In part 1, I described how difficult it is for disabled folks to gain access to the Department’s claim-filing and how the Department’s rules absolve the Department of responsibility for providing effective access.
Here is the Department’s statement about a lack of accommodations when confronted with some of these problems — namely that a hard-of-hearing person who reads lips could not call and ask for assistance, that there is only one way to file claims (on-line), and that the phone number to call for assistance is inadequate for far too many claimants with disabilities — and responses that compare those statements (a) to what actually happened and (b) to the federal non-discrimination requirements spelled out in UIPL 2-16 (1 Oct. 2015) and UIPL 2-16 Change 1 (11 May 2020).
Regarding your client, UI did not have a record of the claimant having a communications disability (being deaf or hard of hearing) when she applied for benefits on April 7, 2020. At the time of her application, your client identified herself as “disabled,” but such notation does not provide information on whether an accommodation would be required or if she would need an auxiliary aid or service.
Response: Because there is no obvious way for informing the Department of that disability on the on-line claims. The Department only provides a checkbox asking “Do you consider yourself to have a disability?” when providing the claimant’s demographic information.
So, the Department is essentially blaming the claimant here for NOT providing detailed information about her disability when there is no mechanism available to her during the claim-filing process for providing that information in the first place.
On July 8, 2020, an adjudicator attempted to contact the claimant about the job termination by telephone and left a voicemail message. On July 14, 2020, the claimant was denied benefits for failing to provide requested information to UI but noted that eligibility would be determined once sufficient information was received by claimant.
Response: Left out of this description is that the adjudicator attempted to contact the claimant by telephone, which obviously did not work since she is hard-of-hearing and cannot speak to anyone over the phone.
The claimant, who was pro se at the time, appealed the determination on July 28, 2020. In the appeal document, she was asked to identify any special needs or accommodations she might require. She explicitly denied needing an interpreter or Wisconsin Relay to communicate at the hearing, but stated:
“I am hard of hearing and wear a hearing aid. I do not use sign language, but it is very hard for me to understand others when they are speaking, especially with this pandemic where everyone wears masks and I am unable to read lips. I would like to have my mom with me or someone else who can type/write what is being said so I can follow along and engage in conversations.”
Response: As obvious from the assistance that was requested, the claimant does not speak another language for which an interpreter is needed, including sign language, and does NOT use a phone relay service. She reads lips, so she needs to see a person’s mouth when speaking to him or her. As a result, neither of those specific accommodations would actually work for this claimant. By providing information about her actually disability, however, she DID provide needed and relevant information about why phone calls would not work and why she needed an alternative communication option for her unemployment claim.
Rather than schedule the hearing on appeal, the ALJ remanded the case to adjudication on September 21, 2020 for further investigation. The redetermination decision issued on November 3, 2020, again denying her eligibility because she failed to provide requested information about her discharge and again noted that eligibility for benefits would be determined once sufficient information was received.
Response: Left out of this description of events is that the adjudicator again attempted only to call this hard-of-hearing claimant on the phone. And, after I contacted the Department’s secretary’s office about the claimant being hard of hearing and unable to speak on the phone, still another adjudicator attempted to contact the claimant by phone. Since the claimant cannot converse by phone (as explained in her appeal), there could be no response to those phone calls. So, I had to send still another letter to the Secretary’s office and the adjudicator explaining that the adjudicator should only call me, since the claimant cannot converse by phone.
Under your signature, the claimant appealed the November determination on November 16, 2020. In that appeal letter, claimant seeks an in-person hearing or, alternatively, a video conference hearing as an accommodation.
Response: Left out of this description is that I then contacted the Dep’t of Labor regional office and the Department Secretary’s office about this issue (which led to a flurry of phone calls and additional e-mails), that the initial determination was then retracted, that a third investigator assigned to the case then contacted me by phone as the claimant’s representative, and that I arranged for a phone interview to be conducted by the adjudicator through my repeating of the adjudicator’s questions asked by phone to the claimant and her mother, who were “meeting” with me via a video chat service during the phone call with the adjudicator.
On December 5, 2020, a second [actually third] redetermination was issued, setting aside the decision based on failure to provide information and, instead, denying benefits for substantial fault. Therefore, as of December 5, 2020, any delay in adjudication that may have been caused by UI attempting to contact her by telephone has been mitigated by the decision issued on the merits after she provided additional information as requested. While the merits of the “substantial fault” determination may be at issue in her appeal, the December 5th determination is not related to any failure to accommodate.
Response: So, the delays and lack of response to repeated explanations that the claimant cannot converse by phone are of no importance because a decision on the alleged “merits” has been reached. This conclusion ignores the run-around and difficulty that, without legal representation, would have continued ad infinitum because of the Department’s procedural hurdles that had to be overcome again and again simply for an investigation into her claim to occur.
As a parent of an autistic claimant explained: “not much is said in the handbook about asking for accommodations. Every letter we’ve been sent refers us to the basic help number, the 7069 number in Milwaukee. Even when I have gotten past the questions, those screeners will not give you any information nor will they allow you to speak to anyone with more authority. Those screeners are there to get rid of people like me.”
Indeed, all the claimant’s handbook does say is: “DWD is an equal opportunity employer and service provider. If you have a disability and need assistance with this information, please dial 7-1-1 for Wisconsin Relay Service. Please contact the Unemployment Insurance Division at (414) 435-7069 or toll-free at (844) 910-3661 to request information in an alternate format, including translated to another language.” For those claimants that cannot speak by phone and do not use the state’s relay service, such advice is meaningless.
Again by counsel, the second redetermination was appealed on December 15, 2020. In that appeal letter, the claimant seeks an in-person hearing because the claimant is hard of hearing.
UI staff are working to ensure that accommodations are provided to the claimant to allow her to effectively communicate for the hearing before the ALJ. Based on your earlier correspondence, UI understands the preferred accommodation is either an in-person hearing or a remote video hearing. Which of these alternatives are selected depends on whether DWD offices remain closed to the public due to the pandemic on the date of the scheduled hearing. If the offices are closed at that future date, UI will look to providing a remote video hearing.
Response: UIPL 2-16 (1 Oct. 2015) states, in relevant part:
A. UI Program Requirements. Under Section 303(a)(1) of the SSA,a state’s laws must provide for “methods of administration” that are “reasonably calculated” to ensure full payment of unemployment benefits “when due” in order to receive a UI administrative grant. “When due” is the basis for Federal requirements concerning timeliness of benefit payments andeligibility determinations. The requirement is broad and includes ensuring that individuals have sufficient access to the program sothat eligibility can be determined,and benefit payments can be made promptly. Therefore, state UI agencies must ensure that use of new technologies and systems for administering UI programs and providing services do not create barriers (e.g., procedural, technological, or informational) that may prevent individuals from accessing UI benefits, such as by denying them a reasonable opportunity to establish their eligibility. The U.S. Department of Labor (Department) has determined that “access” for purposes of conforming to Section 303(a)(1) of the SSA means individuals’ ability to complete, submit, and obtain information about their initial and continued claims, appeals, reemployment services, and any other information, program functions, or services available for all claimants. To meet the requirement that unemployment benefits be paid “when due,” all individuals must have the opportunity to be informed of and take appropriate action(s) to apply for UI, maintain their entitlement to UI, and access services without undue burdens or barriers.
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B. Nondiscrimination Requirements. The nondiscrimination laws that apply to state UI agencies prohibit discrimination based on both disparate treatment — intentionally treating members of protected groups differently based on their protected status — and disparate impact — the use of policies or practices that are neutral on their face, but have a disproportionate impact on members of some protected groups.
Footnote: If a policy appears to result in a disproportionate impact on a protected class, the policy or practice could be considered discriminatory, depending on whether the grant recipient can articulate a “substantial legitimate justification” for the challenged practice. To prove a “substantial legitimate justification,” the recipient must show that the challenged policy was “necessary to meeting a goal that was legitimate, important, and integral to the [recipient’s] institutional mission.” Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1413 (1st Cir. 1993). If the recipient can make such a showing, the next question would be whether there are any effective alternative practices that would result in less disproportionality or whether the justification proffered by the recipient is actually a pretext for discrimination. See Department of Justice Title VI legal manual at http://www.justice.gov/crt/title-vi-legal-manual .
In addition,as detailed below, regulations implementing these lawsprohibit states from establishing policies or procedures that, while not directly barring access to benefits or services for individuals who have disabilities and/or are LEP, indirectly prevent or limit access. The use of a website and web-based technology as the sole or primary way for individuals to obtain information about UI benefits or to file UI claims may have the effect of denying or limiting access to members of protected groups in violation of Federal nondiscrimination law, as described below. The legal standards governing the required level of accessibility under nondiscrimination laws vary according to the particular protected group. Therefore, the specific access requirements are provided below in the section focused on each of those groups.
UIPL 2-16 at 3-4 (footnote in original).
For providing access to individuals with disabilities, this 2015 program letter specifically provides:
B. Methods of Providing Access. When designing, building, and implementing new websites, webpages, graphic user interfaces, phone systems, etc., to carry out state UI program functions and to deliver services, state UI agencies must ensure accessibility and provide accessible notice and information about alternative means of receiving services for individuals who need them. Appendix A of this guidance provides a list of resources states may use during development and maintenance of web-based processing or service delivery systems to help maximize accessibility for people with disabilities in compliance with regulations promulgated pursuant to WIA, as amended, and WIOA, Section 504 of the Rehabilitation Act, and other nondiscrimination laws. For persons unable to access or use a web-based system, the state must offer an alternative option for accessing information and benefits, such as by telephone and/or in person, in a manner that ensures equal access. Further, states must broadly and conspicuously disseminate information about alternative access options in ways that ensure that individuals who may need to use such options are aware of the options. To ensure access for individuals with disabilities, state UI agencies should, for example:
- Make websites “Section 508 compliant.” While Section 508 of the Rehabilitation Act applies only to Federal agencies, the standards provided for Section 508 compliance set the bar broadly for ensuring that websites are accessible to individuals with disabilities. To be “Section 508 compliant” means that the development, procurement, maintenance, and use of electronic and information technology provide individuals with disabilities access that is comparable to access available to others.
- Provide alternative methods of gaining equal access to information in places other than the website for individuals with disabilities who may not be able to access web-based information, and provide accessible notice and information about the availability of such alternative methods. Telephone, mail, or in-person options may be viable alternatives for individuals with disabilities for whom access to computer or web-based technology is either unavailable or inadequate. Methods to communicate the availability of alternative access must be such that the individual with a barrier to accessing the program can easily learn how to gain access. It is not sufficient to have a phone number that individuals may call. The state agency must advertise the number widely and in multiple formats and state staff and staff in One-Stop Centers must be thoroughly trained in how to effectively connect individuals to that telephone line and any other alternative access options. Some persons with a disability may need in person options to obtain services and information. Consider providing increased in-person assistance in rural or digitally-isolated areas.
- Furnish appropriate auxiliary aids or services where necessary to afford individuals with disabilities equal access to UI services and benefits:
-When a state UI agency has a telephone-based system, it must use telecommunication devices for individuals with hearing impairments that provide equally effective communications systems such as telephone relay services; and
-A notice must be posted on inaccessible websites and mustbe provided on any telephone-based services that indicates how an individual with a disability can access services.
- UI agency staff must be trained (including ongoing periodic training) to identify barriers and assist persons with disabilities. Staff must also be trained to connect those individuals to alternative access points pursuant to the state’s standard operating procedures.
UIPL 2-16 at 6-7 (emphasis supplied).
These concerns remain a priority in 2020, and implementation in Wisconsin is lagging far behind what is required.
a. Access for Individuals with Disabilities.
States must ensure equal access for individuals with disabilities by making reasonable accommodations and modifications and providing equally effective communications. The most recent regulations (29 C.F.R. Part 38) include specific requirements related to the use of electronic and information technologies, including the requirements that such technologies “[i]ncorporate accessibility features for individuals with disabilities; [a]re consistent with modern accessibility standards…; and [p]rovide individuals with disabilities access to, and use of, information resources, programs, and activities that are fully accessible, or ensure that the opportunities and benefits provided by the electronic and information technologies are provided to individuals with disabilities in an equally effective and equally integrated manner.” 29 C.F.R. § 38.15(a)(5). The regulations include similar specific requirements related to communication by telephone.
States must give individuals with disabilities access to web-based services and information that is comparable to the access available to others. They must also offer an alternative option for accessing benefits, services, and information, and should advertise the alternative option widely and in multiple formats. States may wish to provide video remote interpreting services for individuals who communicate via sign language. These services must meet specific legal and technical requirements, and should be widely advertised widely.
States’ telephone-based systems must use telecommunications devices or systems such as text telephones (TTYs) or telephone relay services to provide equally effective communications for individuals with hearing or speech impediments. When the agency uses an automated-attendant system (e.g., voicemail and messaging) or an interactive voice response system, such systems must provide effective, real-time communication with individuals using auxiliary aids and services, including TTYs and all forms of Federal Communications Commission approved telecommunications relay systems.
States’ websites and telephone-based services should include information about how an individual with a disability who has difficulty using the site or service can get assistance to access the site or service. Web-based claims filing systems must also provide information about how individuals with disabilities can file a complaint about delayed or denied service resulting from inaccessibility or failure to provide equally effective communication.
UIPL 2-16 Change 1 at 2-3 (footnotes omitted, emphasis supplied).
As obvious here, the Department’s handling of disabled claimants has been wholly inadequate. From denying them regular unemployment benefits, by making PUA benefits difficult to impossible to receive, by failing to follow state law in regards to able and available status for disabled workers, and by — as shown here — failing to make the claim-filing process accessible to anyone but able-bodied unemployment staffers fully conversant with unemployment law, the disabled folks of this state have been treated as third-class workers who should just be happy to have a job at some point in their lives. The Department should know better, and it certainly should be doing better, than to continue this discrimination of Wisconsin’s disabled workers.