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KY Accessible Information Technology in Schools (AITIS) Project
Tutorial: Kentucky Accessibility Guidelines for K-12 Education-based Information Technology
Unit 7: When can Accessibility Requirements be Excluded?
Sometimes, school administrators may be under the opinion that accessibility is an issue that only comes into play when a student of staff member with a disability has identified an access issue or has made a complaint. In reality, information technology accessibility is an issue which must be addressed even if you believe that no person with a disability is associated with your school or will ever attempt to access the technology in question.
That being said, there may be some instances in which you believe that providing for accessible information technology may be an unreasonable goal, especially if you have discovered that a major expense will be involved to bring your school or district into compliance with Section 508. So some administrators may have legitimate questions on how to gauge the reasonableness of such an expense, and when it may be appropriate to settle for something less that 100% compliance with these standards. An unreasonable expense may constitute what is called an "undue burden." Kentucky state law KRS 61.986 provides the following statutory language which is to be followed when considering the exclusion of accessibility requirements in the event of undue burden:
- For the purpose of procurement, the head of any covered entity may, with respect to access software or peripheral devices and other assistive technology pertinent to individuals with disabilities access to information technology obtained following July 14, 2000, approve the exclusion of the technology access clause if the cost of the software or peripheral devices or other assistive technology for the covered entity presents an undue burden.
- The head of any covered entity shall not approve the exclusion of the technology access clause from any contract with respect to:
- The compatibility of standard operating systems and software with nonvisual access or other assistive software, peripheral devices, or any assistive technology; or
- The initial design, development, and installation of information systems, including the design and procurement of interactive equipment and software.
- Nothing in this section shall require the installation of software or peripheral devices for nonvisual or alternative access if the information technology is being used by individuals who are not blind, visually impaired, or otherwise disabled. However, the applications programs and underlying operating system, including the format of the data, used for the manipulation and presentation of information shall permit the installation and effective use of nonvisual access software and peripheral devices.
It is important to note that the nature of this exclusion revolves around the question as to “if the cost of the software or peripheral devices or other assistive technology for the covered entity presents an undue burden” within the understanding of “with respect to access software or peripheral devices and other assistive technology pertinent to individuals with disabilities....” The exclusion, however, is explicitly denied in respect to “standard operating systems and software” as well as the “design and procurement of interactive equipment and software”. Therefore, undue burden cannot be assumed to be some type of blanket approach to excluding accessibility requirements simply because a school does not believe it has the funds or staff to deal with this issue. Much to the contrary, undue burden as defined within this statute is very limited in its scope. A school should never make a determination of undue burden without first having the district legal counsel complete a thorough review of all the facts under discussion.
Guidelines Component:
- When, in the course of procuring IT products, the District determines that required compliance with Accessibility Standards would result in an undue financial burden, the District shall consult with legal counsel to consider if the determination of undue burden can be made under KRS 61.986.
- The District shall adopt the exclusion process mandated under state regulation once it is approved by the Finance and Administration Cabinet.
- If the District makes a determination of undue burden for purposes of excluding the technology access clause within a contract, the District still must provide the employee, student, or general public with an alternative means of access to use the information or data.
- The District shall not approve the exclusion of the technology access clause from any contract with respect to:
- the compatibility of standard operating systems and software with nonvisual access or other assistive software, peripheral devices, or any assistive technology; or
- the initial design, development, and installation of information systems, including the design and procurement of interactive equipment and software.
Compliance Checklist:
- Has the district adopted the state exemption and exclusion process described in state regulation (once finalized)?
- Is a process in place to ensure that the District's legal counsel makes a determination of undue burden before an exception to the contract clause is made?
- When a determination of undue burden and resulting exception to the contract clause is made, does the District have a procedure to ensure that a person with a disability has an alternative means of access to use the information or data?