All children should have the chance to learn and develop, irrespective of their disabilities, because education goes beyond acquiring knowledge. In fact, education is also a way for students to grow their social skills, independence, and self-confidence. Moreover, their time in school is a way for them to figure out who they are, what their unique talents and abilities are, and how they can thrive academically.
To prevent states from leaving children with disabilities behind, the United States has executed a federal law that requires public school districts to offer students Individualized Education Plans (IEPs) from kindergarten through twelfth grade. If your child has a disability, they have a right to services that will positively influence their ability to succeed in school. If your school district does not offer your child an IEP or fails to implement it, the Lento Law Firm can help you get it enforced.
Some of the most common questions about New Mexico's IEP process are listed below. For further information, please schedule a consultation with Lento Law Firm today or call us at 888-535-3686.
What is an IEP?
The Individuals with Disabilities Act (IDEA) was enacted in 1975 by the US Government. This legislation ensures that students with disabilities have access to a free and appropriate public education (FAPE). According to the IDEA, students have the right to an evaluation that would determine whether they should receive special education services. If the evaluation determines that the student should receive such services, and it also provides that an IEP would be created and implemented immediately after.
The IDEA also specifies that children with disabilities must receive their education in the least restrictive environment, which might mean a classroom setting with non-disabled peers. This guarantees that all children, whether they are disabled or not, will be able to take part in regular classrooms and activities as often as possible. Many times, though, students with disabilities will need a mix of both the classroom with non-disabled students and special classes or separate schooling to succeed. However, there are a number of instances where public school districts will refuse to provide students with the necessary services. When this happens, parents have every right to pursue a due process hearing on behalf of their child.
Who Qualifies for an IEP?
To qualify for help under the IDEA, their disability must be listed in one, or more, of the following categories:
- Traumatic brain injury
- Health impairments
- Orthopedic limitations
- Intellectual differences
- Speech or language impairment
- Hearing impairment
- Deafness
- Autism
- Visual impairments
- Blindness
- Emotional disturbances
- Specific learning disabilities
- Multiple disabilities
The IDEA has gone on to explain that disabilities that fall under the “emotional disturbance” category are defined as:
- Being unable to learn, yet it is not caused by the student's intelligence, health, or senses.
- Being incapable of starting or growing relationships with other people.
- Having feelings or acting inappropriately during normal situations.
- Experiencing prolonged sadness or despair.
- Experiencing fear or physical symptoms because of problems or people at school.
How To Get an IEP in New Mexico
Generally, getting a new IEP is as simple as having your child's teacher notice that your child would benefit from one and setting up the evaluation meeting. However, many teachers fail to notice that your child might need an evaluation, so it will be up to you to request one. Once you request it from the teacher, the teacher will notify the IEP evaluator and schedule a date with both of you. Most of the time, the IEP evaluator is the school psychologist, but other times, the district will bring in a third-party contractor to administer the evaluation.
During the IEP evaluation, the evaluator and the child's teacher will ask them questions and play games with them to see how they behave. Once the evaluation is over, the teacher and evaluator will determine if your child has a qualifying disability and, if so, what accommodations and services they might benefit from. Then, at the official IEP meeting, you, the school district, the evaluator, and the teacher will meet to write up and agree to the IEP.
It is important to note that, during this meeting, you have every right to suggest accommodations you think would help your child best. However, the school does not have to do exactly what you suggest. This meeting is more of a negotiation and will not end until all parties are satisfied and agree to sign the document. After that, the IEP is meant to go into effect immediately.
After this initial IEP meeting, you will continue to meet every year with the IEP team to discuss and update the IEP as your child progresses through school. Despite the fact that these meetings are once a year, you have the choice to meet more frequently throughout the year.
If the district does not implement the IEP immediately, the district refuses to meet more frequently to discuss the IEP, or if the IEP services cannot be agreed upon during the meetings, an attorney can help. The Lento Law Firm Education Law Team knows how overwhelming these meetings can be and negotiate on your behalf, hopefully shouldering some of this burden for you.
Transition Plans
Once your child reaches 14 years old, their IEP must include a transition plan for high school, post-secondary schooling, independent living, and future employment. In New Mexico, the transition plan is supposed to include a course of studies that aligns with the child's needs, interests, and goals but will help them achieve those goals.
As this is the first time life after high school is considered, your child is expected to participate in the meetings as well. Moreover, traditional IEPs are reviewed yearly unless requested. High school IEPs should be reviewed at least once a semester so they continue to align with the child's future opportunities.
Private School Exceptions for New Mexico IEP Regulations
While the federal laws that focus on IEPs do not usually extend to state agencies, like public school districts, there are a number of situations where students with disabilities may be able to attend private schools and still receive services and accommodations.
According to New Mexico's Public Education Department Special Education Bureau, the state has a responsibility to find and evaluate children with disabilities and figure out practical ways to deliver special education and related services to children who need it. It does not matter where these children go to school if they are in homes or wards of the state. If they have a disability, or the state believes they might, they have an obligation to help them succeed.
Additionally, under the IDEA, public school districts – or “local education agencies” (LEAs) – need to provide children with disabilities a FAPE in the least restrictive environment, which might include private school attendance. However, a child's parent might unilaterally place them in a non-profit or for-profit private school because they believe the district is not providing their child with a true FAPE.
Generally, when the parent unilaterally decides to place their child in a private school, they will forfeit their child's right to receive an IEP and the services and accommodations that go with it. To receive similar services, the parent must contact their LEA for an evaluation. If they discover the private school placement is necessary, they will help facilitate the same services and accommodations the child would have received in public school.
Moreover, if the parents can prove that the private school is a better setting for their child, and that the public school district would not be able to provide their child with a FAPE, they may be able to get tuition reimbursement from the state for the private school. To determine if you are eligible for reimbursement, you will have to initiate a due process hearing. The prospect of initiating such a hearing can be overwhelming and make the prospect of winning the reimbursement even harder.
This is where a skilled attorney comes in. The Lento Law Firm Education Law Team is here to take the burden off of you. They will gather evidence and witness testimony to aid in your argument, ensuring the best possible outcome for your case.
New Mexico's Additional Support Services
In addition to the IEP services New Mexico offers families with children with disabilities between the ages of kindergarten and twelfth grade, they also offer:
- Child Find: Legislation that obligates state and local agencies to identify, locate, and evaluate students with disabilities, no matter the age or current school.
- Student Assistance Team & Interventions: Each school in New Mexico must have a SAT that determines a screening protocol for each individual student. Its mission is to prevent students with disabilities from experiencing difficulties that are preventing them from achieving an education or taking part in classroom activities.
Emergency Event Plans & IEPs
According to federal law, all school districts must submit their emergency event plans to the state prior to putting them into action. Generally, these procedures outline how students, staff, and faculty should respond in emergency situations. Once these procedures are approved by the state, the school districts allocate certain times throughout the year to run through emergency situations and practice their procedures. Examples of emergency situations include fires, natural disasters, and active shooters.
It is important for students with disabilities to include emergency event plans and services in each students' IEP. This ensures that the child's needs are being met, even during an emergency, and that the faculty and staff know how to help their students with disabilities during these high-stress events. While the specific accommodations will change, they tend to include one or more of the following:
- Quiet places for the child to self-regulate.
- Self-calming strategies the student can employ.
- One-one-supervision – like a shadow.
- A peer buddy system that includes backup buddies.
- Access to earplugs, noise-canceling headphones, emergency medications, sanitation stations, or hand sanitizer.
- Schedule emergency drills so that the child can anticipate the change in schedule and self-soothe.
- Allowing the child's service animal to practice for the emergency.
- Accommodations for children with short-term disabilities.
Often, during an IEP meeting, the school may forget to add emergency situation plans. If you've seen that your child's IEP is missing this necessary – life-saving – information, you must contact the school or school district immediately. IEPs are meant to evolve with your child and be updated as often as necessary. As such, if anyone in the district or IEP meeting pushes back on including emergency services or tries to sway you to wait until your scheduled IEP meeting, you have every right to push back. And if they continue to ignore you or drag their feet, Lento Law Firm can help advocate for your child.
IDEA Reauthorization
The IDEA was first enacted in 1975 and then reauthorized in 2004. It has yet to be updated or reauthorized since, though. When Part B of the IDEA was announced, lawmakers made it clear that this addition was specifically to help provide additional funding to states so they could continue to offer services and accommodations to their children with disabilities. However, to receive the additional funding, states had to submit a State Plan outlining their current policies and procedures and how they were going to use the money.
Typically, the State Plan will discuss:
- The free appropriate public education policy New Mexico has in place.
- How New Mexico addresses the educational and developmental needs of children under the age of five.
- The assistive technology devices or services they currently offer or will offer with the new funding.
- The extended school year services they provide to students with disabilities.
- Other nonacademic services they provide.
- Residential placements offered and the procedures for them to take effect.
- Other program options they offer students with disabilities.
- Physical education requirements for all students.
- Their full educational opportunity goal.
- How New Mexico plans to find and evaluate children with disabilities.
- The procedures for getting, implementing, and modifying an Individualized Education Plan.
- Their least restrictive environment policy requirements.
- Alternative education placements in New Mexico.
- Due process procedures both the state and parents can enact if they disagree with a decision the other made.
- How New Mexico will initiate routine checks on students' hearing aids and external, surgically implanted medical devices.
Costs and Lack of Funding
Unfortunately, many schools refuse to provide students with disabilities the appropriate accommodations or services they need to succeed and base this decision on costs and lack of funding. This ability to brush off students with disabilities is compounded by the IDEA's simple requirement that school districts only need to offer students with IEPs “reasonable” accommodations. However, they do not explain the term “reasonable” further. As such, when parents suggest accommodations that would truly benefit their child in school, the school is likely to ignore them.
For instance, if a student has a powered wheelchair and would have an easier time using a higher and wider desk that is made for their chair, but they have a lap desk that attaches to their chair, the school is likely to deny their request for the desk. When pressed, they will more than likely cite costs or lack of funding. Thus, it will be up to you to change their minds and show how the higher and wider desk would make a difference in their child's education and grades, which can be quite difficult to do on your own. The Lento Law Firm Education Law Team will not only review New Mexico's policies and procedures but also call a meeting with the school district and attempt to work through the issue outside of the courtroom. However, if they cannot, the Team will be able to build a solid argument on your child's behalf.
New Mexico Department of Education Procedures
According to the IDEA, each state must have its own dispute resolution process for IEP disagreements. Generally, the process starts when the parent requests a due process hearing in writing to the Office of General Counsel (OGC). The OGC notifies the Alternative Dispute Resolution (ADR) Coordinator to determine who should mediate the issue. Once the ADR Coordinator is notified, the parties will have the option to take part in a resolution session or a facilitated IEP meeting (FIEP).
If either party does not agree to any ADR option, the Hearing Officer is notified, and the hearing proceeds. However, if the parties agree to either proceed with the resolution session or the FIEP, the Hearing Officer will basically be put on standby until a resolution is agreed upon. If the parties do not agree during either of these ADR sessions or mediation, the issue will move on to the hearing.
When the matter proceeds to the formal hearing, the ADR Coordinator will assign an investigator to look into the matter. The investigator will request documents from the district, ask the parents to send additional information, review everything (the IEP, interviews, applicable regulations and case law), and determine whether the school district violated any of the student's rights. If they did, the hearing coordinator will create a corrective action plan and issue it to both parties no less than 60 days after the complaint was initially made.
Special Considerations for Preschoolers
While the IDEA requires that all public school districts offer students in kindergarten through twelfth grade a free appropriate public education, they do not have similar standards for children under the age of five. As such, New Mexico has adopted Part C of the IDEA and expanded on it to meet the needs of preschoolers with disabilities.
Through this initiative, local school districts must evaluate preschool children to determine who is in need of special education services. If they find that your child does need special education services, they will develop an IEP for their time in preschool, which will usually include a transition to kindergarten plan as well.
Just like older children with disabilities, preschoolers with disabilities must be placed in the least restrictive environment. Often, this is a classroom with non-disabled students, Head Start, State Pre-K, preschool, Title I, or childcare. If the state does not provide your child with accommodations before kindergarten or fails to help you transition that child and their preschool IEP to kindergarten, your attorney can help advocate for your child's education. The Lento Law Firm will not only contact your local school district, but also begin negotiations immediately.
Protect Your Student's Rights
Though all children with disabilities have the right to excel in their education, many school districts fail to provide the accommodations and services such children need. When this happens, the students are unable to succeed as well as they might be able to. To prevent students from being left behind, the US government created the Individualized Education Plan under the IDEA. This law forces the school district to allocate funds to services and accommodations for students with disabilities.
When schools in New Mexico fail to follow a legally binding IEP, they can and should be penalized. Whether you have yet to start your child's IEP evaluation, are having a hard time getting the school to follow through on the IEP services, or would like to pursue tuition reimbursement for being forced to place your child in a private school, Lento Law Firm can help.
The Lento Law Firm Education Law Team has helped hundreds of students around the country who are having difficulty in school. They will work diligently to ensure your child receives the services they need to make the most of their education. Let them help. Call 888-535-3686 today or schedule a consultation online.
