Section 508 of the Rehabilitation Act - Frequently Asked Questions

Key Terms

B.1. - What is "Electronic and Information Technology" (EIT)?

EIT is information technology (IT), as defined at FAR 2.101, and any equipment or interconnected system or subsystem of equipment that is used in the creation, conversion, or duplication of data or information. In addition to IT, EIT includes:

• telecommunication products, such as telephones;

• information kiosks;

• transaction machines;

• World Wide Web sites;

• Multimedia (including videotapes); and office equipment, such as copiers and fax machines.

EIT is defined by the Access Board at 36 CFR 1194.4 and in the FAR at 2.101.

B.1.i. - Is EIT limited to products?

No. EIT, like IT, also includes services. For example, some agencies seek to satisfy their desktop computing needs through so-called "seat management" service contracts. Under a seat management arrangement, the contractor provides the software, hardware, and technical support services necessary to support full service desktop computing resources to the agency for a given period of time. Although the agency does not acquire title to the hardware and software, the agency would still need to comply with Section 508 in acquiring desktop computing resources.

As another example, agencies acquiring help desks must ensure that providers are capable of accommodating the communications needs of persons with disabilities, consistent with Subpart D of the Access Board’s standards. An agency help desk may need to communicate through a teletypewriter (TTY) – i.e., equipment that transmits coded signals across a telephone network. The help desk provider must also be familiar with such features as keyboard access and other options important to people with disabilities.

B.2.i. - What must an agency do to ensure its' acquisitions of EIT provide "comparable access"?

Unless an exception applies, an agency’s obligation to provide comparable access under Section 508 is satisfied by acquiring EIT that meets the applicable technical provisions in Subparts B, C, and D of the Access Board’s standards, either directly or through equivalent facilitation (see section B.3 below). Comparable access is not required if it would impose an undue burden on the agency. (See sections B.6 and G.6 below)

B.2.ii. - How should an agency proceed in identifying "applicable" technical provisions in Subparts B, C, and D of the Access Board’s standards to ensure acquired products provide comparable access?

Agencies should first look to the provisions in Subpart B to determine if there are specific technical provisions that apply to the EIT need they are seeking to satisfy.

If there are applicable provisions in Subpart B that fully address the product or service being procured, then the agency need not look to Subpart C. Acquired products that meet the specific technical provisions set forth in Subpart B will also meet the broader functional performance criteria in Subpart C.

If an agency’s procurement needs are not fully addressed by Subpart B, then the agency must look to Subpart C for applicable functional performance requirements.

Agencies must also remember the additional considerations of Subpart D. Subpart D requires that: (a) product support documentation provided to end users shall be made available in alternate formats upon request at no additional charge; (b) end users shall have access to a description of the accessibility and compatibility features of products in alternate formats or methods upon request, also at no additional charge; and (c) support services (e.g., help desk) for products shall accommodate the communication needs of end users with disabilities.

For example, if an agency were to enter into a seat management contract for desktop computing resources, the hardware and software to be provided by the contractor would be required to meet the provisions in Section 1194.26 (Desktop and Portable Computers), and 1194.21 (Software Applications and Operating Systems) of Subpart B of the Access Board’s standards. If these provisions fully addressed the agency’s procurement software and hardware needs, the agency would also be in compliance with Subpart C. If some or all of the features were not covered by Subpart B, the agency would also have to look to Subpart C. With respect to the support services provided under the seat management contract, the agency would also need to take into account any appropriate information, documentation, or support requirements in Subpart D.

In all cases, agencies, when evaluating offers, must consider products that provide equivalent facilitation (see section B.3 below).

B.3.i. - What is equivalent facilitation?

The Access Board’s standards provide that agencies may accept EIT offered by vendors which uses designs or technologies that do not meet the applicable technical provisions in Section 508 Frequently Asked Questions 508 FAQ Page 12 of 37 Subpart B but provide substantially equivalent or greater access to and use of a product for people with disabilities (see 36 CFR 1194.5). This is referred to as "equivalent facilitation."

Equivalent facilitation is not an exception or variance from the requirement to provide comparable access. Rather, it is a recognition that technologies may be either developed or used in ways not envisioned by the technical provisions in Subpart B but still result in the same or better functional access as would be provided by strictly meeting the provisions in Subpart B. Functional outcome – not form – is the key to evaluating whether a technology results in "substantially equivalent or greater access." In effect, meeting the functional performance criteria in Subpart C of the Board’s standards is the test for equivalent facilitation.

For example, an information kiosk which is not accessible to a person who is blind might be made accessible by incorporating a telephone handset connected to a computer that responds to touchtone commands and delivers the same information audibly that is provided on the screen.

In short, the concept of equivalent facilitation is designed to allow the marketplace to offer innovative solutions. For this reason, agencies must draft their solicitations for EIT so that products offering equivalent facilitation are considered along with those that strictly meet the technical provisions of Subpart B of the standards.

B.3.ii. - Is there a preference for a product that strictly meets the technical provisions of Subpart B over a product that provides the same or greater accessibility through equivalent facilitation?

No. Purchase of either EIT product would satisfy an agency’s obligations under Section 508. Award should be made to the source whose offer represents the best value to the Government based on the agency’s source selection criteria (which would include cost or price and may include quality).

Note: Offered products and services may provide greater access than required by the Access Board’s standards. An agency may give additional evaluation credit for such greater access but is not required to do so.

B.3.iii. - What is the difference between "equivalent facilitation" and "alternative means of access"?

Equivalent facilitation focuses on whether an EIT product provides access that is equal to or greater than that required in the technical provisions in Subpart B of the Access Board’s standards. By contrast, an alternative means of access focuses on the accessibility of the information and data, rather than the technology. Under Section 508, agencies have a statutory obligation to make information and data available by an "alternative means of access" when acquiring EIT that meets the applicable technical provisions of the Access Board’s standards would impose an undue burden. (See 36 CFR 1194.4 and section B.6.ii below)

Agencies have additional obligations under Sections 501 and 504 of the Rehabilitation Act, including the obligation to provide employees with disabilities "reasonable accommodations." "Reasonable accommodation" focuses on the needs of a particular individual with a disability. "Equivalent facilitation," instead, focuses on whether the technology itself is designed to afford a specific degree of accessibility – e.g., that which would have been provided if the product or service strictly adhered to the specific technical provisions of Subpart B.

B.3.iv - Who makes the determination that a product meets equivalent facilitation?

The vendor may assert that its product meets or exceeds the level of accessibility required by a particular standard through equivalent facilitation. The agency must determine whether a standard is met through equivalent facilitation in accordance with agency guidance and in consultation with, if necessary, the agency 508 coordinator and/or other agencies with technical expertise in accessible EIT, such as the Access Board. If an agency violates Section 508 because the product did not, in fact, meet a standard through equivalent facilitation, the agency may still be liable.

B.4.i. - What is assistive technology?

Assistive technology is adaptive equipment that people with disabilities commonly use for information and communication access. See 36 CFR 1194.4. In many cases, the Access Board’s technical provisions require compatibility with assistive technology devices. For example, if an agency is acquiring telecommunications products, the standards require that the EIT either contain a TTY or be compatible with TTYs. If the product doesn’t provide TTY functionality, it must provide a standard non-acoustic connection point for TTYs. See 36 CFR Part 1194.23.

In some cases, the standards require that the acquired EIT be readily usable without the need for assistive devices. This is the case, for example, for self-contained, closed products such as information kiosks. See 36 CFR Part 1194.25.

B.5.i. - What is nonavailability?

Nonavailability refers to circumstances where no commercial items are available that meet the applicable Access Board’s technical provisions (directly or through equivalent facilitation) in time to satisfy the agency’s delivery requirements. If products are available that meet some, but not all, applicable provisions, agencies cannot claim a product as a whole is nonavailable just because it does not meet all of the applicable technical provisions. The requiring official must document nonavailability in writing. See FAR 39.203(c) and 36 CFR 1194.2(b). See section F below for additional discussion.

B.6.i. - What is undue burden?

The Access Board’s standards and the FAR define an undue burden as a significant difficulty or expense. See 36 CFR 1194.4 and FAR 39.202. In determining whether acquiring 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 determinations must be documented. See section G.6 below for additional discussion.

B.6.ii. - If an agency determines that the acquisition of EIT that meets the applicable technical provisions of the Access Board’s standards would impose an undue burden, does it have any remaining obligations under Section 508?

Yes. The statute requires that the information and data be provided to individuals with disabilities by an alternative means of access. For example, if an agency wishes to purchase a computer program that generates maps denoting regional demographics, but determines that it would constitute an undue burden to purchase an accessible version of such a program, the agency would be required to make the information provided by the program available by alternative means to users with disabilities. Alternative means of access focuses on the provision of the information and data in an accessible manner as opposed to the accessibility of the product itself. Thus, in the example provided above, alternative means of access for an individual who is blind might mean providing a hard copy description of the information in Braille or providing an assistant to help guide the user through the information. Alternative means may include, but are not limited to: voice, fax, relay service, TTY, qualified sign language interpreters, Internet posting, captioning, text-to-speech synthesis, readers, personal assistants, or audio descriptions.

B.6.iii. - Is undue burden the only grounds for acquiring EIT that does not meet the applicable technical provisions?

No. There are several exceptions to the requirements of Section 508 (see section G).