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
1An Act to create 106.57 of the statutes;
relating to: accessible instructional
2materials for students with disabilities enrolled in institutions of higher
3education.
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-ASA1,4,3
2106.57 Postsecondary education; accessible instructional material for
3students with disabilities. (1) Definitions. In this section:
AB322-ASA1,4,84
(a) "Alternative format" means Braille, large print texts, audio recordings
5created with the use of text-to-speech technology, electronic formats used with
6screen reader devices or other assistive technology, or digital talking books that are
7required by a student with a disability to make instructional material accessible to
8the student.
AB322-ASA1,5,4
1(b) "Electronic format" means a computer file or other digital medium
2embodying instructional material that can be made into an alternative format or
3that is capable of serving as an alternative format, if used with a screen reader device
4or other assistive technology.
AB322-ASA1,5,85
(c) "Institution of higher education" means an institution or college campus
6within the University of Wisconsin System, a technical college within the technical
7college system, or a private, nonprofit institution of higher education that is a
8member of the Wisconsin Association of Independent Colleges and Universities.
AB322-ASA1,5,149
(d) "Instructional material" means a textbook or other material written and
10published in print format primarily for use by students in postsecondary instruction
11that is required or essential to the success of a student with a disability in a course
12of study in which the student is enrolled, as determined by the instructor of the
13course in consultation with the person specified in sub. (2) (b) who requests that
14material in alternative format or electronic format under sub. (2) (a).
AB322-ASA1,5,2115
(e) "Maintain the structural integrity" means to include all of the information
16provided in the original instructional material, including the text of sidebars; the
17table of contents; chapter headings and subheadings; footnotes; indexes; glossaries;
18bibliographies; nontextual elements, such as pictures, illustrations, graphs, charts,
19and screenshots; and any other data that are pertinent to the instructional material,
20when that original instructional material is provided in alternative format or
21electronic format.
AB322-ASA1,6,322
(f) "Publisher" means a person that is in the business, whether for profit or not
23for profit, of selling instructional material in which the person owns or controls some
24or all of the copyright. "Publisher" does not include a person that is a member of a
25nationwide exchange network that facilitates and supports the delivery of
1instructional material in alternative format to students with disabilities, if that
2material is delivered to those students through that network within 7 working days
3after a request for that material is made.
AB322-ASA1,6,84
(g) "Student with a disability" means a student enrolled in an institution of
5higher education who is blind or visually impaired, or who has a specific learning
6disability or other physical condition that prevents the student from using
7instructional material in standard print format, and who needs reasonable
8accommodations to read.
AB322-ASA1,6,99
(h) "Writing" includes facsimile transmission or electronic mail.
AB322-ASA1,6,18
10(2) Request for instructional material in alternative or electronic format.
11(a) Except as provided in this paragraph, an institution of higher education, on
12behalf of a student with a disability, may request a publisher to provide instructional
13material in alternative format or electronic format by submitting to the publisher a
14request that complies with par. (b) and with any additional requirement imposed by
15the publisher under par. (c). An institution of higher education may not request a
16publisher to provide instructional material under this paragraph if the instructional
17material in the particular format needed by the student is commercially available
18from the publisher of the material.
AB322-ASA1,7,219
(b) A request under par. (a) for instructional material in alternative format or
20electronic format shall be prepared and signed by the coordinator of services for
21students with disabilities at the institution of higher education or by another
22employee of the institution of higher education who is responsible for providing
23services or accommodations for students with disabilities or for monitoring
24compliance with the federal Americans with Disabilities Act,
42 USC 12101 to
12213,
25or the federal Rehabilitation Act of 1973,
29 USC 701 to
796L, on behalf of the
1institution of higher education, shall provide notice to the publisher of the
2publisher's duties under this section, and shall certify all of the following:
AB322-ASA1,7,103
1. That a copy of the instructional material in standard format has been
4purchased for use by a student with a disability by the student or by the institution
5of higher education in which the student is enrolled. The institution of higher
6education shall keep records sufficient to verify that a separate copy of instructional
7material in standard format has been purchased for each student with a disability
8for whom instructional material in alternative format or electronic format is
9requested under par. (a), and a publisher has the right to inspect, or receive copies
10of, those records that relate to instructional material published by the publisher.
AB322-ASA1,7,1111
2. That the student is a student with a disability.
AB322-ASA1,7,1412
3. That the instructional material is for use by the student with a disability in
13connection with a course at the institution of higher education in which the student
14is enrolled.
AB322-ASA1,7,1915
4. Whether the institution of higher education has in its possession a copy of
16the instructional material in electronic format and, if so, whether that copy is
17capable, if used with assistive technology, of serving as an alternative format suitable
18for the needs of the student with a disability or of being converted, using generally
19available technology, into the particular alternative format needed by the student.
AB322-ASA1,7,2220
(c) A publisher may require a request under par. (a) to also be accompanied by
21a statement signed by the student or, if the student is a minor, the student's parent,
22guardian, or legal custodian agreeing to all of the following:
AB322-ASA1,7,2423
1. That the student will use the instructional material in alternative format
24solely for his or her own educational purposes.
AB322-ASA1,8,2
12. That the student will not copy or distribute the instructional material in
2alternative format for use by others.
AB322-ASA1,8,6
3(3) Provision of instructional material in alternative or electronic format.
4(a) In response to a request under sub. (2) (a), on behalf of a student with a disability,
5for instructional material in alternative format or electronic format, a publisher
6shall do one of the following:
AB322-ASA1,8,87
1. Provide to the requester a copy of the instructional material in alternative
8format by delivering a computer disk or file.
AB322-ASA1,8,119
2. Provide to the requester access to the instructional material in alternative
10format by providing an Internet password or by providing that access in any other
11appropriate matter.
AB322-ASA1,8,1312
3. Provide to the requester a copy of the instructional material in electronic
13format.
AB322-ASA1,8,1614
4. At its option, grant to the institution of higher education permission to
15convert the instructional material into the particular alternative format needed by
16the student with a disability.
AB322-ASA1,8,2017
5. If the publisher believes that it is unable to act under subd. 1. to 4. because
18the publisher does not own or control some or all of the copyright in the instructional
19material, provide to the requester the name of the person that, to the best of the
20publisher's knowledge, is able to fulfill the request.
AB322-ASA1,8,2321
(b) Within 7 days after receipt of a request under sub. (2) (a), a publisher shall
22respond to the request by providing to the requester one of the following notices in
23writing:
AB322-ASA1,8,2524
1. A notice advising the requester as to which of the actions under par. (a) 1.
25to 3. the publisher intends to take.
AB322-ASA1,9,8
12. If the request indicates that the institution of higher education has in its
2possession a copy of the instructional material in electronic format and that the copy
3is capable of serving as an alternative format suitable for the needs of the student
4with a disability or of being converted into the particular alternative format needed
5by the student, a notice advising the requester that the publisher intends to take
6none of the actions under par. (a) 1. to 3. If this subdivision applies, the publisher
7may grant permission to convert the instructional material into alternative format
8as provided in par. (a) 4.
AB322-ASA1,9,149
3. If the publisher does not possess a copy of the instructional material in
10alternative format or electronic format or if the publisher does not possess technology
11that will maintain the structural integrity of the instructional material, a notice
12advising the requester that the publisher intends to take none of the actions under
13par. (a) 1. to 3. If this subdivision applies, the publisher may grant permission to
14convert the instructional material into alternative format as provided in par. (a) 4.
AB322-ASA1,9,1815
4. If the publisher believes that it is unable to act under par. (a) 1. to 4. because
16the publisher does not own or control some or all of the copyright in the instructional
17material, notice of the name of the person that, to the best of the publisher's
18knowledge, is able to fulfill the request.
AB322-ASA1,9,2219
(c) 1. If the publisher provides notice under par. (b) 1. that the publisher intends
20to provide a copy of the instructional material in electronic format as provided in par.
21(a) 3., the publisher shall provide the material in that format no later than 7 days
22after providing that notice.
AB322-ASA1,9,2523
2. If the publisher provides notice under par. (b) 1. that the publisher intends
24to provide a copy of the instructional material in alternative format as provided in
25par. (a) 1. or to provide access to the instructional material in alternative format as
1provided in par. (a) 2., the publisher shall provide the material in that format or
2provide that access no later than 14 days after providing that notice.
AB322-ASA1,10,43
(d) Instructional material provided by a publisher in alternative format or
4electronic format shall meet all of the following requirements:
AB322-ASA1,10,135
1. To the extent possible, maintain the structural integrity of the original
6instructional material, except that this requirement does not apply to nontextual
7instructional material unless the publisher possesses technology that will maintain
8the structural integrity of the nontextual instructional material. If the publisher
9does not have technology that will maintain the structural integrity of the original
10instructional material, the publisher shall so notify the institution of higher
11education under par. (b) 3. and may grant permission to the institution of higher
12education to convert the instructional material into alternative format as provided
13in par. (a) 4.
AB322-ASA1,10,1714
2. Be compatible with an assistive technology that is suitable for the needs of
15the student with a disability or, if the student needs an embossed Braille version of
16the instructional material, be compatible with commonly used Braille translation
17software.
AB322-ASA1,10,1918
3. Include corrections and revisions that have been generally published with
19respect to the instructional material.
AB322-ASA1,10,2220
(e) 1. Subject to subd. 2., an institution of higher education may create an
21alternative format of instructional material for which a request has been made under
22sub. (2) if any of the following apply:
AB322-ASA1,10,2423
a. The publisher provides a copy of the instructional material in electronic
24format under par. (a) 3.
AB322-ASA1,11,2
1b. The publisher grants permission to convert the instructional material into
2alternative format as provided in par. (a) 4.
AB322-ASA1,11,33
c. The publisher responds to the request as provided in par. (b) 2.
AB322-ASA1,11,44
d. The publisher does not respond to the request as required under par. (b).
AB322-ASA1,11,55
e. The publisher does not fulfill the request as provided in par. (c) 1. or 2.
AB322-ASA1,11,96
2. An institution of higher education may not create an alternative format of
7instructional material if the instructional material in the particular alternative
8format needed by a student with a disability is commercially available from the
9publisher of the material.
AB322-ASA1,11,1910
(f) A publisher that sells instructional materials for use by students enrolled
11in institutions of higher education shall provide the name and contact information
12of its office or employee who is designated to handle requests under sub. (2) (a) to the
13persons specified in sub. (2) (b) for those institutions. A publisher may provide that
14information either by posting that information on its Internet site or by providing
15that information in writing to those persons. If a publisher fails to provide that
16information, a person specified in sub. (2) (b) may request that information, or may
17request instructional material under sub. (2) (a), by sending the request to the
18publisher at the address of the publisher's principal place of business, directed to the
19attention of the publisher's rights and permissions department.
AB322-ASA1,12,220
(g) Nothing in this subsection may be construed to require a publisher to incur
21an investment that the publisher cannot reasonably recoup. If a publisher has not
22previously produced a digital version of fully typeset and edited instructional
23material, including instructional material produced through a method that does not
24require the creation of a digital file, the publisher may condition its provision of the
1instructional material in alternative format or electronic format on payment of
2reasonable compensation for the expense of creating that format.
AB322-ASA1,12,12
3(4) Use of instructional materials in alternative or electronic format. (a)
41. Subject to subds. 2. and 3., if an institution of higher education has in its
5possession a copy of instructional material in alternative format or electronic format
6that has been provided by a publisher under sub. (3) (c) or an alternative format of
7instructional material that has been created by the institution of higher education
8under sub. (3) (e), the institution of higher education shall satisfy all subsequent
9requests for instructional material in that format from its own students without
10requesting the publisher to provide that material and may, if requested, provide
11instructional material in that format to another institution of higher education for
12use by a student of that other institution.
AB322-ASA1,12,1613
2. An institution of higher education that satisfies a request for or provides
14instructional material under subd. 1. shall, for each student for whom the
15instructional material is provided, provide to the publisher the information specified
16in sub. (2) (b) 1. to 4. and the statement specified in sub. (2) (c).
AB322-ASA1,12,2017
3. An institution of higher education may not satisfy a request for or provide
18instructional material under subd. 1. if the institution receives notice that an
19alternative format or an electronic format of the instructional material in the same
20specifications is commercially available from the publisher of the material.
AB322-ASA1,13,321
(b) An institution of higher education in possession of a copy of instructional
22material in alternative format or electronic format that has been provided by a
23publisher under sub. (3) (c) or an alternative format of instructional material that
24has been created by the institution of higher education under sub. (3) (e) shall take
25reasonable precautions to ensure that the format is not distributed to any 3rd
1parties, except as permitted under par. (a) 1. or (c), and shall, to the extent possible,
2maintain in effect all copy-protection measures embedded in the alternative format
3or electronic format by the publisher.
AB322-ASA1,13,84
(c) An institution of higher education may contract with a 3rd party to assist
5the institution in creating an alternative format of instructional material as
6permitted under sub. (3) (e) or as otherwise permitted by the publisher. If an
7institution of higher education contracts with a 3rd party under this paragraph, the
8contract shall provide all of the following:
AB322-ASA1,13,109
1. That the electronic format from which the alternative format is created may
10not be further distributed by the 3rd party.
AB322-ASA1,13,1211
2. That any alternative format made from the electronic format may be
12provided only to the institution.
AB322-ASA1,13,1413
3. That all files provided by the institution to the 3rd party shall be returned
14to the institution.
AB322-ASA1,13,1615
4. That the 3rd party may not retain, and must destroy, any copies of its work
16product, including any interim work files.