Information Technology Access: Questions and Answers for State and Local Entities
What is Section 508?
Section 508 is a part of the Rehabilitation Act of 1973 which requires that electronic and information technology developed, procured, maintained, or used by the Federal government be accessible to people with disabilities.
In 1998, the Workforce Investment Act was signed into law, and includes the Rehabilitation Act Amendments of 1998. Section 508 was originally added to the Rehabilitation Act in 1986; the 1998 amendments significantly expanded and strengthened the technology access requirements in Section 508.
The 1998 version created binding, enforceable standards that have been incorporated into Federal procurement regulations. Federal agencies use these standards in their electronic and information technology acquisitions. Consistent government-wide standards make it easier for Federal agencies to meet their obligation to make their technology systems accessible and promote competition in the technology industry by clarifying the Federal market's requirement for accessibility in products. Section 508 also established a complaint procedure and reporting requirements, which further strengthened the law.
What’s new with Section 508?
Updated draft Section 508 standards were published in the Federal Register on December 8, 2011. The next steps to enacting the revisions are a Notice of Proposed Rulemaking (NPRM) and then the final publication of the rule. As of January, 2014, estimates are that the NPRM isn’t likely to be published until the 3rd quarter of 2014. Following the comment period, the final rule could be published in the 4th quarter of 2015, with implementation required by sometime in 2016.
To whom does Section 508 apply?
Section 508 applies to Federal departments and agencies. It does not regulate the private sector and does not apply directly to recipients of Federal funds. However, the Justice Department is in the process of proposing web access rules under the ADA for both Title II entities (state and local governments) and for Title III entities (public accommodations, which will include most private businesses, etc.). See more on the ADA under #13.
What does Section 508 require of Federal agencies and departments?
Section 508 requires that when Federal agencies develop, procure, maintain, or use electronic and information technology, they must ensure that it is accessible to people with disabilities, unless it would pose an undue burden to do so. Federal employees and members of the public who have disabilities must have access to and use of information and services that is comparable to the access and use available to non-disabled Federal employees and members of the public.
How do Federal agencies and departments know whether the electronic and information technology is accessible?
Standards have been established to help Federal agencies determine whether or not a technology product or system is accessible. Federal agencies must comply with these technology accessibility standards for all electronic and information technology acquired after June 21, 2001. Technology developed or acquired for a Federal agency by a contractor must also comply with the standards. If a Federal agency determines that it would pose an undue burden to comply with the standards, it must still provide information and data to individuals with disabilities through an alternative means of access that can be used by the individuals.
Are there any exemptions to the technology accessibility standards?
A Federal agency does not have to comply with the technology accessibility standards if it would impose 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, the agency must explain why meeting the standards would pose an undue burden for a given procurement action, and must still provide people with disabilities access to the information or data that is affected.
How is Section 508 enforced?
Because the Section 508 standards are incorporated into the Federal Acquisition Regulation (FAR), agencies' procurement of accessible technology is subject to the same compliance and enforcement mechanisms as other parts of the FAR. There is an administrative complaint process which enables any individual with a disability to file a complaint alleging that a Federal department or agency has not complied with the accessible technology standards in procurement. The complaint process is the same as that used for Section 504 of the Rehabilitation Act. It provides injunctive relief and attorney's fees to the prevailing party, but does not include compensatory or punitive damages. Individuals may also file a civil action against an agency. It is important to note that enforcement is limited to compliance with the IT access standards in procurement, not in other activities such as IT development which would include much of the web site deployment in Federal agencies.
What is meant by "electronic and information technology?"
The Access Board defined "electronic and information technology" consistent with the Clinger Cohen Act of 1996. That Act defines "information technology" to include "any equipment or interconnected system or subsystem of equipment, that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information." It includes computer hardware, software, networks, and peripherals as well as many electronic and communications devices commonly used in offices.
What does the law mean by "accessible?"
The standards developed by the Access Board explain the technical and functional performance criteria that will determine whether a technology product or system is "accessible." In general, an information technology system is accessible to people with disabilities if it can be used in a variety of ways that do not depend on a single sense or ability. For example, a system that provides output only in audio format would not be accessible to people with hearing impairments, and a system that requires mouse actions to navigate would not be accessible to people who cannot use a mouse because of a dexterity limitation or visual impairment. Section 508 focuses on the accessibility of the electronic and information technology products themselves, not on providing accommodations for individual people with disabilities. Even with an "accessible" system, individuals with disabilities may still need specific assistive technology or peripheral devices as an accommodation to be able to use it. For example, in order to use a word processing program, a person who is blind may need add-on software that reads text aloud; for the word processing program "accessibility" means it is compatible with the add-on screen reading program.
Does Section 508 apply to Web sites?
Federal agencies that provide information to the public or to their employees through internet or intranet must ensure that such sites are accessible to persons with disabilities by meeting Section 508 standards. Section 508 does not apply to a private sector Web site unless such site is provided under contract to a covered entity. For example, a Federal agency might contract with a consulting firm to collect and analyze some demographic data and make that information available to the public on a Web site. In that case, the Web site or portion devoted to fulfilling the contractual obligation would be subject to Section 508. The firm's general Web site, or the portion not devoted to the contracted study, would not be subject to Section 508.
Do the Access Board standards address children's technology access needs?
Not specifically. For states that operate schools, there are questions regarding the use of the Access Board standards to determine the accessibility of instructional technology purchased or developed. The Access Board standards were developed for information technology designed to provide access to federal government information and services by employees and members of the public. As such, the standards may not be appropriate to use in the determination of accessibility of teaching and learning media used with young children. Alternative access guidelines, such as those developed by the National Center for Accessible Media, may be more appropriate to use of a combination of standards may be the most comprehensive way of assuring accessibility of instructional media for young children.
How does the ADA/Section 504 address information technology accessibility?
There are fundamental differences in the way the ADA and Section 504 of the Rehabilitation Act require program access, as compared to the specific IT access standards and procurement requirements of Section 508. The ADA and Section 504 are general anti-discrimination laws that require program and architectural access which may be accomplished by providing accessible information technology products. However, ADA/504 requirements can also be accomplished in other ways, such as the use of human assistance or program modifications. It is also important to note that providing accessible IT products that meet 508 standards may only partially meet ADA/504 requirements. Conformance with 508 standards for IT product accessibility will not fully address the IT access needs of many individuals with disabilities, such as those who need add-on or substitute adaptive devices for access. ADA/504 technology access decisions are made for individuals on a case by case basis; whereas Section 508 information technology access decisions are made by determining if products adhere to the Access Board standards. To date, the Department of Justice and the Office for Civil Rights have not adopted IT access standards to be used to determine compliance with the ADA or Section 504.
Does the ADA have specific requirements for Web accessibility?
Not yet, but they are on the way. While web sites are covered by the ADA's anti-discrimination requirements, there are not specific standards for web access in the ADA – but they appear to be coming relatively soon. The Department of Justice is scheduled to announce proposed ADA web access rules for both state and local government and for public accommodations. The rules will address the obligation to provide web accessibility and the technical standards to comply. The Notice of Proposed Rulemaking (NPRM) was scheduled to come out for State and Local Governments (Title II) in December, 2013 – and for businesses (Title III - Public Accommodations) in March, 2014. Some recent estimates are that NPRM for both Titles will come out in mid-2014.
Does IDEA require information/instructional technology to be accessible?
The IDEA, similar to the ADA and Section 504, does not specifically require information or instructional technology to be accessible as does Section 508. IDEA is a law that requires the provision of a free, appropriate public education to all students with disabilities who need specialized instruction. The delivery of accessible technology and/or assistive technology could be required as part of a student's individualized education program (IEP). However, a student's IEP might also be implemented in other ways such as the use of paraprofessional assistance or program modifications rather than the delivery of accessible technology. IDEA technology access decisions are made for individual students on a case-by-case basis; whereas Section 508 access decisions are made by determining if technology products adhere to the Access Board standards.
Are there other laws that govern information technology accessibility?
A number of states and local agencies have adopted laws, policies, or executive orders that address one or more facets of information technology accessibility. A few states have statutes that require an access clause be included in all contracts for purchase of information technology products (hardware and software). Another handful of states have rules, policies or executive orders that require adherence to access standards for web development. Still other states have less formal guidance encouraging information technology accessibility without identification of specific access standards. Lastly, a few states have laws or policies that require electronic textbook procurement for specific educational entities.
Missouri law and policy on IT access
Missouri state law (RSMo. 191.863) requires state agencies to develop and procure accessible information technology unless an undue burden would be imposed. The statute defines state agencies as "each department, office, board, bureau, commission or other unit of the executive, legislative, or judicial branch of state government, including public four-year and two-year colleges and universities." Missouri's law defines information technology the same as Section 508. The statute also charged the Missouri assistive technology council (MoAT) and the office of information technology (OIT) with responsibility for adopting standards to be used by state agencies in the procurement or development of accessible information technology.
MoAT and OIT along with the Division of Purchasing developed IT access standards. The standards can be found at: http://mdc.mo.gov/sites/default/files/resources/2011/10/itaccessibilitystds_2011.pdf
For some state contracts, applicable Section 508 standards (§1194.21) have been used as requirements for accessible product development, along with contract language providing for a no cost "fix" to the state for non-compliance with those standards.