Sec. 703. Programs for students with disabilities

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Part D of title VII ( 20 U.S.C. 1140 et seq.) is amended by striking subparts 1 and 3 and redesignating subparts 2 and 4 as subparts 1 and 2, respectively. Part D of title VII ( 20 U.S.C. 1140 et seq.), as amended by paragraph (1), is redesignated as part B of such Act. Section 760 ( 20 U.S.C. 1140 ) is redesignated as section 730 of such Act. Section 766 ( 20 U.S.C. 1140f ) is redesignated as section 731 of such Act. Section 767 ( 20 U.S.C. 1140g ) is amended— by redesignating such section as section 732 of such Act; in subsection (a)(1)— by striking section 769(a) and inserting section 736(a) ; and by striking institutions of higher education (or consortia of institutions of higher education), to enable the institutions or consortia and inserting eligible applicants, to enable the eligible applicants ; by striking subsection

(b)and inserting the following: An eligible applicant desiring a grant under this section shall submit to the Secretary, at such time and in such manner as the Secretary may require, an application that— describes how the model program to be operated by the eligible applicant with grant funds received under this section will meet the requirements of subsection (d); describes how the model program proposed to be operated is based on the demonstrated needs of students with intellectual disabilities served by the eligible applicant and potential employers; describes how the model program proposed to be operated will coordinate with other Federal, State, and local programs serving students with intellectual disabilities, including programs funded under the Rehabilitation Act of 1973 ( 29 U.S.C. 701 et seq.); describes how the model program will be sustained once the grant received under this section ends; if applicable, describes how the eligible applicant will meet the preferences described in subsection (c)(3); and demonstrates the ability of the eligible applicant to meet the requirement under subsection (e). . in subsection (c)(3)— in subparagraph (B), by striking institution of higher education and inserting eligible applicant ; and in subparagraph (C), by striking students attending the institution of higher education and inserting the eligible applicant’s students ; in subsection (d)— in the matter preceding paragraph (1), by striking An institution of higher education (or consortium) and inserting An eligible applicant ; in paragraph (2), by striking institution of higher education’s and inserting eligible applicant’s ; in paragraph (3)(D), by striking that lead to gainful employment ; in paragraph (5), by striking section 777(b) and inserting section 734 ; in paragraph (6), by inserting and after the semicolon at the end; by striking paragraph (7); and by redesignating paragraph

(8)as paragraph (7); in subsection (e), by striking An institution of higher education (or consortium) and inserting An eligible applicant ; in subsection (f), by striking Not later than five years after the date of the first grant awarded under this section and inserting Not less often than once every 5 years ; and by adding at the end the following new subsection: For purposes of this subpart, the term eligible applicant means an institution of higher education or a consortium of institutions of higher education. . Sections 768 and 769 ( 20 U.S.C. 1140i ) are redesignated as sections 733 and 736, respectively. Subpart 1 of part D of title VII, as so redesignated by subsection (a)(1), is amended by inserting after section 733 (as so redesignated by paragraph (3)) the following: It is the purpose of this section to provide technical assistance and information on best and promising practices to eligible applicants awarded grants under section 732. In this section, the term eligible entity means an entity, or a partnership of entities, that has demonstrated expertise in the fields of— higher education; the education of students with intellectual disabilities; the development of comprehensive transition and postsecondary programs for students with intellectual disabilities; and evaluation and technical assistance. From amounts appropriated under section 736, the Secretary shall enter into a cooperative agreement, on a competitive basis, with an eligible entity for the purpose of establishing a coordinating center for institutions of higher education that offer inclusive comprehensive transition and postsecondary programs for students with intellectual disabilities, including eligible applicants receiving grants under section 732, to provide— recommendations related to the development of standards for such programs; technical assistance for such programs; and evaluations for such programs. The program under this section shall be administered by the office in the Department that administers other postsecondary education programs. A cooperative agreement entered into pursuant to this section shall have a term of 5 years. The cooperative agreement entered into pursuant to this section shall provide that the eligible entity entering into such agreement shall establish and maintain a coordinating center that shall— serve as the technical assistance entity for all comprehensive transition and postsecondary programs for students with intellectual disabilities; provide technical assistance regarding the development, evaluation, and continuous improvement of such programs; develop an evaluation protocol for such programs that includes qualitative and quantitative methodologies for measuring student outcomes and program strengths in the areas of academic enrichment, socialization, independent living, and competitive or supported employment; assist recipients of grants under section 732 in efforts to award a meaningful credential to students with intellectual disabilities upon the completion of such programs, which credential shall take into consideration unique State factors; develop recommendations for the necessary components of such programs, such as— academic, vocational, social, and independent living skills; evaluation of student progress; program administration and evaluation; student eligibility; and issues regarding the equivalency of a student’s participation in such programs to semester, trimester, quarter, credit, or clock hours at an institution of higher education, as the case may be; analyze possible funding sources for such programs and provide recommendations to such programs regarding potential funding sources; develop model memoranda of agreement for use between or among institutions of higher education and State and local agencies providing funding for such programs; develop mechanisms for regular communication, outreach, and dissemination of information about comprehensive transition and postsecondary programs for students with intellectual disabilities under section 732 between or among such programs and to families and prospective students; host a meeting of all recipients of grants under section 732 not less often than once every 3 years; and convene a workgroup to develop and recommend model criteria, standards, and components of such programs as described in subparagraph

(E)that are appropriate for the development of accreditation standards, which workgroup shall include— an expert in higher education; an expert in special education; a representative of a disability organization that represents students with intellectual disabilities; a representative from the National Advisory Committee on Institutional Quality and Integrity; and a representative of a regional or national accreditation agency or association. Not less often than once every 5 years, the coordinating center shall report to the Secretary, the authorizing committees, and the National Advisory Committee on Institutional Quality and Integrity on the recommendations of the workgroup described in paragraph (5)(J). 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— 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; to inform better the selection and use of such materials and technologies at institutions of higher education; and 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. The commission shall be composed of representatives from the following categories: 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. Higher education leadership, which includes: university presidents, provosts, deans, vice presidents, deans of libraries, chief information officers, and other senior institutional executives. Relevant industry representatives, meaning— developers of postsecondary electronic instructional materials; and manufacturers of related technologies. The commission members shall be appointed as follows: Six members, 2 from each category described in clause (i), 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. Six members, 2 from each category described in clause (i), 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. 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. 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. 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. There shall be no permanent staffing for the commission. Commission members shall elect a chairperson from among the 19 appointees to the commission. 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. The Commission shall terminate on the day after the date on which the Commission issues the voluntary guidelines and annotated list of information technology standards described in subsection (b), or two years from the date of enactment of the PROSPER Act, whichever comes first. Not later than 18 months after the date of enactment of the PROSPER Act, subject to a 6-month extension that it may exercise at its discretion, the commission established in subsection

(a)shall— develop and issue voluntary guidelines for accessible postsecondary electronic instructional materials and related technologies; and in developing the voluntary guidelines, the commission shall— establish a technical panel pursuant to paragraph

(4)to support the commission in developing the voluntary guidelines; develop criteria for determining which materials and technologies constitute postsecondary electronic instructional materials and related technologies as defined in subparagraphs

(D)and

(E)of subsection (f); 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; 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; 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— inherent limitations of commercially available technologies; or 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; 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.); 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; 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 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. Not later than 18 months after the date of the enactment of the PROSPER Act, subject to a 6-month extension that it may exercise at its discretion, the commission established in subsection

(a)shall, with the assistance of the technical panel established under paragraph (4), develop and issue an annotated list of information technology standards. 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. 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. Not later than 5 years after issuance of the voluntary guidelines and annotated list of information technology standards described in paragraphs

(1)and

(2)of section (b), 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 subsection (a)(1)(B)(ii). If the Secretary reconstitutes the Commission, the Commission shall terminate on the day after the date on which the Commission issues updated voluntary guidelines and annotated list of information technology standards, or two years from the date on which the Secretary reconstitutes the Commission, whichever comes first. 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: 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. 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— 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; documented instances where nonconforming postsecondary electronic instructional materials or related technologies are selected or procured, including an explanation of— the process utilized for identifying accessible options in the marketplace; the options considered, if any are available; the choice the institution ultimately made and why; 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 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 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. Nothing in this section 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. 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 subsection (d), nothing in this section may be construed— 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; to expand, limit, or alter the remedies or defenses under the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973; to supersede, restrict, or limit the application of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973; or 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. It is the intent of the Congress that use of the voluntary guidelines developed pursuant to this section 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 subsection (d). 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. It is the intent of Congress that use of the annotated list of information technology standards developed pursuant to this section 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. In this section, the following definitions apply: 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 subsection

(a)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. 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 ). 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 subpart. 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. 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. 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 subsection (b)(4), which will assist the commission in the development of the voluntary guidelines and annotated list of information technology standards authorized under this subpart. The term voluntary guidelines means a set of technical and functional performance criteria to be developed by the commission established pursuant to subsection

(a)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. . Section 736, as so redesignated by paragraph (3), is amended— in subsection (a), by striking such sums as may be necessary for fiscal year 2009 and inserting $11,800,000 for fiscal year 2019 ; and by striking subsection

(b)and inserting the following: For any fiscal year for which appropriations are made for this subpart, the Secretary— shall reserve funds to enter into a cooperative agreement to establish the coordinating center under section 734, in an amount that is equal to— not less than $240,000 for any year in which the amount appropriated to carry out this subpart is $8,000,000 or less; or equal to 3 percent of the amount appropriated to carry out this subpart for any year in which such amount appropriated is greater than $8,000,000; and may reserve funds to award the grant, contract, or cooperative agreement described in section 742. . The subpart heading for subpart 2 of part B of title VII ( 20 U.S.C. 1140p et seq.), as redesignated by subsection (a), is amended by striking . ; Coordinating center Section 776 ( 20 U.S.C. 1140p ) is amended— by redesignating such section as section 741 of such Act; and by striking grants, contracts, or cooperative agreements under subpart 1, 2, or 3 and inserting grants or a cooperative agreement under subpart 1 . Section 777 ( 20 U.S.C. 1140q ) is amended— by redesignating such section as section 742 of such Act; in the section heading, by striking ; ; Coordinating center in subsection (a)(1), by striking appropriated under section 778 and inserting reserved under section 736(b)(2) ; by amending subsection (a)(3)(D) to read as follows: the subject supported by the grants or cooperative agreement authorized in subpart 1. ; in subsection (a)(4)(A)(ii), by striking subparts 2, 4, and 5 and inserting subparts 2 and 5 ; and in subsection (a)(4)(B), by striking grants, contracts, or cooperative agreements authorized under subparts 1, 2, and 3 each place it appears and inserting grants and cooperative agreement authorized under subpart 1 . Section 778 ( 20 U.S.C. 1140r ) is repealed.

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