News Feature

NCD #02-380
August 13, 2002
Contact: Mark S. Quigley
202-272-2004
202-272-2074 TTY
mquigley@ncd.gov

National Council on Disability Feature: People with Disabilities Need Assistive Technology

WASHINGTON-The National Council on Disability (NCD) released its 2001 annual National Disability Policy: A Progress Report, on July 26, 2002. The report addresses several important issues related to people with disabilities. This feature highlights a number of issues related to assistive technology and telecommunications, including access to both and the status of statutory and regulatory provisions designed to advance their utilization by people with disabilities.

The New Freedom Initiative and Assistive Technology
The President's "New Freedom Initiative" (NFI) places great emphasis on the development and deployment of assistive technology (AT). The focus includes major commitments to research through the National Institute on Disability and Rehabilitation Research (NIDRR), expansion of resources available for AT loans to individuals with disabilities under the Alternative Financing Program (AFP) of Title III of the Assistive Technology Act, and commitments to a number of innovative programs, such as the use of technology to develop home-based entrepreneurship and employment opportunities, and the importance of technology in the implementation of the Olmstead decision. NCD welcomes these initiatives and recommends that the Administration continue taking the steps needed to ensure their fulfillment, including: (a) coordination of efforts among agencies with overlapping jurisdiction; (b) ongoing provision of technical assistance to states and other partners; (c) temporary elimination of the state matching requirements for the AFP until states are on better fiscal footing; (d) clarification of applicable income tax rules and Social Security income and resources limitations to avoid possible disincentives to work; (e) NIDRR research that includes a focus on universal design; and, (f) a comprehensive study of the role the health care system should play in the provision, funding and development of AT.

Implementation of Section 508
Section 508 of the Rehabilitation Act of 1998 has been praised as the most far-reaching universal design statute ever enacted. This law requires federal agencies to adhere to the principles of "accessibility" to persons with disabilities in their purchase and use of electronic and information technology (E&IT). The law's purpose is to ensure that access to technology such as computers, photocopiers, audiovisual training materials, and Web sites is equal for federal employees and members of the public with and without disabilities. In those cases in which achievement of accessibility constitutes an undue burden, the agencies are not required to obtain accessible technology, but they are still required to develop alternative means for making information available to government employees or members of the public with disabilities.

Section 508 has been in effect since late June 2001. The principle implementation questions thus far relate to the lack of adequate compliance monitoring. While the U.S. Department of Justice (DOJ) has taken on biannual performance measurements, no monitoring procedures are in place to determine the frequency with which agencies invoke "undue burden" defense (or any other authorized exceptions) nor are there procedures in place for evaluating the soundness of such claims. NCD first recommended that this issue be addressed in its June 2001 report, The Accessible Future. NCD again recommends that the Administration institute procedures for collecting and tracking the undue burden claims. NCD also recommends that the Administration issue a Request for Information to agency Chief Information Officers and others, seeking comprehensive information on all problems arising with implementation of Section 508. And, finally, NCD recommends that information on implementation and compliance issues be included in DOJ's report to the President and Congress.

Technical Assistance and Outreach
NCD has recommended in the past that the U.S. General Services Administration ensure the creation of tools to measure accessibility and to evaluate vendor accessibility claims for all covered forms of E&IT. Evaluation tools are needed to determine accessibility standards, usability, and time required for accessing Web-based information, or the performance by persons with and without disabilities of interactive tasks on the Web. NCD recommends rigorous testing by federal agencies of devices under realistic and real-time conditions. Wherever possible, agencies should use the services of people with disabilities who are knowledgeable about the equipment to help conduct these tests.

Technology-Based Civil Rights
Section 508 confers a right for federal employees or members of the public to file a civil rights complaint or bring suit for its violation. The number and types of suits and complaints brought will provide important insight into how well Section 508 is working. NCD recommends that DOJ track such complaints in its biannual report. NCD also recommends that DOJ address how it intends to handle situations that could arise when it is both the holder of potentially damaging information about a federal agency's noncompliance and the defender of that agency in court.

Telecommuting
The NCD report makes no recommendations for AT and telecommuting, but it does point out that while Section 508 does not cover access to technology for private use away from federal facilities, when the employee's home becomes his or her place of work, necessary accommodations must be provided.

Distance Learning
In December, the National Web-based Education Commission conducted an investigation of the key issues around the use of the Internet for learning, including the necessity for ensuring that all learners have equal access to the capabilities of the Web. NCD recommends that the Administration review the report, formally indicate its views concerning its findings and recommendations, and act to incorporate the recommendations into policy.

The E-Rate
The "e-rate" program is designed to make Internet access and telecommunications services more affordable for schools and libraries by subsidizing the rate they pay for such services. While the question has not yet been addressed in court, the history and interpretations by DOJ and the Federal Acquisition Regulations Council (FARC) of related provisions lead to the conclusion that the e-rate program is covered by Section 508. However, no steps have been taken to ensure that this program is accessible. The NCD Report points out, "As long as people with disabilities pay the surcharges that fund the e-rate, it is unthinkable that they or their children should be denied its benefits."

Section 255
Section 255 of the Federal Communications Act requires that providers of telecommunications services (such as local and long distance phone companies) and manufacturers of telecommunications equipment and customer premises equipment must make their products and services accessible and usable by individuals with disabilities, where it is readily achievable to do so. The Report points out the need for more aggressive implementation of Section 255 regulatory requirements, including an indication by the Federal Communications Commission (FCC) about the future of the Market Monitoring Report (MMR). If the MMR is no longer considered to be a valuable information resource and appropriate tool in the enforcement of Section 255, FCC should indicate how it proposes to gather broad based compliance information in the future. If FCC believes this to be a viable tool, the publication of the report should be revived.

Telecommunications Versus Information Services
Because by law the term "telecommunications services" applies only to services that facilitate and carry voice communication, other information services such as e-mail and high-speed data transmission are not technically covered under Section 255. FCC has asserted the regulatory right to broaden the definition of covered telecommunications services, and has indeed created an "adjunct to basic services" category that applies Section 255 to all the features and functions necessary to complete calls. This includes calls used for e-mail, fax, data, and graphics transmission, in addition to activities around traditional voice calls. FCC has sought input from industry and the public regarding the need to even further broaden the scope of Section 255. NCD recommends that FCC act quickly to apply Section 255 to the additional information services that are now staples of the American information society. Additionally, NCD recommends that Congress take care to ensure that existing civil rights protections of Section 255 are not jeopardized when considering telecommunications deregulation legislation.

E-Government
E-government refers to citizen-government interactions through the use of E&IT. It has grown rapidly and is the modality of choice for carrying out a growing array of governmental functions. The NCD Report discusses the obvious challenges facing individuals with disabilities when e-government activities are not totally accessible to and usable by them. The issues become complicated when government partners with state, non-profit, or for-profit sector entities who should be expected to comply with civil rights laws, but for whom the law might not be clear. Because of the number of technical issues involved, the process of implementing e-civil rights must begin with DOJ and an assessment of the current scope of federal authority and responsibility. The NCD Report suggests that to the degree accessibility requirements are determined to be applicable to e-government partners, agencies should include appropriate notices and requirements in their regulations, bid solicitations, contracts, grants, etc.

The Intellectual Property and Civil Rights Conflict in Cyberspace
As early as 1931, statutory provisions were made for the transcription of books into braille by the Library of Congress for distribution through the nation's library system for persons who are blind and, more recently, who experience other reading disabilities. In 1996, the Copyright Act was amended to allow for the reproduction of all published books in specialized formats by a variety of nonprofit organizations. Safeguards are in place to protect the copyright holders from damaging the economic rights, including bans on distribution of the material for money. As we have moved into cyberspace recent legal struggles over accessibility of e-books has created new barriers to accessible books. NCD recommends that the Library of Congress make a determination regarding the means, if any, by which electronic publications provided in inaccessible formats can legally be made accessible to individuals with disabilities.

Wireless Access for Users of Hearing Aids
The Hearing Aid Compatibility Act of 1988 exempted mobile phones from hearing aid compatibility requirements applicable to other phones. The Act instructed the FCC to periodically review this exemption. FCC has issued a Notice of Proposed Rule Making (NPRM) which will signal the beginning of a full inquiry into the current potential for mobile phone compatibility with hearing aids. The NCD Report indicates the NPRM makes it possible for a FCC determination that the exemption is no longer warranted and for the establishment of a meaningful timetable for bringing cellular phones into full compliance with accessibility provisions for other telephones.

Assistive Technology Act Reauthorization
The Assistive Technology Act, providing for state-based assistive technology programs of advocacy, systems change, public awareness, and technical assistance, was scheduled to "sunset" at the end of FY 2001. Congress postponed the end through September 30, 2002, and must soon determine if it will continue the Act. NCD recommends that this Act be reauthorized, and points out the specific importance of continuing the protection and advocacy provisions in the law.

For more information, contact Mark Quigley or Martin Gould at 202-272-2004.

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Source: National Disability Policy: A Progress Report, December 2000-December 2001 Q://ncd/newsroom/publications/progressreport_07-26-02.html