New Mexico Administrative Code
Title 6 - PRIMARY AND SECONDARY EDUCATION
Chapter 31 - SPECIAL EDUCATION
Part 2 - CHILDREN WITH DISABILITIES/GIFTED CHILDREN
Section 6.31.2.7 - DEFINITIONS
Universal Citation: 6 NM Admin Code 6.31.2.7
Current through Register Vol. 35, No. 18, September 24, 2024
A. Terms defined by federal laws and rules. All terms defined in the following federal laws and rules and any other federally defined terms that are incorporated there by reference are incorporated here for purposes of these rules.
(1) The federal Individuals with Disabilities
Education Improvement Act of 2004 (IDEA),
20 USC Sec.
1400 et seq.
(2) The IDEA rules, 34 CFR Parts 300 and
301.
(3) Pursuant to the paperwork
reduction provisions of IDEA,
20 USC Sec.
1408, all definitions, with the exception of
those found in Subsection B of
6.31.2.7 NMAC, contained in IDEA
Parts 300 and 301 at 34 CFR
Secs. 300.1 through
300.45, will be adopted by
reference.
B. The following terms shall have the following meanings for purposes of these rules.
(1)
"CFR" means the code of
federal regulations, including future amendments.
(2)
"Child with a disability"
means a child who meets all requirements of
34 CFR Sec.
300.8 and:
(a) is age three through 21 or who will turn
age three at any time during the school year;
(b) has been evaluated in accordance with
34 CFR Secs.
300.304 through
300.311 and any additional
requirements of these or other department rules and standards and as having one
or more of the disabilities specified in
34 CFR Sec.
300.8 including an intellectual disability; a
hearing impairment, including deafness, speech or language impairment; a visual
impairment, including blindness; emotional disturbance; orthopedic impairment;
autism; traumatic brain injury; other health impairment; a specific learning
disability; deaf-blindness; or being developmentally delayed as defined in
Paragraph (4) of Subsection B of
6.31.2.7 NMAC; and who has not
received a high school diploma; and
(c) at the discretion of each local
educational agency and subject to the additional requirements of Paragraph (2)
of Subsection F of
6.31.2.10 NMAC, may include a child
age three through nine who is evaluated as being developmentally delayed and
who, because of that condition, needs special education and related
services.
(3)
"Developmentally delayed" means a child age three through nine or
who will turn age three at any time during the school year with documented
delays in development which are at least two standard deviations below the mean
on a standardized test instrument or thirty percent below chronological age and
who in the professional judgment of the IEP team and one or more qualified
evaluators needs special education and related services in at least one of the
following areas: communication development, cognitive development, physical
development, social or emotional development, or adaptive development. Use of
the developmentally delayed option by individual local educational agencies is
subject to the further requirements of Paragraph (2) of Subsection F of
6.31.2.10 NMAC. Local educational
agencies shall use appropriate diagnostic instruments and procedures to ensure
that the child qualifies as a child with a developmental delay in accordance
with the definition in this paragraph.
(4)
"Dual discrepancy" means the
child does not achieve adequately for the child's age or to meet grade-level
standards established in New Mexico standards for excellence, 6.29.1 through
6.29.17 NMAC; and
(a) does not make
sufficient progress to meet age or grade-level standards; or
(b) exhibits a pattern of strengths and
weaknesses in performance, achievement, or both, relative to age, grade level
standards, or intellectual development.
(5) "Dyslexia" means a condition
of neurological origin that is characterized by difficulty with accurate or
fluent word recognition and by poor spelling and decoding abilities, which
characteristics typically result from a deficit in the phonological component
of language that is often unexpected in relation to other cognitive abilities
and the provision of effective classroom instruction and may result in problems
in reading comprehension and reduced reading experience that may impede the
growth of vocabulary and background knowledge.
(6) The "educational
jurisdiction" of a public agency includes the geographic area, age
range, and all facilities including residential treatment centers, day
treatment centers, hospitals, mental health institutions, juvenile justice
facilities, state supported schools, or programs within which the public agency
is obligated under state laws, rules, or by enforceable agreements including
joint powers agreements (JPAs) or memoranda of understanding (MOUs) to provide
educational services for children with disabilities. In situations such as
transitions, transfers, and special placements, the educational jurisdiction of
two or more public agencies may overlap and result in a shared obligation to
ensure that a particular child receives all the services to which the child is
entitled.
(7) A "free
appropriate public education" or "FAPE" means special
education and related services which meet all requirements of
34 CFR Sec.
300.17 and which, pursuant to
34 CFR Sec.
300.17(b), meet all
applicable department rules and standards, including but not limited to these
rules; the New Mexico standards for excellence; and department rules governing
school personnel preparation, licensure, and performance; student rights and
responsibilities; and student transportation.
(8) The "general education
curriculum," pursuant to
34 CFR Sec.
300.320, means the same curriculum that a
public agency offers for nondisabled children. For New Mexico public agencies
whose non-special education programs are subject to department rules, the
general curriculum includes the content standards, benchmarks, and all other
applicable requirements of the New Mexico standards for excellence and any
other department rules defining curricular requirements.
(9)
"LEA" means a local
educational agency as defined in
34 CFR Sec.
300.28.
(10)
"Individualized education
program" or "IEP" means a written statement for a child
with a disability that is developed, reviewed, and revised in accordance with
34 CFR Secs.
300.320 through
300.324.
(11)
"IEP team" means, pursuant
to 34 CFR Sec.
300.321, the public agency shall ensure that
the IEP team for each child with a disability includes:
(a) the parents of the child;
(b) not less than one regular education
teacher of the child (if the child is, or may be, participating in the regular
education environment);
(c) not
less than one special education teacher of the child, or where appropriate, not
less than one special education provider of the child;
(d) a representative of the public agency
who:
(i) is qualified to provide, or supervise
the provision of, specially designed instruction to meet the unique needs of
children with disabilities;
(ii) is
knowledgeable about the general education curriculum; and
(iii) is knowledgeable about the availability
of resources of the public agency;
(e) an individual who can interpret the
instructional implications of evaluation results, who may be a member of the
team described in Subparagraphs (b) through (e) of Paragraph (11) of Subsection
B of 6.31.2.7 NMAC;
(f) at the discretion of the parent or public
agency, other individuals who have knowledge or special expertise regarding the
child, including related services personnel as appropriate; and
(g) whenever appropriate, the child with a
disability.
(12)
"Individuals with Disabilities Education Improvement Act" or
"IDEA" means the federal Individuals with Disabilities Education
Improvement Act of 2004, 20
USC Secs. 1401 et seq., including future
amendments.
(13)
"NMAC" means the New Mexico administrative code, including future
amendments.
(14)
"NMSA
1978" means the 1978 compilation of New Mexico statutes annotated,
including future amendments.
(15)
"Parent" includes, in addition to the persons specified in
34 CFR Sec.
300.30, a child with a disability who has
reached age 18 and for whom there is no court-appointed general guardian,
limited guardian, or other court-appointed person who has legal custody or has
otherwise been authorized by a court to make educational decisions on the
child's behalf as provided in Subsection K of
6.31.2.13 NMAC. Pursuant to
34 CFR Sec.
300.519 and department policy, a foster
parent of a child with a disability may act as a parent under Part B of IDEA
if:
(i) the foster parent or the state
children, youth, and families department (CYFD) provides appropriate
documentation to establish that CYFD has legal custody and has designated the
person in question as the child's foster parent; and
(ii) the foster parent is willing to make the
educational decisions required of parents under IDEA, and has no interest that
would conflict with the interests of the child. A foster parent who does not
qualify under the requirements but who meets all requirements for a surrogate
parent under 34 CFR Sec.
300.519 may be appointed as a surrogate if
the public agency responsible for making the appointment deems such action
appropriate.
(16)
"Public agency" means the state educational agency, local
educational agencies (LEAs), educational services agencies (ESAs), or nonprofit
public charter schools that are not otherwise included as LEAs or ESAs and are
not a school of an LEA or ESA and any other political subdivisions of the state
that are responsible for providing education to children with disabilities
pursuant to 34 CFR Sec.
300.33.
(17)
"Puente para los ninos
fund" means a risk pool fund in New Mexico to support high cost students
with disabilities identified by LEAs pursuant to
34 CFR Sec.
300.704(c)(3)(i).
(18)
"SAT" means the student
assistance team, which is a school-based group of people whose purpose is to
provide additional educational support to students who are experiencing
difficulties that are preventing them from benefiting from general
education.
(19)
"SED"
means the special education division of the department.
(20)
"Special education" means
specially designed instruction, at no cost to the parents, to meet the unique
needs of a child with a disability, including instruction conducted in the
classroom, in the home, in hospitals and institutions, and in other settings;
and instruction in physical education.
(a) As
authorized by 34 CFR Secs.
300.8(a)(2)(ii) and
300.39(a)(2)(i),
"special education" in New Mexico may include speech-language pathology
services.
(b) Speech-language
pathology services shall meet the following standards to be considered special
education:
(i) the service is provided to a
child who has received appropriate tier I universal screening under Subsection
D of 6.29.1.9 NMAC as it may be amended
from time to time, before being properly evaluated under
34 CFR Secs.
300.301 through
300.306 and Subsection E of
6.31.2.10 NMAC;
(ii) the IEP team that makes the eligibility
determination finds that the child has a communication disorder, such as
stuttering, impaired articulation, a language impairment, or a voice
impairment, that adversely affects a child's educational performance;
(iii) the speech language pathology service
consists of specially designed instruction that is provided to enable the child
to have access to the general curriculum and meet the educational standards of
the public agency that apply to all children; and
(iv) the service is provided at no cost to
the parents under a properly developed IEP that meets the requirements of
Subsection B of
6.31.2.11 NMAC.
(c) If all of the standards are met, the
service shall be considered as special education rather than a related
service.
(d) Student/staff
caseloads for special education shall meet the requirements of Paragraphs (1)
and (2) of Subsection H of
6.29.1.9 NMAC.
(21) A"state-supported educational
program" means a publicly-funded program that:
(a) provides special education and related
services to children with disabilities who come within the program's
educational jurisdiction;
(b) is
operated by, or under contractual arrangements for, a state school, state
educational institution, other state institution, state hospital, or state
agency; and
(c) is primarily funded
through direct legislative appropriations or other direct state support to a
public agency other than a local school district.
(22)
"USC" means the United
States code, including future amendments.
C. Definitions related to dispute resolution. The following terms are listed in the order that reflects a continuum of dispute resolution options and shall have the following meanings for the purposes of these rules.
(1)
"Facilitated IEP meeting" or "FIEP meeting" or
"FIEP" means an IEP meeting that utilizes an independent,
state-approved, state-funded, trained facilitator as an IEP facilitator to
assist the IEP team to communicate openly and effectively, in order to resolve
conflicts related to a student's IEP.
(2)
"Mediation" means a meeting
or series of meetings that utilizes an independent, state-approved,
state-funded, trained mediator to assist parties to reconcile disputed matters
related to a student's IEP or other educational, non-IEP-related
issues.
D. The definitions in Subsection D of 6.31.2.7 NMAC apply only to Subsection I of 6.31.2.13 NMAC.
(1)
"Expedited hearing" means a
hearing that is available on request by a parent or a public agency under
34 CFR Sec.
300.532(c) and is subject to
the requirements of 34 CFR
Sec. 300.532(c).
(2)
"Transmit" means to mail,
send by electronic mail (email) or telecopier (facsimile machine), or hand
deliver a written notice or other document and obtain written proof of delivery
by one of the following means:
(a) an email
system's confirmation of a completed transmission to an email address that is
shown to be valid for the individual to whom the transmission was
sent;
(b) a telecopier machine's
confirmation of a completed transmission to a number which is shown to be valid
for the individual to whom the transmission was sent;
(c) a receipt from a commercial or government
carrier showing to whom the article was delivered and the date of
delivery;
(d) a written receipt
signed by the secretary of education or designee showing to whom the article
was hand-delivered and the date delivered; or
(e) a final decision to any party not
represented by counsel for a due process hearing by the U.S. postal service,
certified mail, return receipt requested, showing to whom the articles was
delivered and the date of delivery.
E. The definitions in Subsection E of 6.31.2.7 NMAC apply only to Subsection B of 6.31.2.9 NMAC and Subsection L of 6.31.2.11 NMAC:
(1)
"Qualified student" means,
pursuant to Paragraph (1) of Subsection A of Section
22-13-8 NMSA 1978, a public school
student who:
(a) has not graduated from high
school;
(b) is regularly enrolled
in one-half or more of the minimum course requirements approved by the
department for public school students; and
(c) in terms of age:
(i) is at least five years of age prior to
12:01 a.m. on September 1 of the school year or will be five years of age prior
to 12:01 a.m. on September 1 of the school year if the student is enrolled in a
public school extended-year kindergarten program that begins prior to the start
of the regular school year;
(ii) is
at least three years of age at any time during the school year and is receiving
special education pursuant to rules of the department; or
(iii) has not reached the student's 22nd
birthday on the first day of the school year and is receiving special education
in accordance with federal law.
(2)
"School-age person" means,
pursuant to Paragraph (2) of Subsection A of Section
22-13-8 NMSA 1978, a person who is
not a qualified student but who meets the federal requirements for special
education and who:
(a) will be at least three
years old at any time during the school year;
(b) is not more than 21 years of age;
and
(c) has not received a high
school diploma or its equivalent.
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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