Thread Subject: Re: Wording for fundamental alteration

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From: Diane Golden
Date: Wed, Dec 19 2007 10:10 AM

Thanks Karen, that helps clarify for me. Does the following capture the
current status?



Diane



1194.3 ? E- Fundamental Alteration

This part must not be construed to require a fundamental alteration in the
nature of a product or its components.

(Maintains current language with edits for consistency ? no content change.
Applies to both 255 and 508)



For E&IT covered by Section 508, fundamental alteration includes altering
specified product requirements or business need.

(New sentence added for 508 only. Need note to provide clarification about
difference between ?specified product requirements? and ?business need?.
Peter Korn - I think you described this distinction during discussions - can
you draft something?)



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

(Maintains current language, applies to 508 only as 255 is ?readily
achievable.?)



Technical infeasibility, if it is substantiated by empirical evidence or
documentation, is one factor in determining whether an action would
constitute an undue burden.

(New sentence added to clarify how ?technical infeasibility? fits in the
analysis ? per the discussion and decision to eliminate the inherently
visual EIT item as it is covered here.)





-----Original Message-----
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of Karen Peltz
Strauss
Sent: Wednesday, December 19, 2007 5:47 AM
To: TEITAC Committee
Subject: Re: [teitac-committee] Wording for fundamental alteration



Also, as I mentioned on the phone, while not wanting to substantially alter
a product because it would interfere with its intended purpose, function,
features, size, etc. would in fact be under the rubric of fundamental
alternation, technical infeasibility would not (and never has been under
disability case law). It is mixing two different concepts. Since technical
feasibility is really more of a component of the readily achievable or undue
burden defense, it would be more appropriate to have a sentence where undue
burden is defined (1194.4) that adds in the technical infeasibility
language. The language I am suggesting below is consistent with the Report
and Order issued under Section 255's readily achievable (paragrapsh 63 and
64 of the Report).

Undue burden means significant difficulty or expense. In determining whether
an action would result in an undue burden, an agency must consider all
agency resources available to the program or component for which the product
is being developed, procured, maintained, or used. Technical infeasibility,
if it is substantiated by empirical evidence or documentation, is one factor
in determining whether an action would constitute an undue burden.

Karen

----- Original Message -----
From: Gregg Vanderheiden
To: = EMAIL ADDRESS REMOVED = ; 'TEITAC Committee'
Sent: Tuesday, December 18, 2007 11:33 PM
Subject: Re: [teitac-committee] Wording for fundamental alteration


Thanks Diane, as per discussion.



Any use of the term "business needs" would require a definition of the
term - and how it differs from the specifications for the purchase
(requirements).



Also I think technical infeasibility should be handled with the note
posted previously.


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






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From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane Golden
Sent: Tuesday, December 18, 2007 4:46 PM
To: 'TEITAC Committee'
Subject: Re: [teitac-committee] Wording for fundamental alteration

Alternative approach to Fundamental Alteration --



1) Keep the current wording with minor edits (must for shall) in
sentence one.

"This part must not be construed to require a fundamental alteration in
the nature of a product or its components."



2) Add a second sentence that includes the issues identified as needing
clarification for 508.

"For E&IT subject to Section 508, fundamental alteration includes
altering specified product requirements or business need and technical
infeasibility."



I didn't spend a lot of time on the wording, just the concept of two
sentences. The first sentence lets the existing language continue to cover
both 255 and 508, without interfering with technical feasibility being part
of the readily achievable analysis under 255. And the second adds 508
specific clarification.



Diane



-----Original Message-----
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of Gregg
Vanderheiden
Sent: Tuesday, December 18, 2007 2:51 PM
To: 'TEITAC Committee'
Subject: [teitac-committee] Wording for fundamental alteration

Note: This exception would include instances where it is technically
impossible to meet a provision without a fundamental alteration to ... etc.






Gregg

------------------------

Gregg C Vanderheiden Ph.D.
Professor - Depts of Ind. Engr. & BioMed Engr.
Director - Trace R & D Center
University of Wisconsin-Madison
<http://trace.wisc.edu/> FAX 608/262-8848

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