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    March 2018

    Addressing Accessibility in Your EIT Vendor Contracts

    Your campus may be in violation of federal disability laws if it contracts with vendors whose electronic information technology (EIT) products do not comply with those laws. Since 2010, the departments of Education and Justice have stated in guidance that it is not enough for college products to be accessible to people with disabilities. Rather, an institution must also ensure that the EIT products provided by its vendors meet the same accessibility requirements.

    For example, when one vendor’s learning management system did not enable blind students to access class readings, the National Federation of the Blind (NFB) sued the institution. NFB alleged that the system’s lack of compatibility with accessibility software, such as screen readers, violated Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. The two parties reached an agreement, holding the institution responsible for providing an accessible learning management system and revising procurement procedures.


    Federal EIT Accessibility Guidance

    In 2010, the departments of Justice and Education released a “Dear Colleague” letter (DCL) instructing institutions not to use inaccessible e-readers. The DCL and related frequently asked questions clarified that students with disabilities must receive equal access to all EIT under Titles II and III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973.

    Even with this guidance, significant confusion remains over the appropriate technology accessibility standards. Although the prior administration indicated in 2016 that public accommodations should follow the Web Content Accessibility Guidelines 2.0 (WCAG 2.0) Levels A and AA, the current administration’s actions suggest the Department of Justice may move in a different direction. In 2017, it pulled proposed rulemaking for Title II of the ADA. The 2016 proposal would have held state and local government websites, such as public college websites, to the WCAG 2.0 standards. This move by the Department of Justice may indicate a shift away from those standards. However, until an alternative is proposed, WCAG 2.0 remains the recommended standard.


    Contracts With EIT vendors

    In addition to educational institutions’ duty to ensure their vendors deliver accessible EIT, vendors may be directly responsible for providing materials that conform to federal accessibility standards. In 2015, the Department of Justice reached a settlement agreement with EdX, a private, nonprofit educational vendor of massive open online courses (MOOCs), stating that the company is a public accommodation subject to Title III of the ADA.

    Section 508 of the Rehabilitation Act of 1973 (Section 508) provides added guidance for institutions contracting with EIT vendors. It requires all federal contractors to complete a voluntary product accessibility template (VPAT) identifying the level of support products have for each of the Section 508 criteria. As of 2017, Section 508 and the revised VPAT explicitly incorporate standards from WCAG 2.0 Levels A and AA.

    Consider taking the following actions before signing a vendor contract:

    • Require a completed VPAT. Although most institutional contracts do not fall under Section 508, VPATs are recommended for ensuring vendor accessibility. For any criteria not fully met, vendors should state in the VPAT why and when they intend to achieve full support.
    • Vendors should also note in the VPAT any Section 508 criteria that are not applicable to the product.
    • Test the product.  Assign a trained employee—preferably someone in the institution’s technology accessibility office—to try the vendor’s product and ensure the VPAT is accurate.
    • Work with legal counsel to ensure vendor contracts have adequate:
      • Accessibility requirements. If the vendor lacks full conformance in any areas of the VPAT, consider whether to continue with this vendor. An item without full accessibility may look like this:
      Criteria Conformance Level Remarks and Explanations
      1.4.1 Use of Color (Level A) Web: Does not support Web: Links are not visually evident without color vision.

      • If you continue, work with legal counsel to address the incomplete conformance compliance in the contract. Note when the vendor intends to achieve full conformance by providing an “accessible by” date. Include penalties for failing to meet that deadline and language stating that the institution will not renew the contract if the vendor fails to meet requirements.
      • Indemnification language. Contractual indemnity clauses identify which party is responsible if a claim occurs. Appropriate language may vary by jurisdiction.
      • Assign someone, usually in the procurement office, to ensure all third-party contracts include the recommended language. Institutions with decentralized contractual procedures may need to create a more centralized process or train someone in each department to review contracts for the accessibility and indemnity provisions.
    • Work with institutions and groups. If you have trouble getting a vendor to comply, work with similar institutions and refuse to use the company unless they provide accessibility. Additionally, some large education technology and technology accessibility groups are considering whether to establish vendor review groups. Watch for further announcements as this develops.

    By Melanie Bennett, risk management counsel


    Resources

    Section508.gov

    Information Technology Industry Council (Updated VPAT)

    U.S. Department of Education “Dear Colleague” letter

    U.S. Department of Education Frequently Asked Questions

    EduRisk: Understanding Your Institution’s Duty to Make Technology Accessible


    Sample VPAT and Contracting Instructions:

    George Mason University

    University of California

    University of Washington


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