New Mexico Administrative Code › Title 6 - PRIMARY AND SECONDARY EDUCATION › Chapter 31 - SPECIAL EDUCATION › Part 2 - CHILDREN WITH DISABILITIES/GIFTED CHILDREN › Section 6.31.2.9 - PUBLIC AGENCY RESPONSIBILITIES

Current through Register Vol. 35, No. 13, July 16, 2024
A.
				Compliance with applicable laws and rules. Each New Mexico public agency,
				within the scope of its authority, shall develop and implement appropriate
				policies, procedures, programs, and services to ensure that all children with
				disabilities who reside within the public agency's educational jurisdiction,
				including children who are enrolled in private schools or facilities such as
				residential treatment centers, day treatment centers, hospitals, mental health
				institutions, or are schooled at home, are identified and evaluated and have
				access to a free appropriate public education (FAPE) in compliance with all
				applicable requirements of state and federal laws and rules. This obligation
				applies to all New Mexico public agencies that are responsible under laws,
				rules, rules, or written agreements for providing educational services for
				children with disabilities, regardless of whether that public agency receives
				funds under IDEA and regardless of whether it provides special education and
				related services directly, by contract, by referrals to private schools or
				facilities including residential treatment centers, day treatment centers,
				hospitals, mental health institutions, or through other arrangements.
B. Public agency funding and staffing.
(1) Each public agency that provides special
				education or related services to children with disabilities shall allocate
				sufficient funds, staff, facilities and equipment to ensure that the
				requirements of IDEA and all department rules and standards that apply to
				programs for children with disabilities are met.
(2) The public agency with primary
				responsibility for ensuring that FAPE is available to a child with a disability
				on the date set by the department for a child count or other report shall
				include that child in its report for that date. Public agencies with shared or
				successive responsibilities for serving a particular child during a single
				fiscal year are required to negotiate equitable arrangements through joint
				powers agreements or memorandums of understanding or interstate agreements for
				sharing the funding and other resources available for that child. Such
				agreements shall include provisions with regard to resolving disputes between
				the parties to the agreement.
(3)
				Placement of students in private residential treatment centers, or other out of
				home treatment or habilitation programs, by the IEP team, or by a due process
				decision. In no event shall a child with an IEP be allowed to remain in an out
				of home treatment or habilitation program for more than 10 days without
				receiving special education and related services. The school district in which
				the qualified student or school-age person lives, whether in-state or
				out-of-state, is responsible for the educational, nonmedical care and room and
				board costs of that placement. The sending school shall be responsible for the
				provision of special education and related services.
(a) Agreements between the resident school
				district of the qualified student or school-age person and a private
				residential treatment center shall be on the form posted on the department's
				website or on a form otherwise approved by the department and shall be reviewed
				and approved by the secretary of public education.
(b) Agreements shall provide for:
(i) student evaluations and
				eligibility;
(ii) an educational
				program for each qualified student or school-age person that meets state
				standards for such programs, except that teachers employed by private schools
				are not required to be highly qualified;
(iii) the provision of special education and
				related services in conformance with an IEP that meets the requirements of
				federal and state law and applicable rules;
(iv) adequate classroom or other physical
				space that allows the school district to provide an appropriate
				education;
(v) a detailed
				description of the costs for the placement; and
(vi) an acknowledgement of the authority of
				the local school board and the department to conduct on-site evaluations of
				programs and student progress to ensure that state standards are met.
(4) Educational agencies
				may seek payment or reimbursement from noneducational agencies or public or
				private insurance for services or devices covered by those agencies that are
				necessary to ensure FAPE to children with disabilities. Claims for payment or
				reimbursement shall be subject to the procedures and limitations established in
				34 CFR Secs. 300.154(b) and 300.154(d) through (g), Section
				22-13-8
				NMSA 1978 and any laws, rules, executive orders, contractual arrangements, or
				other requirements governing the noneducational payor's obligations.
(5) Risk pool fund. (Puente para los ninos
				fund.)
(a) Local educational agency high cost
				fund.
(i) In compliance with 34 CFR Sec.
				300.704(c), the department may maintain a risk pool fund to support high cost
				children with disabilities identified by LEAs.
(ii) Funds distributed under this program
				will be on a reimbursable basis.
(b) Application for funds. LEAs desiring to
				be reimbursed for the cost of children with disabilities with high needs shall
				file an application in accordance with the department's puente para los ninos
				fund as described on the department's website.
(6) Children with disabilities who are
				covered by public benefits or insurance. Pursuant to 34 CFR Sec. 300.154(d), a
				public agency may use the medicaid or other public benefits or insurance in
				which a child participates to provide or pay for services required under
				IDEA-Part B rules, as permitted under the public insurance program, except as
				provided in Subparagraph (a) of Paragraph (6) of Section B of 6.31.2.9 NMAC.
(a) With regard to services required to
				provide FAPE to an eligible child, the public agency:
(i) may not require parents to sign up for or
				enroll in public insurance programs in order for their child to receive FAPE
				under Part B of IDEA;
(ii) may not
				require parents to incur an out-of-pocket expense such as the payment of a
				deductible or co-pay amount incurred in filing a claim for services provided
				pursuant to IDEA-Part B rules, but pursuant to 34 CFR Sec. 300.154(f)(2), may
				pay the cost that the parent otherwise would be required to pay; and
(iii) may not use a child's benefits under a
				public benefits or insurance program if that use would:
(A) decrease available lifetime coverage or
				any other insured benefit;
(B)
				result in the family paying for services that would otherwise be covered by the
				public insurance program and that are required for the child outside of the
				time the child is in school;
(C)
				increase premiums or lead to the discontinuation of benefits or insurance;
				or
(D) risk loss of eligibility for
				home- and community-based waivers, based on aggregate health-related
				expenditures.
(b) Prior to obtaining the parental consent
				described in Subparagraph (c) of this paragraph, and prior to accessing the
				parent's or child's public benefits, the public agency shall provide written
				notice to the child's parents, consistent with 34 CFR Sec. 300.503(c). The
				written notice shall be provided annually thereafter.
(i) The notice shall include a statement of
				the parental consent provisions in 34 CFR Secs. 99.30 and 300.622 and shall
				specify:
(A) the personally identifiable
				information that may be disclosed (e.g., records or information about the
				services that may be provided to the child;
(B) the purpose of the disclosure (e.g.,
				billing for services under 34 CFR Part 300;
(C) the public agency to which the disclosure
				may be made (e.g, New Mexico medicaid program); and
(D) that the parent understands and agrees
				that the public agency may access the parent's or child's public benefits or
				insurance to pay for services under 34 CFR Part 300.
(ii) The notice shall further include:
(A) a statement of the "no cost" provisions
				in 34 CFR Secs. 300.154(d)(2)(i) through 300.154(d)(2)(iii);
(B) a statement that the parents have the
				right under 34 CFR Parts 99 and 300 to withdraw their consent to disclosure of
				their child's personally identifiable information to the New Mexico medicaid
				program at any time; and
(C) a
				statement that the withdrawal of consent or refusal to provide consent under 34
				CFR Parts 99 and 300 to disclose personally identifiable information to the New
				Mexico medicaid program does not relieve the public agency of its
				responsibility to ensure that all required services are provided at no cost to
				the parents.
(c) Prior to accessing a child's or parent's
				public benefits or insurance for the first time, and after providing notice to
				the child's parents consistent with Subparagraph (b) of this paragraph, the
				public agency shall obtain written parental consent as defined by 34 CFR Sec.
				300.9. The written consent, consistent with the requirements of 34 CFR Sec.
				300.154(d)(2)(iv), shall:
(i) meet the
				requirements of 34 CFR Secs. 99.30 and 300.622 and shall specify:
(A) the personally identifiable information
				that may be disclosed (e.g., records or information about the services that may
				be provided to the child;
(B) the
				purpose of the disclosure (e.g., billing for services under 34 CFR Part 300;
(C) the public agency to which the
				disclosure may be made (e.g, New Mexico medicaid program); and
(ii) shall specify that the parent
				understands and agrees that the public agency may access the parent's or
				child's public benefits or insurance to pay for services under 34 CFR Part
				300.
(d) The public
				agency is not required to obtain a new parental consent if the following
				conditions are present:
(i) there is no change
				in any of the following:
(A) the type of
				services to be provided to the child;
(B) the amount of services to be provided to
				the child; or
(C) the cost of the
				services to be charged to the public benefits or insurance program;
				and
(ii) the public
				agency has on file a parental consent meeting the requirements of 34 CFR Secs.
				300.9, 99.30, and 300.622.
(e) Once the public agency obtains the
				one-time consent consistent with 34 CFR Sec. 300.154(d)(2)(iv), the public
				agency is not required to obtain parental consent before it accesses the
				child's or parent's public benefits or insurance in the future, regardless of
				whether there is a change in the type or amount of services to be provided to
				the child or a change in the cost of the services to be charged to the public
				benefits or insurance program.
(f)
				If a child transfers to a new public agency, the new public agency shall
				provide the written notification described in 34 CFR Sec. 300.154(d)(2)(v) and
				Subparagraph (b) of this paragraph, and shall then obtain parental consent
				meeting the requirements of 34 CFR Sec. 300.154(d)(2)(iv).
(7) Children with disabilities who are
				covered by private insurance benefits. Pursuant to 34 CFR Sec. 300.154(e), an
				educational agency shall obtain a parent's informed written consent for each
				proposed use of private insurance benefits and shall inform parents that their
				refusal to permit the use of their private insurance will not relieve the
				educational agency of its responsibility to ensure that all required services
				are provided at no cost to the parents. The public agency may not require
				parents to incur an out-of-pocket expense such as the payment of a deductible
				or co-pay amount incurred in filing a claim for services provided pursuant to
				IDEA-Part B rules.
(8) Pursuant to
				34 CFR Sec. 300.154(f):
(a) if a public agency
				is unable to obtain parental consent to use the parent's private insurance, or
				public benefits or insurance when the parent would incur a cost for a specified
				service required under IDEA-Part B rules, to ensure FAPE the public agency may
				use its Part B funds to pay for the service; and
(b) to avoid financial cost to parents who
				otherwise would consent to use private insurance, or public benefits or
				insurance if the parent would incur a cost, the public agency may use its Part
				B funds to pay the cost the parents otherwise would have to pay to use the
				parent's insurance (e.g., the deductible or co-pay amounts).
(9) Staff training and
				qualifications.
(a) Each public agency is
				responsible for ensuring that personnel serving children with disabilities are
				qualified under state licensure requirements and are adequately prepared for
				their assigned responsibilities, pursuant to 34 CFR Sec. 300.156.
				Paraprofessionals and assistants who are appropriately trained and supervised
				in accordance with applicable department licensure rules or written department
				policy may be used to assist in the provision of special education and related
				services to children with disabilities under Part B of IDEA.
(b) Each public agency and charter school
				shall train their school administrators and teachers who teach reading to
				implement appropriate research-based reading interventions prior to referring
				the student for a special education evaluation and shall train their special
				education teachers to provide appropriate specialized reading instruction for
				students with dyslexia who have been identified as eligible for special
				education services.