New Mexico Complaint

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, Plaintiff v.
THE STATE OF NEW MEXICO; THE NEW MEXICO SCHOOL FOR THE VISUALLY HANDICAPPED; and THE BOARD OF REGENTS OF THE NEW MEXICO SCHOOL FOR THE
VISUALLY HANDICAPPED, Defendants
COMPLAINT
The Attorney General of the United States brings this action on behalf of the United States of America, pursuant to the Civil Rights of Institutionalized Persons Act of 1980 ("CRIPA"), 42 U.S.C. § 1997, to enjoin the named defendants from depriving students enrolled at the New Mexico School for the Visually Handicapped of rights, privileges or immunities secured or protected by the Constitution of the United States and federal statutes.
JURISDICTION, STANDING AND VENUE
1. This Court has jurisdiction over this action under 28 U.S.C. § 1345.
2. The United States is authorized to maintain this action pursuant to 42 U.S.C. § 1997a.
3. The Attorney General of the United States certifies that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The certificate of the Attorney General, appended to this complaint, is incorporated herein by reference.
4. Venue in the District of New Mexico is proper pursuant to 28 U.S.C. § 1391. All claims set forth in this Complaint arose in said District.
PARTIES
5. Plaintiff is the UNITED STATES OF AMERICA.
6. On behalf of defendant STATE OF NEW MEXICO ("State"), defendant BOARD OF REGENTS operates and governs defendant NEW MEXICO SCHOOL FOR THE VISUALLY HANDICAPPED ("NMSVH" or "School"). NMSVH, located in Alamogordo, New Mexico, is a state residential institution for the education and training of blind and visually impaired students aged five to twenty-one years. The School is an institution as that term is defined in 42 U.S.C. § 1997(1)(A) and (B)(i), (II) and (III).
7. Defendant NMSVH Board of Regents has day-to-day supervisory authority over the School.
8. Defendants are legally responsible, in whole or in part, for the operation of and conditions at NMSVH, as well as for the care and treatment of students residing in that institution.
9. At all relevant times, defendants have acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS

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10. Defendants fail to provide students with adequate mental health care delivered by appropriately qualified staff and addressed in individualized education plans.
11. Defendants fail to provide adequate Braille education and related services.
12. Defendants fail to ensure that NMSVH has sufficient mechanisms for responding to allegations of abuse and neglect of students in order to protect students from harm.
13. Defendants fail to make appropriate determinations about the necessity for residential placement of students at NMSVH.
14. Defendant State of New Mexico has not repealed or issued a saving construction of NMSA §§ 21-55 and 21-5-8 which, absent a saving construction, would violate federal law insofar as they may be read to require that any student sent to NMSVH attend the School for seven years, regardless of progress made by the student and regardless of the local public school district's ability after the student's matriculation at NMSVH to provide the child with a free appropriate public education.
VIOLATIONS ALLEGED
15. The acts and omissions alleged in paragraphs 10 through 14 constitute a pattern or practice of resistance to the full enjoyment by NMSVH students of rights, privileges or immunities secured or protected by the Constitution of the United States, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., 20 U.S.C. § 1412(a)(5); and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., 28 C.F.R. § 35.130, and deprive NMSVH students of such rights, privileges or immunities.
PRAYER FOR RELIEF
16. The Attorney General is authorized under 42 U.S.C. § 1997 to seek equitable and declaratory relief.
WHEREFORE, Plaintiff, the United States of America, prays that this Court enter an order permanently enjoining defendants, their agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, practices and omissions at NMSVH set forth in paragraphs 10 through 14 above, and that this Court require defendants to take such actions as will remedy the acts, practices and omissions set forth in paragraphs 10 through 14 above, to ensure lawful conditions to students enrolled in or residing at NMSVH. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
Respectfully submitted,
JANET RENO, Attorney General of the the United States BILL LANN LEE, Acting Assistant Attorney General, Civil Rights Division
JOHN J. KELLY, United States Attorney, District of New Mexico
STEVEN H. ROSENBAUM, Chief, Special Litigation Section ROBINSUE FROHBOESE, Deputy Chief, Special Litigation Section _________________________________

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JUDITH C. PRESTON Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6255
CERTIFICATE OF THE ATTORNEY GENERAL
I, Janet Reno, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v. State of New Mexico, et al., I have complied with all subsections of 42 U.S.C. § 1997b (a)(1). I certify as well that I have complied with all subsections of 42 U.S.C. § 1997b(a)(2). I further certify, pursuant to 42 U.S.C. § 1997b(a)(3), my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
In addition, I certify that I have the "reasonable cause to believe" set forth in 42 U.S.C. § 1997a to initiate this action. Finally, I certify that all prerequisites to the initiation of this suit under 42 U.S.C. § 1997 et seq. have been met.
Pursuant to 42 U.S.C. § 1997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. § 1997b(b), I am personally signing this Certificate.
Signed this ___ day of __________, 1999, at Washington, D.C.
____________________________ JANET RENO Attorney General of the United States

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 New Mexico Settlement

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, Plaintiff v.
THE STATE OF NEW MEXICO; THE NEW MEXICO SCHOOL FOR THE VISUALLY HANDICAPPED; and THE BOARD OF REGENTS OF THE NEW MEXICO SCHOOL FOR THE
VISUALLY HANDICAPPED, Defendants
STIPULATION
I. INTRODUCTION
Plaintiff, the United States, and defendants, the State of New Mexico, et al., in order to ensure the protection of the federal rights of students of the New Mexico School for the Visually Handicapped ("NMSVH"), and to avoid protracted and adversarial litigation, hereby stipulate and agree as follows:
1. The United States filed this action pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997 et seq.
2. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1345. Venue is proper pursuant to 28 U.S.C. § 1391(b).
3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 1997a and has satisfied all statutory prerequisites for filing this action.
4. This Stipulation does not constitute, nor shall it be construed in any manner, as an admission by the signatory State officials or entities of any violation of federal law. The parties to this Stipulation intend that this Stipulation is not evidence of liability, and is not to be used as evidence of liability in any other proceeding.
5. The defendants in this action are the State of New Mexico ("State"), the New Mexico School for the Visually Handicapped, and the Board of Regents of NMSVH. The New Mexico Department of Education is not named as a defendant, but as an agent of the State is bound by the terms of this Stipulation.
6. The defendants are legally responsible, in whole or in part, for the operation of and conditions at NMSVH, as well as for the care and treatment of the students attending that institution. Defendant State of New Mexico represents that it has authority for issuing such constructions of State law as are or may be required to ensure that State law comports with federal law.
7. NMSVH, located in Alamogordo, New Mexico, is an institution as that term is defined in 42 U.S.C. § 1997(1).
8. NMSVH students range in age from five to eighteen years old. Approximately half of the students attending NMSVH have one or more disabilities in addition to their visual impairment; some of these children are nonverbal and some have significant medical needs.
9. On February 26, 1997, the Attorney General of the United States, by and through the Acting Assistant Attorney General, Civil Rights Division, notified the Governor of New Mexico, the Attorney General of

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New Mexico, and the Superintendent of NMSVH of her intention to investigate, pursuant to CRIPA, allegations of conditions depriving NMSVH students of federal constitutional and statutory rights.
10. In a letter dated April 17, 1998, the Attorney General, by and through the Acting Assistant Attorney General, Civil Rights Division, informed the Governor of New Mexico, the Attorney General of New Mexico, the Superintendent of the New Mexico Department of Education, the President of the Board of Regents of NMSVH, and the Superintendent of NMSVH of her investigation findings and informed them that she believed conditions at the School violate the federal constitutional and statutory rights of its students.
11. For the purpose of avoiding protracted and adversarial litigation, the parties agree to the provisions set forth in this Stipulation.
12. The parties agree that the provisions of this Stipulation are a reasonable, lawful and fair resolution of this action.
13. This Stipulation shall be applicable to and legally binding upon all of the parties, their officers, employees, assigns, and successors.
II. DEFINITIONS
1. The term "individualized education plan" (IEP) has the same meaning as it has in the IDEA, 20 U.S.C. § 1400 et seq., and regulations promulgated thereunder.
2. The term "least restrictive environment" (LRE) has the same meaning as it has in the IDEA, 20 U.S.C. § 1400 et seq., and regulations promulgated thereunder.
3. The term "mental health professional" refers to a licensed psychiatric social worker, a certified master's level counselor with training and specialization in mental health, a licensed psychologist, or a board-certified, licensed psychiatrist.
4. The term "related services" has the same meaning as it has in the IDEA, 20 U.S.C. § 1400 et seq., and regulations promulgated thereunder.
5. The term "special education" has the same meaning as it has in the IDEA, 20 U.S.C. § 1400 et seq., and regulations promulgated thereunder.
6. The term "supplementary aids" has the same meaning as it has in the IDEA, 20 U.S.C. § 1400 et seq., and regulations promulgated thereunder.
III. BRAILLE SKILLS INSTRUCTION
1. Defendants shall provide Braille instruction to all students who need such instruction in order to benefit from their educational program.
2. Within 60 days of the signing of this Stipulation, defendants shall employ or retain the services of as many full-time Braille skills instructors as are required to meet the educational needs of NMSVH students.
3. Within 45 days of the signing of this Stipulation, NMSVH, through its IEP team, shall assess each

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student at the School to determine whether the student should receive Braille instruction, and for each student identified as needing Braille instruction, shall make a documented determination in the student's IEP of the number of hours per week that the student should receive Braille skills instruction, and shall provide such instruction until the student is able to read in Braille at a level commensurate with age and capability. Beginning with the second semester of the 1998-1999 school year, defendants shall ensure that each student or applicant for admission is assessed before the date of matriculation to determine the student's specific needs for Braille instruction, and the result of that assessment shall be documented in the student's IEP.
4. Beginning with second semester of the 1998-1999 academic year, the NMSVH IEP team shall assess periodically, and in no event less often than yearly, the Braille proficiency of each student identified as a reader of Braille, whether or not that student is currently receiving continuing education in Braille skills. NMSVH shall provide additional instruction as necessary to remediate any deterioration in Braille skills identified by such periodic assessment of students.
5. Beginning with the second semester of the 1998-1999 academic year, each student who matriculates at NMSVH and has been identified by his or her local public school district as being in need of Braille skills shall receive training in Braille upon matriculation at NMSVH unless and until a substantiated determination is made and documented in the student's IEP that the student does not need instruction in Braille.
6. Within 60 days of the signing of this Stipulation, defendants shall eliminate delays or waiting lists for Braille instruction at NMSVH, and ensure that delays or waiting lists do not develop.
7. Within 60 days of the signing of this Stipulation, defendants shall ensure that whenever technically possible, texts in all courses offered at the School are available in Braille for the students who need them. If texts are not available in Braille from the publisher, defendants shall have thirty (30) days from the date the text is received from the publisher in an electronic medium capable of conversion to Braille within which to make the text available to students in Braille.
8. Immediately upon the signing of this Stipulation, the School's Braille instructor(s) and other instructional staff shall make reasonable efforts to ensure that students studying and using Braille do so using their fingers, not their eyes.
9. NMSVH shall continue to offer courses in the reading and writing of Braille to NMSVH staff. Defendants shall ensure that all academic teachers at NMSVH become proficient in Braille no later than September 1, 1999. The Braille proficiency of each NMSVH teacher shall be assessed periodically, but in no event less often than yearly, by a qualified professional. If in the yearly assessment any teacher is determined not to be proficient in Braille, that teacher shall be required to become proficient within 180 days by means of a refresher course or tutorials offered either on or off the School's campus at the expense of the School. Other School staff, including education assistants and dorm counselors, also will be required to meet Braille proficiency requirements, though these requirements may not be at the same level as those required of academic teachers. A protocol designed to measure Braille reading and writing proficiency will be developed by a qualified professional within 30 days of the signing of this Stipulation. The protocol will be presented to the United States for review by such date and the United States shall have an opportunity to object to the proposal within 30 days. If the United States objects, a new protocol shall be developed within 60 days with technical assistance provided by the United States. Once an appropriate protocol has been developed, it will be used to measure Braille reading and writing proficiency of academic teachers and other staff required to meet proficiency requirements. All staff subject to Braille proficiency requirements shall be required to be proficient in Braille by September 1, 1999.

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IV. ORIENTATION/MOBILITY TRAINING
1. Beginning with the second semester of the 1998-1999 academic year, all students seeking admission or enrollment at NMSVH shall receive an initial orientation and mobility (O&M) assessment as part of the pre-admission process. At least annually thereafter, as part of the IEP team's annual review and in consultation with the School's O&M instructor, the IEP team shall consider each student's need to use a cane or other orientation and mobility assistive device, and shall document the team's conclusions and the basis for those conclusions in the student's IEP.
2. Any student identified by the IEP team as needing a cane or other orientation and mobility assistance device shall be encouraged to use the device and shall receive O&M instruction in accordance with the student's IEP until he or she can demonstrate proficiency. Students capable of deriving benefit from developing O&M proficiency in a setting other than the School's campus shall receive O&M instruction until they can demonstrate proficiency in a setting, appropriate to the individualized needs of the student, other than the School's campus. Students shall be given O&M training sufficient to enable each to navigate as independently as possible.
V. SUPPLEMENTAL VISION AND MOBILITY AIDS
Immediately upon the signing of this Stipulation, defendants shall ensure that any student who misplaces, damages, or destroys his or her eyeglasses or other supplemental vision or mobility aids receives replacement eyeglasses or aids in a timely manner.
VI. MENTAL HEALTH, BEHAVIORAL, AND SUBSTANCE ABUSE SERVICES
1. Defendants shall provide care, treatment, and services sufficient to meet the needs of each student who has mental illness or who has substance abuse, behavioral, or emotional problems, including emotional or behavioral needs related to his or her vision impairment.
2. Within 30 days of the signing of this Stipulation, defendants shall employ or retain the services of one full-time and one half-time mental health professionals (as defined in Section II, Paragraph 3 of this Stipulation) to provide counseling and other mental health services, including emergency mental health services, on campus to students. NMSVH may satisfy the requirements of this paragraph by entering into a contract with a private provider or public agency for the provision of appropriate mental health counseling and other mental health services for students. Each student receiving counseling shall receive counseling on a basis consistent with the student's IEP, for a period no shorter than the period established by the IEP team, unless a shorter period of treatment is determined to be clinically appropriate by the professional treating the student. Defendants shall ensure that mental health services, as distinguished from guidance counseling and other services, are provided only by qualified persons as defined in Section II, Paragraph 3 of this Stipulation. Defendants may provide students with the services of school counselors or school social workers, but such services shall not be considered appropriate to replace or substitute for mental health services.
3. Within 30 days of the signing of this Stipulation, defendants shall ensure that any student needing emergency mental health care is examined and treated promptly by a psychiatrist or other medical doctor (to determine whether psychotropic medication is indicated) or if appropriate, by another mental health professional as that term is defined in Section II, Paragraph 3 of this Stipulation.
4. Within 60 days of the signing of this Stipulation, defendants shall ensure that the School has implemented a program sufficient to (a) train all educational, residential (dormitory) and health care

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staff on how to recognize serious behavioral and emotional problems of students, including substance abuse problems, and (b) educate students about behavioral and emotional problems, including substance abuse, and how to obtain confidential help with these problems.
5. Upon the signing of this Stipulation, defendants shall develop and implement appropriate, individualized therapeutic and behavior modification interventions as necessary to address any student's suicidal or self-injurious behavior.
6. Within 30 days of the signing of this Stipulation, defendants shall ensure that each NMSVH student's behavioral and mental health needs, if any, are identified and incorporated into his or her IEP, along with any needed related services, and that these elements of the IEP, like any other elements of the IEP, are implemented.
7. Upon the signing of this Stipulation, defendants shall ensure that nursing staff at the School have information concerning students' mental health and substance abuse status where this information is necessary for School nurses to appropriately care for students, subject to the requirement that the nursing staff shall maintain the confidentiality of such information.
8. The mental health professionals employed or retained pursuant to Section VI, Paragraph 2 of this Stipulation shall assist the School in implementing the provisions of this Section of the Stipulation, as well as any other policies developed by the School relating to behavior, mental health and substance abuse.
VII. RESPONSE TO INJURIES/PROTECTION FROM ABUSE AND NEGLECT
1. Defendants shall ensure that NMSVH students are protected from harm.
2. Within 60 days of the signing of this Stipulation, in order to ensure that NMSVH students are safe, defendants shall review NMSVH's policies, procedures, and practices for reporting and investigating allegations of abuse, neglect and injury and taking action when abuse and/or neglect allegations are substantiated, or when injuries are found to be preventable. Within 60 days of the signing of this Stipulation, defendants shall:
(a) Ensure that all reports of abuse and neglect of students made to NMSVH staff are reported on a single standardized form, and that all reports of student injuries are made on another standardized form. The content of these forms shall be maintained in hard copy as well as in the automated system described in Section VII, Paragraph (2)(d).
(b) Review NMSVH's 7/26/96 policy (NMSVH Policy No. 517) on reporting suspected abuse and neglect and assure that mechanisms for students, relatives, parents, guardians, and visitors to report allegations of abuse or neglect to School and State officials are implemented. Notify all staff at least twice yearly of their obligation to report abuse and neglect to School and State officials, and the mechanisms for doing so. Review all policies on abuse and neglect and injuries at least annually. Provide all new staff with information or instruction on child abuse and neglect issues and reporting, and on recognizing and reporting student injuries.
(c) Post notices in regular print and in Braille in conspicuous locations throughout NMSVH concerning the mechanisms referred to in Section VII, Paragraph (2)(b) for reporting allegations of abuse or neglect of students. Describe these mechanisms in the student and parent handbooks to be distributed to students and parents at least once yearly, and provide a separate written notification of these mechanisms (in the

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form of a letter) to parents and guardians at least once yearly. Provide this individually distributed information orally to students, parents and guardians who are illiterate or have difficulties reading; and in Braille to students, parents, guardians and staff upon request.
(d) Develop and implement within 30 days of signing this Stipulation an automated system that will be used to maintain all reports of child abuse or neglect made to NMSVH staff, serious incidents of student misbehavior and student injuries, and, except where precluded by State law, the results of the investigation of any such allegations.
(e) Utilize the automated system described in Section VII, Paragraph (2)(d) to track trends in allegations of abuse and neglect reported to NMSVH (including NMSVH staff), defined by (i) type of abuse or neglect alleged (physical, sexual, emotional; staff on student; student on student), (ii) student(s) involved, (iii) staff involved, (iv) source of allegation, (v) date of incident, (vi) outcome of investigation, and (vii) any other necessary data.
(f) Ensure coordination as appropriate between NMSVH and the New Mexico Department of Children, Youth and Families so that every report of child abuse or neglect is investigated by one or both entities, or where appropriate by law enforcement. NMSVH shall report any instances in which there is reason to suspect abuse or neglect to the appropriate authorities, as required by State law, NMSA 1978 § 32A-4-3, and shall cooperate in any investigation conducted by any other State agency or by law enforcement.
(g) Ensure that each time the NMSVH Board of Regents convenes, the NMSVH Superintendent reports to the Board in executive session any allegations or suspected incidents of abuse or neglect at the School.
(h) Utilize the automated system described in Section VII, Paragraph (2)(d) to track trends in student injuries, defined by (i) type of injury, (ii) cause of injury, (iii) student injured, (iv) date of injury, and (v) any other necessary data.
(i) Establish a review committee composed of the NMSVH Superintendent, Director of Student Services, Mental Health Counselor(s) and Nurse(s), to review all reported student injuries on an ongoing basis, and to report to the Board of Regents on a quarterly basis.
Whenever a student is injured, the report of the injury, together with any evidence such as photographs, will be evaluated by the review committee to determine any preventive steps that shall be taken on an individual and systemic basis to prevent further injuries.
(j) Ensure that whenever an NMSVH staff member has reason to suspect abuse or neglect of a student, the staff member complies with the reporting requirement of Section VII, Paragraph 2(k) below, and then advises the Superintendent of NMSVH. The Superintendent shall not screen, prevent or place conditions on reports to the Department of Children, Youth and Families or law enforcement. In responding to an allegation of abuse or neglect of a student, the Superintendent shall make a determination of any immediate actions necessary to protect the student or preserve evidence; shall implement such actions immediately; and shall cooperate with any agency investigating the alleged incident or incidents.
(k) Ensure that reports of abuse and neglect are made to law enforcement, the Department of Children, Youth and Families, or other authorized agencies, immediately where any defendant or staff member has reason to suspect abuse and/or neglect, or has learned of an allegation of abuse and/or neglect. The State shall use reasonable efforts to assure that investigations by authorized agencies are initiated

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immediately. Results of the investigation will be requested by NMSVH and will be documented and retained in the automated system described in subparagraph VII(2)(d) above.
(l) Ensure that NMSVH or its Board of Regents takes disciplinary action in cases of documented, substantiated abuse or neglect of students by staff members.
(m) Ensure that NMSVH investigates the criminal history and other relevant background factors of every applicant offered employment at the School, whether full-time or part-time, temporary or permanent, in the manner specified by NMSA § 22-10-3.3B (1998 Supp.). The School shall require similar assurances as to the background of personnel who have unsupervised access to NMSVH students pursuant to contracts or other arrangements made by the School or the defendants with private entities.
3. Defendants shall ensure that within 30 days of the signing of this Stipulation, NMSVH and the Department of Children, Youth and Families enter into a protocol or cooperative agreement to assure that NMSVH is notified of any allegation of abuse or neglect of an NMSVH student by an NMSVH employee, contractor or student, and permitting an NMSVH investigation for purposes of protecting students and determining whether disciplinary action against any staff member is appropriate, provided such investigation would not impede an actual investigation undertaken by the Department of Children, Youth and Families, or law enforcement. This protocol or cooperative agreement shall be incorporated into this Stipulation, by way of an attachment, within 60 days of the signing of this Stipulation. NMSVH and the Department of Children, Youth and Families shall work collaboratively and cooperatively wherever possible to investigate allegations of abuse and neglect of NMSVH students as referred to above. NMSVH shall seek assistance from the Department of Children, Youth and Families in implementing Section VII of this Stipulation.
4. Nothing in this Stipulation otherwise releases NMSVH or its staff from their obligations to notify appropriate authorities, including those agencies specified in NMSA 1978 § 32A-4-3, when there is reason to suspect abuse and/or neglect involving an NMSVH student.
VIII. PLACEMENT IN THE LEAST RESTRICTIVE ENVIRONMENT AND DOCUMENTATION THEREOF
1. Beginning with the second semester of the 1998-1999 academic year, defendants shall ensure that no student matriculates at or attends NMSVH without an individualized, documented determination that the School is the least restrictive environment in which the student's needs can be met, i.e., a determination that "the nature or severity of the disability of [the] child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(5) (A).
2. Within 60 days of the signing of this Stipulation, defendants shall revise the forms used for documentation of the need for placement of students at NMSVH, to permit an individualized and substantiated description of the reason(s) for residential placement of each student at NMSVH. The reasons for placement of each student at NMSVH shall be documented immediately on the new forms.
3. As part of each student's annual IEP review, the IEP team shall consider and document its analysis of whether continued placement of the student at NMSVH is the least restrictive environment appropriate to the student's needs under the IDEA and regulations promulgated thereunder.
4. The State or the School shall, within 120 days of the signing of this Stipulation, commission a study by a qualified professional or agency to determine whether students at NMSVH, as well as other blind

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and visually impaired students in the State, might be appropriately educated in their local public school districts through the use, among other things, of outreach educators employed by NMSVH.
5. With the signing of this Stipulation, defendants represent and affirm that they have adopted a construction of NMSA 1978 §§ 21-5-5 and 21-5-8 that is consistent with the IDEA, and that they do not construe, interpret or seek to enforce these statutes in a manner which would require student attendance at NMSVH for seven years or expose violators to criminal sanctions. The NMSVH Board of Regents and the New Mexico Attorney General further represent and affirm that they will seek the amendment or repeal of these statutes during the 1999-2000 session(s) of the New Mexico Legislature.
IX. GENERAL PROVISIONS
1. Defendants shall employ or reassign a sufficient number of individuals to implement the provisions of this Stipulation.
2. Defendants shall develop and implement quality assurance mechanisms that are sufficient to enable the defendants to demonstrate that they are ensuring the full implementation of the provisions of this Stipulation.
3. Within 90 days of the signing of this Stipulation, NMSVH shall initiate the advisory council approved by the Board of Regents at its September 26, 1997 meeting. The Board of Regents shall invite interested members of the public, parents and guardians of NMSVH students, and NMSVH students to nominate persons to serve on the advisory board to be selected by the Board of Regents. The council shall include three parents and/or guardians of NMSVH students (one of whom shall be a parent of an Outreach student), one NMSVH student and two NMSVH alumni. The council will provide parent and consumer input to the Board of Regents, including advice on the implementation of this Stipulation.
4. Within ten days of the signing of this Stipulation, the defendants shall provide a copy of this Stipulation and shall explain the terms of this Stipulation to all employees of NMSVH, and to all contractors in a position to have access to NMSVH students without direct supervision, in order to ensure their understanding of the requirements of this Stipulation and the necessity for strict compliance with the Stipulation. Until such time as the Stipulation is no longer in effect, NMSVH shall ensure that all NMSVH staff members and other individuals responsible for implementing this Stipulation sign a statement indicating that they have read and understand this Stipulation.
Such statements shall be retained in the NMSVH personnel office. The defendants shall require strict compliance with this Stipulation by their respective employees, agents, assigns, or successors.
5. Within ten days of the signing of this Stipulation, and until termination of this Stipulation, the defendants shall provide notice of this Stipulation to all NMSVH students and their parents or guardians by informing them in writing, either in a letter or as part of a handbook, that NMSVH is operating under the terms and conditions of this Stipulation and that upon request, any student and any parent or guardian shall be given a copy of the complete Stipulation. The notification shall include a summary of the substantive provisions of the Stipulation in easily understood language. Defendants shall provide notification of the Stipulation orally to students, parents and guardians who are illiterate or have difficulties reading; and in Braille to students, parents, guardians and staff upon request.
X. CONSTRUCTION, IMPLEMENTATION, TERMINATION
1. This Stipulation shall take effect on the date of its signing by the parties. Except where otherwise

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specifically
indicated, the defendants shall fully implement all of the provisions of this Stipulation within one hundred and eighty days of the parties' signing of the Stipulation.
2. The defendants shall provide the Department of Justice, and its consultative experts and agents, with access to all buildings and facilities at NMSVH, faculty, staff, and students attending NMSVH; records maintained by the defendants or any State actor (including private contractors providing educational or related services to NMSVH students) in any location concerning students' education, placement, and medical (including mental health) status; reports of abuse, neglect or other misconduct involving any student; and all records maintained by the State, the School or the Board of Regents concerning the School's personnel, budget, operation and management.
3. The defendants shall maintain sufficient records to document their compliance with all the terms of this Stipulation. The defendants also shall maintain any and all records required by or developed under this Stipulation.
4. Seventy-five days after the signing of this Stipulation and quarterly thereafter, the defendants shall provide the United States Department of Justice with a status report of their compliance with each provision of this Stipulation. The status report shall state the steps taken to achieve compliance with each provision of the Stipulation during the reporting period.
5. The defendants shall report immediately to the United States Department of Justice any substantiated allegation of abuse or neglect and any serious student injury or death that occurs during the life of this Stipulation.
6. Within 30 days of receipt of written questions from the United States concerning the defendants' compliance with the Stipulation, the defendants shall provide the United States with written answers and any requested documents regarding the defendants' compliance with the requirements of this Stipulation.
7. To ensure that the provisions of this Stipulation are properly and timely implemented, the Court shall retain jurisdiction over this action for purposes of enforcement of the Stipulation, until such time as the defendants have fully implemented all requirements of the Stipulation and compliance has been maintained for at least one year. When the defendants have determined that they are in full compliance with the Stipulation and that full compliance has been maintained for no less than one year, the defendants shall so advise the United States in writing. At that or any other time, the United States may evaluate the status of compliance with this Stipulation, including by means of a tour of the School and a review of documents. If the parties agree that the defendants have
achieved full compliance with the Stipulation and that full compliance has been maintained for no less than one year, the parties shall request that the Court issue an order dismissing the Stipulation and the Court's order retaining authority to enforce the Stipulation. In case of dispute concerning defendants' compliance with the Stipulation, the burden shall be on the United States to demonstrate to the Court that defendants have not met the criteria for full compliance with the Stipulation and/or have not maintained full compliance with the Stipulation for a period of at least one year, and that the Stipulation and order through which the Court retains authority to enforce the Stipulation should not be dismissed.
8. The defendants may, during the pendency of this Stipulation, modify policies and procedures referred to herein, provided that such revision is consistent with the terms and conditions of this Stipulation. The defendants shall provide the United States with a copy of any such revisions on a quarterly basis.

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9. The United States shall not seek judicial enforcement of this Stipulation during its initial 180 days term except in case of conditions that pose a threat to the life, health or safety of NMSVH students.
10. The United States shall notify the defendants of any instance in which it maintains that the defendants have failed to carry out the requirements of this Stipulation. With the exception of conditions posing a threat to the life, health or safety of NMSVH students, the defendants shall have thirty (30) days from the date of a deficiency notice to respond to or cure the claim of non-compliance before any judicial enforcement of this Stipulation is sought by the United States.
11. All parties shall bear their own costs, including attorneys' fees.
Dated: _______________, 1999
AGREED TO:
FOR DEFENDANTS THE STATE OF NEW MEXICO, ET AL. THE HONORABLE PATRICIA A. MADRID, Attorney General, State of New Mexico FRANCIE CORDOVA, Assistant Attorney General, Office of the New Mexico Attorney General 6301 Indian School, N.E. Albuquerque, NM 87110 (505) 841-8040
FOR PLAINTIFF THE UNITED STATES OF AMERICA BILL LANN LEE, Acting Assistant Attorney General, Civil Rights Division STEVEN H. ROSENBAUM, Chief ROBINSUE FROHBOESE, Deputy Chief JUDITH C. PRESTON Attorneys U.S. Department of Justice 601 D. Street, N.W. Washington, DC 20004 (202) 514-6255
By: ______________________ By: _______________________
JOHN J. KELLY, United States Attorney, District of New Mexico
JAMES SALAS, President, Board of Regents, New Mexico School for the Visually Handicapped
____________________________By: _________________________
ROBERT GORENCE, First Assistant U.S. Attorney
SIMONS CUDDY & FRIEDMAN, Counsel to New Mexico School for the Visually Handicapped
By: ________________________ JOHN F. KENNEDY

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ORDER OF CONDITIONAL DISMISSAL
This Court having reviewed the foregoing Stipulation, the United States' Complaint, and the Motion for Conditional Dismissal of the Action under Rule 41(a)(2) of the Federal Rules of Civil Procedure, the action is dismissed without prejudice, subject to the parties' entry into the Stipulation set forth in its entirety above, with which the parties are hereby directed to comply. The Stipulation shall be merged into this Order of conditional dismissal. The dismissal of this action is specifically conditioned upon the parties' compliance with the Stipulation, which is in the public interest, and a fair and equitable resolution of this action. This Court retains jurisdiction to enforce the Stipulation until such time as a final order dismissing the Stipulation has been entered. The Clerk is directed to place the case on the Court's inactive docket.
IT IS SO ORDERED this ____ day of ___________, 1999, at Albuquerque, New Mexico.
____________________________
UNITED STATES DISTRICT JUDGE

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The Honorable Gary E. Johnson Governor of New Mexico State Capitol Building Sante Fe, NM 87503
Re: Findings of Investigation of the New Mexico School for the Visually Handicapped
Dear Governor Johnson:
I am writing to report our findings with respect to our investigation of the New Mexico School for the Visually Handicapped ("NMSVH" or "School") in Alamogordo, New Mexico. We notified you on February 26, 1997, that we were initiating an investigation of the facility pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997 et seq. We conducted our investigation by touring the School with two consultants from April 23-26, 1997; reviewing documents; and meeting with current and former staff, students and their families, and other interested persons. Our review of documents included numerous School and State documents and individual students' records.
During our tour and throughout our investigation, we received the cooperation of the staff at NMSVH. We appreciate the unimpeded access to the School that State officials afforded us.
NMSVH is a residential facility, established in 1903 for the purpose of educating students with visual impairments. The census of students at the School, which once numbered two hundred or more, has dropped in recent years to between sixty-five and seventy students. The number of students in attendance fluctuates during the school year primarily as a result of expulsions and removal of students by their parents. The School educates some of its students year-round, while other students return home for the summer term. The School's summer program is open to young people who do not attend the School during the regular school year.
Approximately half of the students at NMSVH have one or more disabilities in addition to their visual impairment; some of these children are nonverbal. Many of the students have behavior problems and some have significant medical needs. At least half of the students at the School are considered to be of average or above average intelligence.
NMSVH students range in age from five to eighteen years old. Although the students' length of stay at the School varies, many students are enrolled at NMSVH for most of the years during which they are eligible for public education. Students reportedly are placed at the School after local public school districts have determined that they cannot offer the students a free, appropriate education in their home communities.
The School's substantial endowment contributes to an annual operating budget of approximately $7.25 million, or approximately $105,000 per student. At the time of our tour in April 1997, the School had approximately 160 full-time and part-time employees, of whom only 21 provided education and habilitation services directly to students. There were fourteen and one half teachers, two and one half

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orientation and mobility instructors, two occupational therapists, one physical therapist, and one speech therapist.
I. FINDINGS
Our investigation focused on whether current conditions at the School meet federal constitutional and statutory standards.
Under the Fourteenth Amendment, students at NMSVH have the right to adequate medical care, reasonable safety, and training to promote their liberty interests. See Youngberg v. Romeo, 457 U.S. 307, 324-25 (1982). Under the Individuals with Disabilities Education Act ("IDEA"), each student with a disability has a right to receive a free, appropriate public education in the least restrictive environment appropriate to his or her needs. See 20 U.S.C. § 1400 et seq., 20 U.S.C. § 1412(a)(5); 34 C.F.R. §§ 300.533, 300.550, 300.551, 300.552, 300.553, 300.554, and 34 C.F.R. Part 300, App. C. Under Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act ("Section 504"), NMSVH students have a right to be free of discrimination in public education and to be served in the most integrated setting appropriate to their needs. See 42 U.S.C. § 12131 et seq.; 28 C.F.R. § 35.130; 29 U.S.C. § 794.
Although our evaluation revealed that the School has significant strengths on which to build, it revealed violations of students' constitutional and federal statutory rights, detailed below.
A. Mental Health Care
The School lacks appropriate mental health services for the significant percentage of students who have serious behavioral or mental health problems. The dearth of appropriate services presents a significant threat of harm. For example, during our tour, we identified a number of cases in which suicide risks were evident, including suicide threats to which the School did not respond adequately. In one recent case, an apparent suicide attempt is documented in School records, without any indication of appropriate interventions before or after the incident. In another case, a student's self-mutilation behavior was not addressed through treatment. Instead, the student was warned that he would be punished if he persisted. And in yet another recent case, a boy with a long history of suicidal gestures and threats requested that his counseling sessions at the School be increased from once a month. His request was denied.
The School's failure to respond appropriately to students' mental health needs can be traced to several factors. First, almost all of the limited mental health counseling services offered to students are provided by unlicensed and unqualified staff. Second, the School fails to document and share critical information about students' mental health needs with key personnel. The nursing staff, in particular, is not kept informed of knowledge that other staff may have concerning students' mental health status. For example, nurses lack key background information about why students to whom they administer psychotropic medication are receiving such medication. In addition, on numerous occasions, disturbed or intoxicated students have been brought to the health center by other staff, who have asked the nurses to "keep watch" closely over the students for unspecified but potentially serious reasons. We were told that the reason for this division of knowledge is that the School wants to protect students' privacy. This underlying concern is legitimate but is not being dealt with appropriately. Nurses should not be excluded from access to information they require in order properly to discharge their own duties to care for the

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health of students. In any case, nursing staff would be bound to protect the confidentiality of any information they learned. Third, the School fails to train staff adequately on how to recognize the warning signs or overt manifestations of serious emotional and behavioral illness. Fourth, the School fails to incorporate the behavioral and mental health needs of students into their individualized education plans, as required by federal law. See 20 U.S.C. § 1414(b)(2). Fifth, behavioral issues directly related to the students' vision impairments, such as their reluctance and embarrassment about using mobility canes in public, are addressed -- if at all -- only as disciplinary infractions with little attention to the underlying emotional issues involved.
B. Education-Related Skills and Orientation/Mobility
The documented justification for removing most of the students from their local public schools and placing them at NMSVH is to teach them "specialized compensatory skills," such as braille and cane usage. But a large number of these students do not receive instruction in braille and do not use canes.
We observed little use of braille during our tour. The School employs only a part-time braille teacher and many of the other teachers appear to consider braille too difficult for their students, although most of the students are of average or above average intelligence. Instead, the overwhelming majority of students are taught to read print, including students who are legally blind and who were specifically referred to the School to learn braille, and students who have degenerative eye diseases that will result in the loss of all or most of their remaining sight. They will be unable to read print, and unless they receive education in braille, they will be unable to read by themselves at all.
Of the 65 to 70 children attending NMSVH during the 1996-97 school year, only 12 on the enrollment list provided to us were braille readers. Sixteen students at the School are not able to read at all. Of the 12 students at the School who reportedly do read braille, many of these students who are partiallysighted read the braille with their eyes, i.e., by looking closely at the braille code, rather than handling the code with their fingers. Two of these students are listed as able to read both print and braille. The remaining students read print. Not only do most of the NMSVH students use print, many use standard size print (as opposed to enlarged print), which is more likely to cause eye strain and in turn to discourage students from reading.
Of the two students who reportedly were able to read both print and braille, one student was uncomfortable with braille and required three minutes and numerous prompts before she recognized the braille code for the word "wise." She stated that she reads braille "with my eyes." She has a degenerative eye disease that may result in total or near total blindness. The second student who was said to be able to read both print and braille began learning braille in the Albuquerque public school system, but reported that she does not use braille at all at NMSVH. The individualized education plan of another student revealed that he had received instruction in braille in his local public school in 1992 immediately prior to matriculating at NMSVH. The student found braille difficult and stopped using it after arriving at NMSVH. His individualized education plan at NMSVH did not address the need to strengthen his braille skills. This child also has a degenerative eye disease, which may result in total or near-total blindness. In yet another case, a middle school student stated that he had been provided two weeks of braille instruction when he first enrolled at NMSVH, but the instruction was terminated. Although he wished to continue learning braille, he stated that his "print teacher" told him he would be better off working with print. He has had no instruction in braille since then and stated that he has forgotten any of the braille he learned in the few lessons provided him. Finally, a high school student informed us that

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she matriculated at the School in January of the current school year thinking she would learn braille, but was told after enrolling that "they would try to get me into a braille class next year."
If a student only requires special education, related services, and adaptations that can be provided in a regular public school environment in order to obtain a free, appropriate, public education, these services must be made available in the local public schools rather than removing the student for residential education at NMSVH for an extended period of time. When these specialized services are the reason identified for placement at NMSVH, under the IDEA, these needs must be identified in the student's individualized education plan and services to meet those needs must be provided in order that the students may have a free, appropriate, public education. 20 U.S.C. §§ 1412(2)(B), 1401(a)(18); 34 C.F.R. §§ 300.8, 300.300, 300.346, 300.552(a)(2). In other words, if a student is sent to the school to receive training in braille, the student must receive that training.
The School also does not make sufficient efforts to obtain replacement eyeglasses in a timely fashion for students who need them. A number of students told us that when they lost or damaged their eyeglasses, they sometimes had to wait months to obtain replacements. In a school whose mandate is to educate visually impaired children, the failure to obtain timely replacements for lost or damaged eyeglasses is unacceptable.
Finally, although a number of students are also referred to the School by their local public school districts to receive orientation and mobility training, NMSVH fails to ensure that all students who are capable of walking are able to navigate independently in conditions outside the protected environment of NMSVH's campus. Moreover, some students told us that they do not use canes because they prefer, as one student put it, "to bump around rather than be laughed at." The School should address such emotional and social concerns directly, rather than permitting students literally to "bump around" in a misplaced effort to conceal their disability.
The School's failure to require all students who are capable of walking to become fully proficient in cane usage also results in a hierarchy of sightedness on campus. Children who are more sighted routinely lead children with less or no vision around the campus. This practice fails to teach children to navigate independently. According to our expert, it suggests that sight is synonymous with travel ability and ability in general. This suggestion is unwarranted.
C. Safety and Protection from Harm
Our investigation of the School's ability to protect students from harm revealed that: (1) the School has not taken sufficient steps to ensure adequate investigation and response to allegations of abuse and neglect, including tracking relevant trends; and (2) student behavior and discipline problems are uncontrolled or inconsistently controlled.
1. Abuse detection and response

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Allegations of physical and sexual abuse of students have been lodged against the School for some time. In May 1996, 15 individuals who have attended the School since the mid-1970s (at least four of whom attended the School during the period 1992-1996) filed suit in State court alleging sexual and physical assault by staff and fellow students. Switzer-Hensley et al. v. Board of Trustees of the New Mexico School for the Visually Handicapped et al., No. CV-96-04918 (2d Dist. Court, Bernalillo County, N.M.). In January 1998, the case was dismissed after the parties entered into a confidential settlement agreement.
Despite the School's history of abuse allegations, the School's Board apparently did not enact an abuse reporting and investigation policy until late 1996 and, despite the policy, the School still lacks an adequate system for abuse reporting and investigation that would permit the School not only to respond to particular allegations of abuse, but also to identify potential trends and needed systemic remedial actions. Moreover, while the policy enacted by the Board in 1996 explicitly requires employees to report suspected cases of abuse and neglect, it did not provide mechanisms for students and parents to report abuse and neglect.
When untoward incidents at the School are reported, they are not uniformly recorded in a formal or standardized manner. Rather, they are routinely shared in informal electronic mail messages among staff members. Although we were told that such messages receive follow-up by appropriate staff, often there was no documentation of this follow-up. For example, there was a case in which staff exchanged electronic messages containing observations consistent with the possibility that a young female student had experienced or currently was experiencing sexual abuse; yet there was no indication that steps were taken to assess or investigate this possibility.
2. Other safety issues
We found that NMSVH students frequently violate School rules, with harmful or potentially harmful consequences. Rule-breaking by students includes instances of student-on-student violence; truancy; use of alcohol and illegal drugs; and illicit sexual activity. Rule-breaking at the School is clearly related to the relative dearth of mental health and substance abuse services for the students who need them. In one recent case, a boy with a long history of documented behavioral problems came to the School's infirmary for treatment, having consumed an entire bottle of liquor with concomitant use of marijuana and, possibly, cocaine. School records indicate that soon after the boy was transported to the emergency room of a local hospital, he became nonresponsive and required treatment for life-threatening hypothermia, a result of his extreme inebriation.
The frequency of alcohol and drug use, sexual activity, violence, and truancy in a residential school like NMSVH raises particular concerns. Parents and guardians of NMSVH students cede a significant amount of control to the School, and students are separated by great distances from the people to whom they might otherwise look for protection and guidance.
D. Placement Issues
New Mexico fails to make appropriate determinations about the necessity for residential placement in

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violation of the IDEA, ADA, and Section 504. In order to be eligible for IDEA funding, the State must have established:
. . . procedures to assure that, to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when 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.
20 U.S.C.§ 1412(5)(B). See also 20 U.S.C. § 1412(a)(5). The regulations promulgated under IDEA specifically require states receiving IDEA funding to ensure:
[T]hat special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when 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.
34 C.F.R. § 300.550(b)(2) (Authority: 20 U.S.C. 1412(5)(B); 1414(a)(1)(C)(iv)). See also 34 C.F.R. §§ 300.551, 300.552, 300.553, 300.554. Finally, the IDEA regulations provide that students should be educated as close to home as possible and in the school they would attend if not disabled, unless their individualized education plans require some other arrangement. E.g., 34 C.F.R. § 300.552; 34 C.F.R. Pt. 300, App. C. Title II of the ADA and regulations promulgated thereunder, including 28 C.F.R. § 35.130 (d) and 28 C.F.R. Pt. 35, App. A, and Section 504 provide additional limitations on State segregation of students on the basis of disability or perceived disability.
The documented determinations to substantiate removal of NMSVH students from their home school districts that the State provided during the course of our investigation do not reflect a judgment that placement in a residential setting is necessary to provide a free, appropriate public education. The determinations are cursory and rote. In some cases, no specific reason for removal is provided. Our finding is consistent with an earlier review by the United States Department of Education in August 1994, that found a number of students were placed at NMSVH prior to the formulation of an individualized education plan. In other cases, NMSVH does not provide the services to meet the stated reason for removal from the local public school district. For example, as noted earlier, a number of students have been removed from their home school districts to receive braille training, yet they do not receive this training upon matriculation at NMSVH. In other situations, which are not fully documented, students are removed from their home school districts because they are perceived as behavior problems. However, as also noted earlier, NMSVH does not provide the basic mental health services necessary to respond to these children's behavioral and emotional problems and protect them from harm.
Parents of current and former NMSVH students stated that they were faced with a stark choice when their children reached school age: enroll them at NMSVH, where they would (at least in theory) receive braille education, or enroll them in a local public school, where they would receive no or minimal education in braille.
Finally, we note that there is a provision in New Mexico law that, absent a saving construction, would appear to violate the IDEA. The provision, entitled, "Parents and guardians required to send blind

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students to [NMSVH]," states:
Every parent, guardian or person having control or custody of any child who is between the ages of five and the age of majority, and who, on account of a visual handicap[,] cannot be educated in the public schools, and [sic] shall send such child to the New Mexico school for the visually handicapped at Alamogordo during each school year for a period of seven years, unless the child is taught the subjects as are taught in the school in a private school, at home, or in a similar institution in another state, or unless the child is suffering from a physical or mental disability sufficient to incapacitate him from attending the school....
N.M. Stat. Ann. § 21-5-5. Violation of this law is punishable by imprisonment for up to thirty days or a fine up to $25. N.M. Stat. Ann. § 21-5-8.
While this State law does not unequivocally require sending children to NMSVH on account of their disability, it may be read to require that any child sent to NMSVH attend the School for seven years, regardless of the progress made by the child or changed circumstances in the local public school district. This construction would violate the IDEA regulations, which require annual review and revision of individualized education plans and that placement decisions (which must be based on an individualized education plan) are made annually. 34 C.F.R. §§ 300.343(d), 300.552(a)(1)and (2).
II. MINIMUM REMEDIAL MEASURES
To rectify the deficiencies we have identified and to ensure that NMSVH complies with federal constitutional and statutory standards, the State should take the following minimum remedial measures:
1. Provide students with adequate mental health counseling and psychiatric care by appropriately credentialed professionals. This should include providing adequate substance abuse prevention programs, treatment and counseling to students with alcohol and drug abuse problems, and treatment and counseling for students who have behavior problems, including self-injury. Adequately train staff on how to recognize and respond to mental health and substance abuse problems of students. Ensure that nursing staff at the School have access to students' mental health records.
2. Provide each student identified as needing braille instruction with adequate braille instruction until the student is proficient in reading braille at a level commensurate with age and capability. Periodically assess the braille proficiency of students identified as braille readers. Provide additional instruction as necessary to remediate any deterioration in braille skills identified by periodic assessment. Make reasonable efforts to ensure that students read braille using their fingers, not their eyes. Eliminate delays or waiting lists for braille education. The newly reauthorized IDEA requires that, effective July 1, 1998, each blind or visually impaired student's individualized education planning team must, in developing the student's individualized education plan, "provide for instruction in braille and the use of braille unless the [individualized education planning team] determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in braille or the use of braille), that instruction in braille or the use of braille is not appropriate for the child." 20 U.S.C. § 1414(d)(3)(B)(iii).

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3. Ensure that any student who misplaces, damages, or destroys his or her eyeglasses is provided with replacement eyeglasses in a timely fashion.
4. Assess each student's need to use a cane. Ensure that all students enrolled at the School receive orientation and mobility instruction as needed.
5. Ensure that the School has a system that allows School officials to respond adequately to allegations of abuse and neglect and serious incidents of children's misbehavior, track allegations and identify relevant trends, and take appropriate systemic or other corrective action.
6. Ensure that no student attends NMSVH unless there has been an individualized, documented determination that the School is the least restrictive environment in which the student's needs can be met, i.e., a determination that "the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(5)(A). Perform periodic assessments of each student's need for continuing placement at NMSVH.
7. Formally adopt a construction of N.M. Stat. Ann. § 21-5-5 and N.M. Stat. Ann. § 21-5-8, that would ensure compliance with the IDEA, or amend the law to accomplish this end.
Pursuant to CRIPA, the Attorney General may initiate a lawsuit to correct deficiencies at an institution 49 days after appropriate local officials are notified of them. 42 U.S.C. § 1997b(a)(1). However, in light of the cooperation State officials have provided us, we look forward to discussing with the State of New Mexico how we might resolve the existing systemic deficiencies in a non-adversarial manner. We hope to be able to work with you and other State officials to resolve this matter in a reasonable and expeditious manner.
Sincerely,

Bill Lann Lee Acting Assistant Attorney General Civil Rights Division
cc: The Honorable David McCumber General Counsel Office of the Governor of New Mexico
The Honorable Thomas S. Udall Attorney General State of New Mexico
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Mr. Michael J. Davis State Superintendent New Mexico Department of Education
Mr. James Salas President Board of Regents New Mexico School for the Visually Handicapped
Mr. J. Kirk Walter Superintendent New Mexico School for the Visually Handicapped
John J. Kelly, Esq. United States Attorney District of New Mexico
The Honorable Richard W. Riley Secretary United States Department of Education

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REFER, TERMED
U.S. District Court District of New Mexico - Version 3.0 (Santa Fe) CIVIL DOCKET FOR CASE #: 6:99-cv-00602-MV-KBM

USA v. New Mexico State of, et al Assigned to: Chief Judge Martha Vazquez Referred to: Magistrate Judge Karen B. Molzen Demand: $0 Cause: 42:1981 Civil Rights

Date Filed: 05/27/1999 Date Terminated: 05/28/1999 Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

Plaintiff USA

represented by Bill Lann Lee US Department of Justice Civil Rights Division PO Box 65998 Washington, DC 20035-5998 (202) 514-4713 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith C Preston US Department of Justice 601 D Street, NW Washington, DC 20004 (202) 616-0345 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert J. Gorence Gorence & Oliveros PC 201 12th Street NW Albuquerque, NM 87102 505-244-0214 Fax: 505-244-0888 Email: gorence@swcp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robinsue Frohboese US Department of Justice 601 D Street, NW Washington, DC 20004 (202) 616-0345 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Rosenbaum

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V. Defendant New Mexico, State of Defendant The New Mexico School For The Visually Handicapped
Defendant The Board of Regents of the New Mexico School For The Visually Handicapped

US Department of Justice Civil Rights Division PO Box 66128 Washington, DC 20035-6128 (202) 514-9821 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John F Kennedy Cuddy, Kennedy, Albetta & Ives, LLP PO Box 4160 Santa Fe, NM 87502-4160 505-988-4476 Email: jkennedy@cuddylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John F Kennedy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/27/1999 05/27/1999 05/28/1999 05/28/1999
06/25/1999

#

Docket Text

1 COMPLAINT ( 0 Summons(es) issued) (referred to Magistrate Judge Karen B. Molzen ) (mjr) (Entered: 05/28/1999)

2 STIPULATION to ensure the protection of the Federal Rights of students of the New Mexico School for the Visually Handicapped by the parties (mjr) Modified on 05/28/1999 (Entered: 05/28/1999)

3 JOINT MOTION by parties for conditional dismissal of case pursuant to FRCP 41(a)(2) subject to the compliance with terms of the Stipulation (former employee) (Entered: 05/28/1999)

4 ORDER by Judge Martha Vazquez granting motion for conditional dismissal of case pursuant to FRCP 41(a)(2) subject to the compliance with terms of the Stipulation [3-1], re [2-1] dismissing case (cc: all counsel) (former employee) (Entered: 05/28/1999)

5 STIPULATION by parties re order [4-2] (former employee) (Entered: 06/28/1999)

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?465618120054275-L_353_0-1

6/5/2007

District Version v3.0.5 LIVE DB - Docket Report

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06/29/1999

6 STIPULATION re motion for conditional dismissal of case pursuant to FRCP 41(a)(2) subject to the compliance with terms of the Stipulation [31] (jrm) (Entered: 06/29/1999)

PACER Service Center
Transaction Receipt

06/05/2007 18:47:32

PACER Login:

hs0328

Client Code: ddalton

Description:

Docket Report

Search Criteria:

6:99-cv-00602-MVKBM

Billable Pages: 1

Cost:

0.08

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?465618120054275-L_353_0-1

6/5/2007