[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1772 Introduced in House (IH)]

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115th CONGRESS
  1st Session
                                H. R. 1772

    To authorize the creation of a commission to develop voluntary 
  accessibility guidelines for electronic instructional materials and 
  related technologies used in postsecondary education, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 29, 2017

   Mr. Roe of Tennessee (for himself, Mr. Courtney, Mr. Thompson of 
     Pennsylvania, Mr. Kinzinger, Mr. Price of North Carolina, Mr. 
Krishnamoorthi, Mr. Kildee, and Mr. Thompson of Mississippi) introduced 
 the following bill; which was referred to the Committee on Education 
                           and the Workforce

_______________________________________________________________________

                                 A BILL


 
    To authorize the creation of a commission to develop voluntary 
  accessibility guidelines for electronic instructional materials and 
  related technologies used in postsecondary education, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Accessible Instructional Materials 
in Higher Education Act'' or the ``AIM HIGH Act''.

SEC. 2. COMMISSION STRUCTURE.

    (a) Establishment of Commission.--
            (1) In general.--The Speaker of the House of 
        Representatives, the President pro tempore of the Senate, and 
        the Secretary of Education shall establish an independent 
        commission, comprised of key stakeholders, to develop voluntary 
        guidelines for accessible postsecondary electronic 
        instructional materials and related technologies in order--
                    (A) to ensure students with disabilities are 
                afforded the same educational benefits provided to 
                nondisabled students through the use of electronic 
                instructional materials and related technologies;
                    (B) to inform better the selection and use of such 
                materials and technologies at institutions of higher 
                education; and
                    (C) to encourage entities that produce such 
                materials and technologies to make accessible versions 
                more readily available in the market.
        In fulfilling this duty, the commission shall review applicable 
        national and international information technology accessibility 
        standards, which it will compile and annotate as an additional 
        information resource for institutions of higher education and 
        companies that service the higher education market.
            (2) Membership.--
                    (A) Stakeholder groups.--The commission shall be 
                composed of representatives from the following 
                categories:
                            (i) Disability.--Communities of persons 
                        with disabilities for whom the accessibility of 
                        postsecondary electronic instructional 
                        materials and related technologies is a 
                        significant factor in ensuring equal 
                        participation in higher education, and 
                        nonprofit organizations that provide accessible 
                        electronic materials to these communities.
                            (ii) Higher education.--Higher education 
                        leadership, which includes: university 
                        presidents, provosts, deans, vice presidents, 
                        deans of libraries, chief information officers, 
                        and other senior institutional executives.
                            (iii) Industry.--Relevant industry 
                        representatives, meaning--
                                    (I) developers of postsecondary 
                                electronic instructional materials; and
                                    (II) manufacturers of related 
                                technologies.
                    (B) Appointment of members.--The commission members 
                shall be appointed as follows:
                            (i) Six members, 2 from each category 
                        described in subparagraph (A), shall be 
                        appointed by the Speaker of the House of 
                        Representatives, 3 of whom shall be appointed 
                        on the recommendation of the majority leader of 
                        the House of Representatives and 3 of whom 
                        shall be appointed on the recommendation of the 
                        minority leader of the House of 
                        Representatives, with the Speaker ensuring that 
                        1 developer of postsecondary electronic 
                        instructional materials and 1 manufacturer of 
                        related technologies are appointed. The Speaker 
                        shall also appoint 2 additional members, 1 
                        student with a disability and 1 faculty member 
                        from an institution of higher education.
                            (ii) Six members, 2 from each category 
                        described in subparagraph (A), shall be 
                        appointed by the President pro tempore of the 
                        Senate, 3 of whom shall be appointed on the 
                        recommendation of the majority leader of the 
                        Senate and 3 of whom shall be appointed on the 
                        recommendation of the minority leader of the 
                        Senate, with the President pro tempore ensuring 
                        that 1 developer of postsecondary electronic 
                        instructional materials and 1 manufacturer of 
                        related technologies are appointed. The 
                        President pro tempore shall also appoint 2 
                        additional members, 1 student with a disability 
                        and 1 faculty member from an institution of 
                        higher education.
                            (iii) Three members, each of whom must 
                        possess extensive, demonstrated technical 
                        expertise in the development and implementation 
                        of accessible postsecondary electronic 
                        instructional materials, shall be appointed by 
                        the Secretary of Education. One of these 
                        members shall represent postsecondary students 
                        with disabilities, 1 shall represent higher 
                        education leadership, and 1 shall represent 
                        developers of postsecondary electronic 
                        instructional materials.
                    (C) Eligibility to serve on the commission.--
                Federal employees are ineligible for appointment to the 
                commission. An appointee to a volunteer or advisory 
                position with a Federal agency or related advisory body 
                may be appointed to the commission so long as his or 
                her primary employment is with a non-Federal entity and 
                he or she is not otherwise engaged in financially 
                compensated work on behalf of the Federal Government, 
                exclusive of any standard expense reimbursement or 
                grant-funded activities.
    (b) Authority and Administration.--
            (1) Authority.--The commission's execution of its duties 
        shall be independent of the Secretary of Education, the 
        Attorney General, and the head of any other agency or 
        department of the Federal Government with regulatory or 
        standard setting authority in the areas addressed by the 
        commission.
            (2) Administration.--
                    (A) Staffing.--There shall be no permanent staffing 
                for the commission.
                    (B) Leadership.--Commission members shall elect a 
                chairperson from among the 19 appointees to the 
                commission.
                    (C) Administrative support.--The Commission shall 
                be provided administrative support, as needed, by the 
                Secretary of Education through the Office of 
                Postsecondary Education of the Department of Education.

SEC. 3. DUTIES OF THE COMMISSION.

    (a) Produce Voluntary Guidelines.--Not later than 18 months after 
the date of enactment of this Act, subject to a 6-month extension that 
it may exercise at its discretion, the commission established in 
section 2 shall--
            (1) develop and issue voluntary guidelines for accessible 
        postsecondary electronic instructional materials and related 
        technologies; and
            (2) in developing the voluntary guidelines, the commission 
        shall--
                    (A) establish a technical panel pursuant to 
                subsection (d) to support the commission in developing 
                the voluntary guidelines;
                    (B) develop criteria for determining which 
                materials and technologies constitute ``postsecondary 
                electronic instructional materials'' and ``related 
                technologies'' as defined in paragraphs (5) and (6) of 
                section 7;
                    (C) identify existing national and international 
                accessibility standards that are relevant to student 
                use of postsecondary electronic instructional materials 
                and related technologies at institutions of higher 
                education;
                    (D) identify and address any unique pedagogical and 
                accessibility requirements of postsecondary electronic 
                instructional materials and related technologies that 
                are not addressed, or not adequately addressed, by the 
                identified, relevant existing accessibility standards;
                    (E) identify those aspects of accessibility, and 
                types of postsecondary instructional materials and 
                related technologies, for which the commission cannot 
                produce guidelines or which cannot be addressed by 
                existing accessibility standards due to--
                            (i) inherent limitations of commercially 
                        available technologies; or
                            (ii) the challenges posed by a specific 
                        category of disability that covers a wide 
                        spectrum of impairments and capabilities which 
                        makes it difficult to assess the benefits from 
                        particular guidelines on a categorical basis;
                    (F) ensure that the voluntary guidelines are 
                consistent with the requirements of section 504 of the 
                Rehabilitation Act of 1973 (29 U.S.C. 794) and titles 
                II and III of the Americans with Disabilities Act (42 
                U.S.C. 12131 et seq.; 42 U.S.C. 12181 et seq.);
                    (G) ensure that the voluntary guidelines are 
                consistent, to the extent feasible and appropriate, 
                with the technical and functional performance criteria 
                included in the national and international 
                accessibility standards identified by the commission as 
                relevant to student use of postsecondary electronic 
                instructional materials and related technologies;
                    (H) allow for the use of an alternative design or 
                technology that results in substantially equivalent or 
                greater accessibility and usability by individuals with 
                disabilities than would be provided by compliance with 
                the voluntary guidelines; and
                    (I) provide that where electronic instructional 
                materials or related technologies that comply fully 
                with the voluntary guidelines are not commercially 
                available, or where such compliance is not technically 
                feasible, the institution may select the product that 
                best meets the voluntary guidelines consistent with the 
                institution's business and pedagogical needs.
    (b) Produce Annotated List of Information Technology Standards.--
Not later than 18 months after the date of the enactment of this Act, 
subject to a 6-month extension that it may exercise at its discretion, 
the commission established in section 2 shall, with the assistance of 
the technical panel established under subsection (d), develop and issue 
an annotated list of information technology standards.
    (c) Supermajority Approval.--Issuance of the voluntary guidelines 
and annotated list of information technology standards shall require 
approval of at least 75 percent (at least 15) of the 19 members of the 
commission.
    (d) Establishment of Technical Panel.--Not later than 1 month after 
the Commission's first meeting, it shall appoint and convene a panel of 
12 technical experts, each of whom shall have extensive, demonstrated 
technical experience in developing, researching, or implementing 
accessible postsecondary electronic instructional materials or related 
technologies. The commission has discretion to determine a process for 
nominating, vetting, and confirming a panel of experts that fairly 
represents the stakeholder communities on the commission. The technical 
panel shall include a representative from the United States Access 
Board.

SEC. 4. PERIODIC REVIEW AND REVISION OF VOLUNTARY GUIDELINES.

    Not later than 5 years after issuance of the voluntary guidelines 
and annotated list of information technology standards described in 
subsections (a) and (b) of section 3, and every 5 years thereafter, the 
Secretary of Education shall publish a notice in the Federal Register 
requesting public comment about whether there is a need to reconstitute 
the commission to update the voluntary guidelines and annotated list of 
information technology standards to reflect technological advances, 
changes in postsecondary electronic instructional materials and related 
technologies, or updated national and international accessibility 
standards. The Secretary shall submit a report to Congress summarizing 
the public comments and presenting the Secretary's decision on whether 
to reconstitute the commission based on those comments. If the 
Secretary decides to reconstitute the commission, the Secretary may 
implement that decision 30 days after the date on which the report was 
submitted to Congress. That process shall begin with the Secretary 
requesting the appointment of commission members as detailed in section 
2(a)(2)(B).

SEC. 5. SAFE HARBOR PROTECTIONS.

    The following defenses from liability may be asserted with respect 
to claims regarding the use of postsecondary instructional materials 
and related technologies arising under section 504 of the 
Rehabilitation Act of 1973 (29 U.S.C. 794) and titles II and III of the 
Americans with Disabilities Act of 1990 (42 U.S.C. 12131 et seq. and 
12181 et seq.), subject to the judicial review afforded under those 
Acts and without limiting any other defenses provided under those Acts:
            (1) Safe harbor for conforming postsecondary electronic 
        instructional materials and related technologies.--An 
        institution of higher education that requires, provides, or 
        both recommends and provides, postsecondary electronic 
        instructional materials or related technologies that conform to 
        the voluntary guidelines shall be deemed in compliance with, 
        and qualify for a safe harbor from liability in relation to, 
        its obligations under section 504 of the Rehabilitation Act of 
        1973 (29 U.S.C. 794) and titles II and III of the Americans 
        with Disabilities Act (42 U.S.C. 12131 et seq.; 42 U.S.C. 12181 
        et seq.) with respect to its selection of such materials or 
        technologies.
            (2) Limited safe harbor for nonconforming postsecondary 
        electronic instructional materials or related technologies.--An 
        institution of higher education that requires, provides, or 
        both recommends and provides, postsecondary electronic 
        instructional materials or related technologies that do not 
        fully conform with the voluntary guidelines, but which 
        institution otherwise complies with all requirements set forth 
        in subparagraphs (A), (B), and (C), will qualify for a limited 
        safe harbor from monetary damages under section 504 of the 
        Rehabilitation Act of 1973 (29 U.S.C. 794) and titles II and 
        III of the Americans with Disabilities Act (42 U.S.C. 12131 et 
        seq.; 42 U.S.C. 12181 et seq.), with available remedies under 
        section 505 of the Rehabilitation Act of 1973 (29 U.S.C. 794a), 
        section 103 of the Americans with Disabilities Act of 1990 (42 
        U.S.C. 12133), and section 308 of such Act (42 U.S.C. 12188) 
        limited to declaratory and injunctive relief, and for a 
        prevailing party other than the United States, a reasonable 
        attorney's fee, if the institution--
                    (A) documented its efforts to incorporate and use 
                the voluntary guidelines in its policies and practices 
                regarding its selection or procurement of postsecondary 
                electronic instructional materials and related 
                technologies. These efforts may include establishment 
                of a written policy regarding the institution's use of 
                the voluntary guidelines, identifying the official(s) 
                authorized to approve the selection of nonconforming 
                postsecondary electronic instructional materials or 
                related technologies, and procedures used by the 
                official(s) when making such authorizations;
                    (B) documented instances where nonconforming 
                postsecondary electronic instructional materials or 
                related technologies are selected or procured, 
                including an explanation of--
                            (i) the process utilized for identifying 
                        accessible options in the marketplace;
                            (ii) the options considered, if any are 
                        available;
                            (iii) the choice the institution ultimately 
                        made and why;
                            (iv) what auxiliary aid or service, 
                        reasonable modification, or other method the 
                        institution will utilize to ensure that 
                        affected students within categories of 
                        disability are afforded the rights to which 
                        they are entitled under section 504 of the 
                        Rehabilitation Act of 1973 (29 U.S.C. 794) and 
                        titles II and III of the Americans with 
                        Disabilities Act (42 U.S.C. 12131 et seq.; 42 
                        U.S.C. 12181 et seq.), including an equally 
                        effective opportunity to receive the same 
                        educational benefit as afforded to nondisabled 
                        students; and
                            (v) where a student or students with 
                        disabilities are affected by nonconforming 
                        instructional materials or related 
                        technologies, what auxiliary aid or service, 
                        reasonable modification, or other method the 
                        institution is using to ensure the student or 
                        students are afforded the rights described in 
                        clause (iv); and
                    (C) posted a link to an accessible copy of the 
                voluntary guidelines and annotated list of information 
                technology standards on a publicly available page of 
                its website.

SEC. 6. CONSTRUCTION.

    (a) Nonconforming Postsecondary Electronic Instructional Materials 
or Related Technologies.--Nothing in this Act shall be construed to 
require an institution of higher education to require, provide, or both 
recommend and provide, postsecondary electronic instructional materials 
or related technologies that conform to the voluntary guidelines. 
However, an institution that selects or uses nonconforming 
postsecondary electronic instructional materials or related 
technologies must otherwise comply with existing obligations under 
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and 
titles II and III of the Americans with Disabilities Act (42 U.S.C. 
12131 et seq.; 42 U.S.C. 12181 et seq.) to provide access to the 
educational benefit afforded by such materials and technologies through 
provision of appropriate and reasonable modification, accommodation, 
and auxiliary aids or services.
    (b) Relationship to Existing Laws and Regulations.--With respect to 
the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) 
and the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), except as 
provided in section 5, nothing in this Act may be construed--
            (1) to authorize or require conduct prohibited under the 
        Americans with Disabilities Act of 1990 and the Rehabilitation 
        Act of 1973, including the regulations issued pursuant to those 
        laws;
            (2) to expand, limit, or alter the remedies or defenses 
        under the Americans with Disabilities Act of 1990 and the 
        Rehabilitation Act of 1973;
            (3) to supersede, restrict, or limit the application of the 
        Americans with Disabilities Act of 1990 and the Rehabilitation 
        Act of 1973; or
            (4) to limit the authority of Federal agencies to issue 
        regulations pursuant to the Americans with Disabilities Act of 
        1990 and the Rehabilitation Act of 1973.
    (c) Voluntary Nature of the Products of the Commission.--
            (1) Voluntary guidelines.--It is the intent of the Congress 
        that use of the voluntary guidelines developed pursuant to this 
        Act is and should remain voluntary. The voluntary guidelines 
        shall not confer any rights or impose any obligations on 
        commission participants, institutions of higher education, or 
        other persons, except for the legal protections set forth in 
        section 5. Thus, no department or agency of the Federal 
        Government may incorporate the voluntary guidelines, whether 
        produced as a discrete document or electronic resource, into 
        regulations promulgated under the Rehabilitation Act, the 
        Americans with Disabilities Act, or any other Federal law or 
        instrument. This restriction applies only to the voluntary 
        guidelines as a discrete document or resource; it imposes no 
        limitation on Federal use of standards or resources to which 
        the voluntary guidelines may refer.
            (2) Annotated list.--It is the intent of Congress that use 
        of the annotated list of information technology standards 
        developed pursuant to this Act is and should remain voluntary. 
        The Annotated List shall not confer any rights or impose any 
        obligations on Commission participants, institutions of higher 
        education, or other persons. Thus, no department or agency of 
        the Federal Government may incorporate the Annotated List, 
        whether produced as a discrete document or electronic resource 
        into regulations promulgated under the Rehabilitation Act, the 
        Americans with Disabilities Act, or any other Federal law or 
        instrument. This provision applies only to the Annotated List 
        as a discrete document or resource; it imposes no limitation on 
        Federal use of standards or resources to which the Annotated 
        List may refer.

SEC. 7. DEFINITIONS.

    In this Act the following definitions apply:
            (1) Annotated list of information technology standards.--
        The term ``annotated list of information technology standards'' 
        means a list of existing national and international 
        accessibility standards relevant to student use of 
        postsecondary electronic instructional materials and related 
        technologies, and to other types of information technology 
        common to institutions of higher education (such as 
        institutional websites and class registration systems), 
        annotated by the commission established pursuant to section 2 
        to provide information about the applicability of such 
        standards in higher education settings. The annotated list of 
        information technology standards is intended to serve solely as 
        a reference tool to inform any consideration of the relevance 
        of such standards in higher education contexts.
            (2) Disability.--The term ``disability'' has the meaning 
        given such term in section 3 of the Americans with Disabilities 
        Act of 1990 (42 U.S.C. 12102).
            (3) Institution of higher education.--The term 
        ``institution of higher education'' has the meaning given such 
        term in section 101 of the Higher Education Act of 1965 (20 
        U.S.C. 1001).
            (4) Nonconforming postsecondary electronic instructional 
        materials or related technologies.--The term ``nonconforming 
        materials or related technologies'' means postsecondary 
        electronic instructional materials or related technologies that 
        do not conform to the voluntary guidelines to be developed 
        pursuant to this Act.
            (5) Postsecondary electronic instructional materials.--The 
        term ``postsecondary electronic instructional materials'' means 
        digital curricular content that is required, provided, or both 
        recommended and provided by an institution of higher education 
        for use in a postsecondary instructional program.
            (6) Related technologies.--The term ``related 
        technologies'' refers to any software, applications, learning 
        management or content management systems, and hardware that an 
        institution of higher education requires, provides, or both 
        recommends and provides for student access to and use of 
        postsecondary electronic instructional materials in a 
        postsecondary instructional program.
            (7) Technical panel.--The term ``technical panel'' means a 
        group of experts with extensive, demonstrated technical 
        experience in the development and implementation of 
        accessibility features for postsecondary electronic 
        instructional materials and related technologies, established 
        by the Commission pursuant to section 3(d), which will assist 
        the commission in the development of the voluntary guidelines 
        and annotated list of information technology standards 
        authorized under this Act.
            (8) Voluntary guidelines.--The term ``voluntary 
        guidelines'' means a set of technical and functional 
        performance criteria to be developed by the commission 
        established pursuant to section 2 that provide specific 
        guidance regarding both the accessibility and pedagogical 
        functionality of postsecondary electronic instructional 
        materials and related technologies not addressed, or not 
        adequately addressed, by existing accessibility standards.
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