On March 31, 2015, Judge Katherine B. Forrest of the United States District Court for the Southern District of New York granted preliminary approval of a settlement between Gibson Dunn clients and various officials and agencies in New York City and New York State.
For several years, Gibson Dunn's "D-SNAP Team," in conjunction with the Legal Aid Society, has been representing disabled New Yorkers to help them obtain disaster food stamp benefits (so-called "D-SNAP" benefits) that they were unable to apply for in the aftermath of Hurricane Sandy. Two years ago, when the benefit application period opened, it became clear that the program had not been accessed by hundreds, if not thousands, of qualified individuals with disabilities. The essence of the complaint is that the program violated city, state, and federal anti-discrimination laws by failing to provide disabled applicants with reasonable accommodations (such as permitting them to apply by phone or conducting home visits, rather than requiring an in-person application at a site in Brooklyn or a part-time site on Staten Island). The operative complaint names city, state, and federal agencies and their officials as defendants.
Gibson Dunn has obtained extraordinary and precedent-setting relief over the years, including:
- Major revisions to USDA's policies—which apply nationwide—providing for numerous additional accommodations for individuals with disabilities who apply for D-SNAP benefits;
- Establishing, in a matter of first impression, a private right of action under the Food Stamp Act to challenge unlawful governmental action in D-SNAP programs;
- Substantial revisions to New York State's policies—which apply statewide—mirroring the additional accommodations provided for in the Federal Government's policies;
- A commitment by the City of New York to explore creating a "Disability Advisory Community Panel," which would allow advocates from the community to provide ongoing input into the City's policies and practices concerning individuals with disabilities; and
- A "re-do" of the D-SNAP application period, which will give those who could not apply in 2012 the right to apply now, with vastly expanded accommodations for their disabilities (such as home visits by City staff to process applications).
The breadth and depth of this relief, including substantial policy changes that will apply nationwide, would have been unimaginable at the inception of this case, when the sole relief Plaintiffs sought was a short extension of the application window in 2012 so that individuals with disabilities could have more time to apply, a form of relief that would have applied only to people who lived in 12 zip codes in New York City.
This relief would not have been possible without Gibson Dunn's multifaceted litigation strategy, taking the lead on briefing and arguing motions. Over the years, Judge Forrest denied the City's and State's motions to dismiss, granted Plaintiffs' motion for class certification (certifying two subclasses), and ruled in Gibson Dunn's favor on numerous other contested issues. The Federal Government filed a motion to dismiss, which remains in contention. Gibson Dunn also has conducted extensive discovery, reviewing tens of thousands of documents, issuing interrogatories, and taking depositions.
In 2014, the United States Department of Agriculture ("USDA")—despite having nominally been dismissed from the case—responded to this litigation by revising its policy guidance to expand accommodations available to disabled applicants. The new federal guidance now makes clear that state agencies have a responsibility to comply with civil rights laws and to provide meaningful access to the disabled. Moreover, in addition to requiring states seeking to run a D-SNAP program to provide a "thorough explanation" of potential disability access issues, USDA has promulgated a list of "best practices," including satellite application sites, special public transportation, home visits for those who have difficulty traveling, and internet video-technology to facilitate off-site interviews.
After USDA revised its policy guidance, the New York State Office of Temporary and Disability Assistance ("OTDA") revised its guidance as well. The state's guidance now requires OTDA to advise city agencies to consider reasonable accommodations for those with disabilities and to conduct annual training on compliance with civil rights laws. OTDA also requires city agencies to consider collaborating with local public transportation authorities and community partners and conducting outreach to disabled populations. Crucially, OTDA also encourages city agencies to consider the "best practices" in the revised federal guidance. And the state's form application to run a D-SNAP program now requires a formal plan for ensuring disability access.
On March 31, 2015, Judge Forrest granted preliminary approval of a settlement between Plaintiffs, HRA, and OTDA. As part of that settlement, a new D-SNAP program will be run for those who did not apply after Hurricane Sandy because of a disability. Among other things, the program will provide home visits to anyone who requests one, and it will make use of expanded efforts to collaborate with community partners. The settlement also includes a commitment from HRA to make best efforts to comply with the new, improved state and federal guidance, and it requires OTDA to maintain its policies in all material respects. Finally, the settlement provides for a limitation on the Court's retention of jurisdiction if the city convenes a Disability Advisory Community Panel comprised of government personnel and community organizations to address emerging challenges and solutions related to disability access. The Court has scheduled a fairness hearing for the end of June and approved publication of notice to the class.
In recognition of these efforts, the Legal Aid Society awarded members of the D-SNAP team with its 2013 and 2014 Pro Bono Publico Awards for providing excellent legal services to low-income New Yorkers.