SENATE BILL 174
54th legislature - STATE OF NEW MEXICO - second session, 2020
Linda M. Lopez and Patricia Roybal Caballero
RELATING TO PUBLIC EDUCATION; CREATING A DIVISION IN THE PUBLIC EDUCATION DEPARTMENT TO FOCUS ON SPECIAL EDUCATION; PROVIDING POWERS AND DUTIES; REQUIRING ACCOUNTABILITY; INCREASING THE SPECIAL EDUCATION COST DIFFERENTIAL FACTORS; AMENDING, REPEALING, ENACTING AND RECOMPILING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.
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 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 special education division; and
[(11)] (12) the vocational rehabilitation division.
B. 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. Section 22-1-2 NMSA 1978 (being Laws 2003, Chapter 153, Section 3, as amended by Laws 2019, Chapter 206, Section 1 and by Laws 2019, Chapter 207, Section 1) 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. "charter school" means a school authorized by a chartering authority to operate as a public school;
C. "children with disabilities" means children who are either classified as developmentally disabled according to the Developmental Disabilities Act or are classified as having a disability in one or more of the disabilities categories of the federal Individuals with Disabilities Education Act;
[C.] D. "commission" means the public education commission;
[D.] E. "department" means the public education department;
F. "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;
G. "exceptional children" means school-age persons who are gifted, have a developmental disability or have been identified as having a disability in one or more disability categories whose abilities render general education services of the public school to be inconsistent with their educational needs;
H. "gifted child" 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 pursuant to that section;
[E.] I. "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.] J. "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.] K. "licensed school employee" means teachers, school administrators and instructional support providers;
[H.] L. "local school board" means the policy-setting body of a school district;
[I.] M. "local superintendent" means the chief executive officer of a school district;
[J.] N. "parent" includes a guardian or other person having custody and control of a school-age person;
[K.] O. "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.] P. "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;
Q. "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 informing and making education program decisions before testing a student for a possible disability;
[M.] R. "school" means a supervised program of instruction designed to educate a student in a particular place, manner and subject area;
[N.] S. "school administrator" means a person licensed to administer in a school district and includes school principals, central district administrators and charter school head administrators;
[O.] T. "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, who has not received a high school diploma or its equivalent and who has not reached the person's twenty-second birthday on the first day of the school year and meets other criteria provided in the Public School Finance Act;
[P.] U. "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.] V. "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.] W. "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.] X. "school employee" includes licensed and nonlicensed employees of a school district;
[T.] Y. "school principal" means the chief instructional leader and administrative head of a public school;
[U.] Z. "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.] AA. "secretary" means the secretary of public education;
BB. "special education" means the provision of services additional to, supplementary to or different from those provided in the regular school program by individualized modification and adaptation of instructional techniques, materials and equipment based upon the needs of an exceptional child;
[W.] CC. "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.] DD. "state educational institution" means an institution enumerated in Article 12, Section 11 of the constitution of New Mexico;
EE. "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 from general instruction in the general education program before referring the student for special education services;
[Y.] FF. "substitute teacher" means a person who holds a certificate to substitute for a teacher in the classroom;
[Z.] GG. "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.] HH. "certified school instructor" means a licensed school employee whose primary job is to teach; and
[BB.] II. "certified school employee" or "certified school personnel" means a licensed school employee."
SECTION 3. Section 22-8-21 NMSA 1978 (being Laws 1974, Chapter 8, Section 11, as amended) is amended to read:
"22-8-21. SPECIAL EDUCATION PROGRAM UNITS.--
A. For the purpose of the Public School Finance Act, special education programs for exceptional children are those approved by the department and classified as follows:
(1) class A programs, in which [department- certified individuals] licensed teachers and instructional support providers provide services to [children] students whose individualized education programs require a minimal amount of special 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] licensed teachers and instructional support providers provide services to [children] students whose individualized education programs require a moderate amount of special 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] licensed teachers and instructional support providers provide services to [children] students whose individualized education programs require an extensive amount of special 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] licensed teachers and instructional support providers provide services to [children] students whose
individualized education programs require a maximum amount of special education and in which the ratio of students to professionals is regulated by the [state board] department. 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] the Special Education Act; and
(5) programs for developmentally disabled three- and four-year-old children meeting standards approved by the [state board] department.
B. All students assigned to the programs for exceptional children 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] 1.03;
(2) the MEM in approved class C programs as defined in Subsection A of this section multiplied by the cost differential factor [1.0] 1.33;
(3) the MEM in approved class D programs as defined in Subsection A of this section multiplied by the cost differential factor [2.0] 2.33;
(4) the MEM for developmentally disabled three- and four-year-old children as defined in Subsection A of this section multiplied by the cost differential factor [2.0] 2.33; provided that no developmentally disabled three- or four-year-old [student] child shall be counted for additional ancillary service units; and
(5) for [related services ancillary to providing special education] instructional support providers, the number of full-time-equivalent [certified or] licensed [ancillary service and diagnostic service personnel] instructional support providers multiplied by the cost differential factor [25.0] 25.33.
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 4. A new section of the Public School Code is enacted to read:
"[NEW MATERIAL] SHORT TITLE.--Sections 4 through 10 of this act may be cited as the "Special Education Act"."
SECTION 5. A new section of the Public School Code is enacted to read:
"[NEW MATERIAL] SPECIAL EDUCATION--DEFINITIONS.--As used in the Special Education Act:
A. "assistant secretary" means the assistant secretary of special education; and
B. "division" means the special education division."
SECTION 6. Section 22-13-5 NMSA 1978 (being Laws 1972, Chapter 95, Section 1, as amended) is recompiled in the Special Education Act and is amended to read:
"SPECIAL EDUCATION.--School districts and charter schools shall provide special education and related services appropriate to meet the needs of students requiring special education and related services. Rules and standards shall be developed and established by the department for the provision of special education in the public schools and classes of the public school system in the state and in all institutions wholly or partly supported by the state. The department shall monitor and enforce the 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 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 and social skills, arranging for or providing related services as defined by the department 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 7. Section 22-13-6.1 NMSA 1978 (being Laws 1994, Chapter 25, Section 2, as amended) is recompiled in the Special Education Act and is amended to read:
"GIFTED [CHILDREN] STUDENTS--DETERMINATION.--
A. The department shall adopt standards pertaining to the determination of who is a gifted child 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, the department shall provide for the evaluation of selected [school-age children] students by multidisciplinary teams from each [child's] student's school district or charter school. That team shall be vested with the authority to designate a child as gifted. The team shall consider information regarding a child'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 may create as many advisory committees as there are high schools in the school district or may create a single districtwide or charter school advisory committee. The membership of each advisory committee shall reflect the cultural diversity of the enrollment of the school district or charter school and 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 is gifted, the multidisciplinary team shall consider diagnostic or other evidence of the child's:
(1) creativity or divergent-thinking ability;
(2) critical-thinking or problem-solving ability;
(3) intelligence; and
E. 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 gifted programs for those students who meet the established criteria."
SECTION 8. Section 22-13-7 NMSA 1978 (being Laws 1972, Chapter 95, Section 3, as amended) is recompiled in the Special Education Act and is amended to read:
A. The [state board] division 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, in private, nonsectarian, nonprofit training centers and in state institutions under the authority of the secretary of health.
C. The [state board] division 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 or charter schools. 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.
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 9. A new section of the Public School Code is enacted to read:
"[NEW MATERIAL] SPECIAL EDUCATION DIVISION--ASSISTANT SECRETARY FOR SPECIAL EDUCATION--POWERS AND DUTIES.--
A. The "special education division" is created in the department. The secretary shall appoint an "assistant secretary for special education" who shall:
(1) direct the activities of the division and advise the secretary on development of policy regarding the education of special education students;
(2) coordinate transition efforts for special education students in public schools;
(3) coordinate with appropriate administrators and divisions to ensure that department administrators make implementation of special education a priority; and
(4) provide adequate professional development for division staff to develop expertise in the requirements of the federal Individuals with Disabilities Education Act and federal regulations promulgated in accordance with that act.
B. The division shall:
(1) provide assistance, including advice on allocation of resources to school districts and charter schools to improve services to meet the educational and other needs of special education students, based on current published best practices in special education;
(2) seek funds to establish, develop and implement culturally relevant support services for special education students, including:
(a) recruitment and retention of highly qualified special education teachers and instructional support providers who provide special education ancillary services; and
(b) teacher and instructional support provider preparation, induction and professional development;
(3) monitor special education programs in school districts and charter schools to determine if families and students are receiving adequate services, including:
(a) research-based special education services appropriate for individual student needs;
(b) best practices for special education staff and families to design appropriate services, including: 1) assessments; 2) individualized education plans; 3) student-centered goals, interventions and plans; 4) appropriate interventions; 5) transition plans; 6) reevaluation every three years; and 7) student exit plans from special education; and
(c) on-site focus monitoring based on school and student data that includes parents and leads to yearly monitored plans;
(4) provide school districts and charter schools with support for the development of culturally rooted and multicultural education curriculum and pedagogy for all students of all ability levels;
(5) encourage the use of health education, the arts, physical education and extended learning programs as avenues for developing special education students' multiple literacies and capacities for learning through exploration, play and enrichment;
(6) help school districts and charter schools find education placement options for cognitive, social and emotional development goals for students with severe behavioral needs who are at risk of harming themselves or others;
(7) assist school districts and charter schools with developing transition plans with students, including from high school to post-secondary education plans;
(8) monitor curriculum and services provided to students in alternative settings due to suspension and ensure that the educational services fully comply with constitutional and statutory requirements for services to special education students;
(9) monitor where school discipline and lack of adequate service lead to prison; (10) monitor public schools' processes for developing and implementing individualized education plans;
(11) monitor the manifestation process;
(12) monitor the use of safe and uncovered classroom doors and windows, so as not discriminating against children with disabilities in use of coverings;
(13) monitor the use of seclusion rooms and recommend that they only be used under the supervision of a school psychologist, with that psychologist supervising on-site during the time of seclusion; and
(14) monitor the use of interventions, adaptations and modifications as being determined for each individual student based on the student's diagnostic report and individualized educational plan.
C. The department shall work with school districts and charter schools, the university of New Mexico center for development and disability, the human services department, the children, youth and families department, the department of health and other experts to develop and maintain a statewide autism spectrum registry so that appropriate stakeholders can identify and support children and students on the autism spectrum."
SECTION 10. APPROPRIATION.--One million dollars ($1,000,000) is appropriated from the general fund to the public education department for expenditure in fiscal year 2021 to provide all teachers and school staff, including administrators, school resource officers, education assistants and substitute teachers, with professional development to effectively work with and meet the instructional needs of students with special needs in the classroom. Any unexpended or unencumbered balance remaining at the end of fiscal year 2021 shall revert to the general fund.
SECTION 11. TEMPORARY PROVISION--RECOMPILATION.--Section 22-13-8 NMSA 1978 (being Laws 2009, Chapter 162, Section 1) is recompiled in the Special Education Act.
SECTION 12. REPEAL.--Section 22-13-6 NMSA 1978 (being Laws 1972, Chapter 95, Section 2, as amended) is repealed.
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