05.19.2017

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Updates

As more everyday activity migrates to digital technologies and the internet, a wave of new lawsuits are testing the boundaries of the Americans with Disabilities Act (ADA) and the digital world. The rapid proliferation of website accessibility claims under the ADA has sensitized public and private sector organizations to other potential claims associated with their use of the internet and information technologies to communicate with their customers, exhibit their products, effectuate online transactions and offer benefits in the workplace. 

Many organizations and institutions seeking to manage risk now pre-screen technologies at the procurement stage to ensure accessibility. Common standards provide useful guidance in this type of risk-management effort. The most comprehensive set of common standards for digital accessibility are those published in January as a final rule by the Architectural and Transportation Barriers Compliance Board pursuant to Section 508 of the Rehabilitation Act.[1] Increasingly, organizations that are not directly subject to these standards are looking to them as an aid in their compliance and risk management efforts. 

Federal Standards for Accessible IT Have Broader Impact

Section 508 requires information and communications technologies developed, maintained, procured or used by federal departments and agencies to be accessible to people with disabilities.[2] The goal of the standards is to eliminate barriers in information technology and to encourage the development of new technologies.[3]

The original standards issued in 2000 used a product-by-product approach, mandating specific features to support common assistive technologies and specific use cases. Dramatic changes in technology over the last decade made the original standards obsolete.[4] The new standards take a functionality-based approach, which is better suited to keeping pace with technological advances. The functionality-based approach also makes the new standards a more useful proxy for ensuring compliance with accessibility laws, and it is creating a path for more inclusive design. 

Although the new Section 508 standards do not apply directly to private entities or recipients of federal funding, in fact, the Section 508 standards have been imported into other federal rules, state laws, funding agreements and procurement documents for many private institutions.  

For example, under California state law, state and local entities, entities receiving funding from the state, and contractors supplying electronic and information technology to any such entities are required to comply with the Section 508 standards, which are incorporated by reference into Government Code Section 11135(d)(1)-(3). In addition to state government agencies, this covers the California State University system, state hospitals, schools, libraries and a broad range of institutions receiving state funding.

Another example is the federal Medicare/Medicaid rules, under which healthcare institutions covered by the rules must make information “readily accessible” to enrollees and potential enrollees. The rules defining “readily accessible” incorporate the Section 508 standards and the Web Content Accessibility Guidelines by reference.[5] Even private institutions are increasingly adding the Section 508 standards to their procurement documents and asking vendors to provide assurances of conformance.

The Need for Common Standards

Most anti-discrimination laws, like the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, do not contain specific obligations with respect to technology. They are designed generally to ensure that users with disabilities have equal access to the same services, programs and benefits as non-disabled users. When questions arise about whether an organization violated general mandates under the ADA or Section 504, they typically can only be addressed on a fact-intensive, case-by-case basis in the courts—a long and costly process. 

For the public and private institutions that may be subject to these laws, the Section 508 standards provide useful benchmarks to help these entities determine whether the technologies they use internally and externally are accessible under even the most stringent federal laws. Some educational institutions, for example, incorporate Section 508 regulations into their internal policies and procurement documents to help them satisfy their obligations under Section 504 of the Rehabilitation Act. 

Digital Accessibility Checklist

There are several items to consider when making major technology purchases, but risk of potential litigation should factor into the analysis, particularly for large organizations that may have extensive regulatory obligations or a large, diverse population. Public and private entities that do not utilize Section 508-conforming technologies may subject themselves to greater risk of claims under the ADA, Section 504 of the Rehabilitation Act or applicable state laws when they rely on inaccessible technologies to perform any functions covered by the laws, such as communications with employees or individuals outside the organization about products, services and programs.

Here are five basic steps you can take to assess your organization’s digital accessibility obligations, and determine how to meet them:

1. Determine whether federal or state laws that govern your organization incorporate the Section 508 standards by reference. In addition to the California state law noted above, many states have adopted their own digital accessibility laws to cover state institutions and recipients of state funds. Healthcare providers should be especially vigilant in ensuring their technologies conform to the Section 508 standards because they may have direct obligations under federal law.

2. Determine whether your organization has other obligations to conform to the Section 508 standards or general mandates that technology be accessible to people with disabilities. There are many ways in which your organization can have a legal obligation to procure technologies that conform to the Section 508 standards even if your organization is not subject to Section 508 directly. Your organization may have obligations as an employer under Title I of the ADA, obligations under state law, commitments in funding agreements, ongoing covenants your organization committed to in private contracts, consent decrees resolving litigation and even internal policy statements.

3. If you do not already have a policy in place for procurement that specifies accessibility as an important criteria for technology purchases, consider adopting one. Having a policy in place that favors Section 508-conforming technologies allows an organization to make informed choices when it comes to the technologies it procures, which, in turn, can help it defend against discrimination claims. Once such a policy is adopted, it is important that personnel in charge of making procurement decisions receive appropriate training so they can identify potential issues, and ask vendors the right questions.

4. Check your vendor’s accessibility, and verify conformance to applicable standards. When procuring technology, request the vendor’s accessibility documentation, and verify that the products conform to the applicable standards. The vendor may have a Voluntary Product Accessibility Template (VPAT)—a self-disclosure that evaluates how accessible a particular product is according to the Section 508 standards. If your organization also operates overseas, there may be foreign standards in place as well, such as EN 301 549, the European accessibility standard. Trusted vendors should be familiar with foreign standards and constantly tracking changes in the laws that apply to the technology and equipment they sell.

5. Require ongoing commitments from vendors to ensure product accessibility. Many organizations have begun to rely on contractual commitments to ensure an accessible workplace or accessible products and services. These commitments can be crafted to ensure an ongoing obligation to address accessibility issues as they arise and to keep pace with developments in technology. Indeed, this is how the accessibility laws were intended to function: placing a duty on the federal government to procure accessible technologies creates incentives for vendors to develop these technologies. Similarly, large organizations that have resources to implement robust compliance programs can make similar demands of vendors with whom they contract. Accessible technologies proliferate based on increased awareness and demand created by these large institutions seeking to minimize their legal risks. 

Endnotes

[1] Information and Communication Technology (ICT) Standards and Guidelines, 82 Fed. Reg. 5790 (Jan. 18, 2017) (to be codified at 36 C.F.R. pts. 1193 and 1194).

[2] Id.

[3] About the Update of the Section 508 Standards and Section 255 Guidelines for Information and Communication Technology, United States Access Board (Jan. 2017), https://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-ict-refresh/overview-of-the-final-rule.

[4] Id.

[5] 42 C.F.R. § 438.10.

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