Section 508 of the Rehabilitation Act - Frequently Asked Questions

Exceptions

G.1. - Are there any exceptions to the requirement to acquire EIT that meets the technical provisions of the Access Board's standards?

Yes. Agencies are not required to acquire EIT that meets the technical provisions of the Access Board's standards if the acquisition:

1. is for a national security system (FAR 39.204(b) and 36 CFR 1194.3(a));

2. is acquired by a contractor incidental to a contract (FAR 39.204(c) and 36 CFR 1194.3(b));

3. is located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment (FAR 39.204(d) and 36 CFR 1194.3(f)); or

4. would impose an undue burden on the agency (FAR 39.204(e) and 36 CFR 1194.2)

In addition, agencies are not required to fundamentally alter their needs in order to comply with Section 508. (See section D.4, above)

G.2. - Is there an exception for micro purchases?

No. The exception regarding micro purchases expired April 1, 2005.

G.3.i. - Is there guidance defining what constitutes a national security system?

Yes. The FAR defines national security system at FAR 39.002. The term is also defined in Section 5142 of the Clinger-Cohen Act of 1996 (40 U.S.C. 1452). For additional discussion, see the preamble discussion regarding 36 CFR 1194.3(a) of the Access Board's standards.

G.3.ii. - Are some types of secure electronic equipment, such as secure telecommunications devices that are specifically designed to prevent eavesdropping and other forms electronic attack, subject to Section 508 requirements?

Unless an exception applies, these technologies are considered EIT and must meet the Access Board standards. If "Tempest-tested" telecommunications systems are being used in an application covered by the national security exception, they would not need to meet Access Board standard 1194.3(a).

G.4.i. - Do the standards require a contractor's workplace to be Section 508 compliant?

No. Unlike some other civil rights laws (such as Section 504 of the Rehabilitation Act), the Section 508 responsibilities do not follow the receipt of Federal funds to contractors, but only apply to the product and services being procured by Federal agencies. Section 508 applies only to Federal agencies including their EIT products and services that are deliverables under a contract. Section 508 does not apply to a contractor's own internal workplace EIT.

For example, if a Federal agency enters into a contract to have a web site developed, the web site is required to meet the applicable technical provisions of the Access Board's standards because the web site is the deliverable that is being acquired by the agency (unless, of course, an exception applies). However, the contractor's office system used to develop the web site does not have to meet the technical provisions, since its equipment is incidental to the contract.

G.4.ii. - Can a purchase qualify for this exception based strictly on the fact that it is a small add-on purchase to a larger contract?

No. While a purchase may be considered "incidental" in some situations based on its size, "incidental" in the context of Section 508 means the product is being used in-house by the contractor. The size of the purchase is irrelevant for purposes of this exception.

G.5.i. - What is the "back office" exception?

The so-called "back office" exception, discussed at Section 1194.3 of the Access Board's standards, states that "Products located in spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment are not required to comply with this part."

G.5.ii. - How is the "back office" exception applied?

Hardware. Two conditions must be met before an agency uses this exception when procuring a product. First, the agency must intend to locate the product in a physical space frequented only by service personnel. Second, the use of the product by the service personnel must be for maintenance, repair or occasional monitoring. If both conditions are met, the product does not have to meet the standards.

Hardware that might meet these dual conditions includes: telephone equipment placed on racks in a "closet" or small room and network routers and storage devices or servers located in rooms or areas frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment.

Software. Software which is installed or operated on a product which falls under this exception would be exempt from the standards if the software application could only be operated from the physical place where the product is located. This might include specialized diagnostic software. By contrast, if the software could be operated from a remote workstation, the software would be subject to the Access Board's standards irrespective of who is using it since the product interface is not located in a physical space which meets the criteria for this exception.

G.6.i. - What is the undue burden exception?

Agencies do not have to acquire EIT that meets the applicable technical provisions if doing so would impose an undue burden on the agency. Undue burden is a longstanding concept in disability rights law. In the context of Section 508, it means that an acquisition imposes a significant difficulty or expense, taking into account all agency resources available to the program or component for which the EIT is being procured. 36 CFR 1194.4 and FAR 39.202, 39.204(e)(1). An undue burden determination must be applied on a case-by-case basis.

If an agency invokes the undue burden exception, it must document in writing the basis for the decision and provide documentation for inclusion in the contract file (see sections G.6.iii and iv below). In addition, the statute requires the information and data to be provided to disabled individuals by an alternative means of access (see section B.6.ii, above). Agencies have additional responsibilities under Sections 501 and 504 of the Rehabilitation Act.

G.6.ii. - Why isn't undue burden more completely defined in the regulations?

Undue burden was defined by the Access Board consistent with the terms "undue burden" and "undue hardship" in the Rehabilitation Act and the Americans with Disabilities Act. The preamble to the Board's rule included an extended discussion of the term (see 65 FR 80500, at page 80506, December 21, 2000). Substantial case law provides further guidance to agencies in the application of the undue burden exception. The Access Board chose not to disturb the existing understanding of the term by trying to redefine it. The FAR rule also follows this approach.

G.6.iii. - Can "significant expense" be established simply by demonstrating that a product that meets the applicable technical provisions is significantly more expensive than one that does not?

No. In determining whether acquisition of EIT that meets all or part of the applicable technical provisions of the Access Board's standards would impose an undue burden, an agency must consider all resources available to its program or component for which the supply or service is being acquired. Undue burden cannot be established simply by demonstrating that, as between products that could meet the agency's need, the price of products that meet the applicable technical provisions is higher than that of others that do not. Such an analysis is insufficient since it fails to consider all resources available to the program or component.

G.6.iv. - What should be included in the undue burden determination?

The FAR requires the requiring activity official to document in writing the basis for an undue burden decision and provide a copy to the contracting officer for inclusion in the contracting file. See FAR 39.204(e)(2)(i). The documentation must clearly explain why meeting the applicable technical provisions imposes an undue burden.

The law and regulations do not specify the exact content or format of documentation to support an undue burden determination. Any agency documentation (and approval) procedures for undue burden must be followed. Documentation to support an undue burden determination based on significant expense could describe, among other things: the applicable technical provisions of the Access Board's standards, the market research performed to locate commercial items that meet the applicable technical provisions, the specific provisions that cannot be met as a result of undue burden, the expected cost of acquiring EIT that meets the applicable technical provisions along with an explanation of how costs were estimated, and a description of all the funds available to the program or component for which the supply or service is being acquired.

G.6.v. - Who is the "requiring activity official" who makes the undue burden determination?

See the response to Question F.3, above.

G.6.vi. - May an agency shift the responsibility for making undue burden determinations to vendors (i.e., by requiring interested sources who offer EIT that meets the applicable technical provisions to explain why the purchase of such EIT would not impose an undue burden?

No. The responsibility for making an undue burden determination rests with the agency. Only the agency is in a position to determine the difficulty or expense acquisition of EIT that meets the applicable technical provisions would impose on an agency and to know the resources available to its program or component for which the supply or service is being acquired.

G.6.vii. - What are the historical financial threshold and circumstances that appear to satisfy the courts relative to "undue burden" justifications by the government?

Undue burden cases are unique and require an examination of resources on a case- bycase basis. A general discussion on undue burden as it relates to 508 is offered on http://www.section508.gov/docs/undueburdenarticle.htm. This article was not written by a Federal employee or on behalf of the Federal government. The views represented are solely the views of the author. (The article is reprinted on the site with permission from the August 2001 issue of Contract Management magazine, published monthly by the National Contract Management Association in Vienna, VA.)

G.7.i. - Are procurement actions to maintain existing legacy systems (that do not meet the technical provisions of the Access Board's standards) exempt from Section 508?

Perhaps. The answer will depend on the purpose and nature of the action. In some cases, an exception, such as undue burden, might apply. As noted above, however, undue burden determinations must be made on a case-by-case basis.

For example, if an agency is acquiring "patches" to fix minor software errors on a system that is not near the end of its life expectancy and software that meets the applicable technical provisions of the Access Board's standards would not operate with the system, the agency might experience a significant difficulty or expense if it had to prematurely replace its system to accommodate the new software. Thus, the acquisition might fall within the undue burden exception. (In fact, if the maintenance is covered under a contract awarded prior to June 25, 2001, the procurement provisions of Section 508 might not be applicable. See section H.3 below).

By contrast, a finding of undue burden may be difficult to justify if a system is near the end of its life expectancy, the purpose of so-called "maintenance" is to significantly upgrade and update the system or its operating software (such as moving from a very old generation software to a much newer generation software), and the agency the resources for such an upgrade.

G.7.ii. - Are there any circumstances under which Federal EIT must be retrofitted with EIT that meets the access board's standards?

Section 508(a) generally requires that agencies ensure that the EIT they develop, procure, maintain, or use meets the Access Board's standards. To the extent agency resources are available, agencies should consider replacing older, inaccessible EIT with newer moreaccessible EIT, where such EIT is used by federal employees or members of the public to access data or information. In addition to helping the agency meet its general obligations under 508(a), such efforts may also help the agency satisfy its obligations under Sections 501 and 504 of the Rehabilitation Act.

G.7.iii. - If an agency has a system in place for broadcasting streaming video, is it required to replace it with a system that meets the standards when the next lifecycle upgrade occurs?

Generally, yes. Multimedia equipment is considered EIT and must meet the Access Board standards. If the equipment was purchased after June 25, 2001, and an exception does not apply, the action is subject to the enforcement provisions of Section 508(f).

Multimedia productions, must also meet the applicable Access Board standards irrespective of the equipment used to develop them, and are subject to the same enforcement provisions as multimedia equipment.

G.8. - Does acquiring maintenance or support services for an existing system trigger the requirement for the existing system to meet the Access Board's technical provisions?

New maintenance and support contracts on legacy systems do not require the previously owned EIT to meet the technical provisions of Subparts B or C of the Access Board's standards. However, the newly acquired help desk services, training, and product support documentation must meet Subpart D of the Access Board's standards.

G.9. - Are agency purchases from Javits-Wagner-O'Day (JWOD) Act nonprofit agencies employing people who are blind or severely disabled (NIB/NISH) or Federal Prison Industries ("FPI," also known as UNICOR) exempt from Section 508?

No. Agency purchases from NIB/NISH and FPI are treated as procurements and are subject to Section 508. For EIT products and services where NIB/NISH and FPI are mandatory sources, agencies must look to these sources first for EIT that meets the applicable technical provisions of the Access Board's standards. EIT that does not meet the applicable technical provisions may be acquired from these sources only if an exception applies or if EIT that meets the provisions is not available from a commercial source (i.e., nonavailability means EIT is not available from either a mandatory source or the commercial marketplace).

G.10. - Does an agency have any remaining obligations under the Rehabilitation Act if an exception applies?

Yes. Even if an exception applies, the agency will still have obligations under Sections 501 and 504 of the Rehabilitation Act. These Sections require, among other things, that the agency provide reasonable accommodation for employees with disabilities and provide program access to members of the public with disabilities. (If the undue burden exception applies, an agency is required under Section 508 to provide an alternative means of access. See section B.6.ii, above)

G.11. - Should agencies keep track of exceptions?

Yes. Agencies will need to track documented exceptions to Section 508 for future reporting to the Department of Justice (agencies should also keep track of nonavailability determinations. See section F.2, above). For this reason, agencies should establish a method of collecting and reporting that information to the Department of Justice for their biennial reports. An agency's CIO office/Section 508 Coordinator can provide more information on the agency's processes for reporting and documenting exceptions. See the Section 508 web site, www.section508.gov, to identify individual agency coordinators.

G.12 - May an agency exempt an acquisition from the requirements of Section 508 if such procurement is undertaken to comply with the Government Paperwork Elimination Act (GPEA)?

No. Agency efforts undertaken to comply with GPEA are not exempt from Section 508. EIT developed, procured, maintained or used to meet the objectives of GPEA must also meet the requirements of Section 508, i.e., comply with the Access Board's standards where applicable.

GPEA, which was enacted in October 1998, requires agencies generally to provide for the optional use and acceptance of electronic documents and signatures and electronic record keeping, when practicable, by October 21, 2003. OMB annually requires agencies to submit plans describing how they are implementing GPEA; the most recent OMB request was issued on September 24, 2001. In that request, OMB describes factors that agencies should consider in their planning, and among those factors is customer relationship management, including accessibility standards. OMB guidance on implementing GPEA (Memorandum M-00-10, April 2000) can be found on the OMB website.

Exceptions