**Association of Tech Act Projects (ATAP)**

**Section 508 Information Technology Access:**

**Questions, Answers, and Unknowns for State and Local Entities**

1\) What is Section 508?

Section 508 is a part of the Rehabilitation Act of 1973 which requires
that electronic and information technology developed, procured,
maintained, or used by the Federal government be accessible to people
with disabilities. On August 7, 1998, the President signed into law the
Workforce Investment Act of 1998, which includes the Rehabilitation Act
Amendments of 1998. Section 508 was originally added to the
Rehabilitation Act in 1986; the 1998 amendments significantly expand and
strengthen the technology access requirements in Section 508.

2\) How do these changes to Section 508 improve upon the earlier
version?

The 1986 version of Section 508 established non-binding guidelines with
no enforcement mechanism for technology accessibility. The 1998 version
creates binding, enforceable standards and will incorporate these
standards into Federal procurement regulations. Federal agencies will
use these standards in all their electronic and information technology
acquisitions. Consistent government-wide standards will make it easier
for Federal agencies to meet their existing obligations to make their
technology systems accessible to people with disabilities, and will
promote competition in the technology industry by clarifying the Federal
market\'s requirement for accessibility in products intended for general
use. The new version of Section 508 also establishes a complaint
procedure and reporting requirements, which further strengthen the law.

3\) To whom does Section 508 apply?

Section 508 applies to Federal departments and agencies. It does not
regulate the private sector and does not apply directly to recipients of
Federal funds. (See questions 11 through 18 for a discussion of
application of Section 508 to state and local entities.)

4\) What does Section 508 require of Federal agencies and departments?

Section 508 requires that when Federal agencies develop, procure,
maintain, or use electronic and information technology, they must ensure
that it is accessible to people with disabilities, unless it would pose
an undue burden to do so. Federal employees and members of the public
who have disabilities must have access to and use of information and
services that is comparable to the access and use available to
non-disabled Federal employees and members of the public.

5\) How will Federal agencies and departments know whether the
electronic and information technology is accessible?

New standards have been established to help Federal agencies determine
whether or not a technology product or system is accessible. Federal
agencies must comply with these technology accessibility standards for
all electronic and information technology acquired on or after six
months from the date the Access Board issued its final standards
(Standards were issued December 21, 2000 and are effective June 21,
2001.) Technology developed or acquired for a Federal agency by a
contractor must also comply with the standards. If a Federal agency
determines that it would pose an undue burden to comply with the
standards, it must still provide information and data to individuals
with disabilities through an alternative means of access that can be
used by the individuals.

6\) Are there any exemptions to the technology accessibility standards?

A Federal agency does not have to comply with the technology
accessibility standards if it would impose an undue burden to do so.
This is consistent with language used in the Americans with Disabilities
Act (ADA) and other civil rights legislation, where the term undue
burden has been defined as \"significant difficulty or expense.\"
However, the agency must explain why meeting the standards would pose an
undue burden for a given procurement action, and must still provide
people with disabilities access to the information or data that is
affected.

7\) How will Section 508 be enforced?

Because the Section 508 standards will be incorporated into the Federal
Acquisition Regulation (FAR), agencies\' procurement of accessible
technology will be subject to the same stringent compliance and
enforcement mechanisms as other parts of the FAR. There is an
administrative complaint process which becomes effective six months
after the Board issued its final standards. It enables any individual
with a disability to file a complaint alleging that a Federal department
or agency has not complied with the accessible technology standards in a
procurement made after that date. The complaint process is the same as
that used for Section 504 of the Rehabilitation Act, for complaints
alleging discrimination on the basis of disability in
Federally-conducted programs or activities. It provides injunctive
relief and attorney\'s fees to the prevailing party, but does not
include compensatory or punitive damages. Individuals may also file a
civil action against an agency.

8\) What is meant by \"electronic and information technology\"?

The Access Board defined \"electronic and information technology\"
consistent with the Clinger-Cohen Act of 1996. That Act defines
\"information technology\" to include \"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.\" It includes computer hardware, software, networks, and
peripherals as well as many electronic and communications devices
commonly used in offices.

9\) What does the law mean by "accessible"?

The standards developed by the Access Board explain the detailed
technical and functional performance criteria that will determine
whether a technology product or system is "accessible." In general, an
information technology system is accessible to people with disabilities
if it can be used in a variety of ways that do not depend on a single
sense or ability. For example, a system that provides output only in
audio format would not be accessible to people with hearing impairments,
and a system that requires mouse actions to navigate would not be
accessible to people who cannot use a mouse because of a dexterity or
visual impairment. Section 508 focuses on the overall accessibility of
electronic and information technology systems, not on providing
accommodations at individual work sites. Section 501 of the
Rehabilitation Act requires Federal agencies to provide reasonable
accommodations for individuals with disabilities; it generally covers
individual work sites but not overall technology systems. Even with an
accessible system, individuals with disabilities may still need specific
accessibility-related software or peripheral devices as an accommodation
to be able to use it. For example, in order to use an accessible word
processing program, a person who is blind may need add-on software that
reads text aloud; if the word processing program could not be made
compatible with a screen-reading program, it might not be accessible.

10\) Does Section 508 apply to Web sites?

Federal agencies which provide information to the public or to their
employees through Web sites must ensure that such sites are available to
all persons with internet or intranet access, including persons with
disabilities. Section 508 does not apply to a private sector Web site
unless such site is provided under contract to a covered entity. For
example, a Federal agency might contract with a consulting firm to
collect and analyze some demographic data and make that information
available to the public on a Web site. In that case, the Web site or
portion devoted to fulfilling the contractual obligation would be
subject to Section 508. The firm\'s general Web site, or the portion not
devoted to the contracted study, would not be subject to Section 508.

11\) How does Section 508 relate to States?

States which receive Federal funds under the Assistive Technology Act of
1998 are required by that Act to provide an assurance of compliance with
Section 508. Currently all states and territories receive Assistive
Technology Act dollars and all have some form of Section 508 assurance.
These state Section 508 assurances most frequently take the form of a
simple assurance statement with limited or no specifics regarding
implementation.

12\) How is the "State" defined and who is covered under the State
assurance?

There is no definition of "state" for the assurance and thus there is no
clear delineation of who is covered. Those most questionable include
agencies that are closely related to state government but might not
necessarily be considered the "state" such as colleges and universities,
local government and municipalities, local school districts, and other
entities that have significant state and local funding.

13\) How do the Access Board standards relate to the State assurance?

The Department of Education, the agency responsible for administering
the Assistive Technology (AT) Act, issued guidance letters (June 1999
and April 2000) indicating that state assurances for Section 508
compliance require use of the final Access Board standards. However, a
number of states already adopted other types of access standards such as
the W3C Web Access Standards in policy or guidelines. Since these
standards are similar, it is unclear what action will be taken to align
state adopted standards with the Access Board's standards. There are
also questions regarding the use of the Access Board standards by
educational entities to determine the accessibility of instructional
technology. The Access Board standards were developed for information
technology designed to provide access to federal government information
and services by employees and members of the public. It is unclear if
these standards are appropriate to use in the determination of
accessibility of instructional technology, especially teaching and
learning media used with young children. Alternative access guidelines,
such as those developed by the National Center for Accessible Media, may
be more appropriate for educational entities to use or use of a
combination of standards may be the most comprehensive way of assuring
accessibility of instructional media. Currently, there is no national
consensus on access standards for the full range of instructional
technology products.

14\) Is there an enforcement mechanism for the State assurance?

The Department of Education in their guidance letters indicate that the
AT Act does not require compliance with the enforcement provisions of
Section 508. This seems to indicate that there is no administrative
complaint process, injunctive relief, or civil action available to
individuals with disabilities for enforcement. The only enforcement of
the state assurance seems to be withholding funds under the AT Act.
However, it is important to note that AT Act state grant awards are
fairly small, about \$400,000 on average, making this a limited
enforcement option.

15\) Are there plans to strengthen or clarify federal requirements for
state and local compliance with Section 508?

The Assistive Technology Act of 1998 may be becoming weaker in its
ability to influence state compliance with Section 508. The AT Act has a
sunset clause that effectively eliminates 23 states from the grant
program before the Act is due for reauthorization. If some form of
amendment is not passed in 2001, nine states will no longer have an AT
Act grant award in the subsequent funding period and thus will have no
Section 508 assurance requirement. To date, efforts to add a Section 508
compliance requirement to larger federally funded state grant programs,
like Vocational Rehabilitation, have been unsuccessful.

16\) Does the ADA or Section 504 require information technology
accessibility like Section 508?

The ADA and Section 504 of the Rehabilitation Act do not specifically
require information technology accessibility as does Section 508. The
ADA and Section 504 are general anti-discrimination laws that require
program and architectural accessibility which could include the
provision of accessible information technology as a reasonable
accommodation or as an auxiliary aid or service necessary for equal
access. The effective communication requirement of the ADA could also
require the delivery of accessible information technology products.
However, all of these requirements might also be met in other ways such
as the use of human assistance or other program modifications. ADA and
Section 504 information technology access decisions are made for
individuals on a case by case basis; whereas Section 508 information
technology access decisions are made by determining if products adhere
to the Access Board standards. To date, the Department of Justice and
the Office for Civil Rights have not adopted any part of the Access
Board standards for IT access as standards for compliance with the ADA
or Section 504.

17\) Is the Web covered by the ADA?

In 1996, the Department of Justice responded to an inquiry regarding Web
accessibility indicating that ADA covered entities who use the Internet
for communications regarding their programs, goods, or services "must be
prepared to offer those communications through accessible means." Thus
one could argue that the ADA does require accessible web sites. However,
the Justice response went on to indicates that "instead of providing
full accessibility through the Internet directly, covered entities may
also offer other alternate accessible formats . . . to communicate the
information contained in web pages". There has not been subsequent
formal clarification of the ADA requirements for web access since this
letter and the Department of Justice has not adopted any standards for
web accessibility as a requirement for compliance with the ADA.

18\) Does IDEA require information technology or instructional
technology to be accessible?

The IDEA, similar to the ADA and Section 504, does not specifically
require information or instructional technology to be accessible as does
Section 508. IDEA is a law that requires the provision of a free,
appropriate public education to all students with disabilities who need
specialized instruction. The delivery of accessible technology and/or
assistive technology could be required as part of a student's
individualized education program (IEP). However, a student's IEP might
also be implemented in other ways such as the use of paraprofessional
assistance or program modifications rather than the delivery of
accessible technology. IDEA technology access decisions are made for
individual students on a case-by-case basis; whereas Section 508 access
decisions are made by determining if technology products adhere to the
Access Board standards.

19\) Are there other laws that govern information technology
accessibility?

A number of states and local agencies have adopted laws, policies, or
executive orders that address one or more facets of information
technology accessibility. A few states have statutes that require an
access clause be included in all contracts for purchase of information
technology products (hardware and software). Another handful of states
have rules, policies or executive orders that require adherence to
access standards for web development. Still other states have less
formal guidance encouraging information technology accessibility without
identification of specific access standards. Lastly, a few states have
laws or policies that require electronic textbook procurement for
specific educational entities.

20\) Where can I get more information on IT access in my state or
territory?

Each state and territory has an assistive technology program funded by
the Assistive Technology Act. That office is a good starting point for
any questions you have about your state assurance for Section 508
compliance, any state laws or policies that your state may have
regarding information technology access, and other questions about
assistive technology and accessible information technology. Additional
information about state information technology access laws and policies
and contact information for most state programs can be found on the ATAP
web site [www.ataporg.org.]{.underline}

Questions and Answers 1 through 10 were adapted from the Access Board
Q&A.

[www.access_board.gov/sec508/FAQ.htm]{.underline}

*Permission to reprint with credit.*