Accessibility in Texas State Government Contracts Life-Cycle

1. Accessibility in Texas State Government Contracts Life-Cycle by Adrian Roel Pineda, CTCM, CTPM, QMHP Accessibility Specialist Department of Assistive & Rehabilitative Services December 6, 2011 University of Texas at Austin J.J. Pickle Research Campus

2. Agenda • Accessibility & EIR, Demographics Texas Rules • World-wide Accessibility, US Law Suits • Accessibility in Procurement • Considering Accessibility in the Procurement Process • EIR Accessibility Requirements in Solicitations • Suggestions for RFPs • What’s a VPAT, Testing Plan & Analyzing VPATs • Contract Life-Cycle

3. Accessibility & EIR • Accessibility: When all users, regardless of disability, can obtain the same information & perform the same functions. • EIR: “Electronic Information Resources” Includes information technology & any equipment or interconnected system or subsystem of equipment, that is used in the creation, conversion, duplication, or delivery of data or information. 1 Texas Administrative Code §213.1

4. Disabilities & Demographics According to the 2010 US Census (ACS) • Total noninstitutionalized US population is approximately 309,349,689. • 36,354,712 are Americans with disabilities. • Total Texas noninstitutionalized population is approximately 24,779,450. • 2,863,514 are Texans with disabilities.

5. State of Texas Accessibility Rules Texas Administrative Code • 1 TAC Chapter 206: State Web Sites • Subchapter B: State Agency Web Sites • §206.50: Accessibility and Usability (“copy” of 508) • Subchapter C: Higher Education Web Sites • §206.70: Accessibility and Usability (“copy” of 508) • 1 TAC Chapter 213: Electronic & Information Resources • Subchapter B: Accessibility Standards for State Agencies • Subchapter C: Accessibility Standards for Higher Education Texas Government Code • §2054.456 Access to Electronic and Information Resources by State Employees with Disabilities • §2054.457 Access to Electronic and Information Resources by Other Individuals with Disabilities

6. International Standards Emerging & Evolving Standards Drive Accessibility Requirements Around the World • United States Federal Laws • Section 504 of the 1973 Rehabilitation Act • Prohibits organizations and employers from excluding or denying people with disabilities an equal opportunity to receive program benefits and services. http://ericec.org/sect504.html • Americans with Disabilities Act(ADA) of 1990 • National mandate to eliminate discrimination against people with disabilities. http://www.usdoj.gov/crt/ada/pubs/ada.txt • Section 508 of the 1973 Rehabilitation Act (Amended in 1998) • Applies accessibility standards to procurement and development of electronic and information technologies by federal government agencies. • www.section508.gov WCAG 2.0 ATAG 2.0 9241-171 6

7. Accessibility-Related Litigation & US Legal Inquiries Arizona State University - Sued by NFB & ACB for use of Kindle DX for ebooks; complaints also filed with US DoE and DoJ on Case Western Reserve, University of Virginia, Pace University, Princeton University, and Reed College. Settled. Wells Fargo - Will pay up to $16 million to compensate individuals who experienced discrimination in violation of Title III of the Americans with Disabilities Act Target - Sued by NFB for inaccessible website. Settlement of $6M not including legal expenses, site remediation, and other incidentals. State of Texas - Major tech company and State of TX sued by NFB – Software is inaccessible to blind State of TX employees. Project Management Institute - (US-based organization) sued in UK due to inaccessible training application. Sylvan - Sued by DoJ for ADA violations. Settlement terms: must provide accommodations for deaf and hard of hearing students. Pennsylvania - Sued by NFB and state employees because web applications wereinaccessible to the blind. Settled. Bank of America- ADA settlement over inaccessible ATMs . 7

8. 2007: National Federation of the Blind Filed Suit for Equal Access Oracle Software Cannot Be Used by Blind Texas Employees • Defendants named: • Director of HHSC • Director of TWC • Acting chief technology officer for Texas • Suit brought because the blind cannot use software manufactured by Oracle Systems and used by state employees. • The newly acquired software replaced another software package that had, in large part, been accessible to blind users. • The plaintiffs have asked a Texas court to require the software to be made accessible to the blind and to require that the state discontinue its purchases of inaccessible software. Purpose: to enforce Texas law that requires all IT purchased by the state to be accessible to blind employees.

9. Accessibility in Procurement Goals of State Agencies To purchase the most accessible products most products aren’t 100% accessible To ensure effective and efficient access to EIR comparable in quality, timeliness of delivery, and availability To comply with Texas EIR Accessibility Law compliance is a primary selection factor 1 TAC 206 & 1 TAC 213 compliance levels must be verified Can add time to the procurement process vendors may need accessibility training Awareness of issues Technical know-how

10. Accessibility in Procurement Accessible EIR Product Required: Direct Use of EIR The following products must be accessible because they involve the direct use of EIR: software that will be used on the state’s public facing websites by state employees in performing their work copy machines that will be used by state employees services to develop software or websites to be used by state employees and members of the public contracted services through externally hosted websites used by the public or state employees

11. Accessibility in Procurement Accessible EIR Product May Be Required: Indirect Use of EIR Accessibility must also be considered when procuring contracted services for EIR. Common examples: • contracting for human resources services that are delivered through a website or telephone system. • contracting for wellness services that are delivered through social media such as Facebook pages or through web-based multimedia or videos. • contracting for training or technical support that is delivered through electronic handbooks or forms, or through a Web-based or telephone system. • purchasing transaction services that may require the public to interact with EIR through interoperable controls, video screens, menus, or websites as in the use of a debit card reader or ticket kiosk.

12. Accessibility in Procurement Accessible EIR Product Not Required: Incidental Use of EIR EIR is considered incidental or insignificant for purposes of a contract when the EIR: will not be used or accessed by employees or members of the public in the performance of the contract. will not become the property of the agency. is used by a contractor's employees to access or manipulate information that is not used by state employees, or the public.

13. EIR Procurement Applicability • Direct Use of EIR - EIR Accessibility Procurement Required= Yes • software used on state’s public facing websites. • software used by employees in the performance of their work. • copy machines that will be used by agency employees. • services to develop websites used by employees or the public. • Direct but insignificant use of EIR - EIR Accessibility Procurement Required=Maybe • specific software with no administrative or public user interface. • Indirect use of EIR - EIR Accessibility Procurement Required= Maybe • human resources services delivered through a website or telephone system. • wellness services that may be delivered through social media such as Facebook pages or through Web-based multimedia or videos. • training or technical support that may be delivered through electronic handbooks, forms, or through a Web-based or telephone information system. • NonEIR - EIR Accessibility Procurement Required=No • Purchase of food, office supplies, and other staples

14. No No Yes Process Flow for IT Accessibility Procurement From Agency EIR need to accessibility process flow Step 1 Determine type of EIR accessibility procurement (Apply accessibility clause usage guidelines) • Accessibility compliance not required • No Accessibility procurement clause required Yes Step 2 Develop the specs, scope of work, and Ts / Cs • Include accessibility compliance criteria • Acquire and review potential supplier VPATs (Voluntary Product Accessibility Templates) • Determine accurate accessibility compliance status to criteria Step 3 Perform market research on the accessibility status of available products • Consider the relative importance of accessibility compliance in the context of the procured product/service • Include VPAT documentation request Step 4 Include accessibility requirements in solicitation document Step 5 Route solicitation for internal review, comments, and approval Step 6 Submit purchase request and initiate solicitation • Review for validity by IT accessibility coordinator or authority delegated to accessibility knowledgeable staff • Test solution for accessibility to validate documentation (VPAT) provided • For noncompliant bid responses • Assess the risk of deploying a noncompliant solution • Make additional request to supplier for accessibility remediation plan (includes planned compliance date) • Identify and recommend best solution for accessibility compliance to program Step 7 Evaluate vendor responses Step 8 Is pending contract winner accessibility compliant? • Initiate accessibility exception process, which includes: • Obtain formal accessibility remediation plan from supplier • Planned compliance date • Develop plan for alternative access methods (with supplier) Step 9 Award and implement contract • Receipt • Installation • Final accessibility validation in own environment (test servers, etc.) • Solution maintenance Step 10 Contract life cycle and maintenance • Include Accessibility in contract oversight process • Perform additional testing for solution upgrades/maintenance (as needed) • Monitor for quality control and/or necessary corrective actions • Monitor contract changes to ensure that IT accessibility compliance is maintained • Review or dispute invoices for noncompliant billings • Reassess accessibility compliance/compliance status /plans prior to contract renewal

15. Considering Accessibility in the Procurement Process From Agency EIR Need to Procurement Step 1 Determine whether the EIR must be accessible (apply procurement applicability guidelines) • Accessibility compliance with TAC not required • No Accessibility procurement applicability required Yes No

16. Considering Accessibility in the Procurement Process Step 2 Develop the specs, scope of work, and T’s / C’s • Include accessibility compliance criteria Step 3 Perform market research on the accessibility status of available products • Acquire and review potential supplier VPATs • Determine accurate accessibility compliance status to TAC’s Step 4 Include accessibility requirements in solicitation document • Consider the relative importance of accessibility compliance in the context of the procured product or service • Include VPAT documentation request Step 5 Route solicitation for internal agency review, comments, and approval

17. Considering Accessibility in the Procurement Process • Review for validity by EIR Accessibility Coordinator or delegated accessibility knowledgeable staff • Perform solution accessibility testing to validate documentation (VPAT) provided • For noncompliant bid responses • Assess the agency risk of deploying a noncompliant solution • Additional request to supplier for accessibility remediation plan (includes planned compliance date) • Identify and recommend best solution for accessibility compliance to program Step 6 Submit purchase request and initiate solicitation Step 7 Evaluate vendor responses

18. Considering Accessibility in the Procurement Process Step 8 Pending contract award accessibility compliant? • Initiate accessibility exception process, which includes: • Obtain formal accessibility remediation plan from supplier • Planned compliance date • Agency and supplier develop plan for alternative access methods No Yes Step 9 Award and implement contract • Receipt • Installation • Final accessibility validation in agency environment (test servers, etc.) • Solution Maintenance

19. Considering Accessibility in the Procurement Process • Include Accessibility in Contract Oversight • Perform additional testing for solution upgrades or maintenance (as needed) • Monitor for quality control and necessary corrective actions • Monitor contract changes to ensure that EIR accessibility compliance is maintained • Review or dispute invoices for noncompliant billings • Reassess accessibility compliance, compliance status, and plans before contract renewal Step 10 Contract life cycle and maintenance

20. EIR Accessibility Requirements in Solicitations Language should be included in EIR-related solicitation stating Vendor products must conform with all applicable 508 and 1 TAC 206 and 213 standards Applies to all EIR developed & procured. Vendors must include a completed Voluntary Product Accessibility Template (VPAT) in their bid responses. State may require access to the product to test for accessibility before completing the purchase.

21. Suggestions for RFPs • Request that the vendor describe its capacity to respond to and resolve any complaint regarding accessibility of products or services. • Require the name of a person and contact information for addressing accessibility questions and issues with the product. • For every EIR product or service accepted under the contract that does not conform to the accessibility standards and for which an exception does not apply, request from the vendor a plan & timeline by which accessibility standards will be incorporated into the product.

22. What is a Voluntary Product Accessibility Template (VPAT)? A standardized template used in the industry A vendor-generated, product-specific statement that provides relevant and specific information about compliance with Section 508 Standards Helps procurement and contracting officials make preliminary assessments of the degree of accessibility compliance in a vendor’s EIR Allows procurement staff to evaluate accessibility compliance consistently across multiple vendors A vendor's familiarity with the VPAT can be an indicator of the vendor’s level of understanding of EIR accessibility.

23. Analyzing the VPAT Main Sections categorized by EIR type Degree of compliance Date:Name of Product:Contact for more Information (name/phone/email): Supporting or exceptions information

24. Analyzing the VPAT • Engage procurement/contract teams when purchasing large EIR. • Be very skeptical! VPATs may contain false, inaccurate, or misleading information. • With little technical skill, it may be easy assessing level of accessibility knowledge and accuracy a vendor reports on their VPAT. • Red Flags • Use of N/A (not applicable) in areas of the VPAT criteria known to be applicable • Global, nonspecific accessibility statements • “Supported with Exceptions” • Very long “remarks” on minor exceptions • No VPAT available

25. Validating VPAT Accuracy Scenario 1—the “questionable” VPAT • “Sniff testing” is usually all that’s needed (performed by Accessibility Specialist). • Starting page + 1–2 pages deep. • For Web applications, use free online page checking tools (WAT, etc.) • Perform brief screen reader (JAWS) test on key pages. • Document results. • No testing may be required if VPAT responses appear very problematic. Scenario 2—the “reasonably credible” VPAT • More in-depth testing should be performed (by Accessibility Specialist) • Testing of all functions preferred. • For Web applications, use free online page checking tools (WAT, etc.). • Detailed JAWS testing. • End user testing if possible. • Document results.

26. Review Results with Vendor Possible Scenarios: • Vendor understands results and makes changes. • Vendor needs minor technical education. • Vendor is unaware of EIR accessibility. • Vendor believes accessibility does not apply.

27. VPAT & a Practical Testing Plan • Code Validation • Browser Testing • Turn off images • Don’t use the mouse • Increase font size • Change window size • Online Accessibility Testing (representative pages) • use more than one tool, example: Worldspace & Wave • Screen reader Testing • JAWS • Enterprise Accessibility Report • like Worldspace by Deque or WebXM • Hands-on Accessibility Testing

28. General Exception Process If the selected EIR product doesn’t comply with accessibility guidelines, an approved exception form must be completed before the contract is awarded. The EIR Accessibility Exception • does not eliminate risks associated with nonaccessible EIR • does not eliminate the responsibility to provide an accessible solution • must provide solid justification for purchasing nonaccessible EIR • must include an “alternate means of access.” • must be signed by agency head or designee.

29. Examples of Exceptions • Commercial Nonavailability • An accessible alternative product is not available. • Fundamental Alteration • A fundamental alteration would be required to make the product accessible. • Undue Burden • It would be cost-prohibitive to make the product accessible.

30. Contract Life-Cycle

31. What Is a Contract Life-Cycle?

32. Procurement Plan & Method For Monitoring Contracts • Texas Government Code 20.54.355 • Texas Administrative Code, Title 34

33. Definitions • Accessibility • Accessibility Report • Alternative Access • Americans with Disabilities Act of 1990 • Browser Testing • Code Validation • Contract Life Cycle • Electronic & Information Resources (EIR) • Equivalent Functionality • Section 508 • Web Content Accessibility Guideline (WCAG) 2.0 of 2008 • W3c

34. Thank You Adrian Roel Pineda, CTCM, CTPM, QMHP DARS Accessibility Team 4900 N. Lamar Blvd. Austin, Texas 78756 Mail Code 1413 512-377-0639 adrian.pineda@dars.state.tx.us