N.M. Code R. § 6.31.2.7 - DEFINITIONS
A. Terms defined by
federal laws and rules. All terms defined in the following federal laws and
rules and any other federally defined terms that are incorporated there by
reference are incorporated here for purposes of these rules.
(1) The federal Individuals with Disabilities
Education Improvement Act of 2004 (IDEA), 20 USC Sec. 1400 et seq.
(3) Pursuant to the paperwork
reduction provisions of IDEA, 20 USC Sec. 1408, all definitions, with the
exception of those found in Subsection B of 6.31.2.7 NMAC, contained in IDEA
Parts 300 and 301 at 34 CFR Secs. 300.1 through 300.45, will be adopted by
reference.
B. The
following terms shall have the following meanings for purposes of these rules.
(1)
"CFR" means the code of
federal regulations, including future amendments.
(2)
"Child with a disability"
means a child who meets all requirements of 34 CFR Sec. 300.8 and:
(a) is age three through 21 or who will turn
age three at any time during the school year;
(b) has been evaluated in accordance with 34
CFR Secs. 300.304 through 300.311 and any additional requirements of these or
other department rules and standards and as having one or more of the
disabilities specified in 34 CFR Sec. 300.8 including an intellectual
disability; a hearing impairment, including deafness, speech or language
impairment; a visual impairment, including blindness; emotional disturbance;
orthopedic impairment; autism; traumatic brain injury; other health impairment;
a specific learning disability; deaf-blindness; or being developmentally
delayed as defined in Paragraph (4) of Subsection B of 6.31.2.7 NMAC; and who
has not received a high school diploma; and
(c) at the discretion of each local
educational agency and subject to the additional requirements of Paragraph (2)
of Subsection F of
6.31.2.10
NMAC, may include a child age three through nine who is evaluated as being
developmentally delayed and who, because of that condition, needs special
education and related services.
(3)
"Developmentally delayed"
means a child age three through nine or who will turn age three at any time
during the school year with documented delays in development which are at least
two standard deviations below the mean on a standardized test instrument or
thirty percent below chronological age and who in the professional judgment of
the IEP team and one or more qualified evaluators needs special education and
related services in at least one of the following areas: communication
development, cognitive development, physical development, social or emotional
development, or adaptive development. Use of the developmentally delayed option
by individual local educational agencies is subject to the further requirements
of Paragraph (2) of Subsection F of
6.31.2.10
NMAC. Local educational agencies shall use appropriate diagnostic instruments
and procedures to ensure that the child qualifies as a child with a
developmental delay in accordance with the definition in this
paragraph.
(4)
"Dual
discrepancy" means the child does not achieve adequately for the child's
age or to meet grade-level standards established in New Mexico standards for
excellence, 6.29.1 through 6.29.17 NMAC; and
(a) does not make sufficient progress to meet
age or grade-level standards; or
(b) exhibits a pattern of strengths and
weaknesses in performance, achievement, or both, relative to age, grade level
standards, or intellectual development.
(5)
"Dyslexia" means a condition
of neurological origin that is characterized by difficulty with accurate or
fluent word recognition and by poor spelling and decoding abilities, which
characteristics typically result from a deficit in the phonological component
of language that is often unexpected in relation to other cognitive abilities
and the provision of effective classroom instruction and may result in problems
in reading comprehension and reduced reading experience that may impede the
growth of vocabulary and background knowledge.
(6) The "educational
jurisdiction" of a public agency includes the geographic area, age
range, and all facilities including residential treatment centers, day
treatment centers, hospitals, mental health institutions, juvenile justice
facilities, state supported schools, or programs within which the public agency
is obligated under state laws, rules, or by enforceable agreements including
joint powers agreements (JPAs) or memoranda of understanding (MOUs) to provide
educational services for children with disabilities. In situations such as
transitions, transfers, and special placements, the educational jurisdiction of
two or more public agencies may overlap and result in a shared obligation to
ensure that a particular child receives all the services to which the child is
entitled.
(7) A "free
appropriate public education" or "FAPE" means special education and
related services which meet all requirements of 34 CFR Sec. 300.17 and which,
pursuant to 34 CFR Sec. 300.17(b), meet all applicable department rules and
standards, including but not limited to these rules; the New Mexico standards
for excellence; and department rules governing school personnel preparation,
licensure, and performance; student rights and responsibilities; and student
transportation.
(8) The
"general education curriculum," pursuant to 34 CFR Sec. 300.320,
means the same curriculum that a public agency offers for nondisabled children.
For New Mexico public agencies whose non-special education programs are subject
to department rules, the general curriculum includes the content standards,
benchmarks, and all other applicable requirements of the New Mexico standards
for excellence and any other department rules defining curricular
requirements.
(9)
"LEA" means a local educational agency as defined in 34 CFR Sec.
300.28.
(10)
"Individualized
education program" or "IEP" means a written statement for a
child with a disability that is developed, reviewed, and revised in accordance
with 34 CFR Secs. 300.320 through 300.324.
(11)
"IEP team" means, pursuant
to 34 CFR Sec. 300.321, the public agency shall ensure that the IEP team for
each child with a disability includes:
(a) the
parents of the child;
(b) not less
than one regular education teacher of the child (if the child is, or may be,
participating in the regular education environment);
(c) not less than one special education
teacher of the child, or where appropriate, not less than one special education
provider of the child;
(d) a
representative of the public agency who:
(i)
is qualified to provide, or supervise the provision of, specially designed
instruction to meet the unique needs of children with disabilities;
(ii) is knowledgeable about the general
education curriculum; and
(iii) is
knowledgeable about the availability of resources of the public
agency;
(e) an individual
who can interpret the instructional implications of evaluation results, who may
be a member of the team described in Subparagraphs (b) through (e) of Paragraph
(11) of Subsection B of 6.31.2.7 NMAC;
(f) at the discretion of the parent or public
agency, other individuals who have knowledge or special expertise regarding the
child, including related services personnel as appropriate; and
(g) whenever appropriate, the child with a
disability.
(12)
"Individuals with Disabilities Education Improvement Act" or
"IDEA" means the federal Individuals with Disabilities Education
Improvement Act of 2004, 20 USC Secs. 1401 et seq., including future
amendments.
(13)
"NMAC" means the New Mexico administrative code, including future
amendments.
(14)
"NMSA
1978" means the 1978 compilation of New Mexico statutes annotated,
including future amendments.
(15)
"Parent" includes, in addition to the persons specified in 34 CFR
Sec. 300.30, a child with a disability who has reached age 18 and for whom
there is no court-appointed general guardian, limited guardian, or other
court-appointed person who has legal custody or has otherwise been authorized
by a court to make educational decisions on the child's behalf as provided in
Subsection K of
6.31.2.13
NMAC. Pursuant to 34 CFR Sec. 300.519 and department policy, a foster parent of
a child with a disability may act as a parent under Part B of IDEA if:
(i) the foster parent or the state children,
youth, and families department (CYFD) provides appropriate documentation to
establish that CYFD has legal custody and has designated the person in question
as the child's foster parent; and
(ii) the foster parent is willing to make the
educational decisions required of parents under IDEA, and has no interest that
would conflict with the interests of the child. A foster parent who does not
qualify under the requirements but who meets all requirements for a surrogate
parent under 34 CFR Sec. 300.519 may be appointed as a surrogate if the public
agency responsible for making the appointment deems such action
appropriate.
(16)
"Public agency" means the state educational agency, local
educational agencies (LEAs), educational services agencies (ESAs), or nonprofit
public charter schools that are not otherwise included as LEAs or ESAs and are
not a school of an LEA or ESA and any other political subdivisions of the state
that are responsible for providing education to children with disabilities
pursuant to 34 CFR Sec. 300.33.
(17)
"Puente para los ninos
fund" means a risk pool fund in New Mexico to support high cost students
with disabilities identified by LEAs pursuant to 34 CFR Sec.
300.704(c)(3)(i).
(18)
"SAT" means the student assistance team, which is a school-based
group of people whose purpose is to provide additional educational support to
students who are experiencing difficulties that are preventing them from
benefiting from general education.
(19)
"SED" means the special
education division of the department.
(20)
"Special education" means
specially designed instruction, at no cost to the parents, to meet the unique
needs of a child with a disability, including instruction conducted in the
classroom, in the home, in hospitals and institutions, and in other settings;
and instruction in physical education.
(a) As
authorized by 34 CFR Secs. 300.8(a)(2)(ii) and 300.39(a)(2)(i), "special
education" in New Mexico may include speech-language pathology
services.
(b) Speech-language
pathology services shall meet the following standards to be considered special
education:
(i) the service is provided to a
child who has received appropriate tier I universal screening under Subsection
D of
6.29.1.9
NMAC as it may be amended from time to time, before being properly evaluated
under 34 CFR Secs. 300.301 through 300.306 and Subsection D of
6.31.2.10
NMAC;
(ii) the IEP team that makes
the eligibility determination finds that the child has a communication
disorder, such as stuttering, impaired articulation, a language impairment, or
a voice impairment, that adversely affects a child's educational
performance;
(iii) the speech
language pathology service consists of specially designed instruction that is
provided to enable the child to have access to the general curriculum and meet
the educational standards of the public agency that apply to all children;
and
(iv) the service is provided at
no cost to the parents under a properly developed IEP that meets the
requirements of Subsection B of
6.31.2.11
NMAC.
(c) If all of the
standards are met, the service shall be considered as special education rather
than a related service.
(d)
Student/staff caseloads for special education shall meet the requirements of
Paragraphs (1) and (2) of Subsection H of
6.29.1.9
NMAC.
(21) A
"state-supported educational program" means a publicly-funded
program that:
(a) provides special education
and related services to children with disabilities who come within the
program's educational jurisdiction;
(b) is operated by, or under contractual
arrangements for, a state school, state educational institution, other state
institution, state hospital, or state agency; and
(c) is primarily funded through direct
legislative appropriations or other direct state support to a public agency
other than a local school district.
(22)
"USC" means the United
States code, including future amendments.
C. Definitions related to dispute resolution.
The following terms are listed in the order that reflects a continuum of
dispute resolution options and shall have the following meanings for the
purposes of these rules.
(1)
"Facilitated IEP meeting" or "FIEP meeting" or
"FIEP" means an IEP meeting that utilizes an independent,
state-approved, state-funded, trained facilitator as an IEP facilitator to
assist the IEP team to communicate openly and effectively, in order to resolve
conflicts related to a student's IEP.
(2)
"Mediation" means a meeting
or series of meetings that utilizes an independent, state-approved,
state-funded, trained mediator to assist parties to reconcile disputed matters
related to a student's IEP or other educational, non-IEP-related
issues.
D. The
definitions in Subsection D of 6.31.2.7 NMAC apply only to
6.31.2.12
NMAC.
(1)
"Creativity/divergent
thinking" means outstanding performance on a test of
creativity/divergent thinking or in creativity/divergent thinking as documented
by information from other sources as specified in Paragraph (2) of Subsection C
of
6.31.2.12
NMAC.
(2)
"Gifted
child" means a school-age person as defined in Subsection D of Section
22-13-6
NMSA 1978 whose intellectual ability paired with subject matter
aptitude/achievement, creativity/divergent thinking, or
problem-solving/critical thinking meets the eligibility criteria in
6.31.2.12
NMAC and for whom a properly constituted IEP team determines that services are
required to meet the child's educational needs.
(3)
"Intellectual ability" means
a score two standard deviations above the mean as defined by the test author on
a properly administered intelligence measure. The test administrator shall also
consider the standard error of measure (SEM) in the determination of whether or
not criteria have been met in this area.
(4)
"Problem-solving/critical
thinking" means an outstanding performance on a test of
problem-solving/critical thinking or in problem-solving/critical thinking as
documented by information from other sources as specified in Subparagraph (b)
of Paragraph (2) of Subsection B of
6.31.2.12
NMAC.
(5)
"Subject matter
aptitude/achievement" means superior academic performance on a total
subject area score on a standardized measure or as documented by information
from other sources as specified in Paragraph (2) of Subsection C of
6.31.2.12
NMAC.
E. The definitions
in Subsection E of 6.31.2.7 NMAC apply only to Subsection I of
6.31.2.13
NMAC.
(1)
"Expedited hearing"
means a hearing that is available on request by a parent or a public agency
under 34 CFR Sec. 300.532(c) and is subject to the requirements of 34 CFR Sec.
300.532(c).
(2)
"Gifted
services" means services to gifted children as defined in Subsection A
of
6.31.2.12
NMAC.
(3)
"Transmit"
means to mail, send by electronic mail (email) or telecopier (facsimile
machine), or hand deliver a written notice or other document and obtain written
proof of delivery by one of the following means:
(a) an email system's confirmation of a
completed transmission to an email address that is shown to be valid for the
individual to whom the transmission was sent;
(b) a telecopier machine's confirmation of a
completed transmission to a number which is shown to be valid for the
individual to whom the transmission was sent;
(c) a receipt from a commercial or government
carrier showing to whom the article was delivered and the date of
delivery;
(d) a written receipt
signed by the secretary of education or designee showing to whom the article
was hand-delivered and the date delivered; or
(e) a final decision to any party not
represented by counsel for a due process hearing by the U.S. postal service,
certified mail, return receipt requested, showing to whom the articles was
delivered and the date of delivery.
F. The definitions in Subsection F of
6.31.2.7 NMAC apply only to Subsection B of
6.31.2.9
NMAC and Subsection L of
6.31.2.11
NMAC:
(1)
"Qualified student"
means, pursuant to Paragraph (1) of Subsection A of Section
22-13-8
NMSA 1978, a public school student who:
(a)
has not graduated from high school;
(b) is regularly enrolled in one-half or more
of the minimum course requirements approved by the department for public school
students; and
(c) in terms of age:
(i) is at least five years of age prior to
12:01 a.m. on September 1 of the school year or will be five years of age prior
to 12:01 a.m. on September 1 of the school year if the student is enrolled in a
public school extended-year kindergarten program that begins prior to the start
of the regular school year;
(ii) is
at least three years of age at any time during the school year and is receiving
special education pursuant to rules of the department; or
(iii) has not reached the student's
22nd birthday on the first day of the school year
and is receiving special education in accordance with federal law.
(2)
"School-age
person" means, pursuant to Paragraph (2) of Subsection A of Section
22-13-8
NMSA 1978, a person who is not a qualified student but who meets the federal
requirements for special education and who:
(a) will be at least three years old at any
time during the school year;
(b) is
not more than 21 years of age; and
(c) has not received a high school diploma or
its equivalent.
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