Amendment ASA1-AB322

LRBs0293/1

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2011 - 2012 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2011 ASSEMBLY BILL 322

February 14, 2012 - Offered by Representatives Knilans and Seidel.

AB322-ASA1,1,3 An Act to create 106.57 of the statutes; relating to: accessible instructional materials for students with disabilities enrolled in institutions of higher education.

Analysis by the Legislative Reference Bureau

Current law

Under current state law, the University of Wisconsin System (UW System) and the Technical College System (TCS) may not deny to a student admission to, participation in, or the benefits of, or discriminate against a student in, any service, program, course, or facility because of the student's disability. In addition, under current federal law, a college, university, or other postsecondary institution, including a private postsecondary institution, may not exclude a student from participation in, deny a student the benefits of, or subject a student to discrimination under any program or activity receiving federal financial assistance. Federal regulations specify that a postsecondary institution receiving federal financial assistance must ensure that no student with a disability is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.

The Substitute Amendment

Request for instructional material in alternative or electronic format. This substitute amendment permits an institution or college campus within the UW System, a technical college within the TCS, or a private, nonprofit institution of higher education that is a member of the Wisconsin Association of Independent Colleges and Universities (institution of higher education), on behalf of a student who is blind or visually impaired, or who has a specific learning disability or other physical condition that prevents the student from using instructional material in standard print format, and who needs reasonable accommodations to read (student with a disability), to request a publisher to provide instructional material in either of the following formats:

1. Braille, large print texts, audio recordings created with the use of text-to-speech technology, electronic formats used with screen reader devices or other assistive technology, or digital talking books that are required by a student with a disability to make instructional material accessible to the student (alternative format).

2. A computer file or other digital medium embodying instructional material that can be made into an alternative format or that is capable of serving as an alternative format, if used with a screen reader device or other assistive technology (electronic format).

Under the substitute amendment, a request for instructional material in alternative format or electronic format (request) must certify: 1) that a copy of the instructional material in a standard format has been purchased for use by a student with a disability; 2) that the student is a student with a disability; 3) that the instructional material is for use by the student in connection with a course at the institution of higher education in which the student is enrolled; and 4) whether the institution of higher education has in its possession a copy of the instructional material in electronic format and, if so, whether that copy is capable, if used with assistive technology, of serving as an alternative format suitable for the needs of the student with a disability or of being converted, using generally available technology, into the particular alternative format needed by the student. In addition, the publisher may require the student to sign a statement agreeing that the student will use the instructional material in alternative format solely for his or her own educational purposes and that the student will not copy or distribute the instructional material in alternative format for use by others.

Provision of instructional material in alternative or electronic format. The substitute amendment requires a publisher, in response to a request, to do one of the following:

1. Provide to the requester a copy of the instructional material in alternative format by delivering a computer disk or file.

2. Provide to the requester access to the instructional material in alternative format by providing an Internet password or by providing that access in any other appropriate matter.

3. Provide to the requester a copy of the instructional material in electronic format.

4. At its option, grant to the institution of higher education permission to convert the instructional material into the particular alternative format needed by the student with a disability.

5. If the publisher believes that it is unable to provide the instructional material in alternative format or electronic format or grant permission to convert the instructional material into alternative format because the publisher does not own or control some or all of the copyright in the instructional material, provide to the requester the name of the person that, to the best of the publisher's knowledge, is able to fulfill the request.

Within seven days after receiving a request, the publisher must respond to the request by providing a notice advising the requester as to which of the actions, if any, permitted under the substitute amendment the publisher intends to take. If the publisher provides notice that the publisher intends to provide a copy of the instructional material in electronic format, the publisher must provide the material in that format no later than seven days after providing that notice. If the publisher provides notice that the publisher intends to provide a copy of, or access to, the instructional material in alternative format, the publisher must provide that material or that access no later than 14 days after providing that notice.

Under the substitute amendment, instructional material provided by a publisher in electronic format must: 1) maintain the structural integrity of the original instructional material, which means that all of the information provided in printed instructional material, including the text of sidebars; the table of contents; chapter headings and subheadings; footnotes; indexes; glossaries; bibliographies; nontextual elements, such as pictures, illustrations, graphs, charts, and screenshots; and any other data that are pertinent to the instructional material, is included when that printed instructional material is provided in alternative format or electronic format; 2) be compatible with an assistive technology that is suitable for the needs of the student with a disability or, if the student needs an embossed Braille version of the instructional material, be compatible with commonly used Braille translation software; and 3) include corrections and revisions that have been generally published with respect to the instructional material.

Use of instructional material in alternative or electronic format. The substitute amendment permits an institution of higher education to create an alternative format of instructional material for which a request has been made if any of the following apply:

1. The publisher provides a copy of the instructional material in electronic format.

2. The publisher grants permission to convert the instructional material into alternative format.

3. The publisher indicates that the publisher does not intend to provide a copy of the instructional material in alternative format or electronic format because the institution of higher education already possesses a copy of the instructional material in electronic format that is capable of serving as an alternative format or of being converted in an alternative format.

4. The publisher does not respond to a request within seven days after receipt of the request as required under the substitute amendment or does not fulfill the request within 7 or 14 days after providing notice of its intent as required under the substitute amendment.

The substitute amendment requires an institution of higher education that has in its possession a copy of instructional material in alternative format or electronic format that has been provided by a publisher or an alternative format of instructional material that has been created by the institution to satisfy all subsequent requests for instructional material in that format from its own students without requesting the publisher to provide that material and permits the institution, if requested, to provide instructional material in that format to another institution of higher education for use by a student of that other institution. The substitute amendment, however, requires the institution of higher education to provide to the publisher, for each student for whom the instructional material is provided, the same certification and statement that is required for an original request.

Nonapplicability of substitute amendment. The requirements and prohibitions created in the substitute amendment, however, do not apply to a person that is a member of a nationwide exchange network that facilitates the delivery of instructional material in alternative format to students with disabilities, if that material is delivered within seven days after a request for the material. The substitute amendment also does not apply if instructional material in the particular format needed by a student with a disability is commercially available from the publisher of the material.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB322-ASA1, s. 1 Section 1. 106.57 of the statutes is created to read:

AB322-ASA1,4,3 106.57 Postsecondary education; accessible instructional material for students with disabilities. (1) Definitions. In this section:

AB322-ASA1,4,8 (a) "Alternative format" means Braille, large print texts, audio recordings created with the use of text-to-speech technology, electronic formats used with screen reader devices or other assistive technology, or digital talking books that are required by a student with a disability to make instructional material accessible to the student.

AB322-ASA1,5,4 (b) "Electronic format" means a computer file or other digital medium embodying instructional material that can be made into an alternative format or that is capable of serving as an alternative format, if used with a screen reader device or other assistive technology.

AB322-ASA1,5,8 (c) "Institution of higher education" means an institution or college campus within the University of Wisconsin System, a technical college within the technical college system, or a private, nonprofit institution of higher education that is a member of the Wisconsin Association of Independent Colleges and Universities.

AB322-ASA1,5,14 (d) "Instructional material" means a textbook or other material written and published in print format primarily for use by students in postsecondary instruction that is required or essential to the success of a student with a disability in a course of study in which the student is enrolled, as determined by the instructor of the course in consultation with the person specified in sub. (2) (b) who requests that material in alternative format or electronic format under sub. (2) (a).

AB322-ASA1,5,21 (e) "Maintain the structural integrity" means to include all of the information provided in the original instructional material, including the text of sidebars; the table of contents; chapter headings and subheadings; footnotes; indexes; glossaries; bibliographies; nontextual elements, such as pictures, illustrations, graphs, charts, and screenshots; and any other data that are pertinent to the instructional material, when that original instructional material is provided in alternative format or electronic format.

AB322-ASA1,6,3 (f) "Publisher" means a person that is in the business, whether for profit or not for profit, of selling instructional material in which the person owns or controls some or all of the copyright. "Publisher" does not include a person that is a member of a nationwide exchange network that facilitates and supports the delivery of instructional material in alternative format to students with disabilities, if that material is delivered to those students through that network within 7 working days after a request for that material is made.

AB322-ASA1,6,8 (g) "Student with a disability" means a student enrolled in an institution of higher education who is blind or visually impaired, or who has a specific learning disability or other physical condition that prevents the student from using instructional material in standard print format, and who needs reasonable accommodations to read.

AB322-ASA1,6,9 (h) "Writing" includes facsimile transmission or electronic mail.

AB322-ASA1,6,18 (2) Request for instructional material in alternative or electronic format. (a) Except as provided in this paragraph, an institution of higher education, on behalf of a student with a disability, may request a publisher to provide instructional material in alternative format or electronic format by submitting to the publisher a request that complies with par. (b) and with any additional requirement imposed by the publisher under par. (c). An institution of higher education may not request a publisher to provide instructional material under this paragraph if the instructional material in the particular format needed by the student is commercially available from the publisher of the material.

AB322-ASA1,7,2 (b) A request under par. (a) for instructional material in alternative format or electronic format shall be prepared and signed by the coordinator of services for students with disabilities at the institution of higher education or by another employee of the institution of higher education who is responsible for providing services or accommodations for students with disabilities or for monitoring compliance with the federal Americans with Disabilities Act, 42 USC 12101 to 12213, or the federal Rehabilitation Act of 1973, 29 USC 701 to 796L, on behalf of the institution of higher education, shall provide notice to the publisher of the publisher's duties under this section, and shall certify all of the following:

AB322-ASA1,7,10 1. That a copy of the instructional material in standard format has been purchased for use by a student with a disability by the student or by the institution of higher education in which the student is enrolled. The institution of higher education shall keep records sufficient to verify that a separate copy of instructional material in standard format has been purchased for each student with a disability for whom instructional material in alternative format or electronic format is requested under par. (a), and a publisher has the right to inspect, or receive copies of, those records that relate to instructional material published by the publisher.

AB322-ASA1,7,11 2. That the student is a student with a disability.

AB322-ASA1,7,14 3. That the instructional material is for use by the student with a disability in connection with a course at the institution of higher education in which the student is enrolled.

AB322-ASA1,7,19 4. Whether the institution of higher education has in its possession a copy of the instructional material in electronic format and, if so, whether that copy is capable, if used with assistive technology, of serving as an alternative format suitable for the needs of the student with a disability or of being converted, using generally available technology, into the particular alternative format needed by the student.

AB322-ASA1,7,22 (c) A publisher may require a request under par. (a) to also be accompanied by a statement signed by the student or, if the student is a minor, the student's parent, guardian, or legal custodian agreeing to all of the following:

AB322-ASA1,7,24 1. That the student will use the instructional material in alternative format solely for his or her own educational purposes.

AB322-ASA1,8,2 2. That the student will not copy or distribute the instructional material in alternative format for use by others.