Current through Register Vol. 35, No. 18, September 24, 2024
A. Compliance with applicable laws and rules.
Each New Mexico public agency, within the scope of its authority, shall develop
and implement appropriate policies, procedures, programs, and services to
ensure that all children with disabilities who reside within the public
agency's educational jurisdiction, including children who are enrolled in
private schools or facilities such as residential treatment centers, day
treatment centers, hospitals, mental health institutions, or are schooled at
home, are identified and evaluated and have access to a free appropriate public
education (FAPE) in compliance with all applicable requirements of state and
federal laws and rules. This obligation applies to all New Mexico public
agencies that are responsible under laws, rules, rules, or written agreements
for providing educational services for children with disabilities, regardless
of whether that public agency receives funds under IDEA and regardless of
whether it provides special education and related services directly, by
contract, by referrals to private schools or facilities including residential
treatment centers, day treatment centers, hospitals, mental health
institutions, or through other arrangements.
B. Public agency funding and staffing.
(1) Each public agency that provides special
education or related services to children with disabilities shall allocate
sufficient funds, staff, facilities and equipment to ensure that the
requirements of IDEA and all department rules and standards that apply to
programs for children with disabilities are met.
(2) The public agency with primary
responsibility for ensuring that FAPE is available to a child with a disability
on the date set by the department for a child count or other report shall
include that child in its report for that date. Public agencies with shared or
successive responsibilities for serving a particular child during a single
fiscal year are required to negotiate equitable arrangements through joint
powers agreements or memorandums of understanding or interstate agreements for
sharing the funding and other resources available for that child. Such
agreements shall include provisions with regard to resolving disputes between
the parties to the agreement.
(3)
Placement of students in private residential treatment centers, or other out of
home treatment or habilitation programs, by the IEP team, or by a due process
decision. In no event shall a child with an IEP be allowed to remain in an out
of home treatment or habilitation program for more than 10 days without
receiving special education and related services. The school district in which
the qualified student or school-age person lives, whether in-state or
out-of-state, is responsible for the educational, nonmedical care and room and
board costs of that placement. The sending school shall be responsible for the
provision of special education and related services.
(a) Agreements between the resident school
district of the qualified student or school-age person and a private
residential treatment center shall be on the form posted on the department's
website or on a form otherwise approved by the department and shall be reviewed
and approved by the secretary of public education.
(b) Agreements shall provide for:
(i) student evaluations and
eligibility;
(ii) an educational
program for each qualified student or school-age person that meets state
standards for such programs, except that teachers employed by private schools
are not required to be highly qualified;
(iii) the provision of special education and
related services in conformance with an IEP that meets the requirements of
federal and state law and applicable rules;
(iv) adequate classroom or other physical
space that allows the school district to provide an appropriate
education;
(v) a detailed
description of the costs for the placement; and
(vi) an acknowledgement of the authority of
the local school board and the department to conduct on-site evaluations of
programs and student progress to ensure that state standards are met.
(4) Educational agencies
may seek payment or reimbursement from noneducational agencies or public or
private insurance for services or devices covered by those agencies that are
necessary to ensure FAPE to children with disabilities. Claims for payment or
reimbursement shall be subject to the procedures and limitations established in
34 CFR Secs. 300.154(b) and 300.154(d) through (g), Section
22-13-8
NMSA 1978 and any laws, rules, executive orders, contractual arrangements, or
other requirements governing the noneducational payor's obligations.
(5) Risk pool fund. (Puente para los ninos
fund.)
(a) Local educational agency high cost
fund.
(i) In compliance with 34 CFR Sec.
300.704(c), the department may maintain a risk pool fund to support high cost
children with disabilities identified by LEAs.
(ii) Funds distributed under this program
will be on a reimbursable basis.
(b) Application for funds. LEAs desiring to
be reimbursed for the cost of children with disabilities with high needs shall
file an application in accordance with the department's puente para los ninos
fund as described on the department's website.
(6) Children with disabilities who are
covered by public benefits or insurance. Pursuant to 34 CFR Sec. 300.154(d), a
public agency may use the medicaid or other public benefits or insurance in
which a child participates to provide or pay for services required under
IDEA-Part B rules, as permitted under the public insurance program, except as
provided in Subparagraph (a) of Paragraph (6) of Section B of 6.31.2.9 NMAC.
(a) With regard to services required to
provide FAPE to an eligible child, the public agency:
(i) may not require parents to sign up for or
enroll in public insurance programs in order for their child to receive FAPE
under Part B of IDEA;
(ii) may not
require parents to incur an out-of-pocket expense such as the payment of a
deductible or co-pay amount incurred in filing a claim for services provided
pursuant to IDEA-Part B rules, but pursuant to 34 CFR Sec. 300.154(f)(2), may
pay the cost that the parent otherwise would be required to pay; and
(iii) may not use a child's benefits under a
public benefits or insurance program if that use would:
(A) decrease available lifetime coverage or
any other insured benefit;
(B)
result in the family paying for services that would otherwise be covered by the
public insurance program and that are required for the child outside of the
time the child is in school;
(C)
increase premiums or lead to the discontinuation of benefits or insurance;
or
(D) risk loss of eligibility for
home- and community-based waivers, based on aggregate health-related
expenditures.
(b) Prior to obtaining the parental consent
described in Subparagraph (c) of this paragraph, and prior to accessing the
parent's or child's public benefits, the public agency shall provide written
notice to the child's parents, consistent with 34 CFR Sec. 300.503(c). The
written notice shall be provided annually thereafter.
(i) The notice shall include a statement of
the parental consent provisions in 34 CFR Secs. 99.30 and 300.622 and shall
specify:
(A) the personally identifiable
information that may be disclosed (e.g., records or information about the
services that may be provided to the child;
(B) the purpose of the disclosure (e.g.,
billing for services under 34 CFR Part 300;
(C) the public agency to which the disclosure
may be made (e.g, New Mexico medicaid program); and
(D) that the parent understands and agrees
that the public agency may access the parent's or child's public benefits or
insurance to pay for services under 34 CFR Part 300.
(ii) The notice shall further include:
(A) a statement of the "no cost" provisions
in 34 CFR Secs. 300.154(d)(2)(i) through 300.154(d)(2)(iii);
(B) a statement that the parents have the
right under 34 CFR Parts 99 and 300 to withdraw their consent to disclosure of
their child's personally identifiable information to the New Mexico medicaid
program at any time; and
(C) a
statement that the withdrawal of consent or refusal to provide consent under 34
CFR Parts 99 and 300 to disclose personally identifiable information to the New
Mexico medicaid program does not relieve the public agency of its
responsibility to ensure that all required services are provided at no cost to
the parents.
(c) Prior to accessing a child's or parent's
public benefits or insurance for the first time, and after providing notice to
the child's parents consistent with Subparagraph (b) of this paragraph, the
public agency shall obtain written parental consent as defined by 34 CFR Sec.
300.9. The written consent, consistent with the requirements of 34 CFR Sec.
300.154(d)(2)(iv), shall:
(i) meet the
requirements of 34 CFR Secs. 99.30 and 300.622 and shall specify:
(A) the personally identifiable information
that may be disclosed (e.g., records or information about the services that may
be provided to the child;
(B) the
purpose of the disclosure (e.g., billing for services under 34 CFR Part 300;
(C) the public agency to which the
disclosure may be made (e.g, New Mexico medicaid program); and
(ii) shall specify that the parent
understands and agrees that the public agency may access the parent's or
child's public benefits or insurance to pay for services under 34 CFR Part
300.
(d) The public
agency is not required to obtain a new parental consent if the following
conditions are present:
(i) there is no change
in any of the following:
(A) the type of
services to be provided to the child;
(B) the amount of services to be provided to
the child; or
(C) the cost of the
services to be charged to the public benefits or insurance program;
and
(ii) the public
agency has on file a parental consent meeting the requirements of 34 CFR Secs.
300.9, 99.30, and 300.622.
(e) Once the public agency obtains the
one-time consent consistent with 34 CFR Sec. 300.154(d)(2)(iv), the public
agency is not required to obtain parental consent before it accesses the
child's or parent's public benefits or insurance in the future, regardless of
whether there is a change in the type or amount of services to be provided to
the child or a change in the cost of the services to be charged to the public
benefits or insurance program.
(f)
If a child transfers to a new public agency, the new public agency shall
provide the written notification described in 34 CFR Sec. 300.154(d)(2)(v) and
Subparagraph (b) of this paragraph, and shall then obtain parental consent
meeting the requirements of 34 CFR Sec. 300.154(d)(2)(iv).
(7) Children with disabilities who are
covered by private insurance benefits. Pursuant to 34 CFR Sec. 300.154(e), an
educational agency shall obtain a parent's informed written consent for each
proposed use of private insurance benefits and shall inform parents that their
refusal to permit the use of their private insurance will not relieve the
educational agency of its responsibility to ensure that all required services
are provided at no cost to the parents. The public agency may not require
parents to incur an out-of-pocket expense such as the payment of a deductible
or co-pay amount incurred in filing a claim for services provided pursuant to
IDEA-Part B rules.
(8) Pursuant to
34 CFR Sec. 300.154(f):
(a) if a public agency
is unable to obtain parental consent to use the parent's private insurance, or
public benefits or insurance when the parent would incur a cost for a specified
service required under IDEA-Part B rules, to ensure FAPE the public agency may
use its Part B funds to pay for the service; and
(b) to avoid financial cost to parents who
otherwise would consent to use private insurance, or public benefits or
insurance if the parent would incur a cost, the public agency may use its Part
B funds to pay the cost the parents otherwise would have to pay to use the
parent's insurance (e.g., the deductible or co-pay amounts).
(9) Staff training and
qualifications.
(a) Each public agency is
responsible for ensuring that personnel serving children with disabilities are
qualified under state licensure requirements and are adequately prepared for
their assigned responsibilities, pursuant to 34 CFR Sec. 300.156.
Paraprofessionals and assistants who are appropriately trained and supervised
in accordance with applicable department licensure rules or written department
policy may be used to assist in the provision of special education and related
services to children with disabilities under Part B of IDEA.
(b) Each public agency and charter school
shall train their school administrators and teachers who teach reading to
implement appropriate research-based reading interventions prior to referring
the student for a special education evaluation and shall train their special
education teachers to provide appropriate specialized reading instruction for
students with dyslexia who have been identified as eligible for special
education services.
C. IDEA applications and assurances. Each New
Mexico public agency that desires to receive IDEA flow-through funds shall file
an annual application with the department in the form prescribed by the
department. Each application shall:
(1)
provide all information requested by the department;
(2) demonstrate to the department's
satisfaction that the public agency is in compliance with all applicable
requirements of 34 CFR Secs. 300.200 through 300.230 and these or other
department rules and standards;
(3)
include an agreement that the public agency upon request will provide any
further information the department requires to determine the public agency's
initial or continued compliance with all applicable requirements;
(4) include assurances satisfactory to the
department that the public agency does and will continue to operate its
programs in compliance with all applicable federal and state programmatic,
fiscal and procedural requirements including the development of joint powers
agreements, memoranda of understanding or other interagency agreements to
address shared or successive responsibilities to meet the educational needs of
a particular child during a single fiscal year; and
(5) pursuant to Subsection C of Section
22-8-11
NMSA 1978, the department shall not approve and certify an operating budget of
any school district or state-chartered charter school that fails to demonstrate
that parental involvement in the process was solicited.
D. Early intervening services set aside
funds. Fifteen percent set aside.
(1) Pursuant
to 34 CFR Secs. 300.208(a)(2) and 300.226, LEAs may use up to fifteen percent
of the amount the LEA receives under Part B of IDEA to implement early
intervening services for children with or without disabilities in kindergarten
through grade 12 with particular emphasis on children in kindergarten through
grade three.
(2) Prior to the
implementation or use of these set aside funds, the LEA shall have on record
with the department an approved plan for use of these funds as described by 34
CFR Sec. 300.226(b) and how such activities will be coordinated with regional
education cooperatives as described in 34 CFR Sec. 300.226(e), if
applicable.
(3) The LEA plan for
use of set aside funds shall be submitted as an addendum to its annual
application for Part B funding. If the LEA determines to implement a set aside
plan after the initial application, a request for implementation of a set aside
plan shall be submitted for approval 60 days before the implementation of the
plan.
(4) Each LEA that develops
and maintains coordinated, early intervening services shall report annually to
the department as provided in 34 CFR Sec. 300.226(d).
E. Significant disproportionality.
(1) Pursuant to CFR 34 Sec. 300.646, LEAs
shall provide for the collection and examination of data to determine if
significant disproportionality, based on race and ethnicity, is occurring with
respect to:
(a) the identification of children
as children with disabilities including the identification of children as
children with disabilities in accordance with a particular impairment as
defined by 34 CFR Sec. 300.8;
(b)
the placement in particular educational settings of these children;
and
(c) the incidence, duration,
and type of disciplinary actions, including suspensions and
expulsions.
(2) Each
public agency shall reserve the fifteen percent early intervening funds if they
are identified for having data that is significantly disproportionate in any
one of the following categories:
(a)
suspension of students with disabilities;
(b) over identification of students with
disabilities;
(c) over
identification of students in accordance with a particular impairment as
defined by 34 CFR Sec. 300.8; and
(d) placement of students with disabilities
in a particular setting.
(3) Review and revision of policies,
practices, and procedures. In the case of a determination of significant
disproportionality with respect to the identification of children as children
with disabilities or the placement in particular educational settings of these
children, in accordance with Paragraph (1) of this subsection, the LEA shall:
(a) provide for the review and, if
appropriate, revision of the policies, procedures, and practices used in the
identification or placement to ensure that the policies, procedures, and
practices comply with the requirements of IDEA; and
(b) require any LEA identified under
Paragraph (1) of this subsection to reserve the maximum amount of funds under
34 CFR Sec. 300.226 to provide comprehensive coordinated early intervening
services to serve children in the LEA, particularly, but not exclusively,
children in those groups that were significantly over-identified under
Paragraph (1) of this subsection; and
(c) require the LEA to publicly report on the
revision of policies, practices, and procedures described under Subparagraph
(b) of this paragraph.
F. Annual determinations. Each local
educational agency and other public agencies when applicable shall be assigned
an annual determination. The determinations shall be consistent with those
provided in 34 CFR Sec. 300.603(b) based on the local educational agency's
performance on the targets established in the department's state performance
plan.
(1) For determinations of needs
intervention and needs substantial intervention, the local educational agency
may request an opportunity for an informal hearing. The request for hearing
shall be made in writing to the secretary of public education within 30 days of
the date of the determination.
(2)
The hearing will afford the local educational agency the opportunity to
demonstrate why the department should not make the determination of needs
intervention or needs substantial intervention. The hearing shall be conducted
by the secretary or the secretary's designee. Formal rules of evidence shall
not apply to the hearing.
G. Notification of public agency in case of
ineligibility. Pursuant to 34 CFR Sec. 300.221, if the department determines
that a public agency is not eligible under Part B of IDEA, the department shall
notify the affected public agency of that determination and provide the public
agency with reasonable notice and an opportunity for a hearing under 34 CFR
Sec. 76.401(d).
H. Withholding of
funds for noncompliance. Pursuant to 34 CFR Sec. 300.222, if the department,
after reasonable notice and an opportunity for a hearing under 34 CFR Sec.
76.401(d), finds that a public agency that has previously been determined to be
eligible is failing to comply with any requirement described in 34 CFR Secs.
300.201 through 300.213 and 300.608, the department shall reduce or may not
provide any further Part B payments to the public agency until the department
is satisfied that the public agency is in compliance with that
requirement.
I. Reallocation of
funds. If a new LEA is created, the base payment portion of IDEA subgrant of
the LEA that would have served children with disabilities now being served by
the new LEA will be adjusted pursuant to 34 CFR Sec. 300.705(b)(2). IDEA funds
to new charter schools that are LEAs will be allocated pursuant to 34 CFR Secs.
76.785 through 76.799 and 300.705(b). Pursuant to 34 CFR Sec. 300.705(c), if
the department determines that a public agency is adequately providing FAPE to
all children with disabilities residing in the area served by that public
agency with state and local funds, the department may reallocate any portion of
the funds under this part that are not needed by that public agency to provide
FAPE to other LEAs in the state that are not adequately providing special
education and related services to all children with disabilities residing in
the areas served by those other LEAs or the department may also retain those
funds for use at the state level as provided by 34 CFR Sec.
300.705(c).
J. Prohibition on
mandatory medication. Each LEA and other public agencies serving students with
disabilities are prohibited from requiring parents to obtain a prescription for
substances identified under schedules I, II, III, IV, or V in section 202(c) of
the federal Controlled Substances Act (21 USC
812(c)) for a student as a
condition of attending school, receiving an evaluation under 34 CFR Secs.
300.300 through 300.311, or receiving services under Part B of IDEA. This
prohibition shall be construed as provided in 34 CFR Sec. 300.174(b).
