"National Policy - Does it Go Far Enough?"
Presentation by Carol Novak
National Council on Disability
State of Technology Conference
Atlanta, Georgia

May 12, 2004

Good morning. My name is Carol Novak. I am a Board Member on the National Council on Disability (NCD). Thank you for inviting NCD to be here today. NCD is an independent federal agency making recommendations to the President and Congress on issues affecting 54 million Americans with disabilities. NCD is composed of 15 members appointed by the President and confirmed by the U.S. Senate. NCD is charged by Congress with monitoring federal statutes and programs pertaining to people with disabilities, and assessing the effectiveness of those programs in meeting the needs of people with disabilities. As part of its mission, NCD provides a voice in the Federal Government and to Congress for all people with disabilities in the development of policies and delivery of programs that affect their lives.

I've been asked to talk about national disability policy, specifically with respect to technology issues. The Council has a body of work that has spoken to this issue, most recently in "The Accessible Future" report, which makes the case that access to electronic and information technology (E&IT) is a civil right.

As you know, Section 508 of the Rehabilitation Act and Section 255 of the Telecommunications Act are the two major pieces of national legislation that impact the accessibility of technology. Section 508 was amended substantially in 1998 and now represents the most far-reaching source of legal authority for accessible E&IT- a term it introduced into this field. The law requires most federal agencies to "procure, develop, maintain, and use" only accessible E&IT for their own use or for use by the public. The statute differs from conventional civil rights laws in imposing on federal agencies affirmative obligations that must be met well in advance of the occurrence of any discriminatory impact upon an individual with a disability. Section 508 is unique in representing the most sophisticated model to date of a civil rights law that closely integrates accessible design and enforcement strategies. This law is basically an accessible design statute in that it mandates actions that will end up being far more costly or impossible to achieve if accessibility is not incorporated into product design. This mandate is combined with strong and clear enforcement by creating a civil rights remedy for its violation.

While Section 508 is revolutionary in the history of E&IT accessibility, there is nothing in the Federal Government's implementation of 508 that suggests the degree of foresight or the level of centralized decision-making required to make the law's accessibility policy consistently effective. There are indications that Federal procurement officials are inconsistent in their application of Section 508 and that minimal conformance is sometimes enough to satisfy the requirements. Every federal agency entering into contracts with outside entities should bear in mind that the contracting process affords a valuable opportunity to remind their partners of the E&IT-accessibility obligations under federal law. There is a widespread sense that federal agencies have not exercised their authority to use the contracting and funding processes as a means for leveraging heightened E&IT accessibility. More generally, implementation of the E&IT access potential of all the civil rights statutes is compromised by the apparent inability of the federal government to develop a consistent approach to how the contract and funding processes should be used to advance information access rights of people with disabilities.

Section 255 of the Telecommunications Act requires manufacturers of telecommunications and customer premises equipment and vendors of telecommunications services to make their products and services "accessible to" and "usable by" individuals with disabilities, if it is "readily achievable" to do so. If such accessibility and usability are not readily achievable, then the equipment and services must be compatible with assistive technology commonly used by individuals with disabilities, again, if readily achievable. One major limitation of Section 255 concerns the scope of telecommunications functions and services covered. Not every function or service that is performed or received through the telephone network is covered by Section 255.

There are important tools already in place to assist us with achieving accessible wireless technology and we need to continue to assess progress and enable the fidelity of implementation with the appropriate resource support. As federal agencies learn from their implementation experiences, they should refine their training, outreach and compliance monitoring efforts. It has been clearly demonstrated that these objectives cannot be solely achieved by legislative means; there must be a dynamic and continuing collaboration among the federal government, industry and consumers. GSA's efforts with Section 508 illustrate how this partnership can be successfully initiated. The IDEAS conference, held every year, expands on the network of public and private sector partners working together to improve accessibility and opportunity for Americans with disabilities.

NCD is also looking at marketplace forces that could help drive more accessible wireless technology. Recognizing the enormous role that electronic and information technology can play in the lives of people with disabilities, the National Council on Disability has undertaken a study of the universal design of E&IT to determine whether universal design elements can be successfully incorporated into current technology products. NCD's final report will analyze the market for universally designed products and services, document successful universal design development processes, document consumer needs, analyze universal design facilitators and barriers, and identify and address current issues in universal design. The final report will analyze industry trends toward accommodating universal design principles, and make recommendations for universal design methodologies that can be successfully implemented without greatly increasing costs or changing established design and manufacturing processes. When completed this Fall, this research should contribute significantly to the policy discussion, and to the practical ability of industry and consumers to respond to the opportunities created by accessible design. Brad Fain, here at Georgia Tech, is the principal investigator for NCD's Universal Design study. He, and Georgia Tech, are doing an incredible job of developing this research for us.

NCD has also addressed Assistive Technology issues through its latest Progress Report (National Disability Policy: A Progress Report, July 26, 2003) and in its report "Federal Barriers to Assistive Technology" as well as "The Accessible Future." These reports are available on our website at www.ncd.gov.

Since the unveiling of President Bush's New Freedom Initiative, Administration proposals in the area of disability services and policies have included a number of programs with important assistive technology components. This attention to AT reflects a growing awareness among policymakers that technology is central to the efficacy of many programs. Yet inevitably, addressing the issues of technology on a program-by-program, statute-by-statute basis is bound to result in inconsistencies, gaps and unintended barriers to the kind of coordination so necessary for far-reaching policy initiatives such as the NFI to achieve their goals. Despite concerted efforts to attain greater coordination among federal agencies and programs, persistent barriers remain to the efforts of people with disabilities to obtain, use and benefit from assistive technology.

The convergence of technology, attitudes, demographics, and law has created unprecedented opportunities for eliminating one of the most significant circumstances of inequality in our society. Although the precise details and the most appropriate allocation of costs and benefits are not clear in all cases, the value and wisdom of making E&IT accessible for all can hardly be disputed.