HB0285

HOUSE BILL 285

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Elizabeth "Liz" Thomson and Gail Chasey and G. Andrés Romero and Linda M. Lopez

AN ACT

RELATING TO SPECIAL EDUCATION; CREATING THE OFFICE OF SPECIAL EDUCATION IN THE PUBLIC EDUCATION DEPARTMENT; PROVIDING POWERS AND DUTIES; PROVIDING FOR INTERDEPARTMENTAL TRANSFER.

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

SECTION 1. Section 9-24-4 NMSA 1978 (being Laws 2004, Chapter 27, Section 4, as amended) is amended to read:

"9-24-4. DEPARTMENT CREATED.--

A. The "public education department" is created in the executive branch. The department is a cabinet department and includes the following office and divisions:

(1) the administrative services division;

(2) the assessment and accountability division;

(3) the charter schools division;

(4) the educator quality division;

(5) the Indian education division;

(6) the information technology division;

(7) the instructional support and vocational education division;

(8) the program support and student transportation division;

(9) the quality assurance and systems integration division;

(10) the rural education division; [and]

(11) the office of special education; and

[(11)] (12) the vocational rehabilitation division.

B. Except for the office of special education, the secretary may organize the department and divisions of the department and may transfer or merge functions between divisions and bureaus in the interest of efficiency and economy."

SECTION 2. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] SHORT TITLE.--Sections 2 through 7 of this act may be cited as the "Special Education Act"."

SECTION 3. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] DEFINITIONS.--As used in the Special Education Act:

A. "director" means the director of the office;

B. "office" means the office of special education; and

C. "school district" includes charter schools."

SECTION 4. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] OFFICE OF SPECIAL EDUCATION--CREATED--DIRECTOR.--

A. The "office of special education" is created in the department.

B. The governor shall appoint the director, who shall be appointed without regard to political party and solely on the basis of education and experience that makes the person qualified for the office. The director is exempt from the Personnel Act.

C. Within appropriations, the director may appoint professional and clerical staff to assist the director in carrying out the powers and duties of the office.

D. The director shall direct the activities of the office and keep the secretary apprised of federal and state laws and policies regarding special education.

E. The department shall provide data to the office regarding fiscal and other matters needed for compliance with federal and state requirements in a timely manner, including the distribution of federal funds pursuant to Part B of the federal Individuals with Disabilities Education Improvement Act of 2004."

SECTION 5. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] DUTIES OF OFFICE.--

A. The office shall oversee and enforce the federal Individuals with Disabilities Education Improvement Act of 2004, Section 504 of the federal Rehabilitation Act of 1973 and state special education law compliance and implementation, including all fiscal and program requirements.

B. The office shall develop, review and ensure that state special education rules address the needs of students with disabilities, including highly mobile students.

C. The office shall develop policies and technical guidance on special education for public schools, parents and students.

D. The office shall consult and coordinate with:

(1) other units of the department to:

(a) ensure that students with disabilities are considered in all activities and programs; and

(b) identify and address those areas that disproportionately impact students with disabilities;

(2) other state agencies, including the early childhood education and care department, the higher education department, the Indian affairs department, the children, youth and families department, the vocational rehabilitation division of the department, the developmental disabilities council and other relevant state agencies, as well as public post-secondary educational institutions, to prioritize and expand appropriate special education services to New Mexico residents from birth to career, which may include formal written agreements to advance state educational policy and goals, and to comply with special education requirements under state and federal law; and

(3) school districts and other state agencies to ensure that students with disabilities, including children and youth in the custody of the children, youth and families department, receive free and appropriate public education in residential treatment facilities and psychiatric hospitals.

E. The office shall:

(1) develop and provide professional development programs and materials for licensed school employees, special education assistants and other instructional support providers in educating or providing instructional support to students with disabilities; and

(2) coordinate with public post-secondary educational institutions on the education and training of licensed school employees in teaching or providing instructional support to students with disabilities and gifted students.

F. The office shall provide assistance in the implementation of special education programs in public schools and other settings, as well as other state- and federally funded programs, including identifying state systems and policies that maximize provision of special education services; expedite evaluation of the needs of children from birth to age five and students with disabilities; and facilitate effective and meaningful inclusion and integration of students with disabilities into all educational settings.

G. The office shall ensure that the diagnoses, screenings and educational evaluations of students for special education services are completed comprehensively. The office may develop targeted strategies and policies to carry out this duty.

H. The office shall monitor the spending of state and federal funds, including medicaid, for special education programs for students with disabilities and gifted students, including state equalization guarantee distributions to school districts, and take actions to ensure appropriate spending as needed.

I. The office shall work with other divisions of the department, other state agencies and school districts to develop and implement culturally and linguistically relevant and appropriate services, curricula and pedagogy to support students with disabilities and gifted students.

J. The office shall prioritize the recruitment and retention of qualified special education teachers, diagnosticians, special education assistants and other instructional support providers.

K. The office shall analyze the recommendations of the office of the state special education ombud, gather data relevant to the recommendations and take appropriate action as needed.

L. The office shall develop, adopt, promulgate and update an annual state plan for policy, programs and standards for special education.

M. The office shall submit an annual report to the secretary, the governor and the legislative education study committee, including the following special education data:

(1) student demographics;

(2) student achievement and outcomes;

(3) state and federal spending;

(4) types of services and programs;

(5) evaluations of services and programs, including effectiveness and timeliness;

(6) transitions; and

(7) every use of restraint and seclusion in public schools.

N. The office shall determine and identify the special education data needed to evaluate the state's compliance with the federal Individuals with Disabilities Education Improvement Act of 2004, Section 504 of the federal Rehabilitation Act of 1973 and state law, including the information required in Subsection M of this section. The office shall coordinate with the department to ensure that school districts collect the data in a consistent and uniform format for the office and other units of the department.

O. The office shall audit implementation of the federal Individuals with Disabilities Education Improvement Act of 2004, Section 504 of the federal Rehabilitation Act of 1973 and state law in school districts and public schools, including conducting performance reviews to ensure the provision of adequate special education services, performing site visits if needed and taking disciplinary measures if a school district or public school is out of compliance.

P. The office shall provide technical assistance and recommendations to school districts and public schools to ensure special education students receive special education services that:

(1) are evidence-based or research-based;

(2) are designed in collaboration with students' parents and educational decision makers; and

(3) include student-centered goals.

Q. The office shall provide targeted annual training to all local school boards, governing bodies of charter schools, superintendents, school administrators, teachers, instructional support providers, other school employees, school resource officers and school security officers that addresses:

(1) the provisions and requirements of the federal Individuals with Disabilities Education Improvement Act of 2004, Section 504 of the federal Rehabilitation Act of 1973 and state laws that prohibit discrimination against students with disabilities;

(2) disabilities-specific policies, practices and interventions;

(3) de-escalation practices and techniques;

(4) positive behavioral supports;

(5) structured literacy;

(6) formulation and implementation of effective individualized education plans and transitional individualized education plans that are designed in collaboration with students' parents and educational decision makers and include student-centered goals; and

(7) effective engagement and communication with students, parents and educational decision makers.

R. The office shall ensure that transition individualized education plans prepare:

(1) three- and four-year-old children with disabilities to transition to public school;

(2) special education students to transition within the public school system; and

(3) special education students to transition to higher education or the workforce.

S. The office shall ensure that public schools comply with federal and state special education law by:

(1) soliciting input from special education students, parents, educational decision makers, regional education cooperatives, disability providers and advocates, teachers, instructional support providers and other school employees on the provision of special education services in the state;

(2) reviewing publicly available information and resources regarding individual special education services and programs; and

(3) monitoring the academic and nonacademic progress of students with disabilities.

T. The office shall ensure services for students with disabilities and gifted students, including gifted students with disabilities. The office shall ensure that gifted students with disabilities receive appropriate services as required by the federal Individuals with Disabilities Education Improvement Act of 2004, Section 504 of the federal Rehabilitation Act of 1973 and state law.

U. The office shall assume the duties of the special education division of the department; provided that the division shall continue to function until the governor has appointed a director.

V. The director shall report directly to the secretary.

W. The office shall monitor special education compensation trends in other states and make compensation recommendations to the department and the legislature."

SECTION 6. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] SPECIAL EDUCATION SALARY DIFFERENTIAL LEVELS.--No later than July 1, 2024, the department and office shall, in consultation with educators and school districts, identify appropriate salary differential levels, time allocations and other supports for licensed school employees, educational assistants and other instructional support providers who educate or provide instructional support to students with disabilities."

SECTION 7. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] TRANSFER OF PRESCHOOL SPECIAL EDUCATION.--No later than July 1, 2024, the department and the office shall consult and coordinate with the early childhood education and care department to transfer the Part B, 619 coordinator to the early childhood education and care department in compliance with Part B of the federal Individuals with Disabilities Education Improvement Act of 2004 through a formal written agreement that identifies the administrative roles, responsibilities and funding for the office and the early childhood education and care department."

SECTION 8. Section 22-8-6 NMSA 1978 (being Laws 1967, Chapter 16, Section 60, as amended) is amended to read:

"22-8-6. OPERATING BUDGETS--EDUCATIONAL PLANS--SUBMISSION--CERTAIN REPORTS--FAILURE TO SUBMIT.--

A. Prior to April 15 of each year, each local school board shall submit to the department an operating budget for the school district and any locally chartered charter school in the school district for the ensuing fiscal year.

B. The date for the submission of the operating budget for each school district and each charter school as required by this section may be extended to a later date fixed by the secretary.

C. The operating budget required by this section may include:

(1) estimates of the cost of insurance policies for periods up to five years if a lower rate may be obtained by purchasing insurance for the longer term; or

(2) estimates of the cost of contracts for the transportation of students for terms extending up to four years.

D. The operating budget required by this section shall include a budget for each charter school of the membership projected for each charter school, the total program units generated at that charter school and approximate anticipated disbursements and expenditures at each charter school.

E. For fiscal year 2021 and subsequent fiscal years, each school district's and each locally chartered or state-chartered charter school's educational plan shall include:

(1) information on the instructional time offered by the school district or charter school, including the number of instructional days by school site and the number of hours in each instructional day and the frequency of early-release days;

(2) a narrative explaining the identified services to improve the academic success of at-risk students;

(3) a narrative explaining the services provided to students enrolled in the following programs:

(a) extended learning time programs, including a report of how the extended learning time is used to improve the academic success of students and professional learning of teachers; and

(b) K-5 plus programs;

(4) a narrative explaining the school district's or charter school's beginning teacher mentorship programs as well as class size and teaching load information;

(5) a narrative explaining supplemental programs or services offered by the school district or charter school to ensure that the Bilingual Multicultural Education Act, the Indian Education Act and the Hispanic Education Act are being implemented by the school district or charter school;

(6) a narrative describing the amount of program cost generated for services to exceptional students with disabilities by class and grade level and the spending of these revenues on services to those students [with disabilities], which shall include the following:

(a) program cost generated for students enrolled in approved special education programs by class and grade level;

(b) budgeted expenditures of program cost, for students enrolled in approved special education programs, on students with disabilities;

(c) the amount of program cost generated for personnel providing ancillary and related services to students with disabilities;

(d) budgeted expenditures of program cost for personnel providing ancillary and related services to students with disabilities, on special education ancillary and related services personnel; and

(e) a description of the steps taken to ensure that students with disabilities have access to a free and appropriate public education; and

(7) a common set of performance targets and performance measures, as determined by the department in consultation with the department of finance and administration, the legislative finance committee and the legislative education study committee.

F. In addition to the requirements of Subsection E of this section, a school district or charter school that receives federal or local revenue shall include in its educational plan a narrative explaining how the school district or charter school will use the federal or local revenue to improve outcomes for students or to improve the condition of a school building. No later than October 1 of each year, a school district or charter school that received federal or local revenue in the prior fiscal year shall report to the department on the actual uses of that revenue, including a comprehensive evaluation of how the programs and services provided with that revenue improved outcomes for students or how capital projects undertaken improved the condition of a school building. A school district or charter school that is required under federal law to consult with tribal entities as a condition of receiving impact aid funds shall include in its educational plan a detailed narrative of its consultations with tribal entities and the results of those consultations. The school district or charter school shall transmit the October 1 spending and outcomes report to the appropriate tribal authorities. No later than November 15 of each year, the department shall compile the federal and local revenue outcomes reports into a statewide report to the legislative education study committee and the legislative finance committee that includes an analysis and identification of effective programs and strategies that improve outcomes for students.

G. A school district or charter school operating budget and educational plan shall prioritize federal and local revenue for purposes relating to the Indian Education Act; for capital expenditures authorized by the Public School Capital Outlay Act, the Public School Capital Improvements Act or the Public School Buildings Act; or for research-based or evidence-based social, emotional or academic interventions for which at-risk program units may be used.

H. If a local school board or governing board of a charter school fails to submit an operating budget pursuant to this section, the department shall prepare the operating budget for the school district or charter school for the ensuing fiscal year. A local school board or governing board of a charter school shall be considered as failing to submit an operating budget pursuant to this section if the budget submitted exceeds the total projected resources of the school district or charter school or if the budget submitted does not comply with the law or with rules and procedures of the department.

I. As used in this section:

(1) "federal revenue" means seventy-five percent of the revenue derived from:

(a) federal forest reserve funds distributed in accordance with Section 22-8-33 NMSA 1978; or

(b) federal assistance to those areas affected by federal activity authorized in accordance with Title 20 of the United States Code, commonly known as "PL 874 funds" or "impact aid funds"; and

(2) "local revenue" means seventy-five percent of the revenue from a school district one-half mill school district property tax and revenue from the Oil and Gas Ad Valorem Production Tax Act and the Oil and Gas Production Equipment Ad Valorem Tax Act."

SECTION 9. Section 22-13-5 NMSA 1978 (being Laws 1972, Chapter 95, Section 1, as amended) is amended to read:

"22-13-5. SPECIAL EDUCATION.--School districts shall provide special education and related services appropriate to meet the needs of exceptional students [requiring special education and related services]. Rules and standards shall be developed and established by the [department] office 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 [department] office shall monitor and enforce the rules and standards. 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 the child. Services for students age three through twenty-one may include, but are not limited to, evaluating particular needs, providing learning experiences that develop cognitive, motor and social skills, arranging for or providing related services as defined by the [department] office and providing parent education. The services may be provided by licensed school 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 10. Section 22-13-6 NMSA 1978 (being Laws 1972, Chapter 95, Section 2, as amended) is amended to read:

"22-13-6. SPECIAL EDUCATION--DEFINITIONS.--As used in the Public School Code:

A. "special education" means the provision of services additional to, supplementary to or different from those provided in the regular school program by a systematic modification and adaptation of instructional techniques, materials and equipment to meet the needs of exceptional [children] students;

B. "exceptional [children] students" means [school-age persons] gifted students and students with disabilities whose abilities render regular services of the public school to be inconsistent with their educational needs;

C. "[children] students with disabilities" means [those children who are classified as developmentally disabled according to the Developmental Disabilities Act and the federal Individuals with Disabilities Education Act] students who are classified as children with disabilities according to Part B of the federal Individuals with Disabilities Education Act of 2004 or Section 504 of the federal Rehabilitation Act of 1973 and persons with developmental disabilities according to the Developmental Disabilities Act;

D. "gifted [child] student" means a school-age person who is determined to be gifted pursuant to Section 22-13-6.1 NMSA 1978 and standards adopted by the [department] office pursuant to that section; provided that nothing in this section shall preclude a school district or charter school from offering additional gifted programs for students who fail to meet the eligibility criteria; however, the state shall only provide state funds for [department-approved] office-approved gifted programs for those students who meet the established criteria;

E. "dyslexia" means a specific learning disability that is neurobiological in origin and 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. "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; [and]

G. "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 students who are experiencing difficulties that are preventing them from [benefiting] benefitting from general instruction; and

H. "office" means the office of special education."

SECTION 11. 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] office 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 public schools.

B. In adopting standards to determine who is a gifted [child] student, the [department] office shall provide for the evaluation of selected [school-age children] students by multidisciplinary teams from each [child's] student'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 offering a gifted education program shall create one or more advisory committees of parents, community members, students and school staff members. The school district 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 public 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 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."

SECTION 12. 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] office shall make, adopt and keep current a state plan for special education policy, programs and standards.

B. The office shall develop rules, standards and guidelines necessary to implement Section 5 of this 2023 act, to be approved and adopted by the department.

[B.] C. The [department of education with the approval of the state board] office shall set standards for diagnosis and screening of and educational offerings for exceptional [children] students in public schools and children in private, nonsectarian, nonprofit training centers and in state institutions under the authority of the secretary of health.

[C.] D. The [state board] office shall establish and maintain a program of evaluation of the implementation and impact of all programs for exceptional [children] students 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] students shall be made to the department, the governor and the legislative education study committee.

[D.] E. The [department of education] office shall coordinate programming related to the transition of [persons] students with disabilities [from secondary and post-secondary education programs to employment or vocational placement] as provided in Section 5 of this 2023 act."

SECTION 13. Section 22-13-32 NMSA 1978 (being Laws 2010, Chapter 59, Section 2, as amended) is amended to read:

"22-13-32. INTERVENTION FOR STUDENTS DISPLAYING CHARACTERISTICS OF DYSLEXIA.--

A. Within the course of the 2019-2020 and 2020-2021 school years and in each subsequent school year, all first grade students shall be screened for dyslexia. Beginning with the 2024-2025 school year, the office shall ensure that the results of the screenings are provided to the parents of first grade students within thirty days of the student's screening.

B. A student whose dyslexia screening demonstrates characteristics of dyslexia and who is having difficulty learning to read, write, spell, understand spoken language or express thoughts clearly shall receive appropriate classroom interventions or be referred to a student assistance team.

C. In accordance with [department] office response to intervention procedures, guidelines and policies, each school district or charter school shall provide timely, appropriate, systematic, scientific, evidence-based interventions prescribed by the student assistance team, with progress monitoring to determine the student's response or lack of response.

D. A parent of a student referred to a student assistance team shall be informed of the parent's right to request an initial special education evaluation at any time during the school district's or charter school's implementation of the interventions prescribed by the student assistance team. If the school district or charter school agrees that the student may have a disability, the student assistance team shall refer the child for an evaluation. The student shall be evaluated within sixty days of receiving the parental consent for an initial evaluation. If the school district or charter school refuses the parent's request for an initial evaluation, the school district or charter school shall provide written notice of the refusal to the parent, including notice of the parent's right to challenge the school district's or charter school's decision as provided in state and federal law and rules.

E. Within the course of the 2019-2020 and 2020-2021 school years, every school district and charter school shall develop and implement a literacy professional development plan that includes a detailed framework for structured literacy training by a licensed and accredited or credentialed teacher preparation provider for all elementary school teachers and for training in evidence-based reading intervention for reading interventionists and special education teachers working with students demonstrating characteristics of dyslexia or diagnosed with dyslexia. The plan shall continue to be implemented each school year and may be updated as necessary. The [department] office shall provide lists of recommended teacher professional development materials and opportunities for teachers and school administrators regarding evidence-based reading instruction for students at risk for reading failure and displaying the characteristics of dyslexia.

F. School districts and charter schools shall train school administrators and teachers who teach reading to implement appropriate evidence-based reading interventions. School districts and charter schools shall train special education teachers to provide structured literacy training for students who are identified with dyslexia as a specific learning disability and who are eligible for special education services.

G. The [department] office shall provide technical assistance for special education diagnosticians and other special education professionals regarding the formal special education evaluation of students suspected of having a specific learning disability, such as dyslexia.

H. The [department] office shall [adopt] develop rules, standards and guidelines necessary to implement this section, to be approved and adopted by the department."

SECTION 14. TEMPORARY PROVISION--INTERDEPARTMENTAL TRANSITION.--

A. On July 1, 2024, the special education division of the public education department shall become the office of special education and shall be responsible for carrying out the provisions of the Special Education Act and other laws that relate to special education of public school students or three- and four-year-old children who are developmentally disabled unless otherwise provided by law.

B. On July 1, 2024, all agreements and contractual obligations of the special education division of the public education department or for which the division has been given responsibility by the secretary of public education shall be agreements and contractual obligations of the office of special education.

C. On July 1, 2024, all rules of the public education department pertaining to special education, except for special education funding, shall be the rules of the office of special education until amended or repealed.

D. On July 1, 2024, the budget and personnel of the special education division of the public education department shall transfer to the office of special education.

SECTION 15. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2023.

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