A district judge in California has issued a final judgment in a nationwide class action requiring that the Social Security Administration (SSA) offer blind or visually impaired individuals the option of receiving notices and other communications in alternative formats. American Council of the Blind v. Astrue, 2009 WL 3400686 (N.D. Cal.) (Oct. 20, 2009). The case was brought under Sect. 504 of the Rehabilitation Act of 1973 on behalf of a class of 3,000,000 blind or visually impaired individuals receiving Social Security or Supplemental Security Income (SSI) benefits and a parallel class of representative payees, who are typically spouses or parents. The overwhelming majority of class members are over the age of 80, having lost their sight as a result of macular degeneration, diabetes or glaucoma. Under the court’s ruling, which came after a bench trial, SSA must make additional format options for receiving communications from SSA available to anyone who is blind or visually impaired beginning April 15, 2010.
SSA maintained in the litigation that they did not have to comply with the Rehabilitation Act in their communications with blind or visually impaired individuals because of a little noticed provision of the Social Security Act. This provision, the Special Notice Provision (SNP) requires SSA to offer individuals who receive benefits on the basis of blindness additional options for receiving notice with respect to decisions or determinations. 42 U.S.C. 421(l) & 1383(l). These options include 1) a follow-up telephone call within 5 days of sending a standard print notice by first class mail 2) standard print sent by certified mail, and 3) “some alternative procedure established by the Commissioner and agreed to by the individual.” However the SNP applied only to a small minority of the beneficiary class since the overwhelming majority of class members received benefits on the basis of age, not blindness. In addition, SSA never established any alternative procedure as required by the third prong of the SNP. In the course of the litigation, SSA announced that it was voluntarily extending the SNP to all persons receiving benefits on any basis who were blind or visually impaired, although it never informed beneficiaries of that change in policy.
The court castigated the agency for its “lame excuses for noncompliance” and rejected SSA’s reliance on the SNP, ruling that it did not meet the minimum requirements of Sect. 504. Under the court’s order, SSA will now have to offer communications in the individual’s choice of Braille or a navigable Microsoft Word CD (sent by first class mail) which can be read aloud with appropriate software in addition to a standard print format sent by first class mail with or without a follow-up phone call and standard print sent by certified mail. In addition, the agency will be required to establish a procedure pursuant to 45 C.F.R. 85.51, under which an individual can request an alternative accommodation. The judge, William H. Alsup, U.S.D.J., ordered the agency, no later than December 31, 2009, to notify all individuals shown in its records to be blind or visually impaired of the newly available options and of the right to request an alternative accommodation pursuant to 45 C.F.R. 85.51. However, he did not order that this notice be provided to the majority of the class who are not shown on SSA records to be blind or visually impaired because their blindness is not relevant to their benefit status.
Plaintiffs had also requested that both large print and audiotape formats be mandated since they would be the formats most likely to be accessible to the majority of class members who have become blind or visually impaired in advanced age. While the court refused to mandate these formats on the ground that large print was too burdensome and that audiotape was “passé,” class members will be able to request these formats on an individual basis under the 85.51 procedure that is to be established.
The court denied plaintiffs’ due process claim on the ground that plaintiffs had failed to demonstrate a deprivation of due process on a class-wide basis, noting the great variation in the impact of various notices that SSA sends out. However, the due process claim would not have provided any additional relief. At this stage it is not known whether SSA will appeal the judgment.
Plaintiffs were represented by Disability Rights Education and Defense Fund (DREDF), the National Senior Citizens Law Center and Howrey, LLP, which stepped in on short notice upon the dissolution of Heller, Ehrman, LLP as the case was being prepared for trial. For further information, contact Gerald McIntyre gmcintyre@nsclc.org in the NSCLC Los Angeles office.
