NYSED NavigationNYSED HOME •  SEARCH TOPICS, A-ZCONTACT NYSED
VESID Navigation VESID Home News Publications Contact VESID

Vocational and Educational Services for Individuals with Disabilities (VESID)
Special Education and Vocational Rehabilitation Services


July 2004
(Revised November 2004)

Available in PDF format for printing

To:

Publishers of Instructional Materials

 

SUNY Disabled Student Services Council

 

CUNY Committee on Students with Disabilities

 

Commission on Independent Colleges and Universities

 

Association of Proprietary Colleges

   
From: Rebecca H. Cort   
  Deputy Commissioner, Office of Vocational and Educational Services for Individuals with Disabilities
   
  Johanna Duncan-Poitier
  Deputy Commissioner, Office of the Professions (OP) and Office of Higher Education (OHE)
   
Subject:

Implementing Chapter 219 of the Laws of 2003: In relation to publishers or manufacturers of instructional materials for college students with disabilities to also make the materials available, at a comparable price to the printed version, in alternate format

On July 29, 2003, New York State education law was amended by adding a new Section 715 to implement Chapter 219 of the Education Laws of 2003.  As a result, publishers and manufacturers of instructional material that is essential to a student’s success in a course of collegial study must make such material available in alternate format in a timely manner.  The act takes effect on August 15, 2004 and shall expire and be deemed repealed 3 years after such effective date.

This memorandum provides information and technical assistance regarding Chapter 219 and includes:

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.

  1. 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.
     

  2. 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.
     

  3. 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 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:

    1. Full-text DAISY3 (the ANSI/NISO Z39.86 standard) is the ideal format when possible;

    2. 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 ;

    3. 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 );

    4. 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.

  1. 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:

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.

  1. College responsibilities:

  1. Student responsibilities:

  1. 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.

  1. 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.htmlIt is currently available at www.p12.nysed.gov/specialed/publications/persprep/chap219.htm The Department will share new information as it becomes available.

Appendix A - Laws of New York, 2004 - Chapter 219

Appendix B - Publisher Request/Student Agreement Form

Appendix C - The Copyright Law, Chafee Amendment and Fair Use

Appendix D - Updated lists of Publisher Contacts

Appendix E - Resources for Obtaining Alternate Materials


Appendix A

LAWS OF NEW YORK, 2004
CHAPTER 219

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. 1. 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.

            2. 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.

            3. 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.).

            4. 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.).

            5. 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.

           
6. 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 Form

Publishing Company
__________________________________________________________________________

Address
Phone
Fax
Part A1

Publishing Company Electronic Text Request Certification

In order to process your request to assist a student with disabilities, please complete this form, including the required signatures, and return it to: (name, address, phone, fax)

ISBN: _______________________________

Author:  _____________________________

Title: _______________________________________________________________________

Copyright: ____________________________

Edition: ______________________________

Name of Coordinator of Services for Students with Disabilities/ADA Compliance Office:

___________________________________ Phone:_______________________________
University, College or Campus: __________________________________________________

Street Address: ______________________________________________________________

City, State, Zip:  _____________________________________________________________

Preferred Format *:

* Check box if file is already available on campus and another copy of file is not needed

Technology Currently Used by Student (optional): _____________________________________

Certification of Coordinator of Services for Students with Disabilities or ADA Compliance Official

_______________________________________________________________

 ____________
Signature of Coordinator of Services for Students with
Disabilities/ADA Compliance Official
Date

1Part A should be returned tot he publishing company at the address provided above.

Part B2

Agreement by Student

Agreement on the Use of Recorded, Electronic or Other
Alternatively Formatted Course Materials

Before receipt of materials, this agreement shall be signed by the student and the designated college official and kept on file each semester in which the student requests alternatively formatted materials.

I have read and understand the policies and procedures outlined above and agree to comply with them.

_______________________________________ ________________________________
Signature of Student Date
   
_______________________________________  
Signature of College Representative  
   
Read to Student prior to signing by ______________________________________________

Signature

2Parts A and B should be retained in the institution's files.


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:

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:

 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:

  1. 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.

  2. Adobe Accessibility Web site: http://access.adobe.com
    For students who may prefer HTML, a web based PDF to HTML conversion service is available.
     
  3. AMX (Alternate Media Exchange)
  4. 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.

  5. 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.
     

  6. 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.
     

  7. Center for Applied Special Technology (CAST)
    40 Harvard Mills Square, Suite 3
    Wakefield, Massachusetts 01880-3233
    (781) 245-2212
    cast@cast.org
    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.
     

  8. E-Brary
  9. 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.
     

  10. Louis Database www.aph.org
     

  11. MetaText Digital Textbooks
  12. National Library Service for the Blind and Physically Handicapped (NLS): The Library of Congress  http://www.loc.gov/nls
     

  13. NetLibrary
  14. Recording for the Blind & Dyslexic (Learning Ally)
    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.
     

  15. SafariX
  16. University of Virginia http://etext.lib.virginia.edu/