Vendor Section 508 Compliance Self-Certification: A Questionable Practice
By Debra Ruh
In August 1998, the President signed into law the Workplace Investment Act, which included the Rehabilitation Act Amendments of 1998. The key provision of this amended statute is Section 508. Section 508 requires that when Federal agencies develop, procure, maintain, or use electronic and information technology, they shall ensure that Federal employees, as well as members of the public, with disabilities have access to and use of information and data that is comparable to the access to and use of the information and data by individuals without disabilities. That is to say, Section 508 was enacted to eliminate accessibility barriers in information technology, to make available new opportunities for people with disabilities and to encourage the development of technologies to help achieve these goals.
The Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) of 1990, in essence, made it illegal for organizations to engage in certain discriminatory practices against people with disabilities. Lawmakers, however, when they crafted these laws, did not anticipate the Internet’s tremendous growth and importance as an informational resource. Thus, in drafting the Workforce Investment Act of 1998, Congress added Section 508 to an outdated law and gave it meaningful compliance teeth to function effectively in the age of the Internet super highway. As summarized above, these new provisions, which became effective on June 21, 2001, also give citizens with disabilities and government employees the right to file administrative complaints and seek limited damages in Federal Court against Agencies for noncompliance.
This article focuses upon the critical issue of compliance certification. For a vendor, servicing Federal agencies with electronic and information technology (“EIT”), there are several routes available leading to such certification. There are also a number of additional compliance issues flowing from this new law. One prominent issue distinguishes between legal compliance and functional accessibility. I will attempt to address these issues from several perspectives: that of the statutory law and regulations, the general public and the community of disabled persons.
Section 508’s Impact On Vendors: The Need For Compliance Certification
Following passage of this landmark statute, the Architectural And Transportation Barriers Compliance Board (the “Access Board”) was assigned the task of promulgating necessary regulations in order to implement these Section 508 compliance requirements. On December 21, 2000, following the required period for notice and comment, a Final Rule was published in the Federal Register. These official rules set forth an integrated scheme of technical design requirements and functional, performance standards. With certain very limited exceptions, compliance with its terms is mandatory.
It is therefore incumbent upon those covered under Section 508, to demonstrate that their products and services abide by these accessibility standards. These statutory requirements answer the primary question of “why” certify for compliance. Before tackling the next issue, the “hows” of certification, however, it would be appropriate to address a couple of confusing certification issues.
Question. What if full, technical compliance for your product is unattainable at present? There is a common misconception that Federal agencies cannot purchase products or services from suppliers that are not wholly compliant with Section 508. This interpretation is, in fact, incorrect. Federal agencies are permitted to procure certain products or services that are not in full compliance under defined circumstances. The most important exemption applies where there exists “an undue burden”. An “undue burden” would exist, for example, if full compliance would pose a “significant difficulty or expense” or make the product non-functional. In addition, there is a limited exception where the “commercial marketplace” does not have the technology to bring products into compliance at present. These terms are discussed in more detail in the preamble to the Section 508 regulations, which reference several additional laws. The government contractor, however, still must demonstrate the maximum level of compliance possible through alternative means.
In addition, regardless of whether an undue burden or marketplace non-unavailability can be documented, functional accessibility is still mandatory. Without going into any detail here, this can be achieved by what is defined as “alternative”, “equivalent” technology. Also, of considerable importance to a government vendor, when a federal agency evaluates products for purchase, if two products are similar but one is more compliant than the other, the law dictates, “the agency must procure the product that best meets the [compliance] standards”.
How Can Vendors Attain Section 508 Compliance?
Basically, statutory compliance can be “certified” by a competent, independent third party or it can be “self-certified” by the vendor. How is this accomplished? First, as a practical matter, a vendors products and services are not generally brought into compliance all at once. Compliance involves a multi-phase process. In most cases, assessment and testing are completed first, and then a recommendation is developed for each product. The recommendation includes an action plan designed to drive each product to full compliance. The action plan should include a number a critical components: testing, assessment and training, marketing and engineering strategies.
As a consequence of the passage of Section 508, many Federal contractors currently find themselves challenged with the task of understanding how this new law affects them and their products. One of their more pressing, immediate concerns has been that of compliance certification. Some companies have elected to self-certify their products as being Section 508 compliant; while others have yet to address the issue as required by the law. The preferred - and most prudent -- route is to seek guidance and certification from an objective, independent organization. Why? Clearly, such an outside “seal of approval” is most compatible with public confidence. In addition, an objective, third party evaluation can help deter legal problems.
Private companies cannot be sued directly under Section 508. Indeed, Section 508 does not require private companies to comply with its accessibility mandates. Only Federal government agencies are directly accountable for complying with this law. Thus, a vendor might well ask: Are there legitimate, practical reasons for not making some or all of your products Section 508 compliant or accessible? Perhaps.
Is non-compliance really an option for a current government vendor? I think not. Accessibility compliance is here for the long term. While vendors must make prudent business decisions for their companies, it would be erroneous to conclude that accessibility only impacts their contracts with U.S. government agencies. Increasingly, State agencies here in the US, as well as nations around the world are becoming committed to EIT accessibility - either by law or by choice. Also to be considered is that many companies in the private sector, needing EIT products and services, have come to recognize that the community of disabled persons is a viable economic force with significant amounts of disposable income. Such leading companies are beginning to demand accessible products and services. Those providing EIT products and services to such companies, literally, cannot afford to ignore this reality.
I should also make note that accessibility is more than just a legal or economic issue. Important as those issues may be, the accessibility “rights” of people with disabilities have become a virtual “civil rights” issue. Predictably, laws and regulations and programs catering to the legitimate needs of people with disabilities will become more pervasive. Moreover, as accessibility becomes more “mainstream”, assistive devices and technology will come to be relied upon by the non-disabled. For example, years ago localities started cutting portions of curbs out of sidewalks to provide accessibility to persons using wheel chairs. Today, this “accessibility” benefits a far greater population: skateboarders, baby carriages, streetcart vendors and bicyclists. When a product or service is made accessible it becomes more usable for everyone. This, increasingly, has become the case with assistive technology as well, particularly within the field of telecommunications.
Thus, Corporate America has come to realize that there are social and economic incentives - not just legal compliance requirements -- to focus its EIT attention on issues of real accessibility and usability and not merely legal compliance. The law may simply require technical compliance; but the marketplace will demand functional accessibility. Frankly, I believe that everyone will be compliant in a few years, but those companies that are first to make their services and products more accessible and usable and “friendly” to people with disabilities will be the clear economic winners in an expanding and evolving EIT marketplace.
Potential Problems with Self-Certification
From the vendors’ perspective, it is useful to regard certification as both a legal issue and a public relations issue. It is one thing to inform the public that ones’ products and services are legally compliant. It is another issue entirely for this to be done in a way that produces public confidence in the accessibility of these products.
My recent experience has exposed a number of potential problems in addressing these dual certification issues. For example, some vendors have gone public with glowing claims, self-certifying the accessibility of their products. Yet, these vendors have refused to allow any qualified, outside party to review their products and services to verify these compliance claims. Why deny access? Why expose yourself to criticism and open the door for your competitors to raise legitimate questions about the authenticity of these self-serving assertions? I believe that, at the very least, this is a shortsighted practice.
I have also become familiar with companies, after publicly self-certifying the accessibility of their products, coming up considerably short when users with disabilities tested these products. For example, one product with which I am familiar did in fact provide accessibility for the blind and visually impaired; however these products proved to be inaccessible to the mobility-impaired. Additionally, the accessibility of this vendor’s website had not been addressed at all. Since the product had to be launched from the website, it remained effectively inaccessible to the visually impaired, blind and mobility-impaired population. Website accessibility is required under Section 508.
These illustrations bring to light some of the problems associated with vendor self-certification. An objective, outside evaluation would have detected these issues at the outset. Thus, while it certainly is possible for a vendor to be qualified to self certify; this practice can lead both to public confidence issues and questions involving verification.
Let me address one additional, sensitive issue. A vendor might be tempted to make misleading or erroneous claims to gain a short-term advantage over its competitors. It is more likely that “honest” mistakes could be made during the self-certification process. Certainly, the vendor could correct these “errors” eventually; but by then the damage would be done. Before the government or anyone else is likely to discover these inaccuracies, the company could secure multiple government contracts worth millions of dollars. But they could be the loser in the long run! These “mistakes” could lead to very costly litigation for the government and the vendor. While a disabled end user cannot sue a private company directly under Section 508, the wronged government agency certainly could sue for breach of contract, fraud or misrepresentation. Furthermore, there would be adverse public exposure for the guilty vendor. This vendor would instantly become “persona non grata” within the government contracting community. Is this a risk worth taking? I certainly do not think that it is. So why open yourself up, unnecessarily, to such avoidable problems?
In addition, it is estimated that the community of disabled persons has access to about $740 billion in discretionary income (1). This is the largest single demographic minority in the United States, constituting a pool of about 27 million people of working age with disabilities; a mere 29 percent of whom are currently employed (2). It is a larger group than the teenage market. It is also a minority group that people can become a member of at different times in their lives. Additionally, since we are an aging population, these numbers will continue to grow. It would seem most unwise to risk alienating this population with questionable claims as to compliance.
There is one more issue that needs to be addressed. When companies publicize accessibility and compliance, they must be able to document and defend their assertions. As noted earlier, if your product or information is not in compliance and accessible to people with disabilities, you could be facing an ADA complaint or a lawsuit! Independent, third party certification can help protect a company from such unwanted consequences and help provide an effective litigation defense.
Independent Testing And Verification
For all of these reasons and others as well, there is an increasing preference, within the EIT industry, to take the prudent route of independently testing and evaluating products and services for their compatibility with Section 508 accessibility requirements. Consulting with and testing by such disinterested parties can help ensure that when a product is marketed as Section 508 compliant and accessible, that this truly is the case.
Certainly in the eyes of the public, it is always preferable to have an independent, objective, outside expert providing such certification and testing. That has been demonstrated, for example, by public reliance upon such notable testing and certifying entities as Underwriters Labs - in the consumer products safety sector. They provide an objective "seal of approval" which the public has identified as being a mark of good workmanship, safety and compliance.
Regardless of whether accessibility features and technology are developed internally or through an outside consultant, I would submit that testing ought to be performed by a credible third party. No matter how confident you may be about your compliance, it is prudent to have this verified by an objective source.
Why? An independent test provides an objective evaluation of a company’s product that is designed to withstand scrutiny by competitors and the public. It also provides an unbiased mechanism for establishing credible benchmarks and a framework of analysis acceptable to skeptical government agency officials who must rely upon the results of this testing. It only makes for those reviewing contract bids to feel more confident when compliance is certified by a neutral source.
Indeed, I believe that the client government agency should require that the company submitting the RFP or RFQ obtain the services of a mutually agreed upon testing consultant and pay the costs of verification. This “seal of approval” represents a credible means of satisfying the government agency’s legitimate concerns about statutory compliance. It also helps address the government agency’s potential exposure to suits brought by employees of the agency or from members of the public with disabilities. If I am a government agency’s contracting officer, I want to be assured that the fox is not certifying the security of the chicken house. From the government’s perspective, this is simply a matter of exercising sound due diligence and assuring the integrity of the procurement process.
Furthermore, in selecting a third party verification expert, I believe that it is sensible to consider whether the testing firm employs persons with disabilities to help test the product or service. People with disabilities live the challenges that Section 508 addresses. Such people are not simply following guidelines and using their best, scientific judgement as to whether the websites, software, products and training programs are accessible. Technically qualified individuals who live with the various disabilities targeted by Section 508 can provide a reality check as to whether the EIT product or service is truly accessible. This lends considerable credibility to the verification process.
Furthermore, to effectively test for accessibility, it is necessary to simulate the actual user environment and working conditions. Thus, a testing consultant that employs the disabled is better positioned to do this realistically. Based upon the test results, recommended strategies for accessibility implementation should be documented, discussed with and provided to the vendor and reviewed, where applicable, by the government agency.
My company, TecAccess, is but one of an ever-expanding number of technology firms specializing in EIT accessibility testing and assessment. Another similar entity, The Accessibility Group (TAG), is in the process of establishing a nationwide network of accessibility testing and reporting laboratory facilities. These labs will be working with industry, researchers, and consumers to develop a long awaited set of objective standards to evaluate, in quantifiable terms, Section 508 compliance efforts. Once completed, these standards will provide industry and government effective tools to measure compliance and accessibility. David Bolnick, Ph.D. of The Accessibility Group recently issued the following statement:
“The success of Section 508 of the Rehabilitation Act is, in part, dependent upon voluntary, independent accessibility assessments carried out by recognized experts in the design and development of accessible technology.
“Any organization involved in third-party, independent accessibility assessment should both employ persons with disabilities and maintain an active advisory council representing a cross-section of people with disabilities. From voluntary independent assessments, industry will gain insight upon which to guide its research and development of accessible …EIT. Furthermore, expert accessibility assessments will provide government the needed information and expectations to compare and contrast the accessibility of EIT products; thus, helping it to meet its Section 508 market research obligation.” (3)
Aligning with Groups that Support People with Disabilities
One useful suggestion for a company to gain greater insight into the practical requirements for meeting Section 508 compliance and accessible standards is to work with some of the organizations that serve the disabled. There are many such national and international organizations. The World Association of Persons with disAbilities (WAPD) is one example of a non-profit, non-political organization that represents many millions of people with disabilities. Though the use of accessible technology, these people either presently are or soon will be connected to the World Wide Web and using other EIT products and services. Private industry simply cannot afford to overlook this large, affluent demographic population. Thus, partnering with these organizations can be mutually beneficial.
According to Dr. George Kerford, Chairman of WAPD: "We are always willing to work with any company that is trying to do the right thing for the community of persons with disabilities. We are willing to partner and support any initiative that will benefit our audience. We all need to work together to assure that Section 508 legislation is successfully implemented. Additionally, we let our members know about companies trying to make socially conscious decisions regarding the community of persons with disabilities.
Case Study: Thomson - NETg
A good illustration of the thought process that goes into making Section 508 compliance decisions can be gleaned from the words and actions of one such participant. The following excerpts are taken from a recent statement made by Kenneth Grisham, VP of Product Development at Thomson - NETg:
“As with any other law, Section 508 regulations are both complex and subject to broad interpretation. It is naïve on the part of companies to believe that they alone can simply read the law, interpret it themselves and take action regarding their products and services in order to make them compliant with Section 508, or further still, fully accessible to individuals with disabilities.
“We know for a fact that the specifications for approval/rejection of compliance can lie with individual procurement managers across all government agencies. This itself makes for a wide variation in interpretation.
“Depending on the nature of a company’s products or services, investments to re-tool entire product lines can be very costly and are often directly proportional to the size of the portfolio of a company’s offering. In their haste to hurry to market, some companies are rushing to a “quick fix” solution to make their products compliant, making their “best guess” at what compliance really means. Now imagine if that same company makes a large investment in re-tooling, only to find out that they’ve done it WRONG and are faced with the prospect of having to it over again. In some cases, they may not even be in a position to afford to make the investment a second (or third) time. ‘Speed to market’ has no value if you’ve done it incorrectly. Flawed interpretation of compliance regulations by self-proclaimed internal experts can (and will in many cases) undoubtedly have those consequences.
“Unless companies already have a specialist or practitioner within their organization who truly understands the Section 508 regulations, the risks of self-interpretation (and subsequent claims of self-certification) are very high. Thomson - NETg is concerned that other organizations in the learning software marketplace have taken a cavalier attitude to the self-proclamation of Section 508 certification. Unquestionably, Thomson - NETg will move quickly in this space, but we are adamant about coming to market with the ‘right’ solution, not just a ‘quick’ solution.
“Knowing these potential risks, Thomson - NETg also conducted various research development projects in order to identify where proposed solutions did / did not work. Additionally, Thomson - NETg wanted to ensure that we are truly meeting the needs of the disability community, not just trying to “do the minimum” to meet regulatory requirements. Without that research, Thomson - NETg would very likely have arrived at conclusions about Section 508 compliance that would have been inaccurate. Realizing the potential risks in this arena and the size of the investment required to re-tool all of our product lines, Thomson - NETg has chosen to seek out experts in the accessibility marketplace for collaboration on Section 508 compliance. In our case, our partnership with TecAccess continues to yield critical valuable insight into the entire Section 508 compliance and accessibility marketplace…. insight that we simply could NOT have been achieved independently within any reasonable timeframes and costs. Additionally, their technical expertise has given us the necessary focus to address our specific product-related technology issues in a way that will ensure we achieve our compliancy goals. Our partnership with TecAccess is the cornerstone of our Section 508 compliancy and overall accessibility strategy. This will be integral to our success in this marketplace by enabling us to create products and services that, above all else, truly meet the needs of training for individuals with disabilities.”
The road to Section 508 compliance is yet to be fully mapped. The road will be bumpy and, predictably, will confront us with numerous unforeseen hazards and obstacles. Unfortunately, there is no Section 508 regulatory equivalent to MapQuest. We may know where we are and the direction we desire to head; but, at present, we don’t even know our final destination. Indeed, because of the nature of and the dynamic expansiveness of EIT products and services, the very concept of a “final destination” in this field may be illusory. The road simply will continue before us, taking us in new directions, creating new challenges. As suggested by the words of Mr. Grisham quoted above, however, the one certainty is that there will be no quick and easy shortcuts. Indeed, the quest for shortcuts is a sure path for failure.
The EIT accessibility needs of persons with disabilities pose a daunting and demanding challenge for all of us engaged in this new regulatory arena. These challenges are not only here to stay; they clearly are destined to become ever more demanding as the technology revolution presses ever onward. Only a long-term commitment to creativity and innovation can assist us in this endeavor. In such an uncharted world, electing to take the “self-certification” shortcut is a course I could not in good faith recommend. Rather, selecting a competent partner to help you steer through this hazardous topography seems to me to be a far more sensible navigation tool.
(1) Recent data from a 12/99 Wall Street Journal reports a one trillion $$ market projected for the early 2001-2003 millennium years!
(2) Data is based on a survey separate from
the 2000 US Census Bureau.
(3) The Accessibility Group (TAG) is a non-profit organization dedicated to the proposition that all electronic and information technology (EIT) should be accessible to and useable by people with the full range of abilities and disabilities.
Debra Ruh is the co-founder and CEO of TecAccess (<www.tecaccess.net>). TecAccess is a dynamic software development, testing, training and consulting company specializing in IT Accessibility and Section 508 compliance solutions. Over 75% of TecAccess’ staff are persons with disabilities. Debra can be contacted at firstname.lastname@example.org or (804) 749-8646.
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