[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.



  ----- 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.



  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 



  AMERICAN COUNCIL OF THE BLIND, a District of Columbia non-profit corporation, 
behalf of themselves and all others similarly situated, Plaintiffs, 


  MICHAEL ASTRUE, Commissioner of the Social Security Administration, in his 
official capacity, and SOCIAL SECURITY ADMINISTRATION, Defendants. 

  No. C 05-04696 WHA 


  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. 


  Dated: October 20, 2009. 



  Case3:05-cv-04696-WHA Document324 Filed10/20/09 


  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 

  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. 


  Dated: October 20, 2009. 



  block quote end


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  • » [bksvol-discuss] Re: OT: Social Security Administration may be in violation of Section 504 of the Rehabilitation Act. - Lynn I