Friday, December 7, 2012

MFY Legal Services, Inc. Announces New Legal Clinics to Assist with Obtaining Access-a-Ride

By Dinah Luck, Senior Staff Attorney, MFY Legal Services, Inc.
It’s complicated, let attorneys help free of charge
Access-A-Ride (AAR) is an accessible transportation system operated by the Metropolitan Transit Authority (MTA) for people who cannot use subways and buses due to their disabilities. The Americans with Disabilities Act (ADA) requires the providers of public transportation to provide comparable public transit services to people with disabilities. People who are unable to take public transit due to a psychiatric disability are eligible for AAR, but they might face particular problems in the application, assessment, and appeal process.
Applications
Although the application can be found on the MTA website at http://www.mta.info/nyct/paratran/access_application.pdf, the MTA has told MFY that they only accept applications mailed to the applicant by the MTA. Therefore, applicants should call 877-337-2017 to obtain the application and an appointment for an in-person assessment. The application requests, but does not require, medical documentation. However, an applicant should provide a detailed letter from her treating psychiatrist or therapist describing the applicant's functional limitations. A letter stating a diagnosis is not sufficient; the letter should describe the symptoms that prevent the applicant from taking public transit. An AAR official reported to MFY that the MTA does not defer to a person's own doctor, but instead relies upon its own assessment. Nonetheless, it is optimal to submit a detailed letter from a treatment provider because it will increase the applicant’s chance of being approved.
All applicants are required to undergo an in-person assessment that primarily involves testing for physical disabilities. AAR's reliance on in-person observation over reports from a person's doctor can make it very difficult for a person with a psychiatric disability to be found eligible. For example, while a physical test can be given to an applicant who claims that a physical disability prevents her from climbing stairs, it is more difficult to ascertain how an applicant’s anxiety disorder impacts her use of public transportation. An applicant with a severe anxiety disorder, for example, can appear calm at an assessment, leading to a denial of the application even if she provided a compelling and detailed letter from her treating psychiatrist or therapist about the functional limitations to her accessing public transportation caused by the disorder.
The Disability Rights Education and Defense Fund recommends that people whose disabilities are not easily evaluated by an in-person functional assessment tell the evaluator that their disability cannot be assessed in that format. An applicant with a psychiatric disability should direct the evaluator’s attention to her doctor’s letter, and explain why her limitations cannot be observed during the in-person assessment. An applicant who cannot advocate for herself can bring someone—a friend, social worker, therapist, or family member—to help. Because the eligibility determination relies so heavily on in-person observations at assessment centers, rather than on reports of functional limitations from applicants’ treatment providers, the AAR assessment may have the effect of discriminating against people with psychiatric and other invisible disabilities.
How to Appeal a Denial of an Application
If an applicant is denied AAR, she has a right to an appeal. But the AAR appeals process suffers from several procedural problems that prejudice appellants. The agency is required to provide appellants with a notice that states the reasons for the finding and “an opportunity to be heard and to present information and arguments.” However, the AAR notices are not individually tailored to the applicant. The AAR notices simply provide a laundry list of denial reasons. For example, the denial notice for a person who applies due to an anxiety disorder may include a list of irrelevant and confusing statements about physical disabilities, such as “You are able to go up/down subway steps. You are able to travel three to four blocks to fixed-route bus/subway station.” It is difficult for an applicant to prepare for an appeal based on a notice that contains only conclusory and possibly irrelevant statements.
The difficulty in preparing an appeal is exacerbated by the fact that the MTA does not provide the applicant with a copy of the record of her case prior to the appeal, nor does it have a process for the appellant to secure the record prior to the in-person or written appeal. In fact, the MTA has told MFY that it has no obligation to do so. The only means to obtain the record is through a Freedom of Information Law (FOIL) request, which is time-consuming and requires the appellant to pay for copies of her records. Although MTA points to the availability of the FOIL process as a possible remedy of its failure to provide the record on appeal, MFY has learned that it refused to adjourn an in-person hearing until the FOIL records were produced.  Without the record, an appellant cannot examine the assessments or other evidence relied on by the agency when it denied her application. This leads to an applicant being confronted at the hearing with evidence she's never seen, depriving her of the opportunity to prepare a challenge to the evidence.
Finally, although the MTA offers two options for an appeal—in writing and in person—it has no publicly available written procedures that describe its appeal processes. Based on the information we have been able to gather, MFY recommends the in-person appeal because testimony from the applicant and, if possible, a mental health professional can be more compelling than a paper review. In addition, a paper review suffers from the same defects as the initial assessment—the decision will be based primarily on the AAR in-person assessment, which the MTA weighs more heavily than an assessment by the applicant’s own treatment provider.
MFY Legal Clinic to Assist AAR Applicants
To try to remedy these and other problems, MFY Legal Services, Inc. and Pillsbury Winthrop Shaw Pittman LLP are launching a pro bono project to help people obtain and maintain eligibility for AAR services. We’ll be holding AAR Legal Clinics at independent living centers, senior centers, and other community locations. During those clinics, volunteers will provide a range of services, including helping people fill out the AAR application, request MTA records regarding an adverse eligibility determination, appeal a denial of AAR services to the Paratransit Appeals Board, appeal a suspension of AAR services, or file a complaint about AAR services with the MTA. To find out the details regarding the next clinic, please call 212-464-8110 or go to www.mfy.org.

No comments:

Post a Comment

Post a Comment