[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
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