SB0192

SENATE BILL 192

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Lynda M. Lovejoy and Mimi Stewart

FOR THE LEGISLATIVE EDUCATION STUDY COMMITTEE

AN ACT

RELATING TO SPECIAL EDUCATION; CONFORMING DEFINITIONS AND OTHER PROVISIONS TO THE FEDERAL INDIVIDUALS WITH DISABILITIES EDUCATION ACT; DISTINGUISHING STUDENTS WITH DISABILITIES AND GIFTED STUDENTS IN DEFINITIONS AND OTHER PROVISIONS.

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. "dyslexia" means a condition of neurological origin that is characterized by difficulty with accurate or fluent word recognition and by poor spelling and decoding abilities, which characteristics typically result from a deficit in the phonological component of language that is often unexpected in relation to other cognitive abilities and the provision of effective classroom instruction and may result in problems in reading comprehension and reduced reading experience that may impede the growth of vocabulary and background knowledge;

F. "gifted student" means a student who demonstrates intellectual ability paired with subject matter aptitude and achievement, creativity and divergent thinking or problem solving and critical thinking such that a properly constituted individualized education program team determines that the student needs specially designed instruction to meet the student's unique needs;

[E.] G. "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;

[F.] H. "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, marriage and family therapist, interpreter for the deaf and diagnostician;

[G.] I. "licensed school employee" means teachers, school administrators and instructional support providers;

[H.] J. "local school board" means the policy-setting body of a school district;

[I.] K. "local superintendent" means the chief executive officer of a school district;

[J.] L. "parent" includes a guardian or other person having custody and control of a school-age person;

[K.] M. "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;

[L.] N. "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;

O. "response to intervention" means a multitiered intervention model that uses a set of increasingly intensive academic or behavioral supports matched to student need as a framework for making educational programming and eligibility decisions;

[M.] P. "school" means a supervised program of instruction designed to educate a student in a particular place, manner and subject area;

[N.] Q. "school administrator" means a person licensed to administer in a school district and includes school principals and central district administrators;

[O.] R. "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 person who is classified as special education membership as defined in Section 22-8-21 NMSA 1978 or as a resident of a state institution;

[P.] S. "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;

[Q.] T. "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;

[R.] U. "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;

[S.] V. "school employee" includes licensed and nonlicensed employees of a school district;

[T.] W. "school principal" means the chief instructional leader and administrative head of a public school;

[U.] X. "school year" means the total number of contract days offered by public schools in a school district during a period of twelve consecutive months;

[V.] Y. "secretary" means the secretary of public education;

Z. "special education" means specially designed instruction to meet the unique needs of students with disabilities, including instruction in physical education and instruction conducted in the classroom, in the home, in hospitals and institutions and in other settings and may include speech-language pathology services and services for students with developmental delay as provided by rule of the department;

[W.] AA. "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;

[X.] BB. "state educational institution" means an institution enumerated in Article 12, Section 11 of the constitution of New Mexico;

CC. "student" means a public school student who:

(1) has not graduated from high school;

(2) is regularly enrolled in one-half or more of the minimum course requirements approved by the department for public school students; and

(3) in terms of age:

(a) is at least five years of age prior to 12:01 a.m. on September 1 of the school year;

(b) is a least three years of age at any time during the school year and is receiving special education services pursuant to rules of the department; or

(c) has not reached the student's twenty-second birthday on the first day of the school year and is receiving special education services pursuant to rules of the department;

DD. "student assistance team" means a school-based group whose purpose, based on procedures and guidelines established by the department, is to provide additional educational support to those students who are experiencing difficulties that are preventing them from benefiting from general instruction;

EE. "students with developmental delay" means those students ages three through nine who are classified pursuant to department rule as developmentally delayed in at least one of the following five areas:

(1) communication development;

(2) cognitive development;

(3) physical development;

(4) social or emotional development; or

(5) adaptive development;

FF. "students with disabilities" means those students who are evaluated pursuant to department rule as having intellectual disability; hearing impairment; deafness; speech or language impairment; visual impairment, including blindness; serious emotional disturbance; orthopedic impairment; autism; traumatic brain injury; other health impairment; a specific learning disability, including dyslexia; or deaf-blindness or other multiple disabilities, and who, by reason of their disabilities, require special education and related services;

[Y.] GG. "substitute teacher" means a person who holds a certificate to substitute for a teacher in the classroom;

[Z.] HH. "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;

[AA.] II. "certified school instructor" means a teacher or instructional support provider; and

[BB.] JJ. "certified school employee" or "certified school personnel" means a licensed school employee."

SECTION 2. Section 22-8-21 NMSA 1978 (being Laws 1974, Chapter 8, Section 11, as amended) is amended to read:

"22-8-21. SPECIAL AND GIFTED EDUCATION PROGRAM UNITS.--

A. For the purpose of the Public School Finance Act, special and gifted education programs for [exceptional children] students with disabilities and gifted students are those approved by the department and classified as follows:

(1) class A programs, in which [department- certified individuals] department-licensed persons provide services to [children] students whose individualized education programs require a minimal amount of special or gifted education and in which the ratio of students to professionals is regulated by the [state board] department;

(2) class B programs, in which [department- certified individuals] department-licensed persons provide services to [children] students whose individualized education programs require a moderate amount of special or gifted education and in which the ratio of students to professionals is regulated by the [state board] department;

(3) class C programs, in which [department- certified individuals] department-licensed persons provide services to [children] students whose individualized education programs require an extensive amount of special or gifted education and in which the ratio of students to professionals is regulated by the [state board] department;

(4) class D programs, in which [department- certified individuals] department-licensed persons provide services to [children] students whose individualized education programs require a maximum amount of special or gifted education and in which the ratio of students to professionals is regulated by the [state board. Students in class D programs may be enrolled in private, nonsectarian, nonprofit educational training centers in accordance with the provisions of Section 22-13-8 NMSA 1978] department; and

(5) programs for [developmentally] disabled three- and four-year-old children [meeting] that meet standards approved by the [state board] department.

B. All students assigned to the programs for [exceptional children] students with disabilities and gifted students classified in Subsection A of this section shall have been so assigned as a result of diagnosis and evaluation performed in accordance with the standards of the department before the students may be counted in the determination of special education program units as provided in Subsection C of this section.

C. The number of special education program units is the sum of the following:

(1) the MEM in approved class A and B programs as defined in Subsection A of this section multiplied by the cost differential factor .7;

(2) the MEM in approved class C programs as defined in Subsection A of this section multiplied by the cost differential factor 1.0;

(3) the MEM in approved class D programs as defined in Subsection A of this section multiplied by the cost differential factor 2.0;

(4) the MEM for [developmentally] disabled three- and four-year-old children [as defined in Subsection A of this section] that meet standards approved by the department multiplied by the cost differential factor 2.0; provided that no [developmentally] disabled three- or four-year-old student shall be counted for additional ancillary service units; and

(5) for related services ancillary to providing special education, the number of full-time-equivalent [certified or] licensed ancillary service and diagnostic service personnel multiplied by the cost differential factor 25.0.

D. For the purpose of calculating membership in class C and class D programs, students shall be counted in actual grade placement or according to chronological age if not in actual grade placement."

SECTION 3. 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 and charter schools shall provide special education and related services appropriate to meet the needs of all [children requiring special education and related services. Regulations] students with disabilities. 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. School districts and charter schools 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 [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] the school year may receive special education and related services from the beginning of that school year. 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.

B. A school district or charter school may provide special education and related services to students with developmental delay; provided that, if it does, it must use appropriate diagnostic instruments and procedures to ensure that the student qualifies as a student with developmental delay."

SECTION 4. Section 22-13-6.1 NMSA 1978 (being Laws 1994, Chapter 25, Section 2, as amended) is amended to read:

"22-13-6.1. GIFTED [CHILDREN] STUDENTS--DETERMINATION.--

A. The department shall adopt standards pertaining to the determination of who is a gifted [child] student and shall publish those standards as part of the educational standards for New Mexico schools.

B. In adopting standards to determine who is a gifted [child] student, the department shall provide for the evaluation of selected [school-age children] students by [multidisciplinary] school district or charter school eligibility teams [from each child's school district]. That team shall be vested with the authority to designate a [child] student as gifted. The team shall consider information regarding a [child's] student's cultural and linguistic background and socioeconomic background in the identification, referral and evaluation process. The team also shall consider any disabling condition in the identification, referral and evaluation process.

C. Each school district or charter school offering a gifted education program shall create one or more advisory committees of parents, community members, students and school staff members. The school district or charter school may create as many advisory committees as there are high schools in the district or may create a single districtwide advisory committee. The membership of each advisory committee shall reflect the cultural diversity of the enrollment of the school district or the schools the committee advises. The advisory committee shall regularly review the goals and priorities of the gifted program, including the operational plans for student identification, evaluation, placement and service delivery and shall demonstrate support for the gifted program.

D. In determining whether a [child] student is gifted, the [multidisciplinary] evaluation team shall consider [diagnostic or other] evidence of the [child's] student's:

(1) creativity or divergent-thinking ability;

(2) critical-thinking or problem-solving ability;

(3) intelligence; and

(4) achievement.

E. Nothing in this section shall preclude a school district or charter school from offering additional gifted programs for students who do not meet the eligibility criteria for a gifted student, but the state shall only provide state funds for department-approved gifted programs for gifted students."

SECTION 5. 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] evaluation and screening of and educational offerings for [exceptional children] students with disabilities in public schools, in private, nonsectarian, nonprofit training centers, in residential treatment centers and in state institutions under the authority of the secretary of health.

[C. The state board shall establish and maintain a program of evaluation of the implementation and impact of all programs for exceptional children in the public schools. This program shall be operated with the cooperation of local school districts. Portions of the program may be subcontracted, and periodic reports regarding the efficacy of programs for exceptional children shall be made to the legislative education study committee.]

C. The department shall monitor the provisions of special education in school districts, state-chartered schools and state agencies and shall report annually to the public on their performance. The state's monitoring activities shall use quantifiable and qualitative indicators to measure performance and shall focus on improving educational results and functional outcomes for special education students and ensuring that school districts, state-chartered charter schools and state agencies meet the requirements of the state performance plan.

D. The department [of education] shall [coordinate] monitor programming related to the transition of [persons] students with disabilities from secondary [and] to post-secondary education [programs to] and employment or vocational placement."

SECTION 6. Section 22-16-4 NMSA 1978 (being Laws 1967, Chapter 16, Section 222, as amended) is amended to read:

"22-16-4. SCHOOL BUS ROUTES--LIMITATIONS--EXCEPTIONS--MINIMUM REQUIREMENTS.--

A. Bus routes shall be established by the local school district.

B. Except as provided in Subsections C and D of this section, no school bus route shall be maintained for distances less than:

(1) one mile one way for students in grades kindergarten through six;

(2) one and one-half miles one way for students in grades seven through nine; and

(3) two miles one way for students in grades ten through twelve.

C. In school districts having hazardous walking conditions as determined by the local school board and confirmed by the state transportation director, students of any grade may be transported a lesser distance than that provided in Subsection B of this section. General standards for determining hazardous walking conditions shall be established by the state transportation division of the department [of education] with the approval of the [state board] secretary, but the standards shall be flexibly and not rigidly applied by the local school board and the state transportation director to prevent accidents and help ensure student safety.

D. [Exceptional children] Students with disabilities whose [handicaps] disabilities require transportation and three- and four-year-old children who meet the [state board-approved] department-approved criteria and definition of [developmentally] disabled may be transported a lesser distance than that provided in Subsection B of this section."

SECTION 7. REPEAL.--Section 22-13-6 NMSA 1978 (being Laws 1972, Chapter 95, Section 2, as amended) is repealed.

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