Federal Standard For Electronic and Information Technology
Section 508 of the Rehabilitation Act of 1973, as amended in 1998 requires Federal departments and agencies, including the U.S. Postal Service, to comply with accessibility requirements when procuring, developing, using or maintaining electronic and information technology (E&IT), unless doing so causes an undue burden. This article will discuss the development of the Section 508 Standard and its implications.
THE LAW: SECTION 508
In 1998, Congress amended the Rehabilitation Act and strengthened provisions covering access to information in the Federal sector. Section 508 requires access to the Federal government’s electronic and information technology. The law covers all types of electronic and information technology in the Federal sector. It applies to all Federal agencies when they procure, develop, use or maintain such technology. Federal agencies must ensure that this technology is accessible to employees and the public to the extent that it does not pose an “undue burden.” The law directed the Access Board to develop accessibility requirements for this technology and for those the Section 508 Standard to become part of the Federal procurement regulations.
The Access Board is an independent Federal agency devoted to accessible design for people with disabilities. On December 21, 2000, the Board issued accessibility requirements for electronic and information technology under Section 508. The Board also develops and maintains accessibility guidelines for the built environment, transit vehicles and telecommunications products under other laws, and enforces design standards for federally funded facilities. Presented here is an overview of the new Section 508 Standard.
The Access Board drew from its experience, in developing and maintaining design guidelines for the Americans with Disabilities Act and design standards for the Architectural Barriers Act. It also incorporated into the Section 508 Standard many guidelines that the Board developed for accessible telecommunications products and services under Section 255 of the Telecommunications Act of 1996.
The scope of section 508 is limited to the Federal sector. It does not apply to the private sector, nor does it generally impose requirements on recipients of Federal funds.
DEVELOPMENT OF STANDARDS
Shortly after the law was enacted, the Access Board developed an advisory committee to develop recommendations on the requirements to be developed. In May 1999, the Electronic and Information Technology Accessibility Advisory Committee (EITAAC) completed its work and presented its recommendations to the Board. The committee consisted of 27 representatives from industry, various disability organizations and other groups with an interest in the issues to be addressed. On March 31, 2000, the Board published a Notice of Proposed Rulemaking based closely on the Committee’s report. The proposed requirements were available for public comment for 60 days through publication in the Federal Register. The Board sought information and comment on various issues through questions it posed in a discussion provided in the proposed rule. Over 100 individuals and organizations submitted comments on the proposed requirements. The comments were submitted by Federal agencies, representatives of the information technology industry, disability groups and persons with disabilities. The Board finalized its requirements in accordance with its review of the comments and published them in the Federal Register. The amended 508 Standard became part of the Federal Acquisition Regulations to help Federal agencies determine whether or not a technology product or system is accessible.
The final 508 Standard can viewed at: http://www.access-board.gov/sec508/508standards.htm
A summary of the standard can be read at: http://www.section508.gov/index.cfm?FuseAction=Content&ID=11#general
ENFORCEMENT AND EFFECTIVE DATE
Section 508 uses the Federal procurement process to ensure that technology acquired by the Federal government is accessible. The law also sets up an administrative process under which individuals with disabilities can file a complaint alleging that a Federal agency has not complied with the standards. This process uses the same complaint procedures established under Section 504 of the Rehabilitation Act (which covers access to Federally funded programs and services). Individuals may also file a civil action against an agency to seek injunctive relief and attorney’s fees. The enforcement provisions for section 508 took effect on June 21, 2001.
By statute, the enforcement provisions of Section 508 apply only to electronic and information technology procured on or after the effective date. As a result, Section 508 does not authorize complaints or lawsuits to retrofit technology procured before this date to meet the Board’s standards. However, even though Section 508’s enforcement mechanisms apply only to procurement, the law does require access to technology developed, used or maintained by a Federal agency. Further, other sections of the Rehabilitation Act require access to Federal programs (Section 504) and accommodation of Federal employees with disabilities (Sections 501 and 504); it is possible that Federal agencies will use the amended Section 508 Standard as a yardstick to measure compliance with these other sections of the law.
A federal agency does not have to comply with the technology accessibility standards if it would pose an undue burden to do so. This is consistent with language used in the Americans with Disabilities Act (ADA) and other civil rights legislation, where the term ‘undue burden’ has been defined as “significant difficulty or expense”. However, even if an undue burden is claimed, Section 508 requires Federal agencies to provide people with disabilities access to the product or information affected through alternative means.
FREQUENTLY ASKED QUESTIONS
Question: What entities are covered by section 508?
Answer: Section 508 requirements pertain to Federal agencies. The law is not a directive to the industry. The Standard enhances accessibility for both Federal employees and public users of those agencies. For example, if you work for a non-profit organization that recently purchased an uncaptioned privately produced video, the 508 requirements would not apply to your situation because the video is not Federal property.
Question: When was the effective date of enforcement?
Answer: Section 508 requirements are only enforceable in relation to procurements that occurred after June 25, 2001. Generally speaking, it will take time for new E&IT to gradually displace some types of older E&IT. If you have a complaint about a Federal interactive voice response (IVR) system, for example, one would need to determine if that IVR system was procured after June 25, 2001 to establish if its procurement was actionable under Section 508. If it was procured before June 25, 2001, then you might request a reasonable accommodation under Sections 501 or 504 of the Rehabilitation Act, but that IVR system complaint would not be actionable under Section 508. With regard to IVR systems, an agency’s responsibilities extend beyond the procurement of the system’s capabilities. The agency must ensure that it is programmed accessibility before making it available for employee or public use. That could include TTY accessibility of the voiced information; time-out warnings and means of extension; and other issues.
Question: What is the difference between accessibility and accommodation?
Answer: Accessibility happens before the fact and accommodation generally occurs after the fact. Section 508 addresses accessibility, not accommodation. Accessibility addresses the design of technology, not the needs of specific individuals. If a Federal agency, for example, were to purchase a new phone system, section 508 would require all of the new phones to be hearing aid compatible. It would not require the agency to understand inductive listening or to survey how many hard of hearing people are in the agency. Section 508 is technology-centered, whereas accommodation (Sections 501 and 504) is person-centered.
Question: Does a product have to be perfectly accessible in order to be purchased by a Federal agency?
Answer: Federal agencies may procure E&IT that is non-conforming with the 508 Standard, by claiming an exception. Such exceptions are listed in Subpart A of the Standard and may include: lack of commercial availability and concern that conformance will fundamentally alter a product. If an Agency claims an undue burden, it must still find a way to provide access to the E&IT using alternative means.
Question: How does one evaluate a product for 508 conformance?
Answer: There are basic questions to consider before focusing on testing methodology or who is responsible for the assessment.
First, it is assumed that the product is truly electronic and information technology (E&IT) as defined in the section 508 Standard. Sometimes this classification is challenging, as in the case of some laboratory research equipment, for example. Just because a device is electronic does not mean it falls into the category of E&IT.
Second, you need to determine which technical provisions apply to the product. Many provisions listed in Subpart B will not apply to particular products. For example, if you are evaluating a website and there is no animation, then the animation provision does not apply. Also, it is not unusual for provisions from more than one category in Subpart B to apply to a particular product. For example a procured computer may have installed software, so both computer and software provisions will apply. Therefore, it is important to think of products in terms of their “functionality” rather than to ask “which category” the product falls under. It may be a converged product for which more than one section of Subpart B applies.
Third, you need to describe in detail how the product conforms to each of the applicable provisions. If you are not making the determination yourself, you may want to clearly document the source of your information. For example, if you are a vendor, you can list the product in the “Buy Accessible” database on the section508.gov website, which is used by Federal agencies as a source of product accessibility information. If you are a Federal requiring-official, you may want to specify applicable provisions, when possible, in your request for proposals.
Why is Section 508 important?
1.) Section 508 is proactive. In many cases, because the solution is provided in advance, the design will not require users to disclose their disability and ask for help. Accessible design increases independence of people with disabilities, regardless of whether they need accommodations. It reduces barriers to E&IT up-front, in much the same way that the ADA (Americans with Disabilities Act) and ABA (Architectural Barriers Act) help remove many architectural barriers.
2.) Section 508 helps drive accessible design. Companies compete to develop products that conform to the 508 standard. This results in products with more accessibility features and improved features.
3.) Section 508 spills accessibility technology into society. Product features developed for the purpose of meeting Federal procurement regulations are being retained and incorporated in products sold outside the Federal government as well.
4.) Section 508 serves as a Federal model for accessibility. Entities outside the Federal government have voluntarily chosen to incorporate the Standard. Some states, universities and fortune 500 companies, for example, have designed their web sites to conform to the provisions in the 508 Standard.
5.) Section 508 is enforceable. Federal agencies can be sued if they don’t comply. This is one reason why the Section 508 standard is taken very seriously and has received a lot of attention. Complaints must be filed by people with a disability. The complaint can be filed directly with the Federal department or agency alleged to be in noncompliance, and they will investigate it using existing administrative procedures for handling Section 504 inquiries. The complainant may also file a civil action. If an agency is determined to be non-compliant with regard to a procurement action, complainants are entitled to injunctive relief (not punitive damages) and to recover reasonable attorney fees.
6.) The Federal government is accountable. Section 508 requirements are considered by many to have been successfully implemented to date. This is due, in part, to the cooperative effort of over 20 departments and agencies called the Federal Information Technology Accessibility Initiative. The 508 Working Group also won the E-Gov 2003 Explorer Award for its outstanding efforts to change the way that the Federal government purchases electronic and information technology. This working group reports to the Section 508 Steering Committee, which was recently adopted and institutionalized by the Federal CIO Council. In addition, all Federal agencies have Section 508 Coordinators who serve as resources.
The U.S. Department of Justice is required to periodically survey agencies for 508-compliance and submit information to the U.S. Attorney General. The Attorney General, in turn, will prepare and submit to the President a report containing information on and recommendations regarding the extent to which the E&IT of the Federal Government is accessible to and usable by individuals with disabilities
7.) Section 508 increases employment opportunities for persons with disabilities in the Federal government. It also supports full participation by the public who use Federal government products and services.
The Access Board and General Services Administration (GSA) are authorized by statute to provide technical assistance on Section 508. GSA maintains the section508.gov web site. The ITTATC is funded by the U.S. Department of Education to provide additional technical assistance.
1331 F Street, NW
Washington, DC 20004