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Background Information: Historically, many students with
disabilities, both in K-12 and college settings, have not had equal and timely
access to the same educational materials used by their non-disabled peers.
Even with today’s advanced technologies, students who require instructional
material in an alternate format continue to experience problems receiving such
material in a format suited to their individual learning needs. Under
the Americans with Disabilities Act and Section 504 of the Rehabilitation Act
of 1973, colleges are required to provide reasonable accommodations in the
form of auxiliary aids and services for students with disabilities. Chapter
219 of the Education Laws of 2003 further specifies the role of publishers and
manufacturers in the provision of instructional materials in the needed
alternate format for college students who can not access standard
instructional materials because of their disability.
Chapter 219 is the logical companion to earlier legislation advanced by the
Board of Regents to address similar barriers that prevent students in K – 12
educational settings from receiving instructional materials in the needed
alternate format. Effective April 21, 2002, Chapter 377 of the Laws of
2001 required every school district and BOCES to develop a plan to ensure that
all instructional materials to be used in the schools of the district (or in
the programs of the BOCES) are available in a usable alternate format for
every disabled student, in accordance with his or her individual needs, at the
same time that such materials are available to non-disabled students.
The plan must include a procurement policy that ensures that preference in the
purchase of instructional material the school has selected for its students is
given to those vendors who agree to provide such material in alternate
formats.
Chapter 219 uses a different approach to assure that students in the higher
education setting receive the instructional materials required for their
course of study in an alternate format that meets their accessibility needs.
Until the implementation of Chapter 219, 504/ADA compliance officers or the
disability services coordinator at the colleges and universities assumed the
full responsibility for the conversion of standard text into an alternate
format that could be accessed by the student with a print disability.
Effective August 15, 2004, responsibility for the timely provision of
alternate format materials to students in the higher education setting will be
shared by the publishers and manufacturers of the instructional materials as
well.
To insure the most effective implementation of Chapter 219, the New York
State Education Department engaged an advisory group of key stakeholders in
roundtable discussions prior to the law’s August, 2004 effective date.
Publishers, college disability services coordinators, students with
disabilities, representatives from Recordings for the Blind & Dyslexic (RFB&D),
the Digital Accessible Information System (DAISY) consortium, Commission for
the Blind and Visually Handicapped (CBVH), the National Center for Applied
Special Technology (CAST), the American Association of Publishers,
manufacturers of course packs, manufacturers of software used by many
print-disabled students, and college bookstores met to clarify key
terminology, discuss publisher, student and college implementation issues, and
identify possible Statewide policy issues. The group discussed long and
short-term goals regarding the standard to be achieved and the development of
a process for requesting alternate format material. An advisory group of
stakeholders will continue to gather data and identify issues as Chapter 219
is implemented.
These stakeholder discussions laid the groundwork for this technical
assistance document for the implementation of Chapter 219. All colleges
and publishers are asked to adhere to the following procedures, definitions,
and standards established by the New York State Education Department.
- A print-disability:
The disability services coordinator or 504/ADA compliance officer should use
professional judgement to determine whether a student has a disability that
prevents him/her from using standard instructional materials. In general, a
print disability results in the inability to effectively utilize print
material and may include blindness, some specific learning disabilities, or the inability
to hold a book.
- Chapter 219 definition of “timely manner”:
Publishers will provide requested text (using the hierarchy of preferred
file formats presented below) within 15 business days of receipt of a
request form including all necessary information pursuant to statute.
Publishers can use the attached form or a form of their choice. If the
publisher is unable to meet this timeline, notification will be given to the
college, within the aforementioned 15 days as to when the requested text can
be provided.
The college or university 504/ADA compliance officer or disability
services coordinator may e-mail requests for alternate format material to
publishers but must follow-up by fax or hard copy. If a student with a
disability contacts the publisher directly, the student will be referred
back to the college or university 504/ADA compliance officer or disability
services coordinator for determination of eligibility.
-
File format standard to be provided by the publishers:
Key stakeholders at the roundtable discussions agreed that primary
consideration should be made to provide materials in the format that is
preferred by the student. Keeping student preference in mind, it was
also agreed that New York State would set the long-term goal of providing
full text implementation of the ANSI/NISO Z39.86-2002 standard, the official
name for the American National Standard developed by the National
Information Standards Organization (NISO) and approved by the American
National Standards Institute (ANSI). This globally recognized
technical standard, sometimes referred to as DAISY3 (Digital Accessible
Information System) or DTB3 (Digital Talking Book), is meant to facilitate
the creation of accessible content and was originally developed to benefit
people unable to read print due to a disability (see
www.daisy.org/about_us/g_faq.asp &
http://www.loc.gov/nls/z3986/
for more information).
To the extent possible, system-wide implementation of DAISY3 will be
available by January 2007 for newly copyrighted products. Many
publishers and colleges are not prepared to meet the DAISY3 standard at this
time. Realizing that it may take time for both entities to acquire
necessary technology and the subsequent learning curve, the following
hierarchy of preferred source file formats that the colleges will receive
was agreed upon:
-
Full-text DAISY3 (the ANSI/NISO Z39.86 standard) is the ideal format when
possible;
- Accessible HTML (Hypertext Markup Language) which can be created and
processed by a wide range of tools and uses tags to structure text into
chapter headings, page numbers, section headings, and anchored placement of
graphic images with descriptors. Guidelines for writing accessible HTML can
be found at
http://www.w3.org/WAI/resources/#gl;
- Accessible and structured PDF (Portable Document Format - a format that
preserves the fonts, images, graphics and layout of the source document)
according to guidelines developed by Adobe (http://access.adobe.com
);
- Microsoft Word™ and ASCII (American Standard Code for Information
Interchange – a numerical representation of characters providing straight
text with no formatting such as tabs, bold, etc.) only as a last resort or
where it can be justified such as an old textbook or a novel.
Typically, colleges would prefer a desk copy of older publications rather
than ASCII.
These criteria apply to both printed instructional and non-printed
instructional material as described below.The advisory group will monitor
implementation over the next several years to determine capability of
publishers and institutions of higher education to implement the DAISY3
standard.
- Materials to be provided by publishers and manufacturers of instructional
materials in alternate format:
Where feasible, commercially published instructional material that is
essential to a student’s success in a collegiate course of study, as
determined by the instructor of the course, will be provided in alternate
format. Instructional material is defined as:
- printed instructional material, including the text of the material,
sidebars, the table of contents, chapter headings, subheadings, footnotes,
pictures, illustrations, graphs, charts, indexes, glossaries, and
bibliographies;
- supplementary non-printed instructional materials shall include all
materials, regardless of original format (CD-ROM, DVD, web pages, video and
audio tapes, etc) with the goal that all electronic materials will meet §508
guidelines.For background and additional details regarding §508 see:
http://www.access-board.gov/sec508/508standards.htm.
Nothing in this memo should be construed to discourage disability
services coordinators from seeking materials in alternate format from other
sources if appropriate. See
Appendix E for possible resources.
- College responsibilities:
- Colleges will remain responsible for providing students with the final
specialized file format such as Braille, Digital Talking Books (DTB), audio,
large print, etc., as well as media formats such as captioning, CD, tape,
and hard copy.
- The 504/ADA compliance officer or the disability services coordinator
will certify that the material will be used by a student with a disability
that prevents him/her from using standard instructional materials. The
students’ proof of disability will be kept on file at the college.
- The 504/ADA compliance officer or the disability services coordinator will
certify that the student has enrolled in the class for which the instructional
material is needed.
- The 504/ADA compliance officer or the disability services coordinator
will certify that the student has purchased the instructional material
(students will purchase the alternate format instructional material at the
same cost as other students pay for the standard version).
- Colleges will assure that, when ordering instructional materials for their
classes, faculty and staff are sensitive to the possibility that additional time
may be needed to acquire the material in an alternate format.The Advisory Group
is currently considering the development of a Standard Operating Procedure
Manual or guidance document that may be helpful for faculty. (See
http://www.tc3.edu/bcl/altformhandbook for the Alternative Format
Materials Handbook for Postsecondary Service Providers in New York State
created by the SUNY Disability Services Council for one example of such a
guidance document).
- Student responsibilities:
- Students will contact the 504/ADA compliance officer or the disability
services coordinator as early as possible to request instructional material in
an alternate format.
- Students will provide appropriate documentation of their disability to the
504/ADA compliance officer or the disability services coordinator as established
by campus policy.
- Students will read and sign the Agreement on the Use of Recorded,
Electronic, or Other Alternatively Formatted Course Materials form to
signify agreement to adhere to the requirements of the copyright revision act of
1976 as amended (17 U.S.C. §101 et seq.)
- Role of the instructor:
Instructors play a critical role in the process of obtaining instructional
material in an alternate format in a timely manner. Chapter 219 states
that the determination of which materials are “required or essential to student
success” shall be made by the instructor of the course.Instructors will need to
take into consideration the additional time required to obtain alternate format
material when planning subsequent semesters’ orders for commercially developed
printed and non-printed instructional materials to be used for courses.
- Implication of the Copyright Law and the Chafee Amendment:
The responsibilities and procedures developed herein and in Chapter 219
preserve the rights reserved for copyright holders under the Copyright Revision
Act of 1976 (17 U.S.C. §101 et seq.).
The Chafee Amendment regarding copyright protections for materials being made
into accessible format does not apply directly to the implementation of Chapter
219 because colleges are to request copies of documents directly from the
publishers. In the case where a disability services office converts material
in-house, provides materials to an additional student, or obtains copyrighted
electronic material from another office (e.g. through the AMX Database), we
recommend that the procedures developed for the implementation of Chapter 219 be
followed to avoid possibilities of unintended copyright infringement.Permission
should be requested from the publisher by use of the Request form, noting that a
file copy is not required. The student should purchase a copy of the materials
and sign the Agreement on the Use of Recorded, Electronic, or Other
Alternatively Formatted Course Material.All copies, irrespective of format,
should contain copyright notice and prohibition against further reproduction.
See Appendix C for the implications of the Chafee
Amendment and Fair Use defense in relation to other institutional processes for
the provision of alternate format materials.
For additional information please contact the Office
of Quality Assurance of Higher Education at: (518) 486-3633 or the Program
Development and Support Services Unit of VESID at: (518) 486-7462. This
technical assistance field memorandum will be made available at:
www.highered.nysed.gov/Quality_Assurance/home.html. It is currently
available at
www.vesid.nysed.gov/specialed/publications/persprep/chap219.htm. The
Department will share new information as it becomes available.
Appendix A
LAWS OF NEW YORK, 2004
AN ACT to amend the education law, in relation to instructional materials
for students with disabilities; and to amend chapter 219 of the laws of 2003,
amending the education law relating to providing printed instructional
materials for college students with disabilities, in relation to the
effectiveness thereof
Became a law April 6, 2004, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.
The People of
the State of New York, represented in Senate and Assembly, do enact as
follows:
Section 1. Section 715 of the education law, as added by chapter
219 of the laws of 2003, is amended to read as follows:
§
715. Instructional materials; students with disabilities.
- For purposes of this section, the following words shall have the
following meanings: (a) "College" means college as defined in
subdivision two of section six hundred one of this chapter;
(b) "Instructional material or materials" means textbooks and
other materials written and published by commercial publishers primarily
for use by students in postsecondary instruction that are required or
essential to a student's success in a course of study in which a student with
a disability is enrolled. The determination
of which materials are "required or essential to student success" shall be
made by the instructor of the course. "Instructional material or
materials" shall also include commercially published nontextual
mathematics and science material wherever available software permits
the conversion of existing electronic files of the
materials into a format that is compatible with braille translation software
or alternative media for students with
disabilities. (c) "Nonprinted instructional materials" means
commercially published instructional materials in formats other than print,
and includes commercially published instructional materials that require the
availability of electronic equipment in order to be used as a learning
resource, including, but not necessarily limited to,
commercially published software programs, video disks, and video and audio
tapes. (d) "Printed instructional material or materials" means
instructional material or materials commercially published in book or other
commercially published printed form. (e) "Structural integrity"
means all of the commercially published printed instructional material,
including, but not limited to, the text of the material, sidebars, the table
of contents, chapter headings and subheadings, footnotes, pictures,
illustrations, graphs, charts, indexes, glossaries, and bibliographies. If
good faith efforts fail to produce an agreement pursuant to subdivision two of
this section between the publisher or manufacturer and the commissioner as to
an electronic format that will preserve the structural integrity of the
commercially published printed instructional material, the publisher or
manufacturer shall provide the instructional material in the most updated
electronic format taking into consideration the recommendation made by the
National Institute of Standards and Technology (NIST) and shall preserve as
much of the structural integrity of the commercially published printed
instructional material as possible. (f) "Specialized format" means
braille, audio, or digital text that is exclusively for use by blind persons
and students with other disabilities. Nothing in this subdivision shall
be construed to prohibit a college from assisting a student with a disability
by using the electronic version of commercially published printed
instructional material provided pursuant to this section solely to transcribe
or arrange for the transcription of the commercially published printed
instructional material into braille. In the event such a transcription is
made, the college shall have the right to share such braille copy of the
commercially published printed instructional material with other students with
disabilities.
-
An individual, firm, partnership or corporation that publishes or manufactures
commercially published printed instructional materials for students attending
college shall provide for purchase by students with disabilities such printed
instructional material in an electronic format mutually agreed upon by the
commercial publisher or manufacturer and the commissioner. These commercially
published printed instructional materials must be converted to an electronic
format using the most updated software technology available to the public at
that time. Computer files or electronic versions of commercially
published printed instructional materials shall maintain the structural
integrity of such printed instructional material, be compatible with commonly
used braille translation and speech synthesis software, and include
corrections and revisions as may be necessary. The computer files or
electronic versions of the commercially published printed instructional
material shall be available to students with disabilities at a cost comparable
to the printed version of such commercially published material and in a timely
manner, upon receipt of a written request that does all of the following:
(a) Certifies that the electronic version of the commercially published
printed instructional materials will be used by a student with a disability.
(b) Certifies that the student has a disability that prevents him or her from
using standard commercially published instructional materials. (c)
Certifies that the commercially published printed instructional material is
for use by the student in connection with a course in which he or she is
registered or enrolled at the college. (d) Is signed by the coordinator
of services for students with disabilities at the college or by the campus or
college official responsible for monitoring compliance with the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) at the college.
- An
individual, firm, partnership or corporation specified in subdivision two of
this section may also require that, in addition to the conditions enumerated
above, the request shall include a statement signed by the student agreeing to
both of the following: (a) He or she will use the electronic copy of the
commercially published printed instructional material in specialized format
solely for his or her own educational purposes. (b) He or she will not
copy or duplicate the commercially published printed instructional material or
electronic copy for use by others
consistent with the requirements of the copyright revision act of 1976,
as amended (17 U.S.C. §101et seq.).
-
If a college permits a student to directly use the electronic version of a
commercially published instructional material, such student shall use the disk
or file in a manner that complies at all times with the Copy-right Revisions
Act of 1976, as amended (17 U.S.C. Sec. 101 et seq.).
An
individual, firm, partnership or corporation that, for commercial purposes,
publishes or manufactures nonprinted instructional materials for students
attending college shall provide computer files or other electronic versions of
such nonprinted instructional materials for use by students attending such
college subject to the same conditions set forth in subdivisions two and three
of this section for printed instructional materials, when technology is
available to convert these nonprinted instructional materials published or
manufactured for commercial purposes to a format that maintains the structural
integrity of such nonprinted instructional materials that is compatible with
braille translation and speech synthesis software.
-
Nothing in this section shall be deemed to authorize any use of any
commercially published instructional materials that would constitute an
infringement of copyright under the Copyright Revision Act of 1976, as amended
(17 U.S.C. Sec. 101 et seq.).
§ 2.
Section 2 of chapter 219 of the laws of 2003, amending the education law
relating to providing printed instructional materials for college students
with disabilities, is amended to read as follows:
§ 2.
This act shall take effect August 15, 2004 and shall expire and be deemed
repealed 3 years after such effective date.
§ 3.
This act shall take effect immediately; provided, however, that sections one
and two of this act shall take effect on the same date as chapter 219 of the
laws of 2003; and provided further, however, that the amendments to section
715 of the education law made by section one of this act shall not affect the
repeal of such section and shall be deemed to be repealed therewith.
Appendix B, Publisher Request/Student
Agreement Forms in:
HTML l
Word l
PDF
Appendix C The Copyright Law, Chafee Amendment and Fair
Use
Section
102(a) of the Copyright Act (Title 17 U.S.C.) provides copyright protection “in
original works of authorship fixed in any tangible medium of expression, now
known or later developed, from which they can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine or device.”
The author’s/copyright
holder’s (often the publisher in the case of commercially published works)
exclusive rights under copyright include the right to:
-
Reproduce the work
- Prepare derivative words (recasting,
adapting, transforming already existing works)
-
Distribute copies publicly
-
Perform the work publicly
-
Display the work publicly
-
Create sound recordings
Therefore, creating an audiotape of a textbook, scanning a print text to
create digital text, creating a large print or Braille version of a textbook,
and providing a copy to an additional student all fall within this list of
rights reserved to the copyright holder.
Until such time as textbooks and other materials are commercially available
in all needed formats, there will be an inherent conflict between the
institution’s obligation to provide access and the rights of the copyright
holder. Two primary arguments are made to reconcile these
rights/responsibilities:
Section 121 of the law, often referred to as “The Chafee Amendment,” exempts
certain “authorized entities” from the rights of copyright owners with respect
to reproducing and distributing copies of “previously-published non-dramatic
works” in “specialized formats exclusively for use by blind or other persons
with disabilities.” Authorized entities are 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.”
While many colleges and universities [and the Office of Civil Rights in
California Community Colleges, OCR Case Docket No. 09-97-6001 (January 22,
1998)] have identified college disability services offices as meeting this
definition, some others and the American Association of Publishers argue that
they cannot be so considered.
Section 107 of the law provides an affirmative defense from a claim of copyright
infringement for cases that meet the test of “Fair Use.” The purposes
generally recognized include criticism, comment, news reporting, some teaching,
scholarship, and research. The test for applicability includes the
following four factors:
-
Purpose and character of use
-
Nature of work
-
Amount and substantiality of portion used,
and
-
Effect of use on potential market value of
the original copyrighted work.
Although some argue that conversion of print materials to provide access for
persons with disabilities should be considered a Fair Use, currently there is no
clear legal precedent on the question of whether the creation and provision of
these materials under Section 504 and the ADA can or cannot be considered a
violation of the copyright holder’s rights. Institutions should examine
their policies and procedures in light of both sets of rights – student and
copyright holder.
Appendix D
Updated lists of publisher contacts are
available at:
http://www.htctu.net/divisions/altmedia/ab422/sample_docs/Publisher_Contact_List.pdf
Appendix E Resources for Obtaining Alternate Materials
Materials appropriate for a particular student’s needs may already be available
from various sources including:
- Access USA
P.O. Drawer 160
242 James Street
Clayton, NY 13624
1-800-263-2750
Access USA transcribes literature of all sizes, from brochures to books into
Braille, audio cassette tape, large-type or electronic format. Open
and closed video captioning as well as audio descriptive services (a narrative
addition that describes the actions, motions, emotions and details of each video
scene) are also available. Access USA offers 24 language choices.
- Adobe Accessibility Web site:
http://access.adobe.com or
http://www.adobe.com/products/acrobat/solutionsacc.html
For students who may prefer HTML, a web based PDF to
HTML conversion service is available at:
http://www.adobe.com/products/acrobat/access_simple_form.html
- AMX (Alternate Media Exchange)
www.htctu.fhda.edu
- American Foundation for the Blind (AFB)
Textbooks and Instructional Materials Solutions Forum
Accessible Textbooks Tool Kit
260 Treadway Plaza
Dallas, Texas 75235
(214) 352-7222, ext 15
siller@afb.net
www.afb.org/education.asp
The American Foundation for the Blind (AFB) created the Accessible Textbooks
Tool Kit to address the challenge faced by textbook administrators, school
district leaders, teachers and parents of identifying appropriate instructional
materials for students who are blind or visually impaired. The packet of
materials contains common acronyms used when speaking about accessible
textbooks, the major issues surrounding textbook acquisition, and resources.
- Bookshare.Org
The Benetech Initiative
480 California Avenue
Suite 201
Palo Alto, CA 94306-1609
www.bookshare.org
Bookshare.org is an online community that enables U.S. residents with a
disability that makes it difficult or impossible to read standard print to
legally share scanned books. Bookshare.org provides access to a large online
library of accessible digital book. Textbooks are provided by schools and
individuals that share material they have taken the time to scan and prepare for
their own use reducing duplication of scanning effort. Books from Bookshare.org
contain the full text of the book (not pre-recorded audio) that can be read with
the adaptive technology of the reader's choice. A talking software application
is included with membership, providing members with one option for reading the
books. Books are available in two specialized formats: the ANSI/NISO Z39.86
(DAISY3 digital talking book) standard and the Braille digital format BRF.
Schools can also order embossed Braille and contracted digital Braille copies of
books from the collection.
Schools can sponsor and manage individual subscriptions for their students
through a Multiple Subscription Account.
- Captioned Media Program
National Association of the Deaf
1447 East Main Street
Spartanburg, SC 29307
1-800-237-6213 Voice, 1-800-237-6819 TTY
E-mail
info@cfv.org
www.cfv.org for the complete CMP catalog and online ordering
Captioned Media Program (CMP), funded by the U.S. Department of Education,
selects, captions, and distributes captioned media. CMP has over 4,000
open-captioned videos that are loaned free of charge to persons who are deaf or
hard of hearing, parents, teachers, and other professionals who work with this
population. CMP welcomes recommendations for additional titles to be
captioned. CMP also has free materials (printed and online) that explain
the difference between open- and closed-captioning, listings of captioning
agencies across the United States, and guidelines to help schools and beginning
captioning agencies learn how to caption.
- Center for Applied Special Technology (CAST)
40 Harvard Mills Square, Suite 3
Wakefield, Massachusetts 01880-3233
(781) 245-2212
cast@cast.org
www.cast.org/ (for information on
the National File Format)
CAST is a not-for-profit education research and development organization that
uses technology to make education more flexible and accessible for all students,
especially those with disabilities. CAST offers professional development
and intensive training in Universal Design for Learning (UDL)-based classroom
practices for teachers and administrators.
- E-Brary
http://www.ebrary.com ,
http://learningnetwork.ebrary.com/
- Kurzweil Educational Systems, Inc.
14 Crosby Rd.
Bedford, Massachusetts 01730
(800) 894-5374 ext. 609
www.kurzweiledu.com
Kurzweil Educational Systems, Inc. is a vendor of reading technology for
people with learning difficulties and those who are blind or visually impaired.
All of Kurzweil’s Reading Machines incorporate clear, human-like synthesized
voices coupled with easy-to-use features for accessing, reading, managing and
creating text and images.
- Louis Database
www.aph.org
- MetaText Digital Textbooks
http://www.metatext.com/
- National Library Service for the Blind and Physically Handicapped (NLS): The
Library of Congress
http://www.loc.gov/nls
- NetLibrary
http://www.netlibrary.com
- Project Gutenberg
http://promo.net/pg/
- Recording for the Blind & Dyslexic
RFB&D, 20 Roszel Road
Princeton, NJ 08540
1-800-221-4792
609-520-8096
Custom Recording Service
www.rfbd.org
RFB&D’s library contains more than 98,000 titles in a broad variety of subjects,
from literature and history to math and the sciences, at all academic levels,
from kindergarten through post-graduate and professional. Anyone with a
documented disability—including a visual impairment, learning disability or
other physical disability which makes reading standard print difficult or
impossible—is eligible to use RFB&D's audio textbooks. Institutional or
individual membership is required to access the RFB&D library. Students may join
as individual members or become a member through their school if the school has
an RFB&D Learning Through Listening™ institutional membership. There is a
membership fee.
- SafariX
www.safarix.com
- University of Virginia
http://etext.lib.virginia.edu/
Part A should be returned to the publishing company at the address provided
above.
Parts A and B should be retained in the institution’s files.
Forms in:
HTML l
Parts A and B: Word l
PDF Full Document in: Word l
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