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Litigating the Right of Clients with Visual Impairments to Access Public Benefits Documents in Alternate Formats

By Greg Bass eyeglasses on a laptop

Clients who receive public benefits and who are blind or seriously visually impaired receive critical eligibility documents in writing on a regular basis, yet they are unable to read them. Persons with visual impairments are often forced to rely on friends, relatives, or complete strangers to read documents to them. This resort is imperfect at best, especially for complex notices or applications that require detailed responses and involve sensitive personal information.

The straightforward solution is for public benefits agencies to convert these documents into alternate formats, such as Braille, electronic data format, audio format, or large font. To secure this access by enforcing the effective communication rights of public benefits applicants and recipients with visual impairments, the National Center for Law and Economic Justice commenced the Rafferty v. Doar litigation, a federal class action under the Americans with Disabilities Act (ADA), filed in the Southern District of New York.

The dilemma of being unable to access written documents because of visual impairment affects significant numbers of people, especially those who are low-income. Cornell University produces “Disability Status Reports” that reflect data from the U.S. Census Bureau’s American Community Survey, which inquires whether a person is blind or has serious difficulty seeing. The prevalence of disability for persons aged 21 to 64 in the United States in 2015 was 10.7 percent, with 2.3 percent of people nationally reporting a visual disability. The 2015 poverty rate of working-age people with disabilities in the United States was 27 percent (compared to a significantly lower poverty rate of 11.6 percent for working-age people without disabilities). Nationwide approximately 1,052,500 persons with a visual disability accounted for fully 29 percent of the population overall with a disability and living in poverty. 

Prelitigation Negotiations

The National Center for Law and Economic Justice began hearing from legal aid advocates in New York City about the chronically widespread problem of lack of access to eligibility documents for clients with visual impairments. We attended local meetings of the New York City chapter of the National Federation of the Blind and learned of stories of repeated lack of access to written agency forms and communications; the lack of access led to interruptions in benefits.

We sought information under the New York Freedom of Information Law from the relevant benefits agencies about their communications policies for persons with visual impairments. The New York City Human Resources Administration administers the Supplemental Nutrition Assistance Program (SNAP) and Medicaid in New York City. The New York State Office of Temporary and Disability Assistance is the lead state agency with responsibility for SNAP and administering the fair-hearing process. The New York State Department of Health administers the Medicaid program. Beyond basic ADA policies, the agencies’ responses to our freedom-of-information requests revealed a lack of any comprehensive protocol or policy to ensure that the relevant agencies give documents in converted formats to clients with visual impairments.

We then approached the three agencies to negotiate informally a resolution to this problem for SNAP and Medicaid applicants and recipients. We quickly discovered that the seemingly straightforward resolution of converting eligibility documents into alternate formats, or supplying effective communication on a systemic basis to applicants and recipients, was easier said than done. The agencies had no plans to develop policies or procedures for converting application forms, instructions, notices, informational materials, fair-hearing materials, or other written documents into accessible formats (such as Braille, large font, or accessible electronic documents) or for recording the information contained in eligibility documents onto audiocassettes or compact discs (CDs), even if such applicants and recipients were known to the agencies to be blind or seriously visually impaired. The agencies lacked protocols or guidelines identifying staff responsible for implementation, processing client requests, or timetables for completion. No agency policy required staff to determine whether SNAP and Medicaid applicants and recipients are visually impaired and need information in an alternate format. Nor did the agencies otherwise attempt to contact applicants and recipients with visual impairments by telephone, email, or other ways to inform them of agency mailings of written SNAP and Medicaid materials.

No agency policy required staff to determine whether SNAP and Medicaid applicants and recipients are visually impaired and need information in an alternate format.

On behalf of clients with visual impairments the National Center for Law and Economic Justice pursued individual claims with the agencies. One person who became a lead plaintiff in the Rafferty litigation cannot read standard print materials as a result of her visual impairment, but she can read large-print materials if she wears glasses with a special magnifying lens over her regular glasses. She can access email through her smart phone, which has a program that converts the text on the screen into speech, and she has an audiotape player to access information on audiocassettes. She received Medicaid benefits and wanted to apply for SNAP. We informed the agencies that she is legally blind, and we requested (1) a SNAP application in large print that she could fill out herself, (2) future Medicaid and SNAP forms in large print, and (3) ongoing Medicaid and SNAP notices and other printed material in either large print, attached to an email that she can access with her smart phone, or on audiotape. We submitted, along with our request, a certificate of legal blindness from the New York State Commission for the Blind. The city Human Resources Administration denied the client’s request because it determined, without explanation, that “the medical documentation we received does not support your request for the Reasonable Accommodation.” The state Office of Temporary and Disability Assistance and the state Department of Health did not reply to the request.

Another Rafferty plaintiff, who receives SNAP and Medicaid, has been blind since shortly after birth. She reads Braille and can access information through audio CDs and audio cassette tapes. Through the National Center for Law and Economic Justice, she informed the city Human Resources Administration that she is blind and asked the agency to provide her with SNAP and Medicaid forms and notices in Braille, audio CD, or audiocassette tape. The agency did not directly respond to the request and informed us instead that the client could recertify SNAP eligibility by automated telephone system, telephone interview, or in person, but the agency did not explain how her eligibility documents would first be delivered to her in an accessible format.

The Rafferty Litigation

After unsuccessful negotiations with the agencies, we filed the Rafferty v. Doar class action litigation in March 2013 in the Southern District of New York, with Drinker, Biddle & Reath LLP as cocounsel. The Rafferty plaintiffs sought to enforce the mandates of the ADA, Section 504 of the Rehabilitation Act of 1973, and related New York state and city laws, each of which requires fundamentally similar communication access.    

The Basic Legal Requirements

Under Title II of the ADA, public benefits agencies have an obligation as “public entities” to refrain from excluding qualified individuals with disabilities from participating in or otherwise denying them the benefits of the services, programs, or activities of the public entity. These entities must also make “reasonable modifications” in policies, practices, or procedures when necessary to avoid discrimination on the basis of disability, unless a fundamental alteration of the nature of the service, program, or activity would demonstrably result.

Public entities must fulfill specific mandates regarding the communication needs of clients with disabilities. Pursuant to U.S. Department of Justice regulations, public entities must take “appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” Public entities must also supply “appropriate auxiliary aids and services where necessary” to ensure effective communication and facilitate equal opportunity to participate in and enjoy the benefits of the public entity’s service, program, or activity. These auxiliary aids and services cover a wide range of formats and technological innovations, including, for example, alternate formats such as audio recordings, Braille, screen reader software, and large-print materials, accessible electronic and information technology, and “other effective methods of making visually delivered materials available to individuals who are blind or have low vision.”

Determining the appropriate auxiliary aid or service, including alternate formats, is an individualized process and will vary with the context in which the communication is taking place, the method of communication used by the individual, and the nature, length, and complexity of the communication involved. The ADA further mandates respect for the individual’s independence. To be “effective,” auxiliary aids and services “must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence” of persons with disabilities. The public entity must further give “primary consideration” to the requests of persons with disabilities.  

Negotiations

The Rafferty litigation centered largely on negotiations directed toward implementing an entirely new system of conversion of agency documents into alternate formats. The plaintiffs encountered several roadblocks during this process.

The Rafferty defendants—the New York City Human Resources Administration, the New York State Office of Temporary and Disability Assistance, and the New York State Department of Health—largely did not contest the merits of the plaintiffs’ claims to effective communication under the ADA, with one exception, Braille. The defendants made two unrelated assertions:  (1) few people are literate in Braille, and (2) it is too expensive to convert documents into Braille. When reminded that Justice Department regulations expressly referenced Braille as an appropriate auxiliary aid and service, the defendants consented to include it as an alternate format.

Braille continued to be an issue, however, with respect to the larger need to design a system of alternate format conversion. The defendants originally contemplated handling this in-house but eventually realized, especially with regard to the technical requirements of Braille conversion, that the task would be too great on an ongoing basis. They decided instead to work through a vendor to be selected through a public contract procurement process. Despite the resulting delay in implementation deadlines, the plaintiffs concurred in order to facilitate the creation of a professional system that would make converted documents routinely available to clients.

The Rafferty Settlement

The parties ultimately achieved a settlement that the federal court approved in October 2015 and whose main provisions became effective on July 1, 2016. The Rafferty settlement is the first of its kind in the nation to obligate a public benefits agency to comply with the effective communication requirements of the ADA by establishing a system of document conversion into alternate formats. The settlement obligates the city and state agencies to supply publications, applications, and individual notices and communications in specified alternate formats, including Braille, large print, audio format, and electronic data format, on simple requests by clients.

The agencies must notify individuals of their right to request documents in alternate formats and give them a checklist to facilitate this process. The agencies must track alternate format conversions and thus relieve clients with disabilities from continually having to reaffirm their requests. Agency staff must receive training on the access requirements of the settlement for clients who are visually impaired.

Specific Settlement Provisions

The Rafferty settlement includes specific mandates for the conversion of benefits eligibility documents into alternate formats.

Plaintiff Class

The court certified a plaintiff class consisting of New York City residents who have visual impairments defined as disabling under federal law, who are current or future applicants for SNAP or Medicaid, and who need written materials in alternate formats for effective communication regarding those benefits. As described below, following court approval of the settlement, the state Office of Temporary and Disability Assistance agreed to extend its terms beyond New York City to all social service districts throughout New York State.

Advocates should note that, even though the plaintiffs brought Rafferty as a class action, equally significant results can be obtained in individually based advocacy. Emphasizing the lack of state agency systems to supply documents in converted formats for clients with visual impairments can prompt needed reform on behalf of both individual plaintiffs and others in similar circumstances.

Alternate Format Conversion 

The settlement requires the state Office of Temporary and Disability Assistance and the state Department of Health to convert upon request SNAP and Medicaid documents for those with visual impairments into four basic types of alternate formats: (1) audio format—audio files containing audio transcriptions of text documents to be used by computers and digital audio players, delivered through electronic transmission over the Internet or on physical media such as compact discs; (2) data format—electronic versions of text documents accessible through the use of assistive screen-reading software, whether delivered through electronic transmission over the Internet or on physical media such as compact discs; (3) large print—hard copy text documents formatted in 18-point font; and (4) Braille.

Documents to Be Converted 

The agencies must convert their ongoing databases of written materials for SNAP and Medicaid applicants and recipients; among such databases are “applications” used by the state and city agencies to apply for or continue to receive SNAP or Medicaid benefits and “publications,” including instructions to applications and related informational materials made available to the public concerning SNAP and Medicaid benefits. Even more critical, the conversion requirement extends to “communications”—the individual written notices the agencies issue to persons concerning their SNAP or Medicaid benefits; such notices include communications related to fair hearings administered by the state Office of Temporary and Disability Assistance.

Distribution of Alternate Format Documents to the Local Districts

As mentioned above, the Office of Temporary and Disability Assistance meets its alternate format conversion obligations through a contracted vendor. The settlement further creates a system of document distribution to the social service districts throughout New York State to make the documents available for client use. The Office of Temporary and Disability Assistance, the city Human Resources Administration, and the state Department of Health must make converted forms available for download from their websites, and the state agencies must convert specified documents into Braille for distribution to the social service districts.

Notice to Clients

The Office of Temporary and Disability Assistance must send to clients notifications either on or attached to specified applications (1) that they may request documents from their local social service districts in alternate formats if they are visually impaired and (2) how they can learn about and request available formats. The Office of Temporary and Disability Assistance and the Department of Health must also include similar notices on all communications issued through the “Client Notice System.” Notices in Braille will be sent to persons who assert that none of the other alternate formats is equally effective for them.

Document Request Process

The process is streamlined. The agencies supply checklists on forms that allow clients to state whether they would like to receive written notices in alternate formats and to check the type of format they would prefer.

Returning Documents to the Local District

The Rafferty settlement does not allow clients to return completed applications or similar documents in alternate formats. Applications must be completed and returned in written form.   

Tracking Requests

The Office of Temporary and Disability Assistance created a “disability accommodation indicator” field in the computerized welfare management system and the Office of Administrative Hearings’ Fair Hearings Information System to record clients’ requested alternate formats. The Office of Temporary and Disability Assistance and the New York City Human Resources Administration subsequently made the disability accommodation indicator field operational and capable of being populated by eligibility workers.

Accessibility of Human Resources Administration Website

In three reengineering phases, the New York City Human Resources Administration agreed to deliver a website portal that will follow recognized accessibility standards for persons with visual impairments under the international Web Content Accessibility Guidelines 2.0, with respect to Internet-based SNAP applications, recertifications, and communications. Such reengineering will facilitate increasingly complex online tasks, including submitting applications, periodic reporting, accessing account balances and status information, and uploading supporting eligibility documents.

Making Individualized Communications Available in Alternate Formats

The Office of Temporary and Disability Assistance and the Department of Health must make specified individual communications—including hearing requests and client notices issued through the Client Notice System and “emedNY”—available in large print and data and audio format for mailing to clients upon request. Braille is treated separately due to unique conversion features. With respect to any publication and communication that the two agencies will be making available in large print and data and audio format, both agencies must give upon request these documents in Braille to all clients who assert that the other formats are not equally effective. The New York City Human Resources Administration must make available in Braille all its relevant SNAP and Medicaid documents.   

Staff Training

The agencies must inform the social service districts about the Rafferty settlement terms and related policy implementation and must develop and deliver related staff training.

Statewide Application of the Settlement

Following court approval, the Office of Temporary and Disability Assistance informed social service districts throughout the state about required actions on the provision of forms and notices in alternate formats and the use of the disability accommodation indicator to track requests. More important, the agency extended the reach of the Rafferty settlement by applying its requirements to all social service districts, not just New York City, and by expanding the alternate format mandates beyond SNAP and Medicaid to the public assistance and home energy assistance programs.    

The agency further reinforced the obligation to assist clients in the alternate format process by  (1) requiring social service districts to make reasonable accommodations when needed to help clients complete and submit applications in nonalternate formats; (2) mandating that a client can make a request by checking the appropriate box on applications or otherwise in writing, as well as verbally, to ensure that the process is not burdensome; (3) specifying that clients must not be required to submit medical documentation of visual impairments or otherwise be subject to individual worker discretion; and (4) directing workers to document the request in the client case record.

Impact of the Settlement

The settlement requires the city and state agencies to send to the plaintiffs’ counsel quarterly reports that list the numbers of individuals making alternate format requests as well as the types of formats they choose. Such reporting demonstrates the significant impact of the Rafferty settlement. As of July 2017, the Office of Temporary and Disability Assistance has reported that (1) 2,579 SNAP clients have requested and received eligibility documents converted into one of the four alternate formats and (2) 508 clients have requested and received administrative fair hearing documents converted into one of the alternate formats. The Department of Health has reported that 2,339 Medicaid clients have requested and received eligibility documents converted into one of the four alternate formats.

These data represent only New York City applicants and recipients. As stated above, the Rafferty settlement requirements have extended throughout the state, and, for more and more clients with visual impairments, this will lead to being able to access eligibility documents through alternate format conversion.

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The settlement in Rafferty v. Doar offers a blueprint for advocates to assist clients who are blind or seriously visually impaired in accessing and maintaining public benefits. State agencies throughout the country lack adequate policies and procedures to ensure access to eligibility documents for applicants and recipients who are blind or seriously visually impaired.

As part of our commitment to enforcing the right of low-income persons to be free of discrimination based on disability, the National Center for Law and Economic Justice is available to assist advocates in ensuring that the mandate of effective communication is met, along with other rights of access to benefits, programs, and services. We are available to work with advocates in other states on advocacy—whether administrative advocacy or litigation—to achieve results similar to what we achieved in Rafferty. We work with legal services programs, public interest organizations, and private law firms in cocounseling, consulting, and other capacities, in litigation and policy advocacy addressing a wide range of access issues, including public benefits, employment, civil rights, housing, and health, for low-income persons and communities.

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