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The Washington Connection 12-11-20

Welcome to the Washington Connection, the legislative and information service of the American Council of the Blind.  The Washington Connection is brought to you by the ACB national office. If you have any questions or comments on the information provided, don’t hesitate to contact us and ask to speak with Clark Rachfal.

The Washington Connection is updated any time we have new information to share with you. The following articles are available as of December 14, 2020. Messages 3, 4, 7 and 8 are new.

Thank you for calling the Washington Connection.

Share Your Voting Stories

 

Dear ACB members,

ACB, and your state affiliate, are eager to collect as much information as possible concerning your voting experiences in the 2020 general election. This information includes more than just what happens on November 3, if you decide to vote in person that day. Rather, we want to know your entire experience from when you registered to vote to when you received an absentee ballot in the mail to when you went to the polling site. In other words, please share any voting-related facts with us. Because there are numerous steps, you are welcome to submit more than one declaration. Ideally, we hope that your experience is seamless and you can vote easily and accessibly. But we have heard many stories about accessibility challenges for blind and visually impaired voters this year. As a result, we want to collect as many stories as we can to develop a kind of repository of declarations we can go to in the future when doing further advocacy work. These stories should be emailed to voting@acb.org.

When writing down such experiences, be sure to include the following:

  • Your name
  • Your city, state, and zip code
  • The date(s) on which the incident occurred
  • The name(s) of any Board of Elections employees or poll workers involved in the problem
  • A detailed summary of what took place

Examples of issues that would be helpful to learn about are the accessibility of the Board of Elections’ website for your county. Were you able to register to vote and/or request an absentee ballot? How does your city and/or state administer absentee ballots? Were their practices partially or completely accessible? Were the poll workers helpful when you visit an in-person polling place? Include details about how they treated you when you asked to use an accessible voting machine. Again, these are merely examples. The voting process is accomplished through a number of steps, so please elaborate on any and all of the steps you walked through to discuss how accessibility was, or was not, handled. Email your stories to voting@acb.org.

 

Federal Court Rules NYC Discriminates Against Blind and Low Vision Pedestrians by Failing to Make Crosswalk Signals Accessible to Them

 

Court Decision will Dramatically Remake NYC’s Streetscape by Making Pedestrian Safety Accessible to People with Disabilities

New York, NY – In a decision that will remake the streetscape of New York City and improve safety and accessibility for all New Yorkers, a federal court ruled today that New York City’s failure  to provide accessible pedestrian signals (APS) at 96.6 % of its signalized intersections violates the civil rights of people with disabilities. APS are push-button devices attached to crosswalks that convey visual crossing information in audible and vibro-tactile formats accessible to blind, low vision, and Deafblind pedestrians.

New York City has over 13,200 signalized intersections with signals for sighted pedestrians that convey critical safety information: WALK or DON’T WALK. Yet only 443 of those 13,200 intersections — less than 4% — have APS that convey this information to blind people. Blind and low vision pedestrians are put in danger every time they must cross a street without APS, because they may cross against the light, in the path of cars. Additionally, the lack of APS denies them their independence and dignity. Plaintiffs have been grabbed by well-meaning strangers attempting to help them across the street, and forced to cross only in crowds and wait several lights — sometimes as long as twenty minutes — to make sure they are crossing with others. Some have avoided walking altogether by taking buses and getting out a stop early or a stop late in order to avoid particularly unsafe intersections, or taking longer routes.

Disability Rights Advocates (DRA) filed a class action lawsuit, American Council of the Blind of New York, et al. v. New York City, in June 2018 because this unlawful system denies blind and low vision pedestrians their independence to navigate city streets safely: to visit friends and family; go to work, school, or home; or shop or do business. On July 22, 2019, the Court certified a class of blind and low vision pedestrians harmed by these practices.

“For decades New York City has ignored the needs of blind and low vision pedestrians, while simultaneously touting its Vision Zero commitments to pedestrian safety,” said Torie Atkinson, Staff Attorney at Disability Rights Advocates. “The city has spent millions on pedestrian safety improvements, and now for the first time those improvements will be accessible to all New Yorkers. With accessible pedestrian signals, blind and low vision pedestrians can cross the street confidently, and we are thrilled with the dramatic changes that this victory will mean not only for those who are blind or low vision, but for all New Yorkers who want safer streets.”

“ACBNY has tirelessly advocated for decades to fix New York City’s widespread inaccessibility to blind and Deafblind pedestrians,” said Lori Scharff of the American Council of the Blind of New York, plaintiff in this case. “We are pleased that the Court’s ruling will help ensure that our blind and Deafblind constituents have equal access to the same information available to sighted pedestrians.”

“As someone who is Deafblind and requires tactile information to cross streets safely, I am thrilled by the Court’s ruling,” said plaintiff Christina Curry. “Up until now, at least once a day I almost get hit by a car because there is no APS telling me when it is safe to cross. This victory means that finally the city will have to install APS so that I and tens of thousands of Deafblind New Yorkers will have access to street crossing information and be able to travel safely, freely, and independently throughout the city.”

Plaintiffs do not seek money damages. They seek only that New York City’s street crossings be accessible to and safer for blind and low vision pedestrians.

 

Blind Hoosiers File Lawsuit Against Indiana Election Commission, Secretary of State 

 

INDIANAPOLIS, December 3, 2020 – The ability to vote privately and independently is a fundamental right and an essential component of democracy in the United States. However, in Indiana, these rights are not guaranteed to all voters. In fact, Indiana has one of the most restrictive absentee voting systems in the country for blind voters because it only permits them to vote at home by appointment with a “traveling board” of elections officials.  Hoosier voters who are blind or have low vision could easily vote privately and independently at home using electronic tools.  Instead, they are being forced to choose between giving up their right to vote privately and independently, risk exposing themselves to COVID-19 at the polls, or not voting at all.

In a lawsuit filed today in federal district court in the Southern District of Indiana, plaintiffs Rita Kersh, Kristin Fleschner, and Wanda Tackett, joined by the Indiana Protection and Advocacy Services Commission and American Council of the Blind of Indiana, assert that the Indiana Election Commission and the Secretary of State are discriminating against voters who are blind or have low vision by not offering the necessary accommodations that these voters need to vote privately and independently when using the absentee vote-by-mail program.

In Indiana, the Indiana Election Commission and the Secretary of State have known for quite some time that the current absentee vote-by-mail system is inaccessible to voters who are blind or have low vision. “The American Council of the Blind of Indiana has tried to bring this problem to the IEC and SOS’s attention, but they have declined to work with us to implement an accessible way to vote at home.  That’s why this suit was necessary,” said Dee Ann Hart, a member of the Board of Directors of the ACB-I and its Advocacy and Awareness Committee Chair.

Furthermore, both the Indiana Election Commission and the Secretary of State have had over 30 years to comply with the Americans with Disabilities Act (ADA) which was signed into law by President George H.W. Bush on July 26, 1990. 

The lawsuit provides concrete examples of successful, accessible absentee voting programs that are currently being used by other states and explains how Indiana’s existing accessible military and overseas voting options could be expanded to include voters who are blind or have low vision.

“Because of Indiana’s restrictive requirements, I was deprived of my vote during this year’s general election,” said Wanda Tackett, a plaintiff in the suit. “My niece has vision impairment and I work with a young boy who is blind, and through this case, I want to empower them and other future voters to make sure that this kind of violation never happens again.”

“Let’s make equal access an integral part of voting and find ways to increase civic engagement rather than make it hard,” said Kristin Fleschner, another plaintiff. “Our officials and policies will only represent our ideals if everyone is able to vote privately and independently.”

“Voting is one of our most important rights. By operating a voting program inaccessible to some people with disabilities, Indiana is creating unnecessary and unlawful barriers to the voting process,” said Tom Crishon, Indiana Disability Rights Legal Director. “Voters with disabilities must have equal access to all aspects of Indiana’s voting program, including absentee voting.”

“The right to a secret ballot is a fundamental right that most Americans take for granted,” said Jelena Kolic, an attorney with Disability Rights Advocates. “Unfortunately, Indiana has failed to respect that right for voters with certain disabilities. Through this case, we hope to ensure that all Hoosier voters are granted equal access to a private and independent vote.”

The plaintiffs are seeking only injunctive relief, not monetary damages, and are represented by attorneys from Indiana Disability Rights and Disability Rights Advocates.

 

Department of Transportation Issues Ruling on Service Animal Definition

 

The U.S. Department of Transportation recently issued a ruling on the regulations discussed in the notice of proposed rule-making that ACB submitted comments on in April of 2020. Two major topics were outlined and amended under the new findings.

First, under the ruling DOT has amended the definition of a service animal to align with the definition of a service animal found within the regulations of the Americans with Disabilities Act (ADA) as promulgated and enforced by the U.S. Department of Justice (DOJ). Under this new ruling, the definition of psychiatric service dogs under the Air Carrier Access Act (ACAA) is aligned with the definition of a service animal as found under the ADA. This means the requirements for service animals and psychiatric animals on planes are identical. However, DOT no longer allows passengers to travel with emotional support animals (ESA).

Second, the new finding requires service animal handlers to attest to the health and behavior of their service animal. To do so, airlines are permitted to ask for such attestations 48 hours in advance of a flight. However, this 48-hour rule is waived if a ticket is purchased at the last minute. The form that service dog users will be required to fill out will be developed by the DOT. The form does not require a veterinarian’s signature, but does ask for the date of the dog’s last rabies vaccination. Airlines are not required to adopt this form but must use the government’s form if they choose to enforce such written attestation policies.

Finally, the ruling did not alter the breed rule under the Air Carrier Access Act. Under the ACAA, service animals include all breeds of dogs. An airline cannot prohibit a specific breed of dogs from traveling on their flights.

 

Accessibility Enhancements on the Horizon for HBO Max Customers Who are Blind

 

October 19, 2020 — In a landmark agreement, advocates for people who are blind have obtained WarnerMedia’s pledge to increase the accessibility of HBO Max — the much-anticipated online streaming platform that was launched earlier this year. Among other commitments, the agreement provides that WarnerMedia will provide audio description on at least 1,500 hours of new and existing programming on HBO Max by the end of March 2021, increasing to 3,000 hours by the end of March 2022, and doubling again to at least 6,000 hours in total by the end of March 2023.

The agreement was reached between WarnerMedia Direct, LLC on the one hand and the American Council of the Blind (ACB); the Massachusetts-based Bay State Council of the Blind (BSCB); Kim Charlson; and Brian Charlson on the other. These blind individuals and advocacy organizations were represented by Disability Rights Advocates (DRA), a national non-profit legal center, and Disability Law Center, the Protection & Advocacy agency for Massachusetts.

HBO Max is WarnerMedia’s direct-to-consumer offering, bringing together HBO, a robust slate of new original series, key third-party licensed programs and movies, and fan favorites from WarnerMedia’s rich library including Warner Bros., New Line, DC, CNN, TNT, TBS, truTV, Turner Classic Movies, Cartoon Network, Adult Swim, Crunchyroll, Rooster Teeth, Looney Tunes and more.

Under the agreement, WarnerMedia will ensure that audio description — a separate audio track that, when activated, provides a verbal description of visual elements on screen — is created on a going forward basis for all HBO original programming as well as all Max Originals that have entered post-production since the platform launched in May 2020. For more on audio description, visit ACB’s Audio Description Project.

In addition, over the next year, accessibility of the HBO Max website, mobile applications, and applications for Internet-connected TVs will be improved for individuals who are blind and use screen-reading software to navigate and interact with digital content. Screen-reading software enables blind individuals to access and interact with online services by rendering the text displayed visually on the screen as large print, synthetic speech, or onto a digital braille display. For screen magnification and screen-reading software to work, website and app developers must program for compatibility. HBO Max will release accessibility improvements incrementally as they are ready for distribution and, by the end of September 2021, the HBO Max website, mobile applications, and available internet-connected TV applications will substantially comply with standard international web accessibility guidelines.

Kim Charlson, Immediate Past President of the American Council of the Blind, commented, “This agreement opens doors for individuals who are blind or visually impaired to both enjoy what HBO Max provides in terms of entertainment and education, while also allowing blind and low vision people to share equally with family and friends in this truly universal pastime. By working together to bring thousands of additional hours of audio description content to HBO Max, along with the improved accessibility of the website, mobile apps, and smart TV interfaces, WarnerMedia and blind advocates are providing meaningful access to a significant aspect of our modern-day world.”

Staff Attorney Meredith Weaver of Disability Rights Advocates explains, “We are very pleased at the commitment HBO Max has made to ensure that customers who are blind or have low vision have access to its award-winning and expansive library.”

Tatum A. Pritchard of Disability Law Center, said, “With this year marking the 30th anniversary of the signing of the Americans with Disabilities Act, this agreement with WarnerMedia signals welcome and notable progress towards greater accessibility for people who are blind or visually impaired to streaming content that serves as an important source of both entertainment and information for our society.”

 

Update on the Currency Case

 

The three-person panel for the appeal court for the District of Columbia was made up of judges Henderson, Walker, and Silberman. Under the 2008 injunction, when ACB won its case, the Department of the Treasury was ordered to make the various Federal Reserve notes distinguishable for blind and visually impaired individuals no later than the next rescheduled design of each denomination. In other words, when the Treasury redesigns a piece of currency, it has to be accessible moving forward. However, the redesign process has been significantly delayed.

In 2016, ACB moved to impose a firm deadline to make the paper currency accessible for blind and visually impaired users. In other words, ACB asked that the Treasury be ordered to make paper currency accessible by a fixed date instead of waiting for redesigns to come out. Unfortunately, the district court denied this motion, and the court of appeals, in 2020, upheld the lower court’s decision.

Legal counsel for ACB argued that the district court inappropriately relied on the Treasury’s financial burden claim without obtaining concrete estimates of the financial burden. ACB further argued that the district court abused its discretion because its decision lacked evidentiary support. But again, the court of appeals disagreed on both arguments made by ACB and upheld the decision of the lower court. The Treasury, in the lower court, argued that setting a fixed date to make paper currency accessible for blind people is neither feasible nor secure. The court of appeals agreed with these two arguments. As a moving party, when bringing the new claim to the court of appeals, ACB had the responsibility to justify the modification to the ruling, and the judges found that ACB could not demonstrate such a justification.

When before the court of appeals, ACB argued that the feasibility argument made by the Treasury was not sound. ACB acknowledges that making currency with raised tactile features (RTF) is not the only way to make currency accessible. Alternative options, such as a rougher texture, could be used. But, because the original decision made by the Treasury was to use RTF to make currency accessible, this argument by ACB was unsuccessful. Furthermore, the court explained that it does not have the authority to dictate to the Treasury how to make paper currency accessible. The court emphatically explained that the courts should not impose remedies that interfere with the agency’s discretion. Thus, because the Treasury decided to utilize RTF early on, it is now the presumed form of accessibility that the Treasury will utilize.

Under Rule 60B of the Federal Rules of Civil Procedure (FRCP), a decision can be reversed if the court applied the wrong legal standard, or relied on clearly erroneous findings of fact. A district court also abuses its discretion if it violates the mandate of the court of appeals. In this case, the district court was persuaded by the feasibility and security implications of developing RTF, and the Court of Appeals for the District of Columbia found that these two arguments do not stray from these requirements. ACB argued that the security and monetary arguments brought by the Treasury were not adequately quantified; they did not explicitly lay out how much they had to spend to make security improvements that would override accessibility changes. But the court found that the Treasury had no obligation to quantify the security rationale. The district court found that a short-term prioritization of the accessibility redesign by itself could impair the Treasury’s ability to execute a timely security redesign. Put another way, ACB asked the Treasury to show the math that was done to argue that the financial commitment was a burden. But the court agreed with the Treasury; Congress mandates the budget of the Treasury and it must work within the confines of that budget. The ruling stressed that quantitative evidence is not always required; the Treasury must juggle several variables and consequently, qualitative evidence is also compelling.

Furthermore, the court of appeals once again agreed with the feasibility argument made by the Treasury and upheld the lower court’s analysis. The court talked about the durability challenges of RTF; it would likely have to be continuously reproduced, costing the government more money. And redesigns of machinery would be needed to process the bills, which would cost still more money. The court agreed with this feasibility claim.

Next, Rule 60B of the FRCP provides that upon a motion, the court may relieve a party of an injunction if applying it prospectively is no longer equitable. The court should grant such a motion if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest. But, to make this happen, ACB bears the burden of proving that this has taken place. In other words, ACB has to prove that enforcement of the 2008 injunction would be detrimental to the public interest. In this case, the Treasury does not dispute that circumstances have changed; the process has been substantially delayed. But the court of appeals insists that ACB should have been cognizant of the security implications that would have, and did, come up. The difficulty in making paper currency both accessible and secure from counterfeiting is complex, and thus, ACB should be aware that delays are warranted. The court of appeals does not view this as an abuse of power of the Treasury.

Although ACB was unable to win in the court of appeals, the Treasury is still bound by its original obligation; it must make future paper bills accessible. The first change must be carried out by 2026, when the $10 bill is redesigned. If the Treasury wants to delay this obligation, it will have to bring its argument before the court of the District of Columbia. At this time, it is too early to know what the Treasury will do. However, ACB believes that the Treasury will continue to push back its obligation by bringing the case before the courts. Therefore, it is likely that a new case will be brought to delay the requirement within the next few years. ACB can only wait and see. However, ACB is reasonably certain that the Treasury will continue to bring such cases, indefinitely delaying the implementation of accessible paper currency.

 

U.S. AbilityOne Commission Announces AFB’s Successful Completion of Research and Studies Phase, and Decision to End Cooperative Agreement

 

ARLINGTON, Va., Dec. 2, 2020 – The U.S. AbilityOne Commission announced today that the American Foundation for the Blind (AFB) has successfully completed the initial phase of its Cooperative Agreement with the Commission — a research and studies phase designed to identify innovative business models and practices that increase employment opportunities for blind individuals in knowledge-based careers.

Following this period of productive partnership and completion of its research and deliverables, AFB has decided not to pursue the second phase of the Cooperative Agreement with the Commission, thereby ending AFB’s status as an AbilityOne Central Nonprofit Agency (CNA) effective December 31, 2020.

“AFB’s successful performance in the research and studies phase has been particularly valuable in expanding the potential for more knowledge-based jobs in the AbilityOne Program,” said Jeffrey A. Koses, the Commission’s Interim Chairperson. “AFB’s contributions have significantly advanced the Commission’s understanding of technology-related and other emerging career fields that present opportunities for people who are blind. The Commission will use the knowledge gained to continue to explore additional opportunities to create more jobs in the AbilityOne Program.”

AFB was designated as an AbilityOne Central Nonprofit Agency on July 26, 2018, to provide the Program with an emphasis on competitive, knowledge-based opportunities at a time when changes in employment trends point to a new direction for AbilityOne jobs. AFB’s research and studies provided new insights and more detailed information about developing career opportunities in sectors such as information technology, financial management, and human resources, presenting growth opportunities for the AbilityOne Program. This outcome supports the Commission’s longstanding goal of creating more jobs, innovation and competition within the AbilityOne Program.

Recognizing that the current business environment evolves at a rapid pace, the three-phase Cooperative Agreement between the Commission and AFB was deliberately designed to provide both parties with the flexibility to end the agreement at any time. AFB informed the Commission that its decision to exit the Cooperative Agreement at the end of Phase 1 (the initial “Research and Studies” phase) is based on a reassessment of AFB’s strategic goals in the current business environment.  

The Commission designates Central Nonprofit Agencies (CNAs) to facilitate the distribution of federal government orders for products and services to nonprofit agencies employing people who are blind or have significant disabilities. The Commission currently executes the AbilityOne Program based on cooperative agreements with two longstanding CNAs: National Industries for the Blind (NIB) and SourceAmerica. NIB and SourceAmerica continue to represent nearly 500 nonprofit agencies in the AbilityOne Program and facilitate the creation and maintenance of almost 45,000 jobs for the AbilityOne Program workforce. AFB’s research and recommendations may be leveraged by NIB and SourceAmerica to facilitate employment growth in the Program.

 

Pandemic Exemptions to the ADA

 

In August, ACB sent a letter to Congressional leaders opposing any waivers or exemptions to the ADA as part of pandemic relief policy measures, specifically those referenced in the Safe to Work Act (S. 4317). These measures are under consideration once again as Congress debates another stimulus package. As we reiterate our opposition to any waivers or exemptions that would undermine the civil rights guaranteed by the ADA, ACB urges all of our friends to communicate your opposition to any ADA waivers and exemptions as part of COVID stimulus relief by contacting your members of Congress directly, or by calling the Capitol switchboard at (202) 224-3121.