ACB v. SSA

INTRODUCTION

1. Over one hundred thousand blind and visually impaired Americans rely on benefits from the Social Security Administration (“SSA”) to meet their basic needs. They are among the 48 million Americans who receive benefits from the Old Age, Survivors and Disability Insurance (“OASDI”) program based on an earnings history, and the seven million Americans who receive Supplemental Security Income (“SSI”) based on financial need and either age, blindness, or other disabilities. Despite the obvious and critical importance of these benefits, SSA regularly communicates with blind and visually impaired persons in standard print format, which they cannot read. SSA regularly suspends the benefits of blind and visually impaired recipients for failing to comply with requirements set forth in standard print documents that they cannot read and for failing to return printed forms that they cannot complete. As a result, many have suffered extreme financial and personal hardship.

2. Section 504 of the Rehabilitation Act of 1973 and federal regulations require SSA to communicate effectively with its applicants, beneficiaries, and recipients. SSA must reasonably accommodate blind and visually impaired persons to ensure that they have an equal opportunity to participate in and enjoy the benefits of SSA programs. Such reasonable accommodations for persons with impaired vision would ordinarily include readers, Brailled materials, audio recordings, electronic mail, large print format and computer disks. (As an example of a document in an accessible format for blind and visually impaired individuals who read Braille, attached as Exhibit 1 is a Braille version of this complaint.) Over three decades after the enactment of the Rehabilitation Act, however, SSA refuses to communicate with blind and visually impaired persons in these or any other accessible formats. Such conduct bars blind and visually impaired persons from participating equally in SSA programs and deprives them of critical benefits without meaningful notice in violation of Section 504 of the Rehabilitation Act and the Due Process Clause of the Fifth Amendment to the United States Constitution.
    

JURISDICTION AND VENUE

1. This Court has jurisdiction over this action pursuant to 28 U.S.C.  1331 and 1361. Plaintiffs seek a declaration of rights pursuant to the Declaratory Judgment Act, 28 U.S.C.  2201, 2202.
    
2. Plaintiffs Marvelena Quesada, Arlene Doherty, Alice Marjorie Donovan, and George P. Smith reside within this District. Venue is proper pursuant to 28 U.S.C. 1391(b) in the Northern District of California because a substantial part of the events giving rise to Plaintiffs’ claims occurred in this District and because Defendants maintain several offices and operate in this District.
    

PARTIES

1. Plaintiff American Council of the Blind (“ACB”) is a national membership organization of blind and visually impaired persons organized as a non-profit corporation under the laws of the District of Columbia. ACB brings this action on behalf of its blind and visually impaired members who are suffering deprivations of their rights and protected interests as a result of Defendants’ conduct and policies. ACB has approximately eighteen thousand members nationwide, many of whom are blind or visually impaired.
    

2. Plaintiff Tammy Renee Cooper is a blind, 35 year old recipient of SSI and beneficiary of Social Security Disability Insurance (“SSDI”), which is part of the OASDI program, based on blindness. She resides in Los Angeles, California.

3. Plaintiff Scarlett Miles is a visually impaired, 53 year old recipient of SSI based on blindness. She resides in Eagle Point, Oregon.

4. Plaintiff Marvelena Quesada is a blind, 31 year old recipient of SSI and beneficiary of SSDI based on blindness. She resides in San Francisco, California.

5. Plaintiff Arlene Doherty is a blind, 70 year old beneficiary of Social Security retirement insurance benefits, which are part of the OASDI program, based on age and a prior recipient of SSI based on blindness. She resides in San Francisco, California.

6. Plaintiff Alice Marjorie Donovan is a blind, 43 year old recipient of SSI based on blindness. She resides in Burlingame, California.

7. Plaintiff Billie Jean Keith is a visually impaired, 66 year old beneficiary of Social Security retirement insurance benefits based on age and a prior recipient of SSI based on blindness. She resides in Arlington, Virginia.

8. Plaintiff George P. Smith is a blind, 62 year old recipient of SSI and a beneficiary of SSDI benefits based on blindness residing in Oakland, California.

9. Defendant Jo Anne B. Barnhart is the Commissioner of SSA. As such, she is charged by federal law with administering and supervising all benefits programs administered by SSA nationwide, including SSI, OASDI, and Special Veterans Benefits under Title VIII of the Social Security Act. She is also responsible for taking new Medicare applications and for determining eligibility for the low income subsidy under the Medicare Part D prescription drug benefit. She is sued in her capacity as the official charged with performing the statutory and regulatory duties of SSA and with supervisory responsibility over SSA and its divisions, agents, employees and representatives.

10. Defendant Social Security Administration administers and supervises all SSA benefits programs nationwide, including SSI, OASDI, and Special Veterans Benefits under Title VIII of the Social Security Act, as well as taking new Medicare applications and for determining eligibility for the low income subsidy under the Medicare Part D prescription drug benefit.

11. All divisions, agents, employees and representatives of Defendants were acting within the scope of their agency or employment while making any of the statements and committing any of the acts alleged herein. Defendants and any of their respective divisions, agents, employees and representatives each acted as the agent or representative of each other in committing any of the acts or making any of the statements alleged herein.
     

CLASS ACTION ALLEGATIONS

1. Plaintiffs ACB, Tammy Renee Cooper, Scarlett Miles, Marvelena Quesada, Arlene Doherty, Alice Marjorie Donovan, Billie Jean Keith and George P. Smith (“Plaintiffs”) bring this complaint on behalf of themselves and as representatives of a class of similarly situated persons. The class consists of all current and future applicants, beneficiaries, recipients, and representative payees of SSA programs who have visual impairments that substantially limit the major life activity of seeing and require accessible formats to ensure access to the information that SSA provides to applicants, beneficiaries, and recipients of its programs.

2. Plaintiffs are informed and believe and on that basis allege that the class consists of well over one hundred thousand persons and is so numerous that joinder of all class members is impracticable.
    

3. There are questions of law and fact common to all class members that predominate over questions only affecting individual class members, including, among others: (a) whether Defendants’ refusal to offer or provide class members with communications in accessible formats bars their equal participation in SSA benefits programs in violation of Section 504 of the Rehabilitation Act of 1973; and (b) whether Defendants’ policy of reducing or terminating the class members’ SSA benefits solely upon standard print notices violates the Due Process Clause of the Fifth Amendment to the Constitution.

4. Plaintiffs’ claims are typical of the claims of all class members, they arise from the same course of conduct by Defendants, and the relief sought is common to all class members. In addition, Defendants have acted and continue to act on grounds generally applicable to all class members, thereby making relief appropriate to the class as a whole.

5. Plaintiffs will fairly and adequately protect the interests of the class members.
    

STATEMENT OF FACTS

1. In providing benefits to millions of indigent and disabled Americans, SSA regularly communicates complex information to applicants, beneficiaries, and recipients of its programs. SSA regularly sends blind persons standard print notices about their individual benefits. These notices regularly include calculations of awards, suspensions and terminations of their benefits, printed forms to complete, appointments to meet with SSA representatives, requests for re-certification of their eligibility, and deadlines for responding to SSA requests.

2. SSA only provides such individual notices in standard print format. Despite repeated requests and complaints, SSA refuses to provide individual notices in formats that are accessible to blind persons, such as Braille, large print, electronic mail and audiotape recording.
    

3. Standard printed notices about individual benefits are difficult to comprehend, analyze, and recall based on a single reading. (See, for example, Exhibits 2 and 3.) They are even more difficult to comprehend based on hearing the information read aloud a single time. Such notices often establish requirements and rapid deadlines that blind persons cannot meet unless they are provided in accessible format. Such notices typically state that SSA will suspend benefits if the beneficiary or recipient does not respond within a short time frame. (See, for example, Exhibit 4.) In particular, written notice of suspension of SSI benefits requires recipients and beneficiaries to file an appeal within ten days in order for their SSI benefits to continue pending determination on appeal. Other written notices require blind persons to provide financial and medical records, which blind persons cannot gather quickly or without sighted assistance, which can be quite expensive. Because blind persons often cannot comply with these requirements and deadlines without having the requests in an accessible format, their SSA benefits are suspended or terminated for failure to comply. This conduct on the part of SSA deprives blind persons of equal access to essential information they need to maintain their benefits.

4. SSA also provides more general information in its benefits publications to applicants, beneficiaries, and recipients about its programs, including: discussions of applicable rules, procedures, and conditions on eligibility for benefits; procedures and rights pertaining to appealing adverse determinations; and the duties imposed upon beneficiaries and recipients.
    

5. While SSA provides a select list of publications about its programs in accessible formats, SSA has not adequately publicized the availability of such information or trained its staff in field offices or at the SSA 800 toll-free telephone number to ensure that blind persons are informed of its availability. Indeed, many blind persons who request such information are told that it does not exist. Callers who do receive program information must know to ask for precise publication titles or get additional SSA contact numbers – information that is not readily obtainable from SSA. This conduct deprives blind persons of equal access to essential program information they need to maintain their benefits.
    
6. In 2002, SSA advised in Program Operations Manual System (“POMS”), an operations manual designed to instruct SSA personnel on agency policy, that it would record the preference of blind beneficiaries to receive benefits information in Braille, but that it could not actually provide such information in Braille at that time. In POMS DI 11005.070 B. 2. e., SSA advised that blind beneficiaries could request (but not receive) benefits information to be provided in Braille. But this provision was eliminated earlier this year. The latest POMS DI 11005.070 B. 2. e. reads: “Braille notices are no longer available.” Because it does not provide Braille, SSA recently advised in EM-050209, an internal SSA “policy instruction,” that beneficiaries who elect to receive written notices in Braille should nevertheless be provided standard written notice by U.S. mail.
        
7. The POMS list two “options” for blind persons who request benefits information in an accessible format: a “supplemental telephone call within five working days after the initial notice is mailed”; or a standard print notice sent by certified U.S. mail. A person who requests supplemental telephone calls will only get some notices read over the telephone. According to POMS NL 00603.030, SSA does not offer to read all notices sent, only “vital” notices pertaining to “decisions, determinations or proposed actions” that affect benefits. SSA policy does not require other communications to be read over the telephone, such as notices of appointments with SSA, requests for documents, notices pertaining to consultative examinations and other actions necessary for re-determination of eligibility. Neither option provides effective communication to blind persons.
    
8. A telephone call to read only certain notices sent cannot fully or effectively communicate the complex information SSA routinely provides its beneficiaries and recipients. A single telephone call is inferior to reading information for oneself. The standard print notices contain complex calculations and rules that Plaintiffs must review privately, repeatedly, and at their own pace. Sometimes the notices also contain information of a personal nature. In addition, SSA consistently fails to inform blind persons of the supplemental telephone call option, fails to clarify that this option is limited to certain kinds of notices, and fails to provide a supplemental telephone call even to the blind persons who actually request one.
    
9. A standard print notice sent by certified mail does not provide effective communication. Blind persons cannot read standard written documents, regardless of how they arrive in the mail. Certified U.S. mail places a greater burden on blind persons than regular U.S. mail because blind persons will be forced to travel to the post office to sign for a certified letter if they miss delivery, and travel is typically difficult and exhausting for blind persons.
    
10. SSA has a policy of suspending blind persons’ benefits without providing a supplemental telephone call. In POMS NL 00603.040, SSA directs its representatives: “Do not cancel a proposed action solely because the advance notice was not read to the claimant/beneficiary. If you are unable to reach the individual to read a due process notice that was mailed, complete the proposed action as usual.” (Emphasis added.) Although it is obvious that blind persons cannot read standard written documents, the POMS states that “the due process requirement is met because a notice of proposed action was mailed to the claimant.” In POMS NL 00603.050, SSA directs its representatives to make only three attempts by telephone, in a span of only seven days following the date of the standard written notice, and further, “if the notice refers to a pamphlet, read only the notice over the telephone. If assistance is required with the pamphlet, advise the beneficiary to recontact the [field office] about the pamphlet.”
     

TAMMY RENEE COOPER

1. Ms. Cooper receives SSI and SSDI on the basis of blindness and financial need. In 1988, Ms. Cooper began receiving benefits from SSA on the basis of blindness. She has been totally blind since 1988. With few exceptions, SSA has communicated with Ms. Cooper in standard print format, which she cannot read. SSA has not informed Ms. Cooper of her right to a reasonable accommodation of her disability or inquired about her preference for an accessible format for written communications.

2. Ms. Cooper has repeatedly requested SSA to accommodate her disability by providing audio tape recordings of the contents of written information sent to her. SSA denied her requests for audio tape recordings of written communications. As a result, Ms. Cooper has failed to meet deadlines and other requirements established in written communications from SSA because she cannot read them.
    

3. In 2000, an SSA representative called Ms. Cooper by telephone and offered to read a written communication from SSA. In 2001, she received another such telephone call from an SSA representative. Ms. Cooper relied on telephone calls from SSA representatives to notify her of any communications from SSA and to read the contents of such communications to her.

4. Ms. Cooper did not receive another such telephone call. She reasonably assumed that SSA had not sent any further written communications to her because she was told that she would receive a telephone call from an SSA representative if any such communications were sent.
    

5. In September of 2003, SSA suspended her SSI and SSDI benefits. Ms. Cooper only discovered that SSA had suspended her benefits when her bank account balance was lower than expected. Immediately after she realized her benefits were suspended, Ms. Cooper contacted SSA and was told by an SSA representative that SSA suspended her benefits because she had received more in benefits than she was entitled to receive. An SSA representative stated that SSA mailed her a written notice of the suspension and that her benefits were suspended when she failed to respond.
      
6. Ms. Cooper informed the SSA representative that she did not receive any such communication and that she could not read written communications because she was blind. She repeated her request to receive communications from SSA by audio tape recording. Her request was refused.
    

7. Subsequently Ms. Cooper’s attorney obtained a copy of the suspension notice from SSA. The notice, dated August 5, 2003, stated, “We are stopping the checks because we need correct information about your name, address or bank account.” (Exhibit 5.) It made no mention of her having received more benefits than she was entitled to receive. The notice also stated that if she appealed within ten days she could keep getting the same check. Had she been able to read the notice she would have promptly appealed and her benefits would have continued uninterrupted.

8. Instead, Ms. Cooper suffered severe financial hardship for the ensuing two months. Without SSI and SSDI benefits, Ms. Cooper could not buy basic necessities, including groceries or hygiene products. As a result, Ms. Cooper was forced to borrow money from others to meet her basic needs and those of her young son.
    

9. Ms. Cooper later did receive a Notice of Overpayment dated September 30, 2003 indicating that she had in fact been paid more than she was entitled to receive and that the amount of the overpayment would be subtracted from future SSI grants. The notice, in addition to providing information on how to appeal, also contained information on how to seek a waiver of recovery of the overpayment if she agreed there was an overpayment but contended she was not at fault in creating the overpayment. (Exhibit 6.) Ms. Cooper was not able to read the notice since it was in standard print format. However, at that point she had an attorney who was successful in obtaining a waiver of recovery of the overpayment.

10. In February of 2004, pursuant to 45 C.F.R.  85.61, Ms. Cooper filed a complaint with the SSA Office of the General Counsel on behalf of herself and all other similarly situated persons. Her complaint alleged that SSA had discriminated against her and all similarly situated persons in violation of Section 504 of the Rehabilitation Act of 1973. Her complaint requested, among other things, an order requiring SSA to communicate effectively with her and all similarly situated persons in a format that is accessible to blind persons and visually impaired persons, including audio tape recordings.

11. On June 4, 2004, SSA Region X Office of the General Counsel sent a letter to Ms. Cooper stating that SSA had not discriminated against Ms. Cooper and denying her request for audio tape recordings of standard print communications.
     

12. On July 12, 2004, through her attorney, Ms. Cooper filed a timely request for reconsideration to the SSA Office of the General Counsel. SSA failed to respond to Ms. Cooper’s appeal and failed to notify Ms. Cooper of the results of her appeal within 60 days.

13. Ms. Cooper has exhausted her administrative remedies on behalf of herself and all similarly situated persons pursuant to the procedures outlined by governing Section 504 regulations. Ms. Cooper’s administrative complaint was brought expressly on behalf of herself and all similarly situated blind persons who do not receive effective communication from SSA in an accessible format. Ms. Cooper’s administrative complaint also provided Defendants an opportunity to cure the violation, as to her and all similarly situated persons. Defendants rejected Ms. Cooper’s administrative complaint and failed to respond to her request for reconsideration. Defendants’ conduct with respect to Ms. Cooper’s complaint demonstrates that the administrative complaint process is futile and will not provide relief to Ms. Cooper and all similarly situated persons.

14. Most recently, in September 2005 Ms. Cooper received a notice from SSA, explaining the change in her benefits associated with her move from Oregon to California, in standard print format and, for the first time, on audio cassette tape as well. SSA has not provided any assurances to Ms. Cooper that it will continue to provide notices in an accessible format. She later received other notices from SSA only in standard print format.

15. SSA continues to deny Ms. Cooper an equal opportunity to participate in its programs by communicating with her only in standard print format, except for just one September 2005 notice.

SCARLETT MILES

1. Ms. Miles receives SSI on the basis of blindness and financial need. She began receiving benefits when she was a teenager. Ms. Miles has been visually impaired from a young age and is now blind. With few exceptions, SSA has communicated with Ms. Miles only in standard print format, which she cannot read. SSA has not informed Ms. Miles of her right to reasonable accommodation or inquired about her preference for an accessible format for written communications.

2. Ms. Miles has repeatedly requested SSA to accommodate her disability by providing her audio tape recordings of written communications or the contents of such communications by electronic mail, which a computer software program can read aloud to her repeatedly and as often as needed. Ms. Miles has repeatedly requested SSA representatives contact her by telephone when SSA mails a written communication. SSA refused her requests for communications in an accessible format. As a result, Ms. Miles has failed to comply with deadlines and other requirements established in written communications from SSA because she cannot read them.
    

3. In mid-2004, Ms. Miles received a written form from SSA that she could not read or complete. She returned the form to SSA and wrote on it that she was blind and needed to receive communications in an accessible format. Several months later, SSA sent her the same written form. She returned it and again wrote that she was blind and needed to receive communications in an accessible format. Several months later, in early 2005, SSA sent her the same written form a third time. Ms. Miles called the SSA 800 telephone number for assistance. An SSA representative scheduled a telephone appointment for her local SSA office to assist her in completing the written form.
    
4. Shortly thereafter, an SSA representative from a local SSA office left a voice message for Ms. Miles in response to her request for assistance. The SSA representative stated:
   “I’m a little confused why you wouldn’t have a family or friend help you complete the questionnaire . . . Having a phone appointment for something if you needed assistance seems kind of silly because you can get a friend or relative to help you or a neighbor. If you wanted to come in and have us complete this, you know that would be your choice, but I don’t see any need for you to have this appointment at all.”
    
5. Ms. Miles telephoned the SSA representative and stated that she did not have any family or friends. Ms. Miles told the SSA representative that she could not read the form. The SSA representative stated that SSA did not have staff to assist Ms. Miles to fill out the form and suggested that “anyone” could fill out the form for Ms. Miles because it was so “simple.” Ms. Miles responded that she did not want to disclose her Social Security number to others because she does not have a trusted friend or family member on whom she can rely. For the third time, Ms. Miles returned the form and wrote on the document that she could not read it because she is blind.
    

6. In mid-2005, Ms. Miles received the same written form in standard print format for the fourth time. The form stated it was a “FINAL REQUEST” and that Ms. Miles’ SSI benefits would be terminated if she did not complete and return the form within 10 days. But Ms. Miles could not read the form and therefore could not respond within the allotted time. On this occasion Ms. Miles was able to secure the assistance of an attorney who provided her with a copy of the SSA notice in an accessible format. Ms. Miles was then able to respond to SSA, albeit several weeks late, and was assured by an SSA representative that her SSI benefits would continue. As a result of SSA not communicating with her in accessible format, Ms. Miles has suffered and continues to suffer emotional distress for fear that her benefits will be suspended, which would be disastrous for her since she depends entirely on SSI for her livelihood.

7. SSA continues to deny Ms. Miles an equal opportunity to participate in its programs by communicating with her only in standard print format.

MARVELENA QUESADA

1. Ms. Quesada receives SSI on the basis of blindness and financial need and SSDI on the basis of blindness. On or about 1992 Ms. Quesada began receiving SSI benefits from SSA, and on or about 2004 Ms. Quesada began receiving SSDI benefits from SSA, on the basis of blindness. Ms. Quesada has been blind from birth. With few exceptions, SSA has communicated with Ms. Quesada solely in standard print format, which she cannot read. SSA has not informed Ms. Quesada of her right to reasonable accommodation or inquired about her preference for an accessible format for written communications.
    

2. Ms. Quesada has repeatedly requested SSA by telephone to accommodate her disability by providing written communications in Braille, by electronic mail or computer diskette. SSA refused her requests for communications in an accessible format. Ms. Quesada has also requested information in accessible format about the rules and procedures governing SSA benefits programs, including SSI. Because she did not receive information about her individual benefits and rules governing SSA benefits programs in accessible format, Ms. Quesada has been unable to comply with program requirements.

3. In 2003, SSA suspended Ms. Quesada’s SSI benefits. In 2003, Ms. Quesada received a written communication from SSA that she could not read. The document established an appointment at an SSA office that Ms. Quesada was required to attend and described documents that she was required to provide. Because she could not read the document, Ms. Quesada did not provide the requested documents or attend the appointment. Ms. Quesada called an SSA claims representative and requested that all further communications be provided to her in Braille because she is blind and cannot read documents written in standard print format. Her request was refused. An SSA representative stated that SSA does not and cannot provide Braille.

4. Ms. Quesada suffered severe financial hardship for several months. Without SSI benefits, Ms. Quesada could not buy basic necessities, including groceries. Ms. Quesada borrowed money and purchased necessities on credit. She accumulated a significant amount of debt that was difficult to repay. She made arrangements through a credit counseling service to resolve her outstanding debt problems.

5. SSA continues to deny Ms. Quesada an equal opportunity to participate in its programs by communicating with her only in standard print format.
    

ARLENE DOHERTY

58.Ms. Doherty receives Social Security retirement insurance benefits on the basis of age. On or about 1970, Ms. Doherty began receiving benefits on the basis of blindness from a state benefits program that was replaced by SSI in 1974. She received SSI on the basis of blindness and later began to receive Social Security retirement insurance benefits on the basis of age when she turned 65. With few exceptions, SSA has communicated with Ms. Doherty solely in standard print format, which she cannot read. SSA has not informed Ms. Doherty of her right to reasonable accommodation or inquired about her preference for an accessible format for written communications.
 
59. Ms. Doherty has repeatedly requested SSA to accommodate her disability by telephoning her to read written communications aloud to her. SSA refused her requests for communications in accessible format. SSA failed to accommodate Ms. Doherty and continued to send her communications in standard print format only. As a result, Ms. Doherty has failed to meet deadlines and other requirements established in written communications from SSA because she cannot read them.

1. On occasion, one time per year for several years during the late 1990’s, SSA representatives contacted Ms. Doherty by telephone and read the contents of written communications from SSA to her. Ms. Doherty has not received any further telephone calls from an SSA representative.
    
2. Ms. Doherty has relied on sighted persons to read written communications from SSA to her. Ms. Doherty must travel approximately an hour to meet a sighted reader once a week and bring her mail for the week along with her. Because she is blind, Ms. Doherty sometimes misplaces or leaves important mail behind, the contents of which are not read aloud to her. On occasion, the sighted reader on whom she relies, who is 84 years old, has missed their appointments. In that circumstance, Ms. Doherty must wait two weeks or more before she hears the contents of any written communications.
    
3. In 2003, Ms. Doherty received a series of standard print notices from SSA that she could not read. The written notices stated that her SSI benefits were suspended because she had excess resources. The written notices also stated that she was required to repay the SSI benefits she received while she had excess resources. Because she could not read the written notices from SSA, she did not comprehend them. She erroneously believed that she was obligated to repay SSA beginning in 2004 and ending in 2020 and that she was ineligible to receive SSI benefits until after she had fully repaid SSA in 2020. In fact, she was immediately eligible to receive SSI again because she no longer had excess resources. Ms. Doherty could not understand the content of the written notices because she could not read them and was forced to rely on a sighted reader.
    
4. As a result, Ms. Doherty has not received SSI for over a year and was rendered destitute. Unable to survive on $371 a month in Social Security benefits, she borrowed money from her family members to make ends meet. Eventually, Ms. Doherty decided out of desperation to take out a “reverse mortgage” on her home, thereby depleting the equity she had worked so hard to build up over the years.
    
5. SSA continues to deny Ms. Doherty an equal opportunity to participate in its programs by communicating with her only in standard print format.
    

ALICE MARJORIE DONOVAN

65.Ms. Donovan receives SSI benefits on the basis of blindness and financial need. When she was a child, she began receiving benefits on the basis of disability from a state benefits program that was replaced by SSA in 1974. Ms. Donovan has been blind from birth. With few exceptions, SSA has communicated with Ms. Donovan only in standard print format, which she cannot read. SSA has not informed Ms. Donovan of her right to reasonable accommodation or inquired about her preference for an accessible format for written communications.
 
66. Ms. Donovan has repeatedly requested SSA to accommodate her disability by providing written notices in Braille, by electronic mail, or on a computer diskette. SSA refused her repeated requests for communications in accessible format. As a result, Ms. Donovan has failed to meet deadlines and other requirements established in written communications from SSA and adverse actions have been taken by SSA to suspend her SSI benefits.
 
67. In May and June 2003, SSA sent Ms. Donovan standard print notices informing her that SSI payments would be changed because she had excess resources. In June 2003 Ms. Donovan requested reconsideration, asking that her SSI payments be reinstated, explaining the bases for the apparently excessive balance in her bank account, and reiterating her request that SSA communicate with her in accessible format.

1. In 2004, on two occasions, an SSA representative telephoned Ms. Donovan and offered to read the contents of a standard print communication that SSA had sent to her by mail. Ms. Donovan came to rely on telephone calls from SSA to inform her of communications about her benefits, but SSA still sent written communications in standard print format without also providing her a telephone call. Accordingly, Ms. Donovan is forced to rely on a sighted reader to ensure that she does not miss written communications from SSA about her benefits.
    
2. In September of 2004, Ms. Donovan received a standard print notice that SSA proposed to suspend her SSI benefits effective October 1, 2004 because she had excess resources. A sighted reader, available to Ms. Donovan on an irregular basis, read her the contents of the letter. But Ms. Donovan could not understand why SSA was suspending her SSI benefits because she could not read the letter for herself. Ms. Donovan also did not have access to information about the rules and requirements governing SSI benefits. Ms. Donovan could not recall specific details contained in the notice because she did not have an accessible copy to which she could refer.
    
3. In September of 2004, a sighted reader wrote a letter to SSA on Ms. Donovan’s behalf requesting reconsideration and that her SSI benefits continue until her request was resolved. On September 22, 2004, a sighted reader wrote another letter to SSA on her behalf requesting “Braille materials and Braille copies of regulations” and “copies of SSA regulations which may clarify what a resource is, how much an individual can have in resources, and regulations regarding Blindness Related Work Expenses and what can be counted against work income.” SSA has not responded to her request for accessible program information and materials. In addition, because SSA refused to communicate with her in an accessible format, Ms. Donovan requested that SSA provide her information about how to file an administrative discrimination complaint with SSA. SSA also failed to respond to that request, and, as a result, Ms. Donovan has been unable to file an administrative complaint.
    
4. SSA sent more standard print letters to Ms. Donovan in September, October and November of 2004, demanding repayment of thousands of dollars in SSI benefits. On September 27, 2004, SSA sent Ms. Donovan a letter stating that her SSI benefits would be suspended effective November 2004. In November of 2004, checks written against Ms. Donovan’s account were returned for insufficient funds. Ms. Donovan contacted her bank to inquire as to why her account had insufficient funds and learned that SSA had terminated her SSI benefits, in spite of her requests for reconsideration and continuation of her benefits until her request was resolved. She telephoned a local SSA office, and an SSA representative informed her that her SSI benefits had been suspended in October of 2004.
    
5. Ms. Donovan suffered financial hardship for two months. Without SSI benefits, Ms. Donovan had difficulty meeting her expenses. In December of 2004, Ms. Donovan contacted an SSA representative who finally arranged to restore her SSI benefits until resolution of her request for reconsideration, including the months during which her benefits were suspended.
    
6. In June 2005, SSA sent a standard print letter reducing Ms. Donovan’s SSI benefits again, effective July 1, 2005. On several occasions, Ms. Donovan called SSA to request an explanation because she could not read the notice or understand it merely by having it read aloud. She also wrote to SSA, with the help of a sighted reader, asking that no amounts be withheld from her SSI payments while she prepared her response and requesting documents in accessible format, such as Braille, to accommodate her blindness. To date, she has not received a response.

7. Most recently, an SSA representative telephoned Ms. Donovan on September 13, 2005 to read her a letter, dated that same day, in response to her reconsideration request filed June 18, 2003 – more than two years earlier. As she requested during the September 13, 2005 telephone call, SSA sent Ms. Donovan an electronic copy of that letter by e-mail on September 14, 2005. Noting that reconsideration had been filed on June 18, 2003, the letter stated that based on information Ms. Donovan provided on November 29, 2004 SSA had determined that the total amount of overpayment of SSI had been recalculated and decreased. Ms. Donovan responded electronically by e-mail dated October 15, 2005 again requesting reconsideration or appeal for all alleged overpayments of SSI benefits to her. She also acknowledged that for the first time, after about seven years of requests, SSA had communicated with her via e-mail, a format that is accessible to her as a blind person.
     

8. SSA continues to deny Ms. Donovan an equal opportunity to participate in its programs by communicating with her until October 14, 2005 only in standard print format, which she cannot read. Even now that she has received e-mail communications from SSA, based on her years of dealing with SSA she cannot feel certain that SSA will consistently communicate with her in a format that is accessible to her. SSA has not provided Ms. Donovan any assurances that it will continue to provide notices to her in an accessible format.

BILLIE JEAN KEITH

76.Ms. Keith receives Social Security retirement insurance benefits on the basis of age. Ms. Keith has been visually impaired since the age of nine, but assisted by an adaptive technology that enlarges print, she can slowly read a limited amount of enlarged print. In 1982, Ms. Keith began receiving SSDI on the basis of blindness. SSA has communicated with Ms. Keith solely in standard print format, which she cannot read. SSA has not informed Ms. Keith of her right to reasonable accommodation or inquired about her preference for an accessible format for standard print communications.
 
77. Ms. Keith has repeatedly requested SSA to accommodate her disability by providing standard print communications in large print. SSA refused her request for communications in an accessible format that she can read.
 
78. In 1994, pursuant to 45 C.F.R.  85.61, Ms. Keith filed an administrative complaint against SSA with the Department of Health and Human Services. Her complaint alleged that SSA discriminated against her on the basis of her disability by refusing to provide her with written communications in large print. In September of 1997, SSA sent a standard print communication to Ms. Keith stating that SSA had not discriminated against Ms. Keith by failing to provide written communications in large print. Ms. Keith could not read the “no discrimination” letter because it was not provided in large print. Ms. Keith is unable to rely on her husband to read standard print documents to her because he is also blind.
 
79. Beginning in 2000, SSA annually sends Ms. Keith a standard print letter stating the amount of Social Security retirement insurance benefits she will receive. Although Ms. Keith believed her benefit should have increased, she could not gather enough information to challenge the determination of her benefits because she was unable to read the standard print letter. In addition, the letter had perforated edges that must be torn carefully and according to instructions on the letter to avoid tearing the text. Because she is visually impaired, Ms. Keith could not properly open the letter and tore the text of the letter. As a result, even with her adapative technology that enlarges standard print text, she could not read the letter and gather sufficient information to challenge SSA’s determination. 
80.SSA continues to deny Ms. Keith an equal opportunity to participate in its programs by communicating with her only in standard print format.
 

GEORGE P. SMITH

1. Mr. Smith receives SSI and SSDI on the basis of blindness. He first qualified for benefits under California’s program of Aid to the Aged, Blind and Disabled (AABD) program when he was a child and was grandfathered in to SSI when the SSI program began in 1974. Ever since then, with few exceptions, SSA has communicated with Mr. Smith solely in standard print format, which he cannot read. SSA has not informed Mr. Smith of his right to reasonable accommodation or inquired about his preference for an accessible format for standard print communications.
    
2. Mr. Smith has repeatedly requested the SSA to provide him with SSI benefits publications in Braille. He does not use a computer and has no means of gaining access to the Internet or the SSA public website. Over the course of more than one year, Mr. Smith repeatedly telephoned the SSA 800 number to request publications about SSI benefits.  Until very recently, each time he was informed that no publications about SSI benefits were available in accessible format. In addition, he attempted to use the automated prompt system on the SSA 800 number to order publications in accessible format, but the system terminated the phone call instead of permitting him to order the publications. 
   83.Not until May of 2005 did a sighted person inform Mr. Smith about the SSA Braille Services Team. He was then able to contact them directly to request SSI benefits publications in Braille. On May 23, 2005, Mr. Smith finally received two volumes purporting to explain the SSI program from the SSA Braille Services Team. He also received another volume listing other publications the SSA provides in Braille.

3. SSA failed to accommodate Mr. Smith by continuing to issue written communications in standard print only, by refusing to inquire about his preference to receive written communications in Braille, by refusing to inform him about the SSA’s Braille Services Team and otherwise failing to offer and provide him with SSA benefits publications in Braille. While Mr. Smith has secured volunteer assistance from a sighted person to read notices to him, he prefers independent access to communications from SSA and feels insecure about how long he will continue to have reliable help, because it is only a voluntary service from a private organization.
    

4. SSA has denied Mr. Smith an equal opportunity to participate in its programs by communicating with him only in standard print format and by failing to respond to his request for SSA benefits publications in Braille in a prompt and effective manner.
    

AMERICAN COUNCIL OF THE BLIND

1. ACB is a national membership organization whose members are primarily blind and visually impaired persons. ACB brings this action on behalf of its members. Its members include thousands of current beneficiaries and recipients of SSI, SSDI, and Social Security retirement insurance benefits. ACB’s mission is to advocate for the implementation and enforcement of civil rights protections for its blind and visually impaired members and all blind and visually impaired persons; to elevate the social, economic and cultural level of blind persons; and to assist blind persons develop their abilities and to assume a responsible place in the community. ACB publishes a periodical publication in Braille, large print, audiotape, and computer disk; it holds conferences and seminars for blind and visually impaired persons; it provides employment information and resources to blind and visually impaired persons; and it consults with public and private organizations on behalf of blind and visually impaired persons. Defendant’s unlawful conduct interferes with ACB’s mission of elevating the status of blind persons and assisting them with developing and assuming a responsible place in the community and causes ACB to divert its resources to remedy injuries suffered by its members as a result of Defendant’s unlawful conduct.

2. With few exceptions, SSA has only communicated with blind and visually impaired members of ACB in standard print format. SSA has not informed blind and visually impaired members of ACB of their right to reasonable accommodations of their disabilities. Blind and visually members of ACB cannot comply with deadlines and requirements established in standard print notices from SSA, which they cannot read. As a result, they have suffered reduction and termination of their benefits and related personal and financial hardships. 
   88.Plaintiffs Marvelena Quesada, Billie Jean Keith, Alice Marjorie Donovan, and Arlene Doherty are members of ACB.
    

FIRST CAUSE OF ACTION: VIOLATION OF SECTION 504 OF THE REHABILITATION ACT OF 1973

1. Paragraphs 1-88 are each re-alleged and incorporated herein as if fully set forth herein.

2. Section 504 of the Rehabilitation Act of 1973 (as amended) (“Section 504″) provides that:
   No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her 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 activity conducted by any Executive agency[.]”
   29 U.S.C.  794 (as amended).

3. Each of the Plaintiffs and class members is an “individual with a disability” as defined in 29 U.S.C.  705(20) because each has a visual impairment that substantially limits one or more of their major life activities, including the major life activity of seeing.

4. As a result of being “individual[s] with a disability” as defined in 29 U.S.C.  705(20), each of the named Plaintiffs and class members is entitled to reasonable accommodations in the form of auxiliary aids and services that provide them equal access to the programs SSA administers.
    

5. Defendants are bound by regulations of the United States Department of Health and Human Services promulgated under Section 504 of the Rehabilitation Act, 45 C.F.R. 85.1 et seq.

6. These regulations require SSA to provide “auxiliary aids” to Plaintiffs, which are “services or devices that enable persons with impaired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities” that SSA conducts. As defined by the regulations themselves, auxiliary aids “useful for persons with impaired vision include readers, Brailled materials, audio recordings, and other similar services and devices.” Id. The regulations also require SSA to “take appropriate steps to ensure effective communication” and “furnish appropriate auxiliary aids where necessary to afford an individual with handicaps an equal opportunity” to participate in its programs. Id. In addition, SSA must “give primary consideration to the requests of the individual with handicaps” in determining the type of auxiliary aid it must provide. 45 C.F.R.  85.51(a)(1).
    

7. As alleged herein, Defendants have and continue to discriminate unlawfully against the named Plaintiffs and the class members by failing to communicate with Plaintiffs and the class members in an accessible format. By refusing to communicate in a format that is accessible to blind persons, Defendants has created and continues to create a significant and unnecessary obstacle to Plaintiffs’ and the class members’ participation in SSA programs. Plaintiffs and the class members cannot comprehend or use critical information from SSA in a manner equal to that of sighted persons. Plaintiffs and the class members are forced to rely on the assistance of sighted persons to communicate the contents of standard print communications to them. Such sighted assistance is often unavailable, expensive, unreliable, inconsistent, untimely, or ineffective. In particular, relying on sighted assistance also requires blind persons to submit to an invasion of privacy; they must disclose highly sensitive information – including their Social Security numbers and private financial information – to sighted persons simply to gain access to their own, private Social Security benefits information. As a result, Plaintiffs who use sighted assistance are exposed to a needless risk of identity theft.

8. Providing individual benefits and program information in formats accessible to Plaintiffs and the class members would not fundamentally alter SSA programs or create an undue administrative or cost burden. Numerous governmental agencies and large commercial entities already provide individual account and benefits information to blind and visually impaired persons in similar accessible formats.

9. Defendants’ conduct constitutes an ongoing and continuous violation of the law. Unless restrained from doing so, Defendants will continue to so violate the law. Defendants’ conduct has caused and will continue to cause Plaintiffs immediate and irreparable injury. Plaintiffs have no adequate remedy at law for the injuries they suffer and will continue to suffer. Thus, Plaintiffs are entitled to injunctive relief. 
   WHEREFORE, Plaintiffs request relief as set forth below.

SECOND CAUSE OF ACTION: VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION

1. Paragraphs 1-97 are each re-alleged and incorporated as if fully set forth herein.

99.The Due Process Clause of the Fifth Amendment prohibits Defendants from depriving Plaintiffs and the class members of a protected property interest without adequate notice and an opportunity to be heard. Plaintiffs and the class members have a protected property interest in receiving SSA benefits.
 
100. Defendants have failed and continue to fail to provide Plaintiffs and the class members information in accessible formats about their individual benefits, SSA benefits publication materials, and the rules governing SSA benefits programs. As a result, Plaintiffs and the class members are denied adequate notice and an opportunity to be heard with respect to suspensions, terminations, and other actions affecting their SSA benefits. Defendants’ conduct has deprived and continues to deprive Plaintiffs and the class members of SSA benefits to which they are entitled.
 
101. As described above, Defendants have a policy of offering a telephone call to Plaintiffs to read the content of only certain kinds of standard print notices, such as of proposed action with respect to Plaintiffs’ and the class members benefits, and then taking adverse action with respect to Plaintiffs’ SSA benefits regardless of whether Plaintiffs and the class members actually receive the telephone call. This policy denies Plaintiffs and the class members notice and an opportunity to be heard with respect to determinations and actions affecting their SSA benefits. As a result, Defendants’ conduct has deprived and continues to deprive Plaintiffs and the class members of SSA benefits to which they are entitled, without due process of law.
WHEREFORE, Plaintiffs request relief as set forth below.

THIRD CAUSE OF ACTION: DECLARATORY RELIEF

1. Paragraphs 1-101 are each re-alleged and incorporated as if fully set forth herein.

2. Defendants have and continue to fail to provide Plaintiffs and the class members information in accessible formats about their individual benefits, SSA benefits publication materials, and the rules governing SSA benefits programs in violation of the Rehabilitation Act of 1973, and continues to suspend or terminate the benefits of Plaintiffs and the class members without meaningful notice in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution.

3. A judicial declaration is necessary and appropriate in order that the parties know their rights and duties and act accordingly.
   WHEREFORE, Plaintiffs request relief as set forth below.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray that this Court:
1. Certify at an appropriate time that this suit is properly maintainable as a class action pursuant to Rule 23(b)(2) and/or (b)(3) of the Federal Rules of Civil Procedure;

1. Declare that Defendants’ failure to offer SSA benefits information in accessible formats to blind and visually impaired applicants, beneficiaries, recipients, and representative payees of SSA benefits programs violates section 504 of the Rehabilitation Act of 1973 and the Due Process Clause of the Fifth Amendment;

2. Declare that Defendants have a duty to provide equal and meaningful access to all SSA benefits information (including information about individual benefits and SSA publications about its programs and rules) in formats that are accessible to blind and visually impaired persons, including Braille, large print, electronic mail, computer disks, and audio tape recordings;

3. Grant a permanent injunction, requiring Defendants, their successors in office, agents, assigns, representatives, employees and all persons acting in concert therewith, including state agencies responsible for disability determinations, to provide equal and meaningful access to all SSA benefits information (including information about individual benefits and SSA publications about its programs and rules) in appropriately secure formats that are accessible to blind and visually impaired persons, including Braille, large print, electronic mail, computer disks, and audio tape recordings;

4. For costs of the suit herein;

5. For reasonable attorneys’ fees; and

6. For such other and further relief as the Court deems just and proper.

November 16, 2005 
                               
Respectfully submitted,

HELLER EHRMAN LLP

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND

By                                                                                         
WONDIE RUSSELL
Attorneys For Plaintiffs

CERTIFICATION OF INTERESTED ENTITIES OR PERSONS

           Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other than the named parties, there is no such interest to report.
November 16, 2005                                

HELLER EHRMAN LLP

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND

By                                                                                         
WONDIE RUSSELL
Attorneys For Plaintiffs