School districts 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 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 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.
HISTORY:
1953 77-11-3, enacted by Laws 1967, ch. 16, § 182; 1969, ch. 256, § 1; reenacted by 1972, ch. 95, § 1; 1978, ch. 211, § 11; 1985, ch. 7, § 1; 1985, ch. 93, § 2; 1989, ch. 135, § 1; 1995, ch. 69, § 2; 2011, ch. 166, § 1.
Editor’s notes.
Laws 2003, ch. 143, § 2, effective July 1, 2004, and contingent upon adoption of an amendment to Article 12, Section 6 of the constitution of New Mexico, repeals Articles 1, 2, 13, 13A and 15 of Chapter 22 NMSA 1978. The constitutional amendment was approved at the special election on September 23, 2003, giving the repeal full force and effect as of July 1, 2004. However, Laws 2003, Chapter 143 was repealed by Laws 2004, Chapter 27, § 29, nullifying the repeal by Laws 2003, Chapter 143 and leaving the statutory provisions as they were prior to the attempted repeal in 2003. Article 13A of Chapter 22 was additionally repealed, without contingency, by Laws 2003, ch. 153, § 73, effective April 4, 2003.
Amendment Notes.
The 2011 amendment, effective July 1, 2011, substituted “students” for “all children” in the first sentence; substituted “rules” for “regulations” in the second and third sentences; substituted “department” for “state board” wherever it appears in the section; deleted the former sixth and seventh sentences, which read: “If a child receiving services in the department of health’s family, infant, toddler program has his third birthday during the school year, the child’s parents shall have the option of having the child complete the school year in the family, infant, toddler program or enrolling the child in the public school’s preschool program. A child with a disability who enrolls in the public school’s preschool program and who has his third birthday during a school year may receive special education and related services from the beginning of that school year”; and substituted “licensed school employees” for “certified school personnel”; and made stylistic changes.
Appropriations.
Laws 2013, ch. 191, § 1 provides: “A. If, after final negotiation and settlement with the United States department of education, the state is required to make up funding for state-level special education maintenance of effort as required by Part B of the federal Individuals with Disabilities Education Act and the appropriations for that purpose provided in the general appropriation acts of 2012 and 2013 are insufficient, up to the following amounts are appropriated from the operating reserve to the public education department, subject to the provisions of Subsections B and C of this section:
(1) twenty million dollars ($20,000,000) for fiscal year 2013; and
(2) sixteen million dollars ($16,000,000) for fiscal year 2014.
B. Prior to the transfer of any amount of the appropriations in Subsection A of this section, the public education department shall:
(1) certify to the state board of finance that all means and efforts to make sufficient funding available to meet special education maintenance of effort requirements in the named fiscal years have been taken and the appropriations provided in the general appropriation acts of 2012 and 2013 are insufficient; and
(2) review its certification to the state board of finance with the legislative education study committee and the legislative finance committee.
C. The public education department shall distribute the required amount of the appropriations provided in Subsection A of this section to each school district and charter school in the same manner and on the same basis as the state equalization guarantee distribution, and the department shall not distribute more than is necessary to meet the maintenance of effort requirement.
D. If the state transferred money from the state equalization guarantee distribution to meet the state-level special education maintenance of effort requirement as provided in Subsection A of this section and the United States department of education rejects that transfer after final negotiation and settlement, the amount transferred, up to twenty million dollars ($20,000,000) for fiscal year 2013 and up to sixteen million dollars ($16,000,000) for fiscal year 2014, shall be appropriated from the operating reserve to the state equalization guarantee distribution.
E. If any part of the fiscal year 2013 appropriation provided in Subsection D of this section is required to satisfy the state-level special education maintenance of effort requirement pursuant to final negotiation and settlement, and if the secretary of public education had reset the final unit value pursuant to the special education maintenance of effort contingent appropriation in the General Appropriation Act of 2013 for that fiscal year, the secretary shall adjust the final unit value in accordance with the amount transferred from the fiscal year 2013 appropriation in that subsection, and that amount shall be distributed to school districts and charter schools through the state equalization guarantee distribution. F. If any part of the fiscal year 2014 appropriation provided in Subsection D of this section is required to satisfy the state-level special education maintenance of effort requirement pursuant to final negotiation and settlement, and if the secretary of public education had reset the final unit value pursuant to the special education maintenance of effort contingent appropriations in the General Appropriation Act of 2013 for that fiscal year, the secretary shall adjust the final unit value in accordance with the amount transferred from the fiscal year 2014 appropriation in that subsection, and the amount shall be distributed to school districts and charter schools through the state equalization guarantee distribution.”
Notes to Decisions
Authority of state board of education over special education.
Responsibility of local districts.
Authority of state board of education over special education.
When the dispute arose, a local education agency was directly responsible for the education of plaintiff parent’s student, and defendant state education agency (SEA) was not involved; thus, in the administrative process, the SEA was properly excluded. Chavez v. N.M. Pub. Educ. Dep't, 621 F.3d 1275, 2010 U.S. App. LEXIS 20853 (10th Cir. N.M. 2010).
Requirements.
The state of New Mexico is obligated to provide all its pre-college age children with appropriate education and is forbidden from discriminating against the handicapped in meeting this obligation; thus the state’s special education programs must serve handicapped students adequately, in the same way that traditional education programs serve nonhandicapped students. New Mexico Ass'n for Retarded Citizens v. New Mexico, 678 F.2d 847, 1982 U.S. App. LEXIS 19303 (10th Cir. N.M. 1982).
Responsibility of local districts.
Although the New Mexico Public Education Department is required to promulgate rules and standards governing the provision of special education services, local school districts are responsible for directly providing special education and related services to disabled students. Ellenberg v. N.M. Military Inst., 478 F.3d 1262, 2007 U.S. App. LEXIS 5275 (10th Cir. N.M. 2007).
OPINIONS OF ATTORNEY GENERAL
Analysis
Authority of state board of education over special education.
Duty of schools to provide educational services within private facilities.
Authority of state board of education over special education.
The state board of education has the authority to establish special education standards for all public schools and institutions receiving public money and the authority to enforce these standards in all such institutions. Therefore, the state board may statutorily exercise general supervision over all special education programs administered by (1) New Mexico school for the visually handicapped; (2) New Mexico school for the deaf; (3) New Mexico military institute; (4) Carrie Tingley crippled children’s hospital; (5) institutions and facilities under the jurisdiction of the secretary of corrections; and (6) children’s psychiatric unit at the university of New Mexico, and has the power to insure that these institutions meet the educational standards established by the state board with respect to educating handicapped children. 1984 Attorney General Advisory Letter No. 84-18, 1984 N.M. AG LEXIS 20.
Duty of schools to provide educational services within private facilities.
Public schools do not have a constitutional or statutory obligation to provide educational services to students within private, for-profit adolescent psychiatric care and substance abuse treatment centers, but if the student is handicapped, federal law may require such education. 1988 N.M. Op. Att'y Gen. No. 88-10, 1988 N.M. AG LEXIS 10.
Research References and Practice Aids
Cross references.
Licensure; qualifications, 61-12D-10 NMSA 1978.