HOUSE BILL 199
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Thomas A. Garcia
FOR THE LEGISLATIVE EDUCATION STUDY COMMITTEE
AN ACT
RELATING TO SPECIAL EDUCATION; CLARIFYING THE STATE'S RESPONSIBILITY TO PROVIDE SPECIAL EDUCATION SERVICES; REQUIRING PUBLIC EDUCATION DEPARTMENT PARTICIPATION IN DEVELOPMENT OF AGREEMENTS BETWEEN SCHOOL DISTRICTS AND PRIVATE TRAINING CENTERS AND RESIDENTIAL TREATMENT PROGRAMS; REQUIRING STUDENT IDENTIFICATION NUMBERS FOR STUDENTS ATTENDING TRAINING CENTERS AND RESIDENTIAL TREATMENT PROGRAMS; REQUIRING TRAINING CENTERS AND RESIDENTIAL TREATMENT PROGRAMS TO PROVIDE REASONABLE PHYSICAL SPACE FOR EDUCATIONAL PROGRAMMING.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 22-1-2 NMSA 1978 (being Laws 2003, Chapter 153, Section 3, as amended) is amended to read:
"22-1-2. DEFINITIONS.--As used in the Public School Code:
A. "academic proficiency" means mastery of the subject-matter knowledge and skills specified in state academic content and performance standards for a student's grade level;
B. "adequate yearly progress" means the measure adopted by the department based on federal requirements to assess the progress that a public school or school district or the state makes toward improving student achievement;
C. "commission" means the public education commission;
D. "department" means the public education department;
E. "forty-day report" means the report of qualified student membership of each school district and of those eligible to be qualified students but enrolled in a private school or a home school for the first forty days of school;
F. "home school" means the operation by the parent of a school-age person of a home study program of instruction that provides a basic academic educational program, including reading, language arts, mathematics, social studies and science;
G. "instructional support provider" means a person who is employed to support the instructional program of a school district, including educational assistant, school counselor, social worker, school nurse, speech-language pathologist, psychologist, physical therapist, occupational therapist, recreational therapist, interpreter for the deaf and diagnostician;
H. "licensed school employee" means teachers, school administrators and instructional support providers;
I. "local school board" means the policy-setting body of a school district;
J. "local superintendent" means the chief executive officer of a school district;
K. "parent" includes a guardian or other person having custody and control of a school-age person;
L. "private school" means a school, other than a home school, that offers on-site programs of instruction and that is not under the control, supervision or management of a local school board;
M. "public school" means that part of a school district that is a single attendance center in which instruction is offered by one or more teachers and is discernible as a building or group of buildings generally recognized as either an elementary, middle, junior high or high school or any combination of those and includes a charter school;
N. "school" means a supervised program of instruction designed to educate a student in a particular place, manner and subject area;
O. "school administrator" means a person licensed to administer in a school district and includes school principals and central district administrators;
P. "school-age person" means a person who is at least five years of age prior to 12:01 a.m. on September 1 of the school year and who has not received a high school diploma or its equivalent. A maximum age of twenty-one shall be used for a school-age person who is classified as needing special education [membership as defined in Section 22-8-21 NMSA 1978 or as a resident of a state institution];
Q. "school building" means a public school, an administration building and related school structures or facilities, including teacher housing, that is owned, acquired or constructed by the school district as necessary to carry out the functions of the school district;
R. "school bus private owner" means a person, other than a school district, the department, the state or any other political subdivision of the state, that owns a school bus;
S. "school district" means an area of land established as a political subdivision of the state for the administration of public schools and segregated geographically for taxation and bonding purposes;
T. "school employee" includes licensed and nonlicensed employees of a school district;
U. "school principal" means the chief instructional leader and administrative head of a public school;
V. "school year" means the total number of [contract] instructional days offered by public schools in a school district during a period of twelve consecutive months;
W. "secretary" means the secretary of public education;
X. "special education" means the provision of services additional to, supplementary to or different from those provided in the general school program of a public school to students who are required by the federal Individuals with Disabilities Education Act to have an individualized education program, and including developmentally disabled three- and four-year-old children attending public school;
[X.] Y. "state agency" or "state institution" means the New Mexico military institute, New Mexico school for the blind and visually impaired, New Mexico school for the
deaf, New Mexico boys' school, girls' welfare home, New Mexico youth diagnostic and development center, Sequoyah adolescent treatment center, Carrie Tingley crippled children's hospital, New Mexico behavioral health institute at Las Vegas and any other state agency responsible for educating resident children;
[Y.] Z. "state educational institution" means an institution enumerated in Article 12, Section 11 of the constitution of New Mexico;
AA. "student" means a school-age person who is a public school student;
[Z.] BB. "substitute teacher" means a person who holds a certificate to substitute for a teacher in the classroom;
[AA.] CC. "teacher" means a person who holds a level one, two or three-A license and whose primary duty is classroom instruction or the supervision, below the school principal level, of an instructional program or whose duties include curriculum development, peer intervention, peer coaching or mentoring or serving as a resource teacher for other teachers;
[BB.] DD. "certified school instructor" means a teacher or instructional support provider; and
[CC.] EE. "certified school employee" or "certified school personnel" means a licensed school employee."
Section 2. Section 22-13-5 NMSA 1978 (being Laws 1972, Chapter 95, Section 1, as amended) is amended to read:
"22-13-5. SPECIAL EDUCATION.--
A. School districts shall provide special education and related services appropriate to meet the needs of [all children] public school students requiring special education and related services. [Regulations] Rules and standards shall be developed and established by the [state board] department for the provision of special education in the schools and classes of the public school system in the state and in all institutions wholly or partly supported by the state. The [state board] department shall monitor and enforce the [regulations] rules and standards.
B. Except as otherwise provided in this section, the state institution in which a school-age person is detained or enrolled shall be responsible for providing educational services for the school-age person. A school-age person who is a client as defined in Section 43-1-3 NMSA 1978 in a state institution under the authority of the secretary of health has a right to attend public school in the school district in which the state institution in which the school-age person is a client is located if:
(1) the school-age person has been recommended for placement in a public school by the educational appraisal and review committee of the school district in which the institution is located; or
(2) the school-age person has been recommended for placement in a public school as a result of the appeal process as provided in the special education rules of the department.
C. School districts shall also provide services
for three-year-old and four-year-old [preschool] children with
disabilities, unless the parent [or guardian] chooses not to enroll [his] the child. If a child receiving services in the department of health's family infant toddler program has [his] a third birthday during the school year, the child's [parents] parent shall have the option of having the child complete the school year in the family infant toddler program or enrolling the child in the public school's preschool program. A child with a disability who enrolls in the public school's preschool program and who has [his] a third birthday during a school year may receive special education and related services from the beginning of that school year.
D. Services for students age three through twenty-one may include, but are not limited to, evaluating particular needs, providing learning experiences that develop cognitive and social skills, arranging for or providing related services as defined by the [state board] department and providing parent education. The services may be provided by [certified] licensed school [personnel] employees or contracted for [with other community agencies] and shall be provided in age-appropriate, integrated settings, including home, daycare centers, head start programs, schools or community-based settings."
Section 3. Section 22-13-7 NMSA 1978 (being Laws 1972, Chapter 95, Section 3, as amended) is amended to read:
"22-13-7. SPECIAL EDUCATION--RESPONSIBILITY.--
A. The [state board] department shall make, adopt and keep current a state plan for special education policy, programs and standards.
B. The department [of education with the approval of the state board] shall set standards for diagnosis and screening of and educational offerings for exceptional children in public schools and school-age persons in private, nonsectarian, nonprofit training centers or residential treatment centers for whom a school district is responsible and in state institutions under the authority of the secretary of health.
C. The [state board] department shall establish and maintain a program of evaluation of the implementation and impact of all programs for exceptional children in the public schools. [This] The evaluation program shall be operated with the cooperation of [local] school districts, and portions of the evaluation program may be subcontracted [and]. Periodic reports regarding the efficacy of educational programs for exceptional children shall be made to the legislative education study committee.
D. The department [of education] shall coordinate programming related to the transition of persons with disabilities from secondary and post-secondary education programs to employment or vocational placement."
Section 4. Section 22-13-8 NMSA 1978 (being Laws 1972, Chapter 95, Section 4, as amended) is amended to read:
"22-13-8. SPECIAL EDUCATION--PRIVATE.--
A. The responsibility of school districts, state institutions and the state to provide a free public education for [exceptional children] school-age persons who need special education is not diminished by the availability of private schools and services. [Whenever such schools or services are utilized, it continues to be] It is a state responsibility to [assure] ensure that all [exceptional children] special education students receive the education to which [the] federal and state laws [of the state] entitle them whether provided by public or private schools and services.
B. A school district in which a private, nonsectarian, nonprofit training center or residential treatment center is located shall not be considered the resident school district of a school-age person in need of special education if residency is based solely on the school-age person's enrollment at the facility and the school-age person would not otherwise be considered a resident of the state.
C. For a student or school-age person placed in a private, nonsectarian, nonprofit training center or residential treatment center by a school district, by an order of a court of compentent jurisdiction or by a due process decision, the school district where the student lives, whether in-state or out-of-state, is responsible for the educational costs of that placement.
D. For a school-age person in need of special education placed in a private, nonsectarian, nonprofit training center or residential treatment center not as a result of a due process decision but by a parent who assumes the responsibility for such placement, the department shall ensure that the school district where the facility is located is allocating and distributing that student's proportionate share of the federal Individuals with Disabilities Education Act Part B funds as required by federal law.
E. For a school-age person in need of special education placed in a private, nonsectarian, nonprofit training center or residential treatment center by a New Mexico public agency with custody or control of the school-age person or by a New Mexico court of competent jurisdiction, the school district in which the facility is located shall be responsible for the planning and delivery of special education and related services, unless the school-age person's resident school district has an agreement with the facility to provide such services.
F. The department shall determine which school district is responsible for the cost of educating a special education student who has been placed in a private, nonsectarian, nonprofit training center or residential treatment center outside the student's resident school district. The department shall determine the reasonable reimbursement owed to the receiving school district.
[B.] G. A local school board, in consultation with the department, may make an agreement with a private, nonsectarian, nonprofit educational training [centers] center or residential treatment center for educating [exceptional children] special education students for whom the school district is responsible for providing a free appropriate public education and for providing [for] payment for [such] that education. All financial agreements between local school boards and private, nonsectarian, nonprofit educational training centers and residential treatment centers must be negotiated in accordance with [regulations] rules promulgated by the [director] department. Payment for education and services under [such] those agreements shall be made by the local school board [of education] where the student lives from available funds. [available.
C.] H. All agreements between local school boards and private, nonsectarian, nonprofit educational training centers and residential treatment centers must be reviewed and approved by the [state superintendent] secretary. The agreements shall ensure that all special education students placed in private, nonsectarian, nonprofit training centers or residential treatment centers receive the education to which they are entitled laws pursuant to federal and state laws. All agreements must provide for:
(1) diagnosis [and];
(2) an educational program for each [child which] public school student that meets state standards for such programs, except that teachers employed by private schools are not required to be highly qualified;
(3) special education and related services in conformance with an individualized education program that meets the requirements of federal and state law; and
(4) adequate classroom and other physical space provided at the training center or residential treatment center that allows the school district to provide an appropriate education.
I. The agreements must also acknowledge the authority and responsibility of the local school board and the department [of education] to conduct on-site evaluations of programs and [pupil] student progress to [insure] ensure that the education provided to public school students is meeting state standards.
[D. Exceptional children] J. A special education student for whom the state is required by federal law to provide a free appropriate public education and who is attending a private, nonsectarian, nonprofit training center or a residential treatment center is a public school student and shall be counted in the special education membership of the school district [as enrolled in the Class D special education program] that is responsible for the costs of educating the student in the class level identified as appropriate in the individualized educational plan for the student.
K. The department shall adopt the format to report individual student data and costs for any school-age person attending public or private training centers or residential treatment programs and shall include those reports in the student teacher accountability reporting system by using the same student identification number issued to a public school student pursuant to Section 22-2C-11 NMSA 1978 or by assigning a unique student identifier for a school-age person who is not a resident of this state but who is attending a private training center or residential treatment program in this state. Every public and private training center and every public and private residential treatment program that serves school-age persons in this state shall comply with this provision.
L. The department shall promulgate rules to carry out the provisions of this section."
Section 5. Section 32A-12-2 NMSA 1978 (being Laws 1979, Chapter 227, Section 2, as amended) is amended to read:
"32A-12-2. RESIDENTIAL TREATMENT PROGRAMS--[REGULATIONS] RULES.--The secretary of children, youth and families shall adopt [regulations] rules to provide for:
A. minimum standards that shall be met by a residential treatment program, including a requirement that the program make reasonable provisions for adequate physical space for a school district to provide the required free appropriate public education;
B. procedures and forms for applying for a departmental grant or contract;
C. procedures and criteria for review and approval or denial of such applications;
D. procedures for approval of facilities and programs in or through which services are to be performed;
E. procedures and specifications of programmatic and financial information to be reported by residential treatment programs to the children, youth and families department for purposes of evaluating the effectiveness of programs funded by the department; and
F. procedures for review of potential clients for residential treatment or therapeutic group home care."
Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
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