New Mexico Administrative Code
Title 6 - PRIMARY AND SECONDARY EDUCATION
Chapter 31 - SPECIAL EDUCATION
Part 2 - CHILDREN WITH DISABILITIES/GIFTED CHILDREN
Section 6.31.2.11 - EDUCATIONAL SERVICES FOR CHILDREN WITH DISABILITIES
Universal Citation: 6 NM Admin Code 6.31.2.11
Current through Register Vol. 35, No. 6, March 26, 2024
A. Preschool programs for children aged three through five.
(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 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. 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.
(3) To ensure effective transitioning from
IDEA-Part C programs to IDEA-Part B programs, each public agency shall 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 shall 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 shall 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 public 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, including parents. For children
transitioning from Part C programs to Part B programs, the team shall 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 shall 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 shall
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 through
300.144 for children enrolled by
their parents in private schools, each public agency shall:
(1) develop, implement, review, and revise an
IEP in compliance with all applicable requirements of
34 CFR Secs.
300.320 through
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 through
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
shall 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 shall 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 (a) of this paragraph, the public agency shall
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) through (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 shall 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 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 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 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:
(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:
(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:
(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 trained peer facilitators, video
modeling, social stories, and role playing;
(j) professional educator and staff support,
including 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
those associated with discrete-trial training, visual supports, applied
behavior analysis, structured learning, augmentative communication, and social
skills training.
(6) Each
local education agency in the state shall provide the parents of a student who
is diagnosed as hearing impaired, deaf, blind, visually impaired, or deafblind
with information about the educational programs offered by the New Mexico
school for the deaf (NMSD) or New Mexico school for the blind and visually
impaired (NMSBVI) prior to and at each IEP. NMSD and NMSBVI shall provide LEAs
relevant information as described in this paragraph. At the parent's or public
agency's request, NMSD, NMSBVI, or both shall be invited to the IEP meeting so
that the full continuum of services is represented at the IEP meeting pursuant
to 34 CFR Secs.
300.115 and
300.321(a)(6).
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 shall be provided in the least restrictive environment that is
appropriate to each child's needs in compliance with
34 CFR Secs.
300.114 through
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, shall 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 34 CRF 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 34 CFR Secs.
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 public 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 public agency and
that, if there is evidence that a public agency makes placements that are
inconsistent with Sec. 300.114, the department shall 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 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 shall 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 kindergarten through grade three shall
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 shall 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 shall 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 rules.
(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 through
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 shall 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) and
300.324(c).
(a) Graduation plans shall 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 shall be identified in the IEP.
(b) Graduation options for children with
disabilities at Paragraph (13) of Subsection J of
6.29.1.9 NMAC shall align with
state standards with benchmarks when appropriate. In accordance with Paragraph
(13) of Subsection J of
6.29.1.9 NMAC, alternative programs
of study to obtain a diploma may be utilized when appropriate.
(c) An alternative degree that does not fully
align with the state's academic standards, such as a certificate high school
equivalency credential, or diploma obtained through the modified and ability
programs of study, does not end a child's right to FAPE pursuant to
34 CFR Sec.
300.102(a)(3)(ii).
(d) Prior to the student's receipt of a
conditional certificate of transition or graduation with a diploma obtained
through the modified or ability programs of study, a public agency must issue a
prior written notice indicating that the student continues to be entitled to
receive FAPE until either student meets the requirements to obtain a diploma
through the standard program of study or until the end of the academic year in
which the student becomes 22 years of age.
(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) and
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 shall 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 shall
include:
(a) appropriate measurable
post-secondary 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 shall 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 high school diploma
obtained through the standard program of study or due to reaching the child's
twenty-second birthday, the public agency shall 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 shall 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 shall provide FAPE to the child. The IEP shall
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 shall provide the child with FAPE. The IEP shall 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 shall 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 shall 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
shall 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 shall 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 shall 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 shall 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 shall 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 of
6.31.2.11 NMAC 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 E 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 inviting the public agency that
has primary responsibility for serving the child to participate in the IEP
process, 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 public agency and, if
appropriate, the parent.
K. Children at the New Mexico School for the Deaf (NMSD).
(1) NMSD is a state educational
agency established to provide educational services to persons who are 21 years
of age or younger on the first day of school, who are deaf or hard of hearing,
and who may have one or more other disabilities. The school serves as a special
school on the continuum of placement options. The school serves students who
require specialized or intensive educational services or services related to
hearing impairment or deafness. NMSD provides a variety of services to the
students and school districts around the state, including outreach,
consultation, and training services. NMSD also provides comprehensive services
on a day or residential basis. The comprehensive day and residential programs
are not intended to serve students whose needs are appropriately addressed in a
group home or hospital setting or in a residential treatment
facility.
(2) To be eligible to
receive free services from NMSD, a student shall be deaf or hearing impaired as
determined by an audiological evaluation and be a resident of New
Mexico.
(3) The student's resident
school district shall conduct child find, pursuant to
34 CFR Sec.
300.111 and Subsection A of
6.31.2.10 NMAC.
(4) In addition to the requirements of
identification, evaluations, and eligibility determinations of students with
disabilities pursuant to
6.31.2.10 NMAC and
34 CFR Secs.
300.100 through
300.230 and
300.300 through
300.328, if a student's resident
school district finds, has reason to know, or receives documentation that a
student is deaf, has a hearing impairment, or is deafblind, the following
criteria shall apply
(a) the resident school
district shall convene the initial IEP team meeting;
(b) the IEP team shall include members
specified in Paragraph (11) of Subsection B of
6.31.2.7 NMAC, including staff from
the NMSD if invited by the parent or the resident school district pursuant
34 CFR Sec.
300.321(a)(6);
(c) the resident school district shall
provide the parents of the student with information on the continuum of
alternative placements, including the alternative placements listed in the
definition of special education under
34 CFR Sec.
300.39 (instruction in regular classrooms,
special classes, special schools, home instruction, and instruction in
hospitals and institutions); and supplementary services, such as resource room
or itinerant instruction, to be provided in conjunction with regular class
placement;
(d) in addition to the
requirements of Subsection B of
6.31.2.11 NMAC, the IEP team shall
be tasked with:
(i) determining if the
student has a hearing disability, which impacts the student's ability to access
education, ability to develop language or communication, social emotional
development, and/or overall development; and
(ii) determining the student's placement in
the least restrictive environment, in compliance with
34 CFR Secs.
300.114 through
300.120 and Subsection C of
6.31.2.11 NMAC, which for the
student may be an environment specifically designed for deaf and hard of
hearing children, and whether this is the most appropriate setting in providing
educational services and supports to meet the student's
IEP.
(e) the student's
placement, whether in the resident school district, NMSD, or other educational
entity, is the entity that shall have full responsibility for FAPE and all
services defined in the student's IEP unless the resident school district and
NMSD agree to share services, responsibilities, and costs pursuant to
34 CFR Sec.
300.103; and
(f) the composition of the IEP team after a
student's placement and service determinations shall:
(i) include a representative from the
resident school district at the request of the parent, NMSD, or the resident
school district if the final placement for the student is at NMSD;
and
(ii) include a representative
from NMSD at the request of the parent, the resident school district, or NMSD
if the final placement for the student is at the resident school district or
other educational entity.
L. Children at the New Mexico school for the blind and visually impaired (NMSBVI).
(1)
NMSBVI is a state educational agency established to provide educational
services for students who are 21 years of age or younger on the first day of
school and who have a diagnosed visual impairment and who may have one or more
other disabilities. The school serves as a special school on the continuum of
placement options. The school serves students who require specialized or
intensive educational services or services related to the visual impairment or
blindness and those who need extensive training related to the expanded core
curriculum for blind and visually impaired students. NMSBVI provides a variety
of services to the students and school districts around the state, including
outreach, consultation, and training services. NMSBVI also provides
comprehensive services on a day or residential basis. The comprehensive day and
residential programs are not intended to serve students whose needs are
appropriately addressed in a group home or hospital setting or in a residential
treatment facility.
(2) To be
eligible to receive free services from the NMSBVI, a student shall have a
visual impairment or blindness as determined by a medical eye exam and be a
resident of New Mexico.
(3) The
student's resident school district shall conduct child find, pursuant to
34 CFR Sec.
300.111 and Subsection A of
6.31.2.10 NMAC.
(4) In addition to the requirements of
identification, evaluations, and eligibility determinations of students with
disabilities pursuant to
6.31.2.10 NMAC and
34 CFR Secs.
300.100 through
300.230 and
300.300 through
300.328, if a student's resident
school district finds, has reason to know, or receives documentation that a
student is blind, has a visual impairment, or is deafblind, the following
criteria shall apply:
(a) the resident school
district shall convene the initial IEP team meeting;
(b) the IEP team shall include members
specified in Paragraph (11) of Subsection B of
6.31.2.7 NMAC, including staff from
NMSBVI if invited by the parent or the resident school district pursuant
34 CFR Sec.
300.321(a)(6);
(c) the resident school district shall
provide the parents of the student with information on the continuum of
alternative placements, including the alternative placements listed in the
definition of special education under
34 CFR Sec.
300.39 (instruction in regular classrooms,
special classes, special schools, home instruction, and instruction in
hospitals and institutions); and supplementary services, such as resource room
or itinerant instruction, to be provided in conjunction with regular class
placement;
(d) in addition to the
requirements of Subsection B of
6.31.2.11 NMAC, the IEP team shall
be tasked with:
(i) determining if the
student has a visual disability, which impacts the student's ability to access
education, ability to develop language or communication, social emotional
development, and/or overall development; and
(ii) determining the student's placement in
the least restrictive environment, in compliance with
34 CFR Secs.
300.114 through
300.120 and Subsection C of
6.31.2.11 NMAC, which for the
student may be an environment specifically designed for blind or visually
impaired children, and whether this is the most appropriate setting in
providing educational services and supports to meet the student's
IEP.
(e) the student's
placement, whether in the resident school district, NMSBVI, or other
educational entity, is the entity that shall have full responsibility for FAPE
and all services defined in the student's IEP unless the resident school
district and NMSBVI agree to share services, responsibilities, and costs
pursuant to 34 CFR Sec.
300.103; and
(f) the composition of the IEP team after a
student's placement and service determinations shall:
(i) include a representative from the
resident school district at the request of the parent, NMSBVI, or the resident
school district if the final placement for the student is at NMSBVI;
and
(ii) include a representative
from NMSBVI at the request of the parent, the resident school district, or
NMSBVI if the final placement for the student is at the resident school
district or other educational entity.
M. 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 shall 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 shall take reasonable steps to
obtain needed educational records from a child's last known school or
educational facility within two business days, as required under Section
22-13-33 NMSA 1978, of the child
arriving at the juvenile or correctional facility. Record requests and
transfers are subject to the rules 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 FERPA.
(a)
The previous public agency in which the child was enrolled shall 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, school districts shall provide summer
emergency contact information of a person who has access to special education
records, to the state's directors in the 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 public agencies, the child or
the parents within the required two business days, as required under Section
22-13-33 NMSA 1978, 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
public 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
rights under IDEA 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 shall be provided learning opportunities
and instruction that meet the state standards with benchmarks.
N. 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, and mental health institutions, that include other 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 shall 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 shall 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 shall 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 shall
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 shall 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 shall 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 shall 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 shall 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 shall 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 public 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 school district shall 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 shall
notify the SED of the department in writing no later than 30 days after the
receiving school district receives notice of the placement. The notice, as
described on the department's website, shall 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 SED. The receiving school district shall provide a copy of the notice to
the school district identified as the student's resident school
district.
(b) The school district
identified as the student's resident school district may provide any additional
information it deems relevant. Such additional information shall be provided no
later than 15 days after the resident school 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 SED 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 SED may extend the 60
day timeline for good cause.
(7) The department shall 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 Subsection H of Section
22-2-2 NMSA
1978.
Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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