TITLE 6 PRIMARY
AND SECONDARY EDUCATION
CHAPTER
31 SPECIAL EDUCATION
PART 2 CHILDREN WITH
DISABILITIES/GIFTED CHILDREN
6.31.2.1 ISSUING AGENCY: Public Education Department
[6.31.2.1 NMAC - Rp, 6.31.2.1 NMAC, 6/29/07]
6.31.2.2 SCOPE: The requirements of these rules are binding
on each New Mexico public agency that has direct or delegated authority to
provide special education and related services, regardless of whether that
agency is receiving funds under the Individuals with Disabilities Education
Improvement Act of 2004 and regardless of whether it provides special education
and related services directly, by contract or through other arrangements such
as referrals by the agency to private schools or facilities. Each public agency is responsible for
ensuring that all rights and protections under these rules are afforded to
children referred to or placed in private schools or facilities including
residential treatment centers, day treatment centers, hospitals, or mental
health institutions by that public agency.
[6.31.2.2 NMAC - Rp, 6.31.2.2 NMAC, 6/29/07]
6.31.2.3 STATUTORY AUTHORITY: Section 22-13-5 NMSA 1978 authorizes the
public education department to develop and establish regulations and standards
for the conduct of special education in the schools and classes of the public
school system in the state and in all institutions wholly or partially
supported by the state and to monitor and enforce those regulations and
standards. Section 22-13-6.1 NMSA 1978
authorizes the public education department to adopt standards pertaining to the
determination of who is a gifted child as part of the educational standards for
New Mexico schools. Section 22-13-5 NMSA
1978 directs the public education department to establish rules and standards
under Public Law 108-446, now the Individuals with Disabilities Education
Improvement Act of 2004 (IDEA). The IDEA
at 20 USC Sec. 1412(a)(11) requires the state educational agency in each
participating state to ensure that the requirements of the IDEA and state
educational standards are met in all educational programs administered by any
state or local educational agency for children with disabilities aged 3 through
21.
[6.31.2.3 NMAC - Rp, 6.31.2.3 NMAC, 6/29/07]
6.31.2.4 DURATION: Permanent
[6.31.2.4 NMAC - Rp, 6.31.2.4 NMAC, 6/29/07]
6.31.2.5 EFFECTIVE DATE: June 29, 2007, unless a later date is
specified at the end of a section.
[6.31.2.5 NMAC - Rp, 6.31.2.5 NMAC, 6/29/07]
6.31.2.6 OBJECTIVE: The following rule is promulgated to assist
New Mexico public agencies in appropriately identifying and providing
educational services for children with disabilities and gifted children. The purposes of this rule is (a) to ensure
that all children with disabilities and gifted children have available a free appropriate
public education which includes special education and related services to meet
their unique needs; (b) to ensure that the rights of children with disabilities
and gifted children and their parents are protected; (c) to
assist public agencies to provide for the education of all children with
disabilities and gifted children; and (d) to evaluate and ensure the
effectiveness of efforts to educate those children.
[6.31.2.6 NMAC - Rp, 6.31.2.6 NMAC, 6/29/07]
6.31.2.7 DEFINITIONS:
A. Terms
defined by federal laws and regulations.
All terms defined in the following federal laws and regulations and any
other federally defined terms that are incorporated there by reference are
incorporated here for purposes of these rules.
(1)
The Individuals with Disabilities
Education Improvement Act of 2004 (IDEA), 20 USC Secs. 1401
and following.
(2)
The IDEA regulations at 34 CFR Part 300 (governing Part B programs for
school-aged children with disabilities), 34 CFR Part 301 (governing programs
for preschool children with disabilities).
(3)
Pursuant to the paperwork reduction provisions of IDEA 20 USC Sec. 1408,
all definitions, with the exception of those found in Subsection B of 6.31.2.7
below, contained in the IDEA Parts 300 and 301 at 34 CFR Secs. 300.1 through 300.45, will be adopted by reference.
B. The
following terms shall have the following meanings for purposes of these rules.
(1)
“CFR” means the code of federal
regulations, including future amendments.
(2)
“Child with a disability”
means a child who meets all requirements of 34 CFR Sec. 300.8 and who:
(a) is aged 3 through 21 or will turn 3 at any
time during the school year;
(b) has been
evaluated in accordance with 34 CFR Secs. 300.304-300.311 and any additional
requirements of these or other public education department rules and standards
and as having one or more of the disabilities specified in 34 CFR Sec. 300.8
including intellectual disability, a hearing impairment including deafness, a
speech or language impairment, a visual impairment including blindness,
emotional disturbance, orthopedic impairment, autism, traumatic brain injury,
and other health impairment, a specific learning disability, deaf-blindness, or
being developmentally delayed as defined in paragraph (4) below; and who has
not received a high school diploma; and
(c) at the discretion of each local educational
agency and subject to the additional requirements of Paragraph (2) of
Subsection F of 6.31.2.10 NMAC, the term “child with a disability” may include
a child aged 3 through 9 who is evaluated as being developmentally delayed and
who, because of that condition, needs special education and related services.
(3)
“Department” means the public
education department.
(4)
“Developmentally delayed”
means a child aged 3 through 9 or who will turn 3 at any time during the school
year: with documented delays in development which are at least two standard
deviations below the mean on a standardized test instrument or 30 per cent
below chronological age; and who in the professional judgment of the IEP team
and one or more qualified evaluators needs special education and related
services in at least one of the following five areas: communication
development, cognitive development, physical development, social or emotional
development or adaptive development. Use
of the developmentally delayed option by individual local educational agencies
is subject to the further requirements of Paragraph 2 of Subsection F of
6.31.2.10 NMAC. Local education agencies must use appropriate diagnostic
instruments and procedures to ensure that the child qualifies as a child with a
developmental delay in accordance with the definition in this paragraph.
(5)
“Dual discrepancy” means the
child does not achieve adequately for the child's age or to meet grade-level
standards established in Standards for Excellence (Chapter 29 of Title 6 of the
NMAC); and
(a) does not make
sufficient progress to meet age or grade-level standards; or
(b) exhibits
a pattern of strengths and weaknesses in performance, achievement, or both,
relative to age, grade level standards or intellectual development.
(6) "Dyslexia" means a condition of
neurological origin that is characterized by difficulty with accurate or fluent
word recognition and by poor spelling and decoding abilities, which
characteristics typically result from a deficit in the phonological component
of language that is often unexpected in relation to other cognitive abilities
and the provision of effective classroom instruction and may result in problems
in reading comprehension and reduced reading experience that may impede the
growth of vocabulary and background knowledge.
(7)
The “educational jurisdiction”
of a public agency includes the geographic area, age range and all facilities
including residential treatment centers, day treatment centers, hospitals,
mental health institutions, juvenile justice facilities, state supported
schools, or programs within which the agency is obligated under state laws,
rules or regulations or by enforceable agreements including joint powers
agreements (JPA) or memoranda of understanding (MOU) to provide educational
services for children with disabilities.
In situations such as transitions, transfers and special placements, the
educational jurisdiction of two or more agencies may overlap and result in a
shared obligation to ensure that a particular child receives all the services
to which the child is entitled.
(8)
A “free appropriate public
education (FAPE)” means special education and related services which meet
all requirements of 34 CFR Sec. 300.17 and which, pursuant to Sec. 300.17(b),
meet all applicable department rules and standards, including but not limited
to these rules (6.31.2 NMAC), the Standards for Excellence (6.29.1 NMAC) and
department rules governing school personnel preparation, licensure and
performance (6.60 NMAC through 6.64 NMAC), student rights and responsibilities
(6.11.2 NMAC) and student transportation (6.41.3 and 6.41.4 NMAC).
(9)
The “general education
curriculum” pursuant to 34 CFR Sec. 300.320, means the same curriculum that
a public agency offers for nondisabled children. For New Mexico public agencies whose
non-special education programs are subject to department rules, the general
curriculum includes the content standards, benchmarks and all other applicable
requirements of the Standards for Excellence (Chapter 29 of Title 6 of the
NMAC) and any other department rules defining curricular requirements.
(10)
“LEA” means a local
educational agency as defined in 34 CFR Sec. 300.28.
(11)
“Individualized education
program” or IEP means a written statement for a child with a disability
that is developed, reviewed, and revised in accordance with 34 CFR Secs.
300.320 through 300.324.
(12)
The “IDEA” means the federal
Individuals with Disabilities Education Improvement Act of 2004, 20 USC Secs.
1401 and following, including future amendments.
(13)
“NMAC” means the New Mexico
administrative code, including future amendments.
(14)
“NMSA 1978” means the 1978
Compilation of New Mexico Statutes Annotated, including future amendments.
(15)
“Parent” includes, in
addition to the persons specified in 34 CFR Sec. 300.30, a child with a
disability who has reached age 18 and for whom there is no court-appointed
general guardian, limited guardian or other court-appointed person who has
legal custody or has otherwise been authorized by a court to make educational
decisions on the child’s behalf as provided in Subsection K of 6.31.2.13 NMAC. Pursuant to 34 CFR Sec. 300.519 and
department policy, a foster parent of a child with a disability may act as a
parent under Part B of the IDEA if: (i) the foster parent or the state
children, youth and families department (CYFD) provides appropriate
documentation to establish that CYFD has legal custody and has designated the
person in question as the child’s foster parent; and (ii) the foster parent is
willing to make the educational decisions required of parents under the IDEA;
and has no interest that would conflict with the interests of the child. A foster parent who does not qualify under
the above requirements but who meets all requirements for a surrogate parent under 34 CFR Sec. 300.519 may be appointed as a surrogate if
the public agency responsible for making the appointment deems such action
appropriate. (See Subsection J of
6.31.2.13 NMAC.)
(16)
“Puente para los ninos fund”
in New Mexico means a risk pool fund to support high cost students with
disabilities identified by LEAs pursuant to 34 CFR Sec. 300.704(c)(3)(i).
(17)
“SAT” means the student
assistance team, which is a school-based group of people whose purpose is to
provide additional educational support to students who are experiencing
difficulties that are preventing them from benefiting from general education.
(18)
“SEB” means the special
education bureau of the public education department.
(19)
“Special education” means
specially designed instruction, at no cost to the parents, to meet the unique
needs of a child with a disability, including instruction conducted in the
classroom, in the home, in hospitals and institutions, and in other settings;
and instruction in physical education.
(a) As authorized by 34 CFR Sec. 300.8(a)(2)(ii) and 300.39(a)(2)(i), “special education” in New Mexico may include
speech-language pathology services.
(b) Speech-language pathology services must
meet the following standards to be considered special education:
(i) the service is
provided to a child who has received appropriate tier I universal screening
under Subsection D of 6.29.1.9 NMAC as it may be amended from time to time,
before being properly evaluated under 34 CFR Secs. 300.301-300.306 and
Subsection D of 6.31.2.10 NMAC;
(ii)
the IEP team that makes the eligibility determination finds that the
child has a communication disorder, such as stuttering, impaired articulation,
a language impairment, or a voice impairment, that adversely affects a child's
educational performance; and
(iii) the speech language pathology service
consists of specially designed instruction that is provided to enable the child
to have access to the general curriculum and meet the educational standards of
the public agency that apply to all children; and
(iv) the service is
provided at no cost to the parents under a properly developed IEP that meets
the requirements of Subsection B of 6.31.2.11 NMAC.
(c) If all of the above
standards are met, the service will be considered as special education rather
than a related service.
(d) Student/staff caseloads shall meet the
requirements of Paragraphs (1) and (2) of Subsection H of 6.29.1.9 NMAC.
(20) A “state-supported educational program”
means a publicly funded program that:
(a) provides special education and related
services to children with disabilities who come within the program’s educational
jurisdiction;
(b) is operated by,
or under contractual arrangements for, a state school, state educational institution or other state institution, state
hospital or state agency; and
(c) is primarily
funded through direct legislative appropriations or other direct state support
to a public agency other than a local school district.
(21)
“USC” means the United States
code, including future amendments.
C. Definitions
related to dispute resolution. The
following terms are listed in the order that reflects a continuum of dispute
resolution options and shall have the following meanings for the purposes of
these rules.
(1)
“Facilitated IEP (FIEP) meeting”
means an IEP meeting that utilizes an independent, state-approved,
state-funded, trained facilitator as an IEP facilitator to assist the IEP team
to communicate openly and effectively, in order to resolve conflicts related to
a student's IEP.
(2)
“Mediation” means a meeting
or series of meetings that utilizes an independent, state-approved,
state-funded, trained mediator to assist parties to reconcile disputed matters
related to a student's IEP or other educational, non-IEP-related issues.
D. The
definitions in Subsection D apply only to Section 12 (educational services for gifted children).
(1)
Gifted child defined. As used in
6.31.2.12 NMAC, “gifted child” means
a school-age person as defined in Sec. 22-13-6(D) NMSA 1978 whose intellectual
ability paired with subject matter aptitude/achievement, creativity/divergent
thinking, or problem-solving/critical thinking meets the eligibility criteria
in 6.31.2.12 NMAC and for whom a properly constituted IEP team determines that
special education services are required to meet the child’s educational needs.
(2)
Qualifying areas defined.
(a) “Intellectual
ability” means a score two standard deviations above the mean as defined by
the test author on a properly administered intelligence measure. The test
administrator must also consider the standard error of measure (SEM) in the
determination of whether or not criteria have been met in this area.
(b) “Subject matter aptitude/achievement” means superior academic
performance on a total subject area score on a standardized measure, or as
documented by information from other sources as specified in Paragraph (2) of
Subsection C of 6.31.2.12 NMAC.
(c) “Creativity/divergent
thinking” means outstanding performance on a test of creativity/ divergent
thinking, or in creativity/divergent thinking as documented by information from
other sources as specified in Paragraph (2) of Subsection C of 6.31.2.12 NMAC.
(d) “Problem-solving/critical
thinking” means outstanding performance on a test of
problem-solving/critical thinking, or in problem-solving/critical thinking as
documented by information from other sources as specified in Subparagraph (b)
of Paragraph (2) of Subsection B of 6.31.2.12 NMAC.
E. The
definitions in Subsection E apply only to Section 13, Subsection I (additional rights of parents, students, and
public agencies - due process hearings).
(1)
"Expedited hearing"
means a hearing that is available on request by a parent or a public agency
under 34 CFR Secs. 300.532(c) and is subject to the requirements of 34 CFR Sec.
300.532(c).
(2) "Gifted services" means special
education services to gifted children as defined in Subsection A of 6.31.2.12
NMAC.
(3)
"Transmit" means to
mail, send by electronic mail or telecopier (facsimile
machine) or hand deliver a written notice or other document and obtain written
proof of delivery by one of the following means:
(a) an electronic
mail system's confirmation of a completed transmission to an e-mail address
that is shown to be valid for the individual to whom the transmission was sent;
(b) a telecopier
machine's confirmation of a completed transmission to a number which is shown to
be valid for the individual to whom the transmission was sent;
(c) a receipt from a
commercial or government carrier showing to whom the article was delivered and
the date of delivery;
(d) a written receipt signed by the secretary
of education or designee showing to whom the article was hand-delivered and the
date delivered; or
(e) a final decision to any party not
represented by counsel for a due process hearing by the U.S. postal service,
certified mail, return receipt requested, showing to whom the articles was
delivered and the date of delivery.
F. The
definitions in Subsection F apply only to Section 9, Subsection B (public agency funding and staffing) and
Section 11, Subsection L (children in
private schools or facilities):
(1)
"Qualified student"
means, pursuant to Paragraph (1) of Subsection A of
Section 22-13-8 NMSA 1978, a public school student who:
(a) has not graduated
from high school;
(b) is regularly
enrolled in one-half or more of the minimum course requirements approved by the
department for public school students; and
(c) in
terms of age:
(i)
is at least five years of age prior to 12:01
a.m. on September 1 of the school year or will be five years of age prior to
12:01 a.m. on September 1 of the school year if the student is enrolled in a
public school extended-year kindergarten program that begins prior to the start
of the regular school year;
(ii)
is at least three years of age at any time during the school year and is
receiving special education pursuant to rules of the department; or
(iii) has not reached
the student's twenty-second birthday on the first day of the school year and is
receiving special education in accordance with federal law.
(2)
"School-age person"
means, pursuant to Paragraph (2) of Subsection A of
Section 22-13-8 NMSA 1978, a person who is not a qualified student but who
meets the federal requirements for special education and who:
(a) will
be at least three years old at any time during the school year;
(b) is not more than
twenty-one years of age; and
(c) has not received
a high school diploma or its equivalent.
[6.31.2.7 NMAC - Rp, 6.31.2.7 NMAC, 6/29/07; A, 12/31/09; A,
7/29/11; A, 02/29/12]
6.31.2.8 RIGHT TO A FREE APPROPRIATE
PUBLIC EDUCATION (FAPE)
A. All
children with disabilities aged 3 through 21 or who will turn 3 at any time
during the school year who reside in New Mexico, including children with
disabilities who have been suspended or expelled from school, have the right to
a free appropriate public education that is made available by one or more
public agencies in compliance with all applicable requirements of 34 CFR Secs.
300.101 and 300.120 and these or other department
rules and standards. Children with
disabilities who are enrolled in private schools have the rights provided by 34
CFR Secs. 300.129-300.148 and Subsection L of 6.31.2.11 NMAC.
B. Only
children who meet the criteria in these rules may be included in calculating
special education program units for state funding and counted as eligible
children for federal flow-through funds under Part B of the IDEA.
[6.31.2.8 NMAC - Rp, 6.31.2.8 NMAC, 6/29/07]
6.31.2.9 PUBLIC AGENCY RESPONSIBILITIES:
A. Compliance
with applicable laws and regulations.
Each New Mexico public agency, within the scope of its authority, shall
develop and implement appropriate policies, procedures, programs and services
to ensure that all children with disabilities who reside within the agency’s
educational jurisdiction, including children who are enrolled in private
schools or facilities such as residential treatment centers, day treatment
centers, hospitals, mental health institutions, or are schooled at home, are
identified and evaluated and have access to a free appropriate public education
(FAPE) in compliance with all applicable requirements of state and federal laws
and regulations. This obligation applies
to all New Mexico public agencies that are responsible under laws, rules,
regulations or written agreements for providing educational services for
children with disabilities, regardless of whether that agency receives funds
under the IDEA and regardless of whether it provides special education and
related services directly, by contract, by referrals to private schools or
facilities including residential treatment centers, day treatment centers,
hospitals, mental health institutions or through other arrangements.
B. Public
agency funding and staffing.
(1)
Each public agency that provides special education or related services
to children with disabilities shall allocate sufficient funds, staff,
facilities and equipment to ensure that the requirements of the IDEA and all
department rules and standards that apply to programs for children with
disabilities are met.
(2)
The public agency with primary responsibility for ensuring that FAPE is
available to a child with a disability on the date set by the department for a
child count or other report shall include that child in its report for that
date. Public agencies with shared or
successive responsibilities for serving a particular child during a single
fiscal year are required to negotiate equitable arrangements through joint
powers agreements or memorandums of understanding or interstate agreements for
sharing the funding and other resources available for that child. Such agreements shall include provisions with
regard to resolving disputes between the parties to the agreement.
(3)
Placement of students in private residential treatment centers, or other
out of home treatment or habilitation programs, by the IEP team or by a due process
decision. In no event shall a child with
an IEP be allowed to remain in an out of home treatment or habilitation program
for more than 10 days without receiving special education and related services. The school district in which the qualified student
or school-age person lives, whether in-state or out-of-state, is responsible
for the educational, nonmedical care and room and board costs of that
placement.
(a) Agreements between the resident school
district of the qualified student or school-age person and a private
residential treatment center must be on the form posted on the department’s
website or on a form otherwise approved by the department and must be reviewed
and approved by the secretary of public education.
(b) Agreements must provide for:
(i)
student evaluations and eligibility;
(ii)
an educational program for each qualified student or school-age person
that meets state standards for such programs, except that teachers employed by
private schools are not required to be highly qualified;
(iii) the provision of
special education and related services in conformance with an IEP that meets
the requirements of federal and state law and applicable regulations and rules;
(iv)
adequate classroom or other physical space that
allows the school district to provide an appropriate education;
(v)
a detailed description of the costs for the
placement; and
(vi)
an acknowledgement of the authority of the
local school board and the department to conduct on-site evaluations of
programs and student progress to ensure that state standards are met.
(4)
Placement of students in public residential treatment centers, or other
out of home treatment or habilitation programs, by the IEP team or by a due
process decision. The sending school
shall be responsible for the provision of special education and related
services. In no event shall a child with
an IEP be allowed to remain in an out of home treatment or habilitation program
for more than 10 days without receiving special education and related services.
(5)
Educational agencies may seek payment or reimbursement from
noneducational agencies or public or private insurance for services or devices
covered by those agencies that are necessary to ensure FAPE to children with
disabilities. Claims for payment or
reimbursement shall be subject to the procedures and limitations established in
34 CFR Secs. 300.154(b) and 300.154(d) through (g), Section 22-13-8 NMSA 1978
and any laws, regulations, executive orders, contractual arrangements or other
requirements governing the noneducational payor’s obligations.
(6)
Risk pool fund. (Puente para los ninos fund.)
(a) Local educational agency high cost fund.
(i)
In compliance with 34 CFR Sec. 300.704(c) the department shall maintain
a risk pool fund to support high cost children with disabilities identified by LEAs.
(ii)
Funds distributed under this program will be on a reimbursable basis.
(b) Application for funds. LEAs desiring to be reimbursed for the cost
of children with disabilities with high needs shall file an application in
accordance with the department’s puente para los ninos fund as described on the
department’s website.
(7)
Children with disabilities who are covered by public benefits or
insurance. Pursuant to 34 CFR Sec.
300.154(d), a public agency may use the medicaid or other public benefits or
insurance in which a child participates to provide or pay for services required
under the IDEA Part B regulations, as permitted under the public insurance
program, except as provided in (a) below.
(a) With regard to services required to
provide FAPE to an eligible child, the public agency:
(i)
may not require parents to sign up for or
enroll in public insurance programs in order for their child to receive FAPE
under Part B of the IDEA;
(ii)
may not require parents to incur an out-of-pocket expense such as the
payment of a deductible or co-pay amount incurred in filing a claim for
services provided pursuant to the IDEA Part B regulations, but pursuant to 34
CFR Sec. 300.154(f)(2), may pay the cost that the parent otherwise would be
required to pay; and
(iii) may not use a child’s benefits under a
public benefits or insurance program if that use would: (A) decrease available
lifetime coverage or any other insured benefit;
(B) result in the family paying for services that would otherwise be
covered by the public insurance program and that are required for the child
outside of the time the child is in school;
(C) increase premiums or lead to the discontinuation of benefits or
insurance; or (D) risk loss of
eligibility for home and community-based waivers, based on aggregate
health-related expenditures.
(b) Prior to obtaining the parental consent
described in Subparagraph (c) of this paragraph, and prior to accessing the
parent or child’s public benefits, the public agency must provide written
notice to the child’s parents, consistent with 34 CFR Sec. 300.503(c). The written notice must be provided annually
thereafter.
(i)
The notice must include a statement of the parental consent provisions
in 34 CFR Sec. 99.30 and 34 CFR Sec. 300.622 and must specify: (A) the
personally identifiable information that may be disclosed (e.g., records or information about the services
that may be provided to the child; (B) the purpose of the disclosure (e.g.,
billing for services under 34 CFR Part 300; (C) the agency to which the
disclosure may be made (e.g, New Mexico medicaid program); and (D) that the
parent understands and agrees that the public agency may access the parent’s or
child’s public benefits or insurance to pay for services under 34 CFR Part 300.
(ii)
The notice must further include: (A) a statement of the “no cost”
provisions in 34 CFR Sec. 300.154(d)(2)(i)-(iii); (B) a statement that the
parents have the right under 34 CFR Parts 99 and 300 to withdraw their consent
to disclosure of their child’s personally identifiable information to the New
Mexico medicaid program at any time; and (C) a statement that the withdrawal of
consent or refusal to provide consent under 34 CFR Parts 99 and 300 to disclose
personally identifiable information to the New Mexico medicaid program does not
relieve the public agency of its responsibility to ensure that all required
services are provided at no cost to the parents.
(c) Prior to accessing a child’s or parent’s
public benefits or insurance for the first time, and after providing notice to
the child’s parents consistent with Subparagraph (b) of this paragraph, the
public agency must obtain written parental consent as defined by 34 CFR Sec.
300.9. The written consent, consistent
with the requirements of 34 CFR Sec. 300.154(d)(2)(iv),
must:
(i) meet the requirements of 34 CFR Sec. 99.30
and 34 CFR Sec. 300.622 and must specify: (A) the personally identifiable
information that may be disclosed (e.g., records or information about the
services that may be provided to the child; (B) the purpose of the disclosure
(e.g., billing for services under 34 CFR Part 300; (C) the agency to which the
disclosure may be made (e.g, New Mexico medicaid program); and
(ii)
must specify that the parent understands and agrees that the public
agency may access the parent’s or child’s public benefits or insurance to pay
for services under 34 CFR Part 300.
(d) The public agency is not required to
obtain a new parental consent if the following conditions are present:
(i)
there is no change in any of the
following: the type of services to be
provided to the child; the amount of services to be provided to the child; or
the cost of the services to be charged to the public benefits or insurance
program; and
(ii)
the public agency has on file a parental consent meeting the
requirements of 34 CFR Sec. 300.9, 34 CFR Sec. 99.30 and 34 CFR Sec. 300.622.
(e)
Once the public agency obtains the one-time consent consistent with 34
CFR Sec. 300.154(d)(2)(iv), the public agency is not
required to obtain parental consent before it accesses the child’s or parent’s
public benefits or insurance in the future, regardless of whether there is a
change in the type or amount of services to be provided to the child or a
change in the cost of the services to be charged to the public benefits or
insurance program.
(f) If a child transfers
to a new public agency, the new public agency must provide the written
notification described in 34 CFR Sec. 300.154(d)(2)(v) and Subparagraph (b) of
this paragraph, and must then obtain parental consent meeting the requirements
of 34 CFR Sec. 300.154(d)(2)(iv).
(8)
Children with disabilities who are covered by private insurance
benefits. Pursuant to 34 CFR Sec.
300.154(e), an educational agency must obtain a parent’s informed written consent
for each proposed use of private insurance benefits and must inform parents
that their refusal to permit the use of their private insurance will not
relieve the educational agency of its responsibility to ensure that all
required services are provided at no cost to the parents. The public agency may not require parents to
incur an out-of-pocket expense such as the payment of a deductible or co-pay
amount incurred in filing a claim for services provided pursuant to the IDEA Part
B regulations.
(9)
Pursuant to 34 CFR Sec. 300.154(f):
(a) if a public agency is unable to obtain
parental consent to use the parent’s private insurance, or public benefits or
insurance when the parent would incur a cost for a specified service required
under the IDEA Part B regulations, to ensure FAPE the public agency may use its
Part B funds to pay for the service; and
(b) to avoid financial cost to parents who
otherwise would consent to use private insurance, or public benefits or
insurance if the parent would incur a cost, the public agency may use its Part
B funds to pay the cost the parents otherwise would have to pay to use the
parent’s insurance (e.g., the deductible or co-pay amounts).
(10) Staff training and
qualifications.
(a)
Each public agency is responsible for ensuring that personnel serving
children with disabilities are qualified under state licensure requirements and
are adequately prepared for their assigned responsibilities, pursuant to 34 CFR
Sec. 300.156. Paraprofessionals and
assistants who are appropriately trained and supervised in accordance with
applicable department licensure rules or written department policy may be used
to assist in the provision of special education and related services to
children with disabilities under Part B of the IDEA.
(b)
Each public agency and charter school shall train their school
administrators and teachers who teach reading to implement appropriate
research-based reading interventions prior to referring the student for a
special education evaluation and shall train their special education teachers
to provide appropriate specialized reading instruction for students with
dyslexia who have been identified as eligible for special education services.
C. IDEA
applications and assurances. Each New
Mexico public agency that desires to receive IDEA flow-through funds shall file
an annual application with the department in the form prescribed by the
department. Each application shall:
(1)
provide all information requested by the
department;
(2)
demonstrate to the department’s satisfaction
that the agency is in compliance with all applicable requirements of 34 CFR
Secs. 300.200-300.230 and these or other department rules and standards;
(3)
include an agreement that the agency upon request will provide any
further information the department requires to determine the agency’s initial
or continued compliance with all applicable requirements;
(4)
include assurances satisfactory to the department that the public agency
does and will continue to operate its programs in compliance with all
applicable federal and state programmatic, fiscal and procedural requirements
including the development of joint powers agreements, memoranda of
understanding or other interagency agreements to address shared or successive
responsibilities to meet the educational needs of a particular child during a
single fiscal year; and
(5)
pursuant to Subsection C of Section 22-8-11,
NMSA 1978, the department shall not approve and certify an operating budget of
any school district or state-chartered charter school that fails to demonstrate
that parental involvement in the process was solicited.
D. Early
intervening services set aside funds.
Fifteen percent set aside.
(1)
Pursuant to 34 CFR Secs. 300.208(a)(2) and 300.226, LEAs may use up to
fifteen percent of the amount the LEA receives under Part B of IDEA to
implement early intervening services for children with or without disabilities
in kindergarten through grade 12 with particular emphasis on children in
kindergarten through grade three.
(2)
Prior to the implementation or use of these set aside funds, the LEA
must have on record with the department an approved plan for use of these funds
as described by 34 CFR Sec. 300.226(b) and how such activities will be
coordinated with regional education cooperatives as described in 34 CFR Sec.
300.226(e), if applicable.
(3)
The LEA plan for use of set aside funds shall be submitted as an
addendum to its annual application for Part B funding. If the LEA determines to implement a set
aside plan after the initial application, a request for implementation of a set
aside plan must be submitted for approval 60 days before the implementation of
the plan.
(4) Each LEA that develops and maintains
coordinated, early intervening services must report annually to the department
as provided in 34 CFR Sec. 300.226(d).
E. Significant
disproportionality.
(1)
Pursuant to CFR 34 Sec. 300.646, LEAs must provide for the collection
and examination of data to determine if significant disproportionality, based
on race and ethnicity, is occurring with respect to:
(a) the identification of children as children
with disabilities including the identification of children as children with
disabilities in accordance with a particular impairment as defined by 34 CFR
Sec. 300.8;
(b) the placement in
particular educational settings of these children; and
(c) the incidence,
duration and type of disciplinary actions, including suspensions and
expulsions.
(2)
Each public agency must reserve the fifteen percent early intervening funds
if they are identified for having data that is significantly disproportionate
in any one of the following categories:
(a) suspension of
students with disabilities;
(b) over identification
of students with disabilities;
(c) over
identification of students in accordance with a particular impairment as
defined by 34 CFR Sec. 300.8; and
(d) placement of
students with disabilities in a particular setting.
(3)
Review and revision of policies, practices and procedures. In the case of a determination of significant
disproportionality with respect to the identification of children as children
with disabilities, or the placement in particular educational settings of these
children, in accordance with Paragraph (1) of this subsection, the LEA must:
(a) provide for the
review and, if appropriate, revision of the policies, procedures and practices
used in the identification or placement to ensure that the policies, procedures
and practices comply with the requirements of the IDEA; and
(b) require any LEA identified under Paragraph
(1) of this subsection to reserve the maximum amount of funds under 34 CFR Sec.
300.226 to provide comprehensive coordinated early intervening services to
serve children in the LEA, particularly, but not exclusively, children in those
groups that were significantly over-identified under Paragraph (1) of this
subsection; and
(c) require the LEA
to publicly report on the revision of policies, practices and procedures
described under Subparagraph (b) of this paragraph.
F. Annual
determinations. Each local educational
agency and other public agencies when applicable shall be assigned an annual
determination. The determinations must
be consistent with those provided in 34 CFR Sec. 300.603(b) based on the local
educational agency’s performance on the targets established in the department’s
state performance plan.
(1)
For determinations of needs intervention and needs substantial
intervention, the local educational agency may request an opportunity for an informal
hearing. The request for hearing must be
made in writing to the secretary of public education within 30 days of the date
of the determination.
(2)
The hearing will afford the local educational agency the opportunity to
demonstrate why the department should not make the determination of needs
intervention or needs substantial intervention. The hearing shall be conducted by the
secretary or the secretary’s designee.
Formal rules of evidence shall not apply to the hearing.
G. Notification
of public agency in case of ineligibility.
Pursuant to 34 CFR Sec. 300.221, if the department determines that a
public agency is not eligible under Part B of the act, the department shall
notify the affected agency of that determination and provide the agency with
reasonable notice and an opportunity for a hearing under 34 CFR Sec. 76.401(d).
H. Withholding
of funds for noncompliance. Pursuant to
34 CFR Sec. 300.222, if the department, after reasonable notice and an
opportunity for a hearing under 34 CFR Sec. 76.401(d), finds that a public
agency that has previously been determined to be eligible is failing to comply
with any requirement described in 34 CFR Secs. 300.201-300.213 and 34 CFR Sec.
300.608, the department must reduce or may not provide any further Part B
payments to the public agency until the department is satisfied that the public
agency is in compliance with that requirement.
I. Reallocation
of funds. If a new LEA is created, the
base payment portion of the IDEA subgrant of the LEA that would have served
children with disabilities now being served by the new LEA will be adjusted
pursuant to 34 CFR Sec. 300.705(b)(2).
IDEA funds to new charter schools that are LEAs will be allocated pursuant
to 34 CFR Secs. 76.785-76.799 and 34 CFR Sec. 300.705(b). Pursuant to 34 CFR Sec. 300.705(c) if the
department determines that a public agency is adequately providing FAPE to all
children with disabilities residing in the area served by that public agency
with state and local funds, the department may reallocate any portion of the
funds under this part that are not needed by that public agency to provide FAPE
to other LEAs in the state that are not adequately providing special education
and related services to all children with disabilities residing in the areas
served by those other LEAs or the department may also retain those funds for
use at the state level as provided by 34 CFR Sec. 300.705(c).
J. Prohibition on
mandatory medication. Each LEA and other
public agencies serving students with disabilities are prohibited from
requiring parents to obtain a prescription for substances identified under
schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances
Act (21 U.S.C. 812(c)) for a student as a condition of attending school,
receiving an evaluation under 34 CFR Secs. 300.300 through
300.311, or receiving services under Part B of the IDEA. This prohibition shall
be construed as provided in 34 CFR Sec. 300.174(b).
[6.31.2.9 NMAC - Rp, 6.31.2.9 NMAC, 6/29/07; A, 12/31/09; A,
7/29/11; A, 02/29/12; A, 06/28/13]
6.31.2.10 IDENTIFICATION, EVALUATIONS AND
ELIGIBILITY DETERMINATIONS:
A. Child
find. Each
public agency shall adopt and implement policies and procedures to ensure that
all children with disabilities who reside within the agency’s educational
jurisdiction, including children with disabilities attending private schools or
facilities such as residential treatment centers, day treatment centers,
hospitals, mental health institutions, detention and correctional facilities,
children who are schooled at home, highly mobile children, children who reside
on Indian reservations and children who are advancing from grade to grade,
regardless of the severity of their disability, and who are in need of special
education and related services, are located, evaluated and identified in
compliance with all applicable requirements of 34 CFR Secs. 300.111,
300.131, 300.301-306 and these or other department rules and standards. For preschool children, child find screenings
shall serve as interventions under Subsection B of 6.31.2.10 NMAC.
B. The
public agency shall follow a three tier model of student intervention as a
proactive system for early intervention for students who demonstrate a need for
educational support for learning as set forth in Subsection D of 6.29.1.9 NMAC.
C. Criteria
for identifying children with perceived specific learning disabilities.
(1)
Each public agency must use the three tiered model of student
intervention for students suspected of having a perceived specific learning
disability, consistent with the department rules, policies and standards for
children who are being referred for evaluation due to a suspected disability
under the specific learning disability category in compliance with 34 CFR Sec.
300.307.
(a) The public agency must, subject to
Subparagraph (d) of this paragraph, require that the group established under 34 CFR Secs. 300.306(a)(1) and 300.308 for the purpose
of determining eligibility of students suspected of having a specific learning
disability, consider data obtained during implementation of tiers 1 and 2 in
making an eligibility determination.
(b) To ensure that underachievement in a child
suspected of having a specific learning disability is not due to lack of
appropriate instruction in reading or math, the group must consider, as part of
the evaluation required in 34 CFR Secs. 300.304 through
300.306:
(i) data that demonstrate that prior to, or as
a part of, the referral process, the child was provided appropriate instruction
in regular education settings, delivered by qualified personnel; and
(ii)
data-based documentation of repeated assessments of achievement at
reasonable intervals, reflecting formal assessment of student progress during
instruction, which was provided to the child's parents.
(c) The documentation of the determination of
eligibility, as required by 34 CFR Sec. 300.306(c)(1),
must meet the requirements of 34 CFR Sec. 300.311, including:
(i)
a statement of the basis for making the
determination and an assurance that the determination has been made in
accordance with 34 CFR Sec. 300.306(c)(1); and
(ii)
a statement whether the child does not achieve adequately for the
child's age or to meet state-approved grade-level standards consistent with 34
CFR Sec. 300.309(a)(1); and
(iii) a statement whether the child does not
make sufficient progress to meet age or grade-level standards consistent with
34 CFR Sec. 300.309(a)(2)(i), or the child exhibits a pattern of strengths and
weaknesses in performance, achievement, or both, relative to age, grade level
standards or intellectual development consistent with 34 CFR Sec.
300.309(a)(2)(ii); and
(iv)
if the child has participated in a process that assesses the child's
response to scientific, research-based intervention: a statement of the
instructional strategies used and the student-centered data collected;
documentation that the child's parents were notified about the state's policies
regarding the amount and nature of student performance data that would be
collected and the general education services that would be provided; strategies
for increasing the child's rate of learning; and the parents' right to request
an evaluation.
(d) A parent may request an initial special
education evaluation at any time during the public agency’s implementation of
tiers 1 and 2 of the three-tier model of student intervention. If the public agency agrees with the parent
that the child may be a child who is eligible for special education services,
the public agency must evaluate the child.
If the public agency declines the parent’s request for an evaluation,
the public agency must issue prior written notice in accordance with 34 CFR
Sec. 300.503. The parent can challenge
this decision by requesting a due process hearing.
(2) Preschool children
suspected of having a specific learning disability must be evaluated in
accordance with Subparagraph (f) of Paragraph (5) of Subsection A of 6.31.2.11
NMAC and 34 CFR Secs. 300.300 through 300.305, which
may include the severe discrepancy model.
(3) Public agencies must
implement the dual discrepancy model in kindergarten through third grade
utilizing the student assistance team and the three-tier model of student
intervention as defined and described in the New Mexico Technical Evaluation
and Assessment Manual (New Mexico T.E.A.M.).
Data on initial evaluations for perceived learning disabilities in
grades K-3 must be submitted to the department through the student teacher
accountability reporting system (STARS).
(4) In identifying
children with specific learning disabilities in grades 4 through 12, the public
agency may use the dual discrepancy model as defined and described in the New
Mexico Technical Evaluation and Assessment Manual (New Mexico T.E.A.M.) or the
severe discrepancy model as defined and described in New Mexico T.E.A.M.
D. Evaluations
and reevaluations.
(1)
Initial evaluations.
(a) Each public agency must conduct a full and
individual initial evaluation, at no cost to the parent, and in compliance with
requirements of 34 CFR Secs. 300.305 and 300.306 and
other department rules and standards before the initial provision of special
education and related services to a child with a disability.
(b) Request for initial evaluation. Consistent with the consent requirement in 34
CFR Sec. 300.300, either a parent of a child or a public agency may initiate a
request for an initial evaluation to determine if the child is a child with a
disability.
(c) Procedures for initial evaluation.
(i)
The initial evaluation must be conducted within 60 calendar days of
receiving parental consent for evaluation.
(ii)
Each public agency must follow evaluation procedures in compliance with
applicable requirements of 34 CFR Sec. 300.304 and other department rules and
standards to determine: (1) if the child is a child with a disability under 34
CFR Sec. 300.8; and (2) if the child requires special education and related
services to benefit from their education program.
(iii) Each public agency shall maintain a record
of the receipt, processing and disposition of any referral for an individualized
evaluation. All appropriate evaluation
data, including complete SAT file documentation and summary reports from all
individuals evaluating the child shall be reported in writing for presentation
to the eligibility determination team.
(iv)
A parent may request an initial special education evaluation at
any time during the SAT process. If the
public agency agrees with the parent that the child may be a child who is
eligible for special education services, the public agency must evaluate the
child. If the public agency declines the
parent’s request for an evaluation, the public agency must issue prior written
notice in accordance with 34 CFR Sec. 300.503.
The parent can challenge this decision by requesting a due process
hearing.
(d) Exception to the 60 day time frame. The requirements of this subsection do not
apply:
(i)
if the parent of a child repeatedly fails or
refuses to produce the child for the evaluation; or
(ii)
if the child enrolls in a school of another LEA after the 60 day time
frame in this subsection has begun, and prior to a determination by the child’s
previous public agency as to whether the child is a child with a disability
under 34 CFR Sec. 300.8.
(e) The exception to the 60 day time frame in
Item (ii) of Subparagraph (d) of Paragraph (1) of Subsection D of 6.31.2.10
NMAC applies only if the subsequent public agency is making sufficient progress
to ensure a prompt completion of the evaluation, and the parent and subsequent
public agency agree to a specific time when the evaluation will be completed.
(f) The
eligibility determination team including the parent and child, if appropriate,
must meet to determine if the child is a child with a disability and requires
an IEP upon completion of the initial evaluation.
(2)
Reevaluations.
(a) Each LEA must ensure that a reevaluation
of each child is conducted at least once every three years, unless the parent
and the public agency agree that a reevaluation is unnecessary, and is in
compliance with the requirements of 34 CFR Secs. 300.303-300.311,
and any other applicable department rules and standards.
(b) Reevaluations may be conducted more often
if:
(i)
the LEA determines the educational or related services needs, including
improved academic achievement and functional performance, of the child warrant
a reevaluation; or
(ii)
the child’s parent or teacher requests a
reevaluation.
(c) Reevaluations may not
occur more than once a year, unless the parent and public agency agree
otherwise.
(d) Procedures for conducting evaluations and
reevaluations.
(i) The public agency
must provide notice to the parents of a child with a disability that describes
any evaluation procedures the agency proposes to conduct in compliance with 34
CFR Sec. 300.503.
(ii)
The initial evaluation (if appropriate) and any reevaluations must begin
with a review of existing information by a group that includes the parents, the
other members of a child’s IEP team and other qualified professionals, as
appropriate, to determine what further evaluations and information are needed
to address the question in 34 CFR Sec. 300.305(a)(2). Pursuant to 34 CFR Sec. 300.305(b), the group
may conduct its review without a meeting.
(iii) If it is determined that a child requires
an individualized evaluation or reevaluation the public agency is required to
follow the procedures established by the department.
(iv)
Each public agency must use a variety of assessment tools and strategies
to gather relevant functional, developmental and academic information about the
child, including information provided by the child’s family that may assist in
determining if the child is a child with a disability, the content of the
child’s IEP including information related to assisting the child to be involved
and progress in the general education curriculum or for a preschool child to
participate in appropriate activities.
(e) Each public agency shall maintain a record
of the receipt, processing, and disposition of any referral for an
individualized reevaluation.
Reevaluation shall be completed on or before the three year anniversary
date. All appropriate reevaluation data
and summary reports from all individuals evaluating the child shall be reported
in writing for presentation to the eligibility determination team or IEP team.
(f) The parents of a child with a disability
who disagree with an evaluation obtained by the public agency have the right to
obtain an independent educational evaluation of the child at public expense
pursuant to 34 CFR Sec. 300.502.
E. Procedural
requirements for the assessment and evaluation of culturally and linguistically
diverse children.
(1)
Each public agency must ensure that tests and other evaluation materials
used to assess children are selected, provided and administered so as not to be
discriminatory on a racial or cultural basis and are provided and administered
in the child’s native language or other mode of communication, such as American
sign language, and in the form most likely to yield accurate information, on
what the child knows and can do academically, developmentally and functionally,
unless it is clearly not feasible to select, provide or administer pursuant to
34 CFR Sec. 300.304(c)(1).
(2)
Each public agency must ensure that selected assessments and measures
are valid and reliable and are administered in accordance with instructions
provided by the assessment producer and are administered by trained and
knowledgeable personnel.
(3)
Each public agency must consider information about a child’s language
proficiency in determining how to conduct the evaluation of the child to
prevent misidentification. A child may
not be determined to be a child with a disability if the determinant factor for
that eligibility determination is limited English proficiency. Comparing academic achievement results with
grade level peers in the public agency with similar cultural and linguistic
backgrounds should guide this determination process and ensure that the child
is exhibiting the characteristics of a disability and not merely language
difference in accordance with 34 CFR Sec. 300.306(b)(1).
(4)
Each public agency must ensure that the child is assessed in all areas
related to the suspected disability.
(5)
Policies for public agency selection of assessment instruments include:
(a) assessment and
evaluation materials that are tailored to assess specific areas of educational
need; and
(b) assessments that
are selected ensure that results accurately reflect the child’s aptitude or
achievement level.
(6)
Public agencies in New Mexico shall devote particular attention to the
foregoing requirements in light of the state’s cultural and linguistic
diversity. Persons assessing culturally
or linguistically diverse children shall consult appropriate professional
standards to ensure that their evaluations are not discriminatory and should include
appropriate references to such standards and concerns in their written reports.
F. Eligibility
determinations.
(1)
General rules regarding eligibility determinations
(a) Upon completing the administration of
tests and other evaluation materials, a group of qualified professionals and
the parent of the child must determine whether the child is a child with a
disability, as defined in 34 CFR Sec. 300.8 and Paragraph (2) of Subsection B
of 6.31.2.7 NMAC. The determination shall be made in compliance with all
applicable requirements of 34 CFR Sec. 300.306 and these or other department
rules and standards and, for a child suspected of having a specific learning
disability, in compliance with the additional procedures of 34 CFR Secs. 300.307-300.311, and these or other department rules, policies and
standards.
(b) The public agency must provide a copy of
the evaluation report and the documentation of determination of eligibility to
the parent.
(2) Optional use of developmentally delayed
classification for children aged 3 through 9
(a) The developmentally delayed classification
may be used at the option of individual local education agencies but may only
be used for children who do not qualify for special education under any other
disability category.
(b) Children who are classified as
developmentally delayed must be reevaluated during the school year in which
they turn 9 and will no longer be eligible in this category when they become
10. A student who does not qualify
under any other available category at age 10 will no longer be eligible for
special education and related services.
[6.31.2.10 NMAC - Rp, 6.31.2.10 NMAC, 6/29/07; A, 12/31/09;
A, 7/29/11]
6.31.2.11 EDUCATIONAL SERVICES FOR CHILDREN
WITH DISABILITIES:
A. Preschool programs for children aged 3 through 5.
(1)
Each public agency shall ensure that a free appropriate public education
is available for each preschool child with a disability within its educational
jurisdiction no later than the child’s third birthday and that an
individualized education program (IEP) under Part B or an individual family
services plan (IFSP) under Part C of the IDEA is in effect by that date in
compliance with 34 CFR Secs. 300.101, 300.124 and 300.323(b).
(2)
Eligibility to enroll in Part B preschool program.
(a)
If a child turns three at any time during the school year and is
determined to be eligible under Part B, the child may enroll in a Part B
preschool program when the child turns three if the parent so chooses, whether
or not the child has previously been receiving Part C services.
(b) Notwithstanding
subparagraph (a) of this paragraph, if a child turns three at any time prior to
July 1, 2012 and is enrolled in a Part C program, the parent has the option of
having the child complete the remainder of the school year in early
intervention services or, if the child is determined to be eligible under Part
B, enrolling the child in a Part B preschool program.
(3)
To ensure effective transitioning from IDEA Part C programs to IDEA Part
B programs, each public agency must conduct a full and individual initial
comprehensive evaluation, at no cost to the parent, and in compliance with
requirements of 34 CFR Secs. 300.300, 300.301, 300.302,
300.304 and 300.305 and other department rules and standards before the initial
provision of Part B special education and related services to a child with a
disability.
(a)
The initial comprehensive evaluation process shall be conducted in all
areas of suspected disability.
(b) The Part B
eligibility determination team shall review current assessments and shall
determine the additional data and assessments needed for the comprehensive
evaluation. Current assessments are defined as assessments, other than medical
assessments, conducted no more than six months prior to the date of the meeting
of the Part B eligibility determination team.
(c)
The Part B eligibility determination team must consider educationally
relevant medical assessments as part of the review of existing evaluation data.
The determination of eligibility may not be made solely on the basis of medical
assessments. If the team considers medical assessments conducted more than six
months prior to the date of the meeting, the team must document the
appropriateness of considering such medical assessments.
(4)
Each public agency shall develop and implement appropriate policies and
procedures to ensure a smooth and effective transition from Part C to Part B
programs for preschool children with disabilities within the agency’s
educational jurisdiction, in compliance with 34 CFR Sec. 300.124. Each LEA and other public agencies as
appropriate shall make reasonable efforts to establish productive working
relations with local Part C programs and when given reasonable notice shall
participate in the transition planning conferences arranged by local Part C
providers.
(5)
In particular:
(a)
Each LEA shall survey Part C
programs within its educational jurisdiction in its child find efforts to
identify children who will be eligible to enter the LEA’s Part B preschool
program in future years.
(b)
Each LEA shall promote parent and family involvement in transition
planning with Part C programs, community programs and related services
providers at least six months before the child is eligible to enter the LEA’s
Part B preschool program.
(c) Each LEA shall
establish and implement procedures to support successful transitions including
parent training, professional development for special educators and general
educators, and student and parent self-advocacy training and education.
(d) Each LEA shall assist
parents in becoming their child’s advocates as the child makes the transition
through systems.
(e)
Each LEA shall participate in transition planning conferences arranged
by the designated Part C lead agency no less than 90 days prior to the
anticipated transition or the child's third birthday, whichever occurs first,
to facilitate informed choices for all families.
(f)
Each LEA shall designate a team including parents and qualified
professionals to review existing evaluation data for each child entering the
LEA’s preschool program in compliance with 34 CFR Sec. 300.305, and based on
that review to identify what additional data, if any, are needed to determine
the child’s eligibility for Part B services or develop an appropriate program
in a manner that is consistent with Paragraph (3) of Subsection A of this
section. The notice of procedural safeguards
shall be given to the parents as provided in Paragraph (3) of Subsection D of
6.31.2.13 NMAC.
(g) Development of IFSP, IEP or
IFSP-IEP.
(i)
The IFSP, IEP, or IFSP-IEP will be developed by a team constituted in compliance
with 34 CFR Sec. 300.321 that includes parents.
For children transitioning from Part C programs to Part B programs, the
team must also include one or more early intervention providers who are
knowledgeable about the child. “Early
intervention providers” are defined as Part C service coordinators or other
representatives of the Part C system.
(ii)
For each child transitioning from a Part C program to a Part B preschool
program, the LEA shall initiate a meeting to develop the eligible child’s IFSP,
IEP or IFSP-IEP, in accordance with 34 CFR Sec. 300.124. The IFSP, IEP or IFSP must be developed and
implemented no later than the child’s third birthday, consistent with 34 CFR
Sec. 300.101(b).
(h)
In compliance with 34 CFR Sec. 300.101(b)(2), if a child’s birthday
occurs during the summer, the child’s IEP team shall determine the date when
services under the IEP or IFSP will begin.
Each public agency must engage in appropriate planning with the Part C
lead agency so that the eligible child will be prepared to receive Part B
special education and related services when the IEP team determines that the
services under the IEP or IFSP will begin.
(i)
Each public agency shall develop policies and procedures to ensure a
successful transition from Part B preschool for children with disabilities who
are eligible for continued services in pre-kindergarten and kindergarten.
B. Individualized
education programs (IEPs).
(1)
Except as provided in 34 CFR Secs. 300.130-300.144 for children enrolled
by their parents in private schools, each public agency (1) shall develop,
implement, review and revise an IEP in compliance with all applicable
requirements of 34 CFR Secs. 300.320-300.328 and these or other department
rules and standards for each child with a disability (within its educational
jurisdiction); and (2) shall ensure that an IEP is developed, implemented,
reviewed and revised in compliance with all applicable requirements of 34 CFR
Sec. 300.320-300.328, and these or other department rules and standards for
each child with a disability who is placed in or referred to a private school
or facility by the public agency.
(2) Each IEP or amendment shall be developed
at a properly convened IEP meeting for which the public agency has provided the
parent and, as appropriate, the child, with proper advance notice pursuant to
34 CFR Sec. 300.322 and Paragraph (1) of Subsection D of 6.31.2.13 NMAC and at
which the parent and, as appropriate, the child have been afforded the
opportunity to participate as members of the IEP team pursuant to 34 CFR Secs.
300.321, 300.322 and 300.501(b) and (c) and Subsection C of 6.31.2.13 NMAC.
(3)
Except as provided in 34 CFR Sec. 300.324(a)(4),
each IEP shall include the signature and position of each member of the IEP
team and other participants in the IEP meeting to document their
attendance. Written notice of actions
proposed or refused by the public agency shall also be provided in compliance
with 34 CFR Sec. 300.503 and Paragraph (2) of Subsection D of 6.31.2.13 NMAC
and shall be provided at the close of the IEP meeting. Informed written parental consent must also
be obtained for actions for which consent is required under 34 CFR Sec. 300.300
and Subsection F of 6.31.2.13 NMAC. An
amended IEP does not take the place of the annual IEP conducted pursuant to CFR
Sec. 300.324(a)(4) which requires that members of a child’s IEP team must be
informed of any changes made to the IEP without a meeting.
(4)
Agreement to modify IEP meeting requirement.
(a) In making changes to a child’s IEP after
the annual IEP team meeting for a school year, the parent of a child with a
disability and the public agency may agree not to convene an IEP team meeting
for the purposes of making those changes and instead may develop a written
document to amend or modify the child’s current IEP.
(b) If changes are made to the child’s IEP in
accordance with subparagraph (4)(a) of this paragraph,
the public agency must ensure that the child’s IEP team is informed of those
changes.
(5) For students with autism spectrum disorders
(ASD) eligible for special education services under 34 CFR Sec. 300.8(c)(1),
the strategies described in Subparagraphs (a)-(k) of this paragraph shall be
considered by the IEP team in developing the IEP for the student. The IEP team shall document consideration of
the strategies. The strategies must be
based on peer-reviewed, research-based educational programming practices to the
extent practicable and, when needed to provide FAPE, addressed in the IEP:
(a) extended educational
programming, including, for example, extended day or extended school year
services that consider the duration of programs or settings based on assessment
of behavior, social skills, communication, academics, and self-help skills;
(b) daily schedules reflecting minimal
unstructured time and reflecting active engagement in learning activities,
including, for example, lunch, snack, and recess periods that provide flexibility
within routines, adapt to individual skill levels, and assist with schedule
changes, such as changes involving substitute teachers and other in-school
extracurricular activities;
(c) in-home and community-based training or
viable alternatives to such training that assist the student with acquisition
of social or behavioral skills, including, for example, strategies that
facilitate maintenance and generalization of such skills from home to school,
school to home, home to community, and school to community;
(d) positive behavior
support strategies based on relevant information, including, for example:
(i)
antecedent manipulation, replacement behaviors,
reinforcement strategies, and data-based decisions; and
(ii)
a behavioral intervention plan focusing on positive behavior supports
and developed from a functional behavioral assessment that uses current data
related to target behaviors and addresses behavioral programming across home,
school, and community-based settings;
(e) futures planning
for integrated living, work, community, and educational environments that
considers skills necessary to function in current and post-secondary
environments;
(f) parent or family
training and support, provided by qualified personnel with experience in ASD,
that, for example:
(i) provides a family with skills necessary
for a child to succeed in the home or community setting;
(ii)
includes information regarding resources such as parent support groups,
workshops, videos, conferences, and materials designed to increase parent
knowledge of specific teaching and management techniques related to the child's
curriculum; and
(iii) facilitates parental
carryover of in-home training, including, for example, strategies for behavior
management and developing structured home environments or communication
training so that parents are active participants in promoting the continuity of
interventions across all settings;
(g) suitable
staff-to-student ratio appropriate to identified activities and as needed to
achieve social or behavioral progress based on the child's developmental and
learning level and that encourages work towards individual independence as
determined by, for example:
(i)
adaptive behavior evaluation results;
(ii)
behavioral accommodation needs across settings;
and
(iii) transitions
within the school day;
(h) communication
interventions, including communication modes and functions that enhance
effective communication across settings such as augmentative, incidental, and
naturalistic teaching;
(i) social skills supports and strategies
based on social skills assessment or curriculum and provided across settings,
including, for example, trained peer facilitators, video modeling, social
stories, and role playing;
(j) professional educator and staff support,
including, for example, training provided to personnel who work with the
student to assure the correct implementation of techniques and strategies
described in the IEP; and
(k) teaching
strategies based on peer reviewed, research-based practices for students with
ASD, including, for example, those associated with discrete-trial training,
visual supports, applied behavior analysis, structured learning, augmentative
communication, and social skills training.
C. Least
restrictive environment.
(1)
Except as provided in 34 CFR Sec. 300.324(d) and Subsection K of
6.31.2.11 NMAC for children with disabilities who are convicted as adults under
state law and incarcerated in adult prisons, all educational placements and
services for children with disabilities must be provided in the least
restrictive environment that is appropriate to each child’s needs in compliance
with 34 CFR Secs. 300.114-300.120.
(2)
In determining the least restrictive environment for each child’s needs,
public agencies and their IEP teams shall ensure that the following
requirements are met.
(a) The requirements of 34 CFR Sec.
300.114(a)(2) for each public agency to ensure that to the maximum extent
appropriate, children with disabilities, including children in public or
private institutions or other care facilities, are educated with children who
are nondisabled, and that special classes, separate schooling or other removal
of children with disabilities from the general educational environment occurs
only if the nature or severity of the disability is such that education in
regular classes with the use of supplementary aids and services cannot be
achieved satisfactorily.
(b) The required continuum of alternative
placements as specified in 34 CFR Sec. 300.115.
(c) The requirement of 34
CFR Sec. 300.116(c) that each child with a disability be educated in the school
that he or she would attend if nondisabled unless the child’s IEP requires some
other arrangement.
(d) The requirement of 34 CFR Sec. 300.116(e)
that a child with a disability not be removed from education in age-appropriate
regular classrooms solely because of needed modifications in the general
curriculum.
(e) The requirements of 34 CFR Sec.
300.320(a)(4) that the IEP for each child with a disability include a statement
of the special education and related services and supplementary aids and
services, based on peer-reviewed research to the extent practicable, to be
provided to the child, or on behalf of the child, and a statement of the
program modifications or supports for school personnel that will be provided
for the child to be involved and progress in the general curriculum and to
participate in extracurricular and other nonacademic activities with
nondisabled children.
(f) The requirement of 34 CFR Sec.
300.324(a)(3) that the regular education teacher of a child with a disability,
as a member of the IEP team, must assist in determining the supplementary aids
and services, program modifications or supports for school personnel that will
be provided for the child in compliance with Sec. 300.320(a)(4).
(g) The requirement of 34 CFR Sec. 300.320(a)(5)
that the IEP include an explanation of the extent, if any, to which the child
will not participate with nondisabled children in the regular class and the
activities described in Sec. 300.320(a)(4) and 300.117.
(h) The requirements of 34 CFR Sec. 300.503
that a public agency give the parents written notice a reasonable time before
the agency proposes or refuses to initiate or change the educational placement
of the child or the provision of FAPE to the child and that the notice include
a description of any other options considered and the reasons why those options
were rejected.
(i) The requirement of 34 CFR Sec. 300.120
that the department carry out activities to ensure that Sec. 300.114 is
implemented by each agency and that, if there is evidence that a public agency
makes placements that are inconsistent with Sec. 300.114, the department must
review the public agency’s justification for its actions and assist in planning
and implementing any necessary corrective action.
D. Performance
goals and indicators.
(1)
Pursuant to the requirements of 34 CFR Sec. 300.157(a), the content
standards and benchmarks from the department’s Standards for Excellence
(Chapter 29 of Title 6 of the NMAC) for all children attending public schools
and state-supported educational programs in New Mexico shall provide the basic
performance goals and indicators for children with disabilities in the general
education curriculum.
(2) The IEP academic goals must align with the
New Mexico content standards and benchmarks, including the expanded performance
standards for students with significant cognitive disabilities, however,
functional goals do not have to align with the standards and benchmarks.
(a) Beginning in the 2012-2013 school year,
IEP academic goals in English language arts and mathematics for students in
grades K through three must align with the English Language Arts Common Core
Standards (6.29.13 NMAC) and the Mathematics Common Core Standards (6.29.14
NMAC).
(b) Beginning in the 2013-2014 school year,
IEP academic goals in English language arts and mathematics for students in
grades four through 12 must align with the English Language Arts Common Core
Standards (6.29.13 NMAC) and the Mathematics Common Core Standards (6.29.14
NMAC).
(3)
Unless waivers or modifications covering individual public agencies’
programs have been allowed by the department or the secretary of education, the
general education curriculum and the content standards and benchmarks shall
only be adapted to the extent necessary to meet the needs of individual
children with disabilities as determined by IEP teams in individual cases.
E. Participation in statewide and
district-wide assessments. Each local
educational agency and other public agencies when applicable shall include all
children with disabilities in all statewide and district-wide assessment
programs. Each public agency shall
collect and report performance results in compliance with the requirements of
34 CFR Secs. 300.157 and 300.160(f) and Sec. 1111(h)
of the Elementary and Secondary Education Act, and any additional requirements
established by the department. Students
with disabilities may participate:
(1) in the
appropriate general assessment in the same manner as their nondisabled peers;
this may include the use of adaptations that are deemed appropriate for all
students by the department; or
(2) in the
appropriate general assessment with appropriate accommodations in
administration if necessary; public agencies shall use the current guidance
from the department about accommodations as specified in the student’s IEP; or
(3) in alternate assessments for the small
number of students for whom alternate assessments are appropriate under the
department’s established participation criteria; the IEP team must agree and document
that the student is eligible for participation in an alternate assessment based
on alternate achievement standards according to 34 CFR Sec. 300.320(a)(6).
F. Behavioral
management and discipline.
(1)
Behavioral planning in the IEP.
Pursuant to 34 CFR Sec. 324(a)(2)(i), the IEP
team for a child with a disability whose behavior impedes his or her learning
or that of others shall consider, if appropriate, strategies to address that
behavior, including the development of behavioral goals and objectives and the
use of positive behavioral interventions, strategies and supports to be used in
pursuit of those goals and objectives.
Public agencies are strongly encouraged to conduct functional behavioral
assessments (FBAs) and integrate behavioral intervention plans (BIPs) into the
IEPs for students who exhibit problem behaviors well before the behaviors
result in proposed disciplinary actions for which FBAs and BIPs are required
under the federal regulations.
(2) Suspensions, expulsions and disciplinary
changes of placement. Suspensions,
expulsions and other disciplinary changes of placement for children with
disabilities shall be carried out in compliance with all applicable
requirements of 34 CFR Secs. 300.530-300.536, and these or other department
rules and standards, including particularly 6.11.2.11
NMAC, governing interim disciplinary placements and long-term suspensions or
expulsions of students with disabilities.
(3)
FAPE for children removed from current placement for more than 10 school
days in a school year. FAPE shall be
provided in compliance with all applicable requirements of 34 CFR Sec.
300.530(d) and these or other department rules and standards for all children
with disabilities who have been removed from their current educational
placements for disciplinary reasons for more than 10 school days during a
school year, as defined in 34 CFR Sec. 300.536.
(4)
LEAs must keep an accurate accounting of suspension and expulsion rates
for children with disabilities as compared to children without disabilities to
ensure that children with disabilities are not being expelled or suspended at a
significantly higher rate than children without disabilities.
G. Graduation
planning and post-secondary transitions.
(1)
The IEP for each child with a disability in grades 8 through 12 is
developed, implemented and monitored in compliance with all applicable
requirements of the department’s Standards for Excellence, (Chapter 29 of Title
6 of the NMAC), and these or other department rules and standards. The graduation plan shall be integrated into
the transition planning and services provided in compliance with 34 CFR Secs. 300.320(b), 300.324(c).
(a)
Graduation plans must include the course of study, projected date of
graduation and if the child is not on target for the graduation plan, the
strategies and responsibilities of the public agency, child and family must be
identified in the IEP.
(b) Graduation options for children with
disabilities at Paragraph (13) of Subsection J of 6.29.1.9 NMAC must align with
state standards with benchmarks when appropriate.
(c) An alternative degree
that does not fully align with the state’s academic standards, such as a
certificate or general educational development credential (GED), does not end a
child’s right to FAPE pursuant to 34 CFR Sec. 300.102(a)(3).
(2) Appropriate
post-secondary transition planning for children with disabilities is
essential. Public agencies shall
integrate transition planning into the IEP process pursuant to 34 CFR Secs.
300.320(b), 300.324(c) and shall establish and implement appropriate policies,
procedures, programs and services to promote successful post-secondary
transitions for children with disabilities.
Transition services for students 14-21 include the following.
(a) Transition services are a coordinated set
of activities for a child with a disability that emphasizes special education
and related services designed to meet unique needs and prepare them for future
education, employment and independent living.
(b) Transition services
are designed to be within a results oriented process that is focused on
improving the academic and functional achievement of the child with a
disability to facilitate the child’s movement from school to post-school activities,
including post-secondary education, vocational education, integrated employment
(including supported employment), continuing and adult education, adult
services, independent living or community participation.
(c) Transition services must be based on the
individual child’s needs, taking into account the child’s strengths,
preferences and interests and includes:
(i)
instruction;
(ii) related services;
(iii) community
experiences;
(iv)
the development of employment and other
post-school adult living objectives; and
(v) when
appropriate, acquisition of daily living skills and the provision of a
functional vocational evaluation.
(d) Transition services for children with
disabilities may be considered special education, if provided as individually
designed instruction, aligned with the state standards with benchmarks, or
related service, if required to assist a child with a disability to benefit
from special education as provided in 34 CFR Sec. 300.43.
(3) State rules require the development of
measurable post-school goals beginning not later than the first IEP to be in
effect when the child turns 14, or younger, if determined appropriate by the
IEP team, and updated annually thereafter.
Pursuant to 34 CFR Sec. 300.320(b), the IEP must include:
(a) appropriate measurable postsecondary goals
based upon age appropriate transition assessments related to training,
education, employment and where appropriate, independent living skills;
(b) the transition
services (including courses of study) needed to assist the child in reaching
those goals; and
(c) a statement that the child has been
informed of the child’s rights under this title, if any, that will transfer to
the child on reaching the age of majority.
(4)
Measurable post school goals refer to goals the child seeks to achieve
after high school graduation. The goals
themselves must be measurable while the child is still in high school. In addition, the nature of these goals will
be different depending on the needs, abilities and wishes of each individual
child.
(5)
For a child whose eligibility terminates due to graduation from
secondary school with a regular diploma or due to reaching his twenty-second
birthday, the public agency must provide the child with a summary of the
child’s academic achievement and functional performance, which shall include
recommendations on how to assist the child in meeting the child’s
post-secondary goals pursuant to 34 CFR Sec. 300.305(e)(3).
(6)
Students eligible for special education services are entitled to a FAPE
through age 21. If a student turns 22
during the school year, that student shall be allowed to complete the school
year and shall continue to receive special education and related services
during that school year. If the student
turns 22 prior to the first day of the school year, the student is no longer
eligible to receive special education and related services.
H. Transfers
and transmittals. When
IEPs must be in effect.
(1)
IEPs for children who transfer public agencies in the same state. If a child with a disability (who had an IEP
that was in effect in a previous public agency in New Mexico) transfers to a
new public agency in New Mexico, and enrolls in a new school within the same
school year the new public agency must provide FAPE to the child. The IEP must include services comparable to
those described in the child’s IEP from the previous public agency, until the
new public agency either:
(a) adopts and
implements the child’s IEP from the previous public agency; or
(b) develops and
implements a new IEP that meets the applicable requirements in 34 CFR Secs.
300.320 through 300.324.
(2)
IEPs for children who transfer from another state. If a child with a disability (who had an IEP
that was in effect in a previous public agency in another state) transfers to a
public agency in New Mexico, and enrolls in a new school within the same school
year, the new public agency must provide the child with FAPE. The IEP must include services comparable to
those described in the child’s IEP from the previous agency, until the new
public agency:
(a) conducts an
evaluation pursuant to 34 CFR Secs. 300.304 through
300.306 (if determined to be necessary by the new public agency); and
(b) develops and
implements a new IEP, if appropriate, that meets the applicable requirements in
34 CFR Secs. 300.320 through 300.324.
(3)
Transmittal records. To
facilitate the transition for a child described in Paragraphs (1) and (2) of
this section:
(a) the new public agency in which the child
enrolls must take reasonable steps to promptly obtain the child’s records,
including the IEP and supporting documents and any other records relating to
the provision of special education or related services to the child, from the
previous public agency in which the child was enrolled; and
(b) the previous
public agency in which the child was enrolled must take reasonable steps to
promptly respond to the request from the new public agency.
I. Children
in charter schools.
(1)
Pursuant to 34 CFR Sec. 300.209, children with disabilities who attend
public charter schools and their parents retain all rights under Part B of
IDEA.
(2)
Charter schools that are public schools of the LEA:
(a) the LEA must serve children with
disabilities attending those charter schools in the same manner as the LEA
serves children with disabilities in its other schools, including providing
supplementary and related services on site at the charter school to the same
extent to which the LEA has a policy or practice of providing such services on
the site to its other public schools; and
(b) the LEA must provide funds under Part B of
IDEA to those charter schools on the same basis as the LEA provides funds to
the LEA’s other public schools, including proportional distribution based on
relative enrollment of children with disabilities, and at the same time as the
LEA distributes other federal funds to the LEA’s other public schools,
consistent with the state’s charter school law; and
(c) if the public
charter school is a school of an LEA that receives funding under 34 CFR Sec.
300.705 and includes other public schools:
(i)
the LEA is responsible for ensuring that the
requirements of this part are met, unless state law assigns that responsibility
to some other entity; and
(ii)
the LEA must meet the requirements of Paragraph
(2) of this subsection.
(3)
Public charter schools that are LEAs.
If the public charter school is an LEA, consistent with 34 CFR Sec.
300.28, that receives funding under 34 CFR Sec. 300.705, that charter school is
responsible for ensuring that the requirements of this part are met, unless
state law assigns that responsibility to some other entity. Charter schools who are LEAs authorized under
the public education commission must satisfy child find requirements for
children enrolled in the charter school.
(4)
Public charter schools that are not an LEA or a school that is part of
an LEA.
(a) If the public charter school is not an LEA
receiving funding under 34 CFR Sec. 300.705, or a school that is part of an LEA
receiving funding under 34 CFR Sec. 300.705, the department is responsible for
ensuring that the requirements of this part are met.
(b) Subparagraph (a) of this paragraph does
not preclude the governor from assigning initial responsibility for ensuring
the requirements of this part are met to another entity, however, the
department must maintain the ultimate responsibility for ensuring compliance
with this part, consistent with 34 CFR Sec. 300.149.
J. Children
in state-supported educational programs.
(1)
Children placed or referred by other public agencies.
(a) Applicability. The rules in this Paragraph (1) of Subsection
J apply to children with disabilities who are being considered for placement in
a state-supported educational program or facility by another public agency as a
means of providing special education and related services.
(b) Responsibility. Each public agency shall ensure that a child
with a disability who is being considered for placement in a state-supported
educational program by another public agency has all the rights of a child with
a disability who is served by any other public agency, including being provided
special education and related services:
(i)
in conformance with an IEP;
(ii)
at no cost to the child’s parents; and
(iii) at a school or
facility that is accredited by the department or licensed by the New Mexico
department of health.
(c) Service delivery. With informed parent consent pursuant to 34 CFR
Sec. 300.300 and Subsection F of 6.31.2.13 NMAC, and pursuant to the procedures
in 34 CFR Sec. 300.304 and Subsection D of 6.31.2.10 NMAC, the state-supported
program may conduct such additional evaluations and gather such additional
information as it considers necessary to assist the IEP team in making the
placement decision. The referring public
agency and the receiving state-supported educational program shall be jointly
responsible for developing IEPs and ensuring that the child receives a free appropriate
public education.
(d) Joint IEPs and interagency
agreements. Responsibility for services
for children placed in or referred to state-supported educational programs
shall be defined by a jointly agreed upon IEP or other written agreement
between the referring public agency and the state-supported program.
(e) Annual review. At least annually, the referring public
agency, the state-supported educational program and the parent shall jointly
review the child’s IEP and revise it as the joint IEP team deems appropriate.
(2)
Children enrolled in state-supported educational programs by parents or
other public authorities. A
state-supported educational program that accepts a child with a disability at
the request of a parent or upon the request or order of a noneducational public
authority, and without appropriate participation by the public agency that has
primary responsibility for serving the child, assumes all responsibility for
ensuring the provision of FAPE. The
child’s LEA or another public agency with educational jurisdiction may agree to
share the responsibility pursuant to a joint IEP or other written agreement
between the state-supported program, the other agency and, if appropriate, the
parent.
K. Children
in detention and correctional facilities.
(1)
If a child with a disability is placed in a juvenile or adult detention
or correctional facility, the facility must provide the child with FAPE after
the facility learns that the child had been eligible for special education and
related services in the last educational placement prior to incarceration or
otherwise determines that the child is eligible.
(2)
Juvenile or adult detention or correctional facilities must take
reasonable steps to promptly obtain needed educational records from a child's
last known school or educational facility.
Record requests and transfers are subject to the regulations under the
Family Educational Rights and Privacy Act (FERPA) at 34 CFR Part 99 and the
provisions of Paragraph (3) of Subsection L of 6.31.2.13 NMAC. The educational program of a juvenile or
adult detention or correctional facility is an educational agency for purposes
of the FERPA.
(a) The previous public agency in which the
child was enrolled must take reasonable steps to promptly respond to the
records request from the juvenile correctional facilities.
(b) To assist juvenile correctional facilities
in providing FAPE for children entering the facility during the summer months,
districts must provide summer emergency contact information of a person who has
access to special education records, to the state’s superintendent of juvenile
justice services division of the children, youth and family department.
(3)
A detention or correctional facility that is unable to obtain adequate
records from other agencies, the child or the parents within a reasonable time
after the child arrives at the facility, shall evaluate the child who is known
or suspected to be a child with a disability as provided in Subsection F of
6.31.2.10 NMAC and develop an IEP for an eligible child without undue delay.
(4)
FAPE for eligible students in juvenile or adult detention or
correctional facilities shall be made available in programs that are suited to
the security requirements of each facility and eligible student. The provisions of 34 CFR Sec. 300.324(d) apply to IEPs for students with disabilities who are
convicted as adults under state law and incarcerated in adult prisons.
(5)
A state-supported educational program that serves a juvenile or adult
detention or correctional facility shall be responsible for ensuring that FAPE
is provided to eligible children in that facility.
(6)
The local school district in which a detention or correctional facility
is located (that is not served by a state-supported educational program) shall
be responsible for ensuring that FAPE is made available to eligible children in
that facility. A child’s LEA of
residence or another public agency with educational jurisdiction may agree to
share the responsibility pursuant to a written agreement between or among the
agencies involved.
(7)
Children with disabilities who are detained or incarcerated in detention
or correctional facilities are wards of the state and may have surrogate
parents appointed pursuant to 34 CFR Sec. 300.519 and Subsection J of 6.31.2.13
NMAC to protect their IDEA rights while in state custody.
(8)
The public agency that administers the educational program in a juvenile
or adult detention or correctional facility shall ensure that surrogate parents
are appointed in cases where no parent as defined in 34 CFR Sec. 300.30(a) and
Paragraph (14) of Subsection B of 6.31.2.7 NMAC is reasonably available or
willing to make the educational decisions required for children with
disabilities who are housed in that facility.
(9)
Children placed in juvenile or adult detention or correctional
facilities must be provided learning opportunities and instruction that meet
the state standards with benchmarks.
L. Children
in private schools or facilities.
(1)
Children enrolled by parents in private schools or facilities.
(a) Parentally placed private school children
with disabilities means children with disabilities enrolled by their parents in
private schools, including religious schools or facilities, such as residential
treatment centers, day treatment centers, hospitals, mental health
institutions, other than children with disabilities who are covered under 34
CFR Secs. 300.145 through 300.147.
(b) A school district in which a private
school or facility is located shall not be considered the resident school
district of a school-age person if residency is based solely on the school-age
person's enrollment at the facility and the school-age person would not
otherwise be considered a resident of the state.
(c) Each LEA must locate, identify and
evaluate all children with disabilities who are enrolled by their parents in
private schools, including religious elementary schools and secondary schools
located in the education jurisdiction of the LEA, in accordance with 34 CFR
Secs. 300.131 and 300.111.
(d) Each public agency
must develop a “service plan” that describes the special education and related
services the LEA will provide to a parentally placed child with a disability
enrolled in a private school who has been designated to receive services,
including the location of the services and any transportation necessary,
consistent with 34 CFR Sec. 300.132 and that is developed and implemented in
accordance with 34 CFR Secs. 300.137 through
300.139. The provision applies only to
private schools and not to private facilities where an IEP must be in place.
(e) Pursuant to 34 CFR Sec. 300.133, each LEA
is obligated to spend a proportionate amount of its federal IDEA Part B funds
to assist private school children with disabilities placed in a private school
or private facility by a parent who assumes responsibility for such
placement. In doing so, LEAs must use
the formula for calculating proportionate amount and annual count of parentally
placed private school children with disabilities in accordance with 34 CFR Sec.
300.133. The public agency shall not use
IDEA funds to benefit private schools as provided in 34 CFR Sec. 300.141. The state is not required to distribute state
funds for such school-age persons. Furthermore, the Constitution and laws of
New Mexico prohibit public agencies from spending state funds to assist private
schools or facilities or their students.
(f) No parentally placed private school child
with a disability has an individual right to receive some or all of the special
education and related services that the child would receive if enrolled in a
public school. Pursuant to 34 CFR Sec.
300.137, the LEA must make the final decisions with respect to the services to
be provided to eligible parentally placed private school children with
disabilities.
(g) Pursuant to 34 CFR Secs. 300.134 and 300.135, LEAs must ensure timely and meaningful
consultation with private school representatives and representatives of parents
of parentally placed private school children with disabilities. If the LEA fails to engage in meaningful and
timely consultation or did not give due consideration to a request from private
school officials, private school officials have the right to submit a complaint
to the department. The private school
official and the LEA must follow the procedures outlined in 34 CFR Sec.
300.136.
(h) Pursuant to 34 CFR Secs. 300.140, the due
process provisions of Subsection I of 6.31.2.13 NMAC are not applicable except
for child find complaints which must be filed in compliance with 34 CFR Sec.
300.140(b). Any complaint that the
department or any LEA has failed to meet the requirements in 34 CFR Secs,
300.132 through 300.135 and 300.137 through 300.144 must be filed in accordance
with the provisions described in Subsection H of 6.31.2.13 NMAC.
(2)
Children placed in or referred to private schools or facilities by New
Mexico public agencies. Each public
agency shall ensure that a child with a disability who is placed in or referred
to a private school or facility by the agency as a means of providing special
education and related services is provided services in compliance with the
requirements of 34 CFR Secs. 300.146 and 300.147. Such a child has all the rights of a child
with a disability who is served by a public agency.
(3)
Children placed in or referred to private schools or facilities by New
Mexico public non-educational agencies.
For a qualified student or school-age person in need of special
education placed in a private school or facility by a New Mexico public
noneducational agency with custody or control of the qualified student or
school-age person or by a New Mexico court of competent jurisdiction, the
school district in which the facility is located shall be responsible for the
planning and delivery of special education and related services, unless the
qualified student's or school-age person's resident school district has an
agreement with the facility to provide such services. The district must make reasonable efforts to
involve the qualified student or school-age person’s resident school district
in the IEP process.
(4) Children placed in or referred to private
schools or facilities by public noneducational agencies other than New Mexico
public agencies. A school district in
which a private school or facility is located shall not be considered the
resident school district of a school-age person if residency is based solely on
the school-age person's enrollment at the facility and the school-age person
would not otherwise be considered a resident of the state.
(5)
Children placed in private schools or facilities by parents when FAPE is
at issue. The responsibility of a local
educational agency to pay for the cost of education for a child with a
disability who is placed in a private school or facility such as residential
treatment centers, day treatment centers, hospitals or mental health
institutions, by parents who allege that the LEA failed to offer FAPE is
governed by the requirements of 34 CFR Sec. 300.148. Disagreements between a parent and a public
agency regarding the availability of a program appropriate for the child, and
the question of financial responsibility, are subject to the due process
procedures of Subsection I of 6.31.2.13 NMAC.
(6)
If not otherwise governed by this rule, the department will determine
which school district is responsible for the cost of educating a qualified
student in need of special education who has been placed in a private school or
facility outside the qualified student’s resident school district in accordance
with the following procedures.
(a) The receiving school district must notify
the SEB of the department in writing no later than thirty (30) days after the
receiving school district receives notice of the placement. The notice, as described on the department’s
website, must include: name of student,
date of birth of student, date of placement, information regarding the
qualified student’s resident school district, documentation of placement,
including student’s IEP, cost of placement, and any other information deemed
relevant by the SEB. The receiving
school district must provide a copy of the notice to the district identified as
the student’s resident district.
(b) The district identified as the student’s
resident district may provide any additional information it deems
relevant. Such additional information
must be provided no later than 15 days after the resident district receives its
copy of the notice described in Subparagraph (a) of this paragraph.
(c) No later than 60 days after its receipt of
the notice described in Subparagraph (a) of this paragraph, the SEB will issue
its determination as to which school district is responsible for the cost of
educating the student, together with the amount of any reasonable reimbursement
owed to the receiving school district.
The SEB may extend the 60 day timeline for good cause.
(7)
The department will assign a unique student identifier for school-age
persons who have service plans, including those who are not residents of the
state but who are attending private residential treatment facilities in the
state.
(8)
Children schooled at home. Each
LEA shall locate, evaluate and determine the eligibility of children with
disabilities who are schooled at home pursuant to Secs. 22-2-2(H) NMSA 1978.
[6.31.2.11 NMAC - Rp, 6.31.2.11 NMAC, 6/29/07; A, 12/31/09;
A, 7/29/11; A, 02/29/12; A, 09/28/12]
6.31.2.12 EDUCATIONAL SERVICES FOR GIFTED
CHILDREN:
A. Gifted child defined.
As used in 6.31.2.12 NMAC, “gifted child” means a school-age person as
defined in Sec. 22-13-6(D) NMSA 1978 whose intellectual ability paired with
subject matter aptitude/achievement, creativity/divergent thinking, or
problem-solving/critical thinking meets the eligibility criteria in 6.31.2.12
NMAC and for whom a properly constituted IEP team determines that special
education services are required to meet the child’s educational needs.
B. Qualifying areas defined.
(1)
“Intellectual ability” means
a score two standard deviations above the mean as defined by the test author on
a properly administered intelligence measure. The test administrator must also
consider the standard error of measure (SEM) in the determination of whether or
not criteria have been met in this area.
(2)
“Subject matter aptitude/achievement” means superior academic
performance on a total subject area score on a standardized measure, or as
documented by information from other sources as specified in Paragraph (2) of
Subsection C of 6.31.2.12 NMAC.
(3)
“Creativity/divergent thinking” means outstanding performance on a test
of creativity/ divergent thinking, or in creativity/divergent thinking as
documented by information from other sources as specified in Paragraph (2) of
Subsection C of 6.31.2.12 NMAC.
(4)
“Problem-solving/critical thinking” means outstanding performance on a
test of problem-solving/critical thinking, or in problem-solving/critical
thinking as documented by information from other sources as specified in
Paragraph (2) of Subsection B of 6.31.2.12 NMAC.
(5)
For students with “factors” as specified in Paragraph (2) of Subsection
E of 6.31.2.12 NMAC, the impact of these factors shall be documented and
alternative methods will be used to determine the student’s eligibility.
C. Evaluation
procedures for gifted children.
(1)
Each district must establish a child find procedure that includes a
screening and referral process for students in public school who may be gifted.
(2)
Analysis of data. The
identification of a student as gifted shall include documentation and analysis
of data from multiple sources for subject matter aptitude/achievement,
creativity/divergent thinking, and problem solving/critical thinking including:
(a) standardized
measures, as specified in Subsection B of 6.31.2.12 NMAC, and
(b) information regarding the child’s
abilities from other sources, such as collections of work, audio/visual tapes,
judgment of work by qualified individuals knowledgeable about the child’s
performance (e.g., artists, musicians, poets and historians, etc.), interviews,
or observations.
(3)
The child’s ability shall be assessed in all four areas specified in
Subsection B of 6.31.2.12 NMAC.
D. Standard
method for identification. Under the
standard method for identification, students will be evaluated in the areas of
intellectual ability, subject matter aptitude/achievement, creativity/divergent
thinking, and problem solving/critical thinking. A student who meets the criteria established
in Subsection B of 6.31.2.12 for intellectual ability and also meets the
criteria in one or more of the other areas will qualify for consideration of
service. A properly constituted IEP
team, including someone who has knowledge of gifted education, will determine
if special education services are required to meet the child’s educational
needs.
E. Alternative
method for identification.
(1)
A district may apply to the public education department to utilize an
alternative protocol for all students.
Eligibility of a student will then be determined by a properly
administered and collected, department-approved alternative protocol designed
to evaluate a student’s intellectual ability, subject matter
aptitude/achievement, creativity/divergent thinking, and problem solving
/critical thinking.
(2)
If an accurate assessment of a child’s ability may be affected by
factors including cultural background, linguistic background, socioeconomic
status or disability condition(s), an alternative protocol as described in
Paragraph (1) of Subsection E of 6.31.2.12 NMAC will be used in all districts
to determine the student’s eligibility.
The impact of these factors shall be documented by the person(s)
administering the alternative protocol.
(3)
The student assistance team (SAT) process requirements will not apply to
students who meet the criteria established by the alternative protocols. When a student’s overall demonstrated
abilities are very superior (as defined by the alternative protocol author), a
properly constituted IEP team, including someone who has knowledge of gifted
education, will determine if special education services are required to meet
the child’s educational needs.
F. Applicability
of rules to gifted children.
(1)
All definitions, policies, procedures, assurances, procedural safeguards
and services identified in 6.31.2 NMAC for school-aged children with disabilities
apply to school-aged gifted children within the educational jurisdiction of
each local school district, including children in charter schools within the
district, except:
(a) the requirements
of 6.31.2.8 NMAC through 6.31.2.10 NMAC;
(b) Subsections J, K and L of 6.31.2.11 NMAC
regarding child find, evaluations and services for private school children with
disabilities, children with disabilities in state-supported educational programs,
children with disabilities in detention and correctional facilities and
children with disabilities who are schooled at home;
(c) the requirements
of 34 CFR Secs. 300.530-300.536, Subsection I of 6.31.2.13 NMAC and 6.11.2.11
NMAC regarding disciplinary changes of placement for children with
disabilities; and
(d) the requirements
of 34 CFR Secs. 300.43, 300.320(b) and 6.31.2.11(G)(2)
regarding transition planning. Students
identified as gifted must meet the requirements at Subsection B of 22-13-1.1
NMSA 1978, which is the next step plan for students without disabilities.
(2)
Assuming appropriate evaluations, a child may properly be determined to
be both gifted and a child with a disability and be entitled to a free
appropriate public education for both reasons.
The rules in this section 6.31.2.12 NMAC apply only to gifted children.
(3)
Nothing in these rules shall preclude a school district or a charter
school within a district from offering additional gifted programs for children
who fail to meet the eligibility criteria.
However, the state shall only provide funds under Section 22-8-21 NMSA
1978 for department approved gifted programs for those students who meet the
established criteria.
G. Advisory committees.
(1)
Each school district offering a gifted education program shall create
one or more advisory committees of parents, community members, students and school
staff members. The school district may
create as many advisory committees as there are high schools in the district or
may create a district-wide advisory committee.
(2)
The membership of each advisory committee shall reflect the cultural
diversity of the enrollment of the school district or the schools the committee
advises. Representation from all schools
the committee is advising is required.
(3)
Purposes. The advisory committee
shall:
(a) regularly
review the goals and priorities of the gifted program, including the
operational plans for student identification, evaluation, placement and service
delivery;
(b) demonstrate
support for the gifted program;
(c) provide information regarding the impact
that cultural background, linguistic background, socioeconomic status and
disability conditions within the community may have on the child referral,
identification, evaluation and service delivery processes;
(d) advocate for children who have been
under-represented in gifted services due to cultural or linguistic background,
socioeconomic status, or disability conditions, in order to ensure that these
children have equal opportunities to benefit from services for gifted students;
and
(e) meet three or
more times per year at regular intervals.
(4)
Formal documentation of committee membership, activities and
recommendations shall be maintained. If
proposals are made by the committee to address any of the purposes as listed in
Subsection G(3) of 6.31.2.12 NMAC, they shall be
submitted in writing to the district administration. The administration shall respond in writing
to any proposed actions before the next scheduled meeting of the advisory
committee.
[6.31.2.12 NMAC - Rp, 6.31.2.12 NMAC, 6/29/07; A, 12/31/09]
6.31.2.13 ADDITIONAL RIGHTS OF PARENTS,
STUDENTS AND PUBLIC AGENCIES:
A. General
responsibilities of public agencies.
Each public agency shall establish, implement and maintain procedural
safeguards that meet the requirements of 34 CFR Secs. 300.500-300.536,
and all other applicable requirements of these or other department rules and
standards.
B. Examination
of records. Each public agency shall
afford the parents of a child with a disability an opportunity to inspect and
review all education records related to the child in compliance with 34 CFR
Secs. 300.501(a), 300.613-300.620, 34 CFR Part 99, and any
other applicable requirements of these or other department rules and standards.
C. Parent
and student participation in meetings.
Each public agency shall afford the parents of a child with a disability
and, as appropriate, the child, an opportunity to participate in meetings with
respect to the identification, evaluation and educational placement or the
provision of FAPE to the child, in compliance with 34 CFR Secs. 300.322, 300.501(b) and (c), and any other applicable requirements
of these or other department rules and standards.
D. Notice
requirements.
(1)
Notice of meetings. Each public
agency shall provide the parents of a child with a disability with advance
written notice that complies with 34 CFR Sec. 300.322 for IEP meetings and any
other meetings in which the parent has a right to participate pursuant to 34
CFR Sec. 300.501.
(2)
Notice of agency actions proposed or refused. A public agency must give written notice that
meets the requirements of 34 CFR Sec. 300.503 to the parents of a child with a
disability a reasonable time before the agency proposes or refuses to initiate
or change the identification, evaluation or educational placement of the child
or the provision of FAPE to the child.
If the notice relates to a proposed action that also requires parental
consent under 34 CFR Sec. 300.300, the agency may give
notice at the same time it requests parental consent.
(3)
Notice of procedural safeguards.
A copy of the procedural safeguards available to the parents of a child
with a disability must be given to the parents, only one time a school year,
except that a copy must be given to the parents, (a) upon initial referral for
evaluation; (b) upon receipt of the first state complaint under 34 CFR Secs.
300.151-300.153; (c) upon receipt of the first due process complaint under 34
CFR Sec. 300.507 of the school year; (d) in accordance with the discipline
procedures in 34 CFR Sec. 300.530(h); and (e) upon request of the parents. The notice must meet all requirements of 34
CFR Sec. 300.504, including the requirement to inform the parents of their
obligation under 34 CFR Sec. 300.148 to notify the public agency if they intend
to enroll the child in a private school or facility and seek reimbursement from
the public agency. A public agency may
place a current copy of the procedural safeguards notice on its internet
website if a website exists.
E. Communications
in understandable language. Pursuant to 34 CFR Secs. 300.9(a), 300.322(e), 300.503(c)
and 300.504(d), each public agency must communicate with parents in
understandable language, including the parent’s native language or other mode
of communication, unless it is clearly not feasible to do so, if necessary for
understanding, in IEP meetings, in written notices and in obtaining consent
where consent is required.
F. Parental
consent.
(1)
Informed parental consent as defined in 34 CFR Sec. 300.9 must be obtained
in compliance with 34 CFR Sec. 300.300 before (a) conducting an initial
evaluation or reevaluation; and (b) initial provision of special education and
related services to a child with a disability.
Consent for initial evaluation must not be construed as consent for
initial provision of special education and related services. If parental consent is not provided for the
initial evaluation or the parent fails to respond to a request to provide
consent, the public agency may, but is not required to, pursue the initial
evaluation of the child by utilizing the due process and mediation procedures
in Subsection I of 6.31.2.13 NMAC.
(2)
Pursuant to 34 CFR Sec. 300.300(d)(1), parental consent is not required
before (a) reviewing existing data as part of an evaluation or a reevaluation;
or (b) administering a test or other evaluation that is administered to all
children unless, before administration of that test or evaluation, consent is
required of parents of all children.
(3) Pursuant to 34 CFR Sec. 300.300(b), if the
parents of a child with a disability refuse consent for the initial provision
of special education and related services, the public agency may not use the
due process and mediation procedures in Subsection I of 6.31.2.13 NMAC in order
to obtain agreement or a ruling that the services may be provided to the
child. If the parent refuses consent or
fails to respond to a request to provide consent for the initial provision of
special education and related services, the public agency will not be
considered to be in violation of the requirement to make FAPE available to the
child and is not required to convene an IEP team meeting or develop an IEP
under 34 CFR Secs. 300.320 and 300.324. All provisions of 34 CFR Sec. 300.300 must be
followed with respect to parental consent.
(4)
Pursuant to 34 CFR Sec. 300.300(c)(2), informed parental consent need
not be obtained for reevaluation if the public agency can demonstrate that it
has taken reasonable measures to obtain that consent by using procedures
consistent with those in 34 CFR Sec. 300.322(d) and the child’s parent has
failed to respond.
(5)
Pursuant to 34 CFR Sec. 300.300(d)(3), a public agency may not use a
parent’s refusal to consent to one service or activity for which consent is
required to deny the parent or child any other service, benefit or activity of
the public agency, except as required by 34 CFR Part 300.
(6)
Pursuant to 34 CFR Sec. 300.300(b)(4), parents
may revoke consent for the continued provision of all special education and
related services for their child. The
revocation of consent must be in writing.
After providing prior written notice in accordance with 34 CFR Sec.
300.503, the public agency must cease the provision of special education and
related services for that child. The
public agency may not use the due process and mediation procedures in
Subsection I of 6.31.2.13 NMAC in order to obtain agreement or a ruling that
services may be provided to the child.
The public agency will not be considered to be in violation of the
requirement to make FAPE available to the child once consent has been revoked. The public agency will also not be required
to convene an IEP team meeting or develop an IEP for the child for further
provision of special education and related services.
G. Conflict
management and resolution.
(1)
Each public agency shall seek to establish and maintain productive
working relationships with the parents of each child the agency serves and to
deal constructively with disagreements.
Toward that end, each public agency is strongly encouraged to provide
appropriate training for staff and parents in skills and techniques of conflict
prevention and management and dispute resolution, and to utilize an informal
dispute resolution method as set forth under Subparagraph (a) of Paragraph (2)
of Subsection G of 6.31.2.13 NMAC to resolve disagreements at the local level
whenever practicable.
(2)
Spectrum of dispute resolution options. To facilitate dispute prevention
as well as swift, early conflict resolution whenever possible, the department
and the public agency shall ensure that the following range of dispute resolution
options is available to parents and public agency personnel.
(a) Informal dispute resolution option. If a
disagreement arises between parents and a public agency over a student's IEP or
educational program, either the parents or the public agency may convene a new
IEP meeting at any time to attempt to resolve their differences at the local
level, without state-level intervention.
(b) Third-party assisted intervention. The
special education bureau (SEB) of the department will ensure that mediation is
available to parents and public agencies who request such third-party assisted
intervention before filing a state-level complaint or a request for a due
process hearing. The SEB will honor a request for mediation that:
(i) is in writing;
(ii)
is submitted to the SEB;
(iii) is a mutual
request signed by both parties or their designated representatives;
(iv)
includes a statement of the matter(s) in
dispute and a description of any previous attempts to resolve these matters at
the local level; and
(v) any
request that does not contain all of these elements will be declined, with an
explanation for the SEB's decision and further guidance, as appropriate.
(c) Formal dispute resolution.
(i)
A state-level complaint may be filed with the SEB of the department by
the parents of a child, or by another individual or organization on behalf of a
child, as described under Subparagraph (a) of Paragraph (2) of Subsection H of
6.31.2.13 NMAC. Once a complaint has been filed, the parties may agree to
convene a FIEP meeting or mediation as described under Paragraph (3) of
Subsection H of 6.31.2.13 NMAC.
(ii)
A request for a due process hearing may be filed by parents or their
authorized representative, or by a public agency, as described under Paragraph
(5) of Subsection I of 6.31.2.13 NMAC. A resolution session between the parties
must be convened by the public agency following a request for a due process
hearing, unless the parties agree in writing to waive that option or to convene
a mediation instead, as described under Paragraph (8) of Subsection I of
6.31.2.13 NMAC.
(d) The Mediation Procedures Act does not
apply to mediations conducted under 6.31.2 NMAC.
H. State
complaint procedures.
(1)
Scope. This Subsection H of 6.31.2.13 NMAC prescribes procedures to be used
in filing and processing complaints alleging the failure of the department or a
public agency to comply with state or federal laws or regulations governing
programs for children with disabilities under the IDEA or with state statutes
or regulations governing educational services for gifted children.
(2)
Requirements for complaints.
(a) The SEB of the department shall accept and
investigate complaints from organizations or individuals that raise issues
within the scope of this procedure as defined in the preceding Paragraph (1) of
Subsection H of 6.31.2.13 NMAC. The complaint must: (i) be in writing; (ii) be
submitted to the SEB (or to the secretary of education, in the case of a
complaint against the department); (iii) be signed by the complainant or a
designated representative and have the complainant’s contact information; (iv)
if alleging violations with respect to a specific child, include the name and
address of the child and the school the child is attending; (v) include a
statement that the department or a public agency has violated a requirement of
an applicable state or federal law or regulation; (vi) contain a statement of
the facts on which the allegation of violation is based; and (vii) include a
description of a proposed resolution of the problem to the extent known. Any
complaint that does not contain each of these elements will be declined, with
an explanation for the SEB's decision and further guidance, as appropriate.
(b) If the complaint
alleges violations with respect to a specific child, the complaint must include
the information required by 34 CFR 300.153(b)(4).
(c) The party filing the complaint must
forward a copy of the complaint to the public agency serving the child at the
same time the party files the complaint with the SEB of the department.
(d) Pursuant to 34 CFR Sec. 300.153(c), the
complaint must allege a violation that occurred not more than one year before
the date the complaint is received by the SEB in accordance with Subparagraph
(a) of Paragraph (2) of Subsection H of 6.31.2.13 NMAC.
(3)
Preliminary meeting.
(a) FIEP meeting: mediation. Parties to a state-level complaint may choose
to convene a FIEP meeting or mediation. To do so, the public agency must (and
the parent may) notify the SEB of the department in writing within 1 business
day of reaching their decision to jointly request one of these ADR options. A
FIEP meeting or mediation shall be completed not later than 14 days after the
assignment of the IEP facilitator or mediator by the SEB, unless a brief
extension is granted by the SEB based on exceptional circumstances. Each session in the FIEP or mediation process
must be scheduled in a timely manner and must be held in a location that is
convenient to the parties to the complaint.
(b) Mediation requirements. If the parties
choose to use mediation, the following requirements apply.
(i)
Discussions that occur during the mediation process must be confidential
and may not be used as evidence in any subsequent due process hearings or civil
proceedings.
(ii)
Any mediated agreement must state that all discussions that occurred
during the mediation process shall be confidential and may not be used as
evidence in any subsequent due process hearing or civil proceeding. Any such
agreement must also be signed by both the parent and a representative of the
agency who has the authority to bind such agency, and shall be enforceable in
any state court of competent jurisdiction or in a district court of the United
States.
(iii) If a mediated agreement involves
IEP-related issues, the agreement must state that the public agency will
subsequently convene an IEP meeting to inform the student's service providers
of their responsibilities under that agreement, and revise the student's IEP
accordingly.
(iv) The mediator shall transmit a copy
of the written mediation agreement to each party within 7 days of the meeting
at which the agreement was concluded. A mediation agreement involving a claim
or issue that later goes to a due process hearing may be received in evidence
if the hearing officer rules that part or all of the agreement is relevant to
one or more IDEA issues that are properly before the hearing officer for
decision.
(v)
Each session in the mediation process must be scheduled in a timely
manner and must be held in a location that is convenient to the parties to the
dispute.
(vi) Any other requirement provided in
34 CFR 300.506(b) that is not otherwise provided herein.
(4)
Complaints and due process hearings on the same issues. Pursuant to 34
CFR Sec. 300.152(c).
(a) The SEB of the department shall set aside
any part of a written complaint that is also the subject of a due process
hearing under Subsection I of 6.31.2.13 NMAC until the conclusion of the
hearing and any civil action. Any issue in the complaint that is not a part of
the due process hearing or civil action will be resolved by the SEB as provided
in Subsection H of 6.31.2.13 NMAC.
(b) If an issue is raised in a complaint that
has previously been decided in a due process hearing involving the same
parties, the hearing decision is binding and the SEB must inform the
complainant to that effect.
(c) A complaint alleging a public agency's
failure to implement a due process decision will be resolved by the SEB as
provided in this Subsection H of 6.31.2.13 NMAC.
(5)
Complaints against public agencies.
(a) Impartial review. Upon receipt of a
complaint that meets the requirements of Paragraph (2) of Subsection H of
6.31.2.13 NMAC above, the SEB of the department shall:
(i)
undertake an impartial investigation which
shall include complete review of all documentation presented and may include an
independent on-site investigation, if determined necessary by the SEB;
(ii)
give the complainant the opportunity to submit
additional information, either orally or in writing, about the allegations in
the complaint;
(iii) provide the
public agency with the opportunity to respond to the allegations in the
complaint; and
(iv) review all
relevant information and make an independent determination as to whether the
public agency is violating a requirement of an applicable state or federal
statute or regulation.
(b) Decision. A written decision which
includes findings of fact, conclusions, and the reasons for the decision and
which addresses each allegation in the complaint shall be issued by the SEB and
mailed to the parties within sixty (60) days of receipt of the written complaint,
regardless of whether or not the parties agree to convene a FIEP meeting, or
mediation. Such decision shall further include procedures for effective
implementation of the final decision, if needed, including technical
assistance, negotiations, and if corrective action is required, such action
shall be designated and shall include the timeline for correction and the
possible consequences for continued noncompliance.
(c) Failure or refusal to comply. If the
public agency fails or refuses to comply with the applicable law or
regulations, and if the noncompliance or refusal to comply cannot be corrected
or avoided by informal means, compliance may be effected by the department by
any means authorized by state or federal laws or regulations. The department
shall retain jurisdiction over the issue of noncompliance with the law or
regulations and shall retain jurisdiction over the implementation of any
corrective action required.
(6)
Complaints against the department.
If the complaint concerns a violation by the department and: is submitted in writing to the secretary of
education; is signed by the complainant or a designated representative;
includes a statement that the department has violated a requirement of an
applicable state or federal law or regulation; contains a statement of facts on
which the allegation of violation is based, and otherwise meets the
requirements of Paragraph (2) of Subsection H of 6.31.2.13 NMAC, the secretary
of education or designee shall appoint an impartial person or impartial persons
to conduct an investigation.
(a) Investigation. The person or persons
appointed shall: acknowledge receipt of
the complaint in writing; undertake an impartial investigation which shall
include a complete review of all documentation presented and may include an
independent onsite investigation, if necessary; give the complainant the
opportunity to submit additional information, either orally or in writing,
about the allegations in the complaint; provide the department with the
opportunity to respond to the complaint; and review all relevant information
and make an independent determination as to whether the department is violating
a requirement of an applicable state or federal statute or regulation.
(b) Decision. A written decision, including
findings of fact, conclusions, recommendations for corrective action, and the
reasons for the decision and addressing each allegation in the complaint, shall
be issued by the person or persons appointed pursuant to this paragraph and
mailed to the parties within sixty (60) days of receipt of the written
complaint. The person appointed pursuant
to this paragraph has no authority to order rulemaking by the department.
(7)
Extension of time limit. An extension of the time limit under
Subparagraph (b) of Paragraph (5) or Subparagraph (b) of Paragraph (6) of this
Subsection H of 6.31.2.13 NMAC shall be permitted by the SEB of the department
only if exceptional circumstances exist with respect to a particular complaint
or if the parent or any other party filing a complaint and the public agency
involved agree to extend the time to engage in mediation or a FIEP meeting.
(8) Conflicts with
federal laws or regulations. If any federal law or regulation governing any
federal program subject to this regulation affords procedural rights to a
complainant which exceed those set forth in Subsection H of 6.31.2.13 NMAC for
complaints within the scope of these rules, such statutory or regulatory
right(s) shall be afforded to the complainant. In acknowledging receipt of such
a complaint, the SEB shall set forth the procedures applicable to that
complaint.
I. Due process hearings.
(1)
Scope. This Subsection I of 6.31.2.13 NMAC establishes procedures
governing impartial due process hearings for the following types of cases:
(a) requests for due
process in IDEA cases governed by 34 CFR Secs. 300.506-300.518 and
300.530-300.532; and
(b) claims for gifted
services.
(2)
Definitions. In addition to terms defined in 34 CFR Part 300 and
6.31.2.7 NMAC, the following definitions apply to this Subsection I of 6.31.2.13 NMAC.
(a) "Expedited hearing" means a
hearing that is available on request by a parent or a public agency under 34 CFR
Secs. 300.532(c) and is subject to the requirements of 34 CFR Sec. 300.532(c).
(b) "Gifted services" means special
education services to gifted children as defined in Subsection A of 6.31.2.12
NMAC.
(c) "Transmit" means to mail, send
by electronic mail or telecopier (facsimile machine)
or hand deliver a written notice or other document and obtain written proof of
delivery by one of the following means:
(i) an electronic
mail system's confirmation of a completed transmission to an e-mail address
that is shown to be valid for the individual to whom the transmission was sent;
(ii)
a telecopier machine's confirmation of a
completed transmission to a number which is shown to be valid for the
individual to whom the transmission was sent;
(iii) a receipt from a
commercial or government carrier showing to whom the article was delivered and
the date of delivery;
(iv)
a written receipt signed by the secretary of education or designee
showing to whom the article was hand-delivered and the date delivered; or
(v) a due process final
decision to any party not represented by counsel in a due process hearing by
the U.S. postal service, certified mail, return receipt requested, showing to
whom the articles was delivered and the date of delivery.
(3)
Bases for requesting hearing. A parent or public agency may initiate an
impartial due process hearing on the following matters:
(a) the public agency
proposes to initiate or change the identification, evaluation, or educational
placement of the child or the provision of FAPE to the child;
(b) the public agency
refuses to initiate or change the identification, evaluation or educational
placement of the child or the provision of FAPE to the child;
(c) the public agency
proposes or refuses to initiate or change the identification, evaluation or
educational placement of, or services to, a child who needs or may need gifted
services.
(4)
Bases for requesting expedited hearing.
(a) Pursuant to 34 CFR Sec. 300.532 and 20 USC
Sec. 1415(k)(3), a parent may request an expedited hearing
to review any decision regarding placement or a manifestation determination
under 34 CFR Secs. 300.530-300.531.
(b) Pursuant to 34 CFR Sec. 300.532(c) and 20
USC Sec. 1415(k)(3), a public agency may request an expedited hearing if it
believes that maintaining the current placement of a child is substantially
likely to result in injury to the child or others.
(5)
Request for hearing. A parent requesting a due process hearing shall
transmit written notice of the request to the public agency whose actions are
in question and to the SEB of the department. A public agency requesting a due
process hearing shall transmit written notice of the request to the parent(s)
and to the SEB of the department. The written request shall state with
specificity the nature of the dispute and shall include:
(a) the name of the
child;
(b) the address of
the residence of the child (or available contact information in the case of a
homeless child);
(c) the name of the
school the child is attending;
(d) the name of the
public agency, if known;
(e) the name and
address of the party making the request (or available contact information in
the case of a homeless party);
(f) a description of
the nature of the problem of the child relating to the proposed or refused
initiation or change, including facts relating to the problem;
(g) a proposed
resolution of the problem to the extent known and available to the party
requesting the hearing at the time;
(h) a request for an
expedited hearing must also include a statement of facts sufficient to show
that a requesting parent or public agency is entitled to an expedited hearing
under 34 CFR Secs. 300.532(c) or 20 USC Sec. 1415(k)(3);
(i) a
request for a hearing must be in writing and signed and dated by the parent or
the authorized public agency representative; an oral request made by a parent
who is unable to communicate by writing shall be reduced to writing by the
public agency and signed by the parent;
(j) a request for hearing filed by or on
behalf of a party who is represented by an attorney shall include a sufficient
statement authorizing the representation; a written statement on a client's
behalf that is signed by an attorney who is subject to discipline by the New
Mexico supreme court for a misrepresentation shall constitute a sufficient
authorization; and
(k) a party may not
have a hearing on a due process complaint until the party, or the attorney
representing the party, files a due process complaint that meets the
requirements of this paragraph.
(6)
Response to request for hearing.
(a) A request for a hearing shall be deemed to
be sufficient unless the party receiving the notice of request notifies the
hearing officer and the other party in writing that the receiving party
believes the request has not met the requirements of Paragraph (5) of
Subsection I of 6.31.2.13 NMAC.
(b) Public agency response.
(i)
In general. If the public agency has not sent a prior written notice to the
parent regarding the subject matter contained in the parent's due process
hearing request, such public agency shall, within 10 days of its receipt of the
request, send to the parent a response that meets the requirements of 34 CFR
Sec. 300.508(e) and 20 USC Sec. 1415(c)(2)(B)(i). This
requirement presents an additional opportunity for parties to clarify and
potentially resolve their dispute(s).
(ii)
Sufficiency. A response filed by a public agency pursuant to (i) of
Subparagraph (b) of Paragraph (6) shall not be construed to preclude such
public agency from asserting that the parent's due process hearing request was
insufficient where appropriate.
(c) Other party response. Except as provided
in Subparagraph (b) of Paragraph (6) of Subsection I of 6.31.2.13 NMAC above,
the non-complaining party shall, within 10 days of its receipt of the request
for due process, send to the requesting party a response that specifically
addresses the issues raised in the hearing request. This requirement also
presents an opportunity to clarify and potentially resolve disputed issues
between the parties.
(d) A party against whom a due process hearing
request is filed shall have a maximum of 15 days after receiving the request to
provide written notification to the hearing officer of insufficiency under
Subparagraph (a) of Paragraph (6) of Subsection I of 6.31.2.13 NMAC. The 15 day timeline for the public agency to
convene a resolution session under Paragraph (8) of Subsection I of 6.31.2.13
NMAC below runs at the same time as the 15 day timeline for filing notice of
insufficiency.
(e) Determination. Within five days of receipt
of a notice of insufficiency under Subparagraph (d) of Paragraph (6) of
Subsection I of 6.31.2.13 NMAC above, the hearing officer shall make a
determination on the face of the due process request of whether it meets the
requirements of Paragraph (5) of Subsection I of 6.31.2.13 NMAC, and shall
immediately notify the parties in writing of such determination.
(f) Amended due process request. A party may
amend its due process request only if:
(i)
the other party consents in writing to such amendment and is given the
opportunity to resolve the complaint through a meeting held pursuant to
Paragraph (8) of Subsection I of 6.31.2.13 NMAC; or
(ii)
the hearing officer grants permission, except
that the hearing officer may only grant such permission at any time not later
than 5 days before a due process hearing occurs.
(g) Applicable timeline. The applicable
timeline for a due process hearing under this part shall recommence at the time
the party files an amended notice, including the timeline under Paragraph (8)
of Subsection I of 6.31.2.13 NMAC.
(7)
Duties of the SEB of the department. Upon receipt of a written request
for due process, the SEB shall:
(a) appoint a
qualified and impartial hearing officer who meets the requirements of 34 CFR
Sec. 300.511(c) and 20 USC Sec. 1415(f)(3)(A);
(b) arrange
for the appointment of a qualified and impartial mediator or IEP facilitator
pursuant to 34 CFR Sec. 300.506 to offer ADR services to the parties;
(c) inform the parent in writing of any free
or low-cost legal and other relevant services available in the area; the SEB
shall also make this information available whenever requested by a parent; and
(d) inform the parent that in any action or
proceeding brought under 20 USC Sec. 1415, a state or federal court, in its
discretion and subject to the further provisions of 20 USC Sec. 1415(g)(3)(b)
and 34 CFR Sec. 300.517, may award reasonable attorneys' fees as part of the
costs to a prevailing party;
(e) the SEB shall
also:
(i) keep a list of the persons who serve as
hearing officers and a statement of their qualifications;
(ii)
appoint another hearing officer if the
initially appointed hearing officer excuses himself or herself from service;
(iii) ensure that mediation and FIEP meetings
are considered as voluntary and are not used to deny or delay a parent's right
to a hearing; and
(iv)
ensure that within forty-five (45) days of commencement of the timeline
for a due process hearing, a final written decision is reached and a copy
transmitted to the parties, unless one or more specific extensions of time have
been granted by the hearing officer at the request of either party (or at the
joint request of the parties, where the reason for the request is to allow the
parties to pursue an ADR option);
(f) following the
decision, the SEB shall, after deleting any personally identifiable
information, transmit the findings and decision to the state IDEA advisory
panel and make them available to the public upon request.
(8)
Preliminary meeting.
(a) Resolution session. Before the opportunity
for an impartial due process hearing under Paragraphs (3) or (4) of Subsection
I of 6.31.2.13 NMAC above, the public agency shall convene a resolution session
with the parents and the relevant member or members of the IEP team who have
specific knowledge of the facts identified in the due process request, unless
the parents and the public agency agree in writing to waive such a meeting, or
agree to use the mediation process instead. The resolution session:
(i)
shall occur within 15 days of the respondent's
receipt of a request for due process;
(ii)
shall include a representative of the public
agency who has decision-making authority on behalf of that agency;
(iii) may not include
an attorney of the public agency unless the parent is accompanied by an
attorney; and
(iv)
shall provide an opportunity for the parents of
the child and the public agency to discuss the disputed issue(s) and the facts
that form the basis of the dispute, in order to attempt to resolve the dispute;
(v)
if the parties desire to have their discussions in the resolution
session remain confidential, they may agree in writing to maintain the
confidentiality of all discussions and that such discussions can not later be
used as evidence in the due process hearing or any other proceeding; and
(vi)
if an agreement is reached following a resolution session, the parties
shall execute a legally binding agreement that is signed by both the parent and
a representative of the agency who has the authority to bind that agency, and
which is enforceable in any state court of competent jurisdiction or in a
district court of the United States; if the parties execute an agreement
pursuant to a resolution session, a party may void this agreement within three
business days of the agreement's execution; further, if the resolution session
participants reach agreement on any IEP-related matters, the binding agreement
must state that the public agency will subsequently convene an IEP meeting to
inform the student's service providers of their responsibilities under that
agreement, and revise the student's IEP accordingly.
(b) FIEP meeting; mediation. Parties to a due process
hearing may choose to convene a FIEP meeting or mediation instead of a
resolution session. To do so, the party filing the request for the hearing must
(and the responding party may) notify the hearing officer in writing within one
business day of the parties' decision to jointly request one of these options.
A FIEP meeting or mediation shall be completed not later than 14 days after the
assignment of the IEP facilitator or mediator by the SEB, unless, upon joint
request by the parties, an extension is granted by the hearing officer. Each
session in the FIEP or mediation process must be scheduled in a timely manner
and must be held in a location that is convenient to the parties to the
hearing. The requirements for mediation, as set forth at Subparagraph (c) of
Paragraph (3) of Subsection H of 6.31.2.13 NMAC, apply to mediation in this
context, as well.
(c) Applicable timelines.
(i)
If the parties agree to convene a resolution session, the applicable
timelines for the due process hearing shall be suspended for up to 30 days from
the date the due process request was received by the SEB (except in the case of
an expedited hearing), and the meeting shall proceed according to the requirements
set forth under Subparagraph (a) of Paragraph (8) of Subsection I of 6.31.2.13
NMAC above.
(ii)
If the parties agree to convene a FIEP meeting or mediation, the public
agency shall contact the person or entity identified by the SEB to arrange for
mediation or a FIEP meeting, as appropriate. Except for expedited hearings, the
parties to the FIEP meeting or mediation process may jointly request that the
hearing officer grant a specific extension of time for the prehearing
conference and for completion of the hearing beyond the 45 day period for
issuance of the hearing decision. The hearing officer may grant such extensions
in a regular case but may not exceed the 20 school day deadline in an expedited
case.
(iii) If the parties agree to waive all
preliminary meeting options and proceed with the due process hearing, the
hearing officer shall send written notification to the parties that the
applicable timelines for the due process hearing procedure shall commence as of
the date of that notice. The hearing officer shall thereafter proceed with the
prehearing procedures, as set forth under Paragraph (12) of Subsection I of
6.31.2.13 NMAC.
(d) Resolution. Upon
resolution of the dispute, the party who requested the due process hearing
shall transmit a written notice informing the hearing officer and the SEB that
the matter has been resolved and withdrawing the request for hearing. The
hearing officer shall transmit an appropriate order of dismissal to the parties
and the SEB.
(e) Hearing. If the parties convene a
resolution session and they have not resolved the disputed issue(s) within 30
days of the receipt of the due process request by the SEB in a non-expedited
case, the public agency shall (and the parents may) notify the hearing officer
in writing within one business day of reaching this outcome. The hearing
officer shall then promptly notify the parties in writing that the due process
hearing shall proceed and all applicable timelines for
a hearing under this part shall commence as of the date of such notice.
(f) Further adjustments to the timelines may
be made as provided in 34 CFR Sec. 300.510(b) and (c).
(g) The resolution of disputes by mutual
agreement is strongly encouraged and nothing in these rules shall be interpreted
as prohibiting the parties from engaging in settlement discussions at any time
before, during or after an ADR meeting, a due process hearing or a civil
action.
(9)
Hearing officer responsibility and authority. Hearing officers shall conduct proceedings
under these rules with due regard for the costs and other burdens of due
process proceedings for public agencies, parents and students. In that regard, hearing officers shall strive
to maintain a reasonable balance between affording parties a fair opportunity
to vindicate their IDEA rights and the financial and human costs of the
proceedings to all concerned.
Accordingly, each hearing officer shall exercise such control over the
parties, proceedings and the hearing officer's own practices as he deems
appropriate to further those ends under the circumstances of each case. In particular, and without limiting the
generality of the foregoing, the hearing officer, at the request of a party or
upon the hearing officer's own initiative and after the parties have had a
reasonable opportunity to express their views on disputed issues:
(a) shall ensure by appropriate orders that
parents and their duly authorized representatives have timely access to records
and information under the public agency's control which are reasonably
necessary for a fair assessment of the IDEA issues raised by the requesting
party;
(b) shall limit the
issues for hearing to those permitted by the IDEA which the hearing officer
deems necessary for the protection of the rights that have been asserted by the
requesting party in each case;
(c) may issue orders directing the timely
production of relevant witnesses, documents or other information within a
party’s control, protective orders or administrative orders to appear for
hearings, and may address a party's unjustified failure or refusal to comply by
appropriate limitations on the claims, defenses or evidence to be considered;
(d) shall exclude
evidence that is irrelevant, immaterial, unduly repetitious or excludable on
constitutional or statutory grounds or on the basis of evidentiary privilege
recognized in federal courts or the courts of New Mexico;
(e) may issue such other orders and make such
other rulings, not inconsistent with express provisions of these rules or the
IDEA, as the hearing officer deems appropriate to control the course, scope and
length of the proceedings while ensuring that the parties have a fair
opportunity to present and support all allowable claims and defenses that have
been asserted; and
(f) shall not permit
non-attorneys to represent parties at due process hearings.
(10)
Duties of the hearing officer. The hearing officer shall excuse himself
or herself from serving in a hearing in which he or she believes a personal or
professional bias or interest exists which conflicts
with his or her objectivity. The hearing officer shall:
(a) make a
determination regarding the sufficiency of a request for due process within 5
days of receipt of any notice of insufficiency, and notify the parties of this
determination in writing;
(b) schedule an initial prehearing conference
within 14 days of commencement of the timeline for a due process hearing, or as
soon as reasonably practicable in an expedited case pursuant to Paragraph (12)
of Subsection I of 6.31.2.13 NMAC below;
(c) reach a decision,
which shall include written findings of fact, conclusions of law, and reasons
for these findings and conclusions and shall be based solely on evidence
presented at the hearing;
(d) transmit the decision to the parties and
to the SEB within 45 days of the commencement of the timeline for the hearing,
unless a specific extension of time has been granted by the hearing officer at
the request of a party to the hearing, or at the joint request of the parties
where the reason for the request is to permit the parties to pursue an ADR
option; for an expedited hearing, no extensions or exceptions beyond the
timeframe provided in Subparagraph (a) of Paragraph (19) of Subsection I of
6.31.2.13 NMAC;
(e) the hearing officer may reopen the record
for further proceedings at any time before reaching a final decision after
transmitting appropriate notice to the parties; the hearing is considered
closed and final when the written decision is transmitted to the parties and to
the SEB; and
(f) the decision of
the hearing officer is final, unless a party brings a civil action as set forth
in Paragraph (24) of Subsection I of 6.31.2.13 NMAC below.
(11)
Withdrawal of request for hearing. A party may unilaterally withdraw a
request for due process at any time before a decision is issued. A written withdrawal
that is transmitted to the hearing officer, and the other party at least two
business days before a scheduled hearing, shall be without prejudice to the
party's right to file a later request on the same claims, which shall
ordinarily be assigned to the same hearing officer. A withdrawal that is
transmitted or communicated within two business days of the scheduled hearing
shall ordinarily be with prejudice to the party's right to file a later request
on the same claims unless the hearing officer orders otherwise for good cause
shown. A withdrawal that is entered during or after the hearing but before a
decision is issued shall be with prejudice. In any event, the hearing officer
shall enter an appropriate order of dismissal.
(12)
Prehearing procedures. Unless
extended by the hearing officer at the request of a party, within 14 days of
the commencement of the timeline for a due process hearing and as soon as is
reasonably practicable in an expedited case, the hearing officer shall conduct
an initial prehearing conference with the parent and the public agency to:
(a) identify the
issues (disputed claims and defenses) to be decided at the hearing and the
relief sought;
(b) establish the
hearing officer's jurisdiction over IDEA and gifted issues;
(c) determine the
status of the resolution session, FIEP meeting or mediation between the
parties, and determine whether an additional prehearing conference will be
necessary as a result;
(d) review the
hearing rights of both parties, as set forth in Paragraphs (15) and (16) of
Subsection I of 6.31.2.13 NMAC below, including reasonable accommodations to
address an individual's need for an interpreter at public expense;
(e) review the
procedures for conducting the hearing;
(f) set a date, time
and place for the hearing that is reasonably convenient to the parents and
child involved; the hearing officer shall have discretion to determine the
length of the hearing, taking into consideration the issues presented;
(g) determine whether
the child who is the subject of the hearing will be present and whether the
hearing will be open to the public;
(h) set the date by which any documentary
evidence intended to be used at the hearing by the parties must be exchanged;
the hearing officer shall further inform the parties that, not less than 5
business days before a regular hearing or, if the hearing officer so directs,
not less than two business days before an expedited hearing, each party shall
disclose to the other party all evaluations completed by that date and
recommendations based on the evaluations that the party intends to use at the
hearing; the hearing officer may bar any party that fails to disclose such
documentary evidence, evaluation(s) or recommendation(s) by the deadline from
introducing the evidence at the hearing without the consent of the other party;
(i) as appropriate,
determine the current educational placement of the child pursuant to Paragraph
(26) of Subsection I of 6.31.2.13 NMAC below;
(j) exchange lists of
witnesses and, as appropriate, entertain a request from a party to issue an
administrative order compelling the attendance of a witness or witnesses at the
hearing;
(k) address
other relevant issues and motions; and
(l) determine the
method for having a written, or at the option of the parent, electronic
verbatim record of the hearing; the public agency shall be responsible for
arranging for the verbatim record of the hearing; and
(m) the hearing
officer shall transmit to the parties and the SEB of the department a written
summary of the prehearing conference; the summary shall include, but not be
limited to, the date, time and place of the hearing, any prehearing decisions,
and any orders from the hearing officer.
(13)
Each hearing involving oral arguments must be conducted at a time and
place that is reasonably convenient to the parents and child involved.
(14)
In order to limit testimony at the hearing to only those factual matters
which remain in dispute between the parties, on or before 10 days before the
date of the hearing, each party shall submit a statement of proposed stipulated
facts to the opposing party. On or before five days before the date of the
hearing, the parties shall submit a joint statement of stipulated facts to the
hearing officer. All agreed-upon stipulated facts shall be deemed admitted, and
evidence shall not be permitted for the purpose of establishing these facts.
(15)
Any party to a hearing has the right to:
(a) be accompanied
and advised by counsel and by individuals with special knowledge or training
with respect to the problems of children with disabilities;
(b) present evidence
and confront, cross-examine and compel the attendance of witnesses;
(c) prohibit
the introduction of any evidence at the hearing that has not been disclosed to
that party at least five business days before a regular hearing or, if the
hearing officer so directs in the prehearing summary, at least two business
days before an expedited hearing;
(d) obtain a written,
or, at the option of the parents, electronic verbatim record of the hearing;
and
(e) obtain written,
or, at the option of the parents, electronic findings of fact and decisions.
(16)
Parents involved in hearings also have the right to:
(a) have the child
who is the subject of the hearing present; and
(b) open the hearing
to the public.
(17)
The record of the hearing and the findings of fact and decisions
described above must be provided at no cost to the parents.
(18)
Limitations on the hearing.
(a) The party requesting the due process
hearing shall not be allowed to raise issues at the hearing that were not
raised in the request for a due process hearing (including an amended request,
if such amendment was previously permitted) filed under Paragraph (5) of
Subsection I of 6.31.2.13 NMAC, unless the other party agrees otherwise.
(b) Timeline for requesting hearing. A parent
or agency shall request an impartial due process hearing within two years of
the date that the parent or agency knew or should have known about the alleged
action that forms the basis of the due process request.
(c) Exceptions to the timeline. The timeline
described in Subparagraph (b) of Paragraph (18) of Subsection I of 6.31.2.13
NMAC above shall not apply to a parent if the parent was prevented from
requesting the hearing due to:
(i)
specific misrepresentations by the public
agency that it had resolved the problem that forms the basis of the due process
request; or
(ii)
the public agency's withholding of information
from the parent that was required under this part to be provided to the parent.
(19)
Rules for expedited hearings. The rules in Paragraphs (4) through (18)
of Subsection I of 6.31.2.13 NMAC shall apply to expedited due process hearings
with the following exceptions.
(a) The SEB of the department and the hearing
officer shall ensure that a hearing is held within 20 school days of the date
the request for hearing is received by the SEB, and a written decision is
reached within 10 school days of the completion of the hearing, without
exceptions or extensions, and thereafter mailed to the parties.
(b) The hearing officer shall seek to hold the
hearing and issue a decision as soon as is reasonably practicable within the
time limit described in Subparagraph (a) of Paragraph (19) of Subsection I of
6.31.2.13 NMAC above, and shall expedite the proceedings with due regard for
any progress in a resolution session, FIEP meeting or mediation, the parties'
need for adequate time to prepare and the hearing officer's need for time to
review the evidence and prepare a decision after the hearing.
(c) The parties shall decide whether to
convene a resolution session, FIEP meeting, or mediation before the
commencement of an expedited hearing in accordance with Paragraph (8) of
Subsection I of 6.31.2.13 NMAC, and are encouraged to utilize one of these
preliminary meeting options. However, in the case of an expedited hearing,
agreement by the parties to convene a resolution session, FIEP meeting or
mediation shall not result in the suspension or extension of the timeline for
the hearing stated under Subparagraph (a) of Paragraph (19) of Subsection I of
6.31.2.13 NMAC above. The timeline for
resolution sessions provided in 34 CFR Sec. 300.532(c)(3)
shall be observed.
(d) Subparagraph (a) of Paragraph (6) of
Subsection I of 6.31.2.13 NMAC relating to sufficiency of the request for the
expedited due process hearing does not apply to expedited hearings.
(e) The hearing officer may shorten the
timeline for the exchange of proposed stipulated facts between the parties as he
deems necessary and appropriate given the circumstances of a particular case.
The hearing officer may also shorten the timeline for providing agreed-upon
stipulated facts to the hearing officer to two school days before the hearing.
(f) Decisions in expedited due process
hearings are final, unless a party brings a civil action as provided in
Paragraph (24) of Subsection I of 6.31.2.13 NMAC below.
(20)
Decision of the hearing officer.
(a)
In general. Subject to Subparagraph (b) of Paragraph (20) of Subsection
I of 6.31.2.13 NMAC below, a decision made by a hearing officer shall be made
on substantive grounds based on a determination of whether the child received a
free appropriate public education (FAPE).
(b) Procedural issues. In matters alleging a
procedural violation, a hearing officer may find that a child did not receive a
FAPE only if the procedural inadequacies:
(i) impeded
the child's right to a FAPE;
(ii)
significantly impeded the parents' opportunity
to participate in the decision-making process regarding the provision of a FAPE
to the student; or
(iii) caused a
deprivation of educational benefits.
(c) Rule of construction. Nothing in this
paragraph shall be construed to preclude a hearing officer from ordering a public
agency to comply with procedural requirements under this section.
(21)
Rule of construction. Nothing in this Subsection I shall be construed to
affect the right of a parent to file a complaint with the SEB of the
department, as described under Subsection H of 6.31.2.13 NMAC.
(22)
Modification of final decision. Clerical mistakes in final decisions,
orders or parts of the record and errors therein arising from oversight or
omission may be corrected by the hearing officer at any time on the hearing
officer's own initiative or on the request of any party and after such notice,
if any, as the hearing officer orders. Such mistakes may be corrected after a
civil action has been brought pursuant to Paragraph (24) of Subsection I of
6.31.2.13 NMAC below only with leave of the state or federal district court
presiding over the civil action.
(23)
Expenses of the hearing. The public agency shall be responsible for
paying administrative costs associated with a hearing, including the hearing
officer's fees and expenses and expenses related to the preparation and copying
of the verbatim record, its transmission to the SEB, and any further expenses
for preparing the complete record of the proceedings for filing with a
reviewing federal or state court in a civil action. Each party to a hearing
shall be responsible for its own legal fees or other costs, subject to
Paragraph (25) of Subsection I of 6.31.2.13 NMAC below.
(24)
Civil action.
(a) Any party aggrieved by the decision of a
hearing officer in an IDEA matter has the right to bring a civil action in a
state or federal district court pursuant to 20 USC Sec. 1415(i) and 34 CFR Sec.
300.516. Any civil action must be filed within 30 days of the receipt of the
hearing officer's decision by the appealing party.
(b) A party aggrieved by the decision of a
hearing officer in a matter relating solely to the identification, evaluation,
or educational placement of or services to a child who needs or may need gifted
services may bring a civil action in a state court of appropriate jurisdiction
within 30 days of receipt of the hearing officer's decision by the appealing party.
(25)
Attorney fees.
(a) In any action or proceeding brought under
20 USC Sec. 1415, the court, in its discretion and subject to the further
provisions of 20 USC Sec. 1415(i) and 34 CFR Sec. 300.517, may award reasonable
attorney fees as part of the costs to:
(i)
the parent of a child with a disability who is
a prevailing party;
(ii)
a prevailing public agency against the attorney of a parent who files a
request for due process or subsequent cause of action that is frivolous,
unreasonable, or without foundation, or against the attorney of a parent who
continued to litigate after the litigation clearly became frivolous,
unreasonable, or without foundation; or
(iii) a prevailing public agency against the
attorney of a parent, or against the parent, if the parent's complaint or
subsequent cause of action was presented for any improper purpose, such as to
harass, to cause unnecessary delay, or to needlessly increase the cost of
litigation.
(b) Any action for attorney fees must be filed
within 30 days of the receipt of the last administrative decision.
(c) Opportunity to resolve due process
complaints. A meeting conducted pursuant to Subparagraph (a) of Paragraph (8)
of Subsection I of 6.31.2.13 NMAC shall not be considered:
(i) a meeting
convened as a result of an administrative hearing or judicial action; or
(ii)
an administrative hearing or judicial action
for purposes of this paragraph.
(d) Hearing officers are not authorized to
award attorney fees.
(e) Attorney fees are not recoverable for
actions or proceedings involving services to gifted children or other claims
based solely on state law.
(26) Child's status during proceedings.
(a) Except as provided in 34 CFR Sec. 300.533
and Paragraph (4) of Subsection I of 6.31.2.13 NMAC, and unless the public
agency and the parents of the child agree otherwise, during the pendency of any
administrative or judicial proceeding regarding an IDEA due process request,
the child involved must remain in his or her current educational placement.
Disagreements over the identification of the current educational placement
which the parties cannot resolve by agreement shall be resolved by the hearing
officer as necessary.
(b) If the case involves an application for
initial admission to public school, the child, with the consent of the parents,
must be placed in the public school until the completion of all the
proceedings.
(c) If a hearing officer agrees with the
child's parents that a change of placement is appropriate, that placement must
be treated as an agreement between the public agency and the parents for
purposes of Subparagraph (a) of Paragraph (26) of Subsection I of 6.31.2.13
NMAC.
J. Surrogate
parents and foster parents.
(1)
Each public agency shall ensure that a qualified surrogate parent is
appointed in compliance with 34 CFR Sec. 300.519 when needed to protect the
rights of a child with a disability who is within the agency’s educational
jurisdiction. A surrogate parent need not
be appointed if a person who qualifies as a parent under 34 CFR Sec. 300.30(b)
and Paragraph (13) of Subsection B of 6.31.2.7 NMAC can be identified.
(2)
A foster parent who meets all requirements of 34 CFR Sec. 300.30 may be
treated as the child’s parent pursuant to that regulation. A foster parent who does not meet those
requirements but meets all requirements of 34 CFR Sec. 300.519 may be appointed
as a surrogate parent if the public agency that is responsible for the appointment
deems such action appropriate.
(3) Pursuant to 34 CFR
Sec. 300.519, a surrogate parent may represent the child in all matters
relating to the identification, evaluation and educational placement of the
child and the provision of FAPE to the child.
K. Transfer
of parental rights to students at age 18.
(1)
Pursuant to Secs. 12-2A-3 and 28-6-1 NMSA 1978, a person’s age of
majority begins on the first instant of his or her 18th birthday and a person
who has reached the age of majority is an adult for all purposes not otherwise
limited by state law. A guardianship
proceeding under the probate code is the only way an adult in New Mexico can
legally be determined to be incompetent and have the right to make his or her
own decisions taken away. Public
agencies and their IEP teams are not empowered to make such determinations
under New Mexico law. Accordingly,
pursuant to 34 CFR Sec. 300.520, when a child with a disability reaches age 18
and does not have a court-appointed general guardian, limited guardian or other
person who has been authorized by a court to make educational decisions on the
student's behalf or who has not signed a power of attorney as provided under
New Mexico law:
(a) a public agency
shall provide any notices required by 34 CFR Part 300 to the child and the
parents;
(b) all other rights accorded to parents under
Part B of the IDEA, New Mexico law or department rules and standards transfer
to the child; and
(c) the
public agency shall notify the individual and the parents of the transfer of
rights.
(2)
Pursuant to 34 CFR Sec. 300.320(c), each annual IEP review for a child
who is 14 or older must include a discussion of the rights that will transfer
when the child turns 18 and, as appropriate, a discussion of the parents' plans
for obtaining a guardian before that time.
The IEP of a child who is 14 or older must include a statement that the
child and the parent have been informed of the rights that will transfer to the
child at age 18.
L. Confidentiality
of information.
(1)
Confidentiality requirements.
Each public agency collecting, using or maintaining any personally
identifiable information on children under Part B of the IDEA shall comply with
all applicable requirements of 34 CFR Secs. 300.610-300.626, and the Family
Educational Rights and Privacy Act, 34 CFR Part 99.
(2)
Parental rights to inspect, review and request amendment of education
records. Each public agency shall permit
parents or their authorized representatives to inspect and review any education
records relating to their children that are collected, maintained or used by
the agency under Part B of the IDEA pursuant to 34 CFR Sec. 300.613. A parent who believes that information in the
education records is inaccurate or misleading or violates the privacy or other
rights of the child may request the agency that maintains the information to
amend the information pursuant to 34 CFR Sec. 300.618 and shall have the
opportunity for a hearing on that request pursuant to 34 CFR Secs. 300.619-300.621 and 34 CFR Sec. 99.22.
(3)
Transfer of student records.
(a) Pursuant to 34 CFR
Sec. 99.31(a)(2), an educational agency may transfer
child records without parental consent when requested by another educational
agency in which a child seeks or intends to enroll as long as the sending
agency has included the proper notification that it will do so in its required
annual FERPA notice to children and parents.
In view of the importance of uninterrupted educational services to
children with disabilities, each New Mexico public agency is hereby directed to
include such language in its annual FERPA notice and to ensure that it promptly
honors each proper request for records from an educational agency that has
become responsible for serving a child with a disability.
(b) State-supported educational programs and
the educational programs of juvenile or adult detention or correctional
facilities are educational agencies for purposes of the Family Educational
Rights and Privacy Act (FERPA) and are entitled to request and receive educational
records on children with disabilities on the same basis as local school
districts. Public agencies shall
promptly honor requests for records to assist such programs in providing
appropriate services to children within their educational jurisdiction.
(c) Pursuant to 34 CFR
Sec. 99.34(b), an educational agency that is authorized to transfer student
records to another educational agency without parental consent under Sec.
99.31(a)(2) may properly transfer to the receiving agency all educational
records the sending agency maintains on a child, including medical,
psychological and other types of diagnostic and service information which the
agency obtained from outside sources and used in making or implementing
educational programming decisions for the child.
(d) Pursuant to Paragraph (3) of Subsection E
of 6.29.1.9 NMAC, 34 CFR Sec. 300.229 and the federal No Child Left Behind Act
at 20 USC 7165, any transfer of educational records to a private or public
elementary or secondary school in which a child with disabilities seeks,
intends, or is instructed to enroll must include the following:
(i)
transcripts and copies of all pertinent records
as normally transferred for all students;
(ii)
the child’s current individualized education program with all supporting
documentation, including the most recent multidisciplinary evaluations and any
related medical, psychological or other diagnostic or service information that
was consulted in developing the IEP; and
(iii) disciplinary
records with respect to current or previous suspensions or expulsions of the
child.
(4) Parental refusals of consent for release
of information. If parental consent is
required for a particular release of information regarding a child with a
disability and the parent refuses consent, the sending or receiving public
agency may use the impartial due process hearing procedures specified in
Subsection I of 6.31.2.13 NMAC to determine if the information may be released
without parental consent. If the hearing
officer determines that the proposed release of information is reasonably necessary
to enable one or more public agencies to fulfill their educational
responsibilities toward the child, the information may be released without the
parent's consent. The hearing officer’s
decision in such a case shall be final and not subject to further
administrative review.
(5)
Destruction of information.
(a) Pursuant to 34 CFR Sec. 300.624, each
public agency shall inform parents when personally identifiable information
collected, maintained, or used under 34 CFR Part 300 is no longer needed to
provide educational services to the child.
As at other times, the parents shall have the right to inspect and
review all educational records pertaining to their child pursuant to 34 CFR
Sec. 300.613. The information must be
destroyed at the request of the parents or, at their option the records must be
given to the parents. When informing
parents about their rights to destruction of personally identifiable records
under these rules, the public agency should advise them that the records may be
needed by the child or the parents for social security benefits and other
purposes.
(b) If the parents do not request the
destruction of personally identifiable information about their children, the
public agency may retain that information permanently. In either event, a permanent record of a
student's name, address and phone number, grades, attendance record, classes
attended, grade level completed, and year completed may be maintained without
time limitation. Additional information
that is not related to the student’s IDEA services may be maintained if allowed
under 34 CFR Part 99.
(6)
Educational records retention and disposition schedules.
(a) Definitions as used
in this paragraph:
(i)
“destruction” means physical destruction or
removal of personal identifiers from educational records so that the
information is no longer personally identifiable; and
(ii)
“educational records” means the type of records
covered under the definition of “educational records” in 34 CFR Part 99 of the
regulations implementing the Family Educational Rights and Privacy Act of 1974,
20 USC 1232g (FERPA).
(b) Pursuant to 1.20.2.102 NMAC, the public
agency must notify the parents that the public agency must retain specific
information for five years to include:
(i) most
recent IEP;
(ii)
most recent 2 years child progress reports or
referral form;
(iii) related services reports;
(iv) summary
of academic achievement and functional performance;
(v)
parent communication;
(vi)
agency community action;
(vii) writing
sample; and
(viii) staff reports on
behavior.
(c) Federal regulation and department rules
require public agencies to inform parents of proposed destruction of special
education records (34 CFR Sec. 300.624 and Paragraph (5) of this subsection).
(d) Pursuant to 34 CFR Sec. 300.624, the
information must be destroyed at the request of the parents. However, a permanent record of a child’s
name, address and phone number, his or her grades, attendance record, classes
attended, grade level completed and year completed may be maintained without
time limit. Notice of destruction of
child records must include:
(i)
informing parents at the last IEP meeting of
personally identifiable information that is no longer needed to provide special
education and related service and information that must be retained according
to the state for five years under 1.20.1.102 NMAC;
(ii)
documentation at the last IEP meeting and prior
written notice of the information that is required to be maintained
indefinitely;
(iii) documentation at
the last IEP meeting and the prior written notice that the parent accepted or
rejected the proposed action to maintain records;
(iv)
if the parent requests that the agency destroy information not required
indefinitely, the agency must maintain the last IEP and prior written notice
that states the parent required the public agency to destroy allowable
information that must be maintained for 5 years; and
(v) the public agency must inform the parents
of the proposed date of destruction of records at the last IEP meeting and
document on the prior written notice of action the proposed date of destruction
of records.
M. Computation of time.
(1) In computing any period of time prescribed
or allowed by 6.31.2.13 NMAC, the day of the act, event or default from which
the designated period of time begins to run shall not be included. The last day of the period so computed shall
be included unless it is a Saturday, a Sunday or a legal holiday in which case
the last day shall be the next business day. As used in this rule, “legal
holiday” includes any day designated as a state holiday.
(2)
Notwithstanding Paragraph (1) of this subsection, if the due date of a
decision referenced in Subsection H of 6.31.2.13 NMAC falls on a Saturday, a
Sunday or a legal holiday, the decision will be due on the previous business
day.
(3)
Notwithstanding Paragraph (1) of this subsection, if the due date of a
decision referenced in Subsection I of 6.31.2.13 NMAC falls on a Saturday, a
Sunday or a legal holiday, the decision must be mailed no later than the actual
due date. A decision is considered
“mailed” when addressed, stamped and placed in a United States postal service
mailbox. If a parent exercises the
option of receiving the decision electronically, the decision is “mailed” when
transmitted electronically.
[6.31.2.13 NMAC - Rp, 6.31.2.13 NMAC, 6/29/07; A, 12/31/09;
A, 7/29/11; A, 02/29/12; A, 09/28/12]
6.31.2.14 RULES OF CONSTRUCTION:
A. U.S.
department of education interpretations.
The U.S. department of education’s (USDE) interpretations of the
provisions of 34 CFR Part 300 as set forth in its Analysis of Comments and
Changes to Part 300 at 71 Federal Register 46547-46753 (August 14, 2006), and
other interpretations that are published or announced by the USDE in the
federal register are recognized as the federal government’s official positions
regarding the requirements of the IDEA.
Such interpretations shall be followed by the department to the extent
that they do not conflict with express provisions of the IDEA or case law from
the federal courts.
B. Uniform
Statute and Rule Construction Act. The
Uniform Statute and Rule Construction Act, Secs. 12-2A-1 through 20 NMSA 1978, applies to the interpretation of 6.31.2 NMAC except to
the extent that these rules incorporate permissible variations under the New
Mexico version of the Uniform Statute and Rule Construction Act. References in 6.31.2 NMAC to state or federal
laws, rules or regulations are intended to incorporate future amendments unless
a provision in these rules is irreconcilable with a future amendment under the
standards of the Uniform Statute and Rule Construction Act.
C. Conflicts
with state or federal laws or regulations.
If any state law, a state rule or regulation adopted by the department
or a federal law or regulation grants greater rights to an individual or agency
than these rules provide, the provision(s) granting greater rights shall
control to the extent necessary to avoid a conflict.
[6.31.2.14 NMAC - Rp, 6.31.2.14 NMAC, 6/29/07]
HISTORY OF 6.31.2
NMAC:
Pre-NMAC History:
Material in this Part was derived from that previously filed
with the Commission of Public Records - State Records Center and Archives:
SBE Regulation 85-4, Educational Standards for New Mexico
Schools Basic, Special Education, Vocational Programs, 10/21/85
SBE Regulation 86-7, Educational Standards for New Mexico
Schools, 9/2/86
SBE Regulation 87-8, Educational Standards For New Mexico Schools, 2/2/88
SBE Regulation 88-9, Educational Standards For New Mexico Schools, 10/28/88
SBE Regulation 89-8, Educational Standards For New Mexico Schools, 11/22/89
SBE Regulation 90-2, Educational Standards For New Mexico Schools, 9/7/90
History of Repealed
Material:
6 NMAC 5.2, Children with Disabilities/Gifted Children,
filed 9/17/97 - Repealed, 8/14/2000
6.31.2 NMAC, Children with Disabilities/Gifted Children,
filed 8/1/2000 - Repealed, 6/29/07
