Social security, modes of communication for blind and visually impaired persons and the Rehabilitation Act American Council of the Blind v Astrue

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1 Trinity College Dublin, Ireland From the SelectedWorks of Mel Cousins October, 2010 Social security, modes of communication for blind and visually impaired persons and the Rehabilitation Act American Council of the Blind v Astrue Mel Cousins, Glasgow Caledonian University Available at:

2 Social security, modes of communication for blind and visually impaired persons and the Rehabilitation Act American Council of the Blind v Astrue 1 This note examines a recent District Court decision in which the plaintiffs successfully challenged the adequacy of modes of communication by the Social Security Administration in its notices and other correspondence to blind and visually impaired persons. The case shows the potential of the Rehabilitation Act to improve services to persons with disabilities. Background The case was brought by the American Council of the Blind (ACB) and a number of individual Plaintiffs who received benefits from the Social Security Administration (SSA) for themselves or on behalf of others. They sought to compel the SSA to provide alternative formats of communication that would enable them to have more equal access to participate in SSA programs. The alternatives include Braille, large print, electronic mail, computer disks, and audiotape recordings. They brought their claim under both Section 504 of the Rehabilitation Act of 1973 and the due process clause of the Fifth Amendment. As it is important for the outcome of this case, it is necessary to note the approach adopted to the claim by the SSA. Initially, the SSA took the view that Section 504 did not even apply to the issue at hand and that a Special Notice Policy (adopted under the provisions of the Social Security Act) was the sole requirement. However, by the time of the trial, the SSA conceded that Section 504 did apply. 2 This background explains why the SSA (as the court put it) never bothered to comply with the implementing Rehabilitation Act regulations. 3 However, even during the proceedings, the SSA argued that its obligations under Section 504 were confined to the special notice procedures which were a legislative declaration of its duties under the Rehabilitation Act. 4 Finally, the SSA refused the opportunity offered by the District Court to stay the proceedings for rulemaking or other SSA action. The law Section 504 of the Rehabilitation Act provides that No otherwise qualified individual with a disability in the United States,..., shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 1 No. C WHA (ND Cal, 2009). 2 American Council of the Blind v Astrue at para Ibid. 4 This argument was rejected by the District Court in an interim order in April 2008 (at 111).

3 In order to implement Section 504, the Department of Health and Human Services promulgated regulations in 1988 that set out a series of important requirements including the requirement that a notice of rights must be provided to individuals with disabilities. In 1988 and 1990, Congress added special-notice provisions to the Social Security Act. Under these provisions, individuals receiving benefits or applying for benefits on the basis of blindness are entitled to elect from three different methods of receiving notices of any decision or determination: (i) a mailed notice with a follow-up telephone call; (ii) certified mail; or (iii) notification by some alternative procedure established by the Commissioner of Social Security and agreed to by the individual. 5 In implementation of these requirements, the SSA established its Special Notice Policy (SNP). Section 504 and social security for blind and visually impaired persons As the court pointed out the central question was whether the SSA had complied with Section 504 and its implementing regulations. It was clear that it had not at least as regard issues such as the provision of a notice of rights to blind and visually impaired individuals. 6 Citing Alexander v Choate, the court pointed out that the Supreme Court has interpreted Section 504 so as to respond to the need to give effect to the statutory objectives of that provision while keeping it within manageable bounds. 7 The Supreme Court had stated that this meant that an otherwise qualified handicapped (sic.) individual must be provided with meaningful access to the benefit that the grantee offers. 8 However, Section 504 only requires reasonable accommodation and accommodation is not reasonable if it if would entail either an undue financial and administrative burden or a fundamental alteration in the nature of a program. 9 Therefore, there were two main questions for the court to answer: (i) whether blind and visually impaired plaintiffs have meaningful access to SSA notices, and (ii) if not, whether the acts necessary to achieve meaningful access would impose an undue burden on SSA. 10 The defendants relied heavily on the interpretation of Section 504 adopted by the US Supreme Court in Alexander v Choate. 11 In that case the Supreme Court had determined that a state was not required to expand the durational limits of its inpatient coverage in order to meet the greater medical needs of disabled persons. However, as the District Court pointed out, in the instant case, the plaintiffs did not seek to expand the substantive scope of a SSA program or benefit but, rather, sought forms of notice as easy for them to read as print notices are for everyone else U.S.C. 421(l), 1383(l). 6 At US 287, 299 (1985). 8 Id at 301 (emphasis added by the District Court). 9 Id at American Council of the Blind at US 287(1985). See L. Pickering Francis & A. Silvers, Debilitating Alexander v. Choate: Meaningful access to health care for people with disabilities, Fordham Urb L.J. XXXV (2008) American Council of the Blind at 110.

4 The court concluded that the SSA has not provided meaningful access for its programs to all blind and visually impaired individuals as required by Section 504. Nor had it provided effective communication for all plaintiffs. 13 The Court examined the implementation of the SNP. It concluded that the SNP is generally administered by SSA in a sincere and well-intentioned way. The agency has made a reasonable and good faith effort to implement its SNP. The main issue is not shortfalls in the implementation but rather shortfalls in the concept itself, meaning whether the SNP, even if executed with perfection, measures up to the requirements of Section It outlined a series of these shortfalls 15 including the fact that phone calls made under the SNP were not timed for when a claimant is most likely to be at home to receive the call; that some plaintiffs had only received a SNP call a few times over many years; that notices were often paraphrased and, in any case, it was hard to comprehend the essence of the notice when read out on a once off basis. 16 On the basis of the evidence provided the court concluded that the SNP was not effective for some blind and visually impaired individuals. As noted above, the District Court had already rejected the argument that the SSA s obligations under Section 504 were somehow confined to the SNP provisions of the Social Security Act. It ruled that Section 504 trumped the special-notice provisions and that Congress intended to improve the notice provided to blind recipients when it passed the special notice provision, not to limit such notice. 17 However, the SSA had refused to expand the alternatives beyond the SNP contending that this provided an effective means of communication and that alternative methods of communication would impose an unreasonable burden on it. The court accepted that the SNP might be effective for a least large numbers of blind and visually impaired persons. However, it pointed out that while the SNP was a reasonable step taken to assist the blind and visually impaired, especially in 1988 and 1990 since then great strides had been made in the communication technology available. A telephone call could no longer be deemed as effective as computer-aided synthesizer and navigation tolls. The court interpreted the SNP as a minimum requirement of Congress with the SSA expected to add additional aids as they became available and practical in order to comply with Section This the SSA had not done. However, the SSA was not required by law to take any action that it can demonstrate would result in undue financial and administrative burdens. 19 The evidential burden of showing this was on the SSA. The court was highly critical of the SSA s efforts in this regard. It pointed out that there was no evidence that there was a consideration of the available 13 At At At 28 et seq. A further issue was that the SNP only applied to persons applying for or receiving benefits on the basis of blindness (250,000 persons). However, after the case commenced the SSA agreed to extend it to all 3 million blind and visually impaired persons receiving relevant benefits. 16 At Quoted at 111 of the final judgment. 18 At At 122.

5 resources and that SSA had disregarded the relevant procedure. 20 It had not provided any estimates as to the cost of implementing alternatives, 21 and had not done a realistic assessment of what would really be needed, e.g., no risk assessment had been carried out. 22 The court concluded that The entire defense has been to exaggerate what relief might be ordered and to invent multiple excuses why the alternates cannot be done rather than find one reason why any could be done. 23 The court considered in detail the various alternative forms of communication sought by the plaintiffs. It supported the use of Braille and a CD option. 24 However it rejected the other alternatives sought holding that audio cassettes are passe ; large print was too burdensome ; and that while would be very handy the risk of personal information being stolen was too great. 25 Due process In the alternative, the plaintiffs had advanced a due process argument. They argued that the SSA s approach violated due process under the Fifth Amendment, which prohibits the United States from depriving any person of property without due process. As interpreted by the courts, the due process clause requires that individuals whose property interests are at stake are entitled to notice and an opportunity to be heard. The parties did not agree on the correct standard to be applied but, for the sake of argument, the court was prepared to accept the plaintiffs argument that it was set out in Mathews v. Eldridge. 26 Mathews requires that the following factors be taken into account: 27 First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. The court took the view that notices with general information involved only a low potential deprivation of an interest. 28 However, this was greater for notices concerning suspension or termination of benefits. It took the view that the SSA s procedure of sending notices under 20 At At At At At 125 et seq. 25 At U.S. 319 (1976). The defendants had argued that the applicable standard was to be found in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) US at At 140.

6 the SNP was fair and reliable thereby mitigating any risk of erroneous deprivation. However, in keeping with its earlier discussion of the SSA s failure to show an undue burden, the court found that there was no evidence of a substantial burden. Even assuming the Mathews standard was appropriate, the court concluded that taking the three factors into account, the balance was in favor of finding that due process had been provided. 29 No equal protection argument was advanced in this case. In theory one might argue that a denial of effective access to a service was a denial of equal protection to people with disabilities. 30 However, claims concerning the provision of written notices and information to non-english reading claimants in their own language brought under the equal protection clause of the Federal constitution have consistently been rejected by the courts and it seems likely that a similar approach would be adopted to the provision of alternative forms of communication to people with disabilities. 31 Conclusion The Court ordered that by December 2009, the SSA must provide notice to all recipients and authorized persons shown in its records to be blind or visually impaired: (a) advising of the availability of Braille and the CD option and giving them an opportunity to elect one of the two above alternatives from April 2010 (replacing the existing SNP in such cases); and (b) advising that blind and visually impaired persons are individually entitled to ask defendants to provide any other alternative accommodation. It also ordered a range of ancillary measures including staff training. In response the SSA has set out the detailed procedures which can be requested by individual claimants. 32 The case shows the potential of Section 504 in advancing the position of people with disabilities generally in relation to access to public services. While the court dismissed the more general constitutional due process argument (and probably would have also dismissed any equal protection challenge), the much more specific rules of Section 504 and its implementing regulation provide a more solid basis for challenges to administrative 29 It did, however, point out that extreme individualized instances may occur from time to time in which someone is denied due process because of unique facts and circumstances that cannot be adjudicated on a class-wide basis (at 141).. 30 See the Canadian case of Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624, 1997 CanLII 327 (S.C.C.).in which the Canadian Supreme Court held that a failure to provide for sign language interpretation where this was necessary to ensure equal access to health care was in breach of the equality provisions (s. 15(1)) of the Canadian Charter of Rights. 31 Guerrero v Carleson, 9 Cal.3d 808 (SC Cal. 1973); Kuri v Edelman, 491 F.2d 684 (7 th. Circuit 1974); Soberal- Perez v Heckler, 717 F.2d 36 (2 nd. Circuit 1983). cert. denied, 466 U.S. 929 (1984). 32

7 (in)action particularly where these provisions are interpreted in the dynamic manner exhibited by Judge Alsup in this case See also See L. Pickering Francis & A. Silvers, Debilitating Alexander v. Choate: Meaningful access to health care for people with disabilities, Fordham Urb L.J. XXXV (2008) for other examples of successful litigation involving Section 504.