Thread Subject: Re: Subpart ADefinitions-FundamentalAlterations-Action Needed

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From: terry.weaver@gsa.gov
Date: Thu, May 03 2007 2:30 PM

Not one who normally wants to wade into the middle of a discussion between
lawyers, I do need to express an opinion here.

Fundamental alteration currently is product-focused and helps agencies in
the definition of their requirements. The example frequently given is if
an agency requires a small portable device such as a PDA with email
capability. In conducting market research to determine if there are any
products commercially available that meet my agency's need, I would
probably identify BlackBerries and their competitors but I may not be able
to find a similarly sized device that also has voice output, a large,
visible screen and buttons that are tactilely discernible. In the
commercial marketplace, it would be a fundamenatl alteration of the
potential PDA products, making them more like notebook computers and
ending their utility as a pocket-sized device. The agency's requirements
don't change, only the availability of commercial products.






"Lybarger, Barbara (MOD)" < = EMAIL ADDRESS REMOVED = >
Sent by: = EMAIL ADDRESS REMOVED =
05/01/2007 01:43 PM
Please respond to
"TEITAC Subpart A Subcommittee" < = EMAIL ADDRESS REMOVED = >


To
"TEITAC Subpart A Subcommittee" < = EMAIL ADDRESS REMOVED = >
cc

Subject
Re: [teitac-subparta] Subpart ADefinitions-FundamentalAlterations-Action
Needed






Fundamental alteration and undue burden are often discussed together,
because the are both defenses for not complying with the ADA and or the
Rehab Act. That does not alter the accuracy of my point. Here is what
Justice has to say about the fundamental alteration and undue burdens
defenses.

... fundamental alteration in the nature of its program or activity or in
undue financial and administrative burdens. This determination can only be
made by the head of the public entity or his or her designee and must be
accompanied by a written statement of the reasons for reaching that
conclusion. The determination that undue burdens would result must be
based on all resources available for use in the program. If an action
would result in such an alteration or such burdens, the public entity must
take any other action that would not result in such an alteration or such
burdens but would nevertheless ensure that individuals with disabilities
receive the benefits and services of the program or activity. DOJ
Technical Assistance Manual, Sec. II-5.1000.
As I suggested earlier, it is the alteration to the government program
that is at issue, not the technology which should be serving the program.

Barbara Lybarger


From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Weinstein,
Michael
Sent: Tuesday, May 01, 2007 9:17 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Subpart
ADefinitions-FundamentalAlterations-Action Needed

In the Section 508 context fundamental alteration should focus on the
functionality of the product. The issues you raise are more accurately
addressed under undue burden.


Michael Weinstein, Esq.
Contracts
Systems Research and Applications Corporation
3434 Washington Boulevard
Arlington, VA 22201
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From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Lybarger,
Barbara (MOD)
Sent: Tuesday, May 01, 2007 9:02 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Subpart A
Definitions-FundamentalAlterations-Action Needed

___ I can accept this definition.
_X_ I can accept this definition with changes. I’m recommending that the
group consider the following changes:
Fundamental Alteration: A change in the basic purpose, critical function,
or characteristics of a product or service governmental activity or
function.
I would prefer this language because it is more consistent with how
fundamental alteration is used and interpreted in the rest of the ADA and
the Rehab Act. This is meant to be a very narrow exception and related to
the functioning of the government activity, not a particular pieces of
technology.
Barbara

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