Testifying Before Colorado OIT

Laura and I had the honor of testifying last week in Colorado’s Office of Information Technology (OIT) public hearing for its Proposed Technology Accessibility Rules. I’ve previously blogged about Colorado’s HB 21-1110 (which requires Colorado public entities (including local municipalities) to make their websites and IT accessible) and SB 23-244 (which requires OIT to develop accessibility regulations to implement HB 21-1110). We have worked with the City of Centennial, including helping the City participate in this rulemaking. For this public hearing, however, each speaker was limited to three minutes (!), so we decided to testify separately from the City.

What Did Other People Say?

A large number of people had something to say about the proposed rules! On the one hand, local governments and school districts from around the state wanted the rules to be less burdensome, either by making the standards more permissive or by offering them more time to come into compliance. On the other hand, a number of disability advocates pushed for greater accessibility and a shorter timeframe because the disability community has been excluded for far too long and because the ADA and other laws have already required state and local governments to make their IT accessible.

While I agree that there is a strong need for digital accessibility, I think everyone will agree that public entities in Colorado are going to need more time to digest and implement OIT’s final rules. After all, HB 21-1110 requires public entities in the state to meet OIT’s final rules starting July 1, 2024. Even if OIT meets its stated January deadline for adopting final rules, they won’t become effective until March—and that’s only four months before the plaintiffs can start filing their lawsuits!

What Did Laura Say?

Laura started by describing her career in the digital accessibility field, starting at ATT Wireless followed by over 20 years at Microsoft as a Director of Policy and Standards. She also mentioned her work chairing the accessibility committee for the Information Technology Industry Council (ITI) and working with governments around the world to implement digital accessibility. This culminated in her work with the G20 and the World Economic Forum in creating its Model Policy for ICT Accessibility.

Laura mentioned that there is a common misconception that most digital products and services are accessible. Most software still doesn’t meet WCAG or other accessibility standards. This isn’t because companies don’t care or that progress hasn’t been made in accessibility. Instead, as products are constantly updated with new features or when other bugs are fixed, accessibility problems get introduced. This means that all software companies are constantly playing catch-up to solve their accessibility bugs.

When she helped create the Voluntary Product Accessibility Template (VPAT) and Accessibility Conformance Report (ACR) with ITI, the IT industry all knew that accessibility could rarely be fully met. This is why the VPAT and ACR were created—to document how well a product met the standards.

The draft OIT rules adopt the “best meets” requirement from the Section 508 standards but fails to provide guidance about what that means. OIT can suggest that public entities request VPATs or ACRs as part of solicitations. They can also follow guidance documents like the ones Laura helped create, which contain lists of questions to ask vendors. The point here is that performing a “best meets” analysis isn’t obvious and OIT needs to offer better guidance for meeting it.

What Did I Say?

I mentioned that I was a former trial attorney from the Disability Rights Section at the U.S. Department of Justice and used to litigate cases against state and local governments. This gave me a good understanding of how the “undue burden” defense worked. I explained that, because the undue burden threshold is so hard to meet, it needed to be limited to the budget and resources of a component or program—not the whole agency.

Also, because I worked with federal agencies on Section 508 implementation, I also understood how the “best meets” requirement worked. I explained that the federal government has a bunch of resources to explain this tricky concept and OIT’s rules needed clarification.

The easiest way to meet both of these needs was to provide simple examples in the regulation explaining each concept. After my testimony, I provided written comments to OIT that showed how the new regulation could fold in examples to demonstrate how it worked.

Should I be Concerned About the New Rules and What Comes Next?

The OIT rules will have a big impact on (1) any public sector entities (excluding federal government) in Colorado and (2) anyone providing goods or services to such entities. After July 1, 2024, public sector entities can be sued if their IT systems, web pages, or electronic documents do not meet OIT’s upcoming regulations—and plaintiffs are encouraged by liquidated damages of $3,500 per violation.

As I mentioned earlier, OIT is on an aggressive time schedule. Their final regulation was supposed to be issued in January 2024, As of yesterday (February 4, 2024), nothing was issued but also the link for the page to OIT’s rulemaking was taken down. Judging by the concerned opinions at the public hearing, I would be surprised if it comes out in the next week – but if it does, you know it will be controversial.

Stay tuned for more details!

Disclaimer

Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.

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