Author Topic: Chafee Amendment, NIMAS, IDEA 2004, 504 plans, and ADA  (Read 3354 times)

bkidd

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Chafee Amendment, NIMAS, IDEA 2004, 504 plans, and ADA
« on: September 23, 2011, 04:21:26 PM »
Because someone with the Madison City Schools system recently implied incorrectly at an IEP meeting that a student would not lose access to NIMAC-sourced files if they had a 504 plan instead of an IEP, I thought individuals (parents, SEAs, LEAs, and people involved with visually impaired students) would benefit from reading NIMAS AND NIMAC: A DISCUSSION OF THE LEGAL ISSUES ASSOCIATED WITH THE PROVISION OF ACCESSIBLE INSTRUCTIONAL MATERIALS TO STUDENTS WITH PRINT DISABILITIES.  Sections from the paper are included in this thread.  This is a paper that was submitted to the National Center on Accessible Instructional Materials by Joanne Karger, J.D., Ed.D. on October 4, 2010.

I didn’t think the statement made by the District IEP team member was correct so I did my own checking.  I contacted individuals with the CAST organization, individuals who provide NIMAC-source material to visually impaired students, and the Office for Civil Rights.  All contacts confirmed what I thought which is that access to NIMAC-sourced material is tied to IDEA 2004 which means those students with a 504 plan do not have access to NIMAC-sourced material.  

From NIMAS AND NIMAC: A DISCUSSION OF THE LEGAL ISSUES ASSOCIATED WITH THE PROVISION OF ACCESSIBLE INSTRUCTIONAL MATERIALS TO STUDENTS WITH PRINT DISABILITIES

IDEA, Chafee Amendment, IDEA 2004
The Individuals with Disabilities Education Act (“IDEA”)1 and Title I of the Elementary and Secondary Education Act (“ESEA”), most recently re-authorized as the No Child Left Behind Act (“NCLB”),2 mandate that students with disabilities be taught to the same high academic standards that are set for all students and be provided the opportunity to be involved and progress in the general education curriculum. For some students with disabilities, however, the printed text of instructional materials serves as a critical barrier impeding their effective participation in the general education curriculum, consistent with the same high standards set for all.

The 2004 reauthorization of IDEA (“IDEA 2004”) introduced important provisions that have the potential to improve the delivery of accessible instructional materials to blind students and other students with print disabilities.3 These provisions built on a 1996 Amendment to the U.S. Copyright Act, known as the Chafee Amendment.4 Under IDEA 2004, states must adopt the National Instructional Materials Accessibility Standard (“NIMAS”), to be used in the preparation of electronic files for the conversion of print instructional materials into specialized formats5—namely, Braille, audio, digital text, or large print.6 In addition, state educational agencies (“SEAs”) and local educational agencies (“LEAs”) may choose whether to coordinate with the National Instructional Materials Access Center (“NIMAC”),7 a national repository for NIMAS files.8 In the aftermath of IDEA 2004, SEAs and LEAs have been grappling with the process of adopting and implementing the NIMAS and coordinating with the NIMAC.9 Parents are similarly trying to understand how these provisions may impact their own child’s educational program.

« Last Edit: November 22, 2011, 09:14:49 AM by bkidd »

bkidd

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Cahfee Amendment
« Reply #1 on: September 23, 2011, 04:30:45 PM »
From NIMAS AND NIMAC: A DISCUSSION OF THE LEGAL ISSUES ASSOCIATED WITH THE PROVISION OF ACCESSIBLE INSTRUCTIONAL MATERIALS TO STUDENTS WITH PRINT DISABILITIES

Chafee Amendment

A.1. Exemption of “Authorized Entities” from Copyright Infringement Liability
The Chafee Amendment to the U.S. Copyright Act, passed in 1996 and named after its chief sponsor, Senator John Chafee (R-RI), exempts “authorized entities” from copyright infringement liability in the reproduction or distribution of copies of previously published nondramatic literary works13 in specialized formats exclusively for use by “blind or other persons with disabilities.”14 An “authorized entity” is defined as “a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities.”15

By eliminating the need for authorized entities to receive permission from copyright holders prior to reproducing or distributing copyrighted works in specialized formats, the Amendment sought to reduce delays in the time taken for blind and other persons with disabilities to receive accessible materials.16 When Senator Chafee introduced the Amendment on the floor of Congress in 1996, he acknowledged the support of the Association of American Publishers, the National Federation for the Blind, the American Foundation for the Blind, the American Printing House for the Blind, and Recording for the Blind & Dyslexic.17 Upon signing into law the bill authorizing the Chafee Amendment, President Clinton made the following statement:

Quote
I am especially pleased to sign into law a provision that will allow blind and visually impaired persons to get earlier access to books and other reading matter. As a result of an agreement between the publishing industry and advocates for people with disabilities, books can now be converted into alternative formats such as Braille as soon as they appear in print. Prior to this change, the Library of Congress and other organizations that sought to provide these materials had to obtain permission from copyright holders on a case by case basis, leading to lengthy delays in access to all types of reading material. This law will help us reach our goal of full inclusion of people with disabilities.18

The purpose of the Chafee Amendment was to facilitate the conversion of print materials into accessible formats exclusively for use by “blind or other persons with disabilities,” a term defined as individuals who are eligible or who may qualify in accordance with “An Act to provide books for the adult blind,” approved March 3, 1931 (“Act of 1931”).19 The Act of 1931 authorized the Librarian of Congress to establish a national library program that would provide books for use by adults who were blind.20 The statute was subsequently revised in 1952 to include children21 and in 1966 to include individuals with “physical handicaps.”22 In 1974, the Library of Congress issued regulations specifying four categories of disabilities for eligibility for the national library program.23 The 1974 regulations also specified that the program was to be administered by the “Division for the Blind and Physically Handicapped” of the Library of Congress,24 later renamed the “National Library Service for the Blind and Physically Handicapped (“NLS”).25

In order to qualify under the Chafee Amendment, an individual must satisfy the eligibility criteria of the NLS regulations by falling under one of the following four categories: (1) blindness; (2) visual disability; (3) physical limitations; and (4) reading disability resulting from organic dysfunction.26

Table 1. Eligibility under the NLS Regulations at 36 C.F.R. § 701.6(b).

Disability CategoryDescription of Disability in the RegulationsDescription of Competent Authority in the Regulations
BLINDNESSBlind persons whose visual acuity, as determined by competent authority, is 20/200 or less in the better eye with correcting glasses, or whose wide diameter if visual field subtends an angular distance no greater than 20 degrees.Doctors of medicine, doctors of osteopathy, ophthalmologist, optometrists, registered nurses, therapists, professional staff of hospitals, institutions, and public or welfare agencies (e.g., social workers, case workers, counselors, rehabilitation teachers, and superintendents). In the absence of any of these, certification may be made by professional librarians or by any persons whose competence under specific circumstances is acceptable to the Library of Congress.
VISUAL DISABILITYPersons whose visual disability, with correction and regardless of optical measurement, is certified by competent authority as preventing the reading of standard printed material.SAME AS ABOVE
PHYSICAL LIMITATIONSPersons certified by competent authority as unable to read or unable to use standard printed material as a result of physical limitations.SAME AS ABOVE
READING DISABILITY RESULTING FROM ORGANIC DYSFUNCTIONPersons certified by competent authority as having a reading disability resulting from organic dysfunction and of sufficient severity to prevent their reading printed material in a normal manner.Doctors of medicine who may consult with colleagues in associated disciplines.

Conversion of Works into “Specialized Formats”

The Chafee Amendment applies to the conversion of copyrighted print materials into “specialized formats,” which was originally defined to mean Braille, audio, or digital text exclusively for use by blind or other persons with disabilities.35 Following the enactment of IDEA 2004, however, the definition of specialized formats under the Chafee Amendment was expanded with the following inclusion: “with respect to print instructional materials… large print formats when such materials are distributed exclusively for use by blind or other persons with disabilities.”36

While the Chafee Amendment helped to facilitate the provision of accessible materials to qualifying individuals with disabilities, the Amendment did not succeed in eliminating the administrative and technical delays associated with the process of converting works into specialized formats.38 Some states subsequently passed their own legislation or regulations pertaining to the provision of accessible instructional materials to students with print disabilities.39 Because there was no uniform standard, different states and districts would often request that publishers produce the same textbook in different file formats,40 a situation that resulted in unnecessary duplication and costs. One of the most common file formats requested by states and districts, ASCII, was time-consuming to produce because it required labor-intensive “tagging” to indicate the visual features of the printed text.41 To address these continuing challenges, disability groups and publishers collaborated on the drafting of proposed legislation at the federal level.42 The Instructional Materials Accessibility Act (“IMAA”), which was initially introduced in 2002 but not enacted, called for the creation of a national repository of electronic files to be developed from a common standard that could be accessed by states and local school districts.43 The language of the IMAA was eventually adapted and incorporated into IDEA 2004.44
« Last Edit: September 23, 2011, 04:40:28 PM by bkidd »

bkidd

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NIMAS
« Reply #2 on: September 23, 2011, 04:44:25 PM »
From NIMAS AND NIMAC: A DISCUSSION OF THE LEGAL ISSUES ASSOCIATED WITH THE PROVISION OF ACCESSIBLE INSTRUCTIONAL MATERIALS TO STUDENTS WITH PRINT DISABILITIES

NIMAS

Building on the 1996 Chafee Amendment and the proposed IMAA, the 2004 reauthorization of IDEA incorporated provisions establishing the NIMAS and the NIMAC. In order to receive funding under IDEA, states are required to provide assurances that they have in effect policies and procedures to ensure that they have met certain conditions.45 IDEA 2004 added, as one of these conditions, that states must adopt the NIMAS for the purpose of providing  instructional materials to blind persons or other persons with print disabilities.46 As noted, the NIMAS is a national standard established by the Secretary of Education to be used in the preparation of electronic files for the efficient conversion of print instructional materials into specialized formats.47 The term “print instructional materials” is defined as “printed textbooks and related printed core materials that are written and published primarily for use in elementary school and secondary school instruction and are required by a state educational agency or local educational agency for use by students in the classroom.”48 The term “specialized formats” is defined as having the same meaning as under the Chafee Amendment—i.e., Braille, audio, digital text, or large print exclusively for use by blind or other persons with disabilities.49

Students Eligible to receive NIMAS files via the NIMAC

IDEA 2004 specifies that the NIMAC must provide access to print instructional materials in accessible media, free of charge, to “blind or other persons with print disabilities” in elementary and secondary schools.78 In order to be eligible to receive specialized formats that have been developed from NIMAS files via the NIMAC, students must fall under the category of “blind or other persons with print disabilities,” defined as those students who—
  • are served under IDEA, and
  • may qualify in accordance with the Act of 1931.79

To meet the first prong of NIMAS/NIMAC eligibility, a student must be determined by a school-based team to qualify as a “child with a disability” under IDEA—i.e., the student must—
  • have one of the identified disabilities (mental retardation, hearing impairments, speech or language impairments, visual impairments, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities or, for a child ages three through nine, developmental delays); and
  • by reason of this disability, be in need of special education and related services.80

It is significant that only students served under IDEA are eligible to receive specialized formats produced from NIMAS filesets via the NIMAC; students receiving services under Section 504 are not eligible.81

bkidd

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OSEP policy letters related to NIMAS files
« Reply #3 on: September 23, 2011, 04:49:13 PM »
“Anticipatory Access” for AMPs: Letter to Kelly (2007)

In Letter to Kelly (2007), in an effort to promote the timely delivery of instructional materials to students with print disabilities, OSEP endorsed a system that would grant “anticipatory access” to NIMAS files stored in the NIMAC to AMPs also qualifying as authorized entities under Chafee.94 This system would allow qualifying AMPs to access the NIMAC before a contract had been entered into with a publisher by an SEA or LEA.95 Because authorized entities were already protected from copyright infringement liability under Chafee, OSEP believed that allowing them to have anticipatory access to NIMAS files stored in the NIMAC would be an appropriate policy for the NIMAC to implement, consistent with the NIMAC’s authority under IDEA 2004.96 OSEP also refused to limit anticipatory access to “national” authorized entities such as APH, Recording for the Blind & Dyslexic (“RFB&D”), and Bookshare.97 Following OSEP’s decision in Letter to Kelly, publishing groups, including the Association of Educational Publishers, urged OSEP to withdraw this policy because of tpotential increase for copyright infringement,98 and OSEP subsequently directed the NIMAC to suspend implementation of the “anticipatory access” policy.99

Liability of the NIMAC: Letter to Tinsley I (2007)

As noted earlier, IDEA 2004 specifies that there is no private right of action against the Secretary of Education with respect to the performance of the NIMAC.100 In Letter to Tinsley I (2007), in response to a question regarding the potential liability of the NIMAC, OSEP interpreted this provision to mean that IDEA also does not authorize a private right of action against the NIMAC for failure to perform its duties under IDEA.101 Thus, a publisher would be unable to hold the NIMAC liable if an SEA or LEA were to allow downloading of or access to material from the NIMAC by someone who was not legally authorized or entitled to do so. OSEP further cautioned that because this policy letter concerned a legal, rather than a programmatic matter, it was less likely that a court would grant deference to OSEP’s opinion.102

Interpretation of Print Instructional Materials: Letter to Koscielniak (2008)
In Letter to Koscielniak (2008), OSEP provided clarification regarding the meaning of the term “print instructional materials” by stating that this term does not include textbooks that are published primarily for use in postsecondary instruction.103 Similarly, teacher editions are not included “because the NIMAC is limited to providing accessible materials only to blind or other persons with print disabilities, which is clearly defined … to mean children served under IDEA who also qualify under [the Act of 1931].”104 For materials used in advanced placement classrooms, OSEP noted that, regardless of where the class is taken or what kind of credit is given, publishers are required to create NIMAS files if the print instructional materials were published primarily for use in secondary school instruction and if they are required by an SEA or LEA for use by students in the classroom.105 OSEP further stated that “print instructional materials” do not include trade books or supplemental materials unless such materials are published primarily for use in elementary and secondary instruction and are required by an SEA or LEA for use by students in the classroom.106 In its Questions and Answers document on NIMAS, OSEP added that the NIMAC can accept trade book files from publishers “when they are bundled with other instructional materials for use in the classroom, as required by the state- or LEA-approved curriculum.”107

Also in Letter to Koscielnak, OSEP clarified that no curriculum content area is exempt from NIMAS, including math and science, and that pending the formal adoption of specifications for math and science content, the NIMAS Development Committee has agreed that mathematical concepts should be represented by images and that mathematical text should be provided in NIMAS-conformant XML.108 In its Questions and Answers document on NIMAS, OSEP also commented on the difficulty associated with the conversion of graphical images from math and science curriculum materials, stating that “portions of mathematics, science, geography, and other textbooks that do not use literary Braille are not fully accessible using NIMAS because translation software that provide accessible formats of graphical material do not currently exist.”109 In the Questions and Answers document, OSEP further stated that textbooks used in foreign language classes as well as textbooks translated into different languages to be accessed by students who are English language learners are both subject to the NIMAS requirements.110

Moreover, in Letter to Koscielnak, OSEP provided clarification with respect to the requirement in IDEA that publishers provide NIMAS-conformant files to the NIMAC only for print instructional materials published after the date on which NIMAS was published in the Federal Register—i.e., after July 19, 2006.111 Reiterating its comments accompanying the 2006 regulations that the term “publish” is to be interpreted as having “the plain meaning of the word, which is to issue for sale or distribution to the public,” OSEP stated that the provision applies “to print instructional materials made available to the public for sale after the NIMAS is published in the Federal Register.”112 OSEP further noted that because NIMAS was published in the Federal Register on July 19, 2006, the requirement that publishers provide NIMAS-conformant files applies to all new contracts for the sale of print instructional materials since this date, regardless of whether the materials were originally published on an earlier date.113 At the same time, OSEP stated that, because SEAs and LEAs choosing to coordinate with the NIMAC have the option of purchasing directly from the publisher files that are produced in or may be converted to specialized formats, OSEP anticipated “that SEAs and LEAs would be willing to be flexible when ordering print instructional materials that are less in demand and that would impose a hardship on the publisher to provide in the NIMAS format because they are already available in an alternative format.”114

Authorized Users: Letter to Tinsley II (2008)

Finally, in Letter to Tinsley II (2008), OSEP noted that as part of the NIMAC’s responsibility for protecting against copyright infringement, the NIMAC had developed a process by which SEAs and LEAs would designate authorized users (“AUs”) to access the NIMAC’s database on their behalf.115 The initial “User Agreement” that AUs were required to sign in order to access the NIMAC’s database limited those who could qualify as an AU to representatives of public agencies.116 In Letter to Tinsley II, OSEP recommended that the NIMAC expand the eligibility to serve as an AU to any entity meeting the criteria for authorized entities under Chafee.117 The proposed change was intended to facilitate the delivery of instructional materials to students.118 OSEP further noted that, while SEAs and LEAs would be responsible for determining whether an AU met the Chafee criteria, the revised NIMAC User Agreement authorized the NIMAC to initiate an immediate termination of an AU’s access to the NIMAC database if the NIMAC were to become aware of any copyright violations on the part of the AU.119 On January 23, 2009, the NIMAC followed the directive of OSEP and revised its policy on AUs to allow states to identify as AUs agencies that are not part of their own educational structure but qualify as authorized entities under the Chafee Amendment.120 States were not required to use the new definition for an AU but, rather, were given the option to do so.121
« Last Edit: September 23, 2011, 04:57:30 PM by bkidd »

bkidd

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Legal Issues - IDEA 2004 and FAPE
« Reply #4 on: September 23, 2011, 05:03:16 PM »
From NIMAS AND NIMAC: A DISCUSSION OF THE LEGAL ISSUES ASSOCIATED WITH THE PROVISION OF ACCESSIBLE INSTRUCTIONAL MATERIALS TO STUDENTS WITH PRINT DISABILITIES

A.1.The Right to FAPE under IDEA

FAPE (a free appropriate public education) is defined under IDEA as special education and related services provided at public expense that meet the standards of the SEA and are consistent with a student’s IEP.122 Special education, in turn, is defined as specially designed instruction,123 which involves—

adapting, as appropriate to the needs of an eligible child … the content, methodology, or delivery of instruction … to address the unique needs of the child that result from the child’s disability; and … (t)o ensure access of the child to the general curriculum, so that the child can meet the educational standards … that apply to all children.124

In addition, IDEA specifies that students with disabilities are to be involved in and make progress in the general education curriculum125—i.e., the same curriculum as that provided to students without disabilities.126 NCLB, which was enacted in 2002 to re-authorize Title I of the ESEA, helped raise the level of the general education curriculum by requiring states to adopt challenging academic content and achievement standards that are to be the same for all students, including students with disabilities.127 Thus, embedded in the right to FAPE under IDEA is the right for students with disabilities, as appropriate to their needs, to have access to, be involved in, and progress in the same high level curriculum that is being taught to students without disabilities and to meet the same high academic standards that are set for all students.

In addition, IDEA specifies that students with disabilities are to be involved in and make progress in the general education curriculum125—i.e., the same curriculum as that provided to students without disabilities.126 NCLB, which was enacted in 2002 to re-authorize Title I of the ESEA, helped raise the level of the general education curriculum by requiring states to adopt challenging academic content and achievement standards that are to be the same for all students, including students with disabilities.127 Thus, embedded in the right to FAPE under IDEA is the right for students with disabilities, as appropriate to their needs, to have access to, be involved in, and progress in the same high level curriculum that is being taught to students without disabilities and to meet the same high academic standards that are set for all students.

Because the instructional materials that students use in a classroom are a fundamental component of the general education curriculum, for those students for whom the printed text serves as a barrier to learning, the right to receive appropriate, accessible instructional materials in a timely manner is a critical element of the right to FAPE. Failure to provide these students with appropriate, accessible instructional materials in a timely manner denies them the opportunity to learn the knowledge and skills that all students are expected to learn. As described earlier, in comments accompanying the 2006 regulations pertaining to the NIMAS and the NIMAC, ED stated that “(t)imely access to appropriate and accessible instructional materials is an inherent component of (an LEA’s or SEA’s) obligation under (IDEA) to ensure that FAPE is available for children with disabilities and that children with disabilities participate in the general education curriculum as specified in their IEPs.”128 In addition, the 2006 regulations explicitly state that the new provisions pertaining to the NIMAS and the NIMAC do not relieve an SEA or LEA of its “responsibility to ensure that children with disabilities who need instructional materials in accessible formats, but are not included under the definition of blind or other persons with print disabilities … or who need materials that cannot be produced from NIMAS files, receive those instructional materials in a timely manner.”129 Thus, all students receiving services under IDEA who are in need of accessible instructional materials—regardless of whether they are eligible for NIMAS/NIMAC-derived materials—are entitled to receive these materials in a timely manner as part of their right to FAPE. Only those students who meet the NLS criteria, however, are eligible to receive specialized formats that have been developed from NIMAS-derived files via the NIMAC.

It is significant that IDEA affords students the right, not only to have “access” to the general education curriculum, but also to be “involved” in and “progress” in the general education curriculum.130 For example, some middle or high school students with learning disabilities may be able to decode or access print on a basic level. They may, however, because of their disability-related needs, be unable to derive meaning from131 the print instructional materials that comprise the general education curriculum of their grade level and acquire the knowledge and higher level critical thinking skills that are part of this curriculum.132 Under IDEA, all students who need accessible instructional materials in order to be involved in and progress in the general education curriculum have a right to receive these materials in a timely manner as part of their right to FAPE.

A.2. Additional IDEA Requirements

There are also a number of specific requirements in IDEA, falling under the umbrella of FAPE, that reinforce the right of students who need accessible instructional materials to receive these materials in a timely manner.

Evaluations. As part of the procedures for conducting an initial evaluation or re-evaluation,133 a student is to be assessed in all areas of suspected disability in order to obtain information to be used in the development of an IEP, related to enabling the student to be involved in and progress in the general education curriculum.134 The evaluation process provides an opportunity to consider whether, because of the student’s disability-related needs, the printed education curriculum. A determination should also be made during the evaluation process, when appropriate, regarding the need for an assistive technology device to help the student utilize a particular specialized format.135

IEP Development. Several provisions pertaining to the development of IEPs also advance the right to accessible instructional materials for a student who is in need of such materials in order to be involved in and progress in the general education curriculum:

  • Present levels of academic achievement and functional performance, including how the disability affects the student’s involvement in and progress in the general curriculum.140 The statement prepared should indicate the manner in which the student’s disability-related needs impact his/her ability to access and derive meaning from the printed text of the instructional materials that comprise the general education curriculum.
  • Measurable annual goals, including academic and functional goals, designed to meet the student’s needs that result from his/her disability to enable the student to be involved in and make progress in the general education curriculum.141 Because IEP goals lay the foundation for a student’s educational program and provide a road map for their teacher, it is important for the IEP to describe how particular specialized format(s) will help the student reach these goals in order to enable the student to be involved in and progress in the general education curriculum.
  • Special education and related services and supplementary aids and services, program modifications or supports for school personnel that will be provided for the student to be involved in and make progress in the general education curriculum.142 This part of the IEP provides another opportunity to specify the particular specialized format(s) that the student will use to be involved in and progress in the general education curriculum as well as the specific accommodations, supports, and/or assistive technology devices and services that are necessary to help the student utilize these specialized formats. It would also benefit the student for the IEP to indicate the individuals at the school who will help the student in using the specialized formats.

The above IEP provisions are relevant for all students who need accessible instructional materials—both those who are eligible for NIMAS/NIMAC-derived materials and those who are not. For those students who are NIMAS/NIMAC-eligible, the IEP should also state specifically that the student has been certified by a competent authority on a particular date to fall under one of the NLS categories and therefore is eligible to receive specialized formats that have been produced from NIMAS files obtained via the NIMAC, with appropriate documentation kept on file.

IEP Review and Revision. The annual review of a student’s IEP provides an opportunity for their IEP team to examine the student’s use of accessible instructional materials—e.g., how effective a particular specialized format and supports/accommodations have been as well as the extent to which the student received the materials in a timely manner—and to revise the IEP as appropriate to address any lack of progress toward the student’s annual goals and in the general education curriculum.143

Transition. The transition planning process, beginning when the student turns 16 (or earlier, if determined appropriate by the IEP team or dictated by state law), enables the IEP team to draft measurable post-secondary goals and transition services to be included in the student’s IEP.144 As part of the transition process, the team is able to focus on helping the student understand his/her own disability in relation to the need for print materials in accessible formats so that when the student exits special education he or she will be able to advocate for himself/herself in other settings, including post-secondary education. At the post-secondary level, because individuals with disabilities are no longer under the entitlement of special education and related services through IDEA, they must be able to communicate sufficient information about the nature of their disability to the post-secondary institution and to request the particular aids or services that will enable them to have an equal opportunity to achieve at the same level as students without disabilities.145

Special Factors. Finally, it is significant to note that two of the “special factors” that IEP teams must consider in the development of IEPs are especially relevant to the issue of accessible instructional materials: (1) for blind students and students with other visual impairments, the team must provide for instruction in Braille and the use of Braille unless the IEP team determines that such instruction or use is not appropriate for the student;146 and (2) for all students, the team must consider whether the student needs assistive technology.147 Both of these factors underscore the importance of accessible instructional materials and assistive technology as part of the right to FAPE.
« Last Edit: September 23, 2011, 05:10:58 PM by bkidd »

bkidd

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Legal Issues - 504 plans and ADA
« Reply #5 on: September 24, 2011, 06:44:46 AM »
From NIMAS AND NIMAC: A DISCUSSION OF THE LEGAL ISSUES ASSOCIATED WITH THE PROVISION OF ACCESSIBLE INSTRUCTIONAL MATERIALS TO STUDENTS WITH PRINT DISABILITIES

Section 504 and ADA

B.1. Prohibition of Discrimination on the Basis of Disability

Section 504, which applies to recipients of federal funds—including schools, school districts, and state educational agencies—prohibits discrimination on the basis of disability. The statute provides in relevant part: “No otherwise qualified individual with a disability … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”158 Individuals with disabilities who qualify under Section 504 include those who (1) have a physical or mental impairment that substantially limits one or more of such person’s major life activities, (2) have a record of such an impairment, or (3) are regarded as having such an impairment.159 While the Americans with Disabilities Act Amendments Act of 2008 (“ADAA”) made a number of changes to the definition of disability that apply to both Section 504 and the ADA, the basic definition remained intact.160

As noted earlier, students who are receiving services only under Section 504 are not eligible to receive specialized formats that have been developed from NIMAS-derived files via the NIMAC. 162

Comparable Aids, Benefits, and Services

In addition to Section 504’s broad prohibition of discrimination, the 504 regulations prohibit certain discriminatory actions, such as (1) denying a qualified individual with a disability the opportunity to participate in or benefit from an aid, benefit, or service; (2) affording a qualified individual with a disability an opportunity to participate in or benefit from an aid, benefit, or service that is not equal to that afforded to others; or (3) providing a qualified individual with a disability an aid, benefit, or service that is not as effective as that provided to others.163 These provisions are collectively referred to as ensuring comparable aids, benefits, and services. In order for aids, benefits, and services to be “equally effective,” it is not necessary that they produce the same result or level of achievement for individuals with disabilities as individuals without disabilities; rather, “equally effective” aids, benefits, and services are those that provide individuals with disabilities “an equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement….”164 When a school district fails to provide a qualified student with a disability with needed accessible instructional materials, the district may be found to have denied the student comparable aids, benefits, and services—i.e., denied the student an equal opportunity to acquire the knowledge and skills that all students are expected to learn and an equal opportunity to attain the same level of achievement as their peers without disabilities.

Criteria or Methods of Administration

Section 504 regulations further prohibit recipients of federal funds from utilizing “criteria or methods of administration” that subject qualified individuals with disabilities to discrimination on the basis of disability or that defeat or substantially impair accomplishment of the objectives of the program or activity with respect to individuals with disabilities.165 The Office of Civil Rights (“OCR”) of ED, the federal agency charged with enforcement of Section 504, has interpreted the term “criteria” to refer to “written or formal policies” and the term “methods of administration” to refer to “actual practices or procedures.”166 Thus, when qualified students with disabilities who are in need of accessible instructional materials do not receive these materials in the same time frame in which the regular print instructional materials are made available to students without disabilities, and this delay has a negative effect on the opportunity of the students with disabilities to attain the same level of achievement that is expected for all students, the school district’s procedures for delivering accessible instructional materials may be found to be in violation of the methods of administration provision of Section 504.167

FAPE under Section 504

While the Section 504 provisions pertain to the overall prohibition of discrimination; comparable aids, benefits, and services; and criteria or methods of administration apply to all recipients of federal funds, including post-secondary institutions, the Section 504 regulations that apply to elementary and secondary education include an additional obligation to provide qualified students with FAPE.168 FAPE under Section 504 is defined (differently than under IDEA) as the provision of regular or special education and related aids and services designed to meet the individual educational needs of students with disabilities as adequately as the needs of students without disabilities.169 Failure to provide accessible instructional materials to qualified students with disabilities who need these materials would be a violation of FAPE under Section 504. The right to FAPE under Section 504 is especially important for students who need accessible instructional materials but are not eligible to receive specialized formats developed from NIMAS files via the NIMAC because they are on a 504 plan and are not receiving services under IDEA. It is to be noted that qualified students with disabilities at the post-secondary level, unlike their counterparts at the elementary and secondary level, are not entitled to FAPE under Section 504. At the postsecondary level, schools are required to provide students with disabilities with “academic adjustments” and “auxiliary aids” that afford them an equal opportunity to participate in the school’s program.170

Title II of the ADA

Prohibition of Discrimination; Comparable Aids, Benefits, and Services; Criteria or Methods of Administration

Title II of the ADA, which applies to public entities (regardless of whether they receive federal funding), prohibits discrimination on the basis of disability in a manner similar to Section 504.171 In many areas, the language of Title II is virtually identical to that of Section 504. For example, as described above, the ADA and Section 504 have the same definition of disability: (1) a physical or mental impairment that substantially limits one or more of such person’s major life activities, (2) a record of such an impairment, or (3) being regarded as having such an impairment.172 In addition, Title II—like Section 504—includes a series of provisions that prohibit certain discriminatory actions that deny qualified individuals with disabilities comparable aids, benefits, and services as well as provisions that prohibit discriminatory criteria or methods of administration.173

Auxiliary Aids and Services and Effective Communications under Title II

One difference between Section 504 and Title II, however, is that the latter does not include the affirmative obligation to provide FAPE that is included in the Section 504 regulations pertaining to elementary and secondary education. Rather, Title II requires all public entities, regardless of their education level, to provide “auxiliary aids and services” when necessary to afford a qualified individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of the public entity.174 The current regulations identify the following as possible auxiliary aids and services: “Qualified readers, taped texts, audio recordings, Brailled materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments.”175 On July 23, 2010, the Department of Justice (“DOJ”) issued new regulations for Title II that will become effective six months after their publication in the Federal Register.176 Among the changes, the following will be added as additional auxiliary aids and services: Brailled displays, screen reader software, magnification software, optical readers, secondary auditory programs, and accessible electronic and information technology.177 Moreover, of significance to the issue of accessible instructional materials, the new regulations add the following language: “In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner….”178

Under Title II, public entities must also take appropriate steps to ensure that communications with qualified individuals with disabilities are as effective as communications with others.179 OCR has interpreted the term “communications” to refer to the transfer of information, including but not limited to, the verbal presentation of a lecturer, the printed text of a book, and the resources of the Internet.180 In evaluating the meaning of “as effective as,” OCR has focused on three components of effectiveness: (1) timeliness of delivery, (2) accuracy of translation, and (3) provision in a manner and medium appropriate to the significance of the message and the abilities of the individual.181 Title II requirements concerning auxiliary aids and services and effective communications have been the focus of a number of OCR decisions pertaining to accessible instructional materials at the higher education level, some of which date back to pre-passage of the Chafee Amendment.182

bkidd

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DOJ and Department of Educatio - Kindle
« Reply #6 on: September 24, 2011, 06:48:23 AM »
From NIMAS AND NIMAC: A DISCUSSION OF THE LEGAL ISSUES ASSOCIATED WITH THE PROVISION OF ACCESSIBLE INSTRUCTIONAL MATERIALS TO STUDENTS WITH PRINT DISABILITIES

Cross-referenceClick to visit thread at this board that contains complaint by The National Federation of the Blind, The American Council of the Blind, and a student against The Arizona Board of Regents and Arizona State University over use of the Kindle.

The DOJ and ED recently issued a joint policy letter addressing the use by some colleges and universities of electronic book readers, such as Amazon’s Kindle, that are inaccessible to students who are blind or have low vision because the readers do not contain a text-to-speech function.184 Citing the comparable aids, benefits, and services provisions of the ADA and Section 504, the letter made the following statement: “Requiring use of an emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilities—individuals with visual disabilities—is discrimination prohibited by the (ADA) and (Section 504) unless these individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner.”185 The letter further noted that students who are blind or have low vision must be able to “acquire the same information, engage in the same interactions, and enjoy the same services as sighted students with substantially equivalent ease of use.”186 Although this letter referred to colleges and universities, the same legal obligations concerning comparable aids, benefits, and services are incumbent on school districts under Section 504 and Title II. Moreover, while the letter addressed the use of electronic book readers, the same legal analysis would apply to printed textbooks and other instructional materials in both the higher education and K–12 contexts under Section 504 and Title II. Thus, this letter underscores that failure to provide needed accessible instructional materials to qualified students with disabilities that results in their being denied an equal opportunity to participate in the general education curriculum and to acquire the same information that is being taught to students without disabilities constitutes discrimination under Section 504 and Title II.
« Last Edit: September 24, 2011, 06:54:33 AM by bkidd »