Minority Report
National Association of State Chief Information Officers
Association of Assistive Technology Act Programs
April 2008

While Section 508 does not apply directly to states, the majority of states have some form of electronic and information technology (E&IT) access mandate in place.  At least twenty states have statutes in place and many others have executive orders or policies that require E&IT access.  Some are limited to web accessibility and others comprehensively apply to all E&IT procurement and development.  The application of these laws/policies typically includes state agengies and may also include institututions of higher education, local school districts and local governments, and even all entities who receive state funding.  Some state laws/policies directly adpot 508 standards as state requirements and others allow for adaptations.  As a result, the content of any revised Section 508 standards will have a significant impact on states.

While the timing of this report did not allow for a complete review of and specific comments to be provided on the proposed standards, we would like to express the following general concerns and make the following general recommendations.  We do plan to follow-up this report with a more detailed review and specific recommendations.

1.  Organization and Structure of Technical Standards

States continue to have serious concerns that the complex structure and organization of the proposed Technical Standards will make implementation excessively difficult and error-prone.  While we understand the merging of technolgies and the rationale for the proposed structure, from a IT procurement and development perspective the structure will require an incredible investment of resources to adequately and appropriately implement.  States are concerned this complex and overwhelming structure could move states away from engaging in IT access activities and could encourage states to discontinue harmonization with the federal 508 standards.  

In particular, states find it extremely difficult to identify which provisions apply to which procurement scenarios.  Neither the structure or individual standards are sufficient in identifying the scope of application for each.  For states trying to apply this structure to known bids and/or development projects, it was agreed that an interface would have to be developed to assist both procurement officers and vendors understand which standards applied to the bid or internal development project.  However, before such an interface could even be developed, additional information would be needed to clarify the scope of application for many of the sections.  This will require a significant investment of resources and since there is no entity responsible for development of such an interface for states and universities, the quality and content of each will be different across state level entities. 

In addition, the current structure does not adequately address the complex interaction between platform, user agent, and content.  The standards as currently written will likely result in volumes of standards included in RFPs with vendors responding with duplicative answers, or indicating that standards are not applicable because the browser or platform addresses the standard, and reviewing officials are left with unmanageable tasks in rating. 

While we understand the desire to generalize the requirements across technologies, we feel that this has not been achieved, and the resulting hybrid approach is nearly unusable.  Unless significant improvement can be made toward true generalization, we would recommend returning to a technology-specific organization that makes it clear which sections apply to which technologies.  We also recommend a review and reorganization or tagging of the Electronic Content Section to present requirements according to applicability, e.g. applies to all software, operating systems/platform software, application software, and/or web pages and electronic content.  And last, we note that the intermingling of direct accessibility and AT-compatibility requirements make understanding and application of the standards difficult.  We would recommend grouping or tagging the AT-compatibility requirements and clarifying their role as a means of achieving the accessibility required.

2.  Volume, Complexity and Level of Access Required by Technical Standards

Overall, the volume of standards proposed is problematic.  Since IT accessibility laws are “unfunded mandates” in states, increasing the sheer volume of standards to this level will raise significant concerns within state government about the resources necessary to continue IT accessibility initiatives and in particular harmonization with the federal 508 standards.  For example, a current telecommunications procurement would typically include the 11 telecommunications technical standards.  Using the new structure, 57 standards would be included in that procurement. 

The complexity of the standards has also increased dramatically.  The existing rules include 12 definitions.  There are 58 proposed definitions, many of which are highly technical and complex – far beyond the understanding of procurement officers or others attempting to implement the requirements.  Based on experience implementing the current standards, many of those have been misunderstood, erroneously interpreted and applied inappropriately and they are much less complex than most of the proposed standards.  For many states, this level of complexity will make shifting verification of E&IT accessibility to vendor assurances an attractive (and perhaps the only feasible) option for implementing an accessibility requirement.

In addition, the level of accessibility required by some of the standards has been set so high that it will result in extremely low compliance.  When a standard is set at an unreachable level, those implementing tend to disregard the standard since they know even with their best efforts they will not attain anything close to compliance.  As a result, standards set too high do more harm than good, either by completely consuming available resources and still not meeting the standard or by establishing a precedent to disregard the standard, as it cannot be met anyway.  Either ultimately undermines efforts to increase accessibility by discouraging incremental improvement. 

States strongly suggest consideration of a priority approach so that a smaller set of standards could be identified as a first priority level, with an expectation of substantial or complete conformance for those priority standards.  This would help address both the volume of standards concern and the level set by some of the standards and would be a more effective mechanism for stimulating an increase in accessibility over time. 

3.  Performance Criteria

There is much controversy surrounding the role and function of the functional performance criteria (FPC).  States utilize the FPC is a variety of ways, but none place the FPC at the same “level” as the technical standards as related to procurement decision making.  Most consider the FPC to be overall goals that the technical requirements are intended to achieve and utilize them as a means of evaluating functional equivalence when the technical requirements cannot be applied. 

The FPC are extremely subjective and conformance is very difficult to judge based on vendor provided information.  For many products, conformance is heavily dependent on AT compatibility and can be influenced by version changes in AT outside of the product’s control.  Accurately verifying conformance with statistically valid usability results could require

  • hands-on direct evaluation of products with a wide variety of AT,
  • development of reliable, valid testing protocols for product evaluations, and/or
  • availability of a cadre of cross-disability experts to conduct such evaluations.

Even if these scarce resources were mobilized and accurate verification of conformance was available, basing purchasing decisions on FPC conformance is fraught with danger.  Since each FPC delivers usability to a different disability constituency, basing a purchasing decision on conformance to individual FPC pits the needs of one disability group against another.  As a result it is only possible to use the FPC in a rather global way in procurement decision-making.  For all these reasons, states are not supportive of elevating the role of the FPC to something equal to the weight of the technical standards.

4.  Harmonize with W3C

States strongly support harmonization of the 508 technical standards with the W3C standards to the maximum extent possible.  It is frustrating to states to consider the possibility of again attempting to harmonize their own standards with two sets of existing standards that are not harmonized.  We would recommend a clear identification of where harmonization with WCAG at the single-A level has occurred and where it has not in the final standards (similar to the current comparison provided) with rationale for the divergence.