Thread Subject: Re: Draft Questions

Note

This archival content is maintained by WebAIM and NCDAE on behalf of TEITAC and the U.S. Access Board . Additional details on the updates to section 508 and section 255 can be found at the Access Board web site.

From: Brett, Thomas F
Date: Fri, Dec 29 2006 3:20 PM

"The notion, expersed in some of the emails, that there have to be many accessible versions of a particular type of software to make 508 compliance mandatory, or that access should be just one of many factors balanced in procurements, seems to contradict the plain language of the statute which makes exceptions only when "undue burdens" exist"

There is another type of exception that many procurements use called the Commercially non-available exception. This is also provided for in the statute.

I would think that undue burden would be extremely difficult to prove when one procurement is weighed against even a small agency's budget. It is my understanding that the only way Undue Burden could be used is when there is only 1 product that meets the agency's business needs that costs x amount for a non 508 compliant version but the compliant version would cost a significant amount more. The agency's business needs drive the procurement. The accessibility requirements are added to the business requirements.
Tom Brett



-----Original Message-----
From: = EMAIL ADDRESS REMOVED = on behalf of Lybarger, Barbara (MOD)
Sent: Fri 12/29/2006 4:54 PM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions

Other relevant sections of the statute exempt national security and cases where accessibility would result in an "undue burdens". The statute says:


§ 794d. Electronic and information technology
(a) Requirements for Federal departments and agencies
(1) Accessibility
(A) Development, procurement, maintenance, or use of electronic and information technology
When developing, procuring, maintaining, or using electronic and information technology, each Federal department or agency, including the United States Postal Service, shall ensure, unless an undue burden would be imposed on the department or agency, that the electronic and information technology allows, regardless of the type of medium of the technology --
(i) 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 the information and data by Federal employees who are not individuals with disabilities; and
(ii) individuals with disabilities who are members of the public seeking information or services from a Federal department or agency to have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities.


This isn't a balancing of multiple factors unrelated to accessibility. "Undue burden" is a concept used throughout the ADA and the Rehab Act to deal case by case with those limited situations where access would be so costly or complicated that it doesn't make sense to mandate a particular solution. The Access Board's Guide to 508 talks about "undue burdens" as follow:


Undue burden. Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, an agency shall consider all agency resources available to the program or component for which the product is being developed, procured, maintained, or used.

The term "undue burden" is based on case law interpreting section 504 of the Rehabilitation Act (Southeastern Community College v. Davis, 442 U.S. 397 (1979)), and has been included in agency regulations issued under section 504 since the Davis case. See, e.g., 28 CFR 39.150. The term undue burden is also used in Title III of the ADA, 42 U.S.C. 12182 (b)(2)(A)(iii). The legislative history of the ADA states that the term undue burden is derived from section 504 and the regulations thereunder, and is analogous to the term "undue hardship" in Title I of the ADA, which Congress defined as "an action requiring significant difficulty or expense." 42 U.S.C. 12111(10)(A). See, H. Rept. 101-485, pt. 2, at 106.

Title I of the ADA lists factors to be considered in determining whether a particular action would result in an undue hardship. 42 U.S.C.12111(10)(B)(i)-(iv). However, since title I of the ADA addresses employment and the individual accommodation of employees, not all of the factors are directly applicable to section 508 except for the financial resources of the covered facility or entity which is necessary to a determination of "significant difficulty or expense." Unlike title I, section 508 requires that agencies must procure accessible electronic and information technology regardless of whether they have employees with disabilities. 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.

The provision states that "agency resources available to a program or component" are to be considered in determining whether an action is an undue burden. Because available financial resources vary greatly from one agency to another, what constitutes an undue burden for a smaller agency may not be an undue burden for another, larger agency having more resources to commit to a particular procurement. Each procurement would necessarily be determined on a case-by-case basis. Because a determination of whether an action would constitute an undue burden is made on a case-by-case basis, it would be inappropriate for the Board to assess a set percentage for the increased cost of a product that would be considered an undue burden in every case.


The notion, expersed in some of the emails, that there have to be many accessible versions of a particular type of software to make 508 compliance mandatory, or that access should be just one of many factors balanced in procurements, seems to contradict the plain language of the statute which makes exceptions only when "undue burdens" exist. The decision is not about insufficient competition or a host of mundane economic factors. It's about the fundamental right of people with disabilities to communicate with and contribute to the functioning of our government.

Barbara E. Lybarger, General Counsel
Massachusetts Office on Disability
One Ashburton Place, #1305
Boston, MA 02108
[617] 727-7440
[800] 322-2020
[617] 727-0965 FAX

_____

From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane Golden
Sent: Friday, December 22, 2006 1:39 PM
To: 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Draft Questions


Which may lead us back to the original questions which were:

1) Can conformance to an individual access standard be judged as yes/no OR is the standard one for which conformance will be identified along a continuum of 100% conformance to lesser levels (85%, 70% . . . )?

2) For a standard with yes/no conformance - are there sufficient products on the market so that other factors (cost and business need/functional performance) can be used secondarily in the process to make the procurement competitive? This aligns with your discussion of having access to data that says 75% of products the feds purchased met X standard so yes there are a lot of them out there and perhaps that standard could be mandatory.

Diane Golden

-----Original Message-----
From: Jim Tobias [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Friday, December 22, 2006 12:10 PM
To: = EMAIL ADDRESS REMOVED = ; 'TEITAC Subpart A Subcommittee'
Subject: RE: [teitac-subparta] Draft Questions


Here again a bit of market wisdom would be useful....

In the FCC's 255 rules, they put forward the concept of "very readily achievable". This was to be applied to features that were so easy to do that they should be found in every product, and that was their intent. (I guess the 508 formulation would be "totally due burden".)

I think we could agree to such a list. It might not go very deeply into the web/software space, but it could certainly cover almost all hardware questions, and most telecom ones. Is it worth it? (By the way, the FCC never went ahead and identified their list, nor did they, to my knowledge, encourage anyone else to do so.)

Secondly, a compendium of recent E&IT purchases, or some other way of sharing market information could reveal what is really available so widely that no exceptions are necessary. An unwieldy version of this would sound like "an accessibility feature found on 75% of the federal purchases in this product category in the past 12 months is considered mandatory." A real implementation nightmare, I know. I'm just being conceptual here.

But the underlying concern I have is trying to create reasonably "prioritized" regulations without any good sense of current trends in E&IT purchases; similarly, we lack good economic tools to define our costs and benefits....
_____

From: Diane Golden [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Friday, December 22, 2006 10:24 AM
To: 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Draft Questions


Concern about "blending" (accessibility, business need, functional performance, cost and how that was to be done consistently) was exactly what started this disscussion strand. The idea was to see if it was possible to identify a set of mandatory access standards that would be applied in a "must meet or you don't buy" approach rather than blended in with other factors in procurement decision making. At this point there doesn't appear to be any consensus on that alternative . . . which seems to leave back at square one.

Diane Golden

-----Original Message-----
From: Gregg Vanderheiden [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Thursday, December 21, 2006 6:28 PM
To: = EMAIL ADDRESS REMOVED = ; 'TEITAC Subpart A Subcommittee'
Subject: RE: [teitac-subparta] Draft Questions


I have a concern that the 'blending' approach is already being abused - even when classically not allowed.

Hmmmm.


Gregg
-- ------------------------------
Gregg C Vanderheiden Ph.D.


_____

From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane Golden
Sent: Thursday, December 14, 2006 10:04 PM
To: 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Draft Questions
"I agree that Subpart A should maintain the flexibility to allow each agency's business experts to determine the product that best meets the criteria they are evaluating, including Section 508."

Herein lies the problem, Subpart A as currently written is not flexible and does not include consideration of other issues outside of accessibility. It says "each agency shall procure products which comply with the provisions in this part when such products are available in the commercial market place" or when no product on the marketplace meets all of the standards "the agency must procure the product that best meets the standards." Taken at face value, Subpart A says agencies must buy products which conform 100% or buy the product that best meets the standards if products at the 100% conformance level are not available. Subpart A does not currently provide flexibility to consider other issues such as business need, cost, etc. While that is what is happening in real life -- it is not consistent with a plain reading of Subpart A.

If the consensus is to continue the current "blending" of considerations related to accessibility, business need, cost, etc., then Subpart A should be revised to accurately reflect that practice rather than describe an application that is not occurring. And of course it would be most helpful if the "blending" of considerations was a transparent and well described process so folks external to the procurement process could have some understanding of how those different factors are considered and weighed in the final decision.

Diane
-----Original Message-----
From: = EMAIL ADDRESS REMOVED = [mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of Hoffman, Allen
Sent: Thursday, December 14, 2006 2:33 PM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Draft Questions
Aubrey Woolley wrote:

" The reference to other federal government procurement requirements such as Buy America Act (BAA), Trade Agreements Act (TAA), and green purchasing requirements (i.e.Energy Star, FEMP* Standby Power, and RCRA*) is much appreciated. Security is another critical issue for many agencies.

It is important to keep sight of the context in which compliance with Section 508 takes place during the procurement process. For this reason, I agree that Subpart A should maintain the flexibility to allow each agency's business experts to determine the product that best meets the criteria they are evaluating, including Section 508. "

I agree, and what I'd like to determine is how acquisitions balance all these competing laws as a rule, and then apply that standard balancing procedure to 508 and see how it works.

I think there will never be a perfect formula for "be smart", and this is where the whole "sufficient techniques" component would help if we get input from Federal acquisitions folks. A question I have is, would Federal acquisitions folks actually read such a sufficient techniques document when considering Section 508 "balancing", as their bible is the Federal Acquisition Regulations, (FAR), and their local "AR"s.

Allen hoffman
Department of Homeland Security Office on Accessible Systems & Technology

WebAIM is an initiative of:
Center for Persons with Disabilities (CPD) Utah State University