Section 508 Update
Fahrenheit 508: Why Current Federal Tech Access Policy is in Ashes
(Editor's note: In this piece, AFB Public Policy Director reviews a recent Justice Department report assessing implementation of Section 508, critiques its stark findings, and recommends next steps.)
Advocates have been boiling for years over the federal government's at best deliberate indifference to compliance with the section 508 requirement of the Rehabilitation Act, which states that electronic and information technology (E&IT) procured, developed, maintained, or used by federal agencies be accessible to people with disabilities. Frustrated federal employees with disabilities consistently report inability to use software and hardware that should be accessible to them but isn't, resulting in lost productivity and promotion. Even the US Department of Justice (DOJ), the federal agency merely charged with regularly reporting on the status of 508 implementation, has thoroughly neglected this responsibility since the 508 obligations took hold in 2001. Nevertheless, to, in part, commemorate the twentieth anniversary of the signing of the Americans with Disabilities Act, in summer 2010 the Obama administration repeatedly voiced its commitment to embark on 508 strategic planning and to move the DOJ off the dime on reporting on 508 compliance. More than two years later and with the 508 strategic plan in tatters, we've finally seen the DOJ 508 report, and the results are startlingly predictable.
If you want to see for yourself each of the myriad statistics that the DOJ report describes, you're welcome to invest the considerable time it takes to slog through the report in its entirety at the DOJ webpage for the official Section 508 report. However, let me sum it up for you here. The first ideas to get out of your head are all the things the DOJ report is not. It is not an assessment of the real world experience of federal employees and members of the public with disabilities. It does not even assess whether the E&IT that federal agencies have deployed is, in fact, actually accessible in accordance with the law. The DOJ report is nothing more than a summary of a survey of federal bureaucrats, who may or may not be in positions of 508-relevant authority or who may or may not have thorough knowledge of the subject matter in question.
There's lots in the report about whether policies and staff are in place and lots of seemingly concrete data about the literally hundreds of millions of dollars that are being spent, but no evidence that these policies, staff, and tax-payer dollars are having any real effect on the accessibility of government-purchased E&IT. Yes, a fair number of federal agencies have actually bothered to establish 508 policies and procedures, but have you ever heard of a federal agency that's doing a poor job of following its own policies and procedures? I thought so. Seriously, why should we be asked to assume that just because some things are committed to paper that, therefore, behavior is in fact changing? Putting it another way, how many government agencies do you have experience with that somehow manage to function successfully and efficiently simply by accident without elaborate policies, procedures, and a robust and competent bureaucracy?
Indeed, there's a lot more that we don't know and can't know from this survey and report, and it would appear that far too many of the survey's respondents don't fare much better themselves. Again and again, the DOJ itself remarks on the surprising number of "don't know" responses to questions about federal agencies' 508-related spending or even whether their agencies have a 508 compliance policy in the first place. Clearly, some of the survey respondents did have some authoritative knowledge of these matters. Some 35 agency components indicated that their spending on 508 is classified. Surely if steps had been taken to ensure that all survey respondents were the right people to ask, the incidence of "don't know" answers would be minimal.
Even if we were to grant that all those who actually completed the survey questions posed by the DOJ were thoroughly familiar with their agencies' 508 posture, the DOJ 508 report should set advocates on fire. If the survey respondents are to be believed, roughly half of the federal agencies assessed by the survey do not have formal 508 policies and procedures in place. Roughly, half do not have a clear chain of 508 command. Moreover, it isn't possible to get a feel from the DOJ published report for how complete a given agency's approach to 508 compliance is. For example, we still don't know whether those agencies that have a formal 508 policy and procedure in place also have a clearly identifiable 508 chain of command or if they just have one but not the other.
What the DOJ report tells us is that barely a majority of federal agencies are only succeeding (if that word is even appropriate at all) in doing two things with respect to 508 implementation. Federal agencies have papered and bureaucratized 508 nearly to death, and they're spending lots of our money without much demonstrable result. While none of the conclusions about the inefficiency of our federal government should be a news flash, these conclusions should light a fire under all of us to force some much needed changes to our government's implementation of 508.
Indeed, the DOJ itself makes a whole host of policy and procedural recommendations in its report that are modestly phrased but would pack quite a punch if implemented. The most telling of such recommendations is the call from the DOJ for more advanced testing of E&IT to determine the accessibility of a given item. Now, why didn't we think of that? A runner-up recommendation that DOJ makes is that agencies should abandon the fairly widespread practice of using generic 508 compliance criteria when evaluating a potential E&IT buy in favor of the application of those specific 508 requirements that are particularly relevant to the purchase under consideration. Putting these recommendations another way, agencies should not just believe industry assertions that products are accessible but should find out whether or not tax payer money is going to be spent in compliance with the law, and when doing so, agencies shouldn't just check whether a given product seems to work generally but if it serves the specific contextual purposes at hand. Now, there's a thought.
Interestingly, the DOJ report itself gives the lie to the proposition that federal agencies are powerless to correct these seemingly obvious failures. For example, the report suggests that a fair number of the medium-sized agencies surveyed had success at working with E&IT vendors to fix inaccessibility problems after purchase. Surprisingly, or maybe not surprisingly, the very large agencies seem to have the least success with this. Moreover, the DOJ asked whether agencies did, in fact, conduct 508 compliance testing prior to the purchase of E&IT, and a handful say they do. Agencies, therefore, are not barred from testing products before they buy them to see if their employees and customers with disabilities can use them, and no, fixing inaccessibility problems isn't so complicated and expensive that only the largest federal agencies can manage it. Why, then, don't more federal agencies step up to the plate, spend the vast sums they are currently spending with little measurable results on testing for accessibility and remedying problems discovered, and do right by people with disabilities both inside and outside of the government?
The answer is that neither we nor our national leaders in the White House or in Congress have sufficiently turned up the heat, and when the heat does get turned up, bureaucratic inertia evaporates. The case in point is the Department of Veterans Affairs (VA), which recently announced that all of its existing waivers of 508 compliance on file for inaccessible technologies currently deployed are null and void. The VA declared that all E&IT must be validated for accessibility by the VA and compliant with 508 by January 1, 2013 and that any exceptions to this posture must be approved at the VA Assistant Secretary level. Can they pull this off? Time will tell, but what is clear is that the VA has assumed the kind of aggressive, get it done posture that has always been the letter and spirit of section 508 since its enactment way back in 1998. Why the 508 militancy by the VA now? In a word: politics. Recent relentless intervention by key members of Congress combined with the dogged day in and day out work of the VA's principal 508 officer, who happens to have a disability, has led to an unprecedented express commitment by a behemoth federal agency to turn rhetoric into reality. This is apparently the only option short of filing a mountain of complaints and law suits that will turn things around, or at least, we hope it will.
Yes, it would seem that much of the long-touted promise of Section 508 being the engine to transform technology industry behavior by harnessing the purchasing power of the federal government is in ashes. However, it also seems that if we stop suffocating each other with the hot air of our directionless outrage and, instead, blow on the embers of political pressure, the sparks that fly may just achieve ignition.
Overview of the Official Section 508 Report
Have a look at some of these results, which have been summarized from the original report:
- Failure to Establish 508 Policy: Only slightly more than fifty percent of agencies reported they established a formal, written policy to implement and comply with Section 508.
- No Institutionalized Resources: Nearly seventy percent of agencies had appointed a Section 508 coordinator, but only about thirty-five percent of them had established a Section 508 office or program. Another twenty-five percent of agency components (sub offices) did not establish an office or program but utilized their parent agency's Section 508 office or program.
- Few Accountable Staff: Agencies that established a Section 508 office or program reported assigning an average number of 2.5 full-time equivalent employees and allocated an average budget of $413,497 for their Section 508 office or program.
- What 508 Bureaucracies Do with Their Time: The most common reported service provided by Section 508 offices or programs was to evaluate the accessibility of websites. By contrast, the least common service provided by agencies' Section 508 office or program was to evaluate the accessibility of hardware.
- No Accountability for 508 Spending: Nearly seventy percent of agencies reported allocating or using resources to implement and comply with Section 508, but eighty-five percent of agencies reported not tracking their spending to implement and comply with Section 508.
- A Million Here and a Million There…: Agencies that tracked their spending reported an average budget or spending of $5,785,963 to implement and comply with Section 508. Across all agency size categories, the median budget or spending was $140,000 to implement and comply with Section 508.
- No Policies for Developing New Tech: Seventy-five percent of agencies reported developing software or web applications either in-house or by contractors. However, only about forty percent of these agencies reported establishing a policy to ensure the accessibility of software, including testing developed software for Section 508 compliance.
- No Policies for Agency-Produced New Media: Nearly seventy-one percent of agencies reported developing training or informational videos or multimedia productions either in-house or by contractors. However, only about thirty percent of them reported establishing a policy to ensure the accessibility of videos or multimedia productions, including testing developed videos or multimedia productions for Section 508 compliance.
- Software Access Neglected: Only about fifty-four percent of agencies or their sub offices reported establishing a policy to comply with the technical requirements for software. Twenty-four percent of them reported not establishing a policy and had no plans to establish a policy to comply with the technical requirements for software.
- Website Access Neglected: Only about sixty percent of agencies or their sub offices reported establishing a policy to comply with the technical requirements for websites. Twenty-three percent of agencies reported not establishing a policy and had no plans to establish a policy to comply with the technical requirements for websites.
- Telecomm Access Neglected: Only about forty-eight percent of agencies or their sub offices reported establishing a policy to comply with the technical requirements for telecommunication products. Nearly twenty-four percent of them reported not establishing a policy and had no plans to establish a policy to comply with the technical requirements for telecommunication products.
- Stand-Alone Equipment Access Neglected: Only about forty-three percent of agencies or their sub offices reported establishing a policy to comply with the technical requirements for self-contained, closed products (e.g., fax machines, photocopiers, etc.). Twenty-one percent of them reported not establishing a policy and had no plans to establish a policy to comply with the technical requirements for self-contained, closed products.
- Computer Access Neglected: Only fifty percent of agencies or their sub offices reported establishing a policy to comply with the technical requirements for desktop and portable computers. Twenty-seven percent of them reported no establishing a policy and had no plans to establish a policy to comply with the technical requirements for desktop and portable computers.
- No Due Diligence: Agencies most often relied on reviewing the materials the vendor submitted rather than actual product testing to validate Section 508 compliance.
- Failure to Keep Meaningful Records: Agencies most often conveyed their decisions regarding Section 508 applicability or exceptions on E&IT procurements in writing. However, only a small number of agencies have established formalized systems for tracking and documenting Section 508 decisions.
- Set Up for Failure: Nearly sixty percent of agencies reported not providing Section 508 training to their employees.
- Frontline Information and Technology (IT) Staff Most Out of the Loop: Agencies that did offer training reported providing the most average hours of training to Section 508 coordinators (a little more than four hours) and the fewest average hours of training to IT help desk staff (less than one hour).
- Fruit from the Poisonous Tree: Nearly forty percent of agencies that provided federal financial assistance reported not having any knowledge of whether or not recipients of federal financial assistance were required to ensure accessibility of websites and other E&ITs. Another twenty-four percent of agencies did not require recipients to ensure accessibility of websites and other E&ITs. Only thirty-five percent of agencies or their sub offices required recipients to ensure accessibility of websites and other E&ITs.
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