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Prepared by: AFB Textbooks and Instructional Materials Solutions Forum Legislative and Policy-Making Work Group

Mark Richert and Mary Ann Siller

April 23, 2002

The purpose of the Act is to improve access to printed instructional materials used by elementary and secondary school students who are blind, as well as other students who have print disabilities. This will be achieved through the creation of a system for acquiring and distributing publishers' electronic files of textbooks and other instructional materials, so that these materials can be made available in braille, synthesized speech, digital text, digital audio, or large print.

National Standard for Electronic Files and Advisory Committee

 

Under the bill, the Secretary of Education in conjunction with National Institute of Standards and Technology (NIST) of the Department of Commerce will adopt a national electronic file format standard to be used by publishers in the preparation of structured and fully marked-up electronic files suitable for efficient conversion into specialized formats, such as braille, synthesized speech, digital text, digital audio books, or large print. This standard will be based upon the recommendations of an advisory committee comprised of representatives of all relevant players in the publishing and specialized format production process, consumer groups, and many others. This standard will preempt previous state file format requirements, but it will only take effect two years after the standard is published as the final rule. These standards will be required by the bill to be in conformance with existing and emerging technologies and publishing methods. The emerging technology is building upon the American National Standards Institute/National Information Standards Organization (ANSI/NISO) tags in Extensible Markup Language (XML). However, progress must continue to be made to incorporate the ANSI/NISO format with XML. Doing so will ensure the highest degree of structure possible for the files which publishers will be required to prepare. In addition, the bill will mandate that, after two years from the publication of the final standards, any contracts or other mechanisms used by states and local education agencies in the acquisition of instructional materials must require publishers to transmit a compliant file to the national repository (see Role of the National Instructional Materials Access Center).

Finally, the bill will call for the U.S. Department of Education to publish the proposed standards in the Federal Register six months from the date of appointing the Advisory Committee. From the time the proposed standards appear in the Federal Register, the public will have one month to comment. The final rule will be given within two months from the end of the comment period.

The U.S. Department of Education will convene an advisory committee to help determine the specifications to be used by publishers in delivering electronic files. The Advisory Committee will be appointed three months from the date of enactment of the Act. It will consist of publishers of instructional materials, producers of adaptive technology and materials in specialized formats, representatives of blind consumer organizations, representatives of general and special education programs, developers of accessibility and publishing software and supporting technologies, representatives of information technology standards organizations, representatives of instructional materials resource centers with substantial experience in file format preparation with braille software conversion technology, and representatives of other agencies or organizations that the U.S. Department of Education determines to be appropriate.

Transition Period

The U.S. Department of Education will adopt the final standards identified by the Advisory Committee and publish those final standards in the Federal Register within one year of enactment of the Act. Three years from the date of enactment of the Act, the final standards will supercede any state or local laws or regulations calling upon publishers to provide files in different formats. This means that states will no longer be allowed to require publishers to produce on demand file formats other than the format standard published by the U.S. Department of Education. Prior to the publication of the standards, existing state requirements regarding file format will remain in effect. The new national file format standard will only take effect three years from the date of enactment of the Act. Basically, this means there will be two years from the final published rule of the standards for publishers to comply.

Role of the National Instructional Materials Access Center

Most jurisdictions, especially smaller jurisdictions and those which have no current legal requirements on publishers to provide electronic files, feel strongly that a national repository center is necessary as the only sure hope of prompt access to electronic data files. The value and necessity of a central clearinghouse entity to receive and maintain the publishers' electronic files is overwhelming. Publishers certainly will not want to be required to respond to requests for files from numerous individual state and local agencies. Congress especially will not look favorably at providing funding for such a system which is duplicating efforts.

Funds will be made available to the U.S. Department of Education to provide funding for the National Instructional Materials Access Center. Through a competitive award, the U.S. Department of Education will enter into contract to operate the Center with a nonprofit organization, or consortium of organizations, with substantial experience in the production of specialized formats within two years of the date of enactment of the Act. The contract will be renewed on a biannual basis. The Center will act as a national clearinghouse (repository) for the acquisition and distribution of instructional materials produced in electronic format. Three years after enactment of the Act, publishers’ new copyright files will be deposited in the Center.

The bill will define the Center to be responsible for approving authorized entities, assessing the needs of the authorized entities, retrieving files from publishers, cataloging and storage of the files, and prompt and efficient distribution of the files to authorized entities, among other areas. The bill will be careful to define authorized entities in the same way the term is defined by the Chafee amendment to the Copyright Act which eliminated the need for specialized format producers and others to obtain permission from copyright owners prior to the reproduction and distribution of their works. Under the amendment, an authorized entity is defined as a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities. This definition is extremely broad and will guarantee the availability of publishers' standardized files to all parties with a primary mission to produce accessible materials.

State/Local Procedures to Ensure Equal Access to Textbooks and Instructional Materials

A provision in the Act describes how state and local education agencies receiving federal financial assistance under the Individuals with Disabilities Education Act (IDEA) will be responsible to develop and implement a statewide plan within two years of enactment of the Act. The statewide plan will ensure that printed instructional materials required for classroom use in elementary and secondary schools are made available in specialized formats to individuals with disabilities at the same time such materials are provided to individuals without such disabilities.

The statewide plan will be unique to each state. However, at a minimum the statewide plan shall designate the entity responsible for collecting and maintaining data of the students who are blind or others with print disabilities who require instructional materials in specialized formats; establish the methods and procedures by which these materials will be provided in the appropriate media/medium; identify the resources available for production of instructional materials in specialized formats; establish procedures that local education agencies and any other agency with responsibility for carrying out the education of children with disabilities will follow to ensure the timely delivery of instructional materials; provide assurances that contracts with publishers meet the requirements specified in the Act; and provide for periodic evaluation to determine if the instructional materials are being provided at the same time as students without disabilities receive their instructional materials.

It is suggested the statewide plan will designate the development of an advisory group; designate the entity responsible for collecting and maintaining data of the students who are blind or others with print disabilities who require instructional materials in specialized formats; establish the methods and procedures by which these materials will be provided in the appropriate media/medium; identify the resources available for production of instructional materials in specialized formats; establish procedures that local education agencies will follow to ensure the timely delivery of instructional materials; and provide for periodic evaluation to determine if the instructional materials are being provided at the same time as students without disabilities receive their instructional materials.

As part of any instructional materials adoption process, procurement contract, or other practice or instrument used for the purchase of instructional materials, state and local education agencies will ensure that there will be a written contract with publishers. This contract will define that publishers will provide electronic files of such materials in the national electronic file format, along with a print copy of such materials, and these files will be sent to the national repository (see Role of the National Instructional Materials Access Center).

In addition, the contract will specify the files must correspond to the most recent pupil edition and be sent in thirty days. If such materials are altered prior to use in the classroom and after the contract was ratified, a complete record of the changes and corrections will be sent to the Center. In the contractual agreement, the state or local educational agency may also request to directly obtain copies of the electronic files prepared and transmitted to the Center. This contractual agreement will take effect three years after the enactment of the Act.

As proposed, a jurisdiction's federal dollars will not be at risk simply because a particular student's book is not ready on the first day of class. However, the bill will, for the first time in our nation's history, require unequivocally that the federal government shall not offer federal financial sponsorship to states or agencies which do not work aggressively to ensure equal access to educational materials for blind or visually impaired children.

Definition of Instructional Materials

In the bill, the term "instructional materials" will mean written and published textbooks and related core materials (including those specific materials which shall be used by teachers for classroom instruction) required by a state or local education agency for use in elementary and secondary school instruction, including specifically requested teachers' editions of such materials.

The bill's coverage is limited strictly to printed instructional materials in K-12. This definition will include math and science materials (there is no distinction between literary and non-literary materials in this definition as there is in some definitions used by the states).

Finally, nothing in this definition, or in the text of the bill, can be used to argue that states are barred from enacting requirements on publishers regarding access to multimedia instructional materials, such as CD-ROMs or other non-print materials.

Grants for Capacity Building

This area will provide for grants to state or local educational agencies or nonprofit organizations with a primary mission to provide specialized services relating to training, education, or adaptive reading or the information access needs of blind persons or other persons with print disabilities. The grants will strengthen the technical assistance and training capacity across the United States.

Enforcement

The Act provides that the rights, remedies and procedures available to children and parents under the Individuals with Disabilities Education Act (as amended) and the Rehabilitation Act of 1973 (as amended) will also be available under this Act to children and parents aggrieved by violations of this Act by any state or local educational agency. Also, this Act does not limit any right, remedy, or procedure otherwise available under federal law which provided greater or equal protection for the rights of blind or other persons with print disabilities.

Relationship to Section 121 of the Copyright Act

These provisions clarify that, for purposes of the IMAA, a publisher's provision of print instructional materials to a State or local educational agency in the national electronic file format, and reproduction or distribution of such materials in a "large print" format by a government agency or nonprofit organization whose primary mission is to provide specialized services to blind persons or others with disabilities, will be considered noninfringing uses of such materials under the Chafee Amendment to the Copyright Act, 17 U.S.C. Section 121.

Use of Funds

This provision requires that any funds made available under the IMAA must be used to supplement, rather than to supplant, any other funds available to carry out the requirements of the IMAA.

Research and Reports

This provision requires the Secretary to research the effect of the IMAA on the timely delivery of accessible instructional materials to the students who require them, and to report to the appropriate Congressional committees on the results of such research no later than three (3) years after enactment.

Time Line

  • Legislation signed into law
  • 3 months from date of enactment: Appointment of Advisory Committee
  • 6 months from date of appointing the Advisory Committee: Proposed standards published in the Federal Register
  • 1 year from enactment of the Act: Final file format standards are established
  • 2 years from date of enactment: Access Center is established
  • 2 years from date of enactment: States must have a writtenstatewide plan in place
  • 3 years from date of enactment: Publishers must comply with NIST standards