Subpart A Report 2007-03-12

This report uses semantic markup on inline text to show proposed insertions and deletions.  Blocktext is used for rationale, comment, explaination, and question.

Contents 1 Changes/Additions to Subpart A Provisions 2 §1194.1  Purpose 3 §1194.2  Application 4 §1194.3  General exceptions 5 §1194.4  Definitions 5.1 ACCESSIBILITY 5.1.1 Reference in 508 Law: 5.1.2 Reference in 508 Standards: 5.1.3 Current Definition: 5.1.4 Background/Discussion Points: 5.1.5 Suggested Change: 5.1.6 Comments: 5.1.7 Remaining Questions: 5.1.8 Committee Recommendation: 5.1.9 Cost Benefit Impact 5.2 ASSISTIVE TECHNOLOGY 5.2.1 Reference in 508 Law: 5.2.2 Reference in 508 Standards: 5.2.3 Current Definition: 5.2.4 Background: 5.2.5 Suggested Change: 5.2.6 Comments: 5.2.7 Remaining Questions: 5.2.8 Committee Recommendation: 5.2.9 Cost Benefit Impact 5.3 CAPTIONING 5.3.1 Reference in 508 Law: 5.3.2 Reference in 508 Standards: 5.3.2.1 Final 508 Standards 5.3.3 Current Definition: 5.3.4 Background/Discussion Points: 5.3.5 Suggested Change: 5.3.6 Comments: 5.3.6.1 Revisions for Consideration: 5.3.6.2 Comments: 5.3.7 Remaining Questions: 5.3.8 Committee Recommendation: 5.3.9 Cost Benefit 5.4 COMPARABLE ACCESS 5.4.1 Reference in 508 Law: 5.4.2 Reference in 508 Standards: 5.4.3 Current Definition: 5.4.4 Background/Discussion Points: 5.4.5 Suggested Change: 5.4.6 Comments: 5.4.7 Remaining Questions: 5.4.8 Committee Recommendation: 5.4.9 Comments and Input Relative to Committee Recommendation 5.4.10 Cost Benefit Impact 5.5 ELECTRONIC AND INFORMATION TECHNOLOGY 5.5.1 Reference in 508 Law: 5.5.2 Reference 508 Standards: 5.5.3 Current Definition: 5.5.4 Background/Discussion Points: 5.5.5 Suggested Change: 5.5.6 Comments: 5.5.7 Remaining Questions: 5.5.8 Committee Recommendation: 5.5.9 Comments and Input Relative to Committee Recommendation 5.5.10 Cost Benefit Impact 5.6 FUNDAMENTAL ALTERATION 5.6.1 Reference in 508 Law: 5.6.2 Reference in 508 Standards: 5.6.3 Current Definition: 5.6.4 Background/Discussion Points: 5.6.5 Suggested Change: 5.6.6 Comments: 5.6.7 Remaining Questions: 5.6.8 Committee Recommendation: 5.6.9 Cost Benefit Impact: 5.7 IT 5.8 TTY 5.8.1 Reference in 508 Law: 5.8.2 Reference in 508 Standards: 5.8.3 Current Definition: 5.8.4 Background/Discussion Points: 5.8.5 Suggested Change: 5.8.6 Comments: 5.8.7 Remaining Questions: 5.8.8 Committee Recommendation: 5.8.9 Cost Benefit Impact 5.9 Video Description 5.9.1 Reference in 508 Law: 5.9.2 Reference in 508 Standards: 5.9.3 Current Definition: 5.9.4 Background/Discussion Points: 5.9.5 Suggested Change: 5.9.6 Comments: 5.9.7 Remaining Questions: 5.9.8 Committee Recommendation: 5.9.9 Cost Benefit Impact 5.10 Text Conversation 5.10.1 Reference in 508 Law: 5.10.2 Reference in 508 Standards: 5.10.3 Current Definition: 5.10.4 Background/Discussion Points: 5.10.5 Suggested Change: 5.10.6 Comments: 5.10.7 Remaining Questions: 5.10.8 Committee Recommendation: 5.10.9 Cost Benefit Impact 5.11 UNDUE BURDEN 5.11.1 Reference in 508 Law: 5.11.2 Reference in 508 Standards 5.11.3 Current Definition 5.11.4 Background/Discussion Points 5.11.5 Suggested Changes 5.11.6 Comments 5.11.7 Remaining Questions 5.11.8 Committee Recommendations 5.11.9 Cost Benefits

Changes/Additions to Subpart A Provisions

§1194.1  Purpose

§1194.2  Application

(a) Products covered by this part shall comply with all applicable provisions of this part.

Comment:  This current language requires all products that meet the definition of 
EIT to conform to all applicable access requirements, e.g. applicable technical 
standards and functional performance standards.  It appears this is actually 
somewhat repeated in the next sentence.  Could this sentence be deleted?   

When developing, procuring, maintaining, or using electronic and information technology, each agency shall ensure that the products comply with the applicable provisions of this part in accordance with the provisions of subsections (b), (c) and (d) of this section, unless an undue burden would be imposed on the agency.

1. When compliance with the provisions of this part imposes an undue burden, agencies shall provide individuals with disabilities with the information and data involved by an alternative means of access that allows the individual to use the information and data.
2. When procuring a product, if an agency determines that compliance with any provision of this part imposes an undue burden, the documentation by the agency supporting the procurement shall explain why, and to what extent, compliance with each such provision creates an undue burden.

Rationale:  Clarifies that subsection (a) does not stand alone; 
it must be applied in  conjunction with (b), (c) and (d).  

(b) When procuring a product, each agency shall procure products, which comply with the provisions in this part when two or more such products are available in the commercial marketplace, and the product’s utility and performance meet the agency’s identified business and technical requirements. [or when such products are developed in response to a Government solicitation]. Agencies may apply required and generally accepted procurement procedures in accordance with governing procurement regulations to procurement decision-making regarding such products.

Explanation:  When two or more products are available that meet the access 
standards at 100% level AND those products meet the agency’s business need, 
agencies are obligated to procure one of those products.  The agency may 
use a traditional best-value review to decide which product to procure of 
those that meet the access standards and performance needs.  Using “two or 
more” ensures competition (there are at least two products to which a best 
value analysis can be applied) and prevents agencies from being obligated 
to purchase a single one product that is fully compliant with no competition.   

(c) Agencies cannot claim a product, as a whole is not commercially available because no product in the marketplace meets all the standards. If products are commercially available that meet some but not all of the standards, the agency must:

(Option 1) rate as most accessible [procure] the product that best meets the standards and shall utilize that rating in the procurement decision making process as implemented in accordance with governing procurement regulations.

Explanation:  This option would indicate that when 100% conformance is not available, 
agencies shall rate accessibility of what is available or bid and use that access 
rating in the standard “best value” procurement decision-making process.  

(Option 2) identify two or more commercially available products [procure the product] that best meet[s] the standards and apply required and generally accepted procurement procedures to those products in accordance with governing procurement regulations.

Explanation:  This option would indicate that when 100% conformance is not available, 
agencies shall identify at least two commercially available products (enough to ensure 
competition) that meet a determined level of accessibility (a “best meets” level) and 
then normal procurement decision making, “best value” process is applied to that pool 
of products.  

(Option 3) procure the product that best meets the standards irrespective of standard procurement procedures and governing procurement regulations.

Explanation:  This option would indicate that when 100% conformance is not available, 
agencies are obligated to procure the one product that is the most compliant, 
irrespective of the “best value” consideration process.  

(d) Products developed in response to a Government solicitation shall comply with all applicable provisions in this part.

Rationale:  Clarifies that agencies are obligated to require conformance to the 
access standards in solicitations for product development.  

(e) (c) Except as provided by §1194.3(b), this part applies to electronic and information technology developed, procured, maintained, or used by agencies directly or used by a contractor under a contract with an agency which requires the use of such product, or requires the use, to a significant extent, of such product in the performance of a service or the furnishing of a product.

§1194.3  General exceptions

(e) This part shall not be construed to require a fundamental alteration in the nature of a product, the intended business use of a product, or its components.

Rationale:  Clarifies the relationship of business need and fundamental alternation.  

(f) Products located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment are not required to comply with this part.

Rationale:  Discussion on misunderstanding and inappropriate application of
this exception … need suggested edits.  

(g) Products with narrow delineated use, no operating system or software, no capacity for assistive technology to be attached to the product, such as personal use calculators, for which an agency can readily document the availability of specialized products, just as a talking calculator or calculator with large visual display, which can and will be purchased to meet individual needs, are not required to comply with this part.

Rationale:  Establishes new exception needed for items that application of the 
technical and performance standards results in access barriers.  For example, 
requiring all calculators to have speech output, large visual display, enlarged 
keys, etc. actually creates access barriers depending on the functional 
limitations of individuals with disabilities.

§1194.4  Definitions

ACCESSIBILITY

Reference in 508 Law:

SEC. 508. 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— (6) Construction.— (B) Software and peripheral devices. -- Except as required to comply with standards issued by the Access Board under paragraph (2), nothing in paragraph (1)requires the installation of specific accessibility- related software or the attachment of a specific accessibility-related peripheral device at a workstationof a Federal employee who is not an individual with a disability.

Reference in 508 Standards:

Inclusion of a definition of the term Accessible was addressed in the comment section of the Standards, but no definition was included in the final standards Section 1194.4 Definitions Accessible. The term accessible was defined in the proposed rule in terms of compliance with the standards in this part, as is common with other accessibility standards. As proposed, if a product complies with the standards in this part, it is "accessible"; if it does not comply, it is not accessible.

Comment The Trace Research and Development Center (Trace Center) and the General Services Administration commented that the proposed definition of accessible would mean that products can be declared "accessible" if they are merely compatible with assistive technology and that the definition of accessible was being used as a measure of compliance. The Trace Center commented that the problem with this approach is that a product could have few or no accessibility features because it was an undue burden and still be considered accessible.

Response. Although the term accessible was used sparingly in the proposed rule, the Board agrees that the definition may be problematic. The term as used in the proposed rule was in fact addressing products which comply with the standards. Products covered by this part are required to comply with all applicable provisions of this part. Accordingly, the definition has been eliminated in the final rule and the term accessible is not used in the text of the final rule. A product is compliant with the requirements of section 508 of the Rehabilitation Act of 1973 (as amended by the Workforce Investment Act of 1998) by meeting all the applicable provisions of part 1194.

Current Definition:

No definition of the term “Accessible” was included in the final standards

Background/Discussion Points:

Question was raised in discussions as to whether we should try to define accessibility. It’s an issue/question that is raised on a regular basis

A workgroup member raised some underlying things to consider

• One really can't make products that are accessible.
• One can make things accessible to a person in a situation.
• One can't make things accessible to a person in all situations.
• One can't make things accessible to all people.

Items that meet the 508 provisions are not necessarily fully accessible.

• The products meet some minimum accessibility standard(s), but are not accessible to many people.
• The term accessible is often used interchangeably with the term usable.
• Unless we use the word “accessible” in one of the provisions in some normative way – it doesn’t need to be defined.

Conclusion is that the 508 requirements are “ standards designed to determine conformance with the legal obligation of EIT to be accessible”. The standards are designed to deliver access for a reasonable range of individuals with various disabilities, but even conformance at a 100% level will not ensure access to every individual with every type of disability. With that in mind- should we try to define products as being accessible?

Suggestion that the focus should be on conformance rather than defining the term “accessible”.

• Conformance to the guidelines should not be defined as accessible.
• Meeting the technical standards does not assure accessibility.
• There is so much to do beyond what is required in our guidelines.
• Conformance to the standards provides a framework that the product adequately meets sufficient functional performance criteria, which may include conditional environmental or policy factors.
• On the other hand we need to get usable language for the purposes of this effort, not a definition for all situations and potentials.

Suggested Change:

Unclear if workgroup has consensus on what change(s) should be considered

1. Is there a need to define the term “accessible” or
2. Is it a preferable approach to add a defining statement as a subset to Subpart A- Application section?  For example:
   • Items shall be considered accessible when the provisions from sub-part C of this regulation are met, for the general office environment, and (insert additional environments if needed). We might possibly include some reference to public or home environment.
   • Concerns were raised about tying to environment and the impact that could have on limiting the applicability of the standards. The regulations as a whole (application, exemptions, technical standards, etc) should guide the
   • Further suggestion swap out term ‘accessible’ and replace with ‘conformant” Products are considered conformant when the provisions from Subpart C of the standards are met.

Comments:

Remaining Questions:

• Is the term “Accessible” being used directly in any of the proposed technical or functional standards under development through TEITAC?

Committee Recommendation:

• New Definition of Accessibility. For the purpose of this regulation, general accessibility means conformance to the provisions contained in this standard. The term, accessibility, may also be used to define a broad set of features and capabilities which enable people with disabilities to have access to electronic information technology.

• Alternative Approach - No need for explicit definition since the term “accessibility” is not used as a stand alone term in the regulation except for the title. Otherwise the term is used in conjunction with other words, specifically “accessibility features” or “accessibility-related software”. As a result there is not need to define the term “accessibility”

Cost Benefit Impact

ASSISTIVE TECHNOLOGY

Assistive Technology Device.

Any item, piece of equipment, or system, whether acquired commercially, modified, or customized, that is commonly used to increase, maintain, or improve functional capabilities of individuals with disabilities.

Rationale:  The definition currently in the law is the definition of AT Device -
although it is labeled Assistive Technology.  The AT Act has a different definition 
of Assistive Technology which includes both devices and services.  This change will 
ensure consistency across federal laws and definitions.

Assistive technology service.

Any service that directly assists an individual with a disability in the selection, acquisition or use of an assistive technology device.

Rationale:  One of the other TEITAC Committees forwarded the suggestion that we 
include a definition of assistive technology services.  Is there a risk that it 
will be assumed that AT Services should be provided as part of 508 rather than 
as part of an accommodation under 503, 504 or the ADA?

Reference in 508 Law:

The term assistive technology is not specifically used in 508 Law

Reference in 508 Standards:

§ 1194.3 General exceptions. (c) Except as required to comply with the provisions in this part, this part does not require the installation of specific accessibility-related software or the attachment of an assistive technology device at a workstation of a Federal employee who is not an individual with a disability.

§ 1194.4 Definitions. Self Contained, Closed Products. Products that generally have embedded software and are commonly designed in such a fashion that a user cannot easily attach or install assistive technology. These products include, but are not limited to, information kiosks and information transaction machines, copiers, printers, calculators, fax machines, and other similar types of products.

Subpart B -- Technical Standards § 1194.21 Software applications and operating systems. (c) A well-defined on-screen indication of the current focus shall be provided that moves among interactive interface elements as the input focus changes. The focus shall be programmatically exposed so that assistive technology can track focus and focus changes. (d) Sufficient information about a user interface element including the identity, operation and state of the element shall be available to assistive technology. When an image represents a program element, the information conveyed by the image must also be available in text. (l) When electronic forms are used, the form shall allow people using assistive technology to access the information, field elements, and functionality required for completion and submission of the form, including all directions and cues.

§ 1194.22 Web-based intranet and internet information and applications. (l) When pages utilize scripting languages to display content, or to create interface elements, the information provided by the script shall be identified with functional text that can be read by assistive technology. (n) When electronic forms are designed to be completed on-line, the form shall allow people using assistive technology to access the information, field elements, and functionality required for completion and submission of the form, including all directions and cues. § 1194.25 Self contained, closed products. (a) Self contained products shall be usable by people with disabilities without requiring an end-user to attach assistive technology to the product. Personal headsets for private listening are not assistive technology.

Subpart C -- Functional Performance Criteria

§ 1194.31 Functional performance criteria. (a) At least one mode of operation and information retrieval that does not require user vision shall be provided, or support for assistive technology used by people who are blind or visually impaired shall be provided. (b) At least one mode of operation and information retrieval that does not require visual acuity greater than 20/70 shall be provided in audio and enlarged print output working together or independently, or support for assistive technology used by people who are visually impaired shall be provided. (c) At least one mode of operation and information retrieval that does not require user hearing shall be provided, or support for assistive technology used by people who are deaf or hard of hearing shall be provided. (d) Where audio information is important for the use of a product, at least one mode of operation and information retrieval shall be provided in an enhanced auditory fashion, or support for assistive hearing devices shall be provided. (e) At least one mode of operation and information retrieval that does not require user speech shall be provided, or support for assistive technology used by people with disabilities shall be provided.

Comment regarding AT in 508 Standards – Final Rule:

Assistive technology. Assistive technology is defined as any item, piece of equipment, or system, whether acquired commercially, modified, or customized, that is commonly used to increase, maintain, or improve functional capabilities of individuals with disabilities. The definition was derived from the definition of assistive technology in the Assistive Technology Act of 1998 (29 U.S.C. 3002). The preamble to the proposed rule noted that assistive technology may include screen readers which allow persons who cannot see a visual display to either hear screen content or read the content in Braille, specialized one-handed keyboards which allow an individual to operate a computer with only one hand, and specialized audio amplifiers that allow persons with limited hearing to receive an enhanced audio signal. No substantive comments were received regarding this definition and no changes have been made in the final rule.

Current Definition:

Assistive technology. Any item, piece of equipment, or system, whether acquired commercially, modified, or customized, that is commonly used to increase, maintain, or improve functional capabilities of individuals with disabilities.

Background:

• Although the current “definition was derived from the definition of assistive technology in the Assistive Technology Act of 1998 (29 U.S.C. 3002).” it is not consistent with definition of AT in the Assistive Technology Act. The definition in the 508 standards is the definition of AT Device- although it is labeled Assistive Technology. The AT Act has a different definition of Assistive Technology which includes both devices and services. This change will ensure consistency across federal laws and definitions.
• AT Act defines: AT; AT Device; and AT Service
• ASSISTIVE TECHNOLOGY.--The term “assistive technology” means technology designed to be utilized in an assistive technology device or assistive technology service.
• ASSISTIVE TECHNOLOGY DEVICE. Any item, piece of equipment, or system, whether acquired commercially, modified, or customized, that is commonly used to increase, maintain, or improve functional capabilities of individuals with disabilities.
• ASSISTIVE TECHNOLOGY SERVICE.—the term ‘assistive technology service’ means any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device. Such term includes—

(A) the evaluation of the assistive technology needs of an individual with a disability, including a functional evaluation of the impact of the provision of appropriate assistive technology and appropriate services to the individual in the customary environment of the individual; (B) a service consisting of purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by individuals with disabilities; (C) a service consisting of selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, replacing, or donating assistive technology devices; (D) coordination and use of necessary therapies, interventions, or services with assistive technology devices, such as therapies, interventions, or services associated with education and rehabilitation plans and programs; (E) training or technical assistance for an individual with a disability or, where appropriate, the family members, guardians, advocates, or authorized representatives of such an individual; (F) training or technical assistance for professionals(including individuals providing education and rehabilitation services and entities that manufacture or sell assistive technology devices), employers, providers of employment and training services, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of individuals with disabilities; and (G) a service consisting of expanding the availability of access to technology, including electronic and information technology, to individuals with disabilities.

Suggested Change:

• Recommendation that definition of AT address “service” because in the arena of Telecom access is delivered as bundled product/service. To the extent that the technical standards for telecom cover both products/services in a system, the idea was the definition should cover that.
• A simpler solution is to just add the word "service" in the current definition and leave the term "assistive technology" with no differentiation between device and service.
• Assistive technology. Any item, piece of equipment, SERVICE, or system, whether acquired commercially, modified, or customized . . .

Comments:

• As we head into a time with “virtual AT” and “services on demand” that can be automated, we should including the possibility that AT “products” could be network services as well. Since people think of products as hardware – I think products and services might be a good idea. Since this is a definition of assistive TECHNOLOGY we may need to qualify ‘services’ to limit them to services that are “technologies”.
• I don't think we need "assistive technology service", because that's usually about client evaluations, prescription of AT, etc. -- all accommodations (504) rather than the mass market products we're talking about in 508. Agreed? On the other hand, I've always had a problem with the AT definition as it is. It would seem to swallow up all accessibility, since a mainstream product with accessibility features fits that definition. In the spirit of 255, which has a cascading view of accessibility -- first try to make the mainstream product accessible, then use AT if the mainstream approach won't work.
• We should make a distinction between AT and "AMT"- "accessible mainstream technology". Why keep the distinction? Because the two industry segments are so different; their markets are different; their products are usually different; their funding sources are different; where expertise about them resides is different.... It's not for the reason some AT enthusiasts think, that somehow AT is a lesser category. It's that the distinction is an important one from so many perspectives.
• We should just include all the definitions and let the access-board folks sort it out.
• I would concur about keeping AT and deleting AT Service. As to AT DEVICE. That is fine but if we DO change the definition to AT Device, then we can't use the term AT anywhere in the standard. We would have to use the term AT DEVICE (since that is what we defined). I can see that that might cause problems with AT like screen readers etc that are software. So I'm not sure AT DEVICE will work.
• You might say Assistive Technology (as used in this standard). There will always be different definitions of this for different applications.

Remaining Questions:

• Because Telecom access is provided as a bundled product & service is this an AT device or service or is it considered conforming to the 508 standards via Equivalent Facilitation”? AT is currently not referenced in the Telecom technical standards. Is the Telecom Committee considering adding AT to the Telecom Technical standards?
• Is a definitional change necessary or should the regs be changed to reference “AT Device” rather than “AT”? Couldn’t the current definition of AT Device meet the need? Any item, piece of equipment, or system, whether acquired commercially, modified, or customized, that is commonly used to increase, maintain, or improve functional capabilities of individuals with disabilities. Isn’t a telecom “service” part of the telecom system that is acquired? Wouldn’t that cover the concept of a service meeting the need through the “system”?
• Is there a risk having a definition that is inconsistent with statutory definition of AT, AT Device and AT Service?
• If the term “service” is added to the definition of AT, will it will be assumed that other services currently included in the AT Act definition of AT Services be construed as a service that should be provided as part of 508 rather than as part of an accommodation under 503, 504 or the ADA?
• Do we include a definition for Accessible Mainstream Technology? Term not currently referenced in law or regs- are other committees considering using this term as part of standards?

Committee Recommendation:

Revised Definition of Assistive Technology. Additions to current definition are identified by CAPS

• FOR THE PURPOSE OF THIS REGULATION, any item, piece of equipment, SOFTWARE, SERVICE, or system, whether acquired commercially, modified, or customized that is commonly used to increase, maintain, or improve functional capabilities of individuals with disabilities WHEN GAINING ACCESS TO OR USING EIT.

* NOTE: Need to hold until we have additional information regarding use of the term in technical, functional or other standards. There may be a need to create and define an additional term that is more narrow than AT, such as “adaptive device” which would be limited to items that deliver “added-on” access to an EIT product.

Cost Benefit Impact

CAPTIONING

Reference in 508 Law:

The term is not included in the Law

Reference in 508 Standards:

Reference in Summary of Comments

Alternate methods. The proposed rule used the term "alternate modes" which was defined as different means of providing information to users of products, including product documentation, such as voice, fax, relay service, TTY, internet posting, captioning, text-to-speech synthesis, and audio description.

Comment. One commenter suggested that "alternate methods" would be a better term to describe the different means of providing information. The commenter was concerned that the term alternate modes would be confused with alternate modes of operation of the product itself which does not necessarily refer to how the information is provided. Paragraph (b) provides that equivalent alternatives for any multimedia presentation shall be synchronized with the presentation. This would require, for example, that if an audio portion of a multi-media production was captioned as required in paragraph (a), the captioning must be synchronized with the audio. (See §1194.23(c)(12) and (e)(3) in the NPRM.) The Board also interprets this provision to require that when audio presentations are available on a web page, because audio is a non-textual element, text in the form of captioning must accompany the audio, to allow people who are deaf or hard of hearing to comprehend the content. (See §1194.23(c)(1) in the NPRM.)

Comment. Comments from organizations representing persons who are deaf or hard of hearing strongly supported this provision. One commenter from the technology industry raised a concern that this provision would require all live speeches broadcast on the Internet by a Federal agency to be captioned. The commenter noted that an alternative might be to provide a transcript of the speech which could be saved, reviewed, and searched.

Response. This provision uses language that is not substantively different than the WCAG 1.0 and was supported in the WAI comments to the proposed rule. There are new techniques for providing realtime captioning which are supported by new versions of programs like RealAudio. Providing captioning does not preclude posting a transcript of the speech for people to search or download. However, commenters preferred the realtime captioning over the delay in providing a transcript. No substantive changes have been made to this provision in the final rule.

Final 508 Standards

Definitions: Alternate methods. Different means of providing information, including product documentation, to people with disabilities. Alternate methods may include, but are not limited to, voice, fax, relay service, TTY, Internet posting, captioning, text-to-speech synthesis, and audio description.

§ 1194.24 Video and multimedia products.(c) All training and informational video and multimedia productions which support the agency's mission, regardless of format, that contain speech or other audio information necessary for the comprehension of the content, shall be open or closed captioned.

Current Definition:

No definition currently in place

Background/Discussion Points:

Suggested Change:

Add Captioning Definition to 508 Regulations

Proposed Languague presented to workgroup for feedback:

Captioning

Captions are synchronized text display(s) of information that is presented on the screen in an audio format.  Captions appear as written representation of onscreen audio narration or spoken dialogue, Captions are similar to subtitles, but also convey non-dialogue auditory information that is important to the video, such as on- and off-screen sound effects, music, and laughter that are synchronized with the images on the screen.

Specific Concerns about draft language:

• The phrase “onscreen audio narration or spoken dialog” has two problems:
  • First – it messes with my head to think of ‘on screen audio”. On-screen is a visual place – the audio comes from somewhere else.
  • Second – captions also cover audio that comes from people and events that are offscreen.

Comments:

Revisions for Consideration:

Captioning

Captions are synchronized text equivalents for audio information.  Captions are similar to subtitles in that they convey the content of spoken dialogue, but also include text for non-spoken information such as important sound effects, music, laughter, and speaker identification and location. In some countries captions are called subtitles.

Captioning

Captions are synchronized text display(s) of information that is presented in an audio track.  Captions appear as written representation of audio narration or spoken dialogue, and other important audio events.  Captions are similar to alternate language subtitles that are synchronized with the images on the screen, except that they are in the same language as the audio and also convey non-dialogue auditory information that is important to the video, such as on- and off-screen sound effects, music, and laughter.

Comments:

• Suggestion to establish a required minimum font size and transcription display rate.
  • Minimum font size is not in web/software requirements- unlikely we would make requirement in this section
  • Since there has not been a real study of captioning typography or readability unlikely that we would be able to do either of these.
• Suggestion to require that captions “should appear in the lower third of the screen”
  • Suggestions based on some current trends evidenced in captioning where faces are blocked or important content is being blocked by captions. Issue of quality.
• Captions can appear at any place on the screen
• It seems that what you are concerned with (and rightly so) is caption quality. Captions shouldn't be covering important content is one specific requirement that might be possible to introduce somewhere in the standards, but limiting captions to only appear in the bottom third will result in issues for users.
• I think the important point here is that captions should not block faces or important content, not that the captions always have to be at the bottom of the screen. The deaf community fought hard to not have captions and other text (such as people's names during interviews) block each other at the bottom of the screen, and programmers were accommodating by moving the captions to other parts of the screen. Also, when there are 2 people on the screen, it is often beneficial to have the captions appear near where the speaker is speaking -this allows viewers to know who is talking: a VERY HELPFUL feature that I don't think people who cannot hear want to give up.
• In fact, when the FCC was considering new rules for digital captioning, the deaf community urged the FCC to allow users to have the capability to position captions themselves. While ultimately this was not in the final rule, it shows that the community saw a benefit in being able to have captions in various places on the screen (and not just the bottom third).
• I believe that the group came to consensus that requiring captions to appear on the bottom third of the screen is not the answer. Rather, the focus should be on setting the criteria that captions should not block faces or other important material on the screen.
  • Internationally [United Kingdom & multiple countries] the term captions is not used. Subtitles is the term used for captions and our subtitles.

Remaining Questions:

I see the definition of captions requiring mention of synchronization and spoken and non-spoken information as key components, not the location. There should be best practices for this, but not in the definition.

Committee Recommendation:

A request will be forwarded to the A/V Workgroup for review and recommendations

Cost Benefit

COMPARABLE ACCESS

Reference in 508 Law:

The term “comparable access” is not specifically used in 508 Law, rather agencies are required to provide “access that is comparable to”

SEC. 508. 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.

Reference in 508 Standards:

Comments/Info included Final Rule: Estimated Benefits: Not all government policies are based on maximizing economic efficiency. Some policies are based on furthering the rights of certain classes of individuals to achieve more equitable results, regardless of the effect on economic efficiency. Accessibility to electronic information and technology is an essential component of civil rights for persons with disabilities. The final rule will ensure that Federal employees with disabilities will have access to electronic and information technology used by the Federal government that is comparable to that of Federal employees without disabilities; and that members of the public with disabilities will have comparable access to information and services provided to members of the public without disabilities through the use of Federal electronic and information technology.

Final Rule Subpart A -- General § 1194.1 Purpose.The purpose of this part is to implement section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d). Section 508 requires that when Federal agencies develop, procure, maintain, or use electronic and information technology, Federal employees with disabilities have access to and use of information and data that is comparable to the access and use by Federal employees who are not individuals with disabilities, unless an undue burden would be imposed on the agency. Section 508 also requires that individuals with disabilities, who are members of the public seeking information or services from a Federal agency, have access to and use of information and data that is comparable to that provided to the public who are not individuals with disabilities, unless an undue burden would be imposed on the agency.

Current Definition:

None

Background/Discussion Points:

• What is comparable access? I don't speak about semantics, we can agree that equal access is needed, but how do we approach the issue scientifically? Is there a technical standard that will help us quantify comparable access? I do not think we have a technical definition, technical framework, or quantifiable approach to this issue. Is comparable access about accessibility - the basic ability to be able to perform a function - or about the quality of the design?

Suggested Change:

What Could the Section 508 technical standards require?

1. The Section 508 revision should clearly state equivalent access is required to meet the functional performance criteria. This can best be quantified via software performance testing or human factors evaluation. A test plan that includes testing for accessibility (IEEE Std 829-1998 with accessibility artifacts) would inspire confidence. There is a tie-in with vendor's product accessibility templates if we can clearly establish this link. Also note the IEEE Std deals with software and doesn't clearly address the hardware requirements. 2. My definition for comparable access: Comparable access is "E&IT has been tested using Section 508 functional performance criteria, and product performs equally well under all criteria." I know that isn't fair to E&IT that might be accessible but that hasn't tested, but I'm trying to focus on quality, and encourage something that can be measured. 3. The Section 508 Standards themselves should be reorganized to place emphasis on functional performance criteria, and indicate the technical standards are clarification on minimum technical requirements.

Comments:

• There is a problem with how Section 508 is written or organized. The purpose of Section 508 is lost when people rush to meet the Subpart B Technical Standards. It is only when we get to review and accept a product do we as "customers" enforce our interpretation as to what is acceptable to our users and to our purpose. I would like to ask the reader to review and consider where in the technical standards (Subpart B) does anything related to equivalent access, equivalent functions, equivalent timing, equivalent efficiency get addressed?
• We won't get everyone believing in accessibility or solving the quality issue until we place the Subpart C - Functional Performance Criteria as the most important issue to Section 508 compliance and reduce the Subpart B - Technical Standards to specifics on how to quantify accessibility. The technical standards should be secondary to functional performance. This is a quality design issue. It has been my experience that the question of comparable or equal access is only asked if the solution is tested using accessibility techniques, either using assistive technologies or manually (e.g., keyboard access). The quality or design is being questioned. It isn't that the product doesn't meet the technical standards. It is a question of the usability of the product by users with disabilities, when those users are being compared to other users (e.g., paid or promotion by throughput or being evaluated on efficiency). When we start asking about the functional performance requirements *first* and the specific technical implementations second, we get a better outcome.
• Much discussion transpired regarding the issue of comparable access, the fact that it is confusing and how to best device some parameters that acknowledge that from a federal employee perspective at least they are in a productivity based environment. Employees need to get things out on time and if they are not given the same access as a non-disabled colleagues, then they don't get treated equally, and may in fact be penalized by the lack of equitable access.
• The committee discussed usage of the benchmarks that have been developed and used to determine effective communication under 504 and that they might be a good functional approach. They are offered as features that can be used to determine comparable access.

Remaining Questions:

Committee Recommendation:

COMPARABLE ACCESS: Three features are critical in determining if comparable access to and use of information and data is provided.

• Comparable access to information must be timely. In the case of information technology accessibility that would include the speed with which a person with a disability can access the information as compared to an individual without a disability.
• Comparable access must provide accurate information especially when the information has been translated or converted into another form or media.
• Comparable access must provide information and data in a manner and medium appropriate to the significance of the message. In the case of information technology, more critical interaction elements or data content might require a higher level of or different type of access.

Suggested Revision: COMPARABLE ACCESS: Three features are critical in determining if comparable access to and use of information and data is provided.

• Must provide timely access to information and data to persons with disabilities. Timeliness would include the speed with which a person with disabilities can use EIT to access information or perform a task as compared to an individual without disabilities.
• Must provide information and data to persons with disabilities that accurately reflects the intended meaning that is available to individuals without disabilities.
• Must provide information and data in a manner and medium appropriate to the significance of the message.

Next Steps: Should be addressed with in training and development of best practice documents to assist in implementation

Comments and Input Relative to Committee Recommendation

ITI Issues: This is not a true “definition” of comparable access. For one thing, it uses the term “comparable access” within the definition itself. Typically, you do use the term being defined within it own definition. Secondly, these are presented as features to use in determining if comparable access is provided. However, they are not testable, so how are manufacturers and other interested parties supposed to use them?

Another concern is that the first bullet on the “speed” of access could be confused with broadband access. For example, if a person with a disability cannot afford or does not live in an area that provides access to a high-speed Internet connection, the proposed text could be read to suggest that they therefore do not have “comparable access.” This could be interpreted as requiring web site optimization for dial-up connections.

In the second bullet, it is not clear what is meant by the term “accurate information.” The “accuracy” of the information has nothing to do with comparable access. The information might be inaccurate even for people without disabilities. It seems like what we really mean is that the information presented to the person with a disability is “equivalent” to the information presented to the person without a disability.

Finally, in the third bullet, the point is understood but how would this be used?

ITI RECOMMENDATION: Delete the proposed text because: 1) it is not really a definition; 2) it is not needed because it is not used anywhere in the technical standards; and 3) it inadvertently introduces a requirement for usability into the standard. Regarding the latter, it could be used as the measurement for the functional performance criteria and could be therefore be interpreted as requiring usability testing with people with disabilities. While this may be a good “best practice,” it should not be a requirement for Section 508 conformance for ALL products.

Cost Benefit Impact

ELECTRONIC AND INFORMATION TECHNOLOGY

Reference in 508 Law:

SEC. 508. ELECTRONIC AND INFORMATION TECHNOLOGY.

(a) Requirements for Federal Departments and Agencies.—
(2) Electronic and information technology standards.--shall issue and publish standards setting forth—

(A) In general.--Not later than 18 months after the date of enactment of the Rehabilitation Act Amendments of 1998, the Architectural and Transportation Barriers Compliance Board (referred to in this section as the “Access Board”), after consultation with … shall issue and publish standards setting forth— i) for purposes of this section, a definition of electronic and information technology that is consistent with the definition of information technology specified in section 5002(3) of the Clinger-Cohen Act of 1996 (40 U.S.C. 1401(3)); and …

Reference 508 Standards:

§1194.4 Definitions

Electronic and information technology.

Includes information technology and any equipment or interconnected system or subsystem of equipment that is used in the creation, conversion, or duplication of data or information.  The term electronic and information technology includes, but is not limited to, telecommunications products (such as telephones), information kiosks and transaction machines, World Wide Web sites, multimedia, and office equipment such as copiers and fax machines.  The term does not include any equipment that contains embedded information technology that is used as an integral part of the product, but the principal function of which is not the acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information.  For example, HVAC (heating, ventilation, and air conditioning) equipment such as thermostats or temperature control devices, and medical equipment where information technology is integral to its operation, are not information technology.

Current Definition:

See above

Background/Discussion Points:

Clinger-Cohen Definition

The definition in 508 for information technology is identical to that found in the Clinger-Cohen Act of 1996 (40 U.S.C. 1401(3)), (A) The term 'information technology', with respect to an executive agency means any equipment or interconnected system or subsystem of equipment, that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the executive agency. For purposes of the preceding sentence, equipment is used by an executive agency if the equipment is used by the executive agency directly or is used by a contractor under a contract with the executive agency which (i) requires the use of such equipment, or (ii) requires the use, to a significant extent, of such equipment in the performance of a service or the furnishing of a product. (B) The term 'information technology' includes computers, ancillary equipment, software, firmware and similar procedures, services (including support services), and related resources. (C) Notwithstanding subparagraphs (A) and (B), the term 'information technology' does not include any equipment that is acquired by a Federal contractor incidental to a Federal contract.

The §508 definition for Electronic & Information Technology includes the Clinger-Cohen definition for information technology, but also includes "any equipment or interconnected system or subsystem of equipment, that is used in the creation, conversion, or duplication of data or information." The addition to the definition of IT ensures that technologies like software and copiers are covered under 508.

Suggested Change:

Comments:

Remaining Questions:

Committee Recommendation:

Revised Definition of Electronic and Information Technology additions in CAPS, deletions in [brackets]

• ELECTRONIC AND INFORMATION TECHNOLOGY: Includes information technology and any equipment or interconnected system or subsystem of equipment that is used in the creation, conversion, or duplication of data or information. The term electronic and information technology includes, but is not limited to, telecommunications products (such as telephones), information kiosks and transaction machines, World Wide Web sites, multimedia, and office equipment such as copiers and fax machines. The term does not include any equipment that contains embedded information technology that is used as an integral part of the product, but IS NOT the principal function OF THAT PRODUCT [of which is not the acquisition, storage, manipulation, management, movement, control display, switching, interchange, transmission, or reception of data or information. For example, HVAC (heating, ventilation, and air conditioning) equipment such as thermostats or temperature control devices, and medical equipment where information technology is integral to its operation, are not information technology.]

• suggestion for “the principal function” to be changed to “A principal function.”

Comments and Input Relative to Committee Recommendation

Removal of the medical devices exclusion in the current update of the Section 508 and 255 standards is not recommended for the following reasons:

• Medical device stakeholders are currently not represented on the TEITAC. The committee lacks expertise in how accessibility standards should be determined for this complex and broad category of products.

• If the TEITAC intended to remove the exclusion for medical devices, a separate medical devices subcommittee should have been created so that federal and state government representatives, industry, medical experts, hospitals, and disabilities groups most affected by this change could have provided recommendations to the TEITAC.

• The opportunity for medical device stakeholders to provide input in the comment period is too late to be effective. Participation from this group early in the revision process is critical for the affected groups to embrace the concept of accessible design and the need to procure these products.

For these reasons, removing the medical devices exclusion is not recommended until the next Section 508 & 255 update when adequate notification can be given to this specific stakeholder group, and participation/input from them is solicited.

Cost Benefit Impact

FUNDAMENTAL ALTERATION

Reference in 508 Law:

The term is not referenced in the law

Reference in 508 Standards:

The term is used in the Final Standards in the Exceptions section, but a definition of the term is not included in the Standard. Section 1194.3 General Exceptions (e) This part shall not be construed to require a fundamental alteration in the nature of a product or its components.

Public Comments submitted regarding Fundamental Alteration in 508 Comments Paragraph (e) states that compliance with this part does not require a fundamental alteration in the nature of a product or service or its components.
Comments:

• The AFB commented that fundamental alteration is not an appropriate factor to include in this rule since the statute provides undue burden as the proper protection and allowing a fundamental alteration exemption weakens the intent of the statute and its high expectations of government. If the concept of fundamental alteration is maintained, AFB recommended that it be part of an explanation of undue burden.
• The Department of Commerce agreed that the inclusion of a fundamental alteration exception would negate the purpose of section 508.
• The Trace Research and Development Center said that the term should be defined.
• The Information Technology Industry Council (ITIC) commented that the Board should expand the concept of fundamental alteration by stating that an agency should not be required to fundamentally alter the nature of a program or service that the agency offers.

Response to Comments:
Fundamental alteration is an appropriate exception for inclusion in the standards. It means a change in the fundamental characteristic or purpose of the product or service, not merely a cosmetic or aesthetic change. For example, an agency intends to procure pocket-sized pagers for field agents for a law enforcement agency. Adding a large display to a small pager may fundamentally alter the device by significantly changing its size to such an extent that it no longer meets the purpose for which it was intended, that is to provide a communication device which fits in a shirt or jacket pocket. For some of these agents, portability of electronic equipment is a paramount concern. Generally, adding access should not change the basic purpose or characteristics of a product in a fundamental way

Current Definition:

Background/Discussion Points:

Suggested Change:

• FUNDAMENTAL ALTERATION: A change in the basic purpose, critical function, or characteristics of a product or service.

Comments:

Alternative Suggestions:

1) Fundamental Alteration: A change in the basic purpose, critical function, OR A SIGNIFICANT CHANGE in the characteristics of a product.

2) Fundamental Alteration: A change in the basic purpose, critical function, or characteristics of a [product or service]GOVERNMENTAL ACTIVITY OR FUNCTION.

COMMENTS ON ALTERNATIVE SUGGESTIONS: Alternative languague in #2 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. - 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. -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. - it is the alteration to the government program that is at issue, not the technology which should be serving the program. -Today, agencies interpret fundamental alteration as applying to the way the agency intends to use the product. Undue Burden indicates that the agency would suffer an undue hardship or difficulty to make the product accessible. While similar - these are not the same thing.

Response to Comments: - 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. I would also suggest that we don't want to make too many radical changes that may have the effect of thwarting over 5 years of experience with Section 508. I am not sure the term fundamental alteration needs further clarification. - The current language of 508 1194.3 (E) reads "This part shall not be contrued to require a fundamental alteration in the nature of A PRODUCT OR ITS COMPONENTS." So for purposes of a 508, a definition of fundamental alteration will only apply to products or product components.

Remaining Questions:

Committee Recommendation:

Cost Benefit Impact:

IT

Information technology.

Any equipment or interconnected system or subsystem of equipment, that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information. The term information technology includes computers, ancillary equipment, software, firmware and similar procedures, services (including support services), and related resources.

TTY

Reference in 508 Law:

The term...

Reference in 508 Standards:

Current Definition:

Background/Discussion Points:

Suggested Change:

Not changed from previous draft

TTY.

An abbreviation for teletypewriter. Machinery or equipment that employs interactive text based communications through the transmission of coded signals across the telephone network. As used in this part, the term TTY includes text-to-text communications along with voice and text intermixed communications such as voice carry over and hearing carry over.  TTYs may include, for example, devices known as TDDs (telecommunication display devices or telecommunication devices for deaf persons) or computers with special modems.  TTYs are also called text telephones.

Comments:

Rationale: Clarifies that the term TTY includes mixed voice and text communications so that technical standards that use the term TTY also apply to intermixed communications, not just text-to-text.

Remaining Questions:

Per Jim T – TTY should be defined in Subpart A as complying with EIA/TIA 825, the Baudot standard.

Committee Recommendation:

A request will be forwarded to the Telecommunciations Workgroup for review and recommendations

Cost Benefit Impact

Video Description

Reference in 508 Law:

The term...

Reference in 508 Standards:

Current Definition:

Background/Discussion Points:

Suggested Change:

FROM THE DRAFT

Video Description

The insertion of verbal or auditory description(s) of on-screen visuals intended to describe important visual details that are not contained or that cannot be understood from the main audio output alone. Audio descriptions supplement the regular audio track of the program and are usually inserted between dialogue narration to provide information about actions, characters, and on-screen text that appears without verbailization. Video descriptions are a way to let people who are blind or have low vision know what is happening on screen.

Comments:

Remaining Questions:

Does the definition need to distinguish between audio and video transcription?

Should the definition include the following: In these standards the term video description is used rather than audio description. The term audio description is reserved for verbal descriptions of live events.

Committee Recommendation:

A request will be forwarded to the A/V Workgroup for review and recommendations

Cost Benefit Impact

Text Conversation

Reference in 508 Law:

The term ...

Reference in 508 Standards:

Current Definition:

Background/Discussion Points:

Suggested Change:

“Text Conversation”

definition

Comments:

Remaining Questions:

Rationale: Discussion on need for clarity of this term and implications …

Need suggested edits.

Committee Recommendation:

Cost Benefit Impact

UNDUE BURDEN

Reference in 508 Law:

This term is referenced in the 508 law and is defined in the Standards under Definitions: Reference in 508 Law: The term Undue Burden is used in section 4 of the Law (4) ACQUISITION PLANNING.—In the event that a Federal department or agency determines that compliance with the standards issued by the Access Board under paragraph (2)relating to procurement imposes an undue burden, the documentation by the department or agency supporting the procurement shall explain why compliance creates an undue burden.

Reference in 508 Standards

Defined in 508 Standards under § 1194.4 Definitions

Current Definition

Current Definition: § 1194.4 Definitions 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.

Background/Discussion Points

Undue Burden is used in Section 504 and Section 508 of the Rehab Act and in different Titles of the ADA- although in one section its Undue Burden and another its Undue Hardship.

The ADA provides additional guidance regarding undue burden. The Rehab Act (for employment related discrimination complaints) references Title I Employment of the ADA.

Under Title III Public Accommodations of the ADA Undue Burden is defined in the regs: (28 C.F.R. § 36.104) Definitions 5. The term "undue burden" means: significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include: a. The nature and cost of the action needed; b. The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; c. The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; d. If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type and location of its facilities; and e. If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure and functions of the workforce of the parent corporation or entity. 28 C.F.R. § 36.104; 28 C.F.R. § 35.164.

Title I Employment of the ADA uses the term Undue Hardship- rather than undue burden 10) Undue hardship. - (A) In general. - The term ``undue hardship means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B). (B) Factors to be considered. - In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include- (i)the nature and cost of the accommodation needed under this chapter; (ii)the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii)the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv)the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

Suggested Changes

Several approaches could be considered. (i) Add a clarification to the definition of what specific factors should be considered when determining "Undue Burden" (ii) Recommend that these factors be addressed in the technical assistance area. (iii) Do nothing

Comments

- The overarching question is- Is Undue Burden/Undue Hardship already accepted as a term of art and agencies are using prior guidance under the ADA and/or 504 to make determinations or is there inconsistency in the decisions being made and agencies are devising their own criteria? -The term Undue Burden is in the FAR as a result of 508. Through discussion on undue Burden it became clear that the committee had to recommend a change to Section 1194.2 of the Application becuase the term Undue Burden is used only in relation to procurement, not development. 508 coordinators that have attempted to address in relation to development have met with resistance. -Some comments from workgroup members indicated that there is no problem with agencies implementing Undue Burden, however, it was also noted that there are multiple and ongoing requests for information, technical assistance and training on Undue Burden.

Remaining Questions

-Do 508 Coordinators understand how to determine Undue Burden? -Is the current training adequate and appropriate to meet the knowledge needs for agency to implment appropriately? - Some concerns have been raised that there is a perception that the level of accountability and procedures to determine Undue Burden at the Federal Level are lesser than what is applied to states under the ADA. Are the feds held to a lesser level of accountability? If so, should they be held to a lesser level of accountability and assuming the burden of justifying that a development or acquisiton would constitue and undue burden?

Committee Recommendations

Undetermined

Cost Benefits