SSA Notices Discriminate Against Blind and Visually Impaired

January 21, 2010

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Ruling that the Social Security Administration (SSA) “has been quick to find lame excuses for noncompliance [with Section 504 of the Rehabilitation Act] but exceedingly slow to favor accommodations,” a federal court judge in California has ordered relief to a nation-wide class of visually impaired individuals who sought to compel SSA to provide alternative formats of communication.

The plaintiffs' sought to have SSA provide its standard print notices in alternative formats such as Braille, large print, audio CD, and e-mail, without regard to whether blindness was the basis for their benefits.  At issue was a Special Notice Provision (SNP) of the Social Security Act that applied only to individuals who receive or apply for benefits on the basis of blindness.  Under the SNP (42 U.S.C. §1383(l)), only those individuals could choose to receive notice by certified mail, first class mail followed by a phone call, or first class mail.  Not only did the SNP leave out alternative forms of communication; it also left in the lurch applicants with visual impairments other than blindness, and blind or visually impaired individuals receiving benefits based on age or as representative payees.  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.

The Court held that the SNP failed to measure up to the requirements of Section 504.  It also found that SSA had not demonstrated that there would be an undue financial and administrative burden to provide alternative formats such as a Braille option or a Microsoft Word CD.  It did reject plaintiffs’ request for e-mail communications on the grounds that the risk of personal identifying information being stolen was too great.

In 2008, when the Court denied the government’s motion to dismiss on jurisdictional grounds, the Court offered to stay its proceedings to allow SSA to promulgate regulations.  Both parties, however, requested a decision on the merits.  As a result of SSA’s litigation posture in the case, the Court refused to remand to allow the agency to pursue system-wide rulemaking. Instead, it ordered very specific relief, including 1) the development by April 15, 2010, of a Braille alternative and navigable Microsoft Word CD alternative; 2) notice by December 31, 2009, to all beneficiaries and authorized persons shown to be blind or visually impaired of the new communications policy effective April 2010, that the individual could request alternative accommodations (no benefits may be reduced or terminated for any individual who is blind or visually impaired after April 16, 2010, until this notice has been provided); 3) announcement of new communications policy on its website and staff training; and 4) certification of compliance under oath detailing what SSA has done to comply with the Court’s order.

SSA’s new policy and samples of notices are already available at http://www.ssa.gov/notices/.  A copy of the decision in American Council of the Blind, et al. v. Astrue, No. C 05-04696-WHA (N.D. Cal. Oct. 20, 2009) is available at http://www.nosscr.org/pdfs/blind_access.pdf., and is also accessible on Westlaw as 2009 WL 3400686 (N.D. Cal., Oct. 20, 2009).

Jerry McIntyre and others at the National Senior Citizen Law Center, the Disability Rights Education and Defense Fund, the Oregon Advocacy Center, and Heller Ehrman LLP are responsible for this significant victory.
 

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