Road to compliance

The law intended to make technology work better for people with disabilities has federal agencies scrambling to prepare for its effective date of June 21. But before the law — known as Section 508 — assists any disabled workers, its first beneficiaries may be the technology vendors with the sharpest lawyers.

Federal contracting officers, government lawyers and technology managers are bracing for bid protests and legal challenges as companies battle for the right to sell computers, office equipment, software and information technology services to the federal government under rules established by Section 508.

The new rules forbid federal agencies from buying electronic and information technologies that are not accessible by people with disabilities — everything from computers to copying machines. The law also requires that agency Web sites be accessible by people with disabilities.

Despite 67 pages of regulations spelling out the "technical and functional performance criteria" for equipment and software, Section 508 leaves many questions unresolved, say vendors and federal procurement officers (see sidebar).

"There is still confusion over what companies must do to identify their products as compliant," said Larry Allen, executive director of the Coalition for Government Procurement, which represents companies that sell goods and services to the federal government. "The rules are so vague as to invoke protests and litigation."

It is likely that many of those questions will have to be answered in court, said Mary Lou Mobley, a lawyer in the Civil Rights Division of the Justice Department. "There are so many gray areas that still have to be defined."

A Litigious Law

Indeed, Section 508 was written with litigation in mind. A key provision in the law gives government employees and members of the public the right to sue federal agencies that fail to comply with accessibility requirements. The threat of lawsuits was intended to spur agencies into compliance.

The incentive for individuals to sue is tempered, however, because Section 508 does not permit punitive damage awards. Those who prevail in these cases will only win court orders demanding that agencies comply with Section 508 and recovery of "reasonable attorneys' fees."

However, the stakes are considerably higher for companies hoping to sell millions of dollars' worth of goods and services to the federal government, according to Michael Mason, a Washington, D.C., attorney who specializes in technology and government procurement matters. "If you're a company and you're competing for a large contract, you're going to look at whatever options are available to bring that contract in," he said.

The ambiguity in Section 508 is likely to provide ample grounds for challenging agency awards. And Mason predicts that contract losers will be "tempted to file bid protests."

Although the provision for individual lawsuits was intentional, "I'm not sure everyone knew they were walking right into this bid protest issue," he said.

Mobley provided a similar assessment during a conference of agency and industry officials March 26. Bid protests are "where you're likely to see the most robust enforcement" of Section 508, she said.

More than three years in the making — and nearly a year behind schedule — Section 508 is an amendment to the Rehabilitation Act of 1973, a sweeping law intended to improve opportunities for employment, independence and self-sufficiency for people with disabilities.

The act set out to make the federal government a model employer of those with disabilities. It attacks discrimination, provides for training and encourages the hiring of people with disabilities. But the 28-year-old law did not anticipate the crucial role electronic and information technologies can play in overcoming disabilities.

Technology provides even seriously disabled people the means to do the same sort of work their nondisabled counterparts do. During a recent trade show, for example, Mobley said she saw "some amazing technology," including computers that give paralyzed people "the ability to type with their eyeballs."

All too often, such technology is useless because it is not compatible with the office hardware and software used by potential employers, including many federal agencies, she said.

Section 508 intends to change that by requiring federal agencies to provide accessible office equipment. Federal agencies "shall ensure that the electronic and information technology allows federal employees with disabilities to have access to and use of information and data that is comparable to the access" of those without disabilities, according to the law.

Thus, a quadriplegic might have to be provided with a computer equipped with eye-tracking cameras, a dwell cursor and an on-screen keyboard. By tracking eye movements, the cameras can tell which letter the typist has selected on the on-screen keyboard, enabling hands-free typing and creating employment possibilities.

Section 508 does not require that every new computer the government buys be equipped with a Braille display or a screen reader for the blind, but it does require that all new computers be able to work with such assistive technology, Mobley said.

In the push to accommodate workers with disabilities, some agencies have established "needs-assessment teams" whose technology experts help determine what assistive technology employees need and what will work best with the agency's technology architecture. The departments of Defense, Agriculture, Veterans Affairs and the Interior have such teams.

The Social Security Administration has established testing laboratories for assessing computer applications to ensure they meet accessibility requirements, said Clare Bellus, the agency's IT accessibility coordinator.

"In some cases, we have stopped deployment of software" because it failed laboratory accessibility tests, she said. Agency computer programmers have written customized scripts to fix some of the software faults. Other products have been returned to their commercial developers for repairs, she said.

SSA has extensive in-house computer expertise and develops many of its own applications for internal use and for use on the Internet, Bellus said. Web page accessibility will become important as agencies such as SSA offer more services to the nation's elderly. By some estimates, as many as half of retirement-age Americans have some form of disability.

But the technology that solves disability problems need not always be exotic, according to Alex Koudry, an assistive technology expert with the Education Department.

Research In Motion Ltd.'s pocket-size BlackBerry devices were designed to provide users with access to e-mail anywhere, but they also serve as miniature versions of the TTY devices that make it possible for deaf people to communicate by telephone, Koudry said. "They're the closest thing to a cell phone for the hearing impaired," he said.

Similarly, technology developed for those with disabilities is migrating into the mainstream. It used to be difficult to explain how a TTY device works, Koudry said, but today almost every schoolkid understands instant messaging.

"Do you really need a mouse and a monitor to operate a computer? No," said Don Barrett, another member of the Education Department's assistive technology program. "With the right assistive technology, they're not necessary." Barrett, who is blind, leaves his monitor turned off. He uses a screen reader — software that reads aloud what would appear on his computer screen. And instead of pointing and clicking with a mouse, he controls his computer through his keyboard.

Thus equipped, Barrett can create, write and save a document in Microsoft Corp. Word as efficiently as a sighted typist. There are hundreds of such pieces of equipment and software designed for use by those with disabilities: one-handed keyboards, foot-operated mice, displays that translate text from a computer screen into Braille, typing sticks, screen enlargement software, speech recognition software and dozens more. There are so many products and versions of products that agency procurement officers are often bewildered about which will work and which won't. Many have asked for a list of government-approved accessibility items.

"We would all like the nirvana of an Underwriters Lab or a Good Housekeeping Seal of approval for products, but it doesn't exist," said Ray Morgan, manager of technology and standards for the U.S. Postal Service.

And the government is not about to create one, said Mobley, the Justice Department lawyer. Compiling a list of approved products would expose the government to "endorsement liability" — more lawsuits. "The government is not allowed to endorse one product over another."

Different Rules for Web Sites Section 508's accessibility rules apply to electronic and information technologies that are "procured" on or after June 21. But the law does not define "procured." Some agency officials contend that it means "bought." Others say it means "acquired" and includes software and Web pages created by agency employees. The issue may be clarified when final rules on applying Section 508 regulations are written into the Federal Acquisition Regulation this spring. For now, Mobley said she interprets Section 508 as not applying to agency Web pages created before June 21.

But another part of the Rehabilitation Act, Section 504, does.

"Section 504 simply states that all federally conducted or supported programs may not discriminate on the basis of disability," said Doug Wakefield, the senior technology specialist at the Access Board, the group that wrote the accessibility standards. "If you provide service via the Web, you have to make sure it's available to everybody."

The standards in Section 508 spell out how Web pages must meet the 16 requirements in Section 504 to be considered accessible. If the Section 508 standards are followed when Web pages are created, it takes little more effort to create accessible Web pages than to create nonaccessible ones, say experts like Barrett.

Problems arise, however, when agencies set about overhauling the nonaccessible pages that have accumulated during the decade or so that they have had Web sites. "The magnitude of the effort is huge," said the Postal Service's Morgan. "And the time is short. We're down to less than three months" before the accessibility deadline.

For the Postal Service, that means digging out tens of thousands of nonaccessible documents buried in agency servers and making them accessible. "It's quite labor-intensive," he said. Some pages can be made accessible with a few quick fixes; others must be fully re-created. But "in some cases, the technology is not available to make things fully accessible," he said. Tables are often troublesome, "and we have difficulty with PDF documents," he said. Many PDF files are impossible for screen readers to read because they present text as graphic images, which are meaningless to screen readers, or arranged in columns that screen readers cannot follow.

Adobe Systems Inc., which developed PDF technology, has eliminated some of the problems with a new optical character reader, but the new reader still has trouble with multiple columns, multiple indents, bulleted items and other design elements, Morgan said.

Providing fully accessible Web pages is critical to USPS, which is turning increasingly to the Web to generate needed revenue. "There are 54 million people with some form of significant disability. That's a large potential customer base to leave out," Morgan said. USPS uses the Web to sell goods — ranging from stamps to T-shirts — and services, such as bill paying and mail tracking. But business motives aside, Morgan said, "it's the mission of the Postal Service to provide universal access." Web-based video and multimedia presentations are another challenging area for agency Webmasters, said Mike Walker, an accessibility specialist and procurement analyst for the National Institutes of Health.

"On average, we do 120 to 140 hours of Webcasting a month," Walker said. In addition, NIH posts numerous videos for public use on its Web sites. Under Section 508, such Webcasts must include captions; adding them will cost thousands of dollars per video, he said.

With 35 million pages on the Web, agency Web designers are taking Section 508's threat of lawsuits seriously.

"Last year, we heard about Webmasters who were going to take out liability insurance," said accessibility expert Wakefield. So far, however, "no one has that I know of."

Wakefield said the fear of lawsuits over noncompliant Web pages is probably exaggerated.

In the corporate world, however, some of the companies that sell office equipment and IT to the federal government are actively arming for battle, according to Rex Lint, chairman of the Information Technology Association of America's Section 508 committee.

"The proactive companies are getting themselves positioned to respond quickly" when the new rules take effect, he said. They will be looking for ways to use Section 508 regulations to "unseat established vendors and get themselves ensconced" as the preferred suppliers of electronic equipment and IT to government agencies.

"It's a new field for competition, so I think there are going to be a significant number of bid protests," Lint said. "That's the way a company can say, 'My stuff is better than their stuff.'"