Access Board Seeks to Revise Accessibility Standards for Information and Communications Technology of Federal Agencies and Certain Technology Manufacturers, Moving to Functionality-Based Approach

On February 18, 2015, the U.S. Architectural and Transportation Barriers Compliance Board (the “Access Board”) announced the release of its Notice of Proposed Rule Making (“NPRM”), refreshing and revising the existing accessibility requirements under Section 508 of the Rehabilitation Act of 1973 (“508 Standards”) and Section 255 of the Communications Act of 1934 (the “255 Guidelines”), and merging them into a single rulemaking intended to support the accessibility of Information and Communications Technology (“ICT”) for individuals with disabilities in the federal sector.

Purpose

As noted in the NPRM, the main purpose of this effort is to replace the current product-based approach to ICT accessibility with a functionality–based approach that will appropriately address and keep pace with fundamental shifts, developments, and advancements in technology (e.g., the proliferation of devices with multifunctional capabilities such as smartphones; the increasing use of tablets and other touchscreens, etc.).  Additional goals of these changes include promoting consistency with regard to the accessibility of ICT and related products across the U.S., harmonization with international requirements, and voluntary consensus standards for accessible technology.

Section 508

The 508 Standards require federal agencies to ensure that individuals with disabilities – federal employees as well as members of the public – have comparable access to and use of electronic and information technologies, unless doing so would impose an undue burden.  The 508 Standards apply to ICT developed, procured, maintained, and used by federal agencies (e.g., websites, information kiosks and transaction machines, computers, telecommunication equipment, multifunctional office equipment, etc.) unless limited exceptions or defenses apply.  Under Section 508, it is the responsibility of each agency to establish policies and procedures describing how each will comply with the standards, including those for making undue burden and fundamental alteration determinations.

Section 255

The 255 Guidelines require manufacturers of telecommunication equipment and customer premises equipment to ensure new and substantially upgraded existing equipment is accessible to, and usable by, individuals with disabilities when readily achievable.  The 255 Guidelines are enforced solely by the FCC.

Major Changes Noted in the NPRM

In its NPRM, the Access Board proposes the following major changes to the 508 Standards and the 255 Guidelines:

1. Incorporating the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”) at Levels A and AA by reference to govern both web and non-web electronic content (g., government internet sites, government intranet sites, word processing documents, PDF documents, project management software, etc.);
2. Clarifying that the requirements apply both to all public-facing content (g., agency websites, documents and media, blog posts, social media sites, etc.) and also to certain internal, non-public, electronic content.  Specifically, that considered “official business” of a given agency as well as eight (8) categories of non-public communications:
   1. emergency notifications;
   2. initial or final decisions adjudicating administrative claims or proceedings;
   3. internal or external program or policy announcements;
   4. notices of benefits, program eligibility, employment opportunities or personnel actions;
   5. formal acknowledgements or receipts;
   6. questionnaires or surveys;
   7. templates or forms; and
   8. educational or training materials.
3. Requiring Real Time Text (“RTT”) functionality (texting which occurs in near-real time as each character is typed) for products providing real-time, two-way, voice communication;
4. Providing more specificity regarding how hardware and software should interact with assistive technology; and
5. Updating functional performance criteria that address barriers to using ICT by individuals with certain disabilities which apply in two specific circumstances: (i) when there is a gap between a technology and the technical requirements set forth in the refresh; and (ii) when evaluating equivalent facilitation.

Potential Impact Beyond Federal Agencies

It is important to note that while the ICT Standards and Guidelines apply directly to federal agencies, the NPRM requires each federal agency to procure accessible ICT products.  Therefore, in order for a federal agency to award a government contract, bidding contractors are required to provide ICT that complies with the 508 Standards and the 255 Guidelines (unless the ICT acquired by a contractor is incidental to a contract or another limited exception or defense applies).

Notice and Comment Period

Once officially published in the Federal Register, these proposed rules will be open for public comment for a 90 day period.  (If the anticipated publication date of February 27, 2015 holds true, the public comment period will end on Thursday, May 28, 2015).  The public comment period will include two public hearings, the first to be held in San Diego, C.A. on March 5, 2015 and the second to be held in Washington, D.C. on March 11, 2015.  Additional information regarding the submission of comments to the NPRM can be found at the Federal Rulemaking Portal: http://www.regulations.gov/.

Looking Ahead to the Private Sector

While this NPRM may only directly apply to certain sections of the private sector, the U.S. Department of Justice (“DOJ”) is concurrently drafting its own NPRM which would promulgate revised regulations for Title III of the Americans with Disabilities Act (“ADA”) requiring places of public accommodations to make the goods, services, facilities, privileges, accommodations, or advantages they offer via the Internet, specifically on websites, accessible to individuals with disabilities.  The content of the Access Board’s ICT NPRM likely provides an indication of where key aspects of DOJ’s NPRM for website accessibility are heading.  Based upon recent information, most expect DOJ’s NPRM to be released in advance of the 25^th anniversary of the ADA (July 26, 2015).

For additional information, please contact Joshua Stein (jstein@ebglaw.com).