2018 New Mexico Statutes
Chapter 22 - Public Schools
Article 13 - Courses of Instruction and School Programs
Section 22-13-5 - Special education.

School districts shall provide special education and related services appropriate to meet the needs of students requiring special education and related services. Rules and standards shall be developed and established by the department for the provision of special education in the schools and classes of the public school system in the state and in all institutions wholly or partly supported by the state. The department shall monitor and enforce the rules and standards. School districts shall also provide services for three-year-old and four-year-old preschool children with disabilities, unless the parent or guardian chooses not to enroll the child. Services for students age three through twenty-one may include, but are not limited to, evaluating particular needs, providing learning experiences that develop cognitive and social skills, arranging for or providing related services as defined by the department and providing parent education. The services may be provided by licensed school employees or contracted for with other community agencies and shall be provided in age-appropriate, integrated settings, including home, daycare centers, head start programs, schools or community-based settings.

History: 1953 Comp., § 77-11-3, enacted by Laws 1967, ch. 16, § 182; 1969, ch. 256, § 1; reenacted by 1972, ch. 95, § 1; 1978, ch. 211, § 11; 1985, ch. 7, § 1; 1985, ch. 93, § 2; 1989, ch. 135, § 1; 1995, ch. 69, § 2; 2011, ch. 166, § 1.

Cross references. — For references to the former state board, see 9-24-15 NMSA 1978.

For the department of health's family, infant and toddler program, see 28-16A-13 and 28-18-1 NMSA 1978.

The 2011 amendment, effective July 1, 2012, eliminated the option of having a child who is enrolled in the family, infant, toddler program remain in the program during the child's third year and the option of having a child with a disability who is enrolled in a preschool program receive special education services during the child's third year.

The 1995 amendment, effective June 16, 1995, deleted "for exceptional children" at the end in the section heading; in the first sentence, inserted "and related services" and substituted "children requiring special education and related services" for "exceptional children, unless otherwise provided by law"; substituted "provision" for "conduct" in the second sentence; in the fourth sentence, substituted "preschool" for "developmentally disabled" and inserted "with disabilities"; added the fifth and sixth sentences; in the seventh sentence, inserted "for students age three through twenty-one", inserted "but are not limited to", deleted "and diagnosing" following "evaluating", and substituted "related services as defined by the state board" for "speech, physical or occupational therapy"; and in the eighth sentence, inserted "certified", substituted "shall" for "may" and substituted the language beginning "provided in age-appropriate" for "either home based or center based".

The 1989 amendment, effective June 16, 1989, substituted "appropriate" for "sufficient" in the first sentence; rewrote the third sentence, which formerly read: "Beginning on July, 1986, school districts shall also provide services for four-year old developmentally disabled children whose parents or guardians request such services"; and rewrote the fourth sentence, which formerly read: "Beginning on July 1, 1987, school districts shall also provide services for three-year-old developmentally disabled children whose parents or guardians request such services".

State forbidden from discriminating against handicapped in providing education. — The state is obligated by both federal and state law to provide all its pre-college age children with appropriate educations. Under federal law relating to state programs receiving federal financial assistance, the state is forbidden from discriminating against the handicapped in meeting this obligation. N.M. Ass'n for Retarded Citizens v. State, 678 F.2d 847 (10th Cir. 1982).

Discretionary nature of Public Law 94-142, appearing as 20 U.S.C. § 1400 et seq., frees the state to participate or not in the acquisition of federal funds under the federal Elementary and Secondary Education Act as it chooses. Its choice not to participate is, without more, a governmental decision that is within the state's power and not subject to judicial inquiry. N.M. Ass'n for Retarded Citizens v. State, 495 F. Supp. 391 (D.N.M. 1980), rev'd on other grounds, 678 F.2d 847 (10th Cir. 1982).

State has no obligation to seek federal funds. — The theory that the state has a continuing obligation to seek federal funds to implement educational goals for handicapped children must fail in light of the congressional amendment rendering the federal Elementary and Secondary Education Act discretionary. N.M. Ass'n for Retarded Citizens v. State, 495 F. Supp. 391 (D.N.M. 1980), rev'd on other grounds, 678 F.2d 847 (10th Cir. 1982).

State's status as monitor over spending of federal funds. — The state may not technically be required to monitor compliance with § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Its failure to insure compliance by the local school districts, however, implicates it under § 504 insofar as the state's status as the recipient of federal financial assistance obligates it not to permit, directly or indirectly, programs benefiting from federal financial assistance received by the state, to discriminate against handicapped persons within the context of the regulations promulgated under § 504. N.M. Ass'n for Retarded Citizens v. State, 495 F. Supp. 391 (D.N.M. 1980), rev'd on other grounds, 678 F.2d 847 (10th Cir. 1982).

Students in psychiatric care and substance abuse treatment centers. — Public schools have no constitutional or statutory obligation to provide educational services to students within private, for-profit adolescent psychiatric care and substance abuse treatment centers, but if the student is handicapped, federal law may require such education. 1988 Op. Att'y Gen. No. 88-10.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Tort liability of public school or government agency for misclassification or wrongful placement of student in special education program, 33 A.L.R.4th 1166.

AIDS infection as affecting right to attend public school, 60 A.L.R.4th 15.

Construction of "stay-put" provision of Education of the Handicapped Act (20 U.S.C. § 1415(e)(3)), that handicapped child shall remain in current educational placement pending proceedings conducted under section, 103 A.L.R. Fed. 120.

Obligation of public educational agencies, under Individuals with Disabilities Education Act (20 USCA §§ 1400 et seq.), to pay tuition costs for students unilaterally placed in private schools - post-Burlington cases, 152 A.L.R. Fed. 485.

Who is prevailing party for purposes of obtaining attorney's fees under § 615(i)(3)(B) of Individuals with Disabilities Education Act (20 USCA § 1415(i)(3)(B)) (IDEA), 153 A.L.R. Fed. 1

What constitutes services that must be provided by federally assisted schools under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.A. § 1400 et seq.), 161 A.L.R. Fed. 1

What constitutes reasonable accommodation under federal statutes protecting rights of disabled individual, as regards educational program or school rules as applied to learning disabled student, 166 A.L.R. Fed. 503.