key portions below. I will include the actual order, and the portion of the Findings of Fact and Law which outlines the relief granted by the court. I have copies of the decision in its entirety in Word and Daisy formats, as well as the original pdf document that we obtained from the court. Please feel free to contact the office if you would like one. We will also put them on the ACB website. Enjoy reading below. Melanie Brunson Begin text of order United States District Court For the Northern District of California IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AMERICAN COUNCIL OF THE BLIND, a District of Columbia non-profit corporation, SCARLETT MILES, MARVELENA QUESADA, ARLENE DOHERTY, ALICE MARJORIE DONOVAN, BILLIE JEAN KEITH, GEORGE P. SMITH, MARY ANN ALEXANDER, and LAURA M. RUSSELL on behalf of themselves and all others similarly situated, Plaintiffs, v. MICHAEL ASTRUE, Commissioner of the Social Security Administration, in his official capacity, and SOCIAL SECURITY ADMINISTRATION, Defendants. No. C 05-04696 WHA JUDGMENT For the reasons stated in the accompanying order, FINAL JUDGMENT IS HEREBY ENTERED in favor of both certified classes and the named plaintiffs and against defendants with respect to the Rehabilitation Act claim. FINAL JUDGMENT IS HEREBY ENTERED in favor of defendants and against both certified classes and the named plaintiffs with respect to the due process claim. No damages were sought in this case. Judgment is for injunctive and declaratory relief. The Court will retain jurisdiction, subject to further order, to supervise the injunctive and declaratory relief set forth in the accompanying order. IT IS SO ORDERED. Dated: October 20, 2009. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE Case3:05-cv-04696-WHA Document324 Filed10/20/09 RELIEF GRANTED With respect to the scope of relief, a district judge would ordinarily consider remanding the issue of systematic relief to the agency so that it could pursue system-wide rulemaking in the first instance. The litigation posture taken by SSA herein militates decidedly against this approach, however. Back in 2008, after an order ruled against SSA on whether Section 504 applied to the problem at hand, the Court invited both sides to comment on which of four alternatives should be pursued (Dkt. No. 78 at 12-13): 1. Actively continue litigating this case under Section 504 of the Rehabilitation Act, decide the issue of class certification, and determine the scope of relief, if any. 2. Stay the proceedings of the case so that the agency can engage in rulemaking or pursue other agency action in light of the ruling on the merits made herein. This course would require that the agency concede the correctness of this ruling on the merits. The Court would maintain jurisdiction to review any rule or policy subsequently adopted. 3. Remand the action to the agency for rulemaking or other agency action. This would also require that the agency concede the correctness of this ruling on the merits. This course, however, might be problematic because there seems to be no affirmative agency action forming the predicate for original subject-matter jurisdiction. 4. Certify this order for interlocutory review under 28 U.S.C. 1292(b) and stay all proceedings. Both sides, including SSA, requested that the litigation continue with a decision on the merits. Having spurned the opportunity for a stay pending rulemaking, the agency has, in effect, consented to resolve the case by litigation, not rulemaking. The agency has litigated the entirety of the issues under Section 504 and Section 85.51, including the question of undue burden as to the proposed alternatives at trial. For the same reason, this order will not merely order the agency to henceforth comply with Section 85.51 (the provision allowing individuals to ask the agency for an accommodation in the form of communications). SSA has spurned that opportunity and chosen to litigate on a class-wide basis. Moreover, until this litigation was underway, the agency refused to even acknowledge that it was obligated to follow Section 504, routinely denying individual requests for accommodation. In this litigation, it has been quick to find lame excuses for noncompliance but exceedingly slow to favor accommodations. To merely order the agency to comply with Section 85.51 would lead to more lame excuses with no accommodations. Since the agency has chosen to litigate this case on a class-wide basis, this order will require relief on a class-wide basis. Consequently, the following relief is ordered: 1. For all notices and other communications with blind and visually impaired and Title II and Title XVI recipients and authorized representatives, defendants shall develop and shall offer a Braille alternative and a navigable Microsoft Word CD alternative no later than APRIL 15, 2010. 2. By DECEMBER 31, 2009, defendants shall provide notice to all recipients and authorized persons shown in its records to be blind or visually impaired: (a) advising of the availability of the foregoing new alternatives and giving them an opportunity to elect one of the two above alternatives with an effective date of APRIL 15, 2010. The notice should advise that selection of one of the two alternatives would discontinue any special notice previously selected under the special notice policy, i.e., that the recipient would not be entitled to both a SNP notice as well as a new alternative. The newest alternatives, to the extent selected, would relieve the agency of the burden of making the SNP notice and, to that extent, would be less burdensome on the agency; and (b) advising that the blind and visually impaired are individually entitled to ask defendants to provide any other alternative accommodation preferred by said individual. The notice shall describe the Section 85.51 procedure and fully comply with its duty to advise as to rights. This order is without prejudice to future relief to any individual pursuant to any such individual request pursuant to Section 85.51 and the agency is hereby ordered to comply in good faith with Section 85.51. 3. In addition to the notice required by Paragraph 2, defendants shall make an appropriate announcement on its website and shall train its staff dealing with the blind and visually impaired to communicate orally the notice described above when such individuals call in, email in, or write in, all to be effective by APRIL 15, 2010. The Court realizes that there will be some blind and visually impaired recipients whose impairment will not be noted in the records and thus those individuals will not receive the mailed notice required by above. Those individuals, however, may learn of the expanded options via the website and/or through telephone communications. This order finds that more expansive dissemination of the written notice would not be worth the incremental financial burden. The American Council of the Blind is hereby requested to give appropriate notice of the relief ordered herein to as many blind and visually impaired individuals as feasible through its website and publications. The Court finds that in due course everyone with a need to know the change will be fully informed. 4. By NOVEMBER 25, 2009, defendants shall file a specific description of the Braille and Microsoft Word CD it proposes to offer, the specific form of notice, and its specific plan of dissemination. It shall also spell out a systematic plan for receiving and ruling on requests for accommodation under Section 85.51. By DECEMBER 4, 2009, both sides shall meet-and-confer in person on the adequacy of the proposal as well as on the form of notice and manner of dissemination. Any objection must be filed by DECEMBER 18, 2009, and any response thereto by DECEMBER 29, 2009. A hearing shall be held if needed. 5. By APRIL 16, 2010, defendants must file a certificate of compliance under oath stating in detail what was done to comply with this order. 6. After APRIL 16, 2010, no social security benefits may be reduced or terminated to any individual shown in the SSA records to be blind or visually impaired (or whose authorized payee is shown to be blind or visually impaired) unless such person was first provided with the notice prescribed above and the method of notice, if any, selected by said person was followed. 7. The Court will retain jurisdiction to enforce this order, including to monitor whether it is complying with its duties under Section 85.51. IT IS SO ORDERED. Dated: October 20, 2009. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE block quote end ------------------------------------------------------------------------------ No virus found in this incoming message. Checked by AVG - www.avg.com Version: 8.5.423 / Virus Database: 270.14.24/2449 - Release Date: 10/20/09 18:42:00
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- » [bksvol-discuss] Re: OT: Social Security Administration may be in violation of Section 504 of the Rehabilitation Act. - Lynn I