AN ACT
RELATING TO EDUCATION; ENACTING THE BRAILLE ACCESS ACT;
REQUIRING INSTRUCTIONAL MATERIALS TO BE PROVIDED IN BRAILLE; PROVIDING A
PRIVATE RIGHT OF ACTION; REPEALING THE BRAILLE LITERACY ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the
"Braille Access Act".
Section 2. PURPOSES.--The purposes of the Braille Access
Act are to:
A. enhance literacy;
B. increase braille proficiency;
C. improve employability for blind and visually
impaired students; and
D. reduce the cost of acquiring braille and
other alternate accessible format materials.
Section 3. DEFINITIONS.--As used in the Braille Access
Act:
A. "alternate accessible format" means
one of several alternatives to traditional print, including braille, large
print and computer text files;
B. "braille" means the tactile system
of reading and writing used by persons who are blind and visually impaired, as
defined by the braille authority of North America;
C. "department" means the state
department of public education;
D. "educational institution" means a
public school or public post-secondary educational institution;
E. "instructional materials" means
textbooks, workbooks, teacher manuals or editions, blackline masters,
transparencies, test packets, software, CD-ROMs, videotapes and cassette tapes;
F. "structural integrity" means all of
the printed instructional materials, including the text of the material,
sidebars, table of contents, chapter headings and subheadings, footnotes,
indexes, glossaries and bibliographies.
"Structural integrity" need not include nontextual elements
such as pictures, illustrations, graphs or charts, though the publisher should
include a brief textual description of any such nontextual element when it is
practical to do so and mention of the nontextual element when a description is
not practical;
G. "student" means a blind or visually
handicapped person accepted, enrolled or attending an educational institution;
and
H. "textbook" means a book, a system
of instructional materials or a combination of a book and supplementary
instructional material that conveys information to the student or otherwise
contributes to the learning process, including electronic textbooks.
Section 4. INSTRUCTIONAL MATERIALS.--
A. A publisher that prints instructional
materials for students attending educational institutions shall provide, upon
request of the educational institution, any printed instructional materials in
an electronic format mutually agreed upon by the publisher and the educational
institution.
B. The formats used shall include any nationally
recognized standard for conversion of publishing files to braille, such as
DAISY/NISO XML.
C. If no nationally recognized standard is
appropriate, as determined by the department, publishers shall provide the file
in another mutually agreed upon computer or electronic format, such as
Microsoft Word, ASCII text or LaTex.
D. The educational institution may use the
electronic version of printed instructional materials that is provided pursuant
to the Braille Access Act to transcribe or arrange for the transcription of the
printed instructional materials into an alternate accessible format. The educational institution has the right to
provide the alternate accessible format copy of the printed instructional
materials to students as permitted by federal copyright law, including the provisions
of Section 316 of Public Law
104-197.
E. The electronic version of the printed
instructional materials shall:
(1) comply with any applicable federal standard;
(2) otherwise maintain the structural integrity
of the printed instructional materials; and
(3) include the latest corrections and revisions
of the printed instructional materials as necessary.
F. The publisher shall provide the electronic
versions of the printed instructional materials to the educational institution
at no additional cost and within ten business days after receipt of a written
request that does all of the following:
(1) certifies that the educational institution or
the student has purchased the printed instructional materials for use by the
student;
(2) certifies that the student is unable to use
printed instructional materials;
(3) certifies that the printed instructional
materials are for use by the student in connection with a course at the
educational institution; and
(4) is signed by the:
(a) person responsible for providing educational
services pursuant to the federal Individuals with Disabilities Education Act;
(b) coordinator of services for students with
disabilities at the educational institution;
(c) person responsible for monitoring the
educational institution's compliance with the federal Americans with
Disabilities Act of 1990 or Section 504 of the federal Rehabilitation Act of
1973; or
(d) vocational rehabilitation counselor
responsible for providing services under an individualized plan for employment
created pursuant to the federal Rehabilitation Act of 1973.
G. A publisher may require that the request
include a statement signed by the educational institution agreeing that:
(1) the electronic copy of the printed
instructional materials will be used solely for the student's educational
purposes; and
(2) the student or educational institution will
not copy, publish or in any other way distribute the printed instructional
materials for use by anyone other than the original student, except that the
educational institution may provide the instructional materials to another
qualifying student who has signed a statement agreeing to the terms contained
in this section and unless it is otherwise permitted by federal law.
H. A publisher who manufactures instructional
materials using any type of video or audio format, CD ROM or other digital
format for students attending educational institutions shall, to the maximum
extent practicable, upon request, provide an accessible version of the
instructional materials or, if an accessible version is not available, provide
other electronic versions of the instructional materials, subject to the same
conditions and limitations for printed instructional materials.
I. Nothing in the Braille Access Act shall be
deemed to authorize any use of instructional materials that would constitute an
infringement of copyright pursuant to applicable federal copyright law.
Section 5. GUIDELINES.--The department, in consultation
with representatives from educational institutions and publishers, shall adopt
guidelines consistent with the Braille Access Act for the implementation and
administration of that act. The
guidelines shall address all of the following:
A. the designation of instructional materials
deemed required or essential to student success;
B. definitions clarifying what constitutes
nontextual mathematics or science instructional materials that use mathematical
notations and clarifying a publisher's obligations in regard to such
instructional materials;
C. definitions clarifying what is required to
maintain structural integrity and requirements for textual descriptions of pictures,
illustrations, graphs and charts;
D. requirements for approval and procurement of
textbooks that are available in a computer or electronic format and procedures
for suspension of publishers from the procurement process if the publisher
fails to comply with the provisions of the Braille Access Act;
E. an administrative complaint process to be
followed for complaints against a publisher;
F. definitions clarifying what constitutes
"educational purposes"; and
G. any other matters the department deems
necessary or appropriate to carry out the purposes of the Braille Access Act.
Section 6. PRIVATE RIGHT OF ACTION.--A student who
contends that there has been a violation of the Braille Access Act has the
right to pursue a private right of action in the district court if the student
has exhausted the administrative complaint process. Organizations representing the interests of
persons who are blind or who have other disabilities shall have standing to
assert any right afforded in the Braille Access Act and shall be subject to the
same requirements and terms as a student.
Should the student or organization prevail in a lawsuit, the student or
organization shall be entitled to injunctive relief and reasonable attorney
fees and costs. No other type of
monetary damages shall be available.
Section 7. REPEAL.--Sections 22-15-21 through 22-15-25
NMSA 1978 (being Laws 1993, Chapter 156, Sections 1 through 5) are repealed.
Section 8. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2003.