01 | AEM and the Law

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Laws Related to Provision of AEM

Several laws relate to the provision of Accessible Educational Materials (AEM) in public schools. The laws described in the following pages determine who is eligible to receive specialized formats of copyright-protected educational materials, and who is required to provide them.

Oklahoma Dyslexia Law

The most recently adopted legislation related to AEM is Oklahoma House Bill 1228: https://legiscan.com/OK/text/HB1228/2019. HB 1228 was signed into law in April, 2019 requiring Local Education Agencies (LEAs) to develop a professional development program to provide annual dyslexia awareness training for teachers and administrators. The law states that beginning in the 2020-2021 school year, a dyslexia awareness program shall be offered which includes training in awareness of dyslexia characteristics in students, effective classroom instruction to meet the needs of students with dyslexia, and available dyslexia resources for teachers, students, and parents.

Dyslexia is a learning disability that is characterized by difficulty reading due to problems identifying speech sounds and learning how they relate to letters and words. Students with dyslexia, along with students with visual impairments and physical disabilities that prevent access to printed text, are said to have a “print disability” and are therefore eligible to receive AEM and associated Assistive Technology (AT) that may be needed for reading.

Legal Authority for Creating AEM

It has long been legal for authorized entities to reproduce copyrighted materials for the purpose of making specialized formats for use by individuals with print disabilities. See the 1931 Act to Provide Books for the Adult Blind. However, prior to 2004, there was not a reliable system for ensuring that materials used in schools would be available from such sources.

Individuals with Disabilities Education Act (IDEA)

IDEA, as reauthorized in 2004, requires that elementary and secondary school students with disabilities, who need print instructional materials including workbooks and other supplemental materials in an accessible format receive them in a timely manner. This means that school districts must take reasonable steps to provide AEM to eligible students with disabilities without delay, typically at the same time as other students receive educational materials. Each state has the responsibility to define “in a timely manner.” Oklahoma has defined it as “at the same time as other students or to the greatest extent possible.”

Fulfilling that requirement would be difficult, if not impossible, without the inclusion of language within IDEA that authorized creation of an accessible file standard and a process for storing, retrieving, and transforming those files into specialized formats which can be read by students with print disabilities. To read more about the National Instructional Materials Accessibility Standard (NIMAS), and the National Instructional Materials Access Center (NIMAC), see NIMAS and NIMAC, page 2. For excerpts of IDEA related to AEM, see Appendix A, page 16.

Provision of AT

AT is technology used by individuals with disabilities in order to perform functions that might otherwise be difficult or impossible. The federal regulations for implementation of IDEA define AT devices and services and require Individualized Education Program (IEP) teams to consider the AT needs of students during the development, review, and revision of an IEP.

IDEA also requires schools to provide AT if it is needed for a student to receive a free appropriate public education (FAPE). The emphasis on FAPE is that the student is able to function well enough to make reasonable educational progress. FAPE can include a variety of services such as special education, related services, supplementary aids and services, program modifications or support for school personnel.

AT, just like all other components of FAPE, must be provided at no cost to parents. LEAs must provide or pay for any AT necessary to ensure FAPE, either directly or through contract or other arrangements. IDEA states that schools may not unnecessarily delay the provision of AT devices and services due to funding issues if a child requires the devices and services to benefit from the IEP.

For more information about including AT in the IEP, see the AT Technical Assistance Document for IDEA Part B, and the Special Education Process Guide which can be found at: http://sde.ok.gov/sde/documents/2017-08-28/oklahoma-special-education-process-guide.

Copyright Law

What about adapting and copying materials for students?

It is very important to seek permission from a publisher before reproducing or adapting textbooks, worksheets, handouts, and other curricular materials for use in the classroom. Previous amendments to U.S. Copyright Law could have been interpreted to mean that educators were authorized to reproduce copyrighted materials for use by students with print disabilities. However, an amendment passed in 2018 clarified the wording, specifying that only the NIMAC and other non-profit or governmental agencies (that have 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) are authorized to reproduce copyrighted materials without seeking permission from a publisher. This underscores the need for LEAs to purchase accessible materials whenever possible, include NIMAS language in all purchase orders and contracts for materials and technologies which will be used by students, and to receive prior permission from a publisher before reproducing or adapting any copyrighted material.

For text of the copyright law related to creating specialized formats, see Appendix A, page 18.

Title II of the Americans with Disabilities Act (Title II of the ADA)

ADA provides additional protections for students who need AEM. Title II prohibits discrimination against people with disabilities in all programs, activities and services from public entities, including state and local governments. Public K-12 schools are covered under this title.

Title II requires schools to ensure that students with disabilities receive communication that is as effective as communication with others through the provision of auxiliary aids and services. In many cases, but not all, an IEP will meet the requirements of Title II. Under Title II, “communication” includes all kinds of information exchange – reading, writing, listening and speaking. This may mean that a student requires a technology support instead of a human support if the technology support allows a student to perform tasks independently, thus achieving “effective communication” as is required by Title II.

For further explanation of effective communication, see the Dear Colleague Letter from the U.S. Department of Education and the U.S. Department of Justice Appendix A, page 20. For related excerpts of ADA Title II, see Appendix A, page 19. To learn about the ADA, visit: https://www.ada.gov/pubs/adastatute08.htm.

Rehabilitation Act

Two sections of the Rehabilitation Act of 1973 provide protections for students with disabilities, whether or not they are receiving services under IDEA.

  • Section 504 prohibits discrimination against individuals with disabilities and requires schools to provide equal access to their programs and services. This portion of the law requires that school districts provide FAPE to qualified students who have a physical or mental impairment that substantially limits one or more major life activities, regardless of the nature or severity of the disability. AT is referred to under Section 504 within “special education and related aids and services.”
  • Section 508 requires federal agencies to procure, develop, and maintain accessible information technology to ensure effective and usable information technology and digital materials for all individuals, including those with disabilities.

Find excerpts of Sections 504 and 508 of the Rehabilitation Act in Appendix A, page 17.

Electronic and Information Technology Accessibility (EITA)

Oklahoma adopted the federal 508 standards and passed EITA legislation, which went into effect in 2005, mandating compliance by all state agencies, higher education, and CareerTech Centers. Acquiring educational materials that have been approved for purchase by the Oklahoma Textbook Adoption Committee will help to ensure that all students receive the materials they require.

Learn more about Oklahoma EITA at: www.accessibility.ok.gov.

Dispute Resolution

Parents and guardians have several options if they believe the school is not providing the services a child needs. Under IDEA, a parent challenging the provision of FAPE may request mediation, file a complaint with the state educational agency, or request an impartial administrative hearing by filing a due process complaint. For more information go to: https://sde.ok.gov/special-education-dispute-resolution.

Before resorting to such measures, the parent or guardian should arrange to meet with the IEP team or the school’s Title II or 504 Coordinator to discuss concerns. If an acceptable solution is not reached, the parent or guardian should consider using the school district’s published disability grievance procedures. An additional resource available to help work through disagreements is the Special Education Resolution Center (SERC), a program of ABLE Tech. SERC offers innovative programs that assist school districts and parents in settling disputes regarding IEPs. The programs are provided at no cost through a partnership with the Oklahoma State Department of Education (OSDE.) Learn more at: https://www.okabletech.org/education-services/serc/.

Under Title II, a parent who believes a child is not receiving appropriate educational services may choose to file a lawsuit in court. Parents of a student on an IEP generally must exhaust the administrative hearing procedures of IDEA, which means obtaining a final decision under IDEA’s impartial due process hearing procedures, before filing a lawsuit seeking a remedy that is also available under IDEA.

Both the U.S. Department of Education Office of Civil Rights (OCR) and the Department of Justice (DOJ) Civil Rights Division investigate complaints of disability discrimination at schools.

 

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