December 21, 2004

Dr. Veronica C. Garcia

New Mexico Public Education Department

300 Don Gaspar Avenue

Santa Fe, New Mexico 87501-2786

Dear Secretary Garcia:

The purpose of this letter is to respond to the New Mexico's April 19,
2004 submission of its Federal Fiscal Year (FFY) 2002 Annual Performance
Report (APR) for the Individuals with Disabilities Education Act (IDEA)
Part B funds used during the grant period July 1, 2002 through June 30,
2003. The APR reflects actual accomplishments made by the State during
the reporting period, compared to established objectives. The APR for
IDEA is designed to provide uniform reporting from States and result in
high-quality information across States. This letter also closes out
portions of New Mexico's November 2000 Improvement Plan and issues in
OSEP's February 23, 2004 verification letter.

The APR is a significant data source utilized in the Continuous
Improvement and Focused Monitoring System (CIFMS) implemented by the
Office of Special Education Programs (OSEP), within the U.S. Department
of Education. The APR falls within the third component of OSEP's
four-part accountability strategy (i.e., supporting States in assessing
their performance and compliance, and in planning, implementing, and
evaluating improvement strategies) and consolidates the self-assessing
and improvement planning functions of the CIFMS into one document.
OSEP's Memorandum regarding the submission of Part B APRs directed
States to address five cluster areas: General Supervision; Early
Childhood Transition; Parent Involvement; Free Appropriate Public
Education in the Least Restrictive Environment; and Secondary
Transition.

#### Background

In its January 7, 2000 Monitoring Report, OSEP identified the following
areas of noncompliance: (1) placement in the least restrictive
environment, including: (a) failure to ensure that removal of children
with disabilities from the regular education environment occurs only
when the nature and severity of the disability is such that education in
the regular classes, with the use of supplementary aids and services,
cannot be achieved satisfactorily (34 CFR §300.550(b)), and (b) failure
to ensure that the educational placement of each child with a disability
is based on his or her individualized education program (IEP) (34 CFR
§300.552(a)(2)); (2) transition from Part C to Part B, including: (a)
failure to ensure a smooth and effective transition for children
transitioning from Part C to Part B programs; (b) failure to ensure that
by the third birthday of a child, an IEP was developed and implemented;
and (c) failure to ensure that local educational agencies (LEAs)
participated in transition planning conferences arranged by the Lead
Agency (34 CFR §300.132); (3) extended school year (ESY) services,
including: (a) failure to ensure that ESY services were available for
all children who needed those services as part of a free appropriate
public education (FAPE) (34 CFR §§300.300, 300.309); (b) failure to
ensure that each child's IEP team determined the need for ESY services;
and (c) failure to ensure that the IEP teams' decisions regarding ESY
services were documented on the IEPs (34 CFR §§300.309 and
300.347(a)(3)); (4) secondary transition, statements of transition
services, including: (a) failure to ensure that IEPs for each student by
age 16 included a statement of needed transition services that
represented a coordinated set of activities, designed within an
outcome-oriented process, that promoted movement from school to
post-school activities (34 CFR §§300.29 and 300.347(b)(2)); (b) failure
to ensure that the statements were based on individual students' needs,
taking into account each student's preferences and interests (34 CFR
§300.29(a)(2)); and (c) failure to ensure that the each public agency
reviewed, and if appropriate revised, the IEP at least annually,
including the statement of needed transition services (34 CFR §300.
343(c) and 300.347(b)); (5) secondary transition, notice of content and
participation in meetings, including: (a) failure to ensure that, if a
purpose of an IEP meeting was the consideration of transition services,
the notice included that purpose (34 CFR §300.345(b)); (b) failure to
ensure that the student was invited to any meeting where transition was
a purpose of the meeting (34 CFR §300.344(b)(1)); (c) failure to ensure
that, if the student did not attend the IEP meeting, the public agency
took other steps to ensure that the student's interests and preferences
were considered (34 CFR §300.344(b)(2)); (d) failure to ensure that
representatives of any other agencies likely to be responsible for
providing or paying for transition services were invited to the IEP
meeting (34 CFR §300.344(b)(3)); and (e) failure to include agencies
that were invited to the IEP meeting on the meeting notice (34 CFR
§§300.345(b) (3)); (6) failure to ensure that noncompliance identified
through its monitoring process was corrected in an effective manner (34
CFR §300.600); and (7) failure to ensure that formal written complaints
were investigated and resolved within 60 days, unless extensions were
granted due to exceptional circumstances with respect to an individual
complaint (34 CFR §§300.660-300.662).

In response to the noncompliance, the New Mexico State Department of
Education (NMSDE), now called the New Mexico Public Education Department
(NMPED), submitted an Improvement Plan (IP) in November 2000. OSEP
reviewed the IP and approved it on June 29, 2001. In that letter, OSEP
asked NMPED to reexamine its "Indicators" and "Verification" to reflect
evidence of change that evaluates the effectiveness of its improvement
strategies and to submit a revised plan as a part of its December 2001
Progress Report. NMPED addressed this request in the December 2001
Progress Report. Progress Reports were also submitted in December 2002
and December 2003.

During the week of August 18, 2003 OSEP conducted a visit to New Mexico
to verify the effectiveness of the State's systems for general
supervision, data collection under section 618 of IDEA, and State-wide
assessment. OSEP provided NMPED with the results of this visit in a
letter dated February 23, 2004.

The State's APR should reflect the collection, analysis, and reporting
of relevant data, and document data-based determinations regarding
performance and compliance in each of the cluster areas (as well as any
other areas identified by the State to ensure improvement). This letter
responds to NMPED's Progress Reports of 2001, 2002, and 2003, NMPED's
May 27, 2004 submission regarding issues in the February 2004
verification letter and the APR.

### *General Supervision*

[Monitoring: Identification and Correction of
Noncompliance]{.underline}. In the January 2000 Monitoring Report, OSEP
concluded that NMPED failed to ensure that deficiencies identified
through monitoring were corrected in an effective manner (34 CFR
§300.600). In its Progress Reports, NMPED reported on the development of
its new focused monitoring process. During the August 2003 verification
visit, OSEP reviewed NMPED's monitoring instruments, procedures and
resulting reports as well as interviewing NMPED's monitoring staff. OSEP
concluded in its February 2004 verification letter that it was unable to
determine whether NMPED was effectively identifying and correcting all
IDEA noncompliance.

In its December 2001, December 2002, and December 2003 Progress Reports
NMPED reported on its development of and efforts to implement a new
monitoring system. During 2000-2001, NMPED contracted with a consultant
to train the NMPED staff on Focused Monitoring and to assist NMPED with
the development of a Focused Monitoring System. In 2001-2002, NMPED
piloted the new system with ten LEAs. In 2002-2003, NMPED conducted
fifteen Focused Monitoring onsite visits. In January 2004, one
additional staff member was hired to assist the LEAs with the
development of improvement plans and to support the LEAs in the
implementation of those plans within the designated timelines. NMPED
utilized a State-wide stakeholders group in the development and
refinement of its new monitoring system. Based on this information,
NMPED's section of the IP related to monitoring is closed. However, as
discussed later in this section, additional issues related to monitoring
were identified during OSEP's verification visit.

Although NMPED's progress reports noted progressive steps in the
development and implementation of its focused monitoring system, the APR
included data and information that indicated continued noncompliance
with the requirement to ensure that identified noncompliance is
corrected within one year of identification (34 CFR §300.600). On page
two of the APR, NMPED reported that of the districts monitored in
2001-2002, 31% were closed out within a year. On page four of the APR,
NMPED stated that general supervision instruments and procedures
identified noncompliance, but correcting identified noncompliance within
one year was a more difficult challenge. On the same page, NMPED
reported that procedures for the completion of the LEA improvement plans
have been in place, but staff shortages have prevented the timely
writing of monitoring reports.

During the verification visit, OSEP learned that NMPED relied
principally on its focused monitoring system to ensure the
identification and correction of noncompliance, and did not have other
methods for reviewing LEA policies, procedures or practices to ensure
that all LEAs complied with all IDEA requirements. Under its system,
districts are identified for monitoring based primarily on performance
data on certain 'key indicators' such as graduation rates and assessment
results. During focused monitoring visits, comprehensive record reviews
were conducted but interviews were conducted only on the topic of the
focus review, unless other potential problems areas were identified
through the record review process, or through other means. If a
district, through the monitoring process, was found out of compliance
with one or more regulations, the district was required to develop an
improvement plan to address the findings in the report. NMPED determined
what evidence of change was required before an item was removed from an
improvement plan. The improvement plans were monitored by NMPED until
the district met the evidence of change requirement. NMPED reported that
although child-specific noncompliance was corrected as soon as possible,
complex systemic issues could take longer that a year to correct. NMPED
reported that there were a few instances where LEAs were given extended
timelines for extenuating circumstances. OSEP staff reminded NMPED that
all noncompliance must be corrected within one year of identification.

Although OSEP was impressed with NMPED's focused monitoring system and
its potential to improve performance and compliance in the school
districts selected for review, OSEP was concerned that NMPED did not
have a systemic method for identifying and correcting noncompliance in
LEAs not selected for focused monitoring. Therefore, OSEP could not
conclude that NMPED's systems for general supervision constituted a
reasonable approach to the identification and correction of
noncompliance throughout the State. In the verification letter, OSEP
required that by February 23, 2005, NMPED demonstrate to OSEP that it
has an effective system for ensuring the identification and correction
of noncompliance for all educational programs for children with
disabilities administered within the State, in a timely manner. The
State submitted strategies and timelines on page six of the APR These
strategies and timelines appear to address the identification issue
noted in OSEP's February 2004 verification letter. OSEP accepts these
strategies and timelines as to the identification issue; however, as
noted in the February 2004 verification letter, the State also must
demonstrate compliance as soon as possible, but no later than one year
from the date of that letter (i.e., February 23, 2005). (NMPED
subsequently has received approval to submit its final response to the
verification letter in its FFY 2003 APR (due March 31, 2005), given the
closeness of the two submission dates.) In the next APR, NMPED must
submit data documenting that it is conforming with the one year timeline
for the correction of noncompliance identified through the monitoring
process.

On page 4 of the APR, NMPED stated that during 2002-2003, the
identification and remediation of systemic issues occurred at three
junctures: preparing for focused monitoring visits, preparing for
statewide quarterly meetings, and allocating discretionary funds; and on
page 5 and 6 of the APR, NMPED stated its projected target of analyzing
and publishing data on systemic issues on the State website and the
activities that would need to occur to support the achievement of its
target. OSEP looks forward to reviewing the results of implementation of
these activities in the next APR

[Dispute Resolution]{.underline}. During the FFY 2002 reporting period,
NMPED reported 35 requests for due process hearings. Seven due process
hearings were held, all within the required timelines.

On page 1 and in Attachment 1 of the APR, the State acknowledged
continued noncompliance with the formal written complaint timelines
under 34 CFR §300.661, for the 2002 reporting period. NMPED reported
that of 29 complaints investigated, seven were completed within the
60-day timeline. This noncompliance was identified in the 2000
Monitoring Report, and in OSEP's verification letter of February 2004.
In its December 2001 and 2002 Progress Reports NMPED stated continuing
problems in complying with the formal written complaint timelines. In
its December 2003 Progress Report, NMPED reported that since September
15, 2003 it had issued all written decisions within the 60 day timeline.
In the December 2002 Progress Report NMPED discussed the development of
the "Facilitated IEP Project" in which licensed mediators were trained
to facilitate potentially contentious IEP meetings. NMPED stated that it
hoped this project would result in agreements that were reflected by
well-developed IEPs and it hoped that the work of this project would
result in fewer formal complaints. OSEP learned in the August 2003
verification visit, through its review of NMPED's complaint log and
interviews with staff responsible for resolving complaints, that in some
instances, NMPED had failed to issue written decisions on Part B
complaints within 60 calendar days of receipt of the complaint, unless
the timelines were extended due to exceptional circumstances consistent
with 34 CFR §300.661(a) and (b)(1). OSEP also learned that NMPED's
written decisions were comprehensive and well-researched, and included
specific corrective actions. However, because NMPED failed to correct,
within a year of OSEP's approval of the State's IP,
previously-identified noncompliance related to issuing written findings
of fact and conclusions for formal written complaints within 60 days of
receipt of the complaint, OSEP required NMPED to submit documentation to
OSEP by June 1, 2004 demonstrating that it had come into compliance with
the timelines for resolving complaints. NMPED completed the activities
related to the timely issuance of complaint findings of facts and
conclusions in its IP and included data in its May 2004 submission
demonstrating that it had complied with the timeline requirements since
September 2003. Based on this information, NMPED's section of the IP
related to the 60 day timeline for complaint investigation is closed. In
the next APR, the State must include current data and analysis
demonstrating continued compliance with these requirements and the State
must also include maintenance strategies designed to maintain compliance
with this requirement.

On pages 2 and 4 of the APR, NMPED included data and information
indicating an area of noncompliance not previously identified by OSEP:
failure to ensure the timely implementation of complaint decisions (34
CFR §§300.600(a)(1), (b) and 300.661(b)(2)). On page 2 of the APR, NMPED
reported that in 2000-2001, of the complaints where findings of
noncompliance were made, 64% of the identified instances of
noncompliance were corrected within one year of identification. For
2001-2002, 36% of the identified instances of noncompliance were
corrected within one year of identification. NMPED submitted, as part of
its FFY 2002 APR, the following strategies to address the timely
correction of noncompliance identified through the complaint system: (1)
an experienced manager would be hired who would assist the investigators
and corrective action staff; (2) one or more contract complaint
investigators will be hired if necessary; and (3) the complaint format
will be reviewed for improved efficiency. OSEP accepts NMPED's
strategies, timelines, targets and proposed evidence of change. The
State must demonstrate compliance with the requirement to ensure the
timely implementation of complaint decisions, within a reasonable period
of time not, to exceed one year from the date of this letter. In the
next APR, the State must include data and analysis demonstrating
progress toward compliance, and submit a report to OSEP demonstrating
compliance as soon as possible, but not later than 30 days following the
end of the one-year timeline.

[LEA Applications]{.underline}. OSEP learned during the verification
visit, that the last time NMPED had reviewed all LEAs' special education
policies and procedures was in 1997, as a part of the local application
for special education funding process; this was prior to the previous
reauthorization of IDEA. OSEP required that by June 1, 2004, NMPED
submit to OSEP a procedure for reviewing and approving all LEA policies
and procedures. OSEP also required that NMPED's procedures be
implemented as a part of its process for approving LEA applications for
FY 2004 Part B funds, and that within one year of the date of the
verification letter, NMPED submit to OSEP documentation that it had
completed its review of all local policies and procedures. OSEP received
NMPED's submission on May 27, 2004. OSEP accepts NMPED's procedure for
reviewing and approving all LEA policies and procedures and looks
forward to receiving, in the next APR, documentation that it has
reviewed and approved all LEA policies and procedures.

[Personnel]{.underline}. For the FFY 2002 APR reporting period, NMPED
identified 12.9% of special education teachers, 2.8% of related services
providers and 1.9% of special education aides as not fully certified in
their areas of service provision. These percentages have decreased since
the 2000-2001 school year. On page 5 of the APR, New Mexico identified
barriers to recruitment and retention of fully-certified staff and, on
page 4, included proposed activities to address these barriers. NMPED
included activities for ensuring sufficient numbers of professionals and
paraprofessionals to meet the identified educational needs of all
children with disabilities in the State. OSEP looks forward to reviewing
the results of the implementation of these activities in the next APR.

[Data Collection under section 618 of IDEA]{.underline}. In the area of
collection of data under section 618 of the IDEA, OSEP learned during
the verification visit that New Mexico used a unified electronic data
collection system. The system contained information on regular and
special education students as well as personnel data. OSEP also learned
that there was a separate system for collecting data on the State-wide
assessment.

On page 5 of the APR, NMPED reported that although it provided a variety
of data screens and feed-back reports that help LEAs recognize data
reporting errors, up until the 2002-2003 school year, NMPED had not
monitored for data accuracy. During the 2002-2003 school year, NMPED
developed procedures and protocols for conducting data verification
visits and piloted those new procedures with three districts. These
three pilot visits resulted in improvement plans being written with
those three LEAs. As noted on page 5 of the APR, comments from
participants in this process led NMPED to add data verification as a
part of every focused monitoring visit in the 2003-2004 school year, not
just those districts randomly selected for data verification. Also on
page 5 of the APR, NMPED reported that it had hired a computer systems
analyst to work full-time on special education data issues. NMPED
included activities to continue developing and improving this process.
OSEP looks forward to reviewing the results of implementation of these
activities in the next APR.

# **Early Childhood Transition**

In the January 2000 Monitoring Report, OSEP concluded that NMPED failed
to ensure: (1) a smooth and effective transition for children
transitioning from Part C to Part B programs; (2) that by the third
birthday of a child, an IEP was developed and implemented; and (c) that
local educational agencies (LEAs) participated in transition planning
conferences arranged by the Lead Agency (34 CFR §300.132). In its
Progress Reports, NMPED reported the following activities: (1) the
development of a transition agreement between NMPED and the New Mexico
Department of Health (DOH) to support timely transitions; (2) the
development of a "best practice document" related to transition from
Part C to Part B, that was jointly developed, produced and distributed
by DOH and NMPED; (3) the provision of regional transition training to
Part C and Part B providers, staff from Head Start, community early
child care and educational programs, LEA special education directors,
parents, and advocates; and (4) facilitation of the development
memoranda of understanding (MOUs) between LEAs and local Part C
providers by NMPED and DOH.

In December 2001, NMPED reported the following activities: (1) the
development of a State Transition Agreement between NMPED and the
Department of Health (DOH); (2) the collaborative development and
distribution, between NMPED and DOH, of a technical assistance document
on early childhood transition that was disseminated to LEAs, early
intervention agencies, parent organizations and other interested
community organizations and members; and (3) training at quarterly
meetings for special education directors and representatives of various
parent advocacy organizations. In December 2002, NMPED reported the
following activities: (1) NMPED and DOH collaboratively conducted a
series of regional trainings for 47 community-based transition teams,
with the purpose being to ensure an effective and seamless transition
process; (2) representatives from the 47 transition teams were engaged
in a facilitated process to develop regional memoranda of understanding
that would outline each agency's respective responsibilities and
commitments, and arranged for transition coaches to provide follow-up
support to ensure that the negotiated commitments were implemented; and
(3) NMPED continued to provide transition training at its quarterly
meetings. In the December 2003 Progress Report, NMPED reported the
following activities: (1) NMPED staff and DOH consultants provided
training to new special education directors in September of 2003 and to
new school staff and early intervention providers in October of 2003,
and NMPED provided training to Parents Reaching Out staff, parents,
preschool teachers, and childcare agencies in December of 2003; (2) In
August of 2003, DOH facilitated the collection of the names of children
transitioning to Part B and provided this information to NMPED. NMPED
sent the names to each school district and requested that IEP
information be provided, documenting the transition of each child. The
issues that emerged during this process included communication problems
between Part C and Part B programs, and delayed evaluations by LEAs, as
well as other problems associated with the transition process. Guidance
was planned to address these issues. DOH and NMPED planned visits to the
eight communities with the most serious issues; (3) Plans were developed
to share the above information and to monitor the process on a quarterly
basis; and (4) In January of 2003, satisfaction surveys were mailed to
1,674 families of children who transitioned from Part C to Part B during
2002. Approximately 23% of the families responded to the surveys and 84%
of the respondents agreed that they were satisfied or very satisfied
with the transition experience. NMPED reported that they also received
recommendations for improving the transition process. NMPED completed
all of the activities in its IP related to Early Childhood Transition,
therefore that section of its IP is closed.

On page nine of the APR, NMPED reported that in 2003, NMPED and DOH
monitored the effectiveness of the MOUs and the transition process. Of
722 children exiting Part C who qualified for Part B services: (1) 16%
of children with disabilities received services on the first day of
school (using the start date for all children); (2) 44 % received
services on the first day of the preschool program (typically 2-3 weeks
later); (3) 19 % received services 2 to 43 days later than the first day
of school or the first day of preschool; (4) 16 % were not receiving
services, were not located, their parents chose not to enroll them, or
they did not qualify (OSEP does not understand this last phrase because
NMPED described the group of 722 children as children who qualified for
Part B services); and (5) for 5 % no data were available. NMPED
acknowledged that the monitoring process resulted in the identification
of additional barriers to the transition process: (1) ineffective
mechanisms for sharing information between DOH and NMPED; (2) LEAs not
always aware of the children who were transitioning, indicating that
transition planning meetings were not always held in a timely manner;
(3) MOUs not fully operational; (4) shared data not always accurate
regarding the names and birthdates of children; (5) lack of sufficient
training and technical assistance to LEAs and early intervention
providers; and (6) insufficient staffing in LEAs. NMPED submitted
strategies, proposed evidence of change, targets, and timelines in its
FFY 2002 APR. OSEP accepts the strategies, proposed evidence of change,
targets, and timelines. The State must demonstrate compliance with the
requirement to ensure a smooth and effective transition from Part C to
Part B, including development and implementation of an IEP (or IFSP) by
the third birthday of each eligible child with a disability, within a
reasonable period of time, not to exceed one year from the date of this
letter. In the next APR, the State must include data and analysis
demonstrating progress toward compliance, and submit a report to OSEP
demonstrating compliance as soon as possible, but not later than 30 days
following the end of the one-year timeline.

***Parent Involvement***

On page 11 of the APR, NMPED reported that it was not collecting data in
this cluster area, but that its target was to participate in the
National Center for Special Education Accountability Monitoring's
(NCSEAM) development of a parent survey that could be used to collect
the data. NMPED reported the ways it had involved parents in the special
education process at the State and local levels, and on the joint
efforts to increase the involvement of parents, in cooperation with the
New Mexico Parent Information and Training Center and with the State's
universities. On page 12 of the APR, NMPED reported other planned
activities. From data and information provided by the State in the APR,
OSEP could not determine performance or compliance in this cluster. OSEP
has not previously identified noncompliance within this cluster**.** In
the next APR, NMPED must include data and its analysis, along with a
determination of performance and compliance in this cluster. If the data
demonstrate noncompliance, the State must include a plan with
strategies, proposed evidence of change, targets and timelines designed
to ensure correction of the noncompliance within a reasonable period of
time, not to exceed one year from the date when OSEP accepts the plan.
If data are not available, the State must include a plan that describes
how the State will collect data to enable it to determine performance
and compliance by the FFY 2004 APR.

***Free Appropriate Public Education in the Least Restrictive
Environment***

In the January 2000 Monitoring Report, OSEP identified the following
areas of noncompliance: (1) placement in the least restrictive
environment, including failure to ensure that: (a) removal of children
with disabilities from the regular education environment occurs only
when the nature and severity of the disability is such that education in
the regular classes, with the use of supplementary aids and services,
cannot be achieved satisfactorily (34 CFR §300.550(b)); and (b) the
educational placement of each child with a disability is based on his or
her IEP (34 CFR §300.552(a)(2)); and (2) extended school year (ESY)
services, including failure to ensure that: (a) ESY services were
available for all children who needed those services as part of FAPE)
(34 CFR §§300.300, 300.309); (b) each child's IEP team determined the
need for ESY services; and (c) IEP teams' decisions regarding ESY
services were documented on IEPs (34 CFR §§300.309 and 300.347(a)(3)).

[Least Restrictive Environment (LRE)]{.underline}. As noted above, in
the January 2000 Monitoring Report, OSEP identified the noncompliance
related to placement of children with disabilities in the LRE. In its
December 2001, 2002 and 2003 Progress Reports, NMPED reported on
activities conducted to ensure that children with disabilities received
services in the LRE: (1) LRE was (and is) one of the key performance
indicators for NMPED's Focused Monitoring System; (2) NMPED contracted
with a national inclusion expert to systemically change the State's
practices in LRE and formed an LRE design team, composed of a group of
interdisciplinary stakeholders, to assist in this process; (3) NMPED
used State Improvement Grant (SIG) funds to hire an LRE coordinator to
provide technical assistance to LEAs and trained 50 professionals as
coaches in this process; (4) NMPED supported one professor and three
additional doctoral students at the University of New Mexico to provide
additional professional development to the districts in the Middle Rio
Grande corridor and to the Albuquerque School District; (5) NMPED used
capacity- building grants to fund pilot inclusion projects in LEAs and
to support LEAs in sending interdisciplinary school teams to an annual,
week-long Summer Institute on LRE; (6) NMPED, in collaboration with the
Curriculum, Instruction and Learning Technologies Office (CLT) and the
New Mexico Special Education Office, awarded approximately \$2.4 million
to LEAs to support increased access for children with disabilities to
the general education curriculum through the use of technology; and (7)
NMPED developed and distributed technical assistance training tools,
such as an LRE assessment and planning tool for school districts, a
training toolbox consisting of videos, activities and materials, and a
technical assistance manual on *Developing Quality IEPs*. NMPED also
reported that it participated with the University of New Mexico in three
additional LRE initiatives, including: Leadership Academies to train and
support administrators in better meeting the needs of a diverse student
population, a Dual Licensure Program to license teachers in both
elementary and special education, and the development and publishing of
an LRE best practices document. Based on this information, NMPED has
completed all of the activities related to LRE in its IP; therefore that
section of its IP is closed.

The percentage of children with disabilities in regular classroom
placements has steadily increased since 2000. On page 16 and in
Attachment 5, NMPED reported placement data for the years 2000-2001,
2001-2002, and 2002-2003, showing an increase in regular class
placements and a decrease in segregated placements. NMPED reported that
the LEAs that received a focused monitoring visit exhibited even greater
improvements than those reflected in State-wide placement rates. NMPED
reported that progress in the area of placement in the LRE could be
attributed to a variety of activities aimed at improving New Mexico's
poor national ranking on placement in the LRE.

However, data on pages two and three of the APR indicated that in eight
of the 155 districts monitored in 2002-2003 the State identified
systemic noncompliance regarding LRE and placement. NMPED submitted
strategies, proposed evidence of change, targets, and timelines as part
of its FFY 2002 APR. OSEP accepts the strategies, proposed evidence of
change, targets, and timelines. The State must demonstrate compliance
with the requirement to ensure that, to the maximum extent appropriate,
children with disabilities (including preschool children), including
children in public or private institutions or other care facilities, are
educated with children who are nondisabled; and that special classes,
separate schooling or other removal of children with disabilities from
the regular educational environment occurs only if the nature or
severity of the disability is such that education in regular classes
with the use of supplementary aids and services cannot be achieved
satisfactorily. In the next APR, the State must include data and
analysis demonstrating progress toward compliance, and submit a report
to OSEP demonstrating compliance as soon as possible, but not later than
30 days following the end of the one-year timeline.

[Extended School Year (ESY) Services]{.underline}. As indicated in
OSEP's January 2000 Monitoring Report, New Mexico had failed to ensure
that: (a) ESY services were available for all children who needed those
services as part of FAPE (34 CFR §§300.300, 300.309); (b) each child's
IEP team determined the need for ESY services; and (c) the IEP teams'
decisions regarding ESY services were documented on the IEPs (34 CFR
§§300.309 and 300.347(a)(3)). NMPED's December 2001, December 2002, and
December 2003 Progress Reports identified the activities it had
undertaken to correct this issue. The State provided technical
assistance and training, and published a guidance document (last revised
in 2003) on ESY services. In addition, NMPED revised its IEP form in
2001 to require the consideration of ESY services for all children who
might need those services as part of FAPE. NMPED also included the
consideration and provision of ESY services as part of its student
record review form, which was used in all of its onsite monitoring. The
State in the 2003 report indicated that, after conducting records
reviews, it found no evidence that ESY continued to be a problem. NMPED
completed all of the activities related to ESY in its IP; therefore that
section of NMPED's IP is now closed. OSEP looks forward to reviewing the
results of the implementation of these activities in the next APR.

[Disproportionality]{.underline}. NMPED submitted Attachment 2 of the
APR using data for 2000, 2001, and 2002. The extent of
disproportionality, based on a plus or minus .20 percent within each
category, for both the numbers of children identified within categories
of disability, and the placement patterns of identified children with
disabilities, showed a decrease from FFY 2000 to FFY 2001, but an
increase from FFY 2001 to FFY 2002. On page 17 of the APR, NMPED stated
that addressing the over-identification of African Americans as students
with disabilities was its highest priority. On page 19 of the APR, NMPED
reported a goal for the number of children with disabilities for all
racial or ethnic backgrounds who would be identified as eligible for
services under Part B and a numeric goal for the placement patterns for
children with disabilities from various racial or ethnic backgrounds.
The proposed use of numerical goals based upon race raises serious
concerns under Federal civil rights laws and the United States
Constitution and is not an appropriate way to address the potential
compliance problems that significant disproportionality may indicate.
Any proposed use of numerical goals/targets based upon race, even where
the numerical goal is based upon comparable numbers in the general
population, raises the same legal concerns. In addressing significant
disproportionality related to identification, under 34 CFR §300.755, it
is appropriate to look at policies, procedures and practices in the
referral, evaluation and identification process to determine if they are
educationally appropriate, consistent with the requirements of Part B
and race neutral. Such an examination generally would include a review
of the availability and use of pre-referral intervention services, the
selection and use of evaluation instruments and materials, the selection
and use of evaluation criteria, and the reasons for referral for special
education evaluations. In addressing significant disproportionality
related to placement, under 34 CFR §300.755, it is appropriate to look
at policies, procedures and practices related to placement in the least
restrictive environment consistent with the requirements at 34 CFR
§§300.501 and 300.550-300.556 in order to determine if they are
educationally appropriate, consistent with the requirements of Part B
and race neutral. This would generally include a review of policies,
procedures and practices related to: the continuum of placement options;
the availability of, and access to, supplementary aids and services; the
participation of parents in placement team decisions; and State
monitoring activities and technical assistance related to placement in
the least restrictive environment. NMPED must submit revised language,
consistent with Federal law, in the next APR.

34 CFR §300.755 requires that States that identify significant
disproportionality on the basis of race in the identification of
children with disabilities (including identification within particular
categories of disability) or in placements into particular settings must
provide for the review and, if appropriate, revision of the policies,
procedures and practices used in identification or placement to ensure
that they comply with Part B. The instructions to the 2002 APR require
States that identify significant disproportionality to report on the
results of that review of policies, procedures and practices. While
identifying significant disproportionality, the State's 2002 APR did not
include any information indicating that it had provided for a review of
policies, procedures or practices used in identification or placement of
children with disabilities. In the next APR, the State must include the
information required by the instructions. If the 2003 APR does not
include information indicating that the State, when it identifies
significant disproportionality, has either conducted a review of
policies, procedures or practices used in identification or placement of
children with disabilities or otherwise ensured that such a review was
done, OSEP will conclude that the State is not complying with the
regulation.

[Graduation and Drop-out Rates]{.underline}. On page 14 of the APR,
NMPED reported that high school graduation rates, disaggregated for
special education students, were only available beginning in 2002-2003
(82.0% for all students and 82.22% for students with disabilities) and
that although graduation data for students with disabilities could be
calculated based on exiting reports, the method of data collection was
not parallel for nondisabled students. NMPED also reported that with
both groups, the graduation rate was the quotient of all students who
received a diploma and the number of students in grade 12. NMPED added
that there were different paths to a diploma available to students with
disabilities, while students without disabilities had only one path.
NMPED reported on the percentage of special education students who
graduated through the different pathways.

NMPED further broke down these percentages by racial/ethnic group and
disability groups. On page 14 of the APR, NMPED reported that drop-out
rates, disaggregated for special education students, were only available
for 2002-2003, and added that although drop-out data for students with
disabilities could be calculated based on exiting reports, the method of
data collection was not the same for nondisabled students. NMPED
reported that the drop-out rate was calculated as the quotient of
students in grades nine through twelve who dropped out in a given year
and the membership in those same grades for that same year. 2002-2003
drop-out rate for all students was 5.6% and for students with
disabilities the rate was 3.6%. On page 18 of the APR, NMPED stated that
goals for graduation and drop-out rates were met. On pages 19 and 20 of
the APR, NMPED included strategies and benchmarks designed to
maintain/improve performance. OSEP looks forward to reviewing data and
analysis from the implementation of these strategies in the next APR.

[Suspension and Expulsion]{.underline}. On page 15 of the APR, NMPED
reported that although suspension/expulsion data collection on a
student-by-student basis was piloted in 2001-2002, not all LEAs
participated. At the end of 2002-2003, all LEAs reported these data. The
suspension/ expulsion rate for all students was 1.4%, and 2.3% for
students with disabilities. NMPED offered no explanation for the
difference in the rates, but reported that it provided technical
assistance to LEAs struggling to understand exactly what discipline
events were and were not to be counted. In addition, it reported that it
provided immediate feedback to LEAs on the discipline data following the
end-of-the-year electronic data submissions. On pages 19 and 20 of the
APR, NMPED included strategies and targets designed to improve
performance.

34 CFR §300.146 requires that States examine data to determine if
significant discrepancies are occurring in the rate of long-term
suspensions and expulsions of children with disabilities either among
LEAs in the State or compared to the rates for nondisabled children
within the agencies. Where the State determines that significant
discrepancies are occurring, it must review and, if appropriate, revise
(or require the affected State agency or LEA to revise) its policies,
procedures and practices relating to the development and implementation
of IEPs, the use of behavioral interventions, and procedural safeguards
to ensure that the policies, procedures, and practices comply with Part
B. The instructions to the 2002 APR direct States to describe which of
these comparisons it did, as well as the method the State used to
determine possible discrepancies, what constitutes a discrepancy, the
number of agencies with significant discrepancies, and, if significant
discrepancies are occurring, a description of those discrepancies and
how the State plans to address them. However, the State's 2002 APR did
not include any information indicating that the State had examined LEA
data, used to compile the State aggregate, to determine whether
significant discrepancies were occurring in the LEAs based on either one
of comparisons described above. In the next APR, the State must include
the information required by the instructions. If the 2003 APR does not
include information indicating that the State has examined all data for
all LEAs to determine whether significant discrepancies are occurring in
the LEAs based on either one of the comparisons described above, and
that when it identifies significant discrepancies it reviews and, if
appropriate, revises (or requires the affected State agency or LEA to
revise) its policies, procedures and practices consistent with 34 CFR
§300.146, then OSEP will conclude that the State is not complying with
the regulation.

[State-wide Assessment]{.underline}. On page 15 and in Attachments 3 and
4 of the APR, NMPED reported performance results for children with
disabilities in the State-wide assessment system. NMPED did not allow:
(1) out-of-level testing; (2) parents to petition for test exemptions;
or (3) exemptions from State testing. New Mexico's State-wide testing
was norm-referenced but the State intended to switch to
criterion-referenced testing. The 40^th^ percentile was identified to be
the minimum standard for all children. NMPED reported some invalid
scores at all tested grade levels for reading and math, and reported
that it was unable to discriminate among various possible causes that
resulted in the scores being invalid for small subsets of children.

In Attachment 3 and on page 15 of the APR, NMPED reported participation
and performance data in reading and math for school years 2000-2001,
2001-2002, 2002-2003. The participation rate for children with
disabilities exceeded the rate for children without disabilities for the
last two years. In 2000-2001, 67.3% of children without disabilities
were reading at or above the 40^th^ percentile, and 25.2% of children
with disabilites were reading at the same level, a gap of 42.1%. In the
same year, 64.3% of children without disabilities were performing at or
above the 40^th^ percentile in math, and 22.9% of children with
disabilities were performing at the same level, a gap of 41.4%. In
2001-2002, 66.6% of children without disabilities were reading at the
40^th^ percentile or above, and 22.5% of children with disabilities were
reading at the same level, a gap of 44.1%. Also in the same year, 62.1%
of children without disabilities were performing at the 40^th^
percentile or above in math, and 19.0% of children with disabilities
were performing at the same level, a gap of 43.1%. In 2002-2003, 66.5%
of children without disabilities were reading at or above the 40^th^
percentile, and 22.7% of children with disabilities were reading at the
same level, a gap of 43.8%. In the same year, 63.1% of children without
disabilities were performing at or above the 40^th^ percentile in the
area of math, and 19.5% of children with disabilities were performing at
the same level, a gap of 43.6%.

On page 4 of Attachment 3 in the APR, NMPED reported the performance of
students with disabilities taking the alternate assessment for math in
2002-2003. 371 students performed at the beginning level, 347 students
performed at the nearing-proficiencey level, 327 students performed at
the proficient level and 101 students performed at the advanced level.
On page 8 of Attachment 3 in the APR, NMPED reported on the performance
of students with disabilities taking the alternate assessment for
reading in 2002-2003. 138 students performed at the beginning level, 229
students performed at the nearing-proficiencey level, 470 students
performed at the proficient level, and 316 students performed at the
advanced level. In Attachment 4 of the APR, for the years 2000-2001,
2001-2002, and 2002-2003, NMPED reported by LEA on poverty and minority
percentiles as well as test performance data for the areas of reading,
math, language, social studies and science. On page 18 of the APR, NMPED
reported problems obtaining valid test data but stated that it was aware
of the large gap between children with and without disabilities. On page
20 of the APR, NMPED included strategies and benchmarks designed to
improve performance. OSEP looks forward to reviewing the data and
analysis from the implementation of these strategies in the next APR.

[Preschool Skills]{.underline}. On pages 17 of this section, NMPED
stated that it had been unaware of probe BF.VI (Are the early
language/communication, pre-reading, and social-emotional skills, of
preschool children with disabilities receiving special education and
related services, improving?), and therefore did not establish a target
or collect data. On page 19, as a projected target, NMPED stated it
would participate on an interagency team that would develop standards
for all four-year-olds. OSEP does not consider this to be a target but
rather, an activity. On page 21, NMPED reported that staff from its
program under section 619 of IDEA, along with Even Start Early Literacy
consultants, would meet weekly with representatives from other programs
and interested stakeholders to identify program standards, develop
learning outcomes and appropriate assessments, and determine State-wide
capacity for inclusive early learning systems. NMPED also reported that
it, along with the Department of Health, and the Office of Child
Development-Children Youth and Families Department, would jointly fund
personnel and task forces to carry out these activities, with specified
work being due October 1, 2004. Although the activities reported by
NMPED might be movement in the direction of collecting data on preschool
outcomes, it is not a plan to collect data. Under the Government
Performance and Results Act of 1993, 31 U.S.C. 1116, the effectiveness
of the IDEA section 619 program is being measured based on the extent to
which early language/communication, pre-reading, and social-emotional
skills of preschool children with disabilities receiving special
education and related services are improving. In the FFY 2003 APR, New
Mexico must either submit documentation of data (whether collected
through sampling, monitoring, individual IEP review, or other methods),
targets for improved performance, and strategies to achieve those
targets for this area, or a plan to collect the data for the FFY 2004
APR.

## Secondary Transition

In the January 2000 Monitoring Report, OSEP identified the following
areas of noncompliance in secondary transition. NMPED failed to ensure
that: (1) IEPs for each student by age 16 included a statement of needed
transition services that represented a coordinated set of activities,
designed within an outcome-oriented process, that promoted movement from
school to post-school activities (34 CFR §§300.29 and 300.347(b)(2));
(2) the statements were based on individual students' needs, taking into
account each student's preferences and interests (34 CFR §300.29(a)(2));
(3) each public agency reviewed, and if appropriate revised, the IEP at
least annually, including the statement of needed transition services
(34 CFR §300. 343(c) and 300.347(b)); (4) if a purpose of an IEP meeting
was the consideration of transition services, the IEP meeting notice
included that purpose (34 CFR §300.345(b)); (5) the student was invited
to any meeting where transition was a purpose of the meeting (34 CFR
§300.344(b)(1)); (6) if the student did not attend the IEP meeting, the
public agency took other steps to ensure that the student's interests
and preferences were considered (34 CFR §300.344(b)(2)); (7)
representatives of any other agencies likely to be responsible for
providing or paying for transition services were invited to the IEP
meeting (34 CFR §300.344(b)(3)); and (8) agencies invited to the IEP
meeting were included on the meeting notice (34 CFR §§300.345(b)(3)).

In its December 2001, 2002, and 2003 Progress Reports, NMPED reported on
the activities that had been conducted to improve secondary transition
including: (1) development of a State IEP form and a guidance manual
that addressed the transition requirements; (2) development of a
"transition cadre," a group of experts to oversee transition planning at
the local level and identify the transition needs in the State that were
addressed by the annual Summer Transition Institute; (3) development of
a State-wide Transition Coordinating Council (STCC), an interagency,
interdisciplinary group that advised NMPED and other State agencies,
policy makers and others on the transition needs; (4) contracting with
the University of New Mexico to conduct a survey of recent graduates to
determine their post-secondary status and the transition planning
activities that did and did not occur during high school; (5)
establishment of the Transition Outcomes Project, training teams to
review IEP files to assess the quality and the implementation of
transition planning requirements, and to assist school personnel in
making changes in district practice that local teams had identified as
critical; (6) offering capacity-building grants to LEAs to improve
transition outcomes; (7) revision of the technical assistance manual
*Pathways to the Diploma: Graduation Options for Students with
Disabilities*; (8) establishment of partnerships between the New Mexico
Transition Initiative and the Kansas University Transition Coalition,
and the University of Northern Colorado Project TRAC (Transition Cadre
members participated in transition-standards-based online web courses
through both projects); (9) collaboration among STCC members and staff
from NMPED, the New Mexico Children and Youth and Families Division, and
the New Mexico Corrections Department to improve transition of
incarcerated youth to the public schools as well as to post-school
outcomes; and (10) training opportunities for parents, students and
professionals. NMPED has completed all of the transition activities in
its IP; therefore that section of its IP is closed.

On page 22 of the APR, NMPED reported that the most current data
available relating to post-secondary outcomes was vocational training
information collected in 2000-2001 under the Carl Perkins Vocational
Education Act. Data gathered on four points related to vocational
training for students with and without disabilities showed that the
percentile difference between the two groups ranged from .12 % to 2.7 %,
with students without disabilities having higher percentile rates for
vocational academic attainment, vocational skill attainment and
vocational completers, and students without disabilities having higher
percentile rates for nontraditional enrollment and nontraditional
completion. NMPED also reported on the result of random follow-up
interviews with youth with disabilities after graduation to determine
the percent positively engaged (positively engaged included: employment,
military service, post-secondary training, and raising a family). The
percent positively engaged in 1990 was 70%; 1994-1997, 69.2%; and 2002,
84.3%.[^1] On page 22 of the APR, NMPED reported on data collected in
ten districts on self-determination activities for students with
disabilities (ages 14 and older). On page 25 of the APR, NMPED reported
that, in 2001-2002, 35 LEAS were trained to facilitate student
self-determination activities, and that in 2002-2003, 24 additional LEAs
were trained. NMPED included strategies for improving secondary
transition. OSEP looks forward to reviewing the results of the
implementation of these activities in the next APR

## Conclusion

In accordance with OSEP's February 2004 verification letter, NMPED was
required to provide documentation, including monitoring data, of
correction of two areas of noncompliance to OSEP by February 23, 2005.
The submission date was subsequently changed, at the request of NMPED,
to March 31, 2005, as part of the next APR. These issues are included in
the list below.

In the next APR, NMPED must:

1.  Submit data documenting that it is conforming with the one-year
    timeline for the correction of noncompliance identified through the
    monitoring process (General Supervision cluster).

2.  Provide data and analysis demonstrating continued compliance with
    timelines for resolving formal written complaints (General
    Supervision cluster) and submit maintenance strategies designed to
    maintain compliance with this requirement.

3.  Demonstrate compliance with the requirement to ensure the timely
    implementation of complaint decisions, within a reasonable period of
    time, not to exceed one year from the date of this letter. In the
    next APR, the State must include data and analysis demonstrating
    progress toward compliance, and submit a report to OSEP
    demonstrating compliance as soon as possible, but not later than 30
    days following the end of the one-year timeline (General Supervision
    cluster).

4.  Submit data documenting that the State has reviewed and approved all
    LEA policies and procedures (General Supervision cluster).

5.  Demonstrate compliance with the requirement to ensure a smooth and
    effective transition from Part C to Part B, including development
    and implementation of an IEP (or IFSP) by the third birthday for
    each eligible child with a disability, within a reasonable period of
    time, not to exceed one year from the date of this letter, in
    accordance with the Improvement Plan submitted with the FFY 2002
    APR. In the next APR, the State must include data and analysis
    demonstrating progress toward compliance, and submit a report to
    OSEP demonstrating compliance as soon as possible, but not later
    than 30 days following the end of the one-year timeline (Early
    Childhood Transition cluster).

6.  Submit data and its analysis, along with a determination of
    performance and compliance with the requirements of the Parent
    Involvement cluster. If the data demonstrate noncompliance, the
    State must include a plan with strategies, proposed evidence of
    change, targets and timelines designed to ensure correction of the
    noncompliance within a reasonable period of time, not to exceed one
    year from the date when OSEP accepts the plan. If data are not
    available, the State must include a plan that describes how the
    State will collect data to enable it to determine performance and
    compliance by the FFY 2004 APR (Parent Involvement cluster).

7.  Provide data and analysis demonstrating continued compliance with
    placement in the LRE including: (1) that the removal of child with
    disabilities from the regular education environment occurred only
    when the nature and severity of the disability was such that
    education in the regular classes, with the use of supplementary aids
    and services, could not be achieved satisfactorily; and (2) that the
    educational placement of each child with a disability was based on
    his or her IEP (FAPE in the LRE cluster). The State must also submit
    maintenance strategies designed to maintain compliance with these
    requirements (FAPE in the LRE cluster).

8.  Include the information required by the instructions related to
    significant disproportionality. If the 2003 APR does not include
    information indicating that the State, when it identifies
    significant disproportionality, has either conducted a review of
    policies, procedures or practices used in identification or
    placement of children with disabilities or otherwise ensured that
    such a review was done, OSEP will conclude that the State is not
    complying with the regulation (FAPE in the LRE cluster).

9.  Include the information required by the instructions related to
    suspension and expulsion. If the 2003 APR does not include
    information indicating that the State has examined all data for all
    LEAs to determine whether significant discrepancies are occurring in
    the LEAs based on either one of comparisons described above (see
    page 12 of this letter), and that when it identifies significant
    discrepancies it reviews and, if appropriate, revises (or requires
    the affected State agency or LEA to revise) its policies, procedures
    and practices consistent with 34 CFR §300.146, then OSEP will
    conclude that the State is not complying with the regulation (FAPE
    in the LRE cluster).

10. Documentation of data (whether collected through sampling,
    monitoring, individual IEP review, or other methods), targets for
    improved performance and strategies to achieve those targets for the
    area of preschool outcomes, or a plan to collect the data for the
    FFY 2004 APR (FAPE in the LRE cluster).

OSEP recognizes that the APR and its related activities represent only a
portion of the work in your State and we look forward to collaborating
with you as you continue to improve results for children and youth with
disabilities and their families. If you have questions, please contact
Ms. Linda Whitsett at (202) 245-7573.

Sincerely,

/s/Patricia J. Guard for

Stephanie Smith Lee

Director

> Office of Special
>
> Education Programs

cc: Mr. Steve Oldroyd

[^1]: Sample size varied among the groups, with the 1994-1997 group
    about a fourth the size of the other two groups.