[blindlaw] IDEA does not authorize private right of action against National Instructional Materials Access Center

[Nightingale, Noel]

From special ed connection

OSEP FILES: IDEA does not authorize private right of action against
NIMAC

Case name: Letter to Tinsley,
 49 IDELR 17 
(OSEP 2007).

Ruling: In response to an inquiry regarding the National Instructional
Materials Access Center's potential liability for unauthorized access to
NIMAS file
sets, OSEP indicated that the IDEA does not provide a private right of
action against the NIMAC for actions related to the performance of its
IDEA duties.
However, noting that the issue at hand involved an analysis of legal
rights rather than an interpretation of the IDEA, OSEP cautioned that
its opinion
would carry little weight in a court of law. 

What it means: Concerns over copyright issues have prompted several
inquiries regarding access to National Instructional Materials
Accessibility Standard
file sets, the files that are used to make braille and large-print
educational materials. According to OSEP, publishers cannot hold the
NIMAC liable under
the IDEA if a state or local education agency impermissibly grants
access to files or provides specialized materials to students who do not
have visual
impairments. OSEP did not comment on whether the NIMAC should continue
using a broader indemnification clause in its contracts with SEAs. 

Summary: OSEP advised the National Instructional Materials Access Center
that it has little to fear from claims regarding access to NIMAS file
sets. So
long as the NIMAC complies with its duties under the IDEA, OSEP
observed, educational publishers cannot hold the NIMAC responsible if
their file sets fall
into the wrong hands. 

NIMAC's inquiry hinged on OSEP's interpretation of
 20 USC 1474
 (e)(5), which states that there is no private right of action against
the Secretary of Education if the NIMAC fails to perform its duties
under the IDEA.
Noting that the provision was somewhat ambiguous, OSEP pointed out that
it discussed the secretary's liability with respect to the NIMAC's
obligations.


"Therefore, it appears that the only way to give appropriate meaning to
the language at the end of the provision is to interpret it to provide
some protection
to NIMAC," former Assistant Secretary John H. Hager wrote. 

OSEP observed that the NIMAC's limited use agreements with SEAs
contained a much broader indemnification clause, which would apply to
claims filed under
the U.S. Copyright Act and include expenses such as attorney's fees and
court costs. Although OSEP did not comment on the appropriateness of the
indemnification
clauses, which several SEAs had refused to sign, it noted its
interpretation of Section 1474(e)(5), if valid, would only apply to the
NIMAC's duties under
the IDEA. 

Amy E. Slater, Esq., covers special education legal issues for LRP
Publications.

January 15, 2008

Copyright 2008 (c) LRP Publications
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IDEA does not authorize private right of action against National Instructional Materials Access Center
From special ed connection
OSEP FILES: IDEA does not authorize private right of action against NIMAC
Case name: Letter to Tinsley,
 49 IDELR 17
(OSEP 2007).
Ruling: In response to an inquiry regarding the National Instructional Materials Access Center's potential liability for unauthorized access to NIMAS file
sets, OSEP indicated that the IDEA does not provide a private right of action against the NIMAC for actions related to the performance of its IDEA duties.
However, noting that the issue at hand involved an analysis of legal rights rather than an interpretation of the IDEA, OSEP cautioned that its opinion
would carry little weight in a court of law.
What it means: Concerns over copyright issues have prompted several inquiries regarding access to National Instructional Materials Accessibility Standard
file sets, the files that are used to make braille and large-print educational materials. According to OSEP, publishers cannot hold the NIMAC liable under
the IDEA if a state or local education agency impermissibly grants access to files or provides specialized materials to students who do not have visual
impairments. OSEP did not comment on whether the NIMAC should continue using a broader indemnification clause in its contracts with SEAs.
Summary: OSEP advised the National Instructional Materials Access Center that it has little to fear from claims regarding access to NIMAS file sets. So
long as the NIMAC complies with its duties under the IDEA, OSEP observed, educational publishers cannot hold the NIMAC responsible if their file sets fall
into the wrong hands.
NIMAC's inquiry hinged on OSEP's interpretation of
 20 USC 1474
 (e)(5), which states that there is no private right of action against the Secretary of Education if the NIMAC fails to perform its duties under the IDEA.
Noting that the provision was somewhat ambiguous, OSEP pointed out that it discussed the secretary's liability with respect to the NIMAC's obligations.
"Therefore, it appears that the only way to give appropriate meaning to the language at the end of the provision is to interpret it to provide some protection
to NIMAC," former Assistant Secretary John H. Hager wrote.
OSEP observed that the NIMAC's limited use agreements with SEAs contained a much broader indemnification clause, which would apply to claims filed under
the U.S. Copyright Act and include expenses such as attorney's fees and court costs. Although OSEP did not comment on the appropriateness of the indemnification
clauses, which several SEAs had refused to sign, it noted its interpretation of Section 1474(e)(5), if valid, would only apply to the NIMAC's duties under
the IDEA.
Amy E. Slater, Esq., covers special education legal issues for LRP Publications.
January 15, 2008
Copyright 2008 © LRP Publications