Section 508 and Higher Education: Legal Issues

Deborah Buck, Executive DirectorNovember 13, 2008

This session will address the legal and programmatic aspects of 508 and other related civil rights laws and will address implementation issues relative to IT Access

§ 508 Historical Snapshot

● 1986 Congress reauthorizes Rehabilitation Act of 1973- adds Section 508

● 1998 Rehabilitation Act reauthorized

● 2008 More than 20 years have passed since initial adoption of Section 508. ● Applicability of § 508 to states, local governments,

school districts and post-secondary educational institutions continues to be founded on misinformation and misunderstandings.

What Are People Saying?

According to the Department of Education, states that receive funds under the Assistive Technology Act State Grant Program are also required to comply with Section 508 and the Board’s standards. XXX receives funds under the Assistive Technology Act, and the XXX State University is a recipient of funds made available to the state through that act; therefore, XXX campuses are required to comply with Section 508 standards by ensuring that electronic and information technology is accessible to individuals with disabilities.

FAQ on 508 Office of the Chancellor

April 2001

What Are People Saying?

It is the policy of the ITS that XXX is dedicated to ensuring our sites are compliant with Section 508 regulations. Section 508 was an amendment made to the Americans with Disabilities Act in 1998. This amendment requires that Federal agencies' electronic and information technology is accessible to people withdisabilities.

University Website-November 2008

What Are People Saying?

It is my understanding that Section 508 is applicable to any agency that receives federal money. I would think that the vast majority of colleges and universities in the United States fall into this category.

April 2008

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What Are People Saying?

Section 504 of the U.S. Rehabilitation Act of 1973 mandates that institutions receiving federal funds provide equal access to their programs. Many state-funded public universities receive Assistive Technology grants, which the Department of Education claims makes them accountable to the Web accessibility standards set forth in Section 508 of the U.S. Rehabilitation Act of 1973.

University Website-November 2008

What Are People Saying?

Section 508 is a federal amendment that requires all websites to be accessible by people with disabilities.

University Website-November 2008

What Are People Saying?

● Since U.S. States must comply with Section 508 in order to receive funding under the Assistive Technology Act (1998), a number of them—most notably, Illinois, Kansas and Texas—have codified the Section 508 standards in their own state laws.

● Compliance with Section 508 is now mandatory in many K-12 systems.

University Website on Accessibility in Distance Ed- posted under Legal Issues November 2008

Setting It Straight…

● §508 part of Rehabilitation Act of 1973- NOT part of the Americans with Disabilities Act

● Recipients of federal funds (with 2 narrow exceptions are NOT required to comply with §508)

● §508 statute does NOT require states, local governments, universities, K-12 school districts to comply with 508

Rehab Act & §508

● 1986 - Congress reauthorizes Rehabilitation Act of 1973, as amended ● Adds Section 508● Purpose- to ensure that people with disabilities have

access to electronic office equipment.

● 1998 - Rehabilitation Act reauthorized ● Applies to Federal Departments & Agencies● Section 508 strengthened

● Requires issuance of standards● Requires Enforcement● Requires Reports

Who is Required to Comply

● Rehabilitation Act of 1973, as amended ● §504● §508

● §504● Recipients of Federal funds must comply● Nondiscrimination & Program Access

● §508 ● Only Federal agencies required to comply● Congress did not extend the same requirement for

recipients of federal dollars to §508● Intent that 508 would serve as model for others

ADA

● Americans with Disabilities Act of 1990 (ADA): (P.L. 101-336)● Conformance with §508 is not required by ADA

● Americans with Disabilities Amendments Act of 2008: (P.L.110-325)● Passed by Congress on September 25, 2008 ● Redefines the definition of disability under the ADA and Title V of

the Rehabilitation Act of 1973 (including section 501 and 504)● Specifically mentions assistive technology and amends the

definition of auxiliary aids and services. ● Effective on January 1, 2009 ● Does NOT address web accessibility

● NFB vs. Target Corporation

States & §508 Requirements

● §508 does not apply to direct recipients of Federal funds (grants) unless a federal agency or department specifically requires conformance

● Two Federally Funded programs required to Comply● Statewide Assistive Technology Act Programs – Assistive

Technology Act of 1998, as amended in 2004● State Developmental Disabilities Councils, The

Developmental Disabilities Assistanceand Bill of Rights Act of 2000

History of AT Act in Relation to 508

● AT Act (formerly known as Tech Act), §508 and States● Tech Act- 1988 - Required State

assurance to comply● Lack of Clarity- “State” as a State defines

it!!● Disparate interpretations by federal

entities re: applicability of §508 to States

Exception- AT Act of 1998, as amended in 2004

The application shall include assurances that …

(G) activities carried out in the State that are authorized under this Act, and supported by Federal funds received under this Act, will comply with the standards established by the Architectural and Transportation Barriers Compliance Board under section 508 of the Rehabilitation Act of 1973 (20 U.S.C. 794d); and...

Assistive Technology Act of 1998 as amended, PL108-364 SEC. 4. State Grants for Assistive Technology (d) Application (6) Assurances

Exception- DD Act of 2000

STATE DEVELOPMENTAL DISABILITIES COUNCILS (F) Plan shall provide assurances that programs, projects, and activities funded under the plan, and the buildings …, will meet standards prescribed by the Secretary in regulations and all applicable Federal and State accessibility standards, including accessibility requirements of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), …

Developmental Disabilities Assistance and Bill of Rights Act of 2000, PL106-402 Title I (B) Section 124 (c) State Plan Requirements (5)Assurances (F)

State of the States?

● Almost all States have policies & laws relative to web access

● 19 States have IT Access laws (based on §508)

● 2 States have Executive or Administrative Order

● 4 States have adopted policies or addressed E&IT accessibility through Enterprise Architecture or Policy

19 States with “508” Statutes

Arizona 2004 Arkansas 1999

California 2002 Colorado 2000

Florida 2006 Illinois 2007

Indiana 2001 Kentucky 2000

Louisiana 2001 Maryland1998

Minnesota 1998/2002/2007 Missouri1999

Montana 2001 Nebraska 2000

North Carolina 2001 Oklahoma 2004

Texas 2005 Virginia 2004

W. Virginia 2001

Executive Orders

● Pennsylvania’s● Commonwealth Agencies Under

Governor’s Jurisdiction

● Massachusetts● State Agencies

§508 & Scope of Applicability

● Scope of state laws vary state to state● Covered entities may be extended by state policies

● State governmental entities● Public Schools and Universities ● Judicial branches of state government● Entities in receipt of state funds

● FL- executive, legislative & judicial branches covered

State 508 Laws Cover Universities

● Arkansas California

● Illinois Kentucky

● Missouri Montana

● North Carolina Oklahoma

● Texas Virginia

● Minnesota State Colleges & Universities● University of Minnesota encouraged

Not Specified, Not Covered or Exempted

● Colorado N/S Florida N/C● Georgia Exempt Indiana N/C● Louisiana N/C West Virginia N/C● Nebraska N/C unless subcontractor to state agency

● Maryland ● Exempt Public institutions of higher education in the

management, development, purchase, or use of information technologies solely for academic or research purposes;

● The University System of Maryland; ● St. Mary's College of Maryland; and ● Morgan State University.

HOWEVER

University Based Policies, Directives

Penn State and Accessibility

The University's policy is to be compliant with Section 508 of the Rehabilitation Act Amendments of 1998.

University of Texas @ Austin

Web Accessibility Policy● It is the policy of The University of Texas at Austin that all

official University information published on University Web sites shall be accessible to all users. The University has adopted the access standards of Section 508 of the Rehabilitation Act of 1973, as amended, and therefore all Web pages containing official University information that are built, updated or revised after the effective date of this policy must comply with Section 508 requirements. Section 508 establishes only a minimum standard for accessibility and Web pages; developers are encouraged to go beyond the minimum whenever possible.

Scope of 508

•Software applications & operating systems•Web-based information and applications•Telecommunications products (phones, Fax)•Video and multimedia products•Self contained, closed products (kiosks)•Desktop and portable computers

Web Access OnlyOR

Higher Ed Opportunity Act

●Signed into law August 14, 2008

● Provisions in Higher Ed Act Conference Report

● Universal Design for Learning ● Universal Design

Universal Design

UNIVERSAL DESIGNMeans a concept or philosophy for designing and delivering products and services that are usable by people with the widest possible range of functional capabilities, which include products and services that are directly accessible (without requiring assistive technologies) and products and services that are interoperable with assistive technologies.

Assistive Technology Act of 1998 as amended, PL108-364 SEC. 3. Definitions (19) Universal Design

Universal Design for Learning

Universal design for learning' means a scientifically valid framework for guiding educational practice that --● provides flexibility in the ways information is

presented, in the ways students respond or demonstrate knowledge and skills, and in the ways students are engaged; and

●  reduces barriers in instruction, provides appropriate accommodations, supports, and challenges, and maintains high achievement expectations for all students, including students with disabilities and students who are limited English proficient

Higher Ed Act & Teacher Prep

● SEC. 205. ACCOUNTABILITY FOR PROGRAMS THAT PREPARE TEACHERS

● (F) USE OF TECHNOLOGY● A description of the activities, including activities

consistent with the principles of universal design for learning, that prepare teachers to integrate technology effectively into curricula and instruction, and to use technology effectively to collect, manage, and analyze data in order to improve teaching and learning for the purpose of increasing student academic achievement.

Once You Have a Law, Policy, Directive…

The Challenge that follows……

Guidance

● Lead Entity- Authority● Clear Purpose● Scope● Compliance Requirements● Procurement● Testing and Validation● Monitoring● Designated Individuals● Complaint Process● Adoption & Implementation● Terms & Definitions

Operationalizing the Law

●To date most states have had laws with little guidance for implementation

●Identify, develop and implement processes for procurements and in-house development

●Internal vs. External Capacity

●Build upon existing processes & procedures

Operationalizing the Law

● Clarify and educate implementers on requirements● Provide training ● Identify resources for support

● Assuring Conformance● Build upon existing processes or internal structures

● Pre-audit review proposed purchases ● Requests considered as part of evaluation of IT initiatives and

prioritization of funding

● Post audit- part of review process

● Ongoing Process- never done!

508 Refresh

What Happens When the Standards Change?

Two Bites of the Apple

● Before the Standards are Finalized● NPRM

● Review proposed standards● Provide comment and feedback

● After Standards are Finalized- State, University Only Option● Examine resources, staff, & capacity● Review & Evaluate the final standards

● Structure and complexity

● Level of accessibility

● Scope of applicability

● Assess ability to implement? Resources, internal knowledge, tools?

Implementation Challenges

● Recommendations for standards are complex

● Increased volume and level of complexity● Telecommunication Products - from 11 to 57 provisions

● Definitions - from 12 to 58

● TEITAC acknowledges that new structure requires interface tool to allow implementation

● No specific funding to support such tool

● No dedicated technical assistance and support for states, local governments, universities, etc

Options

● Latitude to adopt rules

● Implications of modifying standards● Harmonization● Impact on acquisitions● Market availability

Change is Constant

Current ADAG standards only accommodate 50% of today’s wheelchair users

● Technology Changes● New products● New features

● People change● Needs change

● Environment Changes● Uses Change● Standards- evolve

Contact Information

Deborah V. BuckExecutive Director

Association of Assistive Technology Act Programs (ATAP)

dvbuck@verizon.net

518.439.1263