Dated January 30, 2008

Ms. Denise Koscielniak

State Director of Special Education

State of New Mexico Public Education Department

300 Don Gaspar

Santa Fe, NM 87501-2786

Dear Ms. Koscielniak:

Thank you for your inquiry requesting clarification on three specific
issues related to the implementation of the National Instructional
Materials Accessibility Standard (NIMAS) provisions of the Individuals
with Disabilities Education Act (IDEA). The Office of Special Education
Programs (OSEP) at the U. S. Department of Education welcomes this
opportunity to provide clarification on the complex implementation
issues outlined in your letter of October 9, 2007 to the OSEP Monitoring
and State Improvement Planning (MSIP) Division Director, Ms. Ruth Ryder.
These clarifications are critical so that your students with
disabilities have accessible instructional materials. This letter will
address each issue as stated in your letter.

*1. The publishers are taking the position that the requirement to
provide NIMAS conformant files to NIMAC applies only to print
instructional materials that were published after the date the NIMAS
regulation was published in the [Federal ]{.underline}Register. In other
words, 20 U.S.C. § 1474(0(4) should he interpreted to apply only to new
material and not to material published prior to July 19, 2006. Is this a
correct interpretation of what published\" means in 20 U.S.C. §
1474(e)(4)?*

[This interpretation is not consistent with the IDEA regulations.
Section 674(e)(4) of the Act provides that the NIMAS applies \"to print
instructional materials published after the date on which the final rule
establishing the \[NIMAS\] was published in the Federal Register.\" The
NIMAS was finalized July 19, 2006. In the preamble to the part B
regulations in 71 Fed. Reg. 46620 (Aug 14, 2006), the Department
interpreted \"publish\" as having \"the plain meaning of the word, which
is to issue for sale or distribution to the public.\" The Department
further stated that \"\[t\]he NIMAC\'s duties, therefore, apply to print
instructional materials made available to the public for sale after the
NIMAS is published in the Federal Register.\" Thus, it is clear that the
word \"publish\" in section 674(e) refers to each sale of print
instructional materials, and that this requirement is applicable to all
new contracts for the sale of print instructional materials since July
19, 2006, notwithstanding when they were first published.]{.underline}

[This interpretation, however, does not mean that all materials
requested by State education agencies (SEAs) and local education
agencies (LEAs) that meet the definition of print instructional
materials in section 674(e) must be converted to the NIMAS and processed
through the NIMAC. Rather, section 612(a)(23)(C) of IDEA, states that
SEAs that choose to coordinate with the NIMAC, as of December 3, 2006,
must enter into a written contract with the publisher of the print
instructional materials to:]{.underline}

[(i) require the publisher to prepare and, on or before delivery of the
print instructional materials, provide to NIMAC electronic files
containing the contents of the print instructional materials using the
NIMAS; or (ii) purchase instructional materials from the publisher that
are produced in, or may he rendered in, specialized
formats.]{.underline}

The regulations also clarified that a lack of availability of NIMAS
files through the NIMAC does not relieve SEAs and LEAs of their
responsibility to provide accessible instructional materials in a timely
manner, regardless of when the instructional materials were
\"published.\"

[There is an identical requirement for LEAs. Thus, SEAs and LEAs can
comply with their obligations under IDEA not only by the direct deposit
of NIMAS files to NIMAC for the materials they have contracted to
purchase, but also by purchasing directly from the publishers those
instructional materials that are produced in, or may be converted to,
specialized formats.]{.underline}

[The provision in section 674(c)(4) protects publishers from having to
create NIMAS files for books that are still in inventory, but no longer
being produced. However, we believe that SEAs and LEAs would be willing
to he 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. In this pursuit, we intend to disseminate a clarifying
memorandum to SEAs stating that SEAs, LEAs, and publishers have options
when contracting for print instructional materials that are less in
demand, such as those of historical significance, and that it may be
advantageous to all parties if the SEA or LEA purchases accessible
materials that are not available in the NIMAS format directly from the
publisher in formats that are already available.]{.underline}

*2. The publishers are asserting that math and science print
instructional materials are exempt from the NIMAS requirements because
the National File Format Technical Panel has not included specifications
for converting math and science symbols into the NIMAS format. This of
course would mean that math and science print instructional materials
would not have to he provided to NIMAC to NIMAS format. Is this
correct?*

[This is not a correct interpretation. No curriculum content is exempt
from NIMAS by statute, regulation, or recommendation of the NIMAS
Development Committee. Section 20 U.S.C. 1474(e)(3)(C) states \"The term
\'print instructional materials\' means 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
]{.underline}

[by a State educational agency or local educational agency for use by
students in the classroom.\" This includes math and
science.]{.underline}

[The NIMAS Development Committee agreed upon an interim solution pending
formal adoption of specifications for math and science content: that
Math concepts be represented as images and that all textual content be
provided in NIMAS-conformant XML. (See NIMAS Development Committee
notes, Orlando 2006, at
http://nimas.cast.org/center/cornmittee/minutes-2006-01.html.)]{.underline}

[The NIMAS web site provides extensive guidance on the creation of
NIMAS-conformant Math and Science content. The web site provides
examples of NIMAS-conformant files with correct presentation of images
within a NIMAS file set, including mathematical images. For further
information, see:]{.underline}

\- Math and Images at

[http://nimas.cast.org/about/resources/math/math and
images.html]{.underline}

[- NIMAS XML exemplar 4 at ]{.underline}

*[3. The publishers are asserting that \"print instructional materials\"
as defined by 20 ]{.underline}[US. C. ]{.underline}[§]{.underline}[
1474(e)(3)(C) includes only printed textbooks and related core material
hut ]{.underline}[does not include textbooks that were not written for
sale in K-12 such as higher ]{.underline}[education textbooks and trade
books as well as supplementals, teacher editions and the
]{.underline}[like. Is this correct?]{.underline}*

[Under sections 612(a)(23) and 613(a)(6) of IDEA, SEAs/LEAs have the
responsibility to provide all \"instructional materials\" in accessible
formats to blind and other print disabled persons in a timely manner.
This responsibility would extend to all instructional materials used in
courses that SEAs/LEAs offer for elementary school or secondary school
credit, even if they are provided by another entity through a contract
or other arrangement with the SEA/LEA.]{.underline}

[The NIMAC authority in section 674(e) of IDEA is limited to \"print
instructional materials,\" which is defined in section 674(e)(3)(C) as
\"\[p\]rinted 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.\" The term \"print instructional materials\" is narrower than
the term \"instructional materials\" as used in sections 612(a)(23) and
613(x)(6) because the definition does not include textbooks published
primarily for use in postsecondary instruction. The term also does not
include trade books and supplemental materials unless they are published
primarily for use in elementary and secondary school instruction and are
required by an SEA or LEA for use by students in the
classroom.]{.underline}

Whether publishers are required to create NIMAS files for textbooks that
are used in advanced placement classrooms and send those files to the
NIMAC must be assessed on a case-by-case basis. The determining factor
is not where the class is taken or what kind of credit is given. Rather,
the definition of the term \"print instructional materials\" must be
applied, and the determining factor is whether the textbook was
published primarily for use in secondary school instruction and is
required by an SEA or LEA for use by students in the classroom. Finally,
teacher editions arc not covered because the NIMAC is limited to
providing accessible materials only to blind or other persons with print
disabilities, which is clearly defined in section 674(e)(3)(A) to mean
children served under IDEA who also qualify under An Act to Provide
Books to the Adult Blind of March 3, 1931.

[Based upon the foregoing, while SEAs/LEAs may use instructional
materials that are not covered by the NIMAC, including materials
published primarily for use in postsecondary education, they have an
obligation under sections 612(a)(23) and 613(a)(6) to ensure that all
instructional materials are provided in accessible formats to blind and
other print disabled persons.]{.underline}

[Again, we appreciate your inquiry about clarifying these implementation
issues. These are important points as New Mexico, as well as other
states, work to implement the requirements that assure that students
with print disabilities have accessible instructional materials. Based
on section 607(e) of the IDEA, we are informing you that our response is
provided as informal guidance and is not legally binding, but represents
an interpretation by the U.S. Department of Education of the IDEA in the
context of the specific facts presented.]{.underline}

[If further clarification is needed, don\'t hesitate to contact our
NIMAS Technical Assistance Center Project Director, Mr. Chuck Hitchcock,
at chitchcock@castorg, Dr. Bonnie Jones, NIMAS content expert at OSEP,
at bonnie.jones()ed.gov, or the NIMAS website at http://nimas.cast.org.
Please advise Dr. Jones or Mr. Hitchock if you have further need for
clarification or technical assistance.]{.underline}

[Sincerely,]{.underline}

[/s/]{.underline}

[William H. Knudsen]{.underline}

[Deputy Assistant Secretary]{.underline}

Cc: John Copenhaver, Director, Mountain Plains Regional Resource Center

[Gilbert Perea, Assistant Secretary, New Mexico Program Support and
Student Transportation Division]{.underline}

[Sally Wilkinson, State Director, New Mexico Instructional Materials
Bureau]{.underline}