N.M. Admin. Code § 6.31.2.10

Current through Register Vol. 35, No. 20, October 22, 2024

Section 6.31.2.10 - IDENTIFICATION, EVALUATIONS, AND ELIGIBILITY DETERMINATIONS

A. Child find. Each public agency shall adopt and implement policies and procedures to ensure that all children with disabilities who reside within the public agency's educational jurisdiction, including children with disabilities attending private schools or facilities such as residential treatment centers, day treatment centers, hospitals, mental health institutions, detention and correctional facilities, children who are schooled at home, highly mobile children, children who reside on Indian reservations, and children who are advancing from grade to grade, regardless of the severity of their disability, and who are in need of special education and related services, are located, evaluated, and identified in compliance with all applicable requirements of 34 CFR Secs. 300.111, 300.131, 300.301 through 300.306, and these or other department rules and standards. For preschool children, child find screenings shall serve as interventions under Subsection B of 6.31.2.10 NMAC.

B. The public agency shall follow the multi-layered system of supports as a proactive system for early intervention for students who demonstrate a need for educational support for learning as set forth in Subsection D of 6.29.1.9 NMAC. This support shall be provided regardless of whether a student has been referred for a full and individual evaluation for special education and related services or has been identified as eligible for special education.

(1) A student's participation in the multi-layered system of supports does not prevent the full and individual evaluation for special education of the student.

(2) A student may receive a full and individual evaluation for special education and related services at any time before, during, or after the implementation of the multi-layered system of supports. A parent may request a full and individual evaluation or special education and related services at any time.

(3) If the student is suspected of having a disability and demonstrates an obvious need for special education or related services by reason thereof, then the student shall be referred for a full and individual evaluation for special education without undue delay.

C. Evaluations and reevaluations.

(1) Initial evaluations.

(a) Each public agency shall conduct a full and individual initial evaluation, at no cost to the parent, and in compliance with requirements of 34 CFR Secs. 300.305 and 300.306 and other department rules and standards before the initial provision of special education and related services to a child with a disability.

(b) Each public agency shall follow evaluation procedures in compliance with applicable requirements of 34 CFR Secs. 300.301, 300.304, and 300.305, and other department rules and standards to determine:

(i) if the child is a child with a disability under 34 CFR Sec. 300.8; and

(ii) the educational needs of the child.

(2) Reevaluations.

(a) Each public agency shall ensure that a reevaluation of each child is conducted at least once every three years, unless the parent and the public agency agree that a reevaluation is unnecessary.

(b) Reevaluations shall be conducted more often than every three years if:

(i) the public agency determines the educational or related service needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or

(ii) the child's parent or teacher requests a reevaluation.

(c) Reevaluations may not occur more than once a year, unless the parent and public agency agree otherwise.

(d) Each public agency shall follow evaluation procedures in compliance with applicable requirements of 34 CFR Secs. 300.304 and 300.305 and other department rules or standards.

(3) Evaluation before termination of eligibility.

(a) Pursuant to 34 CFR Sec. 300.305(e)(1), each public agency shall evaluate a child with a disability in accordance with 34 CFR Secs. 300.304 through 300.311 before determining that the child is no longer a child with a disability.

(b) Pursuant to 34 CFR Sec. 300.305(e)(2), evaluation before termination of eligibility is not required when a child graduates from secondary school with a regular high school diploma or the termination is due to the child exceeding the age of eligibility for special education upon turning 22 years old. In these circumstances, the public agency must provide the child with a summary of the child's academic achievement and functional performance, including recommendations on how to assist the child in meeting postsecondary goals as required by 34 CFR Sec. 300.305(e)(3).

(4) The public agency shall document its attempts to obtain parental consent.

D. Evaluation requests and referrals.

(1) Either a parent of a child or a public agency may initiate a request for a full and individual evaluation to determine if the child is a child with a disability or may request a reevaluation to determine if the child's educational needs have changed.

(2) The request for initial evaluation or reevaluation by a parent may be made in writing or orally to any licensed personnel of the school in which the student attends. A parental request for a full and individual evaluation shall be forwarded or communicated to the school or district special education director or a school or district administrator as soon as possible after it is received.

(3) The public agency shall respond to a parental request for initial evaluation or reevaluation to the public agency no later than 15 school days from the receipt of the request. If a parent request for an evaluation or reevaluation is received within 15 school days before the start of a scheduled period in which student attendance is not required for at least 14 calendar days, the public agency shall respond no later than 30 calendar days from the date of the request.

(4) The public agency shall respond to a parental request for initial evaluation or reevaluation by:

(a) providing prior written notice consistent with 34 CFR Sec. 300.503 that proposes to conduct the requested evaluation or reevaluation, providing a copy of the procedural safeguards notice to parents required by 34 CFR Sec. 300.504, and seeking parental consent for the evaluation; or

(b) providing prior written notice consistent with 34 CFR Sec. 300.503 of the public agency's refusal to conduct the evaluation or reevaluation and a copy of the procedural safeguards notice required by 34 CFR Sec. 300.504.

(5) When the public agency makes a referral for an evaluation without a parental request, the public agency shall provide prior written notice consistent with 34 CFR Sec. 300.503 that proposes to conduct the requested evaluation or reevaluation, providing a copy of the procedural safeguards notice to parents required by 34 CFR Sec. 300.504, and seek parental consent for the evaluation no later than 15 school days from the referral. If a referral for an evaluation or reevaluation is made within 15 school days before the start of a scheduled period in which student attendance is not required for at least 14 calendar days, the public agency shall request parental consent no later than 30 calendar days from the date of the referral.

(6) The parent may use the IDEA procedural safeguards of mediation, state complaint, or due process hearing as set forth in 6.31.12.13 NMAC to challenge the public agency's response to a request for evaluation or reevaluation, or the failure to respond to a parent's request for evaluation or reevaluation.

E. Consent for evaluation.

(1) The public agency shall provide notice to the parents of a child with a disability that describes any evaluation procedures the public agency proposes to conduct in compliance with 34 CFR Sec. 300.503.

(2) The public agency shall obtain written informed parental consent for the initial evaluation or reevaluation in accordance with the requirements of 34 CFR Sec. 300.300 and subsection of F of 6.31.2.13 NMAC prior to conducting any evaluation.

(3) The public agency may pursue an evaluation or reevaluation by using the consent override procedures described in 34 CFR Sec. 300.300(a)(3).

(4) The public agency shall document its attempts to obtain parental consent.

F. Timelines for evaluations.

(1) Each public agency shall maintain a record of the receipt, processing, and disposition of any request or referral for an initial evaluation or reevaluation. All appropriate evaluation data, including complete Student Assistance Team file documentation, multi-layered system of supports data, and summary reports from all individuals evaluating the child shall be reported in writing for presentation to the eligibility determination team.

(2) The initial evaluation and written evaluation report shall be completed within 60 calendar days of receiving parental consent for evaluation.

(3) Exception to the 60-day time frame. The requirements of this subsection do not apply if:

(a) the parent of a child repeatedly fails or refuses to produce the child for the evaluation; or

(b) the child enrolls in a school of another public agency after the 60-day time frame in this subsection has begun and prior to a determination by the child's previous public agency as to whether the child is a child with a disability under 34 CFR Sec. 300.8. This applies only if the subsequent public agency is making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent public agency agree to a specific time when the evaluation will be completed.

G. Procedures for conducting evaluations and reevaluations.

(1) Each public agency shall ensure that the child is evaluated in all areas related to the suspected disability and shall ensure that the evaluation is sufficiently comprehensive to identify all of the child's special education and related service needs, regardless of whether they are commonly linked to the disability category in which the child has been classified. The public agency shall follow the procedures for evaluations and reevaluations established by 34 CFR Secs. 300.304 and 300.305, department rules, and standards for evaluations and reevaluations set forth in the New Mexico technical evaluation and assessment manual (New Mexico T.E.A.M.).

(2) The initial evaluation, if appropriate, and any reevaluations shall begin with a review of existing information by a group that includes the parents, the other members of a child's IEP team and other qualified professionals, as appropriate, to determine what further evaluations and information are needed to address the question in 34 CFR Sec. 300.305(a)(2). Pursuant to 34 CFR Sec. 300.305(b), the group may conduct its review without a meeting.

(3) In conducting an evaluation, the public agency shall:

(a) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the child's family that may assist:

(i) in determining if the child is a child with a disability; and

(ii) the content of the child's IEP, including information related to assisting the child to be involved and progress in the general education curriculum or for a preschool child to participate in appropriate activities.

(b) not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child; and

(c) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

(4) The public agency shall provide the parents with a written report of the evaluation or reevaluation at least two calendar days before the eligibility determination team meeting.

H. Procedural requirements for the assessment and evaluation of culturally and linguistically diverse children.

(1) Each public agency shall ensure that tests and other evaluation materials used to assess children are selected, provided, and administered so as not to be discriminatory on a racial or cultural basis and are provided and administered in the child's native language or other mode of communication, such as American sign language, and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally and functionally, unless it is clearly not feasible to select, provide, or administer pursuant to 34 CFR Sec. 300.304(c)(1).

(2) Each public agency shall consider information about a child's language proficiency in determining how to conduct the evaluation of the child to prevent misidentification. A child may not be determined to be a child with a disability if the determinant factor for that eligibility determination is limited English proficiency. Comparing academic achievement results with grade level peers in the public agency with similar cultural and linguistic backgrounds should guide this determination process and ensure that the child is exhibiting the characteristics of a disability and not merely language difference in accordance with 34 CFR Sec. 300.306(b)(1).

(3) Public agencies in New Mexico shall devote particular attention to the foregoing requirements in light of the state's cultural and linguistic diversity. Persons assessing culturally or linguistically diverse children shall consult appropriate professional standards to ensure that their evaluations are not discriminatory and shall include appropriate references to such standards and concerns in their written reports.

(4) Policies for public agency selection of assessment instruments include:

(a) assessment and evaluation materials and methods that are tailored to assess specific areas of educational need; and

(b) assessments that are selected to ensure that results accurately reflect the child's aptitude or achievement level.

I. Independent education evaluations.

(1) The parents of a child who disagree with an evaluation or reevaluation of their child obtained by the public agency have the right to obtain an independent educational evaluation of the child at public expense pursuant to 34 CFR Sec. 300.502 and this subsection. A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

(2) If a parent requests an independent educational evaluation at public expense, the public agency shall, without unnecessary delay:

(a) file a due process complaint to show its evaluation is appropriate; or

(b) ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing the evaluation obtained by the parent did not meet agency criteria.

(3) If a parent requests an independent educational evaluation at public expense, the public agency may ask for the parent's reasons why he or she objects to the public agency evaluation, but may not require that parent to provide an explanation. The public agency may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public agency evaluation.

(4) If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense and the evaluation meets agency criteria, the public agency must consider the evaluation in any decision made with respect to the provision of FAPE to the child and the evaluation may be presented as evidence at a due process hearing regarding the child.

J. Eligibility determinations.

(1) Upon completing the full and individual evaluation and written evaluation report, the public agency shall convene a meeting of the eligibility determination team, which shall include the parent and a group of qualified professionals, within 15 school days to determine whether the child is a child with a disability and requires special education and related services, as defined in 34 CFR Sec. 300.8 and Paragraph (2) of Subsection B of 6.31.2.7 NMAC. If an individual evaluation is completed during a scheduled period in which student attendance is not required for at least 14 calendar days, the public agency shall convene both a meeting of the eligibility determination team and (if the child is determined eligible) a meeting of the IEP team to develop or revise the child's IEP no later than 15 school days from the first day when student attendance resumes. The determination shall be made in compliance with all applicable requirements of 34 CFR Sec. 300.306 and these or other department rules and standards and, for a child suspected of having a specific learning disability, in compliance with the additional procedures of 34 CFR Secs. 300.307 through 300.311, and these or other department rules, policies, and standards. The eligibility determination team meeting includes a review of the full and individual evaluation to determine:

(a) the educational needs of the child;

(b) if the child is a child with a disability; and

(c) if the child requires special education and related services as a result of the disability.

(2) Optional use of developmentally delayed classification for children aged three through nine.

(a) The developmentally delayed classification may be used at the option of individual local educational agencies but may only be used for children who are not eligible for special education under any other disability category.

(b) Children who are eligible as children with developmental delay shall be reevaluated during the school year in which they turn nine and will no longer be eligible in this category when they become 10. A student who is not eligible for special education and related services under any other eligibility category at age 10 will no longer be eligible for special education and related services.

K. Criteria for identifying children with suspected specific learning disabilities.

(1) Each public agency shall use the multi-layered system of supports for students suspected of having a specific learning disability, consistent with the department rules, policies, and standards for children who are being referred for evaluation due to a suspected disability under the specific learning disability category in compliance with 34 CFR Sec. 300.307.

(a) The public agency shall, subject to Subparagraph (d) of this Paragraph, require that the group established under 34 CFR Secs. 300.306(a)(1) and 300.308 for the purpose of determining eligibility of students suspected of having a specific learning disability, consider data obtained during implementation of the multi-layered system of supports in making an eligibility determination.

(b) To ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the group shall consider, as part of the evaluation required in 34 CFR Secs. 300.304 through 300.306:

(i) data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel; and

(ii) data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child's parents.

(c) The documentation of the determination of eligibility, as required by 34 CFR Sec. 300.306(c)(1), shall meet the requirements of 34 CFR Sec. 300.311, including:

(i) a statement of the basis for making the determination and an assurance that the determination has been made in accordance with 34 CFR Sec. 300.306(c)(1);

(ii) a statement whether the child does not achieve adequately for the child's age or to meet state-approved grade-level standards consistent with 34 CFR Sec. 300.309(a)(1);

(iii) a statement whether the child does not make sufficient progress to meet age or grade-level standards consistent with 34 CFR Sec. 300.309(a)(2)(i), or the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, grade level standards, or intellectual development consistent with 34 CFR Sec. 300.309(a)(2)(ii); and

(iv) if the child has participated in a process that assesses the child's response to scientific, research-based intervention: a statement of the instructional strategies used and the student-centered data collected; documentation that the child's parents were notified about the state's policies regarding the amount and nature of student performance data that would be collected and the general education services that would be provided; strategies for increasing the child's rate of learning; and the parents' right to request an evaluation.

(d) A parent may request a full and individual evaluation for eligibility for special education at any time during the public agency's implementation of the multi-layered system of supports. If the public agency agrees with the parent that the child may be a child who is eligible for special education services, the public agency shall evaluate the child. If the public agency declines the parent's request for an evaluation, the public agency shall issue prior written notice in accordance with 34 CFR Sec. 300.503 and Subsection D of this section. The parent may challenge the decision to decline a request for evaluation by requesting mediation or a due process hearing or by submitting a state complaint.

(2) Preschool children suspected of having a specific learning disability shall be evaluated in accordance with Subparagraph (f) of Paragraph (5) of Subsection A of 6.31.2.11 NMAC and 34 CFR Secs. 300.300 through 300.305.

(3) Public agencies shall use the dual discrepancy model to identify children with specific learning disabilities in kindergarten through grade 12 as described in the New Mexico technical evaluation and assessment manual. When using this model, public agencies shall utilize information provided, in part, by the student assistance team, as well as data and information obtained through the use of the multi-layered system of supports.

N.M. Admin. Code § 6.31.2.10

6.31.2.10 NMAC - Rp, 6.31.2.10 NMAC, 6/29/07; A, 12/31/09; A, 7/29/11, Adopted by New Mexico Register, Volume XXXI, Issue 13, July 14, 2020, eff. 7/14/2020, Amended by New Mexico Register, Volume XXXIV, Issue 01, January 18, 2023, eff. 7/1/2023