Olivia Lynch

On February 18, 2015, the Architectural and Transportation Barriers Compliance Board (“Access Board”) released a proposed rule revising and updating the standards for electronic and information technology developed, procured, maintained, or used by federal agencies covered by section 508 of the Rehabilitation Act of 1973.

Why Section 508 of the Rehabilitation Act Matters to Contractors

Section 508 of the Rehabilitation Act of 1973, as amended, requires federal agencies to make their electronic and information technology (“EIT”) accessible to individuals with disabilities.  Specifically, Section 508 mandates that federal agencies develop, procure, maintain or use EIT in a manner that ensures (1) federal employees with disabilities have comparable access to and use of information and data relative to other federal employees, and (2) that members of the public with disabilities have comparable access to publicly-available information and services – except when either would impose an undue burden on the agency.

The current standards implementing Section 508, codified at 36 CFR Part 1194, define types of technology covered and set forth minimum levels of accessibility.  Unless an undue burden exists, these standards apply to EIT 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.  Consistent with the Rehabilitation Act, the following are exempt from these standards:

  • Systems used for military command, weaponry, intelligence, and cryptologic activities (but not routine business and administrative systems used for other defense-related purposes or by defense agencies or personnel);
  • EIT that is acquired by a contractor incidental to a contract (in other words, the standards cover technology procured by federal agencies under contract with a private entity, but apply only to those products directly relevant to the contract and its deliverables); and
  • “Back office” equipment used only by service personnel for maintenance, repair, or similar purposes.

The FAR sets out requirements for agencies to document their acquisitions through market research as well as written substantiation about the conformance of products or services with the 508 Standards, lack of commercial availability, or the existence of an undue burden in conforming to the 508 Standards.  The typical steps that an agency will take once it determines that what it needs to procure satisfies the definition of EIT includes: (1) determining whether any exceptions apply, and, if not, (2) determining which accessibility standards apply to that type of EIT, (3) conducting market research to determine the availability of compliant products and services, (4) identifying the standards (if any) that would not apply because of commercial non-availability, (5) determining if the purchase of compliant EIT would impose an undue burden, and (6) preparing the technical specifications to apply to the procurement.

EIT v. ICT

Section 508 of the Rehabilitation Act uses the terminology “electronic and information technology” as do the current 508 Standards.  The Access Board is jointly updating the 508 Standards and the Telecommunications Act Accessibility Guidelines implementing Section 255 of the Communications Act of 1934 to ensure consistency in accessibility across the spectrum of communication and electronic information technologies and products.  Because of this, the Access Board has replaced the existing “EIT” term with “information and communication technology” (“ICT”).  ICT is intended to broadly encompass EIT covered by Section 508 as well as the products and equipment covered by Section 255.

Summary of Proposed Changes to Section 508 Standards

The Access Board is proposing to revise the current, product-based approach with a functionality-based approach.  Access is addressed for all types of disabilities, including those pertaining to vision, hearing, color perception, speech, manual dexterity, reach, and strength.  The proposed technical requirements are organized along the lines of ICT functionality and provide standards to ensure that covered hardware, software, electronic content, and support documentation and services are accessible to individuals with disabilities.  Besides this overarching change in approach, four other key revisions to the Section 508 Standards include:

  • Application of WCAG 2.0.  The proposed rule incorporates by reference the Web Content Accessibility Guidelines (“WCAG”) 2.0, making the WCAG 2.0 Success Criteria applicable to content on the Web as well as non-Web electronic documents and software.  The Access Board sees the extension of this criteria to non-Web electronic documents and software as adapting Section 508 standards to multifunction technologies.
  • Definition of Content.  The proposed rule specifies that all types of public facing content, as well as eight enumerated categories of non-public facing content that communicate agency official business, must be accessible, with “content” encompassing all forms of electronic information and data.   The Access Board anticipates that this will bring needed clarity to the current 508 Standards, which do not delineate clearly the scope of covered information and data.
  • Expanded Interoperability Requirements. The proposed rule provides more specificity about how operating systems, software development toolkits, and software applications should interact with assistive technology.  The Access Board anticipates that this will clear up current ambiguity about the application of the 508 Standard’s requirement that ICT be compatible with assistive technology.
  • Requirement for Real-Time Text (“RTT”) Functionality.  The proposed rule requires RTT functionality (i.e., text that is transmitted character by character as it is being type) wherever an ICT product provides real-time, two-way voice communication.

When Will These Proposed Accessibility Standards Start Impacting Contractors?

With respect to procurement-related matters, the Access Board’s 508 Standards are not self-enforcing.  Only when the standards are adopted by the FAR Council and federal agencies and included in contracts do they become enforceable.  The Rehabilitation Act mandates that within six month of the Access Board’s revisions to existing 508 Standards, both the FAR Council and federal agencies must incorporate these revised standards into their respective acquisition regulations and procurement policies and directives.  So once the Access Board publishes the final rule revising the 508 Standards (and there is no saying how soon after the close of the comment period the Board will publish the final rule), there will be a lag between the imposition of the final rule and incorporation of the rule into the FAR and agency-specific procurement policies.

Given the requirement for the FAR Council and agencies to take steps to adopt the new standards, it remains an open question whether there will exist some period of time when both the current and the new 508 Standards are used by different federal agencies.  Additional questions arise given the fact that many state and local governments employ the federal government’s 508 Standards in state and local procurements.  Will some states and local governments adopt the new standards more quickly than the federal government?  Will all state and local governments that impose the current 508 Standards update their regulations or policies to adopt the new 508 Standards?

Opportunities to Participate in Shaping the Final Rule

Throughout the long history of this rulemaking, U.S. Access Board has invited and received commentary from such groups as industry, federal and state governments, disability advocacy groups, manufacturers of hardware and software, trade associations, institutions of higher education, etc.  As discussed in the proposed rule, the Access Board incorporated the public feedback it received on the 2010 and 2011 advance drafts in shaping the current proposed revisions to the 508 Standards and 255 Guidelines.

The Access Board is again seeking comments and has requested information and data in response to numerous questions posed in the preamble to the rule.  Comments are due by May 28, 2015.  The Access Board will hold hearings on the proposed rule on March 5, 2015 in San Diego, California and March 11, 2015 in Washington, DC.  Interested parties can testify at those hearings.  In addition, the Access Board will conduct a public webinar to review the proposed rule on March 31, 2015.