New Mexico Administrative Code
Title 6 - PRIMARY AND SECONDARY EDUCATION
Chapter 31 - SPECIAL EDUCATION
Part 2 - CHILDREN WITH DISABILITIES/GIFTED CHILDREN
Section 6.31.2.13 - ADDITIONAL RIGHTS OF PARENTS, STUDENTS, AND PUBLIC AGENCIES
Universal Citation: 6 NM Admin Code 6.31.2.13
Current through Register Vol. 35, No. 18, September 24, 2024
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 through 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 through 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), 300.501(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 shall 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 public 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 shall be given to the parents, only one time a school year, except
that a copy shall 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 through
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
shall 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 shall 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 shall 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 shall 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 shall 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 shall be in writing. After
providing prior written notice in accordance with
34 CFR Sec.
300.503, the public agency shall 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 public agency serves and to deal
constructively with disagreements. 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 division (SED) 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 SED will honor a request for mediation that:
(i) is in writing;
(ii) is submitted to the SED;
(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 SED's decision and further guidance, as
appropriate.
(c) Formal
dispute resolution.
(i) A state-level
complaint may be filed with the SED 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 shall 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, Section
44-7B-1 et seq. NMSA 1978, does
not apply to mediations conducted under 6.31.2
NMAC.
H. State complaint procedures.
(1) Scope and
dissemination.
(a) 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
rules governing programs for children with disabilities under IDEA.
(b) The SED shall disseminate information
regarding state complaint procedures to parents and other interested
individuals and organizations, as identified by the SED, including parent
centers, information centers, advocacy agencies, independent living centers,
and other appropriate entities throughout the state.
(i) The SED shall place documents regarding
state complaint procedures in English and Spanish, including state complaint
forms, in an easily accessible location on the SED website.
(ii) The SED shall, on a yearly basis, send
an email to the organizations and individuals identified in Subparagraph (b) of
Paragraph (1) of Subsection H of
6.31.2.13 NMAC providing
information regarding state complaint procedures and encouraging these
organizations and individuals to post a link to the SED website on their
website.
(iii) Upon request by any
individual or organization, the SED shall provide the information regarding
state complaint procedures, as posted on the SED's website, in print or
electronic form.
(2) Requirements for complaints.
(a) The SED 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
shall:
(i) be in writing;
(ii) be submitted to the SED (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 rules;
(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 SED's decision and further guidance, as
appropriate.
(b) If the
complaint alleges violations with respect to a specific child, the complaint
shall include the information required by
34 CFR
300.153(b)(4).
(c) The party filing the complaint shall
forward a copy of the complaint to the public agency serving the child at the
same time the party files the complaint with the SED of the
department.
(d) Pursuant to
34 CFR Sec.
300.153(c), the complaint
shall allege a violation that occurred not more than one year before the date
the complaint is received by the SED 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 shall (and the parent may) notify the SED of the
department in writing within one 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 SED, unless a brief extension is granted by the SED based on
exceptional circumstances. Each session in the FIEP or mediation process shall
be scheduled in a timely manner and shall 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 shall be confidential and may not be used as evidence in any
subsequent due process hearings or civil proceedings.
(ii) Any mediated agreement shall 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 shall also be signed by both
the parent and a representative of the public agency who has the authority to
bind such public 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 shall 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
seven 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
shall be scheduled in a timely manner and shall 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, which are pursuant to
34 CFR Sec.
300.152(c).
(a) The SED 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 SED 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 SED shall 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 SED 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, the SED 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 SED;
(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 law or rule.
(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 SED and
mailed to the parties within 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 rules, 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 rules. The department shall retain
jurisdiction over the issue of noncompliance with the law or rules 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
rule; 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 law or rule.
(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 people appointed pursuant to this paragraph and
mailed to the parties within 60 days of receipt of the written complaint. The
person or people 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 SED 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 rules. If any federal law or rule governing any
federal program subject to this rule 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
SED shall set forth the procedures applicable to that
complaint.
I. Due process hearings.
(1) Scope. Subsection I of
6.31.2.13 NMAC establishes
procedures governing impartial due process hearings for requests for due
process in IDEA cases governed by
34 CFR Secs.
300.506 through
300.518 and
300.530 through
300.532.
(2) 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.
(3) 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 through
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.
(4) 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 SED 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 SED 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 shall 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 shall 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.
(5) 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 Item (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, 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 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, 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 five 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.
(6) Duties of the SED of the department. Upon
receipt of a written request for due process, the SED 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 SED 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 SED 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 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);
and
(f) following the
decision, the SED 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.
(7) 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, 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 public 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 cannot 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 public agency who has the authority to bind that public
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 shall 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 shall (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 SED, unless, upon joint request by the parties, an extension is
granted by the hearing officer. Each session in the FIEP or mediation process
shall be scheduled in a timely manner and shall 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 SED (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.
(ii) If the parties agree to convene a FIEP
meeting or mediation, the public agency shall contact the person or entity
identified by the SED 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 SED that the matter has
been resolved and withdraw the request for hearing. The hearing officer shall
transmit an appropriate order of dismissal to the parties and the
SED.
(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 SED 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 Secs. 300.510(b) and
300.510(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.
(8)
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 the hearing officer 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 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 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.
(9) 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 five 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;
(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 SED 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 time frame 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 SED; 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.
(10) 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.
(11) 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;
(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, 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 shall be exchanged; the hearing officer shall further inform the
parties that, not less than five 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 (25) of this
subsection;
(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 SED 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.
(12)
Each hearing involving oral arguments shall be conducted at a time and place
that is reasonably convenient to the parents and child involved.
(13) 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.
(14) 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.
(15) 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.
(16) The record of the hearing and the
findings of fact and decisions shall be provided at no cost to the
parents.
(17) 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 public agency shall request an
impartial due process hearing within two years of the date that the parent or
public 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 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.
(18) 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 SED 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 SED, 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, 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. 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 the hearing officer 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.
(19) Decision of the hearing officer.
(a) In general. Subject to Subparagraph (b)
of Paragraph (20) of Subsection I of
6.31.2.13 NMAC, 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.
(20) Rule of construction. Nothing in this
Subsection I shall be construed to affect the right of a parent to file a
complaint with the SED of the department, as described under Subsection H of
6.31.2.13 NMAC.
(21) 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 only with leave of
the state or federal district court presiding over the civil action.
(22) 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
SED, 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.
(23) Civil action.
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 shall be filed within 30 days of the receipt of the hearing officer's decision by the appealing party.
(24) 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 shall 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 claims based
solely on state law.
(25)
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 shall 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,
shall 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 shall be treated as an agreement between the public
agency and the parents for purposes of Subparagraph (a) of this
paragraph.
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 public 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 rule. 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 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 age 14 or older shall include a discussion of the
rights that will transfer when the child turns age 18 and, as appropriate, a
discussion of the parents' plans for obtaining a guardian before that time. The
IEP of a child who is age 14 or older shall 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
IDEA shall comply with all applicable requirements of
34 CFR Secs.
300.610 through
300.626, and the federal 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
public agency under Part B of 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 public 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 through
300.621 and
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 educational 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 educational agency all educational records the sending
educational agency maintains on a child, including medical, psychological and
other types of diagnostic and service information which the educational 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 Elementary and
Secondary Education Act of 1965 at
20 USC
7221(g), 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
shall 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 shall be destroyed
at the request of the parents or, at their option, the records shall 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, 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
shall notify the parents that the public agency shall retain specific
information for five years to include:
(i)
most recent IEP;
(ii) most recent 2
years of child progress reports or referral form;
(iii) related services reports;
(iv) summary of academic achievement and
functional performance;
(v) parent
communication;
(vi) public agency
community action;
(vii) writing
sample; and
(viii) staff reports on
behavior.
(c) Pursuant to
34 CFR Sec.
300.624 and Paragraph (5) of this subsection,
federal rules and department rules require public agencies to inform parents of
proposed destruction of special education records.
(d) Pursuant to
34 CFR Sec.
300.624, the information shall be destroyed
at the request of the parents. However, a permanent record of a child's name,
address, 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 shall 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 shall 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 public
agency destroy information not required indefinitely, the public agency shall
maintain the last IEP and prior written notice that states the parent required
the public agency to destroy allowable information that shall be maintained for
five years; and
(v) the public
agency shall 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 shall 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.
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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