Subpart A Report 2007-04-18

This is a DRAFT!

This report uses semantic markup on inline text to show proposed insertions and deletions. 

Blocktext is used for rationale, comment, explaination, discussion, and questions.

Contents 1 Changes/Additions to Subpart A Provisions 2 §1194.1  Purpose 3 §1194.2  Application 3.1 Undue Burden and Limited Applicability 3.1.1 Current Languague 3.1.2 Proposed Change for § 1194.2 Application 3.2 Best Meets vs. Best Value Approach 3.2.1 Current language 3.2.2 Background 3.3 Comparable Access- New Subsection 3.3.1 Committee Recommendation 4 §1194.3  General exceptions 4.1 Fundamental Alteration 4.1.1 Reference in 508 Law: 4.1.2 Reference in 508 Standards: 4.1.3 Background/Discussion Points: 4.1.4 Suggested Change: 4.1.5 Revised Change (05/17/07): 4.1.6 Rationale 4.1.7 Comments: 4.1.8 Remaining Questions: 4.1.9 Committee Recommendation: 4.1.10 Cost Benefit Impact 4.2 Back Office 4.2.1 Reference in 508 Law: 4.2.2 Reference in 508 Standards: 4.2.3 Background/Discussion Points: 4.2.4 Suggested Change: 4.2.5 Comments: 4.2.6 Remaining Questions: 4.2.7 Committee Recommendation: 4.2.8 Cost Benefit Impact 4.3 (g) Products with Narrow, Delineated Use- New Subsection 4.3.1 Reference in 508 Law: 4.3.2 Reference in 508 Standards: 4.3.3 Background/Discussion Points: 4.3.4 Suggested Change: 4.4 Alternative Suggestion May 17, 2007 4.4.1 Suggested Approach for Workgroup to Consider 4.4.2 Rationale for Suggested Approach 4.4.3 Comments: 4.4.4 Remaining Questions: 4.4.5 Committee Recommendation: 4.4.6 Cost Benefit Impact 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 Proposed Alternative 5.1.10 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 Proposed Alternative 5.2.10 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 Comments: 5.3.7 Remaining Questions: 5.3.8 Committee Recommendation: 5.3.9 Proposed Alternative 5.3.10 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 Modified Action Proposed by Workgroup 5.4.10 Cost Benefit Impact 5.5 E&IT 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 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 Text Conversation 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 UNDUE BURDEN 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: 5.11 Proposed Alternatives 5.11.1 Cost Benefit Impact 5.12 Video Description 5.12.1 Reference in 508 Law: 5.12.2 Reference in 508 Standards: 5.12.3 Current Definition: 5.12.4 Background/Discussion Points: 5.12.5 Suggested Change: 5.12.6 Comments: 5.12.7 Remaining Questions: 5.12.8 Committee Recommendation: 5.12.9 Proposed Alternative 5.12.10 Next Steps 5.12.11 Cost Benefit Impact

Changes/Additions to Subpart A Provisions

§1194.1  Purpose

§1194.2  Application

Undue Burden and Limited Applicability

During discussions regarding Undue Burden the workgroup became aware that the provision of (a)(2) only applies to the procurement of products and needs to be expanded to include development.

Current Languague

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

Proposed Change for § 1194.2 Application

New languague noted in CAPS, Deletions in [ ]
§ 1194.2(a) APPLICATION.
(a) Products AND SERVICES covered by this part shall comply with all applicable provisions of this part. 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, 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 DEVELOPING, procuring OR MAINTAINING 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 PRODUCT [procurement] shall explain why, and to what extent, compliance with each such provision creates an undue burden.

FURTHER DISCUSSION REQUIRED – there needs to be a discussion of the definition of “product” and whether it includes service – should “product” be used in our documentation to mean everything that falls under E&IT?

§ 1194.2(b) APPLICATION.
(b) When procuring a product, each agency shall procure products which comply with the provisions in this part when such products are available in the commercial marketplace or when such products are developed in response to a Government solicitation. 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 procure the product that best meets the standards.

UNRESOLVED ISSUE- FURTHER DISCUSSION REQUIRED:
No resolution to date on recommendations regarding terminology such as "best meets" which will frame how agencies determine which products to acquire.

Best Meets vs. Best Value Approach

Current language

(b) When procuring a product, each agency shall procure products which comply with the provisions in this part when such products are available in the commercial marketplace or when such products are developed in response to a Government solicitation. 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 procure the product that best meets the standards.,br>

Background

• The term Best Meets was added to the 508 standards during the last iteration. The term does not appear in the 508 law.
• The concept of Best Value is not a standard operating procedure under the Federal Acquisition Regulations (FAR).
• The workgroup has had much discussion about this issue, but no resolution has been reached as of May 2007. This issue will be a topic of disussion for the May 17, 2007 meeting. Issues that are clear are:
• There are questions about the consistency with which federal agencies are making decisions and are applying the concepts and procedures to determin Best Value and Best Meets.

• One of the 508 Coordinators offered the following summation of Best Meets and how it is applied

To clarify what "Best meets" means. In a perfect world, Section 508 compliance would be a binary decision; a product would either be compliant or non-compliant. The reality is: - There are products that address a specific standard - but not throughout the entire product.

- There are products that address some of the applicable standards - but not all of them.

- There are products that meet all of the technical standards throughout the entire product, but do not meet all of the 508 functional requirements.

- It is rare to find a product the fully meets all applicable standards throughout the entire product and meets all the functional requirements.

- It is even rarer to find a product that fully adheres to Section 508 that ALSO fully meets the agency's mandatory technical requirements, which define what the agency needs to accomplish its mission.

- A black and white view of 508 compliance is a lofty goal, and I look forward to the time when 508 coordinators and their procurement partners have products to choose from that verifiably meet all the requirements and standards. Until then, a multi-faceted understanding of what constitutes "best meets" will be needed to execute the intent behind the law.

(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.

Comparable Access- New Subsection

§ 1194.2(d) APPLICATION.

Committee Recommendation

Proposed adding a new subsection in §1194.2(d) Application
(new) When determining if individuals with disabilities have access to and use of information and data that is comparable to that available to individuals without disabilities, each agency shall ensure that individuals with disabilities have access that is timely, accurate and complete, and in a manner and medium appropriate to the significance of the message. Timely access includes consideration of the speed with which a person with a disability can use electronic and information technology to access information or perform a task as compared to an individual without disabilities. Accurate and complete access ensures that the information and data reflects the intended meaning especially when converted into another form or media.

Rationale: After careful review of the considerations, experiences and challenges encountered by federal agencies regarding the requirement of federal agencies to ensure that "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"... the workgroup agreed 

that adding a new section to the Application Section of 508 would more appropriately address the need for guidance, rather than adding a new term to the definitions section. The term Comparable Access is not a term used in the Law or Standards so to add a new term that has no link to the law or standards would not be appropriate.

UNRESOLVED ISSUE- FURTHER DISCUSSION REQUIRED:
Agencies need to define comparable access since this is in their jurisdiction.

• The intent is to provide guidance to government agencies
• Should this be “guidance” or go directly into the standard?
• Does this new section go beyond the original intent of comparable access?
• Is it best practice?
• What does “accurate” mean?
• What does "in a manner and medium appropriate to the significance of the message" mean?
• How is it measured? How does an agency know whether they've met the intent? What is the benchmark?
• As written, there are concerns that there are multiple interpretations and understandings of the languague which may translate into inconsistent application across agencies.

Comments

• 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? Note: This comment was submitted when the workgroup was considering addressing Comparable Access in the Definitions Section. The workgroup has since moved from that idea and are instead considering addressing the consideration of comparable access in the Application Section.

• Another concern related to the concept of the “speed” of access which 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.

• It is also 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, the concept of " a manner and medium appropriate to the significance of the message" is understood, but how would this be used is unclear?

§1194.3  General exceptions

Fundamental Alteration

Reference in 508 Law:

The term is not referenced in the law.

Reference in 508 Standards:

Inclusion of term in Final Standards:

§ 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.

Background/Discussion Points:

Workgroup members have had a lot of discussion regarding the issue of business need and how it is considered in the 508 process.  Several people suggested that it was important to clarify the relationship of the business need relative to fundamental alteration and that the business need must be addressed by a product.  The workgroup suggested adding language to clear up assumptions and misunderstandings relative to whether or not business need played a role in the decision making process.  While some expressed that accessibility should be the priority, others stated that federal agencies should not be expected to purchase something that did not meet their business need.

Suggested Change:

(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.

Revised Change (05/17/07):

(e) This part shall not be construed to require a fundamental alteration in the nature of the product OR THE AGENCY'S INTENDED BUSINESS NEED, or its components.

Rationale

• Clarifies the relationship of business need and fundamental alteration
• Concept linked to definition of Fundamental Alteration that is proposed as an addition to the Definitions Section
  

Comments:

Remaining Questions:

Committee Recommendation:

Cost Benefit Impact

Back Office

Reference in 508 Law:

The term “Back Office” is not specifically used and an exception based on a back office type of scenario is not addressed in the Law.

Reference in 508 Standards:

1194.3 General Exceptions  (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.

Comment(s) & Response(s) on “Back Office” in draft 508 Standards:

Comment.  The ITAA commented that telecommunications equipment switches, servers, and other similar “back office” equipment which are used for equipment maintenance and administration functions should be exempt from the standards.  For example, in the case of telecommunications equipment, technicians might need to configure service databases, remove equipment panels to replace components, or run tests to verify functionality.  ITAA commented that section 508 should not apply to these types of products since applying requirements to such products would have serious design and cost ramifications.

Response.  The Board agrees and has provided an exception that 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.  This exception is consistent with a similar exception in the Board’s guidelines under the Americans with Disabilities Act (ADA) (§4.1.1 (5)(b) 36 CFR part 1191) and the Architectural Barriers Act (§4.1.2 (5) exception, Uniform Federal Accessibility Standards Appendix A to 41 CFR part 101-19.6).

Background/Discussion Points:

1. As someone with a large Section 508 requirement, I have to say the provision exception for products in any special use-case (i.e., for maintenance or repair) does more harm than good.
   • The existing general exceptions usually apply such that the “back-office” exception is worthless.  Only adds confusion and complexity and I would highly recommend it be removed entirely.
   • The only counter argument I’ve heard is the people who panic and cannot use the excuse of “back-office exception” as an approach, instead of clearly documenting their business requirement and market availability.  In actual practice, “back-office” exception is simply a sloppy approach to not documenting your Section 508 requirements.
   • Can anyone provide an example of products that are not accessible simply because they were used for maintenance, but an accessible version existed?  I can’t. Every time it has been market availability, items that weren’t E&IT, or software that should have and could have been accessible.
2. I feel that back-office exception can be improved by clarifying some specific situations where it does not apply, and some where it does.
   • I’d also consider asking the question, what is the rationale for the back office exception, e.g., Why are people with disabilities excluded form maintenance work?

Suggested Change:

Suggestion to Revise (f).

“Products located and usable only in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment are not required to comply with this part.”

Remarks:  This clarifies that products and their usage interfaces must both be tied to the back-office space mentioned in this exception.

Comments:

Is this exception needed?

What does usable mean?  This is a term that we have struggled with in the context of other discussions related to Subpart A and have usually opted not to avoid using the term.

Revised Change (05/17/07): Products located and OPERATIONS EXECUTED in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment are not required to comply with this part.

Remaining Questions:

Committee Recommendation:

Cost Benefit Impact

(g) Products with Narrow, Delineated Use- New Subsection

Reference in 508 Law:

The term or concept is not referenced in the law.

Reference in 508 Standards:

Not currently addressed in the standards.  Recommendation would result in addition of new provision under Exceptions

Background/Discussion Points:

Much discussion has transpired regarding the need to address the situations where conformance to 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.  While some committee members are supportive of this concept others hold the position that we should not pursue this idea.  While much discussion has taken place and ideas such as identifying products as “personal use” have been proposed there has not been a solution proposed that is understandable at face value (which is important for adoption and implementation) and no benchmarks or criteria have been proposed which can be used for decision-making as to when to apply this exception.

• Some agencies indicated that they already take an approach that might be considered within the boundaries of this concept indicating that when they purchase cell phones for employees with disabilities they approach it as a 508 — reasonable accommodation approach and provide accessible ones to disabled staff as necessary.
• I think we mean that when the industry has developed “good” reasonable alternatives we should just provide those to people who need them as opposed to making a big deal out of it.  Or, let reasonable accommodations have their role in some situations where that works best.  Getting that common sense in to anything precise enough to disallow abuse is a real hurdled however.
• Maybe if it is approached in more a “applicability” how to fashion it would be more writable.  So, explaining how to apply 508 to items with the characteristics we are thinking of may lead to the actual definition of this slippery intention.
• I think we were kind of thinking that everyone would use a particular number of items, (calculators) for example, and an accessible one would be provided as needed.  I’m still not convinced we understand the criterion or other factors well enough to really write this well yet.  Not sure they need to be purchased at the same time though, but rather identified as available.
• “Personal use” as an exception criteria is too open for interpretation.  Though printers and fax were previously listed as products that would not be included in this category, a buyer could easily argue that they are purchasing either of these products for one individual to use at their workstation and therefore could use the “personal use” exemption.  Whether this is actually the case or not may be difficult to monitor.
  • In addition, it would cause confusion from the manufacturer’s perspective as to whether some E&IT is covered and if we need to improve the accessibility of certain products or not.
  • It also gives the message that accessibility is not a priority for any product that is intended for use by an individual vs. a group … which seems contrary to the spirit of Section 508.
  • For these reasons, I do not recommend a “personal use” exemption.
• Why not stay with the already defined micro-purchase limit?
  • Shouldn’t specify the dollar amount but instead tie it to whatever is the current limit – which is now $3000 for IT products purchase and $2500 for any kind of service.
  • Should focus also on the risk the purchase presents – risk that a small purchase (low value and low quantity) won’t have either wide use or wide impact.
• I know that these are subjective terms but it is hard to draw a universal line in the sand.  The concept behind the federal governments purchase card program is very similar, the presumption is that the level of effort should be consistent with the value of the purchase.  The government doesn’t want to spend $3000 in employee costs to purchase a low-risk $100 dollar item.
  • My argument doesn’t scale up but the posting that spoke about requiring a number of accessible products to be included in any large buy makes sense to me.  Language from Allen Hoffman sounds like a good start:
    • When accessible versions of items which have limited or narrowly defined uses exist in the commercial marketplace, and are relatively cost neutral to the overall purchase, accessible substitutes can be provided for a limited set of the whole set of purchases.  Such substitutes must be purchased at the same time as the nonaccessible items, and made available to a subset containing end-users with disabilities as needed.

Suggested Change:

(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.

Suggested version for consideration:

When accessible versions of items which have limited or narrowly defined uses exist in the commercial marketplace, and are relatively cost neutral to the overall purchase, accessible substitutes can be provided for a limited set of the whole set of purchases.  Such substitutes must be purchased at the same time as the nonaccessible items, and made available to a subset containing end-users with disabilities as needed.

From the meeting: Products with narrow, delineated use and no capacity for assistive technology to be attached to the product (such as personal use calculators) for which an agency can document readily availability specialized products in the commercial marketplace that have a variety of access features (such as calculators with speech, with large visual display, with large keys/buttons, etc.) are not required to comply with this part as a whole. Agencies must however purchase specialized products with appropriate access features as necessary to meet the needs of end-users with disabilities.

Alternative Suggestion May 17, 2007

Suggested Approach for Workgroup to Consider

Products with narrow, delineated use and no capacity for assistive technology to be attached to the product (such as personal use calculators) for which an agency can document readily availability specialized products in the commercial marketplace that have a variety of access features (such as calculators with speech, with large visual display, with large keys/buttons, etc.) are not required to comply with this part as a whole. Agencies must however [purchase] PROVIDE specialized products with appropriate access features as necessary to meet the needs of end-users with disabilities.

[NOTE: There is agreement to put item forward as a new exception. FOR FURTHER DISCUSSION - this addition could be considered to be an implementation issue for the FAR rather than a consideration for a standard – however some would prefer it be added as a 508 standard since states don’t fall under FAR requirements].

Rationale for Suggested Approach

• The argument for a new exemption includes the fact that when the Standards first took effect, a micro-purchase exemption was in place. A benefit of that exemption is exactly what the new proposed exemption is directly targeting - that some purchases are truly personal, are basically a disposable commodity, and have little value or impact. A number of agencies are struggling with this concept. Efforts were made by GSA to address for the Buy Accessible Wizard. Having a clear exemption in the FAR would help standardize approaches to this subject.
• There is agreement to put item forward as a new exceptionm although further discussion is required. This exemption as originally drafted stated that “Agencies must however procure specialized products with appropriate access…” A question was raised whether because the clause directly stated procurement as the activity that is might be more appropriately addressed and implemented through the FAR. However, some would prefer it be added as a 508 standard since states don’t fall under FAR requirements. The proposed languague was modified to replace “procure” with “provide”.
• This proposed addition may need to be revisited once the self-contained and other workgroups propose in terms of technical or functional standards. There may not be a need for this requirement.

Comments:

Remaining Questions:

Committee Recommendation:

Cost Benefit Impact

§1194.4  Definitions

ACCESSIBILITY

Note: All definitions must be reviewed after all workgroups submit final recomemndations. The Definitions section needs to be reviewed for consistency with the proposed technical and performance standards. New terms may need to be added to the Definitions Section and others may need to be modified to assure that they are consistent with recommended standards.

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.
     1. 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:

The group discussed the fact that there may be confusion with the term accessibility because there are policies and laws that address access that have nothing to do with 508.  In addition, there are issues with older browsers, dial-up services, etc. — issues that impact on access, but not access for people with disabilities.  The group decided to recommend a two-tiered approach.

Accessibility:  For the purpose of this regulation, general accessibility means conformance to the technical 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 access to technology?

Proposed Alternative

Recommended re-wording: "For the purpose of this regulation, accessibility means conformance to all applicable provisions of this standard or equivalent facilitation provided through other methods. The term, accessibility, may also be used to define a broad set of features and capabilities which enable people with disabilities to access electronic information technology."

Raionale: The proposed definition doesn't seem to cover the functional performance criteria and it would seem to rule out conformance via equivalent facilitation.

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&rdquo?  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…&nbs; 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:

Committee was concerned that inclusion of the term “service” might be construed to expand the types of services that should be provided under §508 to include the array of individual services outlined in the definition of AT Service under the AT Act.  In addition, if the Telecom group is looking at “telecom services” as a way of meeting accessibility needs those would/should be addressed within the technical standards and wouldn’t necessarily be reliant on “AT Services”.  In addition, wouldn’t the “services” that are provided to ensure access be system based as opposed to reliant on AT to ensure access?

Committee recommends that the Access Board consider the following definition for Assistive Technology:  For purposes of this regulation the term Assistive Technology means 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.

Follow-Up Required:  The Telecom committee needs to consider this proposed definition in light of the final telecom standards to see if a problem or issue exists.  What types of services will be made available to provide access.  Are the services “system based” so will the above definition accurately reflect coverage or does the term “service” still need to be added?

Proposed Alternative

Recommended re-wording: For purposes of this regulation, the term Assistive Technology means any item, piece of equipment, software or system, whether acquired commercially, modified or customized, that is commonly used to increase, maintain, or improve functional capabilities of individuals with disabilities in accessing E&IT.
Raionale: It also seems too broad. For Section 508, we should only be concerned with AT that provides access to E&IT.

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.&nbsp 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 two 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:

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.  Captions should not obscure or obstruct relevant or key information.  In some countries captions are called subtitles.

Proposed Alternative

Remove the statement: "Captions should not obscure or obstruct relevant or key information. In some countries captions are called subtitles."

Add: "Captions can be open or closed. Open captions are always displayed and cannot be turned off. Closed captions can be turned on or off at the discretion of the viewer."

Rationale:This sounds like a standard. Definitions should not include standards.

Next Steps:

AV Committee needs to review definition.

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:

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.

1. 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.
2. Comparable access must provide accurate information especially when the information has been translated or converted into another form or media.
3. 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.

Proposed modification of draft developed as a result of April 12 workgroup meeting. Three features are critical in determining if comparable access to and use of information and data is provided.

1. 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.
2. Must provide information and data to persons with disabilities that accurately reflects the intended meaning that is available to individuals without disabilities.
3. Must provide information and data in a manner and medium appropriate to the significance of the message.

Modified Action Proposed by Workgroup

• Since comprable access is not a term that appears in the law or standards, the workgroup proposed adding a section to the Application section of Subpart A, rather than adding a term and definition to the Definitions Section that does not appear in the law or standrds.
• See Application Section

Cost Benefit Impact

E&IT

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.

Expansion of Definition:  Coverage of medical devices

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.

AT Exception to Definition?

• I agree that there have been multiple interpretations of the applicability of the Section 508 provisions, but nowhere in the law or the Standard or the FAR does it say that any EIT whose primary purpose is to serve as AT is excluded from the requirements.  This allows for the fact that even products that are designed as AT can be made more accessible, not only for their primary customer group but also for people with multiple disabilities.  I also think that an agency’s business need for acquiring AT would enter into any purchase decision and forestall the situation you've described below, particularly if it is a single unit being purchased as part of a reasonable accommodation.
• If the TEITAC wants to make such an exception, then it needs to be explicit because the technical assistance you’d get from the Access Board today would say that any AT that is EIT is covered by Section 508.
• Actually, AT is required to be conformant to Section 508 if it is an EIT product.  Therefore, a specialized chair does not have 508 requirements but the screenreader software does.
• The statement that AT must be conformant to Section 508 is not settled law.  Indeed, many departments specifically exempt AT from the 508 requirements.
  • While it is clear that much AT could fall within the current definition of E&IT, it is unclear that 508 intended to require all AT to be subjected to the same requirements as mainstream E&IT.
  • Often, it is AT that is seen as providing the access when mainstream E&IT cannot or does not (as in the functional requirements “or be compatible with assistive technology”).  Indeed, in many circumstances, subjecting AT to 508 requirements would result in undermining the value of the AT product.
• Under the current 508 standards, there are no provisions that directly set forth requirements for AT as a separate category.  Some departments and individuals would argue that AT that is also software should be required to follow the same requirements as set forth in the software requirements of 508, however, there are some types of AT, intended to provide a very narrow or specific type of access for a single individual with a specific disability that may run into conflicts when subjected to the requirements of 508.  We have to be careful that we do not create a situation in which the federal government is unable to purchase a piece of AT that will provide specific access for one individual with a disability (and the relevant E&IT) because it is not “508 compliant” when the AT was never intended to serve more than that one specific need.
• My position is not that people with multiple disabilities should not have access, it is that when we begin to draw some of these lines, the unintended consequence might be to deny access to the very same assistive technology for other people with disabilities.  We must be careful in how we proceed, because AT is often the only way individuals gain access to E&IT, and it is often through a series of specific, personal links of AT, tailored to the specific needs of persons with disabilities.  Often, that AT is designed to meet one particular need, and people with multiple disabilities are in need of multiple AT devices, not a “one size fits all product.”  (Sometimes a one size fits all product can fit the bill.)  This is where interoperability begins to come into play, and finding ways to encourage and promote interoperability is a critical component in this process.

Suggested Change:

Comments:

• Discussion focused on two key issues:  current practices and considerations and ensuring that the standards support evolving technology development and uses.  Committee members pointed out that at the federal level assistive technology when it is IT is currently examined for conformance to the 508 standards.  Committee members representing federal agencies also noted that in some cases what would be considered medical devices are also examined to determine conformance with 508 when the device is considered IT.
• According to input from workgroup members, agencies are challenged to figure out what is covered by 508.
• Recommendation was presented to include a requirement for 508 information on medical products.  Agencies will do market research to find out if there is anything out there that does or doesna’t meet the standards.
• Concerns were identified that if medical technology was incorporated it would have broad impact on the federal government including– Walter Reed, VA, CDC, NIST, and would have an impact on the state level on state-operated research and medical facilitities.  While E&IT industry reps have been engaged in the 508 discussion and have had since 2000 to ramp up and modify their development processes to incorporate 508.  There are no medical technology companies engaged in the discussion and specific expansion to medical devices there might need to be a consideration for a delay in terms of impact on that industry to ensure that they have time to catch up.
• The group agreed that the best approach was to put the recommendation forward to the Access Board– if they choose the adopt the recommendation, the medical tech industry will have the public comment period to weigh in.  In addition, although this is the first refresh of 508 it is assumed that a refresh process will occur in the future and the Access Board can and should consider adding other technology development companies to the working group.
• Much discussion revolved around the examples in the current definition of E&IT and the examples of technology that are not considered IT.  It was felt that in some cases agencies look at the examples and think that they don’t have to do certain things.
• The committee felt that much of technology is becoming integrated and IT is embedded as a functional component of many products.  Recommended that the definition should be modified to eliminate the examples of what is not covered and instead agencies will be in the position of having to make decisions on a case-by-case basis.
• Coverage of AT by 508 — comment that the government all along has viewed AT as covered by 508 but that view has not been as clear to the AT vendors and in the general community.
• Discussion that AT Vendors argue that they don’t apply — observed that reluctance to accept that 508 covers AT is not founded in not wanting to comply with the regulations — that AT is viewed as a tool to help and shouldn’t be covered.
• Committee discussed that in some case AT is E&IT, but not all AT is E&IT.  Clearly there is some AT that will fit the definition and other AT that is not because it is not involved in information gathering and storage et cetera.
• Discussion that it would be difficult to address in the definition and like medical devices should be considered on a case-by-case basis.  Access Board should provide technical assistance, but the standards should not be used as the vehicle in which to outline scenarios and products that would or wouldn’t be considered as needing to conform to the 508 standards.
• It was noted that the Buy Accessible Wizard is the users have and the tool includes a link to market research.  It was noted that many assistive technology vendors are already listed in the system and the federal agencies are not getting push back from AT Vendors.  Instead, many of the AT vendors want to be included.  Being in the 508 pool is better than the outside when their is a research tool and for market research they would rather be in than not in.
• It was also pointed out that many states that have 508 laws also have large contracts for AT for adaptive telephone programs, vocational rehabilitation, educational entities, etc. and 508 would not be an issue because the products are being purchased for personal use.

• Removal of the medical devices exclusion in the current update of the Section 508 and 255 standards is not recommended for the following reasons:
  1) 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.
  2) 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.
  . 3) 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.

Remaining Questions:

The group agreed that it would be important to reach out to ATIA to identify what their issues might be with this approach.

Committee Recommendation:

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 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.

Cost Benefit Impact

FUNDAMENTAL ALTERATION

Reference in 508 Law:

The term is not referenced in the law.

Reference in 508 Standards:

Inclusion of term in Final Standards

§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.

Comment 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.

Comment.  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 purpo