SENATE BILL 23

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

INTRODUCED BY

John Arthur Smith and Nora Espinoza

AN ACT

RELATING TO PUBLIC SCHOOLS; LIMITING GRADE PROMOTIONS BY PROVIDING THAT A STUDENT WHO IS NOT PROFICIENT IN READING AT THE END OF THE THIRD GRADE WILL BE RETAINED IN THE THIRD GRADE FOR ONE YEAR AND PROVIDING FOR ASSESSMENT, REMEDIATION PROGRAMS AND INTERVENTION TO ADDRESS DEFICIENCIES IDENTIFIED BETWEEN KINDERGARTEN AND THE THIRD GRADE; REPEALING AND REENACTING A SECTION OF THE NMSA 1978; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 22-2C-6 NMSA 1978 (being Laws 1986, Chapter 33, Section 7, as amended) is repealed and a new Section 22-2C-6 NMSA 1978 is enacted to read:

     "22-2C-6. [NEW MATERIAL] GRADE PROMOTIONS--REMEDIATION PROGRAMS--PROMOTION POLICIES--RESTRICTIONS.--

          A. As used in this section:

                (1) "academic improvement plan" means a written document developed by the student assistance team that describes the specific content standards required for a certain grade level that a student has not achieved and that prescribes specific intervention and remediation programs;

                (2) "educational plan for student success" means a student-centered tool developed to define the role of the academic improvement plan within the public school and the school district that addresses methods to improve student learning and success in school and that identifies specific measures of a student's progress;

                (3) "reading proficiency" means a score on the New Mexico standards-based assessment higher than the lowest level established by the department;

                (4) "remediation program" includes summer school, extended day or week programs, small group instruction, tutoring, progress monitoring and other research-based interventions and models for student improvement and, if applicable, responses to intervention as defined in Section 22-13-6 NMSA 1978 and department guidelines; and

                (5) "student assistance team" means a group consisting of a student's:

                     (a) teacher;

                     (b) school counselor;

                     (c) school administrator; and

                     (d) parent, or if no parent is available, a student advocate chosen by the student or parent.

          B. Department-approved screening assessments for reading skills shall be given and, if necessary, academic improvement plans shall be implemented for public school students in kindergarten through grade three as follows:

                (1) the department shall approve one screening assessment to screen, at the beginning of the school year, students enrolled in kindergarten for reading skills, including phonological awareness, letter recognition and oral language skills;

                (2) the department shall approve up to three screening assessments to screen, at the beginning of the school year, each student enrolled in first, second and third grade to measure the acquisition of reading skills, including phonological awareness, phonics, spelling, reading fluency, vocabulary and comprehension; and

                (3) after the screening assessment, if the student is deemed deficient in reading, the student assistance team shall immediately develop an academic improvement plan for the student that clearly delineates the student's reading deficiencies and remediation programs to be included in the plan, including the specific strategies for a parent to use in helping the child achieve reading proficiency.

          C. School districts, locally chartered charter schools and state-chartered charter schools shall use the statewide standards-based assessments in grades three through eight to assess and evaluate each student's growth in reading ability and other academic achievement.

          D. The local school board shall approve school district-selected, proven remediation programs and the governing authority of a charter school shall approve charter school-selected, proven remediation programs to provide intensive instructional assistance to students in kindergarten through grade eight who do not demonstrate academic proficiency. Remediation programs shall be incorporated into the educational plans for student success of school districts, locally chartered charter schools and state-chartered charter schools and shall be submitted to and approved by the department. Remediation programs and grade promotion policies shall be aligned with the results from statewide standards-based assessments and department-approved screening assessments.

          E. In kindergarten through grade eight, the cost of remediation programs shall be borne by the school district, locally chartered charter school and state-chartered charter school. The cost of summer and extended day remediation programs offered in grades nine through twelve shall be borne by the parent; however, when parents are determined to be indigent according to guidelines established by the department, the school district, locally chartered charter school and state-chartered charter school shall bear those costs. Beginning with the 2013-2014 school year, depending on the availability of funds, the school district, locally chartered charter school and state-chartered charter school shall bear the cost of summer and extended day remediation programs offered in grades nine through twelve.

          F. A parent shall be notified in writing no later than the end of the second grading period of each school year that the parent's student is not academically proficient, and a conference consisting of the parent, or if no parent is available, a student advocate chosen by the student or parent, and the teacher shall be held to discuss strategies, including remediation programs, available to assist the student in becoming academically proficient. The student's specific academic deficiencies and the available strategies to correct those deficiencies shall be explained to the student's parent and a written academic improvement plan shall be developed that contains time lines, academic expectations and measurements to be used to verify that the student is overcoming academic deficiencies. The parent shall be provided with specific strategies to use in helping the child achieve academic proficiency. The remediation programs and academic improvement plan shall be implemented immediately.

          G. Using data from the 2010-2011 through 2012-2013 school years, each public school shall establish baseline assessment data on reading proficiency for students in grades three, five and eight. The baseline data shall include levels of performance in reading based on performance on statewide standards-based assessments below which a student must be provided with a remediation program or be retained in an intensive program that is different from the previous year's program.

          H. Beginning with the 2013-2014 school year, the parent of a third grade student who is deficient in reading at the end of the first grading period shall be given notice that the student is in danger of being retained at the end of third grade if the student does not achieve reading proficiency by that time and that a parental waiver will not be allowed for the student. A student who receives a remediation program or other appropriate interventions based on the student's academic improvement plan and who is not reading proficiently by the end of third grade as measured by the statewide standards-based assessment shall be retained in the third grade for no more than one year, unless the student is exempt from mandatory retention as provided in Subsection L of this section. A student shall have an opportunity at the end of the summer immediately following third grade to demonstrate reading proficiency on a department-approved screening assessment and be promoted to the fourth grade. A student who is retained must be provided with regular diagnostic and other evaluations to determine the nature of the student's reading deficiency and to measure progress in achieving reading proficiency and must be provided with a remediation program that is different from the previous year's program.

          I. For students in first grade through grade seven, grade promotion and retention decisions at the end of the school year shall be based on a student's academic proficiency, as defined in Section 22-1-2 NMSA 1978, as follows:

                (1) the student is academically proficient and shall enter the next higher grade;

                (2) the student is not academically proficient and shall participate in the required level of remediation in summer school. Upon certification by the school district that the student is academically proficient, the student shall enter the next higher grade; or

                (3) the student is not academically proficient after completion of the prescribed remediation program and, upon the recommendation of the teacher and school principal, shall be either:

                     (a) retained in the same grade for no more than one school year with an academic improvement plan developed by the student assistance team to assist the student in becoming academically proficient and in demonstrating that the student is a successful and independent reader, is reading at or above the student's grade level and is ready to be promoted to the next higher grade. Tools that school districts may use in evaluating any retained student include subsequent assessments, alternative assessments and portfolio reviews as approved by the department. A decision to promote a retained student to the next higher grade may be made either at the end of the school year or midyear, but a midyear promotion shall be made only upon agreement of the parent or guardian of the student and the school principal; or

                     (b) unless the student is in third grade and is subject to the provisions of Subsection H of this section, promoted to the next grade if the parent refuses to allow the student to be retained and signs a waiver indicating the parent's desire that the student be promoted to the next higher grade with an academic improvement plan designed to address specific academic deficiencies. The academic improvement plan shall be developed by the student assistance team outlining time lines and monitoring activities to ensure progress toward overcoming those academic deficiencies. Students who have been evaluated to determine the nature of their academic deficiencies and who have received a remediation program that is different from the previous year's program but who fail to become academically proficient at the end of that year shall be retained in the same grade for no more than one year in order to have additional time to achieve academic proficiency unless exempt from mandatory retention as prescribed in Subsection L of this section. The academic improvement plan shall be implemented immediately.

          J. A student who does not demonstrate academic proficiency for two successive school years shall be referred to the student assistance team for placement in an alternative program designed by the school district. Alternative program plans shall be submitted to and approved by the department.

          K. The school principal of a public school that includes any of grades kindergarten through eight shall establish procedures to ensure that an academic improvement plan is implemented for each student who requires one and that each plan includes a description of the student's reading deficiencies, the results obtained from statewide standards-based assessments and the reading strategies used for remedial and intensive instruction.

          L. A student shall be exempt from the provisions of Subsections H and I of this section if the student:

                (1) scores at least at the fiftieth percentile on an alternative department-approved norm-referenced standardized assessment or at the proficient level on an alternative department-approved criterion-referenced standardized assessment;

                (2) demonstrates mastery on a teacher-

developed portfolio that is equal to at least a proficient performance on the statewide standards-based assessments;

                (3) shows sufficient academic growth by meeting acceptable levels of reading and literacy performance specified by the department;

                (4) is an English language learner who reads proficiently in a language other than English on a valid and reliable reading assessment in that language or who has had less than two years of instruction in English for speakers of other languages; or

                (5) is a student with a disability, who shall be assessed, promoted or retained in accordance with the provisions of the student's individualized education program."

     SECTION 2. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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