Meyer v. Walthall

Full title: Christopher MEYER, Sarah Meyer, and The National Federation of the Blind…

Court: United States District Court, S.D. Indiana, Indianapolis Division.

Date published: Mar 25, 2021

528 F. Supp. 3d 928 (S.D. Ind. 2021)

Opinion

No. 1:19-cv-03311-JMS-TAB

2021-03-25

Christopher MEYER, Sarah Meyer, and The National Federation of the Blind, Inc., Plaintiffs, v. Jennifer WALTHALL, in her official capacity as Secretary of the Indiana Family and Social Services Administration, and Adrienne Shields, in her official capacity as Director of the Indiana Division of Family Resources, Defendants.

Chelsea J. Crawford, Pro Hac Vice, Jessica P. Weber, Pro Hac Vice, Joseph B. Espo, Pro Hac Vice, Brown, Goldstein & Levy, LLP, Baltimore, MD, Emily A. Munson, Thomas E. Crishon, Indiana Disability Rights, Indianapolis, IN, Jana Eisinger, Pro Hac Vice, Law Office of Jana Eisinger, PLLC, Denver, CO, for Plaintiffs. Jefferson S. Garn, Kelly Earls, Sarah Ann Hurdle Shields, Zachary D. Price, Indiana Attorney General, Indianapolis, IN, for Defendants.

Jane Magnus-Stinson, Chief Judge

Chelsea J. Crawford, Pro Hac Vice, Jessica P. Weber, Pro Hac Vice, Joseph B. Espo, Pro Hac Vice, Brown, Goldstein & Levy, LLP, Baltimore, MD, Emily A. Munson, Thomas E. Crishon, Indiana Disability Rights, Indianapolis, IN, Jana Eisinger, Pro Hac Vice, Law Office of Jana Eisinger, PLLC, Denver, CO, for Plaintiffs.

Jefferson S. Garn, Kelly Earls, Sarah Ann Hurdle Shields, Zachary D. Price, Indiana Attorney General, Indianapolis, IN, for Defendants.

ORDER

Jane Magnus-Stinson, Chief Judge

Plaintiffs Christopher Meyer and Sarah Meyer, two blind individuals, along with the National Federation of the Blind, Inc. (the "NFB"), have sued Jennifer (Walthall) Sullivan¹ in her official capacity as Secretary of the Indiana Family and Social Services Administration (the "FSSA") and Adrienne Shields in her official capacity as Director of the Indiana Division of Family Resources (the "DFR"). Plaintiffs allege that the FSSA and the DFR have violated and continue to violate the Americans with Disabilities Act (the "ADA") and the Rehabilitation Act. [Filing No. 1.] Plaintiffs have filed a Motion for Summary Judgment, [Filing No. 66], and Defendants have filed a Cross-Motion for Summary Judgment, [Filing No. 72]. These motions are now ripe for the Court's consideration.

1 Secretary Walthall has changed her name to Jennifer Sullivan. [Filing No. 24 at 1 n.1.] The Clerk is DIRECTED to correct the docket to reflect that Defendant Jennifer Walthall's name is now Jennifer Sullivan.

I.

STANDARD OF REVIEW FOR SUMMARY JUDGMENT

A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B).

In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co. , 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co. , 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus. , 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller , 570 F.3d 868, 875 (7th Cir. 2009).

The existence of cross-summary judgment motions does not mean that there are no genuine issues of material fact: "[p]arties have different burdens of proof with respect to particular facts; different legal theories will have an effect on which facts are material; and the process of taking the facts in the light most favorable to the non-movant, first for one side and then for the other, may highlight the point that neither side has enough to prevail without a trial." R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Eng'rs, Local 150, 335 F.3d 643, 647-48 (7th Cir. 2003). Thus, a court is not required to grant summary judgment for either side when faced with cross-motions. "Rather, the court is to evaluate each motion on its merits, resolving factual uncertainties and drawing all reasonable inferences against the movant." Culvahouse v. City of LaPorte , 679 F. Supp. 2d 931, 936 (N.D. Ind. 2009) (quoting Crespo v. Unum Life Ins. Co. of America, 294 F. Supp. 2d 980, 991 (N.D. Ill. 2003) ).

The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them." Johnson , 325 F.3d at 898.

II.

EVIDENTIARY ISSUES

At the outset, Plaintiffs have filed a Surreply, [Filing No. 78], under Local Rule 56-1(d) seeking to strike portions of the affidavit of Allison Taylor, FSSA's Director of the Office of Medicaid Policy and Planning. In her affidavit, Ms. Taylor testifies about the availability of braille documents from Managed Health Services ("MHS"), a third-party claims administrator for the Medicaid program. [Filing No. 77-3.] Plaintiffs contend that the following paragraphs of the affidavit should be stricken because they are not based on Ms. Taylor's personal knowledge and contain hearsay:

4. MHS offers notifications and other important documents in Braille.

5. Such information is publicly available on MHS's website ....

6. I communicated with Geoffrey Petrie, Vice President, Compliance and Regulatory Affairs for MHS, who stated unequivocally that MHS offers documents in Braille upon request.

7. I also confirmed with three other MCEs: Anthem, Care Source, and MDWise that they send documents in Braille upon request.

[Filing No. 77-3 at 4.]

Paragraphs 6 and 7 are textbook hearsay and are stricken. See Gralia v. Edwards Rigdon Constr. Co., Inc. , 2020 WL 5913280, at *3 (S.D. Ind. Oct. 6, 2020) ("Testimony recounting what another individual said is a classic example of hearsay."). Paragraph 4 is stricken because the affidavit provides no insight as to how Ms. Taylor has personal knowledge about MHS policies regarding braille documents. See Smith v. Allstate Ins. Corp. , 2001 WL 1104713, at *7 (N.D. Ill. Sept. 18, 2001) ("While the court recognizes that Smith may have some knowledge of Brace's attendance, it is unclear how she would know the certainty of his attendance and, therefore, it will be disregarded."). Paragraph 5 is stricken only to the extent Ms. Taylor is testifying that MHS actually provides braille documents. The Court declines to strike Paragraph 5 insofar as Ms. Taylor is competent to testify that she viewed the website and the information she observed on the website.

In sum, Paragraphs 4, 6, and 7 of Ms. Taylor's affidavit, [Filing No. 77-3], are STRICKEN and Paragraph 5 is STRICKEN to the extent Ms. Taylor is testifying that MHS actually provides braille documents .

III.

STATEMENT OF FACTS

The following factual background is set forth pursuant to the summary judgment standard detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to "the party against whom the motion under consideration is made." Premcor USA, Inc. v. Am. Home Assurance Co. , 400 F.3d 523, 526-27 (7th Cir. 2005).

A. The Parties

1. Christopher Meyer

Plaintiff Christopher Meyer was born with Leber's congenital amaurosis, a condition present at birth that causes significant vision loss and blindness, and he is blind as a result. [Filing No. 66-3 at 7.] He reads braille and uses a variety of assistive technology to read standard alphanumeric print. [Filing No. 66-3 at 7-8.] To read hardcopy alphanumeric print documents, he uses applications that turn text into an audio output, or he uses human readers—referred to as sighted assistance—to read documents to him. [Filing No. 66-3 at 8-9.] The text-to-audio applications have some limitations, and Mr. Meyer estimates that they can only read between 50-80% of text on a document because the applications have difficulty interpreting documents with backgrounds or low-contrast texts. [Filing No. 66-3 at 9-10.]

Mr. Meyer can write, but is only comfortable with non-narrative writing, such as writing his name and date of birth. [Filing No. 71-1 at 35.] When longer narrative responses are required, he needs either sighted assistance or the document available in an electronic format so that he can type or use audio-to-text applications. [Filing No. 71-1 at 34-35.]

To navigate websites, Mr. Meyer uses "screen readers," which are software programs that read a computer screen and provide an audio output. [Filing No. 66-3 at 11-12.] He uses two screen readers for computers running Microsoft Windows, a third for Apple computers, and a fourth for Apple mobile products. [Filing No. 66-3 at 11-12.] For Windows, he uses screen readers called Job Access with Speech ("JAWS") and NonVisual Desktop Access ("NVDA"). [Filing No. 66-3 at 12.] For Apple, he uses VoiceOver for desktop and a separate VoiceOver application for mobile devices. [Filing No. 66-3 at 12.]

2. Sarah Meyer

Plaintiff Sarah Meyer is Christopher Meyer's sister. [Filing No. 66-3 at 23.] Like her brother, Ms. Meyer has been blind since birth as a result of Leber's congenital amaurosis. [Filing No. 66-4 at 8.] She also reads braille and uses a variety of text-to-audio applications to read hard copy documents, including an application called Aira which connects her to a human through a camera on a smart phone who then helps her "accomplish tasks such as reading or identifying labels on food packaging or looking for lost items or way finding through navigation." [Filing No. 66-4 at 9; Filing No. 66-4 at 14.] Sometimes instead of using applications to read hard copy documents, she will have a sighted friend read them for her. [Filing No. 66-4 at 11-12.]

Like Mr. Meyer, Ms. Meyer uses screen readers to navigate websites. She uses JAWS, NVDA, and VoiceOver, depending on which computer she is using. [Filing No. 66-4 at 12.]

3. The NFB

Plaintiff NFB is a non-profit national organization that advocates for blind individuals. [Filing No. 66-7 at 3.] The NFB "promotes the general welfare of the blind by assisting the blind in their efforts to integrate themselves into society on terms of equality and by removing barriers that result in the denial of opportunity to blind persons." [Filing No. 66-7 at 3.] Approximately 113 Indiana residents are members of the NFB, including Mr. Meyer and Ms. Meyer. [Filing No. 66-7 at 4; Filing No. 66-13 at 10.] Part of NFB's advocacy includes an extensive legal program, and the NFB has "at any given time dozens of potential legal cases happening." [Filing No. 74-1 at 13-14.]

4. FSSA and DFR

Defendant FSSA is the agency responsible for administering public benefits programs in the State of Indiana. [Filing No. 71-12 at 2.] Defendant DFR is a division within the FSSA that determines applicants’ eligibility for benefits programs, including Medicaid, Supplemental Nutrition Assistance Program ("SNAP"), and Temporary Assistance for Needy Families ("TANF"), and then administers those programs. [Filing No. 66-14 at 8.] The FSSA and DFR receive federal funds and are therefore subject to Title II of the ADA and Section 504 of the Rehabilitation Act. [Filing No. 66-8 at 5-7.]

B. Plaintiffs’ Communications with Defendants

1. Christopher Meyer

Mr. Meyer receives SNAP and Medicaid benefits through the State of Indiana. [Filing No. 66-3 at 18.] His Medicaid coverage claims are administered by MHS. [Filing No. 66-12 at 2-3.]

Until 2016, Mr. Meyer used a human reader to fill out his applications and paperwork concerning his Medicaid benefits. [Filing No. 66-3 at 16; Filing No. 66-5 at 5.] Around this time, he "had difficulty finding a human reader to help him manage DFR paperwork in a timely manner," and requested that DFR send him documents in braille. [Filing No. 66-5 at 5.]

In September 2017, DFR mailed Mr. Meyer an alphanumeric print letter requesting that he submit additional information for his Medicaid benefits. [Filing No. 66-5 at 5.] Mr. Meyer did not submit information on time and lost his Medicaid benefits. [Filing No. 66-5 at 5.]

In December 2017, a DFR representative contacted Mr. Meyer by phone to request additional information. [Filing No. 66-5 at 7.] During that call, Mr. Meyer requested that DFR send him documents in braille instead of alphanumeric text, but a DFR employee told Mr. Meyer that DFR could not provide braille documents. [Filing No. 66-5 at 7.] Mr. Meyer made a second phone call the following day to reiterate his request for braille documents. [Filing No. 66-5 at 7.]

On January 29, 2018, Mr. Meyer called DFR and asked for additional time to respond to DFR's request for additional information, and he once again requested that all future communications be sent in braille. [Filing No. 66-5 at 7.] The DFR representative told Mr. Meyer that his Medicaid coverage had been denied because of the failure to respond to the information request and further stated that DFR could not provide braille documents. [Filing No. 66-5 at 7.] Mr. Meyer received a call from DFR on January 31, 2018 during which a DFR representative suggested that Mr. Meyer could respond to DFR's requests with assistance from an authorized representative, but Mr. Meyer told her that he did not want to rely on sighted assistance to complete his Medicaid paperwork. [Filing No. 66-5 at 7-8.]

Mr. Meyer attempted to reapply for Medicaid benefits through the DFR's "Benefits Portal" website around March 2018 but was unable to do so because certain aspects of the Benefits Portal were not compatible with his screen readers, including drop-down menus, which rendered him unable to input information required to complete the application. [Filing No. 66-3 at 42-44.] Mr. Meyer ultimately used sighted assistance to complete the application. [Filing No. 66-3 at 16.]

On May 1, 2018, Mr. Meyer again called DFR and requested that documents be provided to him in braille, but he was once again told that DFR was unable to send braille documents. [Filing No. 66-5 at 8.]

On June 14, 2018, an FSSA representative called Mr. Meyer to reschedule his SNAP application interview, and during the call, Mr. Meyer once again requested to receive print documents in braille. [Filing No. 66-5 at 8.] Mr. Meyer also told the representative that the Benefits Portal was not accessible through his screen reader programs. [Filing No. 66-5 at 8.] During the June 14, 2018 phone call, Mr. Meyer learned that his new Medicaid application had been approved. [Filing No. 66-5 at 8.] Mr. Meyer made additional requests for braille documents during the period of June 18 to July 17, 2018. [Filing No. 66-5 at 8-9.]

On November 9, 2018, Mr. Meyer, through counsel, wrote to FSSA and DFR to request braille documents and "removal of accessibility barriers on FSSA's website." [Filing No. 66-5 at 9.] Director Shields responded with a letter dated December 13, 2018 in which she stated that DFR would provide all future correspondence to Mr. Meyer in braille. [Filing No. 71-5 at 4-5.] Director Shields’ letter explained that "[b]ecause many DFR documents are system generated, Mr. Meyer may receive two notices in some instances, one print and one Braille. Mr. Meyer will receive the print notice first, followed by the Braille notice." [Filing No. 71-5 at 4.] The letter further clarified that any response deadlines would be calculated based on the braille notice, not the print notice. [Filing No. 71-5 at 4.] Director Shields also reported that DFR's assessment of the Benefits Portal did not reveal any accessibility issues and requested that Mr. Meyer clarify the issues he encountered using his screen reader on the Benefits Portal. [Filing No. 71-5 at 4.]

Mr. Meyer also has had difficulties obtaining braille documents from MHS concerning his Medicaid claims. [Filing No. 66-12 at 2-3.] He made multiple requests to MHS to receive braille documents, but he has continued to receive printed text documents. [Filing No. 66-12 at 2.]

2. Sarah Meyer

Ms. Meyer receives SNAP and Medicaid benefits through Defendants. [Filing No. 66-4 at 21.] She initially applied for Medicaid when she turned 18 with sighted assistance. [Filing No. 66-4 at 24.] Ms. Meyer reports that she "first experienced difficulties related to her receipt of FSSA's inaccessible print communications as a college student in or about 2010, when she was removed from Indiana's Medicaid program due to a failure to submit required paperwork." [Filing No. 66-6 at 4-5.] She further states that she "was unable to read Defendants’ standard print notices instructing her to submit the required paperwork," and as a result missed the deadline. [Filing No. 66-6 at 5.] She contends that she "communicat[ed] with FSSA between December 2010 and early 2011 regarding FSSA's inaccessible print communications" but continued to receive print communications. [Filing No. 66-6 at 6.]

On May 13, 2019, Ms. Meyer called an FSSA office after receiving a print letter notifying her that she needed to submit additional documentation to maintain her Medicaid benefits. [Filing No. 66-6 at 6.] During this call, she requested that FSSA provide all materials in braille or an accessible electronic format. [Filing No. 66-6 at 6.] The FSSA representative responded that she would check with a supervisor about the request and follow up with Ms. Meyer, however Ms. Meyer did not receive a return phone call. [Filing No. 66-6 at 6.] Ms. Meyer called again later in May 2019 to inquire about her braille request. [Filing No. 66-6 at 6.] An FSSA representative called Ms. Meyer the following day and told her that the representative was unsure how to produce braille communications and suggested that Ms. Meyer authorize a representative to receive and read communications from Defendants on Ms. Meyer's behalf. [Filing No. 66-6 at 6.]

Ms. Meyer applied for SNAP benefits in early 2020 by calling the FSSA to ask for an application and then having a sighted individual with Meridian Health Services help her complete the application. [Filing No. 66-4 at 18.] She did not request a braille application. [Filing No. 66-4 at 18.]

Ms. Meyer does not generally use FSSA and DFR websites but has been on "the general FSSA website and those were fine." [Filing No. 66-4 at 48.] She has not attempted to complete any online applications or use the Benefits Portal. [Filing No. 66-4 at 48-49.]

3. The NFB

The NFB became aware in August 2018, through Mr. Meyer, of the issues with Defendants’ print communications and websites. [Filing No. 74-1 at 20-21.] The NFB itself has never requested braille documents from Defendants. [Filing No. 74-1 at 22-23.] However, in addition to the Meyers, another Indiana NFB member who receives Medicaid benefits through Defendants, Kaitlyn Shelton, requested braille documents from DFR in April, May, and October 2019, but she has "yet to receive any documents from FSSA or DFR in Braille or an accessible electronic format" as of October 6, 2020. [Filing No. 66-11 at 3.] Ms. Shelton also requested that MHS, her Medicaid claims administrator, provide her with documents "in Braille or an electronic format" in January 2020, and "[w]hile MHS has provided some general documents, such as member brochures and flyers electronically, MHS has yet to provide any correspondence specific to [Ms. Shelton] in either Braille or an accessible format." [Filing No. 66-11 at 3.]

C. Defendants’ Response to Requests for Documents in an Alternative Format

Prior to August 2019, DFR had no formal process for requesting braille documents, other than representatives making a note in the requestor's case notes. [Filing No. 66-14 at 34-38; Filing No. 66-20 at 11.] DFR had some capacity to generate braille documents through a braille embosser possessed by FSSA's Division of Disability and Rehabilitative Services ("DDRS"). [Filing No. 66-9 at 8; Filing No. 66-14 at 15-16.]

In response to Mr. and Ms. Meyer's repeated requests in 2018 and 2019, Defendants implemented a policy in August 2019 regarding requests for braille or large-print documents and purchased a braille embosser for DFR's use. [Filing No. 66-20 at 9.] When an individual requests correspondence in braille or large-print, DFR staff adds a note to the application or the recipient's electronic case file. [Filing No. 66-9 at 7.] The note obviates the need for the individual to continue to request documents in an alternate format. [Filing No. 66-20 at 7.] After that occurs, when correspondence is sent to the individual, an email alert notifies DFR to send the individual the alternate format requested. [Filing No. 66-9 at 7.] If the correspondence includes a request for documentation from the recipient, "all due dates are adjusted to coincide with the date of mailing of the alternate format document." [Filing No. 66-9 at 7; see also Filing No. 66-20 at 5-6.] In or around August 2019, DFR implemented training for all DFR staff on the policy and procedure for requesting braille and large-print documents. [Filing No. 66-20 at 12.]

DFR employee Jasmine Holliday has primary responsibility for fulfilling braille and large-print requests, with DFR employees Sunshine Beam and Michael Carter serving as back-ups. [Filing No. 66-20 at 21-22.] When an individual requests correspondence in braille, Ms. Holliday and Ms. Beam receive email alerts that the request has been made. [Filing No. 66-14 at 27.] Ms. Holliday then creates the braille documents with a braille embosser manufactured by a company called ViewPlus that DFR purchased in October 2019. [Filing No. 66-14 at 27.] Ms. Holliday received training on how to use the braille embosser from ViewPlus, [Filing No. 66-15 at 7-8], as well as from Locket Phillips, a DDRS employee who had prior experience using a braille embosser, [Filing No. 66-14 at 28-29]. Before the arrival of DFR's braille embosser in October 2019, Ms. Holliday worked with Mr. Phillips to generate braille letters on DDRS's braille embosser. [See Filing No. 66-35 at 2-3.] Ms. Holliday does not read braille, nor does Mr. Phillips. [Filing No. 66-14 at 29-30.]

To operate the ViewPlus embosser, Ms. Holliday copies the alphanumeric print text for transcription by using a software program called Tiger, which converts the text to braille. [Filing No. 66-15 at 20.] The braille is then sent to the ViewPlus embosser, which prints the document in braille. [Filing No. 66-15 at 21-22.] The embosser prints the alphanumeric text below the braille. [Filing No. 66-15 at 22.] After the document is embossed with braille, Ms. Holliday checks the document by viewing the alphanumeric text under the braille, to ensure braille appears with each word. [Filing No. 66-15 at 22.] Beyond Ms. Holliday's visual inspection of the braille document generated by the embosser, there is no other quality assurance protocol in place. [Filing No. 66-14 at 31.]

D. The Quality of the Braille Documents Generated by Defendants

Mr. Meyer received a braille notice dated August 5, 2019 from Defendants regarding his SNAP benefits. [Filing No. 71-1 at 52.] DFR's case notes suggest that the braille notice dated August 5, 2019 was mailed on August 7, 2019. [Filing No. 66-27 at 25.] This was the first braille document that DFR sent Mr. Meyer. [Filing No. 74-2 at 29.] During his deposition, Mr. Meyer was able to read the braille notice dated August 5, 2019. [Filing No. 71-1 at 52-57.] He confirmed that he also received braille documents from Defendants relating to his Medicaid benefits. [Filing No. 71-1 at 56.]

However, Mr. Meyer says, "[t]here are significant issues within the braille content that ... [he has received from Defendants] that makes it unreadable." [Filing No. 71-1 at 59.] For example, Mr. Meyer testified about perforation issues with Defendants’ braille documents:

So another example that I've seen in the document is braille which is embossed across the perforation. So if you look at how these pages are perforated, these are actually not supposed to be sent as a single stack, all – you know, still together. They're supposed to be torn apart down these perforated edges, right? And the way that some of the documents I've received have come have had braille across those lines, across the perforation lines so that I can't make out the braille. If I were to tear those perforated papers without knowing this, I would destroy that portion, the -- I would destroy that braille. And if I even just leave it as is, I can't read that braille. It's because there are all these dots. All these dots are clustering up the -- the perforation dots are making it hard to read the braille dots.

[Filing No. 71-1 at 60.] Mr. Meyer also testified that graphics on Defendants’ letters interfered with the braille symbols for the date atop the letter. [Filing No. 71-1 at 59.] Ms. Meyer likewise found the braille documents that she began receiving difficult to read, although she could understand the "gist" of the letters. [Filing No. 66-4 at 34-36.] She cited the lack of page numbers, the same perforation issue described by her brother, improper margins, and the appearance of random symbols, among other issues. [Filing No. 66-4 at 36-40.]

Plaintiffs’ expert, Jennifer Dunnam, evaluated the braille documents sent by Defendants to Mr. Meyer. [Filing No. 66-25 at 2; Filing No. 66-25 at 10.] Ms. Dunnam testified that not all blind people read braille—the commonly used figure is 10-15%. [Filing No. 66-24 at 4.] Ms. Dunnam found that some of the letters generated on DFR's embosser were problematic because they were brailled entirely in ASCII braille, also known as "computer braille." [Filing No. 66-24 at 5.] This means that the braille appeared as plain text, with incorrect formatting, numbering, capitalization, and punctuation. [Filing No. 66-24 at 5-6.] According to Ms. Dunnam, "if the document depends on numbers for understanding it, there is a very good chance that the person will not be able to read the numbers accurately." [Filing No. 66-24 at 6.] Other issues identified by Ms. Dunnam in some of Defendants’ documents include: lack of margins, tables not presented with proper formatting, extra symbols and characters, improper spacing, and improper paragraph formatting. [Filing No. 66-25 at 11-13.] However, Ms. Dunnam could understand the content of Defendants’ braille documents. [See Filing No. 71-10 at 4-13].

E. Defendants’ Websites

Plaintiffs complain about the accessibility of three of Defendants’ websites: the Benefits Portal, the FSSA Homepage, and the Medicaid Homepage. [See Filing No. 68 at 15-18.]

1. The Benefits Portal

The Benefits Portal (https://fssabenefits.in.gov ) provides "an intake mechanism for Medicaid, SNAP and TANF eligibility applications." [Filing No. 66-17 at 39.] Online applications are the most popular method by which to apply for benefits. [Filing No. 66-21 at 12.] In addition to the Benefits Portal, individuals can also apply for benefits in person at a DFR office or over the phone. [Filing No. 66-21 at 8.]

DFR is responsible for the site but uses outside vendors to maintain and support the Benefits Portal. [Filing No. 66-9 at 20.] Until September 30, 2020, RCR Technology ("RCR") maintained and supported the Benefits Portal. [Filing No. 66-16 at 11.] Pursuant to its contract with DFR, RCR was responsible for ensuring that the Benefits Portal was accessible, including compliance with all applicable federal and state laws addressing disability access. [Filing No. 66-14 at 50-51.] When the current iteration of the Benefits Portal was developed in 2016, according to Gary Hart, a developer with RCR, they "looked at the Section 508² [of the Rehabilitation Act] guidelines and to ensure, you know, based on our opinion that [the portal] was ADA compliant." [Filing No. 66-22 at 9.] Starting October 1, 2020, Moser IT Consulting ("Moser") became responsible for the Benefits Portal. [Filing No. 66-16 at 11-12.] Beyond contractual terms with RCR and now Moser, DFR does not have a separate written policy regarding website accessibility and depends on RCR and Moser to ensure the Benefits Portal meets accessibility standards. [Filing No. 66-14 at 42; Filing No. 66-17 at 21-24.]

2 Section 508 of the Rehabilitation Act imposes requirements on federal departments and agencies to ensure that all electronic and information technology is accessible to individuals with disabilities. See 29 U.S.C. § 794d(a). Section 504 generally applies to entities, including state and local governments, that receive federal funds and is not focused on electronic information and technology. See 29 U.S.C. § 794.

Ron Mis, a blind DFR worker, was asked to fill out an application via the Benefits Portal using a screen reader in the fall of 2019. [Filing No. 66-14 at 59-63.] Mr. Mis was able to complete an application on the Benefits Portal using the screen reader JAWS. [Filing No. 66-14 at 64.] However, he reported that JAWS "does not read the DFR home page which gives the directions on how to apply an[d] connects you to the actual application itself," so a blind applicant would need assistance to access the application from the homepage. [Filing No. 66-38 at 2.] Once Mr. Mis accessed the application, he could successfully complete the application with JAWS. [Filing No. 66-38 at 2.]

RCR tested the Benefits Portal in August and September 2019 against numerous assistive technologies. [Filing No. 66-14 at 69.] RCR identified aspects of the Benefits Portal that had limitations with different assistive technologies. [Filing No. 66-22 at 16; Filing No. 66-32.] Specifically, RCR found that some text-to-audio programs, such as Read Aloud, Speak It for Chrome, and Windows Narrator were unable to read text on dropdown menus correctly. [Filing No. 66-32 at 3.] When RCR tested JAWS on September 24, 2019, it noted no limitations and confirmed that JAWS could correctly read drop down values, bullet text, and selection boxes. [Filing No. 66-32 at 2.] DFR instructed RCR to address the limitations cited in the report. [Filing No. 66-21 at 31.] Jeffrey Montgomery, a technology consultant for DFR, conducted another test in 2020 by replicating RCR's 2019 testing. [Filing No. 66-21 at 32.] He found no limitations. [Filing No. 66-21 at 33.]

Plaintiffs’ expert, Terri Youngblood Savage, evaluated the Benefits Portal using the standards set forth in the World Wide Web Consortium's Web Content Accessibility Guidelines ("WCAG") 2.1, which includes all the WCAG 2.0 guidelines. [Filing No. 66-26 at 3; Filing No. 66-26 at 16.] According to Ms. Youngblood Savage, WCAG standards are "a set of requirements that is the international system of coding standards" used to ensure that websites are accessible. [Filing No. 66-26 at 20.] Ms. Youngblood Savage uses WCAG standards to determine whether a particular website is accessible to blind individuals. [Filing No. 66-23 at 7.]

In an initial report dated March 2020, Ms. Youngblood Savage concluded that portions of the Benefits Portal were inaccessible. [Filing No. 66-23 at 11.] She identified the following aspects of the Benefits Portal that were not in compliance with WCAG 2.1 standards:

• Insufficient color contrast with some of the text on the portal, [Filing No. 66-26 at 46-47];

• The "Forgot User ID" and "Forgot Password" links on the log-in screen were not keyboard accessible, [Filing No. 66-26 at 46]; and

• Help icons that appear throughout the application were not accessible, [Filing No. 66-26 at 48].

Ms. Youngblood Savage issued a supplemental report analyzing the Benefits Portal in August 2020. In addition to the findings from her initial report, Ms. Youngblood Savage further concluded that form fields were not coded to WCAG 2.1 guidelines and thus were not being read to blind users. [Filing No. 66-26 at 58-71.] In light of the issues she identified, Ms. Youngblood Savage opined that the Benefits Portal is not fully accessible and poses barriers to blind individuals which prevent them from accurately applying for benefits. [Filing No. 66-26 at 71.]

In response to Ms. Youngblood Savage's initial and supplemental reports, Mr. Montgomery worked with Moser and RCR to address accessibility issues raised in the reports. [Filing No. 71-7 at 2.] Specifically, the following remedial work was performed on the Benefits Portal and completed by October 15, 2020:

• Color contrast and font issues were reviewed and adjustments made to comply with WCAG 2.1 contrast and font standards, [Filing No. 71-7 at 3];

• Adjustments to ensure navigation via the Tab key was available for all links so that use of a cursor and mouse was not necessary, [Filing No. 71-7 at 3];

• Text was confirmed to work with narration software, including free programs, those built into browsers and operating systems, and JAWS, [Filing No. 71-7 at 3]; and

• Help buttons were adjusted to ensure they were keyboard accessible via the Tab key, [Filing No. 71-7 at 3].

Furthermore, Moser agreed to alter the terms of its contract with DFR to require Moser to ensure the Benefits Portal meets WCAG 2.1 standards. [Filing No 71-7 at 4.] Mr. Montgomery notes, however, that WCAG 2.1 "is not a standard that is federally or State of Indiana required for the DFR Benefits Portal or for other websites of similar type." [Filing No. 71-7.] Mr. Montgomery also contends that the Benefits Portal was accessible to blind individuals when Plaintiffs initiated this litigation in August 2019 and is accessible today. [Filing No. 71-7 at 4.] Tyrone Moser, who owns and operates Moser, testified that the remedial work identified by Mr. Montgomery was performed by Moser. [Filing No. 71-11 at 2-3.]

After Mr. Montgomery and Mr. Moser performed these fixes on the Benefits Portal, Ms. Youngblood Savage provided a supplemental affidavit stating that she had reviewed Defendants’ website again in November 2020 and noted that "some of the accessibility issues that I found during my initial review have been fixed." [Filing No. 74-8 at 3.] However, she testified that the Benefits Portal's application was not fully accessible because "[m]ost of the Dropdown boxes in the application are missing an accessible label so they are not read to the screen reader user as they tab through the application form," and "[t]he Useful Links found at the bottom of the FSSA Benefits Portal page are missing an accessible name," so the screen reader "does not announce the proper labels," and therefore the portal does not meet WCAG 2.1 guidelines. [Filing No. 74-8 at 3-4.]

2. The FSSA Homepage and Medicaid Homepage

The FSSA Homepage (https://www.in.gov/fssa ) serves as the landing page for FSSA's services and is under the control of FSSA but was developed and is managed by a third party called Indiana Interactive. [Filing No. 66-19 at 7; Filing No. 66-19 at 39.] The same is true for FSSA's Medicaid Homepage (https://www.in.gov/medicaid ); it serves as the landing page for information about the Medicaid program and was developed and is managed by Indiana Interactive. [Filing No. 66-19 at 7; Filing No. 66-19 at 47.] All websites operated by FSSA, including the FSSA Homepage and Medicaid Homepage, include a button for a user to utilize a built-in "BrowseAloud" text-to-audio program. [Filing No. 66-19 at 24; Filing No. 66-21 at 36.] According to Jared Linder, chief information officer of FSSA, FSSA's contracts with website developers and operators specify that the websites must comply with Section 508 of the Rehabilitation Act. [Filing No. 66-19 at 19-20.]

In her March 2020 report, Ms. Youngblood Savage opined that BrowseAloud and similar applications that read a webpage to a user are "nice feature[s] but do[ ] not replace accessibility programming of the website" because "[m]any requirements for accessibility have not been addressed by using this tool." [Filing No. 66-26 at 22.] Ms. Youngblood Savage applied the WCAG 2.1 standards to the FSSA Homepage and Medicaid Homepage and identified the following aspects of the websites that did not comply with the WCAG 2.1:

• "Search" button not labeled as a button or link, [Filing No. 66-26 at 23; Filing No. 66-26 at 35];

• Labels for data input were not properly coded so were not read aloud via screen readers, [Filing No. 66-26 at 23];

• Expand/collapse functions did not work with screen readers, [Filing No. 66-26 at 24; Filing No. 66-26 at 33; Filing No. 66-26 at 39];

• The search result of "no results" was not announced on different search pages, [Filing No. 26 at 24];

• Form fields were not properly coded or accessible by a keyboard, [Filing No. 66-26 at 26; Filing No. 66-26 at 29; Filing No. 66-26 at 35; Filing No. 66-26 at 44];

• Lack of keyboard navigation to select items from a menu, [Filing No. 66-26 at 43];

• Lack of a visual focus on a webpage, [Filing No. 66-26 at 27; Filing No. 66-26 at 37; Filing No. 66-26 at 40; Filing No. 66-26 at 42];

• Low color contrast, [Filing No. 66-26 at 27; Filing No. 66-26 at 30; Filing No. 66-26 at 32; Filing No. 66-26 at 40-41; Filing No. 66-26 at 44];

• Modal pop-up boxes are not read aloud because the program is still focused on reading the back page, [Filing No. 66-26 at 28];

• PDF documents available for download were not fully tagged, [Filing No. 66-26 at 30; Filing No. 66-26 at 33; Filing No. 66-26 at 36-37];

• Images lacking "alt text" describing the image, [Filing No. 66-26 at 30];

• Menu button not coded to announce it is a button that can be opened, [Filing No. 66-26 at 31];

• Informational tables not properly labeled with headers, [Filing No. 66-26 at 34; Filing No. 66-26 at 36; Filing No. 66-26 at 38]; and

• PDF forms that are not fillable, [Filing No. 66-26 at 45].

Ms. Youngblood Savage opined that because of these issues, the FSSA Homepage and Medicaid Homepage are not fully accessible to blind users and pose barriers that prevent blind individuals from accessing services and information available via these webpages. [Filing No. 66-26 at 49.]

FSSA undertook efforts to address the concerns identified in Ms. Youngblood Savage's March 2020 report. [Filing No. 71-6 at 1-2.] Specifically, Mr. Linder reports that the following work was performed on the FSSA and Medicaid Homepages:

• Expanded tab buttons to assure that other screen readers, outside of BrowseAloud, can expand and collapse tabs and read tabs without additional user input;

• Fixes to ensure webpages have a visual focus;

• Fixes to ensure side menus are announced;

• Fixes to make the menu more navigable;

• Ensured filters are more navigable; and

• Trained FSSA staff on content creation.

[Filing No. 71-6 at 2.] He contends that the FSSA Homepage and Medicaid Homepage were accessible at the time the lawsuit was initiated in August 2019 and are currently accessible. [Filing No. 71-6 at 2.] He also notes that WCAG 2.1 standards are voluntary and not mandated. [Filing No. 71-6 at 1.]

When Ms. Youngblood Savage performed a review in November 2020 after the fixes described by Mr. Linder were performed, she noted that "some of the accessibility issues that I found during my initial review have been fixed," but she "noticed that there are many accessibility barriers that still exist." [Filing No. 74-8 at 3.] Specifically, she identified "[m]issing visual focus on the main menu of the Indiana FSSA and Indiana Medicaid home pages to allow a visually impaired keyboard user to tab to the menu and navigate the main menu." [Filing No. 74-8 at 3.] She opines that the modified website does not meet the WCAG 2.1 standards. [Filing No. 74-8 at 4.]

F. New ADA Coordinator

While discovery was underway in this case, FSSA was in the process of hiring for a newly created position that would serve as ADA coordinator. [Filing No. 66-18 at 14-17.] According to Director Shields, the individual fulfilling this position "would help identify any concerns, and have a team to help address any concerns that arise as to website accessibility and alternative formats, and other concerns that may arise." [Filing No. 71-5 at 1.] In January 2021, FSSA hired Dr. Breanca Merritt to fill this position. [Filing No. 77-2 at 1.]

G. The Lawsuit

Plaintiffs filed this lawsuit on August 4, 2019, alleging Defendants’ websites and their provision of braille correspondence violate Title II of the ADA and Section 504 of the Rehabilitation Act. [Filing No. 1 at 14-19.] Plaintiffs do not seek damages aside from incurred attorneys’ fees and costs and instead ask this Court to enter a permanent injunction

prohibiting Defendants from violating Title II of the ADA, and requiring Defendants, their successors, agents, contractors, assigns, representatives, employees, and all person acting in concert therewith, to ensure that Plaintiffs have equally effective access to all information Defendants provide to Indiana residents, including but not limited to: by providing equal access to all print communications in appropriately secure formats that are accessible to blind persons, including Braille, large print, audio CD, and digital navigable formats supported by computers and/or digital talking-book players, transmitted through data CD flash drive, e-mail, or other requested media; by remediating their

websites so that they provide equally effective communication to the blind; and by implementing policies, procedures, and practices to ensure the consistent and affirmative provision of alternative formats to blind individuals, such that blind individuals need not make multiple requests for accessible formats.

[Filing No. 1 at 19-20.] As discussed above, Defendants have implemented new policies and undertaken remediation efforts since the filing of the lawsuit in August 2019.

IV.

DISCUSSION

Plaintiffs base their claims on the ADA and the Rehabilitation Act. Title II of the ADA, which applies to public entities, provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Similarly, Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity" covered by the Act. 29 U.S.C. § 794(a). Title II was modeled after Section 504, and "the elements of the claims under the two provisions are nearly identical" such that the Seventh Circuit generally will "apply precedent under one statute to cases involving the other." Lacy v. Cook Cnty., Ill. , 897 F.3d 847, 852 n.1 (7th Cir. 2018) (citation and quotation marks omitted).

Plaintiffs filed a Motion for Summary Judgment, asking the Court to find that Defendants "fail[ ] to provide them equally effective access" to Defendants’ communications and that Defendants’ failures "prevent blind Indiana residents from equal participation in Indiana's state-administered public assistance benefits, services, programs, and activities" and enter a permanent injunction. [Filing No. 66 at 1-2.] Defendants filed a Cross-Motion for Summary Judgment, challenging Plaintiffs’ standing to assert their claims, arguing that Defendants’ processes and remedial efforts undertaken by Defendants have mooted the claims, and also seeking judgment in their favor on the merits of the claims. [Filing No. 72.]

"Because the standing requirement enforces a constitutional restraint on the judicial power, federal courts must ‘always require that a litigant have standing to challenge the action sought to be adjudicated in the lawsuit’ before proceeding to the merits of a claim." Carello v. Aurora Policemen Credit Union , 930 F.3d 830, 833 (7th Cir. 2019) (quoting Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc. , 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) ) (alterations omitted). Therefore, the Court addresses Defendants’ standing challenge first.

A. Standing

Defendants first contend that Plaintiffs lack standing to assert their claims because Mr. Meyer and Ms. Meyer are receiving SNAP and Medicaid benefits and therefore cannot establish that they were excluded from or denied a benefit, service, or program. [Filing No. 73 at 17.] Defendants state that Plaintiffs are "attempting to use an ‘expert’ to create an injury where none existed" and liken this case to Carello , 930 F.3d 830, in which the Seventh Circuit found that a blind plaintiff lacked standing to assert a Title III³ claim against a credit union related to inaccessibility of the credit union's website where plaintiff was an ADA-compliance tester and not eligible to join the credit union. [Filing No. 73 at 17.] Defendants also argue that only one of the Plaintiffs—Mr. Meyer—has alleged any access barriers with respect to Defendants’ websites, that Mr. Meyer was unable to "provide any concrete details of what functions were allegedly not available," [Filing No. 73 at 24], and that this "lack of specificity undermines the concreteness of Plaintiffs’ injury [such that] he shows no concrete injury in fact," [Filing No. 73 at 25]. With respect to braille correspondence, Defendants argue that Plaintiffs have not shown a concrete injury because "Plaintiffs were told several months before filing this lawsuit that they would receive notifications in Braille (accompanied with automatic standard-print notices)" and because Plaintiffs are currently receiving braille documents. [Filing No. 73 at 26.] Defendants also contend that Plaintiffs cannot establish that they are under threat of imminent injury in order to seek injunctive relief because the issues Plaintiffs identified with websites and protocol for sending braille correspondence have already been addressed. [Filing No. 73 at 30.] Defendants also argue that Title II and Section 504 do not apply to their websites, and therefore Plaintiffs cannot show that they have been injured.⁴ [Filing No. 73 at 19-23.]

3 Title III of the ADA applies to individuals or entities that operate "a place of public accommodation," such as a business. 42 U.S.C. § 12182.

4 This argument is more appropriately addressed in an analysis of the merits of Plaintiffs’ Title II and Section 504 claims, not an analysis of whether Plaintiffs have standing to sue Defendants.

Plaintiffs respond that unlike the plaintiff in Carello , Mr. Meyer and Ms. Meyer are not testers or theoretical users of Defendants’ services; rather, they are active beneficiaries of Defendants’ programs and have suffered tangible harms. [Filing No. 75 at 18.] Plaintiffs contend that the lack of braille documents resulted in lapses in benefits and that "while Defendants now provide the Meyers with Braille documents, the quality of those documents is so poor that they cannot decipher them in their entirety." [Filing No. 75 at 19-20.] Plaintiffs also state that Defendants’ contractors failed to send requested braille documents. [Filing No. 75 at 20-21.] Plaintiffs take issue with Defendants’ assertion that Mr. Meyer's description of his problems with accessing Defendants’ websites was not particularized enough, arguing that "Mr. Meyer cannot fully describe the information on the Benefits Portal that is inaccessible to him because it is just that—inaccessible." [Filing No. 75 at 21.] In addition, Plaintiffs argue that the NFB has associational standing to sue on behalf of its members residing in Indiana. [Filing No. 75 at 24-25.] It notes that another Indiana NFB member, Ms. Shelton, requested that Defendants send her accessible documents since April 2019, but Defendants have yet to do so. [Filing No. 75 at 25.] In addition to associational standing through NFB members, Plaintiffs contend that the NFB has standing to assert these claims on its own behalf because the NFB has had to divert resources to address the alleged deficiencies, causing it to suffer a direct injury. [Filing No. 75 at 25-26.] Plaintiffs contend that they have demonstrated that they are under threat of a future injury warranting injunctive relief because the braille documents from Defendants are "difficult, and at times, impossible, to decipher," [Filing No. 75 at 27], and, additionally, Mr. Meyer "faces a real and immediate threat of future injury resulting from Defendants’ inaccessible websites" because Mr. Meyer "cannot privately and independently utilize the Benefits Portal," [Filing No. 75 at 29]. Plaintiffs contend that so long as Defendants fail to employ an individual who reads braille to review braille documents, Plaintiffs risk receiving unreadable braille documents. [Filing No. 75 at 27-28.] They further argue that the NFB will face immediate future injury of expending additional resources to address Defendants’ websites and correspondence, and its members will also face future injury of inaccessible websites and correspondence. [Filing No. 75 at 28-29.]

Defendants reply by taking issue with Plaintiffs’ characterization of the evidence, arguing that Mr. Meyer and Ms. Meyer were not disenrolled from Medicaid because they could not read alphanumeric print notices, and say that even if that were true, it is undisputed that Plaintiffs are now receiving braille documents from Defendants. [Filing No. 76 at 24.] Defendants assert that the NFB has not established standing because it has not shown that Defendants’ websites and braille communications are disrupting the NFB's typical work on behalf of blind individuals and because the only member to raise concerns about website accessibility was Mr. Meyer with regard to the Benefits Portal. [Filing No. 76 at 29-30.]

1. Distinction between Standing and Mootness

At the outset, the Court notes that the parties conflate concepts of standing and mootness. [See, e.g. , Filing No. 73 at 30 ("Plaintiffs cannot demonstrate imminent injury because all issues claimed by Plaintiffs’ claim for injunctive relief are moot because the relief requested has already been provided to the Plaintiffs."); Filing No. 75 at 27 ("Defendants have not mooted this case by providing Plaintiffs’ requested relief. Defendants’ Braille documents are unreadable in their entirety, and their websites are littered with accessibility barriers.").] As the Supreme Court has acknowledged, "[t]he confusion is understandable, given this Court's repeated statements that the doctrine of mootness can be described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ " Friends of Earth, Inc. v. Laidlaw Env't Servs., Inc. , 528 U.S. 167, 189-90, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting Arizonans for Official English v. Ariz., 520 U.S. 43, 68, n.22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ). Unlike standing, for which a plaintiff bears the burden of proof, the burden of proving that a controversy is moot lies with the party asserting mootness, which is usually the defendant, and the Supreme Court has acknowledged that "there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness." Id. at 190, 120 S.Ct. 693. The Seventh Circuit has described the distinction between standing and mootness as follows: "Standing is evaluated at the time suit is filed .... In contrast, ‘when a party with standing at the inception of the litigation loses it due to intervening events, the inquiry is really one of mootness.’ " Milwaukee Police Ass'n v. Bd. of Fire & Police Comm'rs of City of Milwaukee , 708 F.3d 921, 928 (7th Cir. 2013) (quoting Parvati Corp. v. City of Oak Forest , 630 F.3d 512, 516 (7th Cir. 2010) ) (internal citation and alteration omitted).

With this distinction in mind, the Court will first address whether Plaintiffs have standing and then address whether the lawsuit is moot.

2. Legal Standard

Plaintiffs always bear the burden of showing they have standing to sue. Hummel v. St. Joseph Cnty. Bd. of Comm'rs , 817 F.3d 1010, 1016 (7th Cir. 2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). When standing is challenged by a motion for summary judgment, "plaintiffs cannot rest on ‘mere allegations’ but must offer evidence of standing." Id. (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ). A plaintiff must meet three requirements to establish standing: "(1) injury in fact, which must be concrete and particularized, and actual and imminent; (2) a causal connection between the injury and the defendant's conduct; and (3) redressability." Scherr v. Marriott Int'l, Inc. , 703 F.3d 1069, 1074 (7th Cir. 2013) (citing Lujan , 504 U.S. at 560-61, 112 S.Ct. 2130 ). To analyze standing, the Court must assess the facts as they existed at the time the Complaint was filed. See Lujan , 504 U.S. at 560 n.4, 112 S.Ct. 2130 (noting the "longstanding rule that jurisdiction is to be assessed under the facts existing when the complaint is filed"). See also Straw v. Vill. of Streamwood, Ill. , 734 F. App'x 344, 349 (7th Cir. 2018) (holding that "we must assess standing as of the time the action commences").

Defendants challenge the first requirement—whether Plaintiffs have established injury in fact. To satisfy the injury-in-fact requirement, a plaintiff must allege that he or she suffered an injury that is both concrete and particularized. Spokeo, Inc. v. Robins , 578 U.S. 330, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635 (2016). "For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’ " Id. (quoting Lujan , 504 U.S. at 560 n.1, 112 S.Ct. 2130 ). To be concrete, the injury must be real and not abstract. Id.

Furthermore, "when a federal court addresses a claim for injunctive relief, it must take care to determine whether plaintiffs have offered evidence of a ‘real and immediate’—and not just a ‘conjectural or hypothetical’—threat of a future violation of their rights." Hummel , 817 F.3d at 1016 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ). "Past exposure to illegal conduct does not in itself show a present case or controversy requiring injunctive relief ... if unaccompanied by any continuing, present adverse effects." Lujan , 504 U.S. at 564, 112 S.Ct. 2130 (internal quotation marks omitted). Thus, to obtain injunctive relief, an ADA plaintiff must show a "past injury under the ADA; show that it is reasonable to infer ... that this discriminatory treatment will continue; and show that it is also reasonable to infer, based on the frequency of [plaintiff's] visits ... that [plaintiff] intends to return to the [place of accommodation] in the future." Scherr , 703 F.3d at 1074 (internal quotation marks and citation omitted).

In Carello , the Seventh Circuit considered whether a blind ADA-compliance "tester" had standing to bring an ADA claim against a credit union whose website was incompatible with the tester's screen reader. 930 F.3d at 832. The Court concluded that the tester lacked standing because he was not eligible to become a member of the credit union and use its services and because the dignity harm that he claimed to have suffered was not personalized to him. Id. at 834 ("Here, there is no connection between [plaintiff] and the Credit Union that distinguishes him from anyone else who is ineligible for membership and offended by the Credit Union's failure to comply with the ADA.").

In Hummel , plaintiffs using wheelchairs argued that the county violated Title II and Section 504 because it did not adequately remove snow from the courthouse parking lot after snowfalls. 817 F.3d at 1014. The Seventh Circuit concluded that the plaintiffs lacked standing to obtain injunctive relief, finding that on the evidence before the Court, the plaintiffs did not face "a real and immediate threat that they will be subjected to a violation of their rights" because the Court could "only speculate" whether the plaintiffs’ ongoing court cases would "involve court appearances on future snowy days." Id. at 1019. The Court clarified that "[t]his is not to say that the possibility of future injury must be certain, but there must be at least a substantial risk that such harm will occur." Id. (citing Am. Bottom Conservancy v. U.S. Army Corps of Eng'rs , 650 F.3d 652, 658 (7th Cir. 2011) and Bauer v. Shepard , 620 F.3d 704, 708 (7th Cir. 2010) ).

3. Christopher Meyer

When Mr. Meyer initiated this action, he was not consistently receiving braille correspondence from Defendants and could not navigate the Benefits Portal because of barriers he encountered while accessing that website with his screen reader. Mr. Meyer received and continues to receive SNAP and Medicaid benefits through Defendants, and therefore his continued need to communicate with Defendants about these programs is "real and immediate" and "not just conjectural or hypothetical." See Hummel , 817 F.3d at 1016. Unlike the Carello plaintiff, Mr. Meyer is an active user of Defendants’ services and depends on Defendants to receive information concerning his benefits, which distinguishes him from members of the general public that may visit Defendants’ websites. See Carello , 930 F.3d at 834.

Defendants’ contention that no immediate threat of injury exists because Mr. Meyer "has not used Defendants’ websites in years" and does not know if the websites are currently accessible with his screen reader misses the point. Unlike the plaintiff in Hummel , it is beyond speculation that Mr. Meyer, as a recipient of Defendants’ services, will continue to need to access information and communicate with Defendants via their websites. See id. at 1019.

Defendants’ argument that Mr. Meyer cannot show injury because he is receiving his requested benefits misses the mark by myopically focusing on the word "benefit" in Title II's provision that bars public entities from "exclud[ing] participation in or ... den[ying] the benefits of the services, programs, or activities of a public entity" to a qualified disabled individual. 42 U.S.C. § 12132. "Benefits" in this statute does not mean the same thing as "public assistance benefits," like SNAP or Medicaid, but rather means benefits in the more general sense. See, e.g. , 42 U.S.C. § 12131(2) (defining the term "qualified individual with a disability" as an "individual who, with or without reasonable modifications to rules, policies, or practices ... or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity").

Equally unavailing is Defendants’ argument that Mr. Meyer's explanations about what specific aspects of Defendants’ websites were inaccessible are not detailed enough to confer standing. [See Filing No. 73 at 24.] Defendants cite Price v. City of Ocala , 375 F. Supp. 3d 1264 (M.D. Fla. 2019), in support of their argument. In that case, the plaintiff, a blind individual, attempted to visit the City of Ocala's website "with the intent of educating himself about the quality of life and government functioning in the City ... [and] to find out more about programs, services and activities available to visitors and residents of [the] City." Id. at 1276. Certain documents on the website were not compatible with the plaintiff's screen reader. Id. The district court found that the plaintiff lacked standing to assert Title II and Section 504 claims because, among other reasons, the plaintiff, who was not a resident of the city, "failed to allege what specific information was inaccessible to him on the City's website and to allege "any specific way that the inaccessible information hindered his ability to be involved with the City's government." Id. at 1277. Unlike the Price plaintiff who had no apparent tie to the city whose website he visited, Mr. Meyer maintains a "meaningful connection" to Defendants because of his enrollment in two of their benefits programs—far more of a connection than the passing curiosity of the plaintiff in Price . See Price , 375 F. Supp. 3d at 1277. Mr. Meyer testified that his screen reader was unable to navigate Defendants’ website. [Filing No. 66-3 at 43-44.] Mr. Meyer is not required to provide a technical diagnosis as to why the screen readers were incompatible with Defendants’ websites to establish that he been injured for purposes of standing.

In light of the above, the Court concludes that Mr. Meyer has standing to assert Title II and Section 504 claims against Defendants related to Defendants’ provision of braille documents and Defendants’ websites.

4. Sarah Meyer

Plaintiffs are only asserting that Ms. Meyer has standing as to the claims relating to Defendants’ provision of braille documents because Ms. Meyer testified that she does not use Defendants’ websites. [See Filing No. 75 at 21 (arguing that Defendants’ websites only caused Mr. Meyer injury, omitting Ms. Meyer).] The Court finds that Ms. Meyer has standing to assert claims related to the braille documents for the same reasons Mr. Meyer has standing: She was not consistently receiving braille correspondence when she initiated this lawsuit and contends the braille that she now receives is of insufficient quality. Furthermore, because she continues to receive benefits from Defendants and needs to communicate with them, the harm is real and immediate and not merely theoretical.

Therefore, the Court finds Ms. Meyer has standing to assert Title II and Section 504 claims relating to Defendants’ provision of braille documents.

5. The NFB

An organization like the NFB may sue either on behalf of its members if it has associational standing or on its own behalf. Associational standing requires a showing that (1) the association's members would otherwise have standing to sue in their own right; (2) the interests the association seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Adver. Comm'n , 432 U.S. 333, 342-43, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). For an organization to establish standing in its own right, the organization must show a particularized concrete injury, and it can meet that requirement with evidence that a defendant's actions will cause it to expend money and resources. See Disability Rights Wis., Inc. v. Walworth Cnty. Bd. of Supervisors , 522 F.3d 796, 801 (7th Cir. 2008) ("To sufficiently set forth an injury in fact, DRW would need to make allegations that advocating on behalf of children wrongfully placed in the Lakeland School was going to cause it to expend more of its time, money, and resources.").

The NFB has associational standing. As the Court has already discussed, two NFB members—Mr. Meyer and Ms. Meyer—have standing to assert Title II and Section 504 claims, and another NFB member, Kaitlyn Shelton, would likewise have standing. The NFB's mission is to promote the welfare of the blind by assisting the blind in "efforts to integrate themselves into society on terms of equality and by removing barriers," [Filing No. 66-7 at 3], which is germane to this litigation challenging Defendants’ provision of braille documents and their website accessibility to blind individuals. Finally, the injunctive relief sought in this case does not require the participation of individual members in the lawsuit.

The NFB also has standing on its own behalf. It has put forward evidence that it has devoted resources, "including staff time and legal fees," to address Defendants’ purported communications issues, which frustrates the NFB's mission to remove communication barriers on behalf of the blind. [See Filing No. 66-7 at 6-7.] Defendants’ argument that the NFB has not been harmed because this lawsuit is the type of activity that the NFB typically engages in misses the mark. The Seventh Circuit has rejected this argument. See Vill. of Bellwood v. Dwivedi , 895 F.2d 1521, 1526 (7th Cir. 1990) (finding fair housing agency's injury sufficient for standing where agency alleged a "deflection of the agency's time and money from counseling to legal efforts directed against discrimination").

Therefore, the Court finds that the NFB has standing to assert Title II and Section 504 claims relating to Defendants’ provision of braille documents and the accessibility of their websites.

B. Mootness

Defendants contend that Plaintiffs are receiving braille documents, and "Plaintiffs’ argument that those initial Braille documents were not formatted properly should not persuade the Court that the Plaintiffs are entitled to injunctive relief. All individually-named Plaintiffs and Plaintiffs’ Braille expert, easily read and understood the Braille documents in recorded depositions." [Filing No. 73 at 26.] Furthermore, Defendants state that they have provided training to all DFR staff on how to assist individuals requesting alternative-print documents, have continued training certain employees on using the braille embosser, and have hired an ADA coordinator. [Filing No. 73 at 39.] With respect to the websites, Defendants contend that the "minor concerns raised by Plaintiffs either in depositions or in Plaintiffs’ ‘expert report’ have been remediated. Specifically, color contrast issues were all reviewed and necessary adjustments made; keyboard navigation via the ‘Tab’ key was adjusted ...; [and] narration of text was confirmed to work with commercially available narrator support software," including JAWS. [Filing No. 73 at 30.]

Plaintiffs respond that the braille correspondence provided by Defendants is not of adequate quality. [Filing No. 75 at 14; Filing No. 75 at 20.] They contend that "Defendants have not rebutted [the quality issues identified by Plaintiffs] nor offered any expert to counter Plaintiffs’ expert's conclusions that the Braille documents Defendants prepared were ‘impossible to read or would take hours for a reader to understand.’ " [Filing No. 75 at 20.] Furthermore, Plaintiffs contend that Mr. Meyer continues to receive standard print documents from MHS and Ms. Shelton has not received any braille documents from Defendants or MHS. [Filing No. 75 at 20; Filing No. 75 at 28-29.] And, they contend that Defendants can only assure the quality of braille documents going forward by employing someone who reads braille to review braille documents, which Defendants have stated they will not do. [Filing No. 75 at 27-28.] As for the websites, Plaintiffs contend that the remediation efforts testified to by Mr. Montgomery, Mr. Linder, and Mr. Moser cannot create a genuine issue of material fact because these individuals are not retained experts. [Filing No. 75 at 14-15.] Plaintiffs also argue that none of these individuals are competent to evaluate whether websites comport with WCAG 2.1 standards. [Filing No. 75 at 15.] Plaintiffs assert that the changes implemented by Defendants to their websites fall short and, furthermore, "do not set out a comprehensive plan to remediate their website and to maintain those websites in an accessible fashion." [Filing No. 75 at 30.] In any event, Plaintiffs argue, "[a]ccessibility barriers on Defendants’ websites persist," and the barriers will persist unless the Court orders "an independent website accessibility audit" and "a dedicated website accessibility coordinator." [Filing No. 75 at 34-35.] They also maintain that "a concrete website accessibility improvement plan is necessary" and ask the Court to order that as well. [Filing No. 75 at 35.]

Defendants reply by noting that "[a]t the deposition[s] of Christopher Meyer, Sarah Meyer, and the expert hired by NFB, all three could read the Braille documents, indeed they read them quickly and efficiently." [Filing No. 76 at 19.] Defendants characterize Ms. Dunnam's report as identifying "small grievances" relating to perforation and formatting and contend that Plaintiffs are asking the Court to police the quality of Defendants’ letters, which is unreasonable. [Filing No. 76 at 19.] On the website front, Defendants note that Plaintiffs did not move to strike the affidavits of Mr. Montgomery, Mr. Moser, or Mr. Linder, and further contend that each of these individuals is qualified to identify the remediation efforts undertaken by Defendants and the functionality of Defendants’ websites with screen readers. [Filing No. 76 at 25-26.]

Federal court jurisdiction is limited to "actual, ongoing controversies." Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). "[W]hen the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome," the case is moot and must be dismissed for lack of jurisdiction. Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). The fact that a plaintiff was at one point entitled to pursue claims is of no consequence. St. John's United Church of Christ v. City of Chicago , 502 F.3d 616, 626 (7th Cir. 2007).

"[A] defendant's decision to comply voluntarily with a plaintiff's demands does not always moot a request for injunctive relief. There may still be a risk that a defendant could reverse course once a claim is dismissed." Hummel , 817 F.3d at 1023 (citing Friends of the Earth , 528 U.S. at 189, 120 S.Ct. 693 ). However, voluntary conduct can moot a case where "(1) there is no reasonable expectation that the alleged violation will reoccur; and (2) interim events irrevocably eradicated the alleged violation's effects." EEOC v. Flambeau, Inc. , 846 F.3d 941, 949 (7th Cir. 2017) (internal quotation marks omitted). A defendant claiming that voluntary compliance moots a case "bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth , 528 U.S. at 190, 120 S.Ct. 693.

When governmental officials voluntarily express an intent to cease allegedly wrongful conduct regarding the plaintiff, a rebuttable presumption exists that the expressed intent is genuine. Chicago United Indus., Ltd. v. City of Chicago , 445 F.3d 940, 947 (7th Cir. 2006) ("[T]he respect or politesse that one government owes another, and thus that the federal government owes state and local governments—requires us to give some credence to the solemn undertakings of local officials."). See also Brewer v. Wis. Bd. of Bar Examiners , 2007 WL 527484, at *4 (E.D. Wis. Feb. 14, 2007) ("If the plaintiff's only claims seek to require governmental officials to cease allegedly wrongful conduct, and those officials offer to cease that conduct, then the claims should be dismissed as moot, absent some evidence that the offer is disingenuous."). What matters is not whether the defendant could theoretically resume the offensive conduct at some time in the future but rather "whether there is any reasonable expectation that he or she will in fact reoffend." Mitchell v. Trame , 2020 WL 6729066, at *4 (C.D. Ill. Nov. 16, 2020).

The question before the Court is whether, construing the facts in Plaintiffs’ favor, Defendants’ voluntary conduct to remediate the provision of braille documents and the accessibility of their websites has rendered this case moot. However, there are factual disputes about whether the remediation efforts undertaken by Defendants have, in fact, "eradicated the alleged violation's effects." See Flambeau, Inc. , 846 F.3d at 949.

As to the braille documents, Defendants have implemented a process for individuals to request documents in an alternative format. Plaintiffs have offered evidence that the braille documents produced by Defendants are not sufficiently readable, that Kaitlyn Shelton's request for braille documents was not heeded, and that MHS is not sending braille documents. Defendants have put the readability of the braille documents in dispute by pointing to evidence that Mr. Meyer, Ms. Meyer, and Ms. Dunnam were all able to read and understand braille communications produced by Defendants at their respective depositions. Furthermore, the record is not clear regarding whether Ms. Shelton is receiving accessible communications as her affidavit states that she "request[ed] that all print documents be sent to me in Braille or an accessible electronic format" and acknowledges that "MHS has provided some general documents, such as member brochures and flyers electronically." [Filing No. 66-11 at 3 (emphasis added).] In any event, on the record before the Court, it is not "absolutely clear" that Defendants’ failure to respond to individuals who request alternative communications "could not reasonably be expected to recur." Friends of the Earth , 528 U.S. at 190, 120 S.Ct. 693.

Likewise, fact disputes preclude a finding that Plaintiffs’ accessibility claims relating to Defendants’ websites are moot. Defendants have put forth evidence that they have made changes to their website and DFR's contract with Moser to ensure that their websites are accessible to screen readers. Plaintiffs have put forward evidence that some aspects of Defendants’ websites remain inaccessible because they do not comply with WCAG 2.1 standards. On the record before the Court, the Court is unable to ascertain the overall accessibility of Defendants’ website and whether remediation efforts have eradicated the inaccessibility violation claimed by Plaintiffs or whether the protocols in place are such that problems could not be reasonably expected to recur. Friends of the Earth , 528 U.S. at 190, 120 S.Ct. 693.

Therefore, the Court denies Defendants’ Cross-Motion for Summary Judgment on mootness grounds based on the record before the Court. At trial, the evidence may well establish that Plaintiffs’ claims have been mooted, but the summary judgment record does not permit such a finding.

C. Merits of Plaintiffs’ Claims

Plaintiffs argue that they are entitled to summary judgment because the undisputed facts show that Defendants’ print communications are inaccessible to blind individuals, as are the three websites identified by Plaintiffs. [Filing No. 68 at 27-36.] They contend that "Defendants lack proper staff training and quality control measures to ensure that its [sic] Braille communications are accessible," and further that "Braille that is indecipherable, or of such poor quality that it takes hours for a blind individual to understand, violates Title II and Section 504." [Filing No. 68 at 28.] As for the websites, Plaintiffs argue that incompatibility with screen readers renders the websites inaccessible and cite to the expert report of Ms. Youngblood Savage. [Filing No. 68 at 32-35.] Plaintiffs also argue that Defendants’ lack of internal policies regarding website accessibility, including compliance monitoring of its vendors, violates Title II and Section 504. [Filing No. 68 at 35-36.]

Defendants ask that summary judgment be entered in their favor and argue that Title II and Section 504 do not apply to their websites and cite district courts in Florida for the proposition that "the ADA does not apply to a website that is wholly unconnected to a physical location." [Filing No. 73 at 19 (citing Gomez v. Bang & Olufsen Am., Inc. , 2017 WL 1957182 (S.D. Fla. Feb. 2, 2017) ; Access Now, Inc. v. Sw. Airlines, Co. , 227 F. Supp. 2d 1312, 1321 (S.D. Fla. 2002) ; Kidwell v. Fla. Comm'n on Human Relations , 2017 WL 176897 (M.D. Fla. Jan. 17, 2017) ; Gil v. Broward Cnty., Fla. , 2018 WL 4941108 (S.D. Fla. May 7, 2018) ).] Defendants also take issue with Plaintiffs’ use of WCAG 2.1 as the standard for website accessibility, noting that Title II and Section 504 provide "no specific standards that must be implemented," and instead the statutes require "only reasonable modifications to make services accessible" and that the Meyers "were afforded numerous accommodations and auxiliary aids on Defendants’ websites." [Filing No. 73 at 22-23.] They further argue that Title II and Section 504 do not require public entities to provide information "in the precise format the plaintiff demands" and in support cite a case in which a prison was not required to provide a blind prisoner a screen reader because it made a human reader available— Wells v. Thaler , 460 F. App'x 303 (5th Cir. 2012). [Filing No. 73 at 31-32.] Defendants argue that the existing accommodations available to Plaintiffs, including "designat[ing] someone for assistance to help them fill out applications, or provid[ing] supplemental information" via Defendants’ "call-in numbers[ ] and specific staff designated to assist blind individuals" provides sufficient access to blind individuals. [Filing No. 73 at 32.] Defendants contend that the selection of the method to accommodate a disabled individual rests with the public entity "so long as the method selected is effective." [Filing No. 73 at 33.] They also argue that "while the Braille documents may not be perfectly formatted, it is undisputed that the Plaintiffs could read the Braille documents." [Filing No. 73 at 32-33.] And, Defendants argue, Mr. Meyer acknowledged that even if he received braille applications, he would still need sighted assistance to write in the blanks. [Filing No. 73 at 33 (citing Filing No. 71-1 at 29-34).] As for the websites, Defendants contend that the websites are accessible to screen readers, and, additionally, the sites contain another accessibility tool in the form of BrowseAloud text-to-audio technology built into the websites and note that JAWS "is only one of many auxiliary aids to provide screen reading technology." [Filing No. 73 at 34.]

Plaintiffs reply by arguing that the Florida district court cases are outliers, and that Title II and Section 504 apply to Defendants’ websites, citing cases from other jurisdictions in support. [Filing No. 75 at 22-23 (citing Payan v. Los Angeles Cmty. Coll. Dist. , 2019 WL 9047062 (C.D. Cal. Apr. 23, 2019) ; Hindel v. Husted , 2017 WL 432839 (S.D. Ohio Feb. 1, 2017) ; Reininger v. Okla. , 292 F. Supp. 3d 1254 (W.D. Okla. 2017) ; Martin v. Metro. Atlanta Rapid Transit Auth. , 225 F. Supp. 2d 1362 (N.D. Ga. 2002) ).] Plaintiffs also point out that the Seventh Circuit has interpreted Title III (the section of the ADA that applies to businesses) broadly to extend beyond a business's physical space. [Filing No. 75 at 32 (citing Doe v. Mut. of Omaha Ins. Co. , 179 F.3d 557, 559 (7th Cir. 1999) ).] Plaintiffs contend that Defendants’ accommodations of providing documents in braille, permitting blind individuals to designate sighted individuals to assist them, and providing call-in numbers and staff to assist the blind are not reasonable accommodations. [Filing No. 75 at 36.] They argue that Title II and Section 504 require that Defendants’ "communications with individuals with disabilities be as effective as communications with others." [Filing No. 75 at 36 (citing 28 C.F.R. §§ 35.160(a)(1)-(2) ).] Plaintiffs argue that the braille documents are unreadable and requiring that Plaintiffs to rely upon a sighted assistant or DFR staff is not a reasonable accommodation because "it compromises Plaintiffs’ privacy and independence and forces them to access Defendants’ services, programs, or activities during limited hours." [Filing No. 75 at 37.] They also argue that the provision of BrowseAloud on Defendants’ websites is not a reasonable accommodation because "BrowseAloud is not one of the market-leading screen readers" and their expert, Ms. Youngblood Savage, explained that BrowseAloud reads only text on a website and "does not convey website content like video, audio, and images and fails to provide equivalent functionality." [Filing No. 75 at 38.] Finally, Plaintiffs argue that Defendants have waived any argument that they are not liable for MHS's failures to provide braille or other accessible documents because Defendants did not address the issue in the briefing. [Filing No. 75 at 40-41.]

Defendants respond that neither Title II nor Section 504 "require all documents to be provided in Braille" or require "websites be ‘Accessible’ or to specifically be readable by JAWS software." [Filing No. 76 at 9.] Furthermore, "Title II does not require perfection or [compliance with?] WCAG 2.1 AAA standards ... [t]he communication need only be effective." [Filing No. 76 at 9.] They reiterate that they have provided reasonable accommodations in the form of providing staff to help complete forms or discuss concerns, braille correspondence, and BrowseAloud on their websites. [Filing No. 76 at 10.] Defendants also reiterate that the braille they are providing is readable and that the websites, especially with the remediations, are accessible under Title II and the ADA. [Filing No. 76 at 20-23.] Defendants also contend that they have not waived arguments with respect to MHS's communications because "all communication from Defendants, which would include their numerous contractors, including ... MHS ... are effectively communicating with visually impaired individuals" and "Defendants are not required to specifically cite to MHS." [Filing No. 76 at 31.]

To prove a prima facie case of discrimination under Title II of the ADA and Section 504 of the Rehabilitation Act,⁵ a plaintiff must show: "(1) that he is a qualified individual with a disability; (2) that he was denied the benefits of the services, programs, or activities of a public entity or otherwise subjected to discrimination by such an entity; and (3) that the denial or discrimination was by reason of his disability." Lacy , 897 F.3d at 853 (citation and quotation marks omitted). A plaintiff may establish discrimination by presenting evidence that the defendant intentionally acted on the basis of the disability, the defendant refused to provide a reasonable modification, or the defendant's denial of benefits disproportionately impacts disabled people. Washington v. Indiana High Sch. Athletic Assoc., Inc., 181 F.3d 840, 847 (7th Cir. 1999). "Title II imposes an affirmative obligation on public entities to make their programs accessible to qualified individuals with disabilities, except where compliance would result in a fundamental alteration of services or impose an undue burden." Culvahouse , 679 F. Supp. 2d at 937 (quoting Toledo v. Sanchez, 454 F.3d 24, 32 (1st Cir. 2006) ). And "[i]t is well established that a failure to make ‘reasonable modifications in policies, practices, or procedures’ can constitute discrimination." Lacy , 897 F.3d at 853 (quoting 28 C.F.R. § 35.130(b)(7)(i) ).

5 There is no dispute that FSSA and DFR are subject to Title II and Section 504 because they receive federal funds. [Filing No. 66-8 at 5-7.]

Defendants do not dispute that Plaintiffs are qualified individuals with a disability. The Court finds that Plaintiffs’ inability to see substantially limits one or more major life activities and therefore they are disabled within the meaning of the ADA and the Rehabilitation Act. See 42 U.S.C. § 12102(1)(A). The Court also finds that Plaintiffs are qualified individuals because they meet the requirements to participate in Defendants’ programs as residents of Indiana eligible for benefits administered by Defendants. See Washington , 181 F.3d at 849.

The parties dispute whether Defendants violated Title II and Section 504 by denying Plaintiffs the benefits of the services, programs, or activities, or by subjecting them to discrimination. Specifically, the parties dispute whether Title II and Section 504 apply to Defendants’ websites at all and whether the communications and accommodations provided by Defendants were reasonably accessible. The Court turns to these questions.

1. Whether Defendants’ Websites are Services, Programs, or Activities

The first inquiry is whether the subject websites constitute "services, programs, or activities" under Title II and the similar provision in Section 504. 42 U.S.C. § 12132 ; 29 U.S.C. § 794 ("No otherwise qualified individual with a disability ... shall ... be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."). Title II does not define the terms "services, programs, or activities," but applicable regulations provide that Title II "applies to anything a public entity does," Oconomowoc Res. Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 782 (7th Cir. 2002) (citing 28 C.F.R. pt. 35, app. A ), and "most courts that have considered the phrase have concluded that the terms are to be defined broadly," Culvahouse , 679 F. Supp. 2d at 939. See also Ashby v. Warrick Cnty. Sch. Corp. , 908 F.3d 225, 231, 234 (7th Cir. 2018) (noting the breadth of the ADA and the phrase "services, programs, or activities"); Prakel v. Indiana , 100 F. Supp. 3d 661, 682 (S.D. Ind. 2015) ("[A]lthough the ADA does not define ‘services, programs, or activities,’ court[s] have adopted the definition from the Rehabilitation Act to include ‘all of the operations of ... a local government.’ "); Johnson v. City of Saline , 151 F.3d 564, 569-70 (6th Cir. 1998) (finding that "services, programs, and activities include all government activities" because "the word ‘activities,’ on its face, suggests great breadth and offers little basis to exclude any actions of a public entity" and such a reading was consistent with Section 504, which defines "program or activity" to mean "all of the operations") (citing 29 U.S.C. § 794(b) ).

Under Title II, the standard for what constitutes "services, programs, or activities," encompasses "anything a public entity does," Oconomowoc Res. Programs , 300 F.3d at 782, and acknowledged the breadth of activities encompassed, Ashby , 908 F.3d at 231. There is no articulable reason why Defendants’ operation of websites that provide information about and applications for vital government benefits programs administered by Defendants would fall outside the broad category of government activities encompassed by "services, programs, or activities." Indeed, the realities of 21st century interactions—including those brought about by the COVID-19 pandemic—further confirm that a government's provision of information and services via websites is encompassed by Title II. Cf. South Dakota v. Wayfair, Inc. , ––– U.S. ––––, 138 S. Ct. 2080, 2097, 201 L.Ed.2d 403 (2018) (noting the "far-reaching systemic and structural changes in the economy and many other societal dimensions caused by the Cyber Age") (internal quotation marks omitted). Therefore, the Court finds that Defendants’ Benefits Portal, FSSA Homepage, and Medicaid Homepage constitute services, programs, and activities within the purview of Title II. See Payan , 2019 WL 9047062, at *12 ("[Defendant] has made its website open and available to all students enrolled at Defendant, signifying that the ability to sign up for classes on the website and to view important enrollment information is itself a ‘service’ warranting protection under Title II and Section 504.").

Accordingly, the Court finds that Defendants’ websites constitute services or activities within the purview of Title II and Section 504, requiring Defendants to provide effective access to qualified individuals with a disability.⁶

6 Defendants cite a number of Florida district court cases finding that, under Title III, websites need only be accessible if they relate to accessing a physical location. [Filing No. 73 at 19 (citing Gomez , 2017 WL 1957182, at *3 ; Access Now, Inc. , 227 F. Supp. 2d at 1321 ; Kidwell , 2017 WL 176897 at *5 ).] Defendants then cite a single case from a district court in Florida that, citing these Title III physical-space cases, applied the same reasoning to a government's website in the context of Title II. Gil , 2018 WL 4941108, at *2. However, these cases do not set forth the proper standard for Title II, which considers whether actions constitute "services, programs, or activities," a standard that the Seventh Circuit has acknowledged is broad. See Ashby , 908 F.3d at 231, 234. And, even if the Court were to graft Title III standards onto Title II, the Seventh Circuit has rejected the argument that a "public accommodation" under Title III requires a physical place. Morgan v. Joint Admin. Bd., Ret. Plan of Pillsbury Co. & Am. Fed'n of Grain Millers, AFL–CIO–CLC , 268 F.3d 456, 459 (7th Cir. 2001).

2. Effective Communications and Reasonable Accommodations

A public entity has an affirmative duty to "take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others." 28 C.F.R. § 35.160(a)(1). And the ADA's implementing regulations require a public entity to "make reasonable modifications in policies, practices, or procedures where the modifications are necessary to avoid discrimination on the basis of disability," including providing auxiliary aids when necessary. 28 C.F.R. § 35.130(b)(7)(i).

With respect to the obligation to provide auxiliary aids, Section 35.160 states:

(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.

(2) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to

be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.

28 C.F.R. § 35.160(b)(1)-(2). A district court within this Circuit analyzing Section 35.160(b) made several observations. "First, a public entity must furnish an auxiliary aid only when ‘necessary’ to achieve effective communication, meaning that the entity can defeat an ADA claim by ‘demonstrat[ing] that [an] effective means of communication’ other than the plaintiff's preferred accommodation was made available." Reyes v. Dart , 2019 WL 1897096, at *6 (N.D. Ill. Apr. 29, 2019) (quoting 28 C.F.R. pt. 35, App. A, Subpart E). "Second, despite this limitation on the scope of a public entity's duty, ‘primary consideration,’ 28 C.F.R. § 35.160(b)(2), must be given to the plaintiff's requested accommodation." Id. "Third, whatever communication assistance the public entity furnishes must allow the plaintiff not just some access, but ‘equal’ access, 28 C.F.R. § 35.160(b)(1), to the service, program, or activity in question." Id. (citing Reed v. Illinois , 808 F.3d 1103, 1107 (7th Cir. 2015) ). Finally, "whether a public entity must provide an auxiliary aid depends on ‘the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.’ " Id. (quoting 28 C.F.R. § 35.160(b)(2) ). Evaluating and weighing these considerations "entails a fact-intensive inquiry often ill-suited for summary judgment." Id.

The Seventh Circuit recognizes that "refusing to make reasonable accommodations is tantamount to denying access." Jaros v. Ill. Dep't of Corr. , 684 F.3d 667, 672 (7th Cir. 2012). A plaintiff can therefore prove that he or she was excluded from participation by showing that the defendant refused to provide a reasonable accommodation. See Wis. Cmty. Servs., Inc. v. City of Milwaukee , 465 F.3d 737, 753 (7th Cir. 2006). "Though a public entity is to give consideration to an individual's requested accommodation, the ultimate issue is not whether the individual requested a particular accommodation, but rather, whether the public entity took appropriate steps to ensure that effective means of communication were provided." Kennington v. Carter , 2004 WL 2137652, at *5 (S.D. Ind. June 28, 2004) (internal citations omitted). The accommodation "need not be ‘perfect’ or the one ‘most strongly preferred,’ by the [ ]plaintiff, but it still must be ‘effective.’ " Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis. , 804 F.3d 178, 189 (2d Cir. 2015) (quoting Noll v. Int'l Bus. Machs. Corp. , 787 F.3d 89, 94 (2d Cir. 2015) ).

a. Print Communications

The first question is whether Defendants’ policies and procedures regarding the provision of print documents in alternative formats—such as braille and large-print documents—provide blind individuals equally effective access to Defendants’ print documents. See Kennington , 2004 WL 2137652, at *5. Defendants provide braille or large-print documents when requested by an individual. Once an individual makes such a request, the request is noted electronically in Defendants’ system, and the individual will receive communications in the requested format going forward, without needing to continue making the request. Plaintiffs contend that Defendants "lack proper staff training and quality control measures" to ensure that the braille communications are of sufficient quality. [Filing No. 68 at 28.]

However, as discussed previously, whether the braille correspondence is of sufficient quality to provide equally effective access to Defendants’ print communications is disputed. While Plaintiffs have offered testimony that the documents suffer from problems, Mr. Meyer, Ms. Meyer, and Ms. Dunnam were all able to read and understand braille communications produced by Defendants at their respective depositions.

Also disputed is whether, once a request to receive communications in an alternative format is made, the protocols in place are sufficient to ensure that Defendants actually follow the established process to ensure individuals receive their communications in the preferred format. The record is not clear on this point as Mr. Meyer and Ms. Meyer acknowledge that they are receiving braille communications from Defendants, but Mr. Meyer claims that MHS is not sending him braille communications, even though he requested that MHS do so. Ms. Shelton testified that Defendants neglected to send her braille communications even after she requested they do so following Defendants’ implementation of their alternative communication policy and procedures in August 2019.

Defendants go a step further and say that assuming arguendo that the braille communications and policies are not effective, they are not required to provide any documents in braille because Plaintiffs can designate someone to assist them, and Defendants provide staff to assist blind individuals verbally. [Filing No. 73 at 32.] Again, an issue of fact exists as to whether these accommodations provide an equally effective means of communication. See Reyes , 2019 WL 1897096, at *6. The record includes information that these services are available, but the parties’ party's briefs do not offer much in the way of argument or citations to the record as to why these methods are as effective or not as effective as print communications. And, whether an entity must provide a specific auxiliary aid over other accommodations "depends on ‘the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.’ " See id. (quoting 28 C.F.R. § 35.160(b)(2) ). Evaluating and weighing these considerations "entails a fact-intensive inquiry often ill-suited for summary judgment." Id. ; see also Anderson v. Penn. Dep't of Pub. Welfare, 1 F. Supp. 2d 456, 466 (E.D. Pa. 1998) ("The Court concludes that whether verbal assistance is a sufficiently effective means of communicating the information contained in the provider directories presents a genuine issue of material fact that must be left to the finder of fact.").

These disputed issues of fact preclude entry of summary judgment on Plaintiffs’ claim that Defendants’ print communications violate Title II and Section 504.⁷

7 The Court rejects Plaintiffs’ contention that Defendants have waived any argument related to the accessibility of MHS's communications. [See Filing No. 75 at 40-43.] Defendants accept that they are statutorily responsible for the actions of their agents, [see Filing No. 76 at 31], and arguments made with respect to Defendants’ communications apply with equal force to MHS's communications as they are simply an extension of Defendants.

b. Websites

The Court next considers whether Defendants’ websites provide blind individuals equally effective access to the information and services available on the websites. At the outset, the Court notes that Plaintiffs seek to impose liability based on Defendants’ failure to comply with WCAG 2.1 standards. [See Filing No. 66-26 at 3; Filing No. 66-26 at 16.] The Court finds that WCAG 2.1 standards are informative to, but not dispositive of, the issue of whether Defendants’ websites violate Title II and Section 504. The Court rejects Plaintiffs’ contention that the Court should impose WCAG 2.1 as the standard for determining liability under Title II and Section 504.⁸ See Alcazar v. Bubba Gump Shrimp Co. Restaurants , 2020 WL 4601364, at *4 (N.D. Cal. Aug. 11, 2020) (declining, in the Title III context, to adopt WCAG 2.1 standards as the test for determining whether a website violates the ADA).

8 Having rejected the notion that WCAG 2.1 creates the standard for determining liability, the Court rejects Plaintiffs’ contention that the testimony of Mr. Montgomery, Mr. Linder, and Mr. Moser cannot create a genuine issue of material fact because these individuals are not retained experts. [Filing No. 75 at 14-15.] These witnesses can testify to the changes they made, their understanding of accessibility guidelines, and their experiences with the websites at issue.

As discussed previously, issues of fact exist surrounding Plaintiffs’ claims regarding Defendants’ website accessibility. Defendants have put forth evidence that they have made changes to their website and DFR's contract with Moser to ensure that their websites are accessible to screen readers. Defendants’ websites also have BrowseAloud text-to-audio technology built into them. Plaintiffs have put forward evidence that a handful of aspects of Defendants’ websites remain inaccessible because they do not comply with WCAG 2.1 standards. On the record before the Court, the Court is unable to ascertain whether Defendants’ websites provide an effective means for blind individuals to access Defendants’ websites. See Kennington , 2004 WL 2137652, at *5. The Court is also unable to determine, based upon the record, whether Defendants’ current websites, the BrowseAloud feature, and the availability of staff to provide assistance to blind individuals constitute reasonable accommodations.

Therefore, these disputed facts preclude the entry of summary judgment in favor of either party on Plaintiffs’ claims relating to Defendants’ websites.

3. Undue Burden

Defendants argue that even assuming arguendo that the alternative print communications and websites are not providing effective access, the accommodations sought by Plaintiffs in their injunctive relief request pose an undue financial burden on Defendants. Defendants argue that "having an additional employee at FSSA to solely review Braille documents is not feasible" and would "place an undue financial hardship on the agencies." [Filing No. 73 at 35.] Defendants cite an affidavit of DFR Director Shields in which she states that "DFR cannot hire an independent consultant to review every Braille document that is sent out, as such independent review would cost a substantial amount of money for a service that can be provided directly by DFR," and that COVID-19 presents uncertainty regarding DFR's budget, and no money in the budget has been earmarked for Braille consulting. [Filing No. 71-5 at 2.] Additionally, Defendants contend that additional monitoring of their website will also pose an undue financial burden. [Filing No. 73 at 35.]

Plaintiffs respond that Defendants have not carried their burden because Defendants have offered nothing to demonstrate the impact that hiring a braille consultant and a website consultant would have on Defendants’ fiscal operations. [Filing No. 75 at 39-40.]

In reply, Defendants reiterate Director Shields’ testimony that DFR "cannot hire more staff to specifically send Braille documents to the few people that request such documents." [Filing No. 76 at 30.] Defendants also contend that adding additional obligations for their websites beyond those already in place would pose an undue burden. [Filing No. 76 at 31.] To prove an undue burden, a public entity must show that "the costs are excessive in relation either to the benefits of the modification or to the [entity's] financial survival or health." Vande Zande v. Wisc. Dep't of Admin., 44 F.3d 538, 548 (7th Cir. 1995). Defendants have failed to carry their burden here. They have not provided evidence of the actual costs of hiring the consultants or how such costs would impact Defendants’ budget. Therefore, Defendants have failed to carry their burden to the relief proposed by Plaintiffs pose an undue burden.

Therefore, the Court denies Defendants’ Cross-Motion for Summary Judgment on the grounds of undue burden. The Court notes, however, that Defendants are not precluded from attempting to prove an undue burden at trial.

V.

CONCLUSION

For the reasons explained above, Plaintiffs’ Motion for Summary Judgment, [66], is DENIED , and Defendants’ Cross-Motion for Summary Judgment, [72], is DENIED . Pursuant to rulings contained in this Order, the following issues remain for trial:

• Whether Plaintiffs’ claims are moot because of Defendants’ remedial actions;

• Whether Defendants’ print communications violate Title II and Section 504; and

• Whether Defendants’ websites violate Title II and Section 504.

The Clerk is further DIRECTED to correct the docket to reflect that Defendant Jennifer Walthall's name is now Jennifer Sullivan.

The Court requests that the magistrate judge again meet with the parties, in an attempt to facilitate an agreed resolution.