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CENTRAL CONSOLIDATED SCHOOL DISTRICT Exceptional Programs Policies & Procedures

TABLE OF CONTENTS Page 6.5.2.1 ISSUING AGENCY...................................................................................... 3 6.5.2.2 SCOPE ............................ ........................................................................... 3 6.5.2.3 STATUTORY AUTHORITY ......................................................................... 3 6.5.2.4 DURATION................................................................................................... 3 6.5.2.5 EFFECTIVE DATE........................................................................................ 3 6.5.2.6 OBJECTIVE.................................................................................................. 3 6.5.2.7 DEFINITIONS ............................................................................................... 4 A. Terms Defined by Federal Laws and Regulations................................................. 4 B. Additional Definitions.............................................................................................. 5 6.5.2.8 RIGHT TO A FREE APPROPRIATE PUBLIC EDUCATION (FAPE) ........... 7 6.5.2.9 PUBLIC AGENCY RESPONSIBILITIES......................................................... 7 A. General Responsibilities of Public Agencies .......................................................... 7 B. Public Agency Funding and Staffing ...................................................................... 8 6.5.2.10 IDENTIFICATION, EVALUATIONS AND ELIGIBILITY DETERMINATIONS ......... 8 A. Child Find .................................................................................................................. 8 B. General Screening for Student Needs....................................................................... 8 C. Prereferral Interventions............................................................................................. 8 D. Evaluations and Reevaluations .................................................................................... 9 E. Eligibility Determinations............................................................................................... 9 6.5.2.11 EDUCATIONAL SERVICES FOR CHILDREN WITH DISABILITIES................ 10 A. Preschool Programs for Children Aged 3 and 4........................................................... 10 B. Individualized Education Programs (IEPs) ................................................................... 11 C. Least Restrictive Environment....................................................................................... 11 D. Performance Goals and Indicators................................................................................ 12 E. Participation in Statewide and District-wide Assessments ............................................ 12 F. Behavioral Management and Discipline.......................................................................... 12 G. Graduation Planning and Post-Secondary Transitions ................................................. 13 H. Transfers and Other Transitions .................................................................................... 13 I. Children in Charter Schools................................................................................................. 13 J. Children in State-Provided Educational Programs ..........................................................14 K. Children in Detention and Correctional Facilities ..................................................................14 L. Children in Private Schools and Home Schools.................................................................... 15 6.5.2.12 EDUCATIONAL SERVICES FOR GIFTED CHILDREN.............................................. 16 A. Definitions .............................................................................................................................. 16 B. Applicability of Rules to Gifted Children ............................................................................. 17 C. Evaluation Procedures for Gifted Children............................................................................ 17 D. Advisory committees.............................................................................................................. 18 6.5.2.13 ADDITIONAL RIGHTS OF PARENTS, STUDENTS AND PUBLIC AGENCIES.......... 18 A. General Responsibilities of Public Agencies ........................................................................ 18 B. Examination of Records ....................................................................................................... 18 C. Parent Participation in Meetings ........................................................................................... 18 D. Notice Requirements............................................................................................................. 19

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E. Communications in Understandable Language .................................................................19 F. Parental Consent ................................................................................................................ 19 G. Conflict Management and Resolution ................................................................................... 20 H. State Complaint Procedures.......................................................................................... 20 I. Due Process Hearings and Appeals ....................................................................................... 20 J. Surrogate Parents and Foster Parents ............................................................................... 28 K. Transfer of Parental Rights to Students as Age 18................................................................ 28 L. Confidentiality of Information................................................................................................. 28 6.5.2.14 RULES OF CONSTRUCTION ...................................................................................30 A. U.S. Department of Education Interpretations ......................................................... 30 B. Uniform Statute and Rule Construction Act ....................................................................... 30 C. Conflicts with State or Federal Laws or Regulations......................................................... 30 HISTORY OF 6.5.2 NMAC ...................................................................................................... 30 600.600 EXCEPTIONAL PROGRAMS POLICIES AND PROCEDURES 600.601 OBJECTIVE

The purposes of these rules are (a) to ensure that all children with disabilities and gifted children have available a free appropriate public education which includes special education and related services to meet their unique needs; (b) to ensure that the rights of children with disabilities and gifted children and their parents are protected.

The Individuals with Disabilities Education Act (IDEA) at 20 USC 412(a)(11) requires the state educational agency in each participating state to ensure that the requirements of the IDEA and state educational standards are met in all educational programs administered by any state or local educational agency for children with disabilities aged 3 through 21.

600.602 DEFINITIONS

Terms Defined by State and Federal Laws and Regulations

All terms defined in the following federal laws and regulations, any other federally defined terms, and New Mexico State regulations for purposes of 6.5.2 NMAC that are incorporated in CCSD policies:

1. the Individuals with Disabilities Education Act (IDEA), 20 USC Secs. 1401 and

following;

2. the IDEA regulations at 34 CFR Part 300 (governing Part B programs for school-aged children with disabilities), 34 CFR Part 301 (governing programs for preschool children with disabilities) and 34 CFR Part 303 (governing Part C

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programs for infants and toddlers with disabilities). For ease of reference, the following parts of definitions are restated here from 34 CFR Part 300:

3. New Mexico State statutes sections 22-13-5, 22-13-6.1, 22-2-2Y, and

regulations.

Child with a disability (34 CFR 300.7)

Means a child who meets all requirements of 34 CFR Sec. 300.7 and who: has been evaluated in accordance with 34 CFR 300-530-300.536 and any additional requirements of these or other SBE rules and standards as having mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, serious emotional disturbance (hereafter referred to as emotional disturbance), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, multiple disabilities, or developmental delay and who, by reason thereof, needs special education and related services.

1. is aged 3 through 21; 2. has not received a high school diploma or general educational development

(GED) certificate. The terms used in this definition are defined as follows:

1. Autism means a developmental disability significantly affecting verbal and

nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child's education performance is adversely affected primarily because the child has an emotional disturbance. A child who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria of this definition are satisfied.

2. Deaf means a hearing impairment that is so severe that the child is impaired in

processing linguistic information through hearing, with or without amplification, that adversely affects a child's educational performance.

3. Deaf-blind means concomitant hearing and visual impairments, the

combination of which causes such severe communication and other developmental and educational problems that they cannot be accommodated in special education programs solely for deaf or blind children.

4. Developmental delay means a child aged 3 through 9

a. with documented delays in development which are at least two standard deviations or 30 per cent below chronological age, or

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b. who in the professional judgment of the IEP team and one or more qualified evaluators needs special education or related services in at least one of the following five areas: receptive or expressive language, cognitive abilities, gross and/or fine motor functioning, social or emotional development or self help/adaptive functioning and meets the further requirements of 600.606-4

5. Emotional disturbance means a condition exhibiting one or more of the

following characteristics over a long period of time and to a marked degree which adversely affects a child's educational performance: a. an inability to learn which cannot be explained by intellectual, sensory,

or health factors; b. an inability to build or maintain satisfactory interpersonal relationships

with peers and teachers; c. inappropriate types of behavior or feelings under normal circumstances; d. a general pervasive mood of unhappiness or depression; or

e. a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not include children who are socially maladjusted unless it is determined that they have an emotional disturbance.

6. Hearing Impairment means an impairment in hearing, whether

permanent or fluctuating, that adversely affects a child's educational performance but that is not included under the definition of deaf.

7. Intellectually disabled means significantly subaverage general intellectual

function which exists concurrently with deficits in adaptive behavior and is manifested during the developmental period that adversely affects a child's educational performance.

8. Multi-disabled means concomitant impairments, the combination of which

causes such severe educational problems that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include children who are deaf-blind.

9. Orthopedically impaired means a severe orthopedic impairment that

adversely affects a child's educational performance. The term includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).

10. Other health impaired means having limited strength, vitality or alertness,

including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment that is due to chronic or acute health problems such as, asthma, attention deficit disorder,

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or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia, which adversely affect a child's educational performance.

11. Specific learning disabled means a disorder in one or more of the basic

psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to perform mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does not include children who have learning problems which are primarily the result of visual, hearing, or motor disabilities, of intellectual disability, of emotional disturbance, or of environmental, cultural, or economic disadvantage.

12. Speech-language impaired means a communication disorder such as

stuttering, impaired articulation, language impairment, or a voice impairment which adversely affects a child's educational performance.

13. Traumatic brain injured means an injury to the brain caused by an

external physical force or by an internal occurrence such as stroke or aneurysm, resulting in total or partial functional disability or psycho-social maladjustment that adversely affects educational performance. The term includes open or closed head injuries resulting in mild, moderate, or severe impairments in one or more areas, including cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual and motor abilities; psycho-social behavior; physical functions; information processing; and speech. The term does not include brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma.

14. Visually impaired means a visual impairment that, even with correction,

adversely affects a child's educational performance. The term includes both partial sight and blindness.

Consent means that: 1. the parent has been fully informed of all information relevant to the activity

for which consent is sought, in his or her native language, or other mode of communication.

2. The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom.

3. The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.

4. If a parent revokes consent, that revocation is not retroactive.

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Department means the New Mexico State Department of Public Education;

Education records means the type of records covered under the definition in 34 CFR 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974 (FERPA) 1. Records, with some exceptions, that are directly related to a student and 2. are maintained by the District or by a party acting for the District

Free appropriate public education (FERPA) means special education and related services that: 1. Are provided at public expense, under public supervision and direction, and

without charge; 2. Meet the standards of the [state educational agency], including the

requirements of this part; 3. Include preschool, elementary school, or secondary school education in the

State; and 4. Are provided in conformity with an individualized education program (IEP) that

meets the requirements of 300.340-300.350. 5. special education and related services which meet all requirements of 34 CFR

300.13 and which, pursuant to Sec. 300.13(b), meet all applicable State Board of Education rules and standards, including but not limited to these rules (6.5.2 NMAC), the Standards for Excellence (6.3.2 NMAC) and SBE rules governing school personnel preparation, licensure and performance (6.4 NMAC), student rights and responsibilities (6.1.4 NMAC) and student transportation (6.9 NMAC).

Local educational agency (the District) (34 CFR 300.18)

Local educational agency (LEA) means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for a combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools.

Parent (Sec. 300.20)

1. A natural or adoptive parent of a child; 2. A guardian but not the State if the child is a ward of the State; 3. A person acting in the place of a parent (such as a grandparent or stepparent

with whom the child lives, or a person who is legally responsible for the child's welfare); or

4. A surrogate parent who has been appointed in accordance with Sec. 300.515. 5. Parent includes, in addition to the persons specified in 34 CFR Sec. 300.20:

a. a child with a disability who has reached age 18 and for whom there is not a

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court-appointed general or limited guardian; and 6. Pursuant to 34 CFR 300.20(b) and SBE policy, a foster parent may act as a

parent under art B of the IDEA if the foster parent or the State Children, Youth and Families Department (CYFD) provides appropriate documentation to establish the CYFD has legal custody and has designated the person in question as the child's foster parent and the foster parent; a. has an ongoing, long-term parental relationship with the child; b. is willing to make the educational decisions required of parents under the

IDEA; and c. has no interest that would conflict with the interests of the child.

7. A foster parent who does not qualify under the above requirements but who meets all requirements for a surrogate parent under 34 CFR Sec. 300.515 may be appointed as a surrogate if the District deems such action appropriate.

Board means the CCSD Board of Education;

CFR means the Code of Federal Regulations, including future amendments;

Educational jurisdiction includes the geographic area, age range and all facilities or programs within which the agency is obligated under state, rules, regulations or enforceable arrangements to provide educational services for children with disabilities. In situations such as transitions, transfers and special placements, the educational jurisdiction of two or more 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.

General curriculum, pursuant to 34 CFR 347(a), means the same curriculum that the District offers for nondisabled children. The general curriculum includes the content standards, benchmarks and all other applicable requirements of the Standards for Excellence, 6 NMAC 3.2 , and any other SBE rules defining curricular requirements.

IDEA means the federal Individuals With Disabilities Education Act, 20 USC Secs. 1401 and following, including future amendments;

NMAC means the New Mexico Administrative Code

NMSA 1978 means the 1978 Compilation of New Mexico Statutes Annotated

SBE or State Board means the State Board of Education

SDE means the State Department of Public Education;

USC means the United States Code, including future amendments.

600.603 RIGHT TO A FREE APPROPRIATE PUBLIC EDUCATION (FAPE) (6.5.2.8)

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All children with disabilities aged 3 through 21 who reside in the District, including children with disabilities who have been suspended or expelled from school, have the right to a free appropriate public education that is made available by one or more public agencies in compliance with all applicable requirements of 34 CFR Part 300 and SBE rules and standards. Children with disabilities who are enrolled by their parents in private schools or facilities or are schooled at home have the rights provided by 34 CFR 300.400-461.

600.604 GENERAL RESPONSIBILITIES OF THE DISTRICT (6.5.2.9 NMAC)

Compliance with applicable laws and regulations

The District shall develop and implement appropriate policies, procedures, programs, and services to ensure that all children with disabilities who reside within the District's educational jurisdiction, including children who are enrolled in private schools or facilities 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 regulations.

IDEA applications and assurances

The District shall file an annual application to receive IDEA flow-through funds with the Department in the form prescribed by the Department. The application shall: 1. provide all information requested by the Department; 2. demonstrate to the Department's satisfaction that the District is in compliance

with all applicable requirements of 34 CFR 300.180-300.192 and 300.220-300.250 and these or other SBE rules and standards;

3. include an agreement that the District, upon request, will provide any further information the Department requires to determine the district's initial or continued compliance with all applicable requirements; and

4. include assurances satisfactory to the Department that the District does and will continue to operate its programs in compliance with all applicable federal and state programmatic, fiscal and procedural requirements.

Public Agency Funding and Staffing

The District shall allocate sufficient funds, staff, facilities and equipment to ensure that the requirements of the IDEA and other SBE rules and standards that apply to programs for children with disabilities are met.

The District 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 300.221. Paraprofessionals and assistants who are appropriately trained and supervised in accordance with applicable SBE licensure rules or written SDE policy may be used

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to assist in the provision of special education and related services to children with disabilities under Part B of the IDEA. If the District is unable to recruit and hire enough qualified personnel despite ongoing good-faith efforts, application will be made to the Department for authorization to fill positions with the most qualified individuals who are making satisfactory progress toward completing the applicable licensure requirements, pursuant to 34 CFR 300.136(g).

600.606 IDENTIFICATION, EVALUATIONS AND ELIGIBILITY DETERMINATIONS

(6.5.2.10)

Child Find The District has adopted and implemented policies and procedures to ensure that all children with disabilities who reside within the District's educational jurisdiction, including children with disabilities attending private schools or facilities, children who are schooled at home, highly mobile children and children who are advancing from grade to grade, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated in compliance with all applicable requirements of 34 CFR 300.125-126, 300.320, 300.451, 300.530-536 and these or other SBE rules and standards.

1. General Screening for Student Needs

Pursuant to the SBE Standards for Excellence at 6.3.2.9 NMAC, the District conducts general screening as part of its Educational Plan for Student Success (EPSS) to identify student needs in all educational and related areas, including potential needs for special education and related services.

2. Prereferral Interventions

If general screening, a parent request or other information available to the istrict suggests that a particular student may be a child with a disability, the District shall first insure that adequate screening has been completed. It shall then consider, and implement and document such prereferral interventions as a multidisciplinary team believes are appropriate under the circumstances of the individual case to rule out other causes before referring the student for a full special education evaluation. The District will provide for prereferral interventions through a student assistance team or similar process prusuant to the District's Educational Plan for Student Success (EPSS) as required by the SBE Standards for Excellence at 6.3.2.9 NMAC. All such processes shall include provisions for participation by the student's parents and as appropriate, the student.

3. Evaluations and Reevaluations

a. The District will conduct a full and individual initial evaluation at no cost to parents and in compliance with all applicable requirements of 34 CFR 300.532-533 and SBE rules and standards before the initial provision of special education and related services to a child with a disability.

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b. Pursuant to 34 CFR 300.536, a reevaluation of each child in compliance with all applicable requirements of 34 CFR 300.532-535 and applicable SBE rules and standards shall be conducted at least once every three years or more often if conditions warrant or if the child's parent or teacher requests a reevaluation.

c. If the child's primary disability is a speech-language impairment, a complete battery of assessments (e.g., psychological, physical, adaptive behavior) may not be necessary. In such cases, a qualified speech-language pathologist evaluates the child using appropriate procedures and makes referrals for additional assessments deemed necessary to make an appropriate decision regarding delivery of services to the child.

d. The District will maintain a record of the receipt, processing and disposition of any referral for an individualized evaluation or reevaluation. Each evaluation or reevaluation shall be completed within a reasonable time and all appropriate evaluation data, including summary reports from all individuals evaluating the child, shall be reported in writing for presentation to the IEP team.

e. The parents of a child with a disability who disagree with an evaluation obtained by the District have the right to obtain an independent educational evaluation of the child at public expense pursuant to 34 CFR 300.502.

4. Assessment of Culturally and Linguistically Diverse Children

Pursuant to 34 CFR 300.532-534, the District ensures; a. that tests and other evaluation materials used to assess children are

selected, provided and administered so as not to be discriminatory on a racial or cultural basis and are provided and administer in the child's native language or other mode of communication, unless it is clearly not feasible to do so.

b. that materials and procedures used to assess a child with limited English proficiency are selected and administered to insure that they measure the extent to which the child has a disability and needs special education rather than measuring the child's English language skills.

c. Information about a child's language proficiency must be considered in determining how to conduct the evaluation of the child to prevent misclassification. A child may not be determined to be a child with a disability if the determinant factor for that eligibility is limited English proficiency.

d. The District shall devote particular attention to the foregoing requirements in light of the Districts cultural and linguistic diversity. Person assessing culturally or linguistically diverse children shall consult appropriate professional standards to ensure that their evaluations are not impermissibly discriminatory and should include appropriate references to such standards and concerns in their written reports.

4. Eligibility Determinations

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a. Upon completing the administration of tests and other evaluation materials,

a group of qualified professionals and the parent of the child must determine whether the child is a child with a disability, as defined in 34 CFR 300.7 and 6.5.2.7.B(3) NMAC. The determination shall be made in compliance with all applicable requirements of 34 CFR 300.534-535 and SBE rules and standards and, for a child suspected of having a specific learning disability, in compliance with the additional procedures of 300.540-543 and SBE rules and standards.

b. The District must provide a copy of the evaluation report and the documentation of determination of eligibility to the parent.

c. The developmentally delayed classification for children aged 3 through 9 will only be used for children who do not qualify for special education under any other available disability category.

d. The addition of this classification for children aged 5 through 9 shall not affect its continued availability for preschool children with disabilities aged 3 and 4, subject to the diagnostic criteria in 6.5.2.7 NMAC.

e. The use of this classification by will be phased in as follows: 1) For school year 2000-01, any school-aged child ages five, six or seven

who meets the diagnostic criteria is eligible for this classification. 2) For school years 2001-02 and beyond, any school-aged child ages five

through nine who meets the diagnostic criteria is eligible for this classification.

f. Children who are classified as developmentally delayed will be reevaluated during the school year in which they turn 9 and will no longer be eligible in this category when they become 10. A student who does not qualify under any other available category at age 10 will no longer be eligible for special education and related services.

600.607 EDUCATIONAL SERVICES FOR CHILDREN WITH DISABILITIES

(6.5.2.11 NMAC)

1. Preschool Programs for Children Aged 3 and 4

The District ensures that a free appropriate public education is available for each preschool child with a disability within its educational jurisdiction no later than the child's third birthday and that an individualized education program (IEP) is in effect by that date in compliance with 34 CFR 300.121(c), 300.132 and 300.342(c).

The District has developed and implemented appropriate policies and procedures to ensure a smooth and effective transition from program for infants and toddler to programs for preschool children with disabilities within the District's educational jurisdiction, in compliance with 34 CFR Sec. 300.132. The District and other public agencies as appropriate shall make reasonable efforts to establish productive working relations with local Infant and Toddler Programs

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and when given reasonable notice shall participate in transition planning conferences arranged by local Infant and Toddler Program providers. In particular: a. The District surveys Infant and Toddler Programs within its educational

jurisdiction in its child find efforts to identify children who will be eligible to enter the District's preschool program in future years.

b. The District promotes parent and family involvement in transition planning at least six months before the child is eligible to enter the District's preschool program;

c. The District establishes and implements procedures to support successful transitions including parent training, professional development for special educators and general educators, and student and parent self advocacy training and education;

d. The District assists parents in becoming their child's advocates as the child makes the transition through systems;

e. The District participates in transition planning conferences arranged by the Infant and Toddler Program no less than 90 days prior to the anticipated transition or the child's third birthday, whichever occurs first.

f. The District designates a team including parents and qualified professionals to review existing evaluation data for each child entering the District's preschool program in compliance with 34 CFR 300.533, and based on that review to identify what additional data, if any, are needed to determine the child's eligibility or develop an appropriate program.

g. The District will initiate a meeting to develop an eligible child's IEP or no later than 15 days prior to the child's entry into the District's preschool program to ensure uninterrupted services. This IEP will be developed by a team constituted in compliance with 34 CFR 300.344 that includes parents and appropriate early intervention providers who are knowledgeable about the child.

2. Individualized Education Programs (IEP) (34 CFR 300.346

In developing each child's IEP, the team, shall consider: a. The strengths of the child and the concerns of the parents for

enhancing the education of their child; b. The results of the initial or most recent evaluation of the

child; and b. the results of the child's performance on any general State or district-wide

assessment programs, if available. The IEP team also shall also: a. In the case of a child whose behavior impedes his or her learning or that of

others, consider, if appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior. ). IEP teams are strongly encouraged to conduct functional behavioral assessments (FBAs) and integrate behavioral intervention plans (BIPs) into the IEPs for students who exhibit problem behaviors well before the

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behaviors result in proposed disciplinary actions for which FBAs and BIPs are required under the federal regulations.

b. In the case of a child with limited English proficiency, consider the language needs of the child as those needs relate to the child's IEP;

c. In the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;

d. Consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode; and

e. Consider whether the child requires assistive technology devices and services.

If, in considering the special factors described in paragraphs 1-4 above the IEP team determines that a child needs a particular device or service (including an intervention, accommodation, or other program modification) in order for the child to receive FAPE, the IEP team must include a statement to that effect in the child's IEP.

The regular education teacher of a child with a disability, as a member of the IEP team, must, to the extent appropriate, participate in IEP meetings, including assisting in the determination of-- a. Appropriate positive behavioral interventions and strategies b. Supplementary aids and services, program modifications or

supports for school personnel that will be provided for the child, consistent with Sec. 300.347(a)(3).

3. IEP team members (34 CFR 300.344)

The District ensures that the IEP team for each child with a disability includes: a. The parents of the child;

b. At least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment);

c. At least one special education teacher of the child, or if appropriate, at least one special education provider of the child;

d. A representative of the District who: 1) Is qualified to provide, or supervise the provision of, specially designed

instruction to meet the unique needs of children with disabilities; 2) Is knowledgeable about the general curriculum; and 3) Is knowledgeable about the availability of resources of the District;

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e. An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in paragraphs 2,b-d above;

f. At the discretion of the parent or the District, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

g. If appropriate, the child. h. The District shall invite a student with a disability to attend his or her IEP

meeting if a purpose of the meeting will be the consideration of transition services needs the needed transition services or both.

i. If the student does not attend the IEP meeting, the District will take other steps to ensure that the student's preferences and interests are considered.

j. The District shall invite a representative of any other agency that is likely to be responsible for providing or paying for transition services.

k. If an agency invited to send a representative to a meeting does not do so, the District will take other steps to obtain participation of the other agency in the planning of any transition services.

4. Content of the Individual Educational Program shall include:

A statement of the child's present levels of educational performance including:

a. How the child's disability affects involvement and progress in the general curriculum or for preschool children, the child's participation in appropriate activities.

b. A statement of measurable annual goals, including benchmarks or short- Term objectives related to: 1) Meeting the child's need that result from the disability to enable the

child to be involved in and progress in the general curriculum. 2) meeting the child's other educational needs that result from the

disability. c. A statement of the special education and related services and

supplementary aids and services to be provided to the child. or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child to: 1) To advance appropriately toward attaining the annual goals, 2) To be involved and progress in the general curriculum and to participate

in extracurricular and other nonacademic activities, and 3) To be educated and participate with other children with disabilities and

nondisabled children in the activities described above. d. An explanation of the extent, if any, to which the child will not participate

with nondisabled children in the regular class and in the activities described in the above paragraph.

e. A statement of any individual modifications in the administration of State or District-wide assessment of student achievement that are needed in order for the child to participate in the assessment, and

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f. If the IEP team determines that the child will not participate in a particular assessment or part of an assessment, a statement of why that assessment is not appropriate for the child, and how the child will be assessed.

g. The projected date for the beginning of the services and modifications and the anticipated frequency, location, and duration of those services and modifications.

h. A statement of how the child's progress toward the annual goals will be measured and how the child's parent will be regularly informed at least as often as parents are informed of the nondisabled children's progress. Of their child's progress toward the annual goals, and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the school year.

i. Beginning at age 14 (or younger, if determined appropriate by the IEP team), and updated annually, a statement of the transition service needs of the students that focuses on the student's courses of study.

j. Beginning at age 16 (or younger if determined appropriate by the IEP team) a statement of needed transition services, including, if appropriate, a statement of the interagency responsibilities or any needed linkages.

k. If a participating agency, other than the District, fails to provide the transition services described in the IEP, the District will reconvene the IEP team to identify alternative strategies to meet the transition objectives.

5. Assistive technology. (34 CFR 300.308)

The District ensures that assistive technology devices or assistive technology services, or both, as those terms are made available to a child with a disability if required as a part of the child's special education, related services, or supplementary aids and services. The use of school-purchased assistive technology devices in a child's home or in other settings is required if the child's IEP team determines that the child needs access to those devices in order to receive FAPE.

6. Least Restrictive Environment

In compliance with 34 CFR Secs. 300.550-556. all educational placements and services for children with disabilities must be provided in the least restrictive environment that is appropriate to each child's needs except as provided in 34 CFR 300.311(b)-(c) and 6.5.2.11K NMAC for students with disabilities who are convicted as adults under state law and incarcerated in adult prisons, a. The District ensures that to the maximum extent appropriate, children with

disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled, and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the

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use of supplementary aids and services cannot be achieved satisfactorily; in accordance with 34 CFR Sec. 300.550(b)

b. the required continuum of alternative placements as specified in 34 CFR 300.551;

c. Each child with a disability will be educated in the school that he or she would attend if nondisabled unless the child's IEP requires some other arrangement in accordance with 34 CFR Sec. 300.552(b).

d. A child with a disability will not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum in accordance with 34 CFR Sec. 300.552(e).

e. The IEP for each child with a disability includes a statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child to be involved and progress in the general curriculum and to participate in extracurricular and other nonacademic activities with nondisabled children in accordance with 34 CFR Sec. 300.347(a)(3)

f. The requirement of 34 CFR Sec. 300.346(d)(2) that the regular education teacher of a child with a disability, as a member of the IEP team, must assist in determining the supplementary aids and services, program modifications or supports for school personnel that will be provided for the child in compliance with Sec.300.347(a)(3);

g. In accordance with 34 CFR Sec. 300.347(a)(4) the IEP includes an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and the activities described in Sec. 300.347(a)(3);

h. The District will give the parents written notice a reasonable time before the agency proposes or refuses to initiate or change the educational placement of the child or the provision of FAPE to the child and that the notice include a description of any other options considered and the reasons why those options were rejected in accordance with 34 CFR Sec. 300.503 and

4. Performance Goals and Indicators

The content standards and benchmarks from the SBE's Standards for Excellence (6.3.2 NMAC) for all children attending public schools in New Mexico shall provide the basic performance goals and indicators for children with disabilities in the general curriculum. Unless waiver or modifications covering the District's programs have been allowed by the SBE or the Superintendent of Public Instruction, the general curriculum and the content standards and benchmarks shall only be modified to the extent necessary to meet the needs of individual children with disabilities as determined by IEP teams in individual cases.

5. Participation in Statewide and District-wide Assessments

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The District will include children with disabilities in all statewide and district-wide assessment programs, with appropriate accommodations and modifications in administration if necessary. LEAs shall use the current criteria, standards, methods and instruments approved by the Department for accommodations, modifications and alternate assessments for the small number of students for whom alternate assessments are appropriate. Each public agency shall collect and report performance results in compliance with the requirements of 34 CFR Sec. 300.139 and any additional requirements established by the Department.

6. Suspensions, expulsions and disciplinary changes of placement

Suspensions, expulsions and other disciplinary changes of placement for children with disabilities shall be carried out in compliance with all applicable requirements of 34 CFR Secs. 300.519-300.529 and SBE rules and standards, including particularly 6.1.4 .11 NMAC governing interim disciplinary placements and long-term suspensions or expulsions of students with disabilities.

c. FAPE for children removed from current placement for more than 10 school

days in a school year

FAPE shall be provided in compliance with all applicable requirements of 34 CFR Sec.300.121(d) and these or other SBE rules and standards for all children with disabilities who have been subjected to disciplinary removals from their current educational placements during a school year, as defined in 34 CFR Sec. 300.519.

d. Changes of service, program or placement by the IEP team

7. Graduation Planning and Post-Secondary Transitions

a. A graduation plan for each child with a disability shall be developed,

implemented and monitored in compliance with all applicable requirements of Sec. 9.18.9 of the SBE Standards for Excellence, 6.3.2 NMAC, and these or other SBE rules and standards. The graduation plan shall be integrated into the transition planning and services provided in compliance with 34 CFR Secs. 300.347(b) and 300.348.

b. Appropriate post-secondary transition planning for children with disabilities

is essential. The District will integrate transition planning into the IEP process pursuant to 34 CFR 300.347 and .348 and has established and implemented appropriate policies, procedures, programs and services to promote successful post-secondary transition for children with disabilities.

8. Transfers and Other Transitions

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Transfers and transitions from one school, school level or district to another are inherently disruptive for all students, and more so for children with disabilities who need additional services. Accordingly, both sending and receiving schools and district must share the responsibility for minimizing the disruptive effects of transfers and transitions on the educational programs for all children. Sending schools and the District ensure that all needed records, including IEPs, progress reports and supporting information and evaluations, are forwarded promptly within the agency or to another agency upon a proper request by the parents or a receiving school. When feasible, appropriate personnel from both the sending and receiving agencies should have input into the IEP for a child with a disability at the receiving school. In any event, within a reasonable time after a child with a disability enrolls from another school within or outside the District, the receiving school and the District ensure that it: a. obtains all information needed to determine or verify the child's educational

needs pursuant to 34 CFR Sec. 300.533; b. develops a new IEP or reviews and revises or adopts the sending agency's

IEP, as the IEP team deems appropriate and in compliance with all applicable procedural requirements; and implements the resulting IEP.

c. The District will honor an existing IEP for an incoming child with a disability unless a new IEP is promptly reviewed and revised.

9. Extended school year services. (Sec. 300.309)

The District ensures that extended school year services will be provided if a child's IEP team determines, on an individual basis that the services beyond the normal school year are necessary for the to provide FAPE. The District may not:

a. Limit extended school year services to particular categories of disability; or

b. Unilaterally limit the type, amount, or duration of those services..

9. Children in State-Supported Educational Programs

The District ensures that a child with a disability who is placed in or referred to a state-supported public program by the District has all the rights of a child with a disability who is served by the District, including being provided special education and related services in conformance with an IEP, at no cost to the child's parents, and at a school or facility that is accredited by the New Mexico State Board of Education and/or licensed by the New Mexico Department of Health. a. When an IEP team determines that the District is unable to meet the needs

of a child with a disability as identified in the child's IEP, and wit proper prior notice to the parents pursuant to 34 CFR 300.503 the District may ask a state-supported educational program to consider the child for possible enrollment. With informed parent consent pursuant to 34 CFE 300.505 and533 the state-supported program may conduct such additional

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evaluations and gather such additional information as it considers necessary to inform it's decision regarding enrollment. If the state-supported program accepts the child for enrollment the District and the receiving state-supported program shall be jointly responsible for developing IEPs and ensuring that the child receives FaPE. If the state-supported program declines to accept the child, it shall so inform the District and the parents, in an IP meeting or another appropriate setting, and shall provide proper notice of its decision to the parents pursuant to 34 CFR 300.503 may refer the child to a state-provided public program.

b. Responsibility for services for children placed in or referred to state-supported educational programs shall be defined by a jointly approved EIP or other written agreement between the District and the state-supported educational program.

c. At least annually, the District, the state-provided educational program and the parent shall jointly review the child's IEP and revise it as the joint IEP team deems appropriate.

10. Children enrolled in state-supported educational programs by parents or other

public authorities A state-supported educational program that accepts a child with a disability at the request of a parent or upon the request or order of a non-educational public authority and without a referral or appropriate participation by the District assumes all responsibility for ensuring the provision of FAPE. The District may agree to share the responsibility pursuant to a joint IEP or other written agreement between the state-supported program, the other agency and, if appropriate, the parent.

11. Children in Detention and Correctional Facilities

a. A child with a disability in a juvenile or adult detention or correctional facility

is entitled to have FAPE made available within a reasonable time after the facility learns that the child had been eligible for special education and related services in the last education placement prior to incarceration or otherwise determines that the child is eligible.

b. Juvenile or adult detention or correctional facilities shall exert reasonable efforts to obtain needed educational records in accordance with FERPA.

c. FAPE for eligible students in juvenile or adult detention or correctional facilities shall be made available in programs that are suited to the security requirements of each facility and eligible student. The provisions of 34 CFR 300.311(b)-(c) apply to IEPs for students with disabilities who are convicted as adults under state law and incarcerated in adult prisions.

d. The local school district in which a detention or correctional facility that is not served by a state-supported educational program is located shall be responsible for ensuring that FAPE is made available to eligible children in

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that facility. The District or another public agency with educational jurisdiction may agree to share the responsibility pursuant to a written agreement between or among the agencies involved.

f. Children with disabilities who are detained or incarcerated in detention or correctional facilities are wards of the state and may have surrogate parents appointed pursuant to 34 CFR 300.515 to protect their IDEA rights while in state custody. The public agency that administer the educational program in a juvenile or adult detention or correctional facility shall ensure that surrogate parents are appointed in cases where no parent as defined in 34 CFR 300.20 is reasonably available or willing to make the educational decisions required for children with disabilities who are housed in that facility.

g. The educational program of a juvenile or adult detention or correctional facility is an educational agency for purposes of the Family Educational Rights and Privacy Act (FERPA) and is entitled to request and receive educational records on children with disabilities on the same basis as local school districts. The District will promptly honor requests for records to assist such programs in providing appropriate services to children within it's educational jurisdiction.

11. Children in Private Schools or Facilities and Home Schooled Students

a. The District ensures that a child with a disability who is placed in or referred to a private school or facility by the District is provided special education and related services in compliance with the requirements of 34 CFR Sec. 300.401 and has all of the rights of a child with a disability who is served by the District.

b. Educational decisions involving children with disabilities shall not be made unilaterally and shall not exclude the District having educational jurisdiction from the decision-making process. Educational decisions made by other public authorities are not the responsibility of the District if the District has not been appropriately included in the decision-making process. A public authority that places a child with a disability in a private school or facility without appropriate participation by the responsible public agency or agencies becomes financially responsible for providing the child with FAPE unless the District with educational jurisdiction agrees to assume all or part of that responsibility.

c. The responsibility the District to pay for the cost of education for a child with a disability who is placed in a private school or facility by parents who allege that the LEA failed to offer FAPE is governed by the requirements of 34 CFR Sec. 300.403. Disagreements between a parent and the District regarding the availability of a program appropriate for the child, and the question of financial responsibility, are subject to the due process procedures of 6.5.2.13I NMAC below. d. Children enrolled by parents in private schools or facilities or home

schooled students:

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1) Pursuant to 34 CFR Sec. 300.450, "private school children with disabilities" means children with disabilities who are enrolled by their parents in private schools or facilities and home schooled students other than children with disabilities who are covered under 300.400-300.402.

2) Pursuant to 34 CFR Sec. 300.451, the District shall locate, identify, and evaluate all private school and home schooled children with disabilities, including religious-school children residing in the jurisdiction of the District, in accordance with 300.125 and 300.220. The activities undertaken to carry out this responsibility for private school children with disabilities must be comparable to activities undertaken for children with disabilities in public schools

3) Pursuant to 34 CFR 300.452, each LEA shall provide for the participation of private school and home schooled children with disabilities in the program assisted under Part B of the IDEA by providing them with special education and related services to the extent required by, and in compliance with the requirements of, CFR 300.450-300.462. Pursuant to 34 CFR Secs. 300.453,

4) The District is obligated to spend a portion of its IDEA Part B funds to assist private school and home schooled children with disabilities. The Constitution and laws of New Mexico prohibit public agencies from spending state funds to assist private schools or facilities or their students.

5) Pursuant to 34 CFR Sec. 300.454, no private school or home schooled child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.

f. Applicability of procedural safeguards Pursuant to 34 CFR 300.457. the notice and consent requirements of 300.504-300.505,the due process and mediation procedures of 6.5.2.13I NMAC and the surrogate parent requirements of 34 CFR 300.515 and 6.5.2.13J NMAC do not apply to complaints that the District has failed to meet the requirements of 34 CFR 300.452-300.462, including the provision of services indicated on a child's services plan. The procedures regarding notice and consent, due process/mediation and surrogate parents do apply to complaints that the District has failed to comply with Sec. 300.451 by locating, evaluating and determining the eligibility of private school children with disabilities in compliance with CFR 300.125, 300.220 and 300.530-300.543. State-level complaints which allege that the Department or an LEA has failed to meet the requirements of Secs. 300.451-300.462 may be filed under the Department's state complaint procedures at 6.1.5.1 NMAC. The same procedural safeguards shall apply to children who are schooled at home.

600.008 EDUCATIONAL SERVICES FOR GIFTED CHILDREN (6.5.2.12 NMAC)

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1. Definitions as used in 6.5.2.12 NMAC:

Gifted child means a school-age person as defined in Sec. 22-1-2U NMSA 1978 whose intellectual ability paired with subject matter aptitude/achievement, creativity/divergent thinking, or problem-solving/critical thinking is so outstanding that a properly constituted IEP team decides special education services are required to meet the child's educational needs.

Intellectual ability means performance in the very superior range as defined by the test author on a properly administered intelligence measure

Subject matter aptitude/achievement means superior academic performance on a total subject area score on a standardized measure, or as documented by information from other sources as specified in [X-ref] NMAC.

Creativity/divergent thinking means outstanding performance on a test of creativity/divergent thinking, or in creativity/divergent thinking as documented by information from other sources as specified in [X-ref] NMAC.

Problem-solving/critical thinking means outstanding performance on a test of problem-solving/ critical thinking, or in problem-solving/critical thinking as documented by information from other sources as specified in [X-ref] NMAC.

2. Applicability of Rules to Gifted Children

All definitions, policies, procedures, assurances, procedural safeguards and services identified in 6.5.2 NMAC for school-aged children with disabilities apply to school-aged gifted children within the District's educational jurisdiction including children in charter schools within the district except: a. the provisions of 6.2.10 and 11 NMAC regarding identification, evaluations

and services for private school children with disabilities in state-supported educational programs, children in detention and correctional facilities, private school children and children who are schooled at home and

b. the provisions of 34 CFR Secs. 300.519-300.528, 6.5.2.13I NMAC and 6.1.4.11 NMAC regarding disciplinary changes of placement for children with disabilities.

c. Assuming appropriate evaluations, a child may properly be determined to be both gifted and a child with a disability and be entitled to a free appropriate public education for both reasons. The rules in this section apply only to gifted children.

d. Nothing in New Mexico State rules shall preclude the District from offering additional gifted programs for children who fail to meet the state eligibility criteria. However, the state shall only provide funds under Sec 22-8-21 NMSA 1978 for SDE-approved gifted programs for those students who meet the established criteria.

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3. Evaluation Procedures for Gifted Children a. The identification of a student as gifted shall include documentation and

analysis of data from multiple sources including: 1) standardized measures, as specified in 6.5.2.12A NMAC, and 2) information regarding the child's abilities from other sources, such as

collections of work, audio/visual tapes, judgment of work by qualified individuals knowledgeable about the child's performance (e.g.,artists, musicians, poets and historians, etc.), interviews, or observations.

e. The child's ability shall be assessed in all areas specified in 6.5.2.12A NMAC.

f. An accurate assessment of a child's ability may be affected by factors including: cultural background, linguistic background, socioeconomic status, or disability condition(s). The impact these factors have on the evaluation shall be documented and carefully considered when determining whether a student is gifted. When an accurate assessment of intellectual ability is affected by any of these factors, evidence of superior intellectual ability from other sources shall be documented and carefully considered in addition to an individually administered intelligence measure.

5. Advisory Committees

Pursuant to 22-13-6.1, NMAS, each school offering a gifted education program shall an advisory committee of parents, community members, students, and school staff members. The membership of each advisory committee reflects the cultural diversity of that school's enrollment The advisory committee shall: a. Maintain formal documentation of committee membership, activities and

recommendations. b. Regularly review the goals and priorities of the gifted program, including the

operational plans for student identification, evaluation, placement, and service delivery;

c. Demonstrate support for the gifted program; d. Provide information regarding the impact that cultural background, linguistic

background, socioeconomic status and disability conditions within the community may have on the child referral, identification, evaluation and service delivery processes and;

e. Advocate for children who have been under-represented in gifted services due to cultural or linguistic background, socioeconomic status, or disability conditions, in order to ensure that these children have equal opportunities to benefit from services for gifted students.

600.009 ADDITIONAL RIGHTS OF PARENTS, STUDENTS AND THE DISTRICT (6.5.2.13

NMAC)

1. General Responsibilities of the District

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The District has established, implemented and maintains procedural safeguards that meet the requirements of 34 CFR 300.500-300.576 and all other applicable requirements of these or other SBE rules and standards.

2. Examination of Records

The District affords 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 300.501(a), 300.562-300.569, 34 CFR Part 99.and any other applicable requirements of SBE rules and standards.

3. Parent and Student Participation in Meetings

The District affords the parents of a child with a disability 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. 300.345, 300.501(b)-(c) and any other applicable requirements of these or other SBE rules and standards.

4. Notice of Meetings

The District provides the parents of a child with a disability with advance written notice that complies with 34 CFR Sec. 300.345 for IEP meetings and any other meetings in which the parent has a right to participate pursuant to 34 CFR Sec. 300.501.

5. Notice of agency actions proposed or refused

The District gives 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 District 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. 300.505, the District may give notice at the same time it requests parent consent.

6. Notice of procedural safeguards (Parent and Student Rights)

A copy of the procedural safeguards available to the parents of a child with a disability is given to the parents, at a minimum, (1) upon initial referral for evaluation; (2) upon each notification of an IEP meeting; (3) upon reevaluation of the child; and (4) upon receipt of a request for due process under 34 CFR Sec. 300.507. The notice meets all requirements of 34 CFR Sec. 300.504, including the requirement to inform the parents of their obligation under 34 CFR Sec. 300.403 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.

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7. Communications in Understandable Language

The District communicates with parents in understandable language, including the parent's native language or other mode of communication if necessary for understanding, in IEP meetings, in written notices and in obtaining consent where consent is required in accordance with 34 CFR Secs. 300.500(b)(1), 300.501(c)(5), 300.503(c) and 300.504(c),.

8. Parental Consent

Informed parental consent as defined in 34 CFR 300.500 is obtained in compliance with 34 CFR 300.505 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 may not be construed as consent for initial placement. a. 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.

b. If the parents of a child with a disability refuse consent for an initial evaluation, reevaluation or the initial provision of special education and related services, the District may use the due process and mediation procedures in 6.5.2.13I NMAC below to determine if the child may be evaluated, reevaluated or initially provided services without parental consent. If the hearing officer upholds the District, the District may evaluate, reevaluate or initially provide special education and related services to the child without the parent's consent subject to the parent's rights of appeal under the due process procedures.

c. Pursuant to 34 CFR 300.505(c), 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 300.345(d) and the child's parents have failed to respond.

d. The District 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.

9. Surrogate Parents and Foster Parents

The District ensures that a qualified surrogate parent is appointed in compliance with 34 CFR 300.515 when needed to protect the rights of a child with a disability who is within the District's educational jurisdiction. A surrogate parent need not be appointed if a person who qualifies as a parent under 34 CFR Sec. 300.20(b) and 6.5.2.7 NMAC can be identified.

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a. A foster parent who meets all requirements of 34 CFR Sec. 300.20(b) may be treated as the child's parent pursuant to that regulation.

b. A foster parent who does not meet those requirements but meets all requirements of 34 CFR 300.515 may be appointed as a surrogate parent if the District deems such action appropriate. Pursuant to 34 CFR 300.515, 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.

10. Transfer of Parental Rights to Students at Age 18

Pursuant to 12-2A-3 and 28-6-1 NMSA 1978, a person's age of majority begins on the first instant of his or her 18 th 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. Accordingly, pursuant to 34 CFR 300.517, when a student with a disability reaches age 18 and has not had a general or limited guardian appointed by a court of competent jurisdiction to make his or her educational decisions: a. The District shall provide any notices required by 34 CFR Part 300 to the

student and the parent. b. All other rights accorded to the parents under IDEA, New Mexico laq or

SBE rules and standards transfer to the student; and c. The District shall notify the individual and the parents of the transfer of

rights. A student’s IEP beginning not later than one year before the student turns 18 must include a statement the student has been informed of the rights that will transfer to him or her at age 18.

11. Confidentiality of Information

When collecting, using or maintaining any personally identifiable information on children under Part B of the IDEA the District complies with all applicable requirements of 34 CFR 300.560-576 and the Family Educational Rights and Privacy Act, 34 CFR Part 99.

12. Transfer of student records

The District may transfer student records without parental consent when requested by another educational agency in which a student seeks or intends to enroll as long as the sending agency has included the proper notification to the effect that it will do so in the required annual FERPA notice to students 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

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become responsible for serving a child with a disability. In that regard, state-provided educational programs and the educational programs of a juvenile or adult detention or correctional facilities are educational agencies for purposes of the Family Educational Rights and Privacy Act, 34 CFR Sec. 99.31(a)(2), (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.

13. Disciplinary records (34 CFR Sec. 300.576)

a. The District may adopt a policy of including in all students' records a

statement of any current or previous disciplinary action, or disciplinary action above a specified level of seriousness, that has been taken against a student and transmitting the statement when it transfers student records. A public agency which has adopted such a policy shall include disciplinary information in the records of a child with a disability to the same extent that the information is included in, and transmitted with, the student records of nondisabled children.

b. The statement may include a description of any behavior engaged in by the child that required disciplinary action, a description of the disciplinary action taken, and any other information that is relevant to the safety of the child and other individuals involved with the child.

c. If a public agency adopts such a policy, and the child transfers from one school to another, the transmission of any of the child's records must include both the child's current individualized education program and any statement of current or previous disciplinary action that has been taken against the child.

14. 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 District may use the first-level impartial due process hearing procedures specified in [X-ref] 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.

15. Destruction of information (34 CFR 300.573)

The District 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 may

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receive copies of all such information at no charge. The information must be destroyed at the request or the parents or, at their option, the records must be given to the parents. When informing parents about their rights to destruction of personally identifiable records under these rules, the District will advise them that the records may be needed by the child or the parents for social security benefits and other purposes. If the parents do not request the destruction of personally identifiable information about their children, the District may retain that information permanently. In either event, a permanent record of a student's name, address and 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.

16. Conflict Management and Resolution

The District seeks to establish and maintain productive working relationships with the parents of each child the District serves and to deal constructively with the disagreements that will inevitably arise. Toward that end, each school is strongly encouraged to provide appropriate training for staff and parents in skills and techniques of conflict prevention and management and to retain the services of an impartial facilitator, mediator or other appropriate third party to resolve disagreements at the agency level when practicable.

600.010 State Complaint Procedures

Written complaints alleging that the District or the Department has failed to comply with federal statutes or regulations governing the education of children with disabilities will be received, processed and resolved as provided in 34 CFR 300.660-300.662 and the Department's federal programs complaint procedure at 6.1.5.1 NMAC.

600.011 Due Process Hearings and Appeals

1. This section describe procedures governing state-provided mediation services, impartial due process hearings and administrative appeals for the following types of cases: a. requests for due process in IDEA cases are governed by 34 CFR 300.506-

300.514 and 300.521-300.528; b. claims under Sec. 504 of the federal Rehabilitation Act of 1973 that are

brought concurrently with IDEA claims and a request for IDEA due process; and

c. claims for gifted services.

2. Definitions

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In addition to terms defined in 34 CFR Part 300 and 6.5.2.7 NMAC, the following definitions apply to this section:

Expedited hearing means a hearing that is available on request by a public agency under 34 CFR 300.521 or 300.526 or by a parent under 34 CFR 300.525 or 300.527 and is subject to the requirements of 300.528.

Gifted services means special education services to gifted children as defined in 6.5.2.7 NMAC.

Transmit means to mail, transmit by electronic mail 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. a return receipt showing delivery by the U.S. Postal Service, to whom the article

was delivered and the date of delivery; b. an electronic mail system's confirmation of a completed transmission to an e-

mail address that is shown to be valid for the individual to whom the transmission was sent;

c. 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;

d. a receipt from a commercial carrier showing to whom the article was delivered and the date of delivery; or

e. a written receipt signed by the State Superintendent of Public Instruction or designee showing to whom the article was hand-delivered and the date delivered.

3. Bases for Requesting Hearing

A parent or the District may initiate an impartial due process hearing on the following matters: a. The District proposes to initiate or change the identification, evaluation, or

educational placement of the child or the provision of FAPE to the child; b. The District refuses to initiate or change the identification, evaluation, or

educational placement of the child or the provision of FAPE to the child; b. The District proposes or refuses to initiate or change the identification,

evaluation, or educational placement of, or services to, a child who may need gifted services;

4. Bases for Requesting Expedited Hearing

a. A parent may request an expedited hearing to review any decision

regarding placement under 34 CFR 300.520-300.528 or a determination under 34 CFR 300.523 that a child's behavior for which a disciplinary change of placement is proposed was not a manifestation of the child's disability.

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b. The District may request an expedited hearing under 34 CFR 300.521 to place a child in an alternative educational setting when the District believes that maintaining the current placement is substantially likely to result in injury to the child or others or under 34 CFR Sec. 300.526(c) to change the current placement of a child during the pendency of a due process hearing or appeal.

5. Request for Due Process Hearing

a. A parent requesting a due process hearing shall transmit written notice of

the request to the District and the State Superintendent of Public Instruction.

b. When requesting a due process hearing the District shall transmit written notice of the request to the parent and to the State Superintendent of Public Instruction.

c. The written request shall state with specificity the nature of the dispute and shall include: 1) The name of the child; 2) The address of the residence of the child; 3) The name of the school the child is attending;

4) The name of the District; 5) The name, address and telephone number(s) of the party making the

request and, if the party is represented by an attorney or advocate, the name, address and telephone number(s) of the attorney or advocate;

6) 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; and

7) A proposed resolution of the problem to the extent known and available to the parents at the time.

d. A request for an expedited hearing must include a statement of facts sufficient to show that a requesting parent is entitled to an expedited hearing under 34 CFR 300.525 or 300.527 or that the District is entitled to an expedited hearing under 34 CFR 300.521 or 300.526.

e. A request for a hearing must be in writing and signed and dated by the parent or the authorized District representative. An oral request made by a parent who is unable to communicate by writing shall be reduced to writing by the District and signed by the parent.

f. A request for hearing filed by or on behalf of a party who is represented by an attorney or advocate 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. Representation by other advocates must be specifically authorized in writing and signed by the party being represented.

6. Duties of the Department

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Upon receipt of a written request for due process which meets the above requirements, the Department shall arrange and conduct procedures in accordance with state and federal requirements. 13. Expenses of the Hearing and Administrative Appeal

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 and its transmission to the Department for an administrative appeal or storage. The fees and expenses of the administrative appeal officer will be paid by the Department. Each party to a hearing or appeal shall be responsible for its own legal fees or other costs, subject to paragraph 15 below.

14. Civil Action

a. Any party aggrieved by the decision of an administrative appeal officer in an

IDEA matter has the right to bring a civil action in a state or federal district court pursuant to 20 USC 1415(i), 34 CFR 300.512 and any other applicable state or federal laws or rules.

b. A party aggrieved by the decision of an administrative appeal officer in a matter relating solely to the identification, evaluation, educational placement of or services to a child who may need gifted services may bring a civil action in a state court of appropriate jurisdiction within a period of time determined by applicable court rules.

15. Attorneys' Fees

a. In any action or proceeding brought under 20 USC1415, the court, in its

discretion and subject to the further provisions of 1415(i) and 34 CFR Sec. 300.513, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party.

b. Hearing officers and administrative appeal officers are not authorized to award attorneys' fees.

16. Child's Status during Proceedings

a. Except as provided in 34 CFR Sec. 300.526 and [X-ref], 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 must remain in his or her current educational placement.

b. If the case involves an application for initial admission to public school, the child, with the consent of the parents, must be placed in the public school until the completion of all the proceedings.

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c. If a hearing officer or an administrative appeal officer agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the public agency and the parents for purposes of paragraph (a) of this section.

6.5.2.14 RULES OF CONSTRUCTION A. U.S. Department of Education Interpretations The U.S. Department of Education's interpretations of the provisions of 34 CFR Part 300 as set forth in Appendix A to 34 CFR Part 300, its Analysis of Comments and Changes to Part 300 at 64 Federal Register 12537-12656 (March 12, 1999), and other interpretations that are published or announced by the USDE in the Federal Register are recognized as the federal government's official positions regarding the requirements of the IDEA. Such interpretations shall be followed by the State Board and Department to the extent that they do not conflict with express provisions of the IDEA or case law from the federal courts. B. Uniform Statute and Rule Construction Act The Uniform Statute and Rule Construction Act, Secs. 12-2A-1 through -20 NMSA 1978, applies to the interpretation of 6.5.2 NMAC except to the extent that these rules incorporate permissible variations under the New Mexico version of the Uniform Act. References in 6.5.2 NMAC to state or federal laws, rules or regulations are intended to incorporate future amendments unless a provision in these rules is irreconcilable with a future amendment under the standards of the Uniform Act. C. Conflicts with State or Federal Laws or Regulations If any state law, a state rule or regulation adopted by the SBE or a federal law or regulation grants greater rights to an individual or agency than these rules provide, the other provision shall control to the extent necessary to avoid a conflict. PROPOSED REVISIONS TO ACCOMPANY STATE SPECIAL EDUCATION REGULATIONS 005.300 PROCEDURES FOR LONG-TERM SUSPENSION OR EXPULSION OF

STUDENTS WITH DISABILITIES The following rules shall apply when a student with a disability violates a rule of conduct as set forth in this regulation which may result in 1. long-term suspension or expulsion or 2. any other disciplinary change of the student's current educational placement as

specified in the federal regulations implementing the Individuals with Disabilities Education Act (IDEA) at 34 CFR 300.519 through 300.529.

The following rules shall also apply when a disciplinary change of placement is contemplated for a child for whom the school district had knowledge, as provided in 34 CFR 300.527, that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. The administrative authority shall conduct an informal conference to determine if

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disciplinary action is warranted. The purpose of the conference shall be to: a. conduct interviews; b. afford the child an opportunity to explain the alleged misconduct; c. determine whether the child has an IEP individualized education program

(IEP) in accordance with the IDEA or a plan in accordance with 504 of the Rehabilitation Act of 1973 (hereinafter "504") in effect and effect, and if so whether the IEP or 504 plan contains alternative disciplinary strategies; and

d. determine whether a referral for formal evaluation should be made if an IEP or 504 plan is not in effect and a disability is suspected.

4. The administrative authority shall make a determination as to whether the conduct warrants long-term suspension or expulsion.

5. Nothing herein shall preclude the administrative authority from imposing a short term suspension subject to the further provisions of 34 CFR 300.519-300.520 and/or seeking an injunction from a court of competent jurisdiction or an order from an IDEA hearing officer pursuant to 34 CFR 300.521 and 6.5.2.13(I)(4) to exclude or change the placement of a student when the agency believes that maintaining the current placement is substantially likely to result in injury to the child or others.

005.301 Parent Notification.

1. Upon a determination by the administrative authority that long-term suspension

or expulsion will not be pursued, the administrative authority shall notify the parent(s) of the incident.

2. Upon a determination by the administrative authority that the student's IEP or 504 plan sets forth alternative discipline strategies for the behavior, the administrative authority shall implement the alternative strategies and notify the parent(s) accordingly.

3. Upon a determination by the administrative authority that an IEP or 504 plan is not in effect for the student and that a referral for formal evaluation should be made, the administrative authority shall refer the student for formal evaluation and shall notify the parent(s) in accordance with applicable requirements.

4. Upon a determination by the administrative authority that long-term suspension or expulsion will be pursued and that an IEP or 504 plan is in effect for the student, the administrative authority shall notify the parent(s) as follows: a. Scheduling of the IEP meeting in accordance with the requirements of the

34 CFR Part 300, or 504, and 34 CFR Part 104, as applicable; and b. Contemplated disciplinary action.

005.302 Manifestation Inquiry.

1. The administrative authority shall convene the IEP or 504 meeting to determine if the student's behavior is a manifestation of the disability and whether the student's IEP or 504 plan is appropriate.

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a. The IEP team and other qualified personnel pursuant to all applicable requirements of 34 CFR 300.523 shall conduct an IDEA manifestation inquiry.

b. If the determination is made that the behavior is a manifestation of the disability, the IEP team/ 504 Committee shall revise the IEP or 504 plan as needed to address the needs of the student. The student may not be suspended or expelled from school for more than ten (10) school days in a school year unless such action is allowable under 34 CFR 300.519 without establishing a patter of exclusion or the school district obtains an order from a court of competent jurisdiction to remove the student from school or to change the student's placement.

c. If the determination is made that the behavior is not a manifestation of the disability but that the student's program is inappropriate, the IEP/ 504 Committee shall revise the IEP team/ 504 plan. The student may not be suspended or expelled from school for more than ten (10) school days in a school year unless such action is allowable under CFR 300.519 without establishing a pattern of exclusion or the school district obtains an order from a court of competent jurisdiction to remove the student from school or to change the student's placement.

2. If the determination is made that the misbehavior is not a manifestation of the disability and the child's program is appropriate, the administrative authority may proceed to initiate long- term suspension or expulsion proceedings in accordance with Paragraph 12.7 below.

005.004 Special Rule .

1. This rule shall apply, pursuant to 34 CFR 300.520(a)(2), when a child with a disability is determined to have: a. brought a weapon to school or a school function; or b. knowingly possessed or used illegal drugs or sold or solicited the sale of a

controlled substance while at school or a school function. 2. A student who has a disability in accordance with Part B of the IDEA and who is

determined to have engaged in any conduct described in 6.1.4.11D(1) NMAC may be immediately placed in an interim alternative educational setting for not more than forty-five (45) calendar days during the manifestation inquiry. The interim alternative educational setting shall be determined by the IEP team, which includes the student's parent(s), in compliance with all applicable requirements of 34 CFR 300.522. Parental consent to the alternative placement is not required.

3. If the parent(s) of a student placed in an alternative educational setting pursuant to this Special Rule request(s) a due process hearing pursuant to Part B of the IDEA, the hearing shall be expedited pursuant to 34 CFR 300.528 and 6.5.2.13.(I)(11) and the student shall remain in the alternative educational setting during the pendency of any proceedings, unless the parent(s) and administrative authority agree otherwise or the IDEA hearing officer orders otherwise pursuant to 34 CFR 300.526 and 6.5.2.13(I)(16) NMAC.

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4. If, upon final determination, it is decided that the offence involving the weapon or drug was not a manifestation of the student's disability, the administrative authority may proceed to initiate long-term suspension or expulsion proceedings.

005.005 Functional Behavioral Assessments and Behavioral Intervention

Plans

The administrative authority shall ensure that a functional behavioral assessment is conducted and a behavioral intervention plan for each student with a disability under the IDEA is developed or reviewed and revised by the IEP team in compliance with 34 CFR 300.520(b) and (c) not later than 10 business days after first removing the child from his or her current educational placement for more than 10 school days in a school year or commencing a removal that constitutes a change of placement under 34 CFR 300.519, including an action described in 6.1.4.11.D NMAC.

005.007 Alternative Educational Services During the Period of Long-Term Suspension

or Expulsion

1. Alternative educational services for a student with a disability upon whom a long-term suspension or expulsion has been imposed for behavior that was not a manifestation of the disability shall be provided as follows: a. During the period of disciplinary exclusion from school, each student who is

disabled pursuant to the IDEA must continue to be offered a program of appropriate educational services that is individually designed to meet his or her unique learning needs and provides a free appropriate public education (FAPE) pursuant to 34 CFR 300.121(d).

b. School districts may cease educational services to students who are disabled pursuant to Section 504 during periods of disciplinary exclusion from school that exceed ten (10) school days if students who are not disabled do not continue to receive educational services in similar circumstances.

2. Provision of Alternative Educational Services. a. The parent(s) shall be notified of the IEP/504 meeting. b. An IEP is developed to reflect the alternative educational services and

placement to be provided to the student during the period of the long-term suspension or expulsion, pursuant to 34 CFR 300.121.(d).

c. If the parent(s) of an IDEA student request a due process hearing, the hearing shall be expedited pursuant to 34 CFR 300.528 and 6.5.2.13.I(11) and the student shall remain in the alternative educational setting during the pendency of any proceedings, unless the parent(s) and administrative authority agree otherwise or the IDEA hearing officer orders otherwise pursuant to 34 CFR 300.526 and 6.5.2.13(I)(16) NMAC..

3. A student will receive grades and/or credit during the period of long-term suspension or expulsion, subject to the requirement of 34 CFR 300.121 that an IDEA student must receive services to the extent necessary to enable the child

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to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP.