Thread Subject: Re: Wording for fundamental alteration

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From: Michele Budris
Date: Wed, Jan 02 2008 12:10 PM

Gregg,

Sun disagrees with your change.

Michele

On Jan 2, 2008, at 10:53 AM, Gregg Vanderheiden wrote:

> Hmm
> The definition of fundamental alteration looks ok except I still
> don't think âbusiness needâ belongs in fundamental alteration.
> Product specs yes. â and business need should be expressed there.
>
>
>
> It means fundamental alteration in the product â and shouldnât be
> extended beyond that for a number of reasons. If a product can't
> meet the specifications that is handled elsewhere.
>
>
>
> Also âbusiness needâ is not defined anywhere and makes this very
> important exception untestable (and very contestable).
>
>
>
> Recommend we drop the undefined âbusiness needsâ and use Dianeâs
> suggestion but stop after product requirements.
>
>
>
> That would make it:
>
>
>
> 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.
>
>
>
> For E&IT covered by Section 508, fundamental alteration includes
> altering specified product requirements.
>
>
>
>
> Gregg
> -- ------------------------------
> Gregg C Vanderheiden Ph.D.
>
>
>
>
>
> From: = EMAIL ADDRESS REMOVED = [mailto:teitac-
> = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane Golden
> Sent: Wednesday, December 19, 2007 11:19 AM
> To: 'TEITAC Committee'
> Subject: Re: [teitac-committee] Wording for fundamental alteration
>
> 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:teitac-
> = 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.
>
>
>
>
>
> From: = EMAIL ADDRESS REMOVED = [mailto:teitac-
> = 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:teitac-
> = 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
>
> DSS Player at http://tinyurl.com/dho6b
>
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