Summary:

 Senate Bill 38 (SB 38) enacts the Special Education Act. SB 38 creates the Office of Special Education providing powers, duties and the transfer of certain federal funding from the Public Education Department to the Early Education and Care Department. SB 38 reorganizes the office of the State Special Education Ombudsman by removing the office from the Developmental Disabilities Council to the Public Education Department. SB 38 recompiles the Special Education Ombudsman Act in the Public School Code and makes conforming amendments.
  

Legislation Overview:

 Senate Bill 38 amends Public School code as follows:
SECTION 1 amends the Executive Department to insert additional divisions in the Public Education Department (PED). Subsection A has inserted A(11) and A(12) as follows:
(11) the office of special education;
(12) the office of the state special education ombud;
SECTION 2 adds a new section to provide that Sections 2 through 7 of this act may be cited as the Special Education Act (Act). 
SECTION 3 adds a new section to provide Definitions as used in the Act.
SECTION 4. A new section to create the Office of Special Education, as follows:
A. The Office of Special Education is created as a division of the department and shall be headed by the deputy secretary of special education who shall be appointed solely on the basis of education and experience. The deputy secretary shall direct the activities of the office and apprise the secretary of federal and state law regarding special education. 
B. The deputy secretary may, subject to appropriation, appoint professional and clerical staff as needed to carry out the provisions of the Act and other duties as provided by law. 
C. The department shall provide data regarding the state's compliance with federal and state law regarding special education and the state's administration of funding received pursuant to Part B of the federal Individuals with Disabilities Education Improvement Act of 2004. 
SECTION 5 adds a new section to provide duties of the office. The office shall: 
A. oversee and enforce state and school district compliance with federal and state law regarding special education and the rights of students with disabilities by:
(1) soliciting input from special education students, parents, educational decision makers, and other stakeholders as specified in this paragraph; 
(2) reviewing publicly available information and resources regarding special education services and programs; 
(3) monitoring academic and nonacademic progress of students with disabilities; 
(4) providing procedural safeguards as required by law; 
(5) performing site visits to public schools, if needed; and 
(6) requiring remedial action by a school district if a school district or public school is out of compliance; 
B. ensure that transitional individualized education programs prepare students with disabilities as specified in this subsection.
C. make and adopt a state plan for special education policy, programs and standards and update that plan every three years; 
D. review and recommend rules to address the needs of students with disabilities and other matters related to special education; 
E. consult and coordinate with other divisions, agencies, educational institutions and public post-secondary institutions regarding special education.
F. develop policies and provide guidance, recommendations, professional development and annual training as specified in this subsection.
G. provide technical assistance to school districts and other special education providers that implement programs for students with disabilities; 
H. identify systems and policies that maximize special education services, expedite evaluation of students with disabilities, and facilitate meaningful inclusion of students with disabilities.
I. monitor: (1) the expenditures of federal and state funding for special education programs and services; and (2) school district policies and practices for screening and evaluating students suspected of having disabilities
J. work with the office of the state special education ombud, review recommendations from the state ombud, investigate those recommendations and take appropriate action on those recommendations; 
K. develop and maintain an online system for the formulation of individualized education plans; and 
L. determine which special education data is needed to evaluate the state's compliance with federal and state laws related to special education and submit an annual report as specified intros subsection.
SECTION 6 adds a new section to provide Special Education Salary Differential Levels.
No later than July 1, 2026, the department and office shall, in consultation with school districts and licensed school employees, identify strategies for recruitment and retention of licensed school employees who provide instructional support to students with disabilities. 
SECTION 7 adds a new section to initiate transfer of preschool special education funding.
No later than July 1, 2025, the department shall initiate the transfer of federal grant funding and corresponding powers and duties pursuant to Section 619 of Part B of the federal Individuals with Disabilities Education Act to the Early Childhood Education and Care Department (ECECD). 
B. The ECECD, through a coordinator appointed pursuant to the federal Individuals with Disabilities Education Act, shall collaborate with the department in the provision of special education as specified in this subsection.
SECTION 8 amends Public Schools in Operating Budgets to provide in Subsection E(3)(b) that each schools’ educational plan shall include K-12 plus programs. Subsection E(6)(f) is amended to include gifted students and the spending of these revenues on services provided to those students shall include (f) an explanation of how program costs are expended, disaggregated by grade. 
SECTION 9 amends Special Education to update the language in this section.
SECTION 10 amends Special Education Definitions as used in Public School Code:
Subsection B defining exceptional children is deleted.
The new Subsection B is inserted as follows:
B. "students with disabilities" means students with physical or mental impairments or specific learning disabilities and who, as a result of those impairments or specific learning disabilities, require special education and related services in accordance with the federal Individuals with Disabilities Education Improvement Act of 2004, and includes children three and four years of age who are classified as developmentally disabled in accordance with the Developmental Disabilities Act and Part B of the federal Individuals with Disabilities Education Improvement Act of 2004;
Subsection F defining “response to intervention” is deleted.
Subsection E and F are inserted as follows:
E. "highly mobile students" means school-age persons who frequently move to different school districts, including children of military families, migratory children, children who are experiencing homelessness and children in the foster care system; 
F. "multi-layered system of supports" means a coordinated and comprehensive framework of evidence-based academic and behavioral supports that address a student's needs with graduated intensity based on data collected for the student and provides progress measures, including school-based team structures, professional development, health and wellness and family and community engagement, to provide for additional supports; and
SECTION 11 amends Special Education to Special Education Responsibility throughout to update the changes of the Office of Special Education and changes in department and division, as well as update the language. “State board” is deleted throughout.
SECTION 12 amends Public School Code to change the title by deleting “intervention” and inserting Supports to create Supports for Students Displaying Characteristics of Dyslexia. Subsections B and C are amended to delete “intervention” and insert “through a multi-layered system of supports”.
SECTIONS 13-21 recompile and amend sections of Public School code to reflect the changes in creating the Office of Special Education; moving the State Special Education Ombudsman to the Public Education Department; and to update language as used for special education students. 
SECTION 22. RECOMPILATION.--Sections 28-16C-5 and 28-16C-9 NMSA 1978 (being Laws 2021, Chapter 53, Sections 5 and 9) are recompiled as Sections 22-36-5 and 22-36-9 NMSA 1978. 

Current Law:

 Senate Bill 38 under current law, the State Special Education Ombudsman  office would remain in the Developmental Disabilities Council and the Developmental Disabilities Council would remain in effect in the Public Education Department. 

Amendments:

 Senate Bill 38 is amended by the Senate Education Committee as follows:
SECTION 8 of Public School code in Operating Budges Subsection E(6), which specifies what school’s educational plan shall include, to delete the requirement of  
“an explanation of how program costs are expended, disaggregated by grade;”
SECTION 9, SECTION 10, and SECTION 12 remove “gifted students” throughout each section.
SECTION 11 is inserted as follows:
SECTION 11 amends Public Schools Section 22-13-6.1 NMSA 1978 (being Laws 1994, Chapter GIFTED CHILDREN—DETERMINATION
A. School districts shall provide gifted education appropriate to meet the needs of gifted students. The department shall promulgate rules and standards for the provision of gifted education in public schools, state educational institutions and other institutions wholly or partially supported by the state. The department shall monitor and enforce implementation of the rules and standards for the provision of gifted education. 
B. The department shall adopt standards pertaining to the determination of who is a gifted child and shall publish those standards as part of the educational standards for New Mexico schools. 
C. In adopting standards to determine who is a gifted child, the department shall provide for the evaluation of selected school-age children by multidisciplinary teams from each child's school district. That team shall be vested with the authority to designate a child as gifted. The team shall consider information regarding a child's cultural and linguistic background and socioeconomic background in the identification, referral and evaluation process. The team also shall consider any disabling condition in the identification, referral and evaluation process. 
D. Each school district offering a gifted education program shall create one or more advisory committees of parents, community members, students and school staff members. The school district may create as many advisory committees as there are high schools in the district or may create a single districtwide advisory committee. The membership of each advisory committee shall reflect the cultural diversity of the enrollment of the school district or the schools the committee advises. The advisory committee shall regularly review the goals and priorities of the gifted program, including the operational plans for student identification, evaluation, placement and service delivery and shall demonstrate support for the gifted program. 
E. In determining whether a child is gifted, the multidisciplinary team shall consider diagnostic or other evidence of the child's: (1) creativity or divergent-thinking ability; (2) critical-thinking or problem-solving ability; (3) intelligence; and (4) achievement.”»
Renumbers the following the sections.