On behalf of the Assistive Technology Industry Association (ATIA), we hereby submit the following minority views on the TEITAC Final Report.nbsp; Our comments focus on the Functional Performance Criteria and the role of the Section 508 regulations on improving interoperability between AT and E&IT.
ATIA believes that the Functional Performance Criteria are a critical component of the 508 Regulations.nbsp; Throughout the TEITAC process, TEITAC members have struggled with the role that the Functional Performance Criteria should play in any future regulations.nbsp; At this time, we do generally support the language recently proposed by Gregg Vanderheiden of the Trace Center to attempt to resolve this issue and largely agreed upon by the TEITAC membership.nbsp;
However, ATIA is concerned that the new format and reference to the use of AT to satisfy the Functional Performance Criteria may be inadequate.nbsp; In the original Section 508 Regulations, each of the Functional Performance Criteria stated that access could be provided either directly or via support for assistive technology.nbsp; ATIA believes this language has been critical in improving interoperability between AT & E&IT.nbsp; We are concerned that the current recommendations lose this important component.nbsp;
As a compromise to reach consensus, ATIA agreed that the use of AT in the Functional Performance Criteria could be addressed by referencing a note on AT at the end of each provision.nbsp; We would urge the Access Board to reconsider this approach, and instead directly include language in each provision that acknowledges the Functional Performance Criteria may be satisfied through direct access or through the use of assistive technology.nbsp; ATIA believes this approach is critical because many developers do not continually look to the entire sections when building technology; they merely go back and refer to one or two specific provisions.nbsp; We are afraid this significant change in language will mistakenly confuse developers and have them believe they must always build in access.nbsp;
Throughout the TEITAC process, there has been a tension between what should be done to provide access to E&IT for individuals with disabilities and what is realistic to achieve from a technical standpoint.nbsp; Some members have suggested that the Functional Performance Criteria should merely be goals with no enforcement value; just broadly stated lofty ideals of what should be done in an ideal world.nbsp; Others have suggested that the Functional Performance Criteria should be mandates; specific required provisions that must be fulfilled by every single product that is purchased by the Federal Government.nbsp;
ATIA sees the value in both positions – as companies who work to improve access for individuals with disabilities, we are fearful of setting the bar too low, and we recognize that simply meeting the technical provisions does not guarantee that AT and IT will work together or guarantee that an individual with disabilities will definitively have access to a particular piece of technology.nbsp; However, we are also loathe to impose such a high bar through mandating the Funcional Performance Criteria that discourages IT companies from working to constantly improve access.nbsp; ATIA In order to balances both of these critical interests, ATIA proposes that we treat the Technical Provisions as a threshold requirement – the minimum set of requirements for technology to qualify for sale to the Federal Government.nbsp; The threshold provisions will ensure that purchased E&IT will be accessible to some basic degree.nbsp; However, we believe that there is more that should be done than the technical provisions – and it will vary from product to product.nbsp; It is a greater level of access that we believe we should strive towards, but every product may not necessarily fully achieve at the outset.nbsp; We would accomplish this higher standard through the Functional Performance Criteria, which should be the benchmark for what we hope to accomplish through access.nbsp; Satisfying these benchmarks should give E&IT additional preference in 508 purchasing, creating an incentive to continually advance accessibility as technology improves.
Ultimately, ATIA believes that the Functional Performance Criteria are a critical component to access.nbsp; In an attempt to recognize the possible hardship placed on IT to fully achieve these Functional Performance Criteria, we would be open to an evaluation system that would provide preferences to E&IT for achieving the Functional Performance Criteria.nbsp; However, ATIA does not support the position that compliance with the Technical Provisions will be deemed satisfaction of the Functional Performance Criteria.
ATIA opposes the inclusion of provision 3.VV in the 508 regulations. First, the professed purpose of the mandate is to improve interoperability between AT and E&IT. Unfortunately, it is a fallacy to believe that merely requiring AT to utilize APIs will result in automatic plug and play interoperability. At this point in time, neither AT nor E&IT can guarantee that the products will work seamlessly without further efforts, testing, and some degree of customization with respect to more complex AT. Use of an API should never serve as a proxy for actual interoperability. Interoperability is a process, and this provision creates the misimpression that if both E&IT and AT utilize an API, we will have magically solved interoperability problems. Indeed, it is quite possible for both E&IT and AT to utilize APIs and still be incompatible. ATIA believes that APIs are a significant improvement in technology that will go a long way towards improving interoperability. However, there are numerous circumstances in which APIs fall short, or improper implementation of APIs makes it impossible for AT to utilize APIs to achieve access. To that end, AT must have the discretion to utilize APIs as appropriate in developing AT, and E&IT should provide those APIs. As E&IT improves the implementation and depth of their APIs, that process alone will encourage more AT to adopt and utilize the APIs.
The argument to include this provision states that there are three entities involved in order to achieve interoperability: the operating system, the application, and the assistive technology.nbsp; Although that is true, it is an insufficient argument to include AT in the 508 provisions.nbsp; We take offense to the notion that “AT needs to come to the party.” AT has existed for as long as E&IT has, dating back to the 1970’s.nbsp; Interoperability is the essence of AT – as ridiculous to us as stating a wheel must be round.nbsp; However, by stating that AT must use only available API’s to achieve interoperability could in fact result in a less-accessible solution, while at the same time provide E&IT companies a way “out” of true interoperability.nbsp;
Additionally, the provision also misunderstands the nature of most Federal Government acquisition of AT. Most purchases of AT are not made under the traditional Section 508 purchase processes, but rather under Section 504 as an accommodation for specific individuals with disabilities. Consequently, the provision will not be applied in most AT purchases, and will therefore not have an impact on the AT industry, or prevent the federal government from acquiring AT that fails to use APIs. ATIA believes this provision exceeds the mandate of the TEITAC because it is overbroad to the extent that it touches on 504 purchases of AT.
Finally, ATIA is concerned that this provision will reduce the cooperative effort that has existed between AT and E&IT since the first 508 regulations. For the past 5 years, AT and IT have increasingly been working closely together to improve interoperability. These relationships run deep, and we expect they will continue in the future. We believe that the regulations should reflect an understanding of how our industries work together to arrive at interoperability. We should not encourage a situation in which E&IT could say “we utilized the API, however, there is nothing else we can or will do to ensure interoperability with AT” and we believe that the inclusion of this provision would do just that for some companies. We do agree that procurement officers should consider interoperability and the extent to which AT utilizes APIs in determining the likelihood of accessibility between the AT and E&IT it purchases, but we see this as a recommendation that should be made in the FAR rather than in the 508 regulations
One of the problems we have learned about is that many IT companies believe they are put in a position to guarantee that AT tools will work with IT.nbsp; We feel it is inappropriate for Federal Departments to demand indemnification clauses from IT bidders, in an effort to shift the liability and responsibility of accessibility away from the Department (which is where the law places them).nbsp; It should be the responsibility of the Federal Departments to determine what products work together, and recognize that sometimes, different configurations may create unforeseen interoperability issues.nbsp; The IT industry cannot guarantee against every such situation, nor can they guarantee that the AT and IT will work together infallibly.
Over the course of the TEITAC process, we have identified several key positions that relate to the interoperability between AT and E&IT.nbsp; From our understanding, these positions are:
1. E&IT Industry: “We can't be responsible for what AT does or does not do, since it is largely outside our control. We can agree to expose information technically that AT can use, but can't guarantee that AT actually exists that makes use of it”
2. Consumers & Advocates: “Simply technically exposing the information is not enough, if a person with a disability still can't use it. If an E&IT product does not provide access in and of itself and AT does not exist that is compatible with it, then it will not be useable by many people with disabilities and therefore should not be purchased by the Federal Government.”
3. Assistive Technology Industry: “We require cooperation from our E&IT industry counterparts to ensure actual interoperability exists between their products and our assistive technology products, and frown on anything which would lower incentive to do that. We also can't be expected to develop assistive technology for platforms or products for which we have little or no potential market.”
4. A Fourth Entity. There is a fourth entity in the equation: the purchaser (ie. the government). If the government mandates interoperability between E&IT and AT, then it should be prepared to at least partially fund that mandate. This would break the paradox outlined by the three positions above.
In an ideal world, we would recommend the following scenario: "We, the Federal Government, wish to purchase the brand new XYZ technology from E&IT, and recognize that no AT exists for it yet. So, as part of our procurement, we will help to fund the work necessary for interoperability between XYZ and commercially-available AT. Further, we will make best efforts to hire people with disabilities, thus creating a market for the newly-developed assistive technology, while at the same time lowering social assistance costs by helping those employees with disabilities become independent and self-sustaining".
ATIA therefore recommends the following:
1. The Federal government should establish a mechanism to help fund interoperability development. (This could be a new category within the SBIR program - Small Business Innovation Research, that is already well-funded). AT companies would apply for these grants in conjunction with E&IT partners to fund access development for new technologies.
2. Government procurement agencies should not be allowed to require indemnification clauses in procurement contracts that shifts the liability of accessibility from the Federal Department to industry.
3. The government establish incentive programs for hiring people with disabilities, with a special emphasis placed on those that require specialized access technology.
4.nbsp; The FAR procurement process should include a mechanism to provide bonus points or purchasing preferences for those products that go above and beyond the minimum requirements of accessibility.nbsp; This would continue to encourage E&IT and AT to work together to increase the bounds of access.