National Council on Disability Says Access to Electronic and Information Technology is a Civil Right

WASHINGTON-The National Council on Disability (NCD) today released an excerpt on Section 508 and electronic and information technology (E&IT) from its soon-to-be-released report, National Disability Policy: A Progress Report for December 2001-2002. Among other things, NCD recommends that the 108th Congress act promptly to apply Section 508 to itself.

Background
In 1998, Congress amended the Rehabilitation Act to require federal agencies to make their electronic and information technology accessible to people with disabilities. Inaccessible technology interferes with a person's ability to obtain and use information quickly and easily. Section 508 was enacted to eliminate barriers in information technology, to make available new opportunities for people with disabilities, and to encourage development of technologies that will help achieve these goals. The law applies to all federal agencies when they develop, procure, maintain, or use electronic and information technology. Under Section 508, agencies must give employees with disabilities and members of the public access to information that is comparable to the access available to others.

Section 508 of the Rehabilitation Act also requires federal agencies in their procurement of E&IT to purchase goods and services accessible to persons with disabilities, except where certain exceptions such as unavailability or technological impossibility or undue burden apply.

On June 21, 2001, the day Section 508 regulations went into effect, NCD held a news conference to highlight the release of its report, The Accessible Future
(http://www.ncd.gov/newsroom/publications/accessiblefuture.html). Among other things, the report found that access to E&IT is a civil right and there is a need for a national accessibility policy.

Early Returns
The year 2002 has continued to witness the growth and refinement of useful resources, particularly information resources needed by government procurement officials, E&IT vendors and citizens with disabilities to all better understand their rights, responsibilities and opportunities under the law. Such efforts as the General Services Administration (GSA)-sponsored Federal Information Technology Accessibility Initiative (FITAI) have produced and maintained the Web portal http://www.section508.gov. Information about accessible products, lists of federal agency Section 508 contact designees plus other valuable information is forthcoming through that site. At the same time, the GSA-sponsored Accessibility Forum has strengthened the partnership between the federal government, industry and consumer groups in coming to consensus under the new law. Additionally, a number of other federally supported resources have been developed to provide relevant information and technical assistance to other key sectors such as the education system and state governments.
But while awareness of, information about, and access to resources necessary for complying with Section 508 have all increased, several other developments give cause for concern. On the last day of 2002, notice was published of the federal government's intent to make an important change in the Federal Acquisition Regulation (FAR) governing the timetable for implementation of the law. Micro purchases (small purchases made in essence on government credit cards by various employees outside the formal federal procurement structure) had been exempt from most 508 requirements through 2002. That deadline has now been extended by almost another two years.

Though the proportion of E&IT procured through micro purchasing is not large, the significance of the extension lies in the reasons given for it. One stated reason was the failure of manufacturers to provide sufficient package information or other data to allow micropurchasers to assess the accessibility of various items. While this failure surely does not represent a deliberate effort by any sector of industry to undermine full implementation of the law, the delay does highlight the vulnerability of the 508 process. This situation suggests that where industry for whatever reason has failed to take the lead in implementing a 508 goal or requirement, the government has been without practical means for achieving compliance. In a business environment where desire to innovate may be tempered by harsh cost considerations, and where nonmilitary government purchasing is likely to grow at a far slower rate than in recent years, concern is warranted whether the momentum toward compliance with both the letter and spirit of 508 can be maintained.

A related problem is the unevenness of Section 508 monitoring. As discussed in detail in last year's report, the law does not contain provisions for ongoing monitoring of many key practices, such as: the number of instances in which agencies use the "undue burden" or other defenses, the alternative methods agencies are using to provide required access to their employees or the public when E&IT cannot be made accessible, or even the ways procurement officers are weighting accessibility in comparison with other legal requirements in evaluating competitive bids.

While as a practical matter GSA appears to have a good general sense of what is going on in the proverbial trenches, we believe a more robust involvement on the part of the Department of Justice (DOJ) would also be very helpful. NCD recommends that DOJ, in fulfilling its reporting requirements to the President and Congress under the law, expand its assessment to include not only the accessibility of federal agency Web sites (as it has surveyed in the past), but also the degree to which agencies have met other expectations and resolved persisting issues. DOJ's next report is due this year.

In addition, a number of key interpretive issues remain that must be authoritatively resolved if federal procurement officers are to have the guidance and clarity they need to apply the law consistently and soundly. Together with industry and the public, they need to know the answer to such questions as how to define "undue burden" in relation to a governmental payer. This in turn squarely raises the question, more pressing than ever in the current fiscal and economic climate, of how the development costs of accessibility should be allocated between industry producers and governmental purchasers.

As a component of the Workforce Investment Act, the Rehabilitation Act, including Section 508, is up for reauthorization this year. Congress will thus have an opportunity to review 508 fully. NCD hopes that Congress and the Administration will remain faithful to the starkly simple goals of equality, and to the enormous potential of technology, that combined to bring Section 508 into being.

New Laws
Two important new statutes enacted in 2002 may have significant implications for section 508. The first of these, the Electronic Government Act of 2002 (E-Government Act) appears to strongly support Section 508 principles. Indeed, the concepts of greater governmental communication with the citizenry through electronic means that underlie both the E-Government Act and Section 508 are very similar.

The E-Government Act signals a new level of centralization and standardization in the management of governmental information resources. From the design of Web sites to the informational content of Web pages, federal E&IT practices are likely to come more and more under the management of OMB's new Chief Information Officer. This consolidation offers potentially valuable support for achieving 508 goals, but much will depend on the philosophy underlying OMB's overall approach to e-government.

Here, the equally profound implications of another major statute must also be taken into account. The Homeland Security Act will draw over 20 federal agencies together under a unified administrative umbrella, and for a purpose that necessarily subordinates open and expansive communication with the public to pressing national security imperatives. The issues regarding Americans with disabilities posed by the new department will be discussed at greater length in Chapter 13 of NCD's new report, but one key concern regarding Section 508 must be expressed here. Bearing in mind that 508 contains exceptions to accessibility requirements for technology used in national security systems, NCD trusts that the new department will not interpret this exception in ways that inadvertently undermine the applicability of Section 508 to the vast bulk of its personnel, public contacts and ongoing activities.

Congressional Accountability Act
Owing to the separation of powers doctrine under the Constitution, Congress is not automatically covered by many of the laws administered by the Executive Branch. This includes civil rights laws such as the ADA. In 1995, Congress enacted the Congressional Accountability Act (CAA) that applied a number of major laws to Congress itself and set
up mechanisms for their administration.

Congress is still not subject to the requirements of Section 508. Nor are such "Congressional instrumentalities" as the Library of Congress, the Government Printing Office or the General Accounting Office. In 2001, the Congressional Office of Compliance (which administers the CAA) recommended that Congress bring itself under the provisions of Section 508. Although we are not aware of any opposition within
Congress to this recommendation, or any serious dispute with the
reasoning of the Office's recommendation, no action has thus far been taken.

The Library of Congress (as well as the Government Printing Office) have announced that they will voluntarily comply with Section 508's requirements. In addition, the U.S. House of Representatives has recommended that all offices and committees make their Web sites voluntarily 508-compliant; House Information Services is assisting offices in this effort. Moreover, the upgraded Senate Web site will be 508-compliant.

NCD commends the Congressional Office of Compliance (OOC) for describing its efforts, to date, in addressing the exclusion of the U.S. Congress from coverage under Section 508 (See, http://www.compliance.gov/reports-studies/ada_12-02/ada_report.pdf,
specifically, pages 16-17). In its report, the Board of Directors of the Office of Compliance has recommended that Congress amend the Congressional Accountability Act to incorporate the substantive public access and employee access requirements of Section 508 of the Rehabilitation Act. See Interim Section 102(B) Report: Electronic Information Systems, OOC Board of Directors (November 13, 2001).

Recommendation to Congress
Believing that in this age of E-government no justification can exist for Congress not to embrace accessibility, NCD recommends that the 108th Congress act without delay to enter the electronic age by immediately and comprehensively applying Section 508 to itself.

For more information, contact NCD's Mark Quigley or Martin Gould at 202-272-2004.
mquigley@ncd.gov