Saturday, December 10, 2016

Federal Judge Approves Settlement Agreement Requiring ACCESS-A-RIDE to Provide Due Process

Federal Judge Approves Settlement Agreement Requiring ACCESS-A-RIDE to Provide Due Process
By Nahid Sorooshyari, Senior Staff Attorney, MFY Legal Services, Inc.

Now Customers Can Have a Fair Appeals Process

On September 13, 2016, a federal judge in the Southern District of New York approved a class action settlement that will change unfair Access-A-Ride (AAR) policies for tens of thousands of New Yorkers with disabilities. Under the settlement, NYC Transit (NYCT) must give people it has found fully or partially ineligible for AAR a fair chance to challenge the decision. 

AAR is New York City’s transportation service for people whose disabilities make it very difficult to use the bus or subway. People with all types of disabilities, including psychiatric and episodic disabilities, are eligible for AAR. To apply for AAR, you must complete a written application and an in-person evaluation. You may be found: continually eligible for a lifetime; fully eligible for one year or five years; conditionally eligible, which means eligible to use AAR when a specific condition, like cold weather, is present; temporarily eligible for a period between one month and one year; or ineligible. People who are found fully or partially eligible must recertify their eligibility at least every five years. 

The lawsuit, filed by MFY Legal Services in May 2015, claimed that NYCT’s eligibility procedures violate the due process clause of the US and NY constitutions, the Americans with Disabilities Act, and state regulations. Five New Yorkers with disabilities were the named plaintiffs. All five had applied for and, at various times, been denied AAR. The five named plaintiffs represented a class of New Yorkers with disabilities who applied, or tried to recertify, for AAR service since May 2012, or will do so in the future. One named plaintiff, Ms. Walsh, had AAR for over five years. When she tried to recertify in 2014, NYCT changed its position and found her eligible for only three months, even though her disabilities had not improved. When she reapplied in hopes of getting more services, NYCT changed its position again and found her completely ineligible. 

Due process requires that the government give someone who applies for or receives government benefits meaningful notice and an opportunity to be heard before denying or reducing benefits. Ms. Walsh faced the same due process problems as thousands of others applying for AAR. NYCT sent her the same notice they send everyone who is denied AAR, regardless of their disability—a boilerplate letter saying she was denied because she could complete a list of eight tasks related to taking public transit. The letter did not tell her that she had the right to request her assessment records or how she could do so. The letter said that the decision was effective immediately and she could not take AAR to appeal in person. Ms. Walsh won her appeal with the help of attorneys, but thousands lose appeals and are not told of their right to request records from the appeal or to challenge the appeal decision in court. MFY filed the lawsuit to fix these problems. 

After months of negotiations, the parties crafted an agreement that fixed the due process problems. NYCT can no longer just send every person who is denied AAR the same letter; now, it must mail a copy of each person’s “Denial Form” with the letter. The Denial Form is an individualized summary of the assessor’s main reasons for denying the applicant. The letter will also explain a new procedure to obtain assessment records within 30 days, free of charge. This will give people more information to prepare for appeals. For current AAR users who are found ineligible or whose level of AAR is decreased after recertifying or otherwise reapplying, NYCT will provide aid continuing for the 60-day period to appeal or until the appeal is decided. NYCT will now include a statement of its eligibility criteria for AAR on its website and all new AAR applications. NYCT will also adopt a non-discrimination policy that includes a statement that it will not discriminate against people with episodic disabilities.

The named plaintiffs are thrilled that NYCT must now provide notice and an opportunity to be heard to those it finds fully or partially ineligible. Ms. Caldwell, a named plaintiff whose previous application and appeal for her nine-year-old daughter were denied, said: “I’m happy to know that if my daughter is denied Access-A-Ride again, the process for appealing will be clearer and fair.”
Plaintiffs were represented by MFY Legal Services, Inc. and Pillsbury Winthrop Shaw Pittman LLP. If you have questions about the settlement or need help with AAR, please call MFY toll-free at (877) 417-2427.

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