Advocating for Accessible Information: Section
508
and Other Federal Mandates
Steven Mendelsohn, Esq., New York, NY &
Ron Hager, National AT Advocacy Project
I. Section 508 of the Federal Rehabilitation Act, 29 U.S.C. § 794d
A. Introduction
1. Sources of law
a. Statute-29 U.S.C. § 794d
b. Regulations-36 C.F.R. Part 1194, 65 FR 80499, 12/21/2000
(1) Developed by the Access Board
(2) Access Board established pursuant to 29 U.S.C. § 792
(3) Primary mission to promote access for individuals with disabilities
(4) Comprised of 25 members-13 appointed by President from the public and the majority of which must be individuals with disabilities. Remainder are heads of Federal agencies-DH&HS, Education, HUD, Labor, Interior, Defense, Justice, VA, Commerce, GSA, and the U.S.P.S. 65 FR 80500, fn. 2.
(5) These final regulations will be incorporated into the Federal Acquisition Regulation (FAR) and into the procurement policies of each covered agency. 65 FR 80501.
c. Web based resources
(1) Access Board-www.access-board.gov/sec508
(a) Electronic and Information Technology
(b) Standards for Electronic and Information Technology: An Overview
(c) Questions and Answers About Section 508 of the Rehabilitation Act Amendments of 1998
(3) DOJ www.usdoj.gov/crt/508/508home.html (includes checklist for compliance
2. General standard
a. When developing, procuring, maintaining, or using electronic and information technology (E&IT),
b. Each Federal department or agency ... shall ensure,
c. Unless an undue burden would be imposed on the department or agency,
d. That the E&IT allows, regardless of the type of medium of the technology-
(1) Individuals with disabilities who are Federal employees to 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 who are not individuals with disabilities; and
(2) Individuals with disabilities who are members of the public seeking information or services from a Federal ... agency to have access to and use of information and data that is comparable to ... such members of the public who are not individuals with disabilities. 29 U.S.C. § 794d(a)(1)(A).
3. Undue burden
a. Definition
(1) Undue burden means significant difficulty or expense.
(2) 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. 36 C.F.R. § 1194.4.
b. Documentation
(1) Agencies seeking to assert the "undue burden" exception to any provision, must document the basis for such a claim,
(2) 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).
c. Undue burden alternative
(1) When development, procurement, access or use would impose an undue burden,
(2) The agency must provide the information and data to covered individuals "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).
4. Fundamental alteration
This part shall not be construed to require a fundamental alteration in the nature of a product or its components. 36 C.F.R. § 1194.3(e).
5. Procuring products
a. When an agency procures a product, it must be in compliance with the regulations if the product is either commercially available or if it is developed in response to a government solicitation.
b. If products are commercially available which meet some, but not all of the standards, the agency must procure a product which best meets the standards. 36 C.F.R. § 1194.2(b).
c. For example, if the error messages on a photocopier cannot be made available in some nonvisual format for use by persons with visual impairments, this does not spare the agency from making the other controls and readouts accessible.
d. 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.
e. "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.
B. Covered Entities
1. Federal government
a. Any Federal department or agency
b. Including the United States Postal Service. 36 C.F.R. § 1194.4.
2. Federal contractors
a. Covered if the contract requires the use of the product or the use of the product to a "significant extent" in providing the service or furnishing the product under the contract. 36 C.F.R. § 1194.2(c).
b. It does not apply to technology obtained by federal contractors that is incidental to the performance of the contract. 36 C.F.R. § 1194.3(b).
c. 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.
d. 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.
3. State "Tech Act" projects must comply with the new provisions of Section 508, pursuant to their original applications under the Tech Act. Letter from Judith Heumann, Assistant Secretary, OSERS and Katherine D. Seelman, Director, NIDRR.
C. Exemptions
1. Agencies whose function involves:
a. Intelligence activities
b. Cryptologic activities related to national security
c. Command and control of military forces. 36 C.F.R. § 1194.3(a).
2. Equipment that is an integral part of a weapon or weapons system. Id.
3. Systems which are critical to the direct fulfillment of military or intelligence missions. Id.
4. This exemption does not include systems used for routine administrative and business applications. Id.
a. Such as payroll, finance and logistics, and
b. Personnel management applications.
5. Rules do not require installation of accessibility related software or attachment of an assistive technology (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).
6. E&IT need not be provided at locations other than where it is ordinarily provided or used. 36 C.F.R. § 1194.3(d).
7. Products located in spaces entered only by service personnel for maintenance, repair or occasional monitoring need not comply. 36 C.F.R. § 1194.3(f).
D. Definitions
1. Definition of E&IT. 36 C.F.R. § 1194.4.
a. Consistent with the definition of information technology in the Clinger-Cohen Act of 1996, 40 U.S.C. § 1401(3). 65 FR 80504.
b. Includes a broad range of devices and software
c. Includes computers, telecommunications systems, photocopiers, training videos, information transaction machines (ITM's) (such as lobby directories, information kiosks, or card readers), applications software and web sites maintained or contracted by the Federal government.
d. That are involved in the processing, storage and use of information.
2. Definition of AT derived from the Assistive Technology Act of 1998, 29 U.S.C. § 3002. 65 FR 80504.
a. Examples:
(1) Screen readers to either hear screen content or read the content in braille.
(2) Specialized one-handed keyboards.
(3) Specialized audio amplifiers that allow an individual with limited hearing to receive an enhanced audio signal. Id.
E. Methods of Compliance
1. Specific "technical standards." 36 C.F.R. Subpart B.
a. Each technical provision that applies to a product is listed under that product subheading.
b. "A product must comply with the provisions under each applicable section in Subpart B."
c. "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.
d. Software applications and operating systems. 36 C.F.R. § 1194.21.
e. Web-based information and applications. 36 C.F.R. § 1194.22.
(1) Graphics are not prohibited, but there must be a text equivalent for every non-text element. 36 C.F.R. § 1194.22(a).
(2) 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. 36 C.F.R. § 1194.22 (l).
(3) 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. 36 C.F.R. § 1194.22(k).
(4) When electronic forms are to be completed on-line, form shall allow people using AT to access the information and to be able to complete and submit the form. 36 C.F.R. § 1194.22(n).
f. Telecommunications products. 36 C.F.R. § 1194.23.
(1) Most of the requirements of Section 508 are triggered through basic design choices that manufacturers and developers make.
(2) 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, then 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. 36 C.F.R. § 1194.23(d).
(3) Left unstated, probably because too obvious, is the requirement that they must also include the capacity to actually grant the extra time when requested.
(4) Another illustration of these contingent requirements is interesting for its purpose of protecting all users of technology.
(5) If a telecommunications system allows a user to adjust the receive volume (that is, to control the amplification and sound level), it must automatically reset the volume to the default value after each use. 36 C.F.R. § 1194.23(g).
(6) Technologies which use encoding, signal compression, format transformation, or similar techniques shall not remove information needed for access or shall restore it upon delivery. 36 C.F.R. § 1194.23(j).
(7) A constant theme running through the requirements is what we will describe as redundancy, that is, the requirement that more than one input modality, output or format be supported.
(8) 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. 36 C.F.R. § 1194.23(k)(4).
g. Video and multimedia products. 36 C.F.R. § 1194.24.
(1) In many cases, the complex interrelationships between components of a technology system require what can best be called reciprocal design features.
(2) 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. 36 C.F.R. § 1194.24(a) and (b).
(3) 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. 36 C.F.R. § 1194.24(c) and (d).
(4) 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.
(5) By the same token, if the training materials are not properly equipped, having compliant televisions will not be enough.
h. Self contained, closed products. 36 C.F.R. § 1194.25.
i. Desktop and portable computers. 36 C.F.R. § 1194.26.
2. Functional performance criteria. 36 C.F.R. Subpart C.
a. For overall product evaluation.
b. For technologies or components for which there is no specific provision in Subpart B. 65 FR 80507.
3. Equivalent facilitation
Nothing in this part is 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
a. Not a waiver or variance of rules, but recognition that future technologies may be developed, and that existing technologies could be used in a way not envisioned by these standards which provide the same functional access.
b. In determining whether a technology results in "substantially equivalent or greater access," it is the functional outcome, not the form, which is important.
(1) "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."
(2) 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.
4. Information, documentation and support. 36 C.F.R. § 1194.41.
a. Product support documentation provided to end-users shall be provided in accessible formats, upon request, at no added charge.
b. End-users shall have access to a description of the accessibility and compatibility features of products in alternative formats, upon request, at no added charge.
c. Support services for products shall accommodate the communication needs of end-users with disabilities.
F. Enforcement
1. Self assessment
a. The law requires each Federal agency to engage in an accessibility self-evaluation process. 29 U.S.C. § 794d(c).
b. 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. 29 U.S.C. § 794d(d).
c. Agency self-evaluations are public documents most likely available under a FOIA request, but even if not, they could likely be obtained in discovery.
d. Likewise, one wonders how the Department of Justice could defend an agency against a claim of Section 508 violation if the Department had in its possession an agency questionnaire demonstrating any pattern or persistence of noncompliance.
2. Administrative complaint
a. Commencing June 21, 2001 (six months after filing these rules in the Federal Register) an individual may file an administrative complaint with the agency alleged to have violated Section 508. 29 U.S.C. § 794d(f)(1)(A) & (2).
b. This only applies to E&IT procured at least six months after promulgation of the final rule (after June 21, 2001). 29 U.S.C. § 794d(f)(1)(B).
3. Court action
a. There is a concurrent right to bring a court action. 29 U.S.C. § 794d(f)(3).
b. As with administrative complaints, this only applies to E&IT procured at least six months after promulgation of the final rule (after June 21, 2001). 29 U.S.C. § 794d(f)(1)(B).
4. Relief under Section 501 or Section 504 of the Rehabilitation Act
a. In addition to the requirements of Section 508, "the requirements to make reasonable accommodations for the needs of an employee with a disability under section 501 and to provide overall program accessibility under section 504 also apply. 65 FR 80502.
b. The statute expressly provides that Section 508 shall not be construed to limit any right, remedy or procedure available under any Federal law, including Section 501 and Section 504, that provides equal or greater rights. 29 U.S.C. § 794d(g).
II Section 504 of the Rehabilitation Act, 29 U.S.C. § 794
A. Statutory Standard
1. Prohibits discrimination against otherwise qualified people with disabilities in any program or activity receiving federal financial assistance, as well as by the federal government itself.
2. Basis for the Americans with Disabilities Act
B. Regulations
1. Each Federal agency or department to develop regulations
2. Education Department regulations-34 C.F.R. Part 104
3. General regulations similar to other departments. 34 C.F.R. § 104.4.
a. No qualified person with a disability shall, on the basis of disability, be excluded from participation in, denied the benefits of or otherwise be subjected to discrimination in a program or activity receiving Federal financial assistance.
b. Cannot provide a qualified person with a disability with an aid, benefit or service that is not as effective as that provided to others.
c. To be equally effective, aids, benefits or services are not required to produce the identical result, but must afford the opportunity to obtain the same result, benefit or service, in the most integrated setting appropriate.
III. Americans with Disabilities Act (ADA). 42 U.S.C. §§ 12101 et seq.
A. General Definitions Applicable to All Titles
1. Individual with a disability. 42 U.S.C. § 12102(2)
a. Has a physical or mental impairment which substantially limits one or more of a person's major life activities (walking, breathing, seeing or hearing, learning, working),
b. Has a record of a disability (i.e., cancer), or
c. Is regarded by others as having a disability.
2. Auxiliary aids and services. 42 U.S.C. § 12102(1).
a. Qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
b. Qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
c. Acquisition or modification of equipment or devices; and
d. Other similar services and actions.
e. Does not require personal devices (wheelchairs) or personal services (eating). 28 C.F.R. § 35.135.
B. Title I--Employment, 42 U.S.C. § 12111; 29 C.F.R. Part 1630.
1. Applies to firms employing 15 or more. 42 U.S.C. § 12111(5)(A).
2. Not an affirmative action requirement.
3. Prohibits discrimination against a qualified individual with a disability in job applications, hiring process, job training, pay, promotions, discharge and any other terms of employment. 42 U.S.C. § 12112(a) (emphasis added).
4. A person is qualified if he or she can perform the essential functions of the job with or without reasonable accommodation. 42 U.S.C. § 12111(8) (emphasis added).
5. Also prohibits discrimination against a qualified individual because of the known disability of a person the qualified individual is associated with. 42 U.S.C. § 12112(b)(4).
6. Requires reasonable accommodations to the known disabilities of the employee, unless an undue hardship. 42 U.S.C. § 12112(b)(5)(A) (emphasis added).
a. Examples:
(1) Modification of facilities,
(2) Job restructuring and modification of work schedule,
(3) Reassignment to a vacant position,
(4) Acquisition or modification of equipment,
(5) Appropriate modification of examinations, training materials or policies,
(6) Provision of qualified readers or interpreters. 42 U.S.C. § 12111(9).
b. Undue hardship: undue financial or administrative burden when looking at the resources and operation of the entire covered entity. 42 U.S.C. § 12111(10) (emphasis added).
C. Title II--State and Local Governmental Services. 42 U.S.C. § 12131; 28 C.F.R. Part 35.
1. 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.
2. Examples of covered programs and services:
a. Public schools and colleges,
b. Courts,
c. Agency offices, programs and services,
d. Employment by governmental units--they must comply with Title I.
3. Applies to qualified individuals with disabilities, who with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meet the essential eligibility requirements for the receipt of services or the participation in programs. 42 U.S.C. § 12131(2).
4. Program access-not required to make each existing facility accessible. 28 C.F.R. § 35.150(b).
a. May make architectural modifications.
b. May relocate or provide an alternative means of access.
c. May assign an aide or use a home visit.
d. Must provide services in the most integrated setting appropriate for the person with a disability. 28 C.F.R. § 35.130(d).
e. Must ensure that communications with people with disabilities are as effective as to people who are not disabled, including use of auxiliary aids and services. 28 C.F.R. § 35.160.
5. New facilities must be accessible. 28 C.F.R. § 35.151.
D. Title III--Places of Public Accommodation. 42 U.S.C. § 12181; 28 C.F.R. Part 36.
1. Examples:
a. Restaurants, hotels, theaters, stadia,
b. Stores, shopping malls, dry-cleaners, beauty shops
c. Banks, doctor, lawyer offices,
d. Parks, zoos, museums, libraries,
e. Health spas, bowling alleys, golf courses
f. Day care centers, senior citizen centers, schools (private). 42 U.S.C. § 12181(7).
2. Does not include private clubs or religious entities. 42 U.S.C. § 12187.
3. May not discriminate on the basis of disability. 42 U.S.C. § 12182(a).
4. Must provide reasonable modifications to accommodate the needs of people with disabilities, unless doing so would fundamentally alter the service in question. 42 U.S.C. § 12182(b)(2)(A)(ii).
5. Must provide needed auxiliary aids and services, unless to do so would fundamentally alter the service or result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii).
6. Any examinations or courses for education or professional or trade applications, licensing or certification must be offered in a place and manner which is accessible to people with disabilities. 42 U.S.C. § 12189.
7. Must remove architectural and communication barriers, if "readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv).
a. Carried out without much difficulty or expense.
b. But, consider overall size, resources and nature of operation of covered entity. 42 U.S.C. § 12181(9).
8. If not, must make other arrangements to provide goods and services. 42 U.S.C. § 12182(b)(2)(A)(v).
9. All new construction and alterations to existing facilities must be accessible. 42 U.S.C. § 12183.
a. Elevators are not required in buildings of less than 3 stories or with less than 3,000 square feet per story unless it is a shopping center or mall or the professional office of a health care provider. 42 U.S.C. § 12183(b).
IV. Telecommunications Act, 47 U.S.C. § 255
A. Statutory Standard
1. Manufacturers of telecommunications equipment or customer premises equipment shall ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable. 47 U.S.C. § 255(b).
2. A provider of telecommunications service shall ensure that the service is accessible to and useable by individuals with disabilities, if readily achievable. 47 U.S.C. § 255(c).
3. Whenever the above requirements are not readily achievable, a manufacturer or provider shall ensure that the equipment or service is compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to achieve access, if readily achievable. 47 U.S.C. § 255(d).
4. No private right of action to enforce these provisions. Only administrative complaints. 47 U.S.C. § 255(f).
B. Regulations-36 C.F.R. Part 1193, 63 FR 5608 (2/3/1998)
1. Telecommunications equipment and customer premises equipment shall pass through cross-manufacturer, non-proprietary, industry-standard codes, translation protocols, formats or other information necessary to provide telecommunications in an accessible format.
2. In particular, signal compression technologies shall not remove information needed for access or shall restore it upon decompression. 36 C.F.R. § 1193.37.
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