Section 508 of the Rehabilitation Act

Section 508 of the Rehabilitation Act of 1973 (as amended 1998) (29 USC § 794d) requires that when U.S. Federal government agencies develop, procure, maintain, or use electronic and information technology (EIT), Federal employees with disabilities must have access to and use of information and data that is comparable to the access and use by Federal employees who do not have disabilities, unless such a change would impose an undue burden on the agency. Additionally, individuals with disabilities who are seeking information or services from a Federal agency must have access to and use of information and data that is comparable to that provided to individuals without disabilities, unless such a change would impose an undue burden on the agency.

Section 508 covers technology procured by the Federal agency under contract with a private entity and produced within the organization itself. Section 508 covers all Electronic and Information Technology (EIT) including software, web sites, web applications, and hardware applications such as computers, networks, peripherals, and other types of electronic office equipment. EIT is defined as “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 statute, the scope of Section 508 is limited to the Federal sector. It does not apply to the private sector, nor does it directly impose requirements on Federal funds recipients. However, the Department of Education interprets the Assistive Technology Act (AT Act) to require States receiving assistance under the AT Act State Grant program to comply with Section 508, including the standards of the Access Board. The agency responsible for administrating the AT Act, the Department of Education, plans to issue guidance to explain specifically how the proposed standards would apply to the States for the purposes of the AT Act. Therefore, recipients of federal funds under the AT Act must comply with Section 508. In a similar fashion, other agencies administering Federal programs – notably, the Department of Health and Human Services (DHHS) – have interpreted Section 504 of the Rehabilitation Act to cover all co-funded Federal and State programs. Notably, this includes Medicare and Medicaid programs, which are funded in part with Federal funds. In practice, such interpretations generally require that any State level programs funded in part with Federal funds be accessible to people with disabilities and, in turn, conform to the Section 508 requirements.

The published Section 508 EIT accessibility standards (FR 65 No. 246) provide technical criteria specific to various types of technologies and performance-based requirements, which focus on the functional capabilities of EIT. The technical provisions include: requirements specific to various types of technologies; functional performance criteria focusing on the functional capabilities of covered technologies; and requirements for information, documentation, and support. The technology specific criteria cover software applications and operating systems; web-based information or applications; telecommunications products; video or multimedia products; self-contained, closed products; and desktop or notebook computers. The functional performance criteria cover operation, including input and control functions, operation of mechanical mechanisms and access to visual and audible information. These provisions are constructed to allow those with sensory or physical disabilities to locate, identify, and operate input, control, and mechanical functions, and to access the information provided, including text, static or dynamic images, icons, labels, sounds, and incidental operating cues. The requirements for information, documentation and support require access to user guides, installation guides for end-user installable devices, and customer support and technical support communications.


Section 508 Refresh

The current Section 508 standards were issued in 2000 and became effective on June 21, 2001. As expected, the standards are now largely out of date and often not consistent with current development trends. To address this, the Access Board is in the process of issuing updated standards for the implementation of the Section 508 standards.

General Compliance Guidance

The Refresh will broadly maintain the current structure of the requirements, with a separation between technical and functional standards. Technical standards will be organized around product functions, e.g., web based systems, two-way voice systems, video conferencing systems, and other related product functions. In the current standards, the technical requirements – subpart B – have an implied break out by product type versus by product function. The implication to many readers of the current structure is that only one product type needs to be followed. In the argot of the current Section 508 standards, an IT system that conforms to 1194.21 Software applications and operating systems would seemingly not need to conform to 1194.22 Web-based intranet and internet information and applications. This approach to the application of the standards, however, is not applied consistently with many interpretations, which view all relevant portions of the 508 technical standards that could apply as applying. The Refresh addresses this by shifting the focuses to features of products and clarifying that all relevant technical standards will continue to apply.

Functional performance requirements will remain a separate requirement, but will increase from six to nine user modalities. This is in line with the overall trend we see on a global level towards an increase in the number of user modalities covered under relevant accessibility requirements. As with the current standards, in the Refresh, both technical and functional performance criteria will be required and enforced. This is a change from the current state of practice and from the 2010 Advanced Notice of Proposed Rulemaking Draft (ANPRM), in which the application of the functional performance criteria is often considered as an alternate to conformance with the technical requirements. The current draft of the standards closes this loophole and makes it clear that IT systems must technically conform and be functionally usable to individuals with disabilities.

The requirements have been expanded to cover web sites, web applications, and electronic document content. There are some limits on the type and scope of electronic document content covered, discussed in the Electronic Documents section below, but the coverage is generally specific to official communication and final, formal documents produced by an organization. For sites, applications, and content, the target standards for compliance are the Web Content Accessibility Guidelines (WCAG) Levels A and AA requirements. This is in line with the global trends harmonizing around these as the de facto standards for web and electronic content accessibility. Hardware and software applications that are not web-based will be based on proprietary standards.

Electronic Documents

Electronic documents will be explicitly addressed in the Section 508 Refresh. Electronic documents are arguably covered under the current standards, but are not commonly put into practice. With the current draft of the Section 508 Refresh, coverage of electronic content is limited to nine specific categories of information communicated by agencies to employees or to members of the general public during the conduct of official agency business, as determined by the agency mission. These categories include:

  • Content that is public facing;
  • Content that is broadly disseminated within the agency;
  • Letters adjudicating any cause within the jurisdiction of the agency; internal and external program and policy announcements;
  • Notices of benefits, forms, questionnaires, and surveys;
  • Emergency notifications;
  • Formal acknowledgements;
  • Any educational and training materials.

There are two exceptions to covered content: archival copies stored or retained solely for archival purposes to preserve an exact image of a hard copy, and draft versions of documents. In practice, this will mean that many components of agencies and other organizations that 508 applies to will need to make significant efforts to ensure all content producers can create accessible content.

The standards for this content are currently tracking as the WCAG 2.0 A and AA conformance requirements.

Timing

The last updated draft of Section 508 standards was published in the Federal Register on December 8, 2011, and the comment period ran through March 7, 2012. The draft status at that time was that of an Advanced Notice of Proposed Rulemaking (ANPRM), which is two steps removed from the final publication of the rule. The next steps to enacting this rule are a Notice of Proposed Rulemaking (NPRM), and then the final publication. As of the Fall 2013 Regulatory Agenda, the Access Board was tracking a publication timeframe of March 2013 for the NPRM. Based on discussions with the Access Board, the current plan is to present the draft NPRM to the Board for approval during the mid-March 2014 Access Board meeting. Once the draft is approved, it would be submitted to the Office of Budget Management (OMB) for approval by the Office of Information and Regulatory Affairs (OIRA), which reviews the impact assessment developed by the Access Board. Based on Executive Order, OMB has a ninety day period to approve the impact assessment. Once received by Access Board from OMB any comments or notes from OMB must be incorporated in the NPRM prior to publication. Given these factors SSB is currently tracking the publication of the Section 508 Refresh NPRM in Q3 2014.

Once the NPRM is published, the Access Board generally allows for a ninety day comment period on the document. For example, the 2010 ANPRM was published on March 22, 2010 with a comment period extending to June 21, 2010; similarly, the 2011 ANPRM was published in the Federal Register on December 8, 2011 with a comment period extending to March 7, 2012. It is worth noting, however, that the comment period could be as long as 180 days and the exact length of the comment period may vary from ninety days.

After this comment period, the Board will address the final comments and issue a final rule. Given the wide interest in Section 508, SSB has assumed a one year period for reviewing the comments and publishing a final rule. Based on this timeframe, SSB expect the final rule to be published in Q4 2015.

Once published, Section 508(a)(3) 29 USC § 794d (a)(3) of the Rehabilitation Act requires that within 6 months of the publication of the final standards by the Access Board, the Federal Acquisition Regulatory Council revises the Federal Acquisition Regulation (FAR). In addition, each appropriate Federal department or agency must revise their procurement policies and directives, as necessary, to incorporate the revisions. Finally, enforcement requirements – Section 508(f)(1)(A) – provide for complaints to be filled 6 months after the date of implementation of the final standards. As such, in practice, the actual implementation date of the standards is practically pushed out another six months. So, in practice, the earliest implementation time frame for the updated standards would be Q2 2016.

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