The Web, accessibility and 'undue burden'

Good news: You have more time.

Agencies facing compliance with Section 508 of the Rehabilitation Act recently gained an extension when the original Aug. 7 compliance date was pushed back so that it falls six months after the specific standards are issued.

The Access Board on March 31 published a notice of proposed rule-making on Standards for Electronic and Information Technology, implementing Section 508. The rule requires, in part, that agencies make electronic equipment and World Wide Web sites usable by people with sight, hearing and other disabilities.

There is a caveat, however, to complying with the standards published by the Access Board: Agencies are exempt if they can demonstrate that compliance constitutes "an undue burden."

As stated on the Section 508 Web site:

A federal agency does not have to comply with the technology accessibility standards if it would impose an undue burden to do so. This is consistent with language used in the Americans with Disabilities Act (ADA) and other civil rights legislation, where the term "undue burden" has been defined as "significant difficulty or expense." However, the agency must explain why meeting the standards would pose an undue burden for a given procurement action and must still provide people with disabilities access to the information or data that is affected.

Section 508 sets forth a standard (undue burden) for evaluating an agency's ability to comply with the Access Board standards, but the term "undue" is a high standard.

Agencies' concern about Web sites centers on the question of what is "enough" compliance. Documenting the extent to which compliance attempted is a good idea.

Many federal Web sites are maintained as someone's second, part-time responsibility. Much of the technology for meeting the standards is evolving, prohibitively expensive or not available. Documenting the resources or other issues (such as training) involved in meeting the Access Board's standards is necessary to demonstrate good-faith efforts to comply with the legislation and to respond to public lawsuits.

Factors that define undue burden to a federal agency revolve around fiscal constraints but may also include security issues, the overall feasibility of making certain functional capabilities accessible, training, priorities and the availability of products.

The huge backlog of work that Section 508 creates cannot be handled instantly, and much of it may not be able to be updated at all, especially without funding. Webmasters are struggling just to keep up with the current volume. Having to fix "old" pages creates a huge unfunded requirement.

Unfortunately, Section 508 is not like the Electronic Freedom of Information Act, which called for only new or updated documents to comply with the legislation. However, agencies dealing with Section 508 compliance could use EFOIA as a guide, setting priorities in the following order: home pages, high-volume pages, new pages and pages that are changed or updated.

A much more volatile issue is the posting of the undue burden analysis. Keeping in line with the Freedom of Information Act and other legislation that supports the openness of government, an agency's analysis and subsequent plans to improve accessibility should be made available to the public.

The undue burden analysis documentation can also serve other purposes, such as justification for increased budgets and input to the agency's internal planning. Consider the following:

    * If budgetary constraints are the main reason for undue burden, what supporting documentation do you have for increased information technology funding?

    * If the addition of new technologies to the Web site is necessary or desirable, what business case documentation exists to justify the expenditure?

    * What justification exists for implementing, using and maintaining functional capabilities that would be inaccessible to people with disabilities?

    * What documentation exists to outline Web site responsibilities?

    * What are the long-term goals of the Web site?

The analysis of undue burden can serve as a stimulus to address longer-term issues: Defining objectives for Web sites — including sites more rigorously in agency planning — and addressing new functional capabilities for sites.

As technology changes, this year's undue burden may not be next year's hardship. An agency's undue burden analysis, like its Web sites, will require a watchful eye and frequent updates as budgets and products evolve.

When the proposed rules become final, and you have your undue burden analysis documentation in hand, you will be prepared for the lawsuits allowed under Section 508. Even if no lawsuits emerge, your undue burden analysis serves as an internal planning tool to justify desired long-term information technology expenses.

—Tang, a member of the Federal Web Business Council, is an associate in the Information Technology Group at Caliber Associates, Fairfax, Va.

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