Thread Subject: Re: Wording for fundamental alteration

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From: Karen Peltz Strauss
Date: Thu, Jan 03 2008 8:00 AM

A point of clarification. . The term "fundamental Alteration" applies to the product, not to the requirements defining that product. More specifically, under Section 255, a manufacturer is not required to install an accessibility feature if that feature would fundamentally alter the product. In the case of Section 508, a federal agency would not have to purchase a product with accessibility features if doing so would fundamentally alter the nature or purpose of its programs or activities.



What I am trying to say is that one does not talk about altering the "specified product requirements" or, for that matter, altering business needs, as has been suggested in the prior postings on this issue. Rather, one talks about not requiring the acquisition, use, etc. of products when doing so would interfere with the objectives served by those requirements or business needs.



Below is some revised language that is consistent with both Title II of the ADA and Section 255 law. Title II of the ADA requires state and local governments to make their programs and activities accessible (including the provision of E&IT where necessary), just the way Section 508 applies to the federal government. The Dept of Justice has promulgated regulations for that Title that use the fundamental alteration language when referring to what states and local govts must do to make their facilities accessible. While Section 508 applies to the purchase and maintenance of products, the same principles can and should apply for the purposes of defining this concept. Specifically, 28 CFR Section 35.150 reads:



(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not -- (subsections 1 and 2 are omitted - they deal with different exclusions)

(3) Require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with § 35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall 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 or services provided by the public entity.



Given the above (and other language in the FCC's Section 255 rules), here is my proposal for new language:



1194.3 - E- Undue Burden

For E&IT covered by Section 508, this part shall not be construed to require an undue burden in the nature of a product or its components.

(1) 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.

(2) 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 section - Fundamental Alteration (applicable to both Section 255 and 508)

This part must not be construed to require a fundamental alteration in the nature of a product or its components. A fundamental alteration occurs when the accessibility feature would substantially reduce the functionality of the product, materially render some features inoperable, or substantially impede or deter use of the product. For E&IT subject to Section 508, in order to claim fundamental alteration, an agency must prove that the development, procurement, maintenance or use of the product in question would substantially or materially interfere with the purpose and function for which the product is being developed, procured, maintained or used. The burden of proof as to whether a product would result in a fundamental alteration rests with the manufacturer or agency asserting this claim.



Karen

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