Funded  through a grant from the National Institute on Disability and Rehabilitation Research,
U.S. Department of Education, under contract number H224B990002. The opinions expressed do not
necessarily reflect the position of the U.S. Department of Education, and no official endorsement by the
U.S. Department of Education of the opinions expressed herein should be inferred.

Copyright 2001 Neighborhood Legal Services, Inc.

In this issue......

INTRODUCTION

        Section 508 of the Federal Rehabilitation Act, 29 U.S.C. § 794d, was revised by the Workforce Investment Act of 1998, PL. 105-220, Sec. 408(b). It imposes new and enforceable “accessibility” requirements on federal agencies regarding electronic and information technology (E&IT). On December 21, 2000, the final regulations implementing section 508 were published by the Access Board. 36 C.F.R. Part 1194, 65 FR 80499. These final regulations will be incorporated into the Federal Acquisition Regulation (FAR) and into the procurement policies of each covered agency. 65 FR 80501. The Access Board is authorized to revise its 508 standards periodically, as circumstances and experience require. 29 U.S.C. § 794d(a)(2)(A). A broad range of technical assistance resources are available to agencies to assist them in complying with section 508. Id. § 794d(b).

        This article will provide an overview of these new section 508 requirements that will allow E&IT, used by federal agencies, to become accessible to persons with disabilities who are federal employees or members of the public who would ordinarily need access to that technology. It will provide a discussion concerning enforcement of the section 508 provisions which is limited to challenging an agency’s failure to procure accessible E&IT. We will then suggest an alternative strategy of using the Americans with Disabilities Act (ADA) or sections 501 or 504 of the Rehabilitation Act of 1973 to enforce an individual’s right to access information.

        Section 508 applies to federal agencies when they develop, procure, maintain, or use E&IT. They must ensure, regardless of the type or medium of the technology, that individuals with disabilities, who are either federal employees or members of the public, have access to and use of information and data that is comparable to the access to and use of information and data by federal employees and members of the public who are not individuals with disabilities.

        The law does not require a fundamental alteration in the nature of a product or its components. 36 C.F.R. § 1194.3(e). Nor must an agency take an action if it would amount to an undue burden. An undue burden is defined, as with the Americans with Disabilities Act (ADA), as a significant difficulty or expense. In determining whether an action would result in an undue burden, the agency shall consider all agency resources available to the program or component for which the product is being developed, procured, maintained, or used. Id. § 1194.4. Moreover, agencies seeking to assert the undue burden exception to any provision must document the basis for such a claim, including an explanation of why and to what extent compliance with each provision creates an undue burden. 29 U.S.C. § 794d(a)(4); 36 C.F.R. § 1194.2(a)(2). Even when development, procurement, access or use would impose an undue burden, the agency must provide the information and data to individuals with disabilities “by an alternative means of access” that allows the individual to use the information and data. 29 U.S.C. § 794d(a)(1)(B); 36 C.F.R. § 1194.2(a)(1).

        In addition to ensuring E&IT access to employees and members of the public who are individuals with disabilities, the law also has detailed requirements for whenever a federal agency seeks to purchase products. When an agency procures a product, it must comply with the regulations if the accessible product is either commercially available or if it is developed in response to a government solicitation. If products are commercially available which meet some, but not all of the section 508 standards, the agency must procure a product which best meets the standards. Id. § 1194.2(b). For example, if photocopiers are not commercially available on which the error messages appear in some nonvisual format for use by persons with visual impairments, this does not spare the agency from procuring a copier on which the other controls and readouts are accessible in nonvisual formats, if that product is commercially available.

        Unlike Title I of the ADA, section 508 requires federal agencies to procure accessible E&IT regardless of whether they have employees with disabilities. 65 FR 80506. “Requiring agencies to purchase accessible products at the outset eliminates the need for expensive retrofitting of an existing product when requested by an employee or member of the public as a reasonable accommodation at a later time.” Id.

        The law applies to any federal department or agency, including the U.S. Postal Service. 36 C.F.R. § 1194.4. It also applies to federal contractors if the contract requires the use of the product in question or the use of the product to a “significant extent” in providing the service or furnishing the product under the contract. Id. § 1194.2(c).

        It does not apply to technology obtained by federal contractors that is incidental to the performance of the contract. Id. § 1194.3(b). For example, a federal agency contracts with a company to develop a web site. The web site must comply since that was the purpose of the contract. However, the company’s own office system, which was used to develop the site would not have to comply, “since the equipment used to produce the web site is incidental to the contract.” 65 FR 80502. As another example, a consulting firm contracts with a federal agency to produce a report. The firm “is not required to procure accessible computers and word processing software to produce the report regardless of whether those products were used exclusively for the government contract or used on both government and non-government related activities since the purpose of the contract was to procure a report.” 65 FR 80503. (Note: Although section 508 may not apply to the computer or software products used by the federal contractor to produce the report, an employee of that contractor who has a disability may, depending on the circumstances, be able to insist that his or her employer make those products accessible as a reasonable accommodation under the ADA or section 504.)

        Assistive Technology (AT) Act Projects, formerly known as Tech Act projects, funded under the Assistive Technology Act of 1998, must also comply with section 508 and the standards as publised by the Access Board pursuant to their original applications under the Technology Related Assistance for Individuals with Disabilities Act of 1988. [Letter from Judith Heumann, Assistant Secretary, Office of Special Education and Rehabilitation Services, U.S. Dept. of Education and Katherine D. Seelman, Director, National Institute on Disability and Rehabilitation Research, U.S. Dept. of Education.]

        Agencies whose function involves: intelligence activities; cryptologic activities related to national security; and command and control of military forces are specifically exempt. 36 C.F.R. § 1194.3(a). Also exempt is any equipment that is an integral part of a weapon or weapons system. Id. Systems which are critical to the direct fulfillment of military or intelligence missions are likewise exempt. Id. This exemption does not include systems used for routine administrative and business applications, such as payroll, finance and logistics, and personnel management applications. Id.

        The regulations do not require installation of accessibility related software or attachment of an AT device on the individual workstation of a federal employee who is not an individual with a disability. 36 C.F.R. § 1194.3(c). Additionally, E&IT need not be provided at locations other than where it is ordinarily provided or used. Id. § 1194.3(d). Finally, products located in spaces entered only by service personnel for maintenance, repair or occasional monitoring need not comply. Id § 1194.3(f).

        The definition of E&IT is consistent with the definition of “information technology” in the Clinger-Cohen Act of 1996, 40 U.S.C. § 1401(3). 65 FR 80504. It includes a broad range of devices and software that are involved in the processing, storage and use of information. For example, computers, telecommunications systems, photocopiers, training videos, information transaction machines (ITMs) (such as lobby directories, information kiosks, or card readers), applications software and web sites maintained or contracted by the federal government are all covered. 36 C.F.R. § 1194.4.

        The definition of AT is derived from the AT Act of 1998, 29 U.S.C. § 3002. 65 FR 80504. Enumerated examples include: screen readers to either hear screen content or read the content in braille; specialized one-handed keyboards; and specialized audio amplifiers that allow an individual with limited hearing to receive an enhanced audio signal. Id.

        To comply with section 508, agencies must consider both a detailed set of technical standards for each of a wide range of enumerated products as well as functional performance criteria. There is also a functional equivalence standard which provides an alternative means of complying with section 508. Each of these requirements will be discussed below.

        Each technical provision that applies to a product is listed under that product’s subheading. “A product must comply with the provisions under each applicable section in Subpart B… For example, a telecommunications product that has a computer, software and operating systems, a keyboard, and web browser will have to comply with each of the relevant sections in Subpart B.” 65 FR 80507.

        Instead of providing detailed information for each product subheading, this article will only focus on a few specific examples. The requirements for software applications and operating systems are found at 36 C.F.R. § 1194.21. Self contained, closed products, such as information kiosks, fax machines, copiers, printers, calculators and ITMs, which have embedded software and are commonly designed in such way that a user cannot easily attach or install AT, are discussed at 36 C.F.R. § 1194.25. 65 FR 80505. The requirements for desktop and portable computers are found at 36 C.F.R. § 1194.26.

        Graphics are not prohibited under section 508, but there must be a text equivalent for every non-text element. Id. § 1194.22(a). Use of scripting languages in the construction of web pages (Java, etc.), even though they are not generally accessible to screen-readers or text browsers, are not prohibited. Instead, the law requires that the web pages utilize techniques that allow the output to be accessible to AT. Id. § 1194.22 (l).

        Similarly, the law does not require the use of text-only web pages, except as a last resort when no other techniques for meeting the accessibility requirements exist. In that case text-only pages must be used, and they must be updated whenever the primary page changes. Id. § 1194.22(k). When electronic forms are to be completed on-line, it shall allow people using AT to access the information and to be able to complete and submit the form. Id. § 1194.22(n).

        Most of the requirements of section 508 are triggered through basic design choices that manufacturers and developers make. For instance, voice-mail and other interactive voice response systems are free to require user responses within specified time intervals. Nothing in the law bars telecommunications equipment and systems from doing this. But if they do, they must include alerts to let people know that the response time is about to expire, and they must allow a means for requesting more time. Id. § 1194.23(d). Left unstated, probably because it is too obvious, is the requirement that they must also include the capacity to actually grant the extra time when requested. Technologies which use encoding, signal compression, format transformation, or similar techniques shall not remove information needed for access or shall restore it upon delivery. Id. § 1194.23(j).

        Another illustration of these contingent requirements is interesting because it protects all users of technology. If a telecommunications system allows a user to adjust the volume (that is, to control the amplification and sound level), it must automatically reset the volume to the default value after each use. Id. § 1194.23(g). A constant theme running through the requirements is what can be described as redundancy, that is, the requirement that more than one input modality, output or format be supported. Thus, no covered equipment is either barred from using or required to use toggle switches, but if they do, the status of these controls (on or off) must be discernible visually as well as through touch or sound. Id. § 1194.23(k)(4).

        In many cases, the complex interrelationships between components of a technology system require what can best be called reciprocal design features. A case in point is the requirements that most televisions and computers with television display capabilities have the capacity for captioning and for audio description. Id. § 1194.24(a) and (b). Likewise, all training and informational videos, and multimedia productions which “support the agency’s mission” must be open- or closed-captioned if they contain audio information necessary for comprehension of the content, and must be audio-described if they contain visual information necessary for comprehension of the content. Id. § 1194.24(c) and (d). Obviously, if the playback or display equipment does not support closed-captioning or audio-description (that is, does not contain the decoder chip or the secondary audio channel), the inclusion on the videos of the appropriate tracks will do no good. By the same token, if the training materials are not properly equipped, having compliant televisions will not be enough.

        “This section provides functional perfor-mance criteria for overall product evaluation and for technologies or components for which there is no specific requirements under other sections.” 65 FR 80519. The intent is also “to ensure that individual accessible components work together to create an accessible product.” Id. Addition-ally, “this section requires that all product functions, including operation and information retrieval,” ensure multisensory access. Id. They must include at least one mode of operation and information retrieval that does not require user: vision, visual acuity greater than 20/70, hearing, or speech. 65 FR 80519-20. Auditory information important for the use of a product must be provided in an “enhanced auditory fashion.” 65 FR 80520. Finally, at least one mode of operation and information retrieval must not require fine motor control or simultaneous actions, and must be operable with limited reach and strength. Id.

        There is also an alternative means of compliance, which is not to be considered a waiver of the rules, “but a recognition that future technologies may be developed,” and that existing technologies could be used in a way not envisioned by the regulations which provide the same functional access. 65 FR 80506. Speci-fically, the regulations are not “intended to prevent the use of designs or technologies as alternatives to those prescribed in this part, provided they result in substantially equivalent or greater access to and use of a product for people with disabilities.” 36 C.F.R. § 1194.5. In determining “whether a technology results in ‘substantially equivalent or greater access,’ it is the functional outcome, not the form, which is important.” “For example, an information kiosk which is not accessible to a person who is blind might be made accessible by having a telephone handset that connects to a computer that responds to touch-tone commands and delivers the same information audibly.” Also, voice recognition and activation are progressing rapidly, so voice input may soon substitute for some or all keyboard functions (e.g., some telephones can already be dialed by voice). 65 FR 80506.

        This section requires that product support documentation provided to end-users must be provided in accessible formats, upon request, at no added charge. End-users must also have access to a description of the accessibility and compatibility features of products in alternative formats, upon request, at no added charge. Finally, support services for products must accommodate the communication needs of end-users with disabilities.

        The law requires each Federal agency to engage in an accessibility self-evaluation. 29 U.S.C. § 794d(c). It requires the Attorney General to survey agencies on their accessibility status and compliance measures, with reports and recommendations to be furnished to the President and Congress on a regular basis. Id. § 794d(d). Agency self-evaluations are public documents most likely available under a Freedom of Information Act request, but even if not, they could likely be obtained in discovery. Likewise, one wonders how the Department of Justice could defend an agency against a section 508 claim if the Department had in its possession an agency questionnaire demonstrating noncompliance.

        Commencing June 21, 2001 (six months following publication of these rules in the Federal Register) an individual may file an administrative complaint with the agency alleged to have violated section 508. Id. § 794d(f)(1)(A) & (f)(2). This only applies to E&IT procured after June 21, 2001. Id. § 794d(f)(1)(B). It does not apply if the E&IT was procured before June 21, 2001. Nor does it apply if the agency or contractor failed to procure the E&IT in question.

        There is a concurrent right to bring a court action. Id. § 794d(f)(3). As with administrative complaints, this only applies to E&IT procured after June 21, 2001, with the same limitations as discussed above. Id. § 794d(f)(1)(B).

        Some advocates have wondered aloud – does section 508 create rights without remedies? Is the federal employee or member of the public, who has a disability, left to wait until a federal agency procures new computers or purchases a telephone routing system and then ask the agency to fix the problem after the fact? With no right under section 508 to enforce an individual’s right to accessible information, what strategies can the individual pursue to enforce their rights? The answers lie within section 501 for federal employees and section 504 for members of the public. (See box below.)

        In this age of electronic information, people with disabilities still experience frustration and failure when seeking the same information as their non-disabled counterparts. Whether it is a wheelchair user who can not reach the keyboard on an information kiosk because it is too high, an individual who is blind who is surfing the web encounters a heavily graphic web page which his screen reader cannot navigate, or a Federal employee who is deaf who sits in on a mandatory in service where the informational video is not closed captioned.

        The Federal government has taken a new step in addressing these difficulties. It is both forward looking, in that new purchases of electronic and information technology (E&IT) must be accessible, and immediate, in that the government must ensure effective access to the information it provides both to its employees and to the public. While limited in scope only to the Federal government and a limited number of Federal contractors, it may be very useful in analyzing similar problems for entities that are covered by the ADA or Section 504. Because these statutes, like Section 508, require program access (access to information), the specific provisions of Section 508 may be used by analogy in cases under the ADA or Section 504.

THE NATIONAL AT ADVOCACY PROJECT'S
LIST SERVE

        In January 2001, we started a List Serve as a service for Protection and Advocacy (P&A) attorneys and advocates who are working on the P&A for Assistive Technology (PAAT) grant in the various states. It also provides us an easy method of communicating with the PAAT network. Using the list serve, one email to
NationalAT@wnylc.com gets our message to every state without worrying about the phone, fax or U.S. Postal Service.

        Initially, we started with our PAAT directory, which includes the person(s) your state identified as the PAAT contact. We also included a limited number of other attorneys and advocates who, while not working with a P&A, are active in the AT advocacy network. During the first few months we also added a number of new subscribers who asked to be added. If you are not on the List Serve (you can only post to the List Serve if you are a subscriber) and would like to be added, send an email request to Jim Sheldon at jsheldon@nls.org.

        There are two primary uses of the List Serve: 1) to circulate information related to AT advocacy; or 2) to ask the List Serve subscribers, as a group, a question that relates to your AT advocacy work.

        Here is an example of use # 1: “This is just to let everyone know that our latest newsletter is now on our website. The lead article is on the State Child Health Insurance Program or SCHIP. To access it directly, go to www.nls.org/av/av-1200.htm ...” There is no need to respond to that message.

        When using the List Serve to make an inquiry (example #2 above), you are hoping to get a response or several responses from people who are subscribers [our current list of subscribers contains more than 60 email addresses]. For example, if you ask: “Has anyone won a Medicaid case involving ....” , what you are hoping is that someone says yes and can possibly share some of their research, their strategy, what they used as evidence, etc.

        In general, you will respond to both the individual and everyone in the group by sending your reply to NationalAT@wnylc.com. The reason is that we want everyone to benefit from this exchange of information. Obviously, common sense should dictate here.

        As always, we continue to be available for technical assistance and to supply materials such as hearing decisions and briefs/pleadings from court cases. If time is not of the essence, you can contact us first by sending an email to Jim Sheldon or Ron Hager (rhager@nls.org) or by calling us at 716-847-0650. When the matter is urgent (“my hearing is Tuesday and ...”), you can post your inquiry on the List Serve and Ron and I will get the inquiry as well as all other subscribers. Since neither Jim or Ron is more than half time with the Project, you may get a response from a colleague from Arizona or Minnesota, for example, before Jim or Ron could get back to you.

        In just a few short months our List Serve is proving to be a tremendous vehicle for sharing expertise (we don’t have it all) and getting the word out about new developments like proposed regulations just posted in the Federal Register or the U.S. Supreme Court decision issued yesterday. Please be an active participant and our “virtual” communication network can really work.

Update on The National Assistive Technology
Resource Library

        We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions and other administrative documents. We also have indexed more than 400 documents from more than 100 pending and decided court cases. All documents are available through our AT Resource Library. Please send us your hearing decisions, briefs and other documents involving AT.

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