HB0297ECS

HOUSE EDUCATION COMMITTEE SUBSTITUTE FOR

HOUSE BILL 297

53rd legislature - STATE OF NEW MEXICO - second session, 2018

AN ACT

RELATING TO SCHOOL ATTENDANCE; ENACTING THE ATTENDANCE FOR SUCCESS ACT; PROVIDING FOR EARLIER AND MORE INTENSIVE INTERVENTION FOR STUDENTS WHO ARE ABSENT OR EXCESSIVELY ABSENT; DEFINING TERMS; PROVIDING A PROCESS THAT PROGRESSES FROM INFORMAL INTERVENTION THROUGH PARENTAL NOTIFICATION AND INTERVENTION TO REFERRAL TO THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT AND POTENTIAL SUSPENSION OF AN EXCESSIVELY ABSENT STUDENT'S DRIVER'S LICENSE; REQUIRING DATA COLLECTION AND USE; REPEALING THE COMPULSORY SCHOOL ATTENDANCE LAW.

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

SECTION 1. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] SHORT TITLE.--Sections 1 through 16 of this act may be cited as the "Attendance for Success Act"."

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

"[NEW MATERIAL] DEFINITIONS.--As used in the Attendance for Success Act:

A. "absent" means not in attendance for a class or school day for any reason, whether excused or not; provided that "absent" does not apply to attendance at interscholastic extracurricular activities;

B. "attendance officer" means the person in the public school assigned by the school principal or head administrator of a charter school to maintain and report absences, excessive absences and chronic absences and notify a parent of the parent's student's failure to attend school;

C. "chronically absent" or "chronic absenteeism" means a student has missed ten percent or more of school days when enrolled for more than ten days;

D. "excessively absent" or "excessive absenteeism" means a student has ten or more unexcused absences, including suspensions, from classes or school days;

E. "excused absence" means absence from a class or school day for medical absence, religious instruction or tribal obligations;

F. "interscholastic extracurricular activities" means those activities sponsored by the public school or an organization whose principal purpose is the regulation, direction, administration and supervision of interscholastic activities in public schools;

G. "medical absence" or "medically absent" means a student is not in attendance for a class or a school day for a parent- or doctor-authorized medical reason or the student is a pregnant or parenting student;

H. "school day" means a portion of the school day that is more than two classes;

I. "school principal" includes the charter school administrator responsible for student attendance;

J. "student" means a school-age person who attends a public school; and

K. "unexcused absence" means an absence from a class or school day for which the student does not have an allowable excuse pursuant to the Attendance for Success Act or policies of the local school board or governing authority of a charter school."

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

"[NEW MATERIAL] RIGHT TO EDUCATION.--All school-age persons in the state shall have a right to a free public education as follows:

A. except for school-age persons who are detained in a state or local detention center or enrolled or residing in state institutions other than those school-age persons provided for in Subsection C of this section, a school-age person has a right to attend public school within the school district in which the person resides;

B. except as provided in Subsection C of this section, the state or local detention center or state institution in which a school-age person is detained, enrolled or residing shall be responsible for providing educational services for the school-age person; and

C. 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 shall have a right to attend public school in the school district in which the institution in which the 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."

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

"[NEW MATERIAL] SCHOOL ATTENDANCE--RESPONSIBILITY--PRIVATE SCHOOL ATTENDANCE POLICIES.--

A. Except as otherwise provided, a school-age person shall attend public school, private school, home school or a state institution until the school-age person is at least eighteen years of age unless that person has graduated from high school, received a high school equivalency credential or withdrawn from school on a hardship waiver. A parent may give written, signed permission for the school-age person to leave school between the ages of sixteen and eighteen in case of hardship approved by the local superintendent or the head administrator of a charter school or private school.

B. A school-age person subject to the provisions of the Attendance for Success Act shall attend school for at least the length of time of the school year that is established in that person's school district, charter school or private school. The school district, charter school or private school shall not excuse a school-age person from attending school except as provided in that act.

C. The parent of a school-age person subject to the provisions of the Attendance for Success Act is responsible for the school attendance of that person.

D. Each local school board and each governing body of a charter school or private school shall enforce the provisions of the Attendance for Success Act for students enrolled in their respective schools.

E. Every private school in this state shall have an attendance policy that as closely as practicable follows the law for public schools. All school-age persons and the parents of the school-age persons attending a private school shall be given a copy of the private school's attendance policy each year."

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

"[NEW MATERIAL] PUBLIC SCHOOL ATTENDANCE.--

A. Local school boards may admit as students school-age persons who do not live within the school district to the public schools within the school district when there are sufficient school accommodations to provide for them.

B. Local school boards may allow students to transfer to a public school outside the student's attendance zone but within the school district when there are sufficient school accommodations to provide for them.

C. Local school boards shall charge a tuition fee for the right to attend public school within the school district to those school-age persons who do not live within the state. The tuition fee shall not exceed the amount generated by the public school fund for a student similarly situated within the school district for the current school year.

D. When the parent of a student not living in the state pays an ad valorem property tax for school purposes within the school district, the amount of the tuition payable for the school year shall be reduced by the district average ad valorem tax per student as determined by the ad valorem tax credit used in calculating the state equalization guarantee distribution."

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

"[NEW MATERIAL] PUBLIC SCHOOL ATTENDANCE POLICIES--REPORTING.--

A. Each public school shall maintain an attendance policy that:

(1) provides for early identification of students with absences and students in need of intervention before excessive absenteeism begins;

(2) provides intervention strategies that focus on:

(a) keeping students in an educational setting;

(b) prohibiting out-of-school suspension and expulsion as the punishment for absences and excessive absenteeism; and

(c) assisting a student's family to remove barriers to the student's regular school attendance or attendance in another educational setting;

(3) limits the use of withdrawal as provided in Section 22-8-2 NMSA 1978 only after exhausting all intervention efforts by the public school or the children, youth and families department to keep students in educational settings;

(4) requires that accurate class attendance be taken for every instructional class and school day in every public school or school program;

(5) provides for public schools to document the following for each absent or excessively absent student:

(a) differentiation for medical absence, religious instruction and tribal obligations, interscholastic extracurricular activities and chronic absenteeism for data purposes;

(b) attempts by the school to notify the parent that the student was absent from class or the school day;

(c) attempts to improve attendance informally by talking to the student or parent and finding solutions to barriers to school attendance or changes to the student's attendance behavior;

(d) attempts of the school to meet formally with the parent to discuss necessary interventions for the student or the family; and

(e) intervention strategies implemented to support keeping the student in an educational setting; and

(6) requires a student or parent of a student who wants to claim excused absence because of medical condition, pregnancy or parenting to communicate the student's status to the appropriate school personnel and provide required documentation.

B. The school district or the governing body of a charter school shall review and approve public school attendance policies.

C. School districts and charter schools shall report absences, excessive absences and chronic absences data to the department at the end of each grading period and shall document intervention efforts made to keep students in an educational setting. The department shall compile school district and charter school reports on types of absences, rates of absences and chronic absenteeism and require school districts and charter schools to certify that the information is being reported consistently and correctly. The department shall share information from state-chartered charter schools with the commission.

D. Every public school shall provide a copy of the public school's attendance policy to all parents of students in that school. The attendance policy shall include:

(1) the rights and obligations of parents and students pursuant to the Attendance for Success Act;

(2) the interventions and strategies that will be implemented to ensure that students attend classes; and

(3) details about consequences of failing to adhere to the attendance policy."

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

"[NEW MATERIAL] ENFORCEMENT OF ATTENDANCE FOR SUCCESS ACT--PROCEDURES.--

A. Each public school shall initiate the enforcement of the provisions of the Attendance for Success Act for its enrolled students. The enforcement policies of each public school shall focus on prevention and intervention.

B. Every public school shall provide interventions to students who are absent or chronically absent, which may include:

(1) assessing student and family needs and matching those needs with appropriate public or private providers, including civic and corporate sponsors;

(2) making referrals to health care and social service providers;

(3) collaborating and coordinating with health and social service agencies and organizations through school-based and off-site delivery systems;

(4) recruiting service providers and business, community and civic organizations to provide needed services and goods that are not otherwise available to a student or the student's family;

(5) establishing partnerships between the school and community organizations such as civic, business and professional groups and organizations and recreational, social and after-school programs such as boys' and girls' clubs and boy and girl scouts;

(6) identifying and coordinating age-appropriate resources for students in need of:

(a) counseling, training and placement for employment;

(b) drug and alcohol abuse counseling;

(d) mental health counseling;

(7) promoting family support and parent education programs; and

(8) seeking out other services or goods a student or the student's family needs to assist the student to stay in school and succeed.

C. Beginning on the first day of school, every classroom teacher or that teacher's adult designee shall be responsible for taking accurate attendance for every class and report absences to the attendance officer. The attendance officer, in cooperation with the student's classroom teacher, shall identify patterns of behavior related to absences and report that information to the school principal."

SECTION 8. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] MEDICAL APPOINTMENTS--ILLNESS--EXCUSED ABSENCE--MAKE-UP WORK.--Students may be excused for parent- or doctor-authorized medical reasons. The public school shall provide time for the student to make up the school work missed during the absence. If the student does not make up the school work within a reasonable time, the absence may be counted as unexcused."

SECTION 9. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] ATTENDANCE POLICY FOR PREGNANT AND PARENTING STUDENTS--EXCUSED ABSENCE--MAKE-UP WORK.--

A. Each school district and charter school shall maintain an attendance policy that:

(1) provides at least ten days of medical absences during the school year for a student who provides documentation of the birth of the student's child, and the public school shall provide time for the student to make up the school work missed during the absence. If the student does not make up the school work within a reasonable time, the absence may be counted as unexcused; and

(2) provides four days of excused absences for a student who provides appropriate documentation of pregnancy or that the student is the parent of a child under the age of thirteen needing care, and the public school shall provide time for the student to make up the school work missed during the absence. If the student does not make up the school work within a reasonable time, the absence may be counted as unexcused.

B. A school district that has an alternative school for, among others, pregnant and parenting students, and that allows for off-site attendance through on-line education shall not count students as absent as long as the students are on-line with the school or other appropriate virtual course and complete their class assignments."

SECTION 10. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] RELIGIOUS INSTRUCTION--EXCUSED ABSENCE--MAKE-UP WORK.--A student may, subject to the approval of the school principal, be absent from school to participate in religious instruction for not more than one class period per school day with the written consent of the student's parent at a time that is not in conflict with the academic program of the school and the student's academic class schedule. The public school shall provide time for the student to make up the school work missed during the absence. If the student does not make up the school work within a reasonable time, the absence may be counted as unexcused. The school district or the public school shall not assume responsibility for the religious instruction of any student or permit religious instruction to be conducted on school property."

SECTION 11. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] TRIBAL OBLIGATIONS--EXCUSED ABSENCE--MAKE-UP WORK.--A public school student, with the written consent of the student's parent and subject to the approval of the school principal, may be absent from school to participate in tribal obligations. The public school shall provide time for the student to make up the school work missed during the absence. If the student does not make up the school work within a reasonable time, the absence may be counted as unexcused."

SECTION 12. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] INTERSCHOLASTIC EXTRACURRICULAR ACTIVITIES--STUDENT PARTICIPATION.--

A. A public school student must have at least a 2.0 grade point average on a 4.0 scale, or its equivalent, either cumulatively or for the grading period immediately preceding participation, to be eligible to participate in any interscholastic extracurricular activity. For purposes of this section, "grading period" is a period of time not less than six weeks. The provisions of this subsection shall not apply to students receiving C or D level special education services.

B. A student shall not be absent from school for interscholastic extracurricular activities in excess of fifteen days per semester, and no class may be missed in excess of fifteen times per semester for interscholastic extracurricular activities.

C. The secretary may issue a waiver relating to the number of absences for participation in any state or national competition that is not an interscholastic extracurricular activity. The secretary shall develop a procedure for petitioning cumulative provision eligibility cases, similar to other eligibility situations.

D. Student standards for participation in interscholastic extracurricular activities shall be applied beginning with a student's academic record in ninth grade."

SECTION 13. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] PROGRESSIVE INTERVENTIONS FOR ABSENT AND EXCESSIVELY ABSENT STUDENTS.--

A. Every public school shall provide interventions for students who are missing school, depending on the number of absences. The process for notification and provision of interventions is:

(1) for a student who has three unexcused absences, five excused absences or a combination of unexcused and excused absences totaling five absences, interventions as follows:

(a) for elementary students, the attendance officer shall talk to the parent and inform the parent of the student's attendance history, the impact of student absences on student academic outcomes, the available interventions or services available to the student or family and the consequences of further absences, including referral to the children, youth and families department for excessive absenteeism; and

(b) for a middle or high school student, the attendance officer shall talk to the parent and the student about the student's attendance history and the impact of student absences on student academic outcomes, available interventions or services available to the student or family and the consequences of further absences, including referral to the children, youth and families department for excessive absenteeism;

(2) for students who have five unexcused absences, seven excused absences or a combination of unexcused and excused absences totaling seven absences, the attendance officer shall notify the parent in writing by mail or personal service on the parent of the student's absenteeism. The notice shall include a date, time and place for the parent to meet with the public school to develop intervention strategies that focus on keeping the student in an educational setting. A student assistance team shall be convened to establish a specific intervention plan for the student that includes establishing a weekly progress monitoring and a contract for attendance;

(3) for a student who has more than seven absences, whether excused, unexcused or a combination of excused and unexcused absences:

(a) the attendance officer shall again give written notice to the parent, including a date, time and place for the parent to meet with the school principal or head administrator and the student assistance team;

(b) the student assistance team shall establish nonpunitive consequences at the school level; and

(4) for a student who has excessive absences, the public school shall refer the student to the children, youth and families department.

B. Each public school shall initiate the enforcement of the provisions of the Attendance for Success Act for excessively absent students.

C. The school principal shall consult with a student's teacher and initiate meetings with the teacher and the student and the parent if the alleged cause of absence from class is teacher-student incompatibility."

SECTION 14. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] EXCESSIVE ABSENTEEISM--NEGLECTED CHILD OR CHILD OR FAMILY IN NEED OF FAMILY SERVICES--CASEWORKER--ENFORCEMENT--DRIVER'S LICENSE SUSPENSION--PENALTY.--

A. If unexcused absences continue after written notice of excessive absenteeism as provided in Section 13 of the Attendance for Success Act has occurred, the school principal or head administrator, after consultation with the local superintendent or the governing board of the charter school, shall report the excessively absent student to the children, youth and families department. The children, youth and families department shall investigate whether the student should be considered to be a neglected child or a child in a family in need of family services because of excessive absenteeism and thus subject to the provisions of the Children's Code. The record of the public school's interventions and the student's and parent's responses to the interventions shall be provided to the children, youth and families department. If the children, youth and families department determines the student is a child in a family in need of family services, a caseworker from the child or family in need of family services program shall meet with the family at the public school in which the student is enrolled to determine if there are other intervention services that may be provided. The meeting shall involve the school principal or other school personnel and, unless the parent objects in writing, appropriate community partners that provide services to children and families. The children, youth and families department shall determine if additional interventions, including monitoring, will positively affect the student's behavior.

B. If the student has a driver's license, the caseworker assigned to the student shall notify the student and the parent at the meeting provided for in Subsection A of this section that if the child or family in need of family services does not see behavioral improvements, including class or school day attendance, the caseworker shall report the student's noncompliance to the public education department and the student's driver's license shall be suspended. The notification provided for in this subsection serves as notice for purposes of due process.

C. No later than thirty days after the meeting, the caseworker shall notify the public school and the public education department of the student's progress. If the student has refused interventions, including placement in an alternative educational setting, and the student's attendance behavior has not improved, the caseworker shall notify the motor vehicle division of the taxation and revenue department that the student's driver's license is suspended. The caseworker shall notify the public education department and shall forward the student's record to the public education department.

D. The motor vehicle division shall issue a notice of suspension to the student. The student or the student's parent may request an administrative hearing to oppose the suspension. Unless reinstatement is required as a result of a hearing, a suspended license pursuant to this section shall continue until the:

(1) child or family in need of family services issues a written certificate of compliance to the student;

(2) student presents the certificate of compliance to the motor vehicle division; and

(3) student pays the motor vehicle division the reinstatement fee required by Section 66-5-33.1 NMSA 1978.

E. If a student turns eighteen or withdraws from school under a hardship waiver and leaves school during the period of suspension, the student's driver's license shall be reinstated."

SECTION 15. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] DATA REPORTING.--Each school district and charter school shall collect and report to the department excessive and chronic absenteeism rates for each school in the aggregate and disaggregated by the subgroups required for federal Every Student Succeeds Act reporting, including the:

A. total number of students excessively absent who were referred to the children, youth and families department;

B. total number of students chronically absent in the aggregate and for each subgroup;

C. average number of unexcused absences per student for all students and each subgroup;

D. average number of excused absences per student for all students and each subgroup, including the number of average absences for religious instruction, tribal obligations and medical absences;

E. average number of days or class periods missed per student for all students and each subgroup due to interscholastic extracurricular activities; and

F. calculated rate of chronic absenteeism for the school district for all students and each subgroup."

SECTION 16. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] TIMELY GRADUATION AND SUPPORT FOR STUDENTS WHO EXPERIENCE DISRUPTION IN THE STUDENT'S EDUCATION.--

A. For purposes of this section, "a student who has experienced a disruption in the student's education" means a student who experiences one or more changes in school or school district enrollment during a single school year as the result of:

(1) homelessness as defined in the federal McKinney-Vento Homeless Assistance Act and as determined by the school or school district;

(2) adjudication:

(a) as an abused or neglected child as determined by the children, youth and families department pursuant to the Abuse and Neglect Act;

(b) as part of a family in need of court-ordered services voluntary placement pursuant to the Family Services Act; or

(3) placement in a mental health treatment facility or habilitation program for developmental disabilities pursuant to the Children's Mental Health and Developmental Disabilities Act or placement in treatment foster care.

B. When a student who has experienced a disruption in the student's education transfers to a new public school or school district, the receiving school or school district shall communicate with the sending school district within two days of the student's enrollment. The sending school or school district shall provide the receiving school or school district with any requested records within two days of having received the receiving school's or school district's communication.

C. A student who has experienced a disruption in the student's education transferring to a new school as the result of circumstances set forth in this section shall have:

(1) priority placement in classes that meet state graduation requirements; and

(2) timely placement in elective classes that are comparable to those in which the student was enrolled at the student's previous school or schools as soon as the school or school district receives verification from the student's records.

D. For a student who has experienced a disruption in the student's education at any time during the student's high school enrollment, a school district and public schools shall ensure:

(1) acceptance of the student's state graduation requirements for a diploma of excellence pursuant to the Public School Code;

(2) equal access to participation in sports and other extracurricular activities, career and technical programs or other special programs for which the student qualifies;

(3) timely assistance and advice from counselors to improve the student's college or career readiness; and

(4) that the student receives all special education services to which the student is entitled."

SECTION 17. Section 32A-3A-2 NMSA 1978 (being Laws 1993, Chapter 77, Section 64, as amended) is amended to read:

"32A-3A-2. DEFINITIONS.--As used in the Family Services Act:

A. "child or family in need of family services" means:

(1) a family whose child's behavior endangers the child's health, safety, education or well-being;

(2) a family whose child is excessively absent from public school;

[(2)] (3) a family whose child is absent from the child's place of residence for twenty-four hours or more without the consent of the parent, guardian or custodian;

[(3)] (4) a family in which the parent, guardian or custodian of a child refuses to permit the child to live with the parent, guardian or custodian; or

[(4)] (5) a family in which the child refuses to live with [his] the child's parent, guardian or custodian; and

B. "family services" means services that address specific needs of the child or family."

SECTION 18. Section 32A-3A-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 65, as amended) is amended to read:

"32A-3A-3. REQUEST FOR FAMILY SERVICES--WITHDRAWAL OF REQUEST--PRESUMPTION OF GOOD FAITH.--

A. Any child or family member who has a reasonable belief that the child or family is in need of family services may request family services from the department.

B. Any person, including a public or private school principal, who has a reasonable belief that a child or family is in need of family services may submit a referral to the department.

C. A family that requests or accepts family services may withdraw its request for or acceptance of family services at any time.

D. A person who refers a child or family for family services is presumed to be acting in good faith and shall be immune from civil or criminal liability, unless the person acted in bad faith or with malicious purpose."

SECTION 19. REPEAL.--Sections 22-12-1 through 22-12-10 NMSA 1978 (being Laws 1967, Chapter 16, Sections 169 and 170; Laws 1986, Chapter 33, Section 27; Laws 1971, Chapter 238, Section 1; Laws 2013, Chapter 198, Section 1; Laws 1978, Chapter 211, Section 10; Laws 1967, Chapter 16, Sections 172 and 175; Laws 1985, Chapter 104, Section 1; Laws 2004, Chapter 28, Section 1; and Laws 2017, Chapter 53, Section 1 and Laws 2017, Chapter 85, Section 1, as amended) are repealed.

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