What 508 does and does not require

What 508 does and does not require


As June 21 nears, federal officials are honing a fine distinction between what is and is not required of them to make government systems accessible to disabled users.

The distinction turns on what is enforceable under Section 508, new Federal Acquisition Regulation rules and other accessibility mandates. Justice Department lawyers said they expect few lawsuits'at least initially'concerning the government's compliance with Section 508 of the Rehabilitation Act Amendments of 1998.

In Section 508, Congress mandated that agencies provide accessibility for all information technology they 'develop, procure, maintain or use.' The law's language is sweeping, covering everything from operating systems and application software to telecommunications services and Web sites.

The federal Access Board spelled out the standards for complying with 508 in rules drafted in December that, by law, had to take effect in six months, or June 21.

Further, as the amendments required, the FAR Council issued new procurement rules that call for all IT bought after June 25 to be accessible to disabled users.

The point of contention over what is ultimately required of agencies has arisen because the law identified no enforcement agency to oversee Section 508's implementation. As one agency official put it: 'There are no Section 508 police.'

Users can sue

The only hard-and-fast enforcement power comes from the FAR rules, contracting officials from several agencies said.

And though the law notes that making IT accessible must not pose an undue burden, it does provide a process for letting users of federal systems file suit if they consider compliance deficient. Ultimately, however, Congress can enforce its Section 508 demands through a number of avenues, such as budget limits and language in authorization bills.

The FAR rules allow for five exemptions:

  • Undue burden. This is the exemption that Justice officials said they expect agencies will use most frequently.

    Agencies buying software for a legacy system would likely look to the clause for relief if upgrades prove too expensive, said Mary Lou Mobley, a lawyer and compliance expert in Justice's Civil Rights Division.

    Of course, an agency would first be required to prove that no software meeting the Access Board's standards existed and is compatible with the legacy system in question, she said.

  • Micropurchases. For government credit card purchases of less than $2,500, agencies have until January 2003 to comply with 508. The Access Board, however, urged contracting officers to apply the standards to these buys whenever possible before 2003.

  • National security systems. They need not comply with the FAR rule and neither must the back-end systems used to support and maintain weapons and other national security systems.

  • Equipment-monitoring systems. This exemption covers systems, such as heating equipment monitors, that only service technicians access.

  • Contractor gear. Any system acquired by a vendor incidental to performing a government contract need not comply

One of the grayest areas involves Web sites, officials said. Sites also must comply with accessibility standards, said Dave Yanchulis, an accessibility specialist at the Access Board. But there is wiggle room.

'By statute, the enforcement provisions of Section 508 apply only to electronic and information technology procured on or after the effective date,' Yanchulis said. 'As a result, Section 508 does not authorize complaints or lawsuits to retrofit technology procured before this date to meet the board's standards.'

Justice attorneys have made similar comments at government meetings on 508. Procurements made after the FAR rules take effect June 25, however, could prompt lawsuits by users, Mobley and other lawyers said.

'Section 508 is not enforceable unless something is procured,' Mobley said.

So technically, Web pages designed by federal workers after the Access Board regulations take effect could escape the complaint process, Yanchulis said. The grievance process is similar to that created for the Rehabilitation Act's Section 504, which mandates access for the disabled to all federal programs.

No force

'Section 508 doesn't force you to update your Web site, but Section 504 requires access to federal programs,' said Katherine Richardson, spokeswoman for the Agriculture Department's Technology Accessible Resources Gives Employment Today Center. The center has been training federal webmasters on how to build compliant sites.

Although disabled users can't sue agencies for noncompliance with Section 508 when a Web site won't work with screen readers, Section 504 would let them take legal action, Richardson said. But 504 requirements call only for accommodation, and agencies could choose to offer Web information in an alternate format, she said.

'We tell [webmasters] to look at their Web pages under Section 504 with Section 508 in mind,' Richardson said. 'If they can't change the entire page, we tell them to put a contact number so that someone looking for the information knows who to call. Doing something is better than nothing.'


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