Our colleagues Joshua A. Stein and Frank C. Morris, Jr., at Epstein Becker Green have a post on the Health Employment And Labor blog that will be of interest to many of our readers in the technology industry: “The U.S. Access-Board Releases Long-Awaited Final Accessible Medical Diagnostic Equipment Standards.”

Following is an excerpt:

As part of a flurry of activity in the final days of the Obama Administration, the U.S. the Architectural and Transportation Barriers Compliance Board (the “Access Board”) has finally announced the release of its Accessibility Standards for Medical Diagnostic Equipment (the “MDE Standards”). Published in the Federal Register on Monday, January 9, 2017, the MDE Standards are a set of design criteria intended to provide individuals with disabilities access to medical diagnostic equipment such as examination tables and chairs (including those used for dental or optical exams), weight scales, radiological equipment, mammography equipment and other equipment used by health professionals for diagnostic purposes. …

Read the full post here.

Earlier this month, in the waning moments of the Obama Administration, the U.S. Architectural and Transportation Barriers Compliance Board (the “Access Board”) took the long-anticipated step of requiring websites of federal government agencies to comply with the Web Content Accessibility Guidelines (“WCAG”) 2.0 Levels A and AA.  (The Access Board was established in 1973 to develop and maintain standards for accessible design in the built environment, transit vehicles and systems, telecommunications equipment and electronic and information technology.)

On Thursday, January 5, 2017, the Access Board announced the release of the long anticipated “Information and Communication Technology (“ITC”) Standards and Guidelines,” which update and combine the previously separate requirements of Section 508 of the Rehabilitation Act of 1973 (requiring federal agencies to make their electronic and information technology accessible to people with disabilities) and Section 255 of the Communications Act of 1934 (requiring telecommunication equipment manufacturers and service providers to make their products and services accessible to people with disabilities), into one rule.  The ITC Standards and Guidelines (also referred to as the “508 Refresh”) were officially released by the Access Board on Monday, January 9, 2017 and published in the Federal Register on January 18, 2017.

This final rule includes the following noteworthy changes from the previously published Notice of Proposed Rulemaking (“NPRM”):

  • Provides a “Safe Harbor” provision;
  • Incorporates the Web Content Accessibility Guidelines (“WCAG”) 2.0 Levels A and AA by reference;
  • Covers all types of public-facing content, as well as nine (9) categories of non-public-facing content that communicate agency official business; and
  • Extends the previously contemplated compliance dates.

Application

To Whom Do the ITC Standards and Guidelines Apply?

The Section 508-based ITC Standards apply only to Federal Agencies subject to Section 508 of the Rehabilitation Act of 1973 who develop, procure, maintain or use ITC and is intended to ensure Federal employees with disabilities have comparable access to, and use of, such information and data relative to other Federal employees unless doing so would impose an undue burden.

The Section 255-based guidelines apply to manufactures of telecommunication equipment and address the accessibility of newly released, upgraded, or substantially changed telecommunications equipment (as well as support documentation and services, including electronic documents and web-based product support) subject to Section 255 of the Communications Act of 1934.

Who Do the ITC Standards and Guidelines Not Apply To?

  • Private Businesses – including healthcare, retail, hospitality, financial services, etc.;
  • State and Local Government Agencies;
  • Public Schools;
  • Colleges; and
  • Non Profit Entities.

It should be noted, however, that when the DOJ publishes proposed website accessibility regulations applicable to the private sector, and consistent with the DOJ’s long standing position, website accessibility will very likely be defined as compliance with WCAG 2.0, levels A and AA, just as the Access Board has used these guidelines in the Section 508 Refresh.

Deadlines

On Tuesday, January 10, 2017 the Access Board held a briefing at their Washington, D.C. office to provide a top level overview of these new rules and to provide a public question and answer session.  During this meeting, the Access Board reinforced the following information:

  • The final rule was set to be “effective” 60 days from the date of publication in the Federal Register.  Therefore, as the final rule was published in the Federal Register on Wednesday, January 18, 2017, the “effective” date was set to be Sunday, March 19, 2017.  (It is worth noting on January 20, 2017, White House Chief of Staff Reince Priebus issued a memorandum from the White House to the heads of executive departments and agencies calling for a sixty (60) day postponement of the effective date of regulations that have been published in the Federal Registry but not yet taken effect.  Therefore, this date may yet be delayed.)
  • Notwithstanding that deadline:
    • Compliance with the Section 508-based Standards is not required until 12 months from the date of publication in the Federal Register.  Therefore, the anticipated date of compliance for the Section 508-based Standards will be Thursday, January 18, 2018; and
    • Compliance with the Section 255-based guidelines will not be required until the guidelines are adopted by the Federal Communications Commission.

On February 18, 2015, the U.S. Architectural and Transportation Barriers Compliance Board (the “Access Board”) announced the release of its Notice of Proposed Rule Making (“NPRM”), refreshing and revising the existing accessibility requirements under Section 508 of the Rehabilitation Act of 1973 (“508 Standards”) and Section 255 of the Communications Act of 1934 (the “255 Guidelines”), and merging them into a single rulemaking intended to support the accessibility of Information and Communications Technology (“ICT”) for individuals with disabilities in the federal sector.

Purpose

As noted in the NPRM, the main purpose of this effort is to replace the current product-based approach to ICT accessibility with a functionality–based approach that will appropriately address and keep pace with fundamental shifts, developments, and advancements in technology (e.g., the proliferation of devices with multifunctional capabilities such as smartphones; the increasing use of tablets and other touchscreens, etc.).  Additional goals of these changes include promoting consistency with regard to the accessibility of ICT and related products across the U.S., harmonization with international requirements, and voluntary consensus standards for accessible technology.

Section 508

The 508 Standards require federal agencies to ensure that individuals with disabilities – federal employees as well as members of the public – have comparable access to and use of electronic and information technologies, unless doing so would impose an undue burden.  The 508 Standards apply to ICT developed, procured, maintained, and used by federal agencies (e.g., websites, information kiosks and transaction machines, computers, telecommunication equipment, multifunctional office equipment, etc.) unless limited exceptions or defenses apply.  Under Section 508, it is the responsibility of each agency to establish policies and procedures describing how each will comply with the standards, including those for making undue burden and fundamental alteration determinations.

Section 255

The 255 Guidelines require manufacturers of telecommunication equipment and customer premises equipment to ensure new and substantially upgraded existing equipment is accessible to, and usable by, individuals with disabilities when readily achievable.  The 255 Guidelines are enforced solely by the FCC.

Major Changes Noted in the NPRM

In its NPRM, the Access Board proposes the following major changes to the 508 Standards and the 255 Guidelines:

  1. Incorporating the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”) at Levels A and AA by reference to govern both web and non-web electronic content (g., government internet sites, government intranet sites, word processing documents, PDF documents, project management software, etc.);
  2. Clarifying that the requirements apply both to all public-facing content (g., agency websites, documents and media, blog posts, social media sites, etc.) and also to certain internal, non-public, electronic content.  Specifically, that considered “official business” of a given agency as well as eight (8) categories of non-public communications:
    1. emergency notifications;
    2. initial or final decisions adjudicating administrative claims or proceedings;
    3. internal or external program or policy announcements;
    4. notices of benefits, program eligibility, employment opportunities or personnel actions;
    5. formal acknowledgements or receipts;
    6. questionnaires or surveys;
    7. templates or forms; and
    8. educational or training materials.
  3. Requiring Real Time Text (“RTT”) functionality (texting which occurs in near-real time as each character is typed) for products providing real-time, two-way, voice communication;
  4. Providing more specificity regarding how hardware and software should interact with assistive technology; and
  5. Updating functional performance criteria that address barriers to using ICT by individuals with certain disabilities which apply in two specific circumstances: (i) when there is a gap between a technology and the technical requirements set forth in the refresh; and (ii) when evaluating equivalent facilitation.

Potential Impact Beyond Federal Agencies

It is important to note that while the ICT Standards and Guidelines apply directly to federal agencies, the NPRM requires each federal agency to procure accessible ICT products.  Therefore, in order for a federal agency to award a government contract, bidding contractors are required to provide ICT that complies with the 508 Standards and the 255 Guidelines (unless the ICT acquired by a contractor is incidental to a contract or another limited exception or defense applies).

Notice and Comment Period

Once officially published in the Federal Register, these proposed rules will be open for public comment for a 90 day period.  (If the anticipated publication date of February 27, 2015 holds true, the public comment period will end on Thursday, May 28, 2015).  The public comment period will include two public hearings, the first to be held in San Diego, C.A. on March 5, 2015 and the second to be held in Washington, D.C. on March 11, 2015.  Additional information regarding the submission of comments to the NPRM can be found at the Federal Rulemaking Portal: http://www.regulations.gov/.

Looking Ahead to the Private Sector

While this NPRM may only directly apply to certain sections of the private sector, the U.S. Department of Justice (“DOJ”) is concurrently drafting its own NPRM which would promulgate revised regulations for Title III of the Americans with Disabilities Act (“ADA”) requiring places of public accommodations to make the goods, services, facilities, privileges, accommodations, or advantages they offer via the Internet, specifically on websites, accessible to individuals with disabilities.  The content of the Access Board’s ICT NPRM likely provides an indication of where key aspects of DOJ’s NPRM for website accessibility are heading.  Based upon recent information, most expect DOJ’s NPRM to be released in advance of the 25th anniversary of the ADA (July 26, 2015).

For additional information, please contact Joshua Stein (jstein@ebglaw.com).