6.31.2NMAC


Published: 2015

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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

 

Related Laws

2015 6.29.1NMAC