COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 194
(By Senator Hunter)
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[Originating in the Committee on Education;
reported February 20, 2008.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §18B-1-12, relating
to establishing procedures for a manufacturer or publisher to
provide special instructional material for blind, visually
impaired and dyslexic students who are enrolled at a state
institution of higher education; prohibiting sales and
purchases of certain instructional materials under certain
circumstances; prohibiting designation of certain
instructional material as essential under certain conditions;
requiring publisher or manufacturer to provide special
instructional materials at same cost as standard instructional
materials or at no additional cost under certain
circumstances; granting certain exceptions to requirements;
providing procedures for eligible students and state
institutions of higher education to request special
instructional materials; requiring certain information and agreements; and authorizing promulgation of joint emergency
rule and requiring promulgation of joint legislative rule both
by certain date.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §18B-1-12, to read as
follows:
ARTICLE 1. GOVERNANCE.
§18B-1-12. Electronic and special instructional materials for
blind, visually impaired and dyslexic students.
(a) General. -- For the purposes of
this section, terms have
the meaning ascribed to them in section two of this article, unless
the context in which the term is used
clearly requires a different
meaning or a specific definition is provided in this section.
(b) Definitions. --
(1) "Eligible student" means a person who is enrolled in a
course at a state institution of higher education and who qualifies
to receive special instructional materials related to that course
because of one of the following conditions:
(A) Blind or visually impaired -- a student whose visual
acuity is impaired to the extent that he or she cannot read the
print in the standard instructional material;
(B) Dyslexic -- a student with dyslexia, a condition
considered to be a disability under the Americans with Disabilities
Act (42 U. S. C. §12101, et seq.) or §504 of the Rehabilitation Act of 1973 (29 U. S. C. §794);
(2) "Standard instructional material", whether used in the
singular or plural, means printed textbooks, other printed
instructional materials or a combination of printed books and
supplementary printed instructional materials that convey
information or otherwise contribute to the learning process of a
student and which bear a publication date on or after the first day
of January, two thousand four;
(3) "Special instructional material", whether used in the
singular or plural, means standard instructional material as
defined in this subsection converted to a special format including,
but not limited to, Braille, large print, audio, digital text or
any other medium or any apparatus that conveys information or
otherwise contributes to the learning process of an eligible
student;
(4) "Institution" means a state college, university or
community and technical college under the jurisdiction of the
commission or the council; and
(5) "Essential instructional material" means those materials
that are required for a course or program and that meet the
following conditions:
(A) The material is designated in writing by an academic
department or instructor as being necessary in order for the
student to complete a course or program requirement;
(B) The material is listed on a course syllabus or other
written format used to describe the course; or
(C) The material is designated by agreement between instructor
and student as necessary for completing a program requirement that
is not part of a specific course, such as an independent research
project or independent study.
(c) The provisions of this section apply only to essential
instructional material that is written and published primarily for
instruction of students in post-secondary education. The
instructor of the relevant course shall make the determination
regarding essential instructional material in consultation with the
person at the institution who has primary responsibility for
services for students with disabilities.
(d) Instructors and academic departments shall meet all
institutional deadlines and shall comply with all institutional
procedures for selecting instructional materials and determining
reading lists in a timely manner so that an institution may procure
special instructional materials for eligible students as early in
their course work as possible.
(e) The publisher or manufacturer that produces the standard
instructional material which has been designated by an instructor
for use by students in connection with a course shall agree to
provide to the institution upon request special instructional
materials at the same cost as standard instructional material for
each eligible student enrolled in the course or at no additional
cost to the eligible student if the student has purchased a copy of
the standard instructional material.
(1) The publisher or manufacturer, as applicable, shall provide the special instructional material not later than the
fifteenth business day after the institution's request is received,
in the case of electronic copies, and not later than the date
agreed to in writing by the institution in the case of all other
special instructional materials;
(2) A manufacturer or publisher may deliver an electronic
format authorized under this section with electronic security
measures including encryption if the measures do not interfere with
access by the institution which requested the materials on behalf
of an eligible student; and
(3) A publisher or manufacturer, as applicable, shall provide
each copy of special instructional material, to the extent
practicable, in a format that meets the following conditions:
(A) Contains all the information that is in the standard
instructional material, including any text, sidebar, table of
contents, chapter headings, chapter subheadings, footnotes, index,
glossary and bibliography;
(B) Is approved by the publisher or manufacturer, as
applicable, and the institution as a format that will contain that
material;
(C) Is compatible with commonly used Braille translation and
speech synthesis software; and
(D) Includes any correction or revision available at the time
the electronic copy is provided.
(f) Subject to the rules promulgated pursuant to subsection
(o) of this section, a publisher or manufacturer may not solicit sales from an institution, an instructor or other employee
affiliated with the institution, or from a student enrolled in a
course at the institution, and may not solicit any institution,
instructor, or other employee to designate standard instructional
material as essential instructional material for any course or
program unless one of the following conditions applies:
(1) The publisher or manufacturer, as applicable, agrees in
writing to provide copies of the standard instructional material as
special instructional material subject to the provisions of this
section; or
(2) The commission or council, as applicable, determines by
application of the rules promulgated pursuant to subsection (o) of
this section that an extenuating circumstance exists pursuant to
subsection (h) of this section; or
(3) An otherwise eligible student has forfeited the right to
receive special instructional material by violating the terms of a
prior agreement pursuant to subsection (m) of this section.
(g) Subject to the rules promulgated pursuant to subsection
(o) of this section, an institution may not purchase and may not
designate as essential instructional material for any course,
standard instructional materials from a publisher or manufacturer
which does not adhere to the provisions of this subsection;
(h) A publisher or manufacturer is not required to provide
special instructional materials if the commission or council, as
applicable, determines by application of the rules required in
subsection (o) of this section that either of the following extenuating circumstances exists:
(1) Compliance by the manufacturer or publisher would violate
a law, rule or regulation relating to copyrights; or
(2) The standard instructional material on which the requested
special instructional material is based is out of print or exists
only in a format that makes it impracticable to convert into an
electronic format.
(i) If the publisher or manufacturer and the institution are
not able to agree on a format for the requested special
instructional material, the publisher or manufacturer, as
applicable, shall provide the electronic copy or other type copy of
the standard instructional material in a format that is readable by
a word processing application and contains as much of the material
specified by this section as is practicable.
(j) Special instructional material provided pursuant to the
provisions of this section may be delivered by traditional mail, by
e-mail or via a file transfer protocol site if the institution is
provided appropriate and timely notification when the material is
available.
(k) Each eligible student who wishes to receive special
instructional materials shall submit a request to the institution
where the student is enrolled. It is the responsibility of the
institution to submit the request of each eligible student,
together with all required information, to the publisher or
manufacturer, as applicable, in a timely manner.
(l) When an institution makes a request on behalf of an eligible student for special instructional materials from a
publisher or manufacturer, the request shall be signed by the
person at the institution who has primary responsibility for
providing services for students with disabilities and shall contain
the following information:
(1) Certification that the student has purchased a printed
copy of the standard instructional material and is entitled to
receive a copy prepared as special instructional material pursuant
to the terms of this section at no additional cost; and
(2) All available identifying facts relevant to the standard
instructional material, including, but not limited to the ISBN
number.
(m) A publisher or manufacturer may require that all requests
made by an institution pursuant to this section include a signed
statement by each eligible student in which he or she agrees to the
following conditions:
(1) To use the requested electronic copy and related special
instructional material only for the purposes of his or her personal
education;
(2) To refrain from copying or otherwise distributing the
requested special instructional material or the standard
instructional material on which it is based in a manner that
violates 17 U. S. C. §101, et seq.; and
(3) To return the special instructional material to the
disability services office of the institution under the following
circumstances:
(A) If the original printed material is resold;
(B) If the eligible student for whom the special
instructional material was requested drops the relevant course for
which the request was made; or
(C) If the eligible student withdraws from the institution;
and
(4) To attest, as an eligible student, that he or she may
forfeit the right to receive special instructional material in the
future from this publisher or manufacturer pursuant to this section
if he or she violates any of the provisions in the signed statement
and may be subject to further disciplinary action by the
institution.
(n) The manufacturer or publisher, as applicable, has sole
discretion to determine whether to allow an institution to maintain
a repository of previously requested special instructional
materials for reuse in order to comply with this section. An
institution that is authorized to reuse previously requested
special instructional materials must comply with all other
provisions of this section.
(o) Joint rule required; emergency rule authorized. --
(1) The Higher Education Policy Commission and the Council
for Community and Technical College Education shall propose a joint
rule for legislative approval pursuant to article three-a, chapter
twenty-nine-a of this code by the first day of November, two
thousand eight, to implement the provisions of this section. The
rule shall include, but is not limited to the following issues:
(A) A method for determinating when extenuating circumstances
exist pursuant to subsection (i) of this section;
(B) A method for determinating when an eligible student has
forfeited the right to receive special instructional material
pursuant to subsection (k) of this section;
(C) A method for identifying the person or persons authorized
to enter into agreements with the publisher or manufacturer on
behalf of the institution pursuant to subsection (f) of this
section;
(D) A step-by-step procedure for determining when a publisher
or manufacturer may not solicit sales or sell instructional
material at an institution or to students pursuant to subsection
(g) of this section;
(E) A step-by-step procedure for determining when an
institution may not purchase, provide for sale, or designate as
essential, instructional material from a publisher or manufacturer
pursuant to subsection (h) of this section; and
(F) A method for determining conditions under which a
publisher or manufacturer may regain the privilege of offering for
sale standard instructional materials which the institution and
students have been prohibited from purchasing because the publisher
or manufacturer has failed to abide by the provisions of this
section.
(2) The Legislature finds that an emergency exists and,
therefore, the commission and the council shall file a joint rule
to implement the provisions of this article as an emergency rule pursuant to the provisions of article three-a, chapter
twenty-nine-a of this code by the first day of November, two
thousand eight.
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