New Mexico Administrative Code
Title 6 - PRIMARY AND SECONDARY EDUCATION
Chapter 31 - SPECIAL EDUCATION
Part 2 - CHILDREN WITH DISABILITIES/GIFTED CHILDREN
Section 6.31.2.10 - IDENTIFICATION, EVALUATIONS, AND ELIGIBILITY DETERMINATIONS
Universal Citation: 6 NM Admin Code 6.31.2.10
Current through Register Vol. 35, No. 6, March 26, 2024
A. Child find. Each public agency shall adopt and implement policies and procedures to ensure that all children with disabilities who reside within the public 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 through 300.306, 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 the multi-layered system of supports 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. This support shall be provided regardless of whether a student has been referred for a full and individual evaluation for special education and related services or has been identified as eligible for special education.
(1) A student's participation in the
multi-layered system of supports does not prevent the full and individual
evaluation for special education of the student.
(2) A student may receive a full and
individual evaluation for special education and related services at any time
before, during, or after the implementation of the multi-layered system of
supports. A parent may request a full and individual evaluation or special
education and related services at any time.
(3) If the student is suspected of having a
disability and demonstrates an obvious need for special education or related
services by reason thereof, then the student shall be referred for a full and
individual evaluation for special education without undue
delay.
C. Evaluations and reevaluations.
(1) Initial evaluations.
(a) Each public agency shall 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) Each public agency shall follow
evaluation procedures in compliance with applicable requirements of
34 CFR Secs.
300.301,
300.304, and
300.305, and other department
rules and standards to determine:
(i) if the
child is a child with a disability under
34 CFR Sec.
300.8; and
(ii) the educational needs of the child.
(2) Reevaluations.
(a) Each public agency shall 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.
(b) Reevaluations
shall be conducted more often than every three years if:
(i) the public agency determines the
educational or related service 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) Each
public agency shall follow evaluation procedures in compliance with applicable
requirements of 34 CFR Secs.
300.304 and
300.305 and other department rules
or standards.
(3)
Evaluation before termination of eligibility.
(a) Pursuant to
34 CFR Sec.
300.305(e)(1), each public
agency shall evaluate a child with a disability in accordance with
34 CFR Secs.
300.304 through
300.311 before determining that
the child is no longer a child with a disability.
(b) Pursuant to
34 CFR Sec.
300.305(e)(2), evaluation
before termination of eligibility is not required when a child graduates from
secondary school with a regular high school diploma or the termination is due
to the child exceeding the age of eligibility for special education upon
turning 22 years old. In these circumstances, the public agency must provide
the child with a summary of the child's academic achievement and functional
performance, including recommendations on how to assist the child in meeting
postsecondary goals as required by
34 CFR Sec.
300.305(e)(3).
(4) The public agency shall document its
attempts to obtain parental consent.
D. Evaluation requests and referrals.
(1) Either a parent of a child or a public
agency may initiate a request for a full and individual evaluation to determine
if the child is a child with a disability or may request a reevaluation to
determine if the child's educational needs have changed.
(2) The request for initial evaluation or
reevaluation by a parent may be made in writing or orally to any licensed
personnel of the school in which the student attends. A parental request for a
full and individual evaluation shall be forwarded or communicated to the school
or district special education director or a school or district administrator as
soon as possible after it is received.
(3) The public agency shall respond to a
parental request for initial evaluation or reevaluation to the public agency no
later than 15 school days from the receipt of the request. If a parent request
for an evaluation or reevaluation is received within 15 school days before the
start of a scheduled period in which student attendance is not required for at
least 14 calendar days, the public agency shall respond no later than 30
calendar days from the date of the request.
(4) The public agency shall respond to a
parental request for initial evaluation or reevaluation by:
(a) providing prior written notice consistent
with 34 CFR Sec.
300.503 that proposes to conduct the
requested evaluation or reevaluation, providing a copy of the procedural
safeguards notice to parents required by
34 CFR Sec.
300.504, and seeking parental consent for the
evaluation; or
(b) providing prior
written notice consistent with
34 CFR Sec.
300.503 of the public agency's refusal to
conduct the evaluation or reevaluation and a copy of the procedural safeguards
notice required by 34 CFR
Sec. 300.504.
(5) When the public agency makes a referral
for an evaluation without a parental request, the public agency shall provide
prior written notice consistent with
34 CFR Sec.
300.503 that proposes to conduct the
requested evaluation or reevaluation, providing a copy of the procedural
safeguards notice to parents required by
34 CFR Sec.
300.504, and seek parental consent for the
evaluation no later than 15 school days from the referral. If a referral for an
evaluation or reevaluation is made within 15 school days before the start of a
scheduled period in which student attendance is not required for at least 14
calendar days, the public agency shall request parental consent no later than
30 calendar days from the date of the referral.
(6) The parent may use the IDEA procedural
safeguards of mediation, state complaint, or due process hearing as set forth
in 6.31.12.13 NMAC to challenge the
public agency's response to a request for evaluation or reevaluation, or the
failure to respond to a parent's request for evaluation or
reevaluation.
E. Consent for evaluation.
(1) The public agency shall
provide notice to the parents of a child with a disability that describes any
evaluation procedures the public agency proposes to conduct in compliance with
34 CFR Sec.
300.503.
(2) The public agency shall obtain written
informed parental consent for the initial evaluation or reevaluation in
accordance with the requirements of
34 CFR Sec.
300.300 and subsection of F of
6.31.2.13 NMAC prior to conducting
any evaluation.
(3) The public
agency may pursue an evaluation or reevaluation by using the consent override
procedures described in 34
CFR Sec.
300.300(a)(3).
(4) The public agency shall document its
attempts to obtain parental consent.
F. Timelines for evaluations.
(1) Each public agency shall maintain a
record of the receipt, processing, and disposition of any request or referral
for an initial evaluation or reevaluation. All appropriate evaluation data,
including complete Student Assistance Team file documentation, multi-layered
system of supports data, and summary reports from all individuals evaluating
the child shall be reported in writing for presentation to the eligibility
determination team.
(2) The initial
evaluation and written evaluation report shall be completed within 60 calendar
days of receiving parental consent for evaluation.
(3) Exception to the 60-day time frame. The
requirements of this subsection do not apply if:
(a) the parent of a child repeatedly fails or
refuses to produce the child for the evaluation; or
(b) the child enrolls in a school of another
public agency 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. This 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.
G. Procedures for conducting evaluations and reevaluations.
(1) Each public agency shall
ensure that the child is evaluated in all areas related to the suspected
disability and shall ensure that the evaluation is sufficiently comprehensive
to identify all of the child's special education and related service needs,
regardless of whether they are commonly linked to the disability category in
which the child has been classified. The public agency shall follow the
procedures for evaluations and reevaluations established by
34 CFR Secs.
300.304 and
300.305, department rules, and
standards for evaluations and reevaluations set forth in the New Mexico
technical evaluation and assessment manual (New Mexico T.E.A.M.).
(2) The initial evaluation, if appropriate,
and any reevaluations shall 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.
(3) In conducting an evaluation, the public
agency shall:
(a) 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:
(i) in determining if
the child is a child with a disability; and
(ii) 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.
(b) not use any single measure or assessment
as the sole criterion for determining whether a child is a child with a
disability and for determining an appropriate educational program for the
child; and
(c) use technically
sound instruments that may assess the relative contribution of cognitive and
behavioral factors, in addition to physical or developmental
factors.
(4) The public
agency shall provide the parents with a written report of the evaluation or
reevaluation at least two calendar days before the eligibility determination
team meeting.
H. Procedural requirements for the assessment and evaluation of culturally and linguistically diverse children.
(1) Each
public agency shall 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 shall 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).
(3) 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 shall
include appropriate references to such standards and concerns in their written
reports.
(4) Policies for public
agency selection of assessment instruments include:
(a) assessment and evaluation materials and
methods that are tailored to assess specific areas of educational need;
and
(b) assessments that are
selected to ensure that results accurately reflect the child's aptitude or
achievement level.
I. Independent education evaluations.
(1) The parents of a child who disagree with
an evaluation or reevaluation of their child 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 and this
subsection. A parent is entitled to only one independent educational evaluation
at public expense each time the public agency conducts an evaluation with which
the parent disagrees.
(2) If a
parent requests an independent educational evaluation at public expense, the
public agency shall, without unnecessary delay:
(a) file a due process complaint to show its
evaluation is appropriate; or
(b)
ensure that an independent educational evaluation is provided at public
expense, unless the agency demonstrates in a hearing the evaluation obtained by
the parent did not meet agency criteria.
(3) If a parent requests an independent
educational evaluation at public expense, the public agency may ask for the
parent's reasons why he or she objects to the public agency evaluation, but may
not require that parent to provide an explanation. The public agency may not
unreasonably delay either providing the independent educational evaluation at
public expense or filing a due process complaint to request a due process
hearing to defend the public agency evaluation.
(4) If the parent obtains an independent
educational evaluation at public expense or shares with the public agency an
evaluation obtained at private expense and the evaluation meets agency
criteria, the public agency must consider the evaluation in any decision made
with respect to the provision of FAPE to the child and the evaluation may be
presented as evidence at a due process hearing regarding the
child.
J. Eligibility determinations.
(1) Upon completing the full
and individual evaluation and written evaluation report, the public agency
shall convene a meeting of the eligibility determination team, which shall
include the parent and a group of qualified professionals, within 15 school
days to determine whether the child is a child with a disability and requires
special education and related services, as defined in
34 CFR Sec.
300.8 and Paragraph (2) of Subsection B of
6.31.2.7 NMAC. If an individual
evaluation is completed during a scheduled period in which student attendance
is not required for at least 14 calendar days, the public agency shall convene
both a meeting of the eligibility determination team and (if the child is
determined eligible) a meeting of the IEP team to develop or revise the child's
IEP no later than 15 school days from the first day when student attendance
resumes. 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 through
300.311, and these or other
department rules, policies, and standards. The eligibility determination team
meeting includes a review of the full and individual evaluation to determine:
(a) the educational needs of the
child;
(b) if the child is a child
with a disability; and
(c) if the
child requires special education and related services as a result of the
disability.
(2) Optional
use of developmentally delayed classification for children aged three through
nine.
(a) The developmentally delayed
classification may be used at the option of individual local educational
agencies but may only be used for children who are not eligible for special
education under any other disability category.
(b) Children who are eligible as children
with developmental delay shall be reevaluated during the school year in which
they turn nine and will no longer be eligible in this category when they become
10. A student who is not eligible for special education and related services
under any other eligibility category at age 10 will no longer be eligible for
special education and related services.
K. Criteria for identifying children with suspected specific learning disabilities.
(1)
Each public agency shall use the multi-layered system of supports for students
suspected of having a 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 shall, 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 the multi-layered
system of supports 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 shall 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), shall 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);
(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);
(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 a full and
individual evaluation for eligibility for special education at any time during
the public agency's implementation of the multi-layered system of supports. 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 shall evaluate the
child. If the public agency declines the parent's request for an evaluation,
the public agency shall issue prior written notice in accordance with
34 CFR Sec.
300.503 and Subsection D of this section. The
parent may challenge the decision to decline a request for evaluation by
requesting mediation or a due process hearing or by submitting a state
complaint.
(2) Preschool
children suspected of having a specific learning disability shall 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.
(3) Public agencies shall use the dual
discrepancy model to identify children with specific learning disabilities in
kindergarten through grade 12 as described in the New Mexico technical
evaluation and assessment manual. When using this model, public agencies shall
utilize information provided, in part, by the student assistance team, as well
as data and information obtained through the use of the multi-layered system of
supports.
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