New Mexico Register - Volume XXXII - Issue 8 - April 20, 2021 - The official publication for all official notices of rulemaking - NMAC
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New Mexico Register
The official publication for all official notices of rulemaking
and filing of proposed, adopted and emergency rules.
Volume XXXII - Issue 8 - April 20, 2021
COPYRIGHT © 2021
BY
THE STATE OF NEW MEXICO
ALL RIGHTS RESERVEDThe New Mexico Register
Published by the Commission of Public Records,
Administrative Law Division
1205 Camino Carlos Rey, Santa Fe, NM 87507
The New Mexico Register is published twice each month by the Commission of Public Records, Administrative Law Division.
The cost of an annual subscription is $270.00. Individual copies of any Register issue may be purchased for $12.00. Subscription
inquiries should be directed to: The Commission of Public Records, Administrative Law Division, 1205 Camino Carlos
Rey, Santa Fe, NM 87507.
Telephone: (505) 476-7941; Fax: (505) 476-7910; E-mail: staterules@state.nm.us.
The New Mexico Register is available free at http://www.srca.nm.gov/new-mexico-register/New Mexico Register
Volume XXXII, Issue 8
April 20, 2021
Table of Contents
Notices of Rulemaking and Proposed Rules
EARLY CHILDHOOD EDUCATION AND CARE DEPARTMENT
Notice of Rulemaking and Public Hearing...........................................................................................................355
ENVIRONMENT DEPARTMENT
New Mexico Environmental Improvement Board Notice of Rulemaking Hearing to Consider Proposed
Amendments To 20.2.79 NMAC EIB 21-07 (R).................................................................................................378
New Mexico Environment Improvement Board Notice of Scheduled Public Hearing to Consider
Proposed Amendments to 20.3.1 NMAC, 20.3.3 NMAC, 20.3.4 NMAC, 20.3.5 NMAC, 20.3.7 NMAC,
20.3.12 NMAC, and 20.3.15 NMAC of The Radiation Protection Regulations EIB 21-09................................381
HUMAN SERVICES DEPARTMENT
CHILD SUPPORT ENFORCEMENT DIVISION
Notice of Rulemaking..........................................................................................................................................385
MEDICAL ASSISTANCE DIVISION
Amended Notice of Rulemaking..........................................................................................................................386
STATE PERSONNEL BOARD
Notice of Proposed Rulemaking..........................................................................................................................387
SUPERINTENDENT OF INSURANCE, OFFICE OF
Notice of Proposed Rulemaking..........................................................................................................................389
WORKFORCE SOLUTIONS, DEPARTMENT OF
Notice of Rulemaking..........................................................................................................................................390
_________________________________________________________________________________________________
Adopted Rules
A = Amended, E = Emergency, N = New, R = Repealed, Rn = Renumbered
HEALTH, DEPARTMENT OF
7.1.31 NMAC N Statewide Health Care Claims Database.....................................................391
PUBLIC EDUCATION DEPARTMENT
Student Dental Examination Requirements for Enrollment.......................395
RACING COMMISSION
15.2.2 NMAC A Associations................................................................................................396
15.2.4 NMAC A Types of Races............................................................................................397
15.2.5 NMAC A Horse Race - Rules of the Race..................................................................398
15.2.6 NMAC A Veterinary Practices, Equine Health, Medication, and Trainer
Responsibility..............................................................................................400
16.47.1 NMAC A General Provisions......................................................................................405
TRANSPORTATION, DEPARTMENT OF
18.27.6 NMAC N Transportation Project Fund.......................................................................405
_________________________________________________________________________________________________
iiiOther Material Related to Administrative Law
GOVERNOR, OFFICE OF THE
Governor’s Executive Order 2021-011................................................................................................................413
HEALTH, DEPARTMENT OF
4/5/2021 Amended Public Health Order..............................................................................................................413
4/9/2021 Amended Public Health Order..............................................................................................................414
________________________________________________________________________________________________
ivNew Mexico Register / Volume XXXII, Issue 8/ April 20, 2021 355
Notices of Rulemaking and Proposed Rules
EARLY CHILDHOOD to Limit Mass Gatherings Due to VWdz09, and follow the instructions
EDUCATION AND CARE COVID-19. The public hearing will indicated on the screen – Passcode:
be conducted in a fair and equitable 149616. This will be a live stream of
DEPARTMENT
manner by an ECECD agency the hearing. You may also provide
representative or hearing officer and comment via Chat during the live
NOTICE OF RULEMAKING AND
shall be recorded. Any interested streaming.
PUBLIC RULE HEARING
member of the public may attend
the hearing and will be provided a NOTIFICACIÓN DE
The New Mexico Early Childhood
reasonable opportunity to offer public ELABORACIÓN DE
Education and Care Department
comment, either orally or in writing, REGLAMENTOS Y
(ECECD) hereby gives notice as
including presentation of data, views, AUDIENCIA PÚBLICA SOBRE
required under NMSA 1978, § 14-
or arguments, on the rule during the REGLAMENTOS
4-5.2 and 1.24.25.11 NMAC that it
hearing. Individuals with disabilities
proposes to issue new regulations
who need any form of auxiliary aid Por medio de la presente, el
for the following rules regarding
to attend or participate in the public Departamento de Educación y
SOCIAL SERVICES, EARLY
hearing are asked to contact ECECD Cuidado en la Primera Infancia de
CHILDHOOD EDUCATION AND
at ECECD-ECS-PublicComment@ Nuevo México (ECECD, por sus
CARE, REQUIREMENTS FOR
state.nm.us or call (505) 231-5820. siglas en inglés) anuncia, cumpliendo
FAMILY INFANT TODDLER
ECECD will make every effort to con lo dispuesto por NMSA 1978,
EARLY INTERVENTION
accommodate all reasonable requests, secciones 14-4-5.2 y 1.24.25.11 del
SERVICES, as authorized by NMSA
but cannot guarantee accommodation Código NMAC, que se propone
1978, § 9-2A-7:
of a request that is not received at emitir nuevos reglamentos para las
8.9.8 NMAC - REQUIREMENTS
least ten calendar days before the siguientes normas sobre SERVICIOS
FOR FAMILY INFANT TODDLER
scheduled hearing. SOCIALES, EDUCACIÓN Y
EARLY INTERVENTION
CUIDADOS A LA PRIMERA
SERVICES
Notice of acceptance of written INFANCIA, REQUISITOS PARA
No technical scientific information
public comment: Written public SERVICIOS DE INTERVENCIÓN
was consulted in drafting this rule.
comment, including presentation TEMPRANA A NIÑOS PEQUEÑOS
of data, views, or arguments DE FAMILIAS, tal como lo autoriza
Purpose of rule: The purpose of
about the rule, from any interested NMSA 1978, Secciones 9-2A-7:
this rule is to govern the provision
member of the public, may be 8.9.8 NMAC - REQUISITOS PARA
of early intervention services to
submitted via email to ECECD- SERVICIOS DE INTERVENCIÓN
eligible children and their families
ECS-PublicComment@state.nm.us TEMPRANA A NIÑOS
in New Mexico and to assure that
with the subject line “8.9.8 NMAC PEQUEÑOS DE FAMILIAS
such services meet the requirements
Public Comment” or via first class Para la redacción de este reglamento
of applicable state and federal
mail to P.O. Drawer 5619, Santa Fe, no se consultó ninguna información
statutes, such as the Individuals with
New Mexico 87502 – 5619. Written técnica científica.
Disabilities Education Act.
comments may be delivered to the
Old PERA building at 1120 Paseo De Objetivo del reglamento: El objetivo
Copies of the rule may be found
Peralta on May 25, 2021 from 1:00 de esta norma es regir la provisión de
at end of this notice and at
pm to 3:00 pm. The comment period servicios de intervención temprana a
ECECD’s website at https://www.
ends at the conclusion of the public los niños elegibles y sus familias en
newmexicokids.org/ 30 days prior to
hearing on May 25, 2021. Nuevo México, así como garantizar
the Public Hearing.
que dichos servicios cumplan los
Any interested member of the requisitos de la legislación estatal
Notice of public rule hearing: The
public may attend the hearing via y federal aplicable, como la Ley
public rule hearing will be held on
the internet or telephone and offer de Educación para Personas con
May 25, 2021, at 1:00 p.m. The
public comments on the rule during Discapacidad.
hearing will be held via internet,
the hearing. To access the hearing
email, and telephonic means
by telephone: place call 1-346-248- Al final de este anuncio se incluye
(see below) due to the concerns
7799, access code 919 1938 8049. una copia de este reglamento, el
surrounding COVID-19 and in
You will be able to hear the full cual también estará en el sitio
accordance with Governor Michelle
hearing and your telephone comments web del ECECD en https://www.
Lujan Grisham’s Executive Order
will be recorded. To access the newmexicokids.org/ 30 días antes de
2020-004, Declaration of Public
hearing via the internet: please go to la audiencia pública.
Health Emergency and the March 12,
https://zoom.us/j/91919388049?pwd=
2020 Public Health Emergency Order
dWZ4VjZIWXJ3UHdRcll1WkJDbV356 New Mexico Register / Volume XXXII, Issue 8/ April 20, 2021
Anuncio de audiencia pública: La mayo de 2021 de 1:00 p.m. a 3:00 8.9.8.4 DURATION:
audiencia pública se celebrará el 25 p.m. en el edificio Old PERA en Permanent
de mayo de 2021 a la 1:00 p.m. La 1120 Paseo de Peralta. El período [8.9.8.4 NMAC - N, 7/7/2021]
audiencia será por Internet, por correo para presentar comentarios termina al
electrónico y teléfono (consulte más concluir la audiencia pública el 25 de 8.9.8.5 EFFECTIVE
abajo) debido a las inquietudes por mayo de 2021. DATE: June 29, 2012, unless a later
el COVID-19, y de conformidad con date is cited at the end of a section.
la Orden Ejecutiva 2020-004 de la Cualquier persona del público que [8.9.8.5 NMAC - N, 7/7/2021]
gobernadora Michelle Lujan Grisham, esté interesada puede asistir a la
la Declaración de emergencia de audiencia por Internet o teléfono y 8.9.8.6 OBJECTIVE:
salud pública y la Orden del 12 de ofrecer sus comentarios públicos These regulations are being
marzo de 2020 de emergencia pública sobre el reglamento en cuestión. promulgated to govern the provision
de salud para limitar las asambleas Para participar por teléfono: llame al of early intervention services to
masivas debido al COVID-19. La 1-346-248-7799, usando el código eligible children and their families
audiencia pública la conducirá de de acceso 919 1938 8049. Usted and to assure that such services
manera imparcial y equitativa un podrá escuchar toda la audiencia y meet the requirements of state and
representante del ECECD o un sus comentarios telefónicos quedarán federal statutes, in accordance with
funcionario de audiencias, y esta grabados. Para participar por Internet: the Individuals with Disabilities
será grabada. Cualquier persona visite https://zoom.us/j/91919388049? Education Act.
del público que tenga interés, podrá pwd=dWZ4VjZIWXJ3UHdRcll1WkJ [8.9.8.6 NMAC - N, 7/7/2021]
asistir a la audiencia y se le dará DbVVWdz09, y siga las instrucciones
una oportunidad razonable de dar indicadas en la pantalla –contraseña: 8.9.8.7 DEFINITIONS:
sus comentarios públicamente, ya 149616. Esta será una transmisión en A. Definitions
sea de manera oral o por escrito, vivo de la audiencia. También puede beginning with the letter “A”:
incluyendo la presentación de datos, hacer sus comentarios por medio del (1)
perspectivas o argumentos sobre chat durante la transmisión en vivo. “Adaptive development” means the
el reglamento en cuestión. A los development of self-help skills, such
individuos con discapacidades que TITLE 8 SOCIAL as eating, dressing, and toileting.
necesiten cualquier forma de apoyo SERVICES (2) “Adjusted
auxiliar para poder asistir o participar CHAPTER 9 EARLY age (corrected age)” means
en la audiencia pública, se les solicita CHILDHOOD EDUCATION AND adjusting / correcting the child’s age
que contacten al ECECD a través CARE for children born prematurely (i.e.
de ECECD-ECS-PublicComment@ PART 8 REQUIREMENTS born less than 37 weeks gestation).
state.nm.us o llamando al teléfono FOR FAMILY INFANT TODDLER The adjusted age is calculated by
(505) 231-5820. El ECECD hará EARLY INTERVENTION subtracting the number of weeks the
su mejor esfuerzo por adaptarse a SERVICES child was born before 40 weeks of
las solicitudes razonables, pero no gestation from their chronological
puede garantizar que se adaptará a 8.9.8.1 ISSUING age. Adjusted Age (Corrected Age)
solicitudes que no se reciban cuando AGENCY: Early Childhood should be used until the child is 24
menos diez días calendario antes de la Education and Care Department months of age.
audiencia programada. (ECECD) (3)
[8.9.8.1 NMAC - N, 7/7/2021] “Assessment” means the ongoing
Anuncio de aceptación de procedures used by qualified
comentarios públicos por escrito: 8.9.8.2 SCOPE: These personnel to identify the child’s
Los comentarios públicos por regulations apply to all entities unique strengths and needs and the
escrito, incluyendo la presentación in New Mexico providing early early intervention services appropriate
de datos, perspectivas o argumentos intervention to meet those needs throughout the
sobre el reglamento en cuestión, services to eligible children birth to period of the child’s eligibility for
de parte de cualquier interesado three years of age and their families. FIT services. Assessment includes
del público, pueden presentarse [8.9.8.2 NMAC - N, 7/7/2021] observations of the child in natural
por correo electrónico a ECECD- settings, use of assessment tools,
ECS-PublicComment@state.nm.us 8.9.8.3 STATUTORY informed clinical opinion, and
con el asunto “8.9.8 NMAC Public AUTHORITY: Section 9-7-6 NMSA interviews with family members.
Comment” o por correo postal de 1978, and Section 28-18-1 NMSA Assessment includes ongoing
primera clase al apartado postal: 1978. identification of the concerns,
Drawer 5619, Santa Fe, New Mexico [8.9.8.3 NMAC - N, 7/7/2021] priorities, and resources of the family.
87502 – 5619. Los comentarios por B. Definitions
escrito se pueden entregar el 25 de beginning with the letter “B”:New Mexico Register / Volume XXXII, Issue 8/ April 20, 2021 357
“Biological/medical risk” means and kinesthetic skills; and auditory (4) “Dispute
diagnosed medical conditions that processing for speech or language resolution process” means the
increase the risk of developmental development. array of formal and informal options
delays and disabilities in young (5) available to parents and providers
children. “Confidentiality” means protection for resolving disputes related to
C. Definitions of the family’s right to privacy of all the provision of early intervention
beginning with the letter “C”: personally identifiable information, in services and the system responsible
(1) accordance with all applicable federal for the delivery of those services.
“Child find” means activities and and state laws. (5) “Due
procedures to locate, identify, screen (6) “Consent” process hearing” means a forum
and refer children from birth to means informed written prior in which all parties present their
three years of age with or at risk of authorization by the parent(s) to viewpoint and evidence in front of an
having a developmental delay or participate in the early intervention impartial hearing officer in order to
developmental disabilities. system. The parent has been fully resolve a dispute.
(2) “Child informed of all information relevant (6)
record” means the early intervention to the activity for which consent is “Duration” means the length of time
records (including electronic sought in the parent’s native language that services included in the IFSP will
records) maintained by the early and mode(s) of communication be delivered.
intervention provider and are defined and agrees to the activity for which E. Definitions
as educational records in accordance consent is sought. The parent(s) beginning with the letter “E”:
with the Family Educational Rights shall be informed that the granting (1) “Early
and Privacy Act (FERPA). Early of consent is voluntary and can be intervention services” means
intervention records include files, revoked at any time. The revocation any or all services specified in the
documents, and other materials that of consent is not retroactive. IFSP that are designed to meet the
contain information directly related to D. Definitions developmental needs of each eligible
a child and family, and are maintained beginning with the letter “D”: child and the needs of the family
by the early intervention provider (1) “Days” related to enhancing the child’s
agency. Early intervention records do means calendar days, unless otherwise development, as identified by the
not include records of instructional, indicated in these regulations. IFSP team. (Early intervention
supervisory, and administrative (2) services are described in detail in the
personnel, which are in the sole “Developmental delay” means service delivery provisions of this
possession of the maker and which an evaluated discrepancy between rule.)
are not accessible or revealed to any chronological age and developmental (2) “ECO
other person except to substitute staff. age of twenty-five percent, after (early childhood outcomes)” means
(3) “Cognitive correction for prematurity, in the process of determining the child’s
development” means the progressive one or more of the following development compared to typically
changes in a child’s thinking areas of development: cognitive, developing children of the same age.
processes affecting perception, communication, physical/motor, The information is used to measure
memory, judgment, understanding and social or emotional, and adaptive. the child’s developmental progress
reasoning. (3) over time.
(4) “Developmental specialist” means (3) “Eligible
“Communication development” an individual who meets the criteria children” means children birth to
means the progressive acquisition established in these regulations and three years of age who reside in the
of communication skills, during is certified to provide ‘developmental state and who meet the eligibility
pre-verbal and verbal phases instruction’. A developmental criteria within this rule.
of development; receptive and specialist works directly with the (4)
expressive language, including child, family and other personnel “Environmental risk” means the
spoken, non-spoken, sign language to implement the IFSP. The role presence of adverse family factors in
and assistive or augmentative and scope of responsibility of the the child’s environment that increases
communication devices as a means developmental specialist with the risk of developmental delays and
of expression; and speech production the family and the team shall be disabilities in young children.
and perception. It also includes dictated by the individual’s level (5)
oral-motor development, speech of certification as defined in early “Established condition” means
sound production, and eating and childhood education and care a diagnosed physical, mental, or
swallowing processes. Related to department, family support and early neurobiological condition that has
hearing, communication development intervention division policy and a high probability of resulting in
includes development of auditory service standards. developmental delay or disability.
awareness; auditory, visual, tactile,358 New Mexico Register / Volume XXXII, Issue 8/ April 20, 2021
(6) intake activities such as eligibility (4)
“Evaluation” means the procedures determination and development of an “Individualized education program
used by qualified personnel to initial individualized family service (IEP)” means a written plan
determine a child’s initial and plan (IFSP) The ongoing family developed with input from the parents
continuing eligibility for FIT service coordinator is selected at the that specifies goals for the child and
services. It includes a review of initial IFSP meeting and designated the special education and related
records pertinent to the child’s on the IFSP form. services and supplementary aids and
current health status and medical (4) “FIT- services to be provided through the
history; parent interview and parent KIDS (key information data public school system under IDEA Part
report; observation of the child in system)” means the online data B.
natural settings; informed clinical collection and billing system utilized (5)
opinion; use of FIT Program approved by the FIT program. “Individualized family service plan
assessment tool(s); and identification (5) (IFSP)” means the written plan for
of the level of functioning of the “Frequency” means the number of providing early intervention services
child in each developmental area -- times that a service is provided or an to an eligible child and the child’s
cognitive, communication, physical/ event occurs within a specified period. family. The plan is developed jointly
motor (including vision and hearing), G. Definitions with the family and appropriate
social or emotional, and adaptive. An beginning with the letter “G”: qualified personnel involved. The
initial evaluation refers to the child’s [Reserved] plan is developed around outcomes
evaluation to determine his or her H. Definitions and includes strategies to enhance
initial eligibility for FIT services. beginning with the letter “H”: the family’s capacity to meet the
F. Definitions (1) “Head developmental needs of the eligible
beginning with the letter “F: start/early head start” means a child.
(1) “Family” comprehensive child development (6)
means a basic unit of society program for children of low income “Individualized family service plan
typically composed of adults and families established under the Head process (IFSP process)” means a
children having as its nucleus one or Start Act, as amended. process that occurs from the time of
more primary nurturing caregivers (2) referral, development of the IFSP,
cooperating in the care and rearing “Homeless” means lacking a fixed, implementation of early intervention
of their children. Primary nurturing regular, and adequate nighttime services, review of the IFSP, through
caregivers may include, but are residence. transition. The family service
not limited to, parents, guardians, I. Definitions coordinator facilitates the IFSP
siblings, extended family members, beginning with the letter “I”: process.
and others defined by the family. (1) “IFSP (7)
(2) “Family team” means the persons responsible “Individuals with Disabilities
infant toddler (FIT) program” for developing, reviewing the Education Act (IDEA) – Part C”
means the program within state IFSP. The team shall include means the federal law that contains
government that administers New the parent(s), the family service requirements for serving eligible
Mexico’s early intervention system coordinator, person(s) directly children. Part C of IDEA refers to the
for children (from birth to age involved in conducting evaluations section of the law entitled “The Early
three) who have or are at risk for and assessments, and, as appropriate, Intervention Program for Infants and
developmental delay or disability persons who will be providing Toddlers with Disabilities”.
and their families. The FIT program services to the child or family, an (8) “Informed
is established in accordance with advocate or other persons, including clinical opinion” means the
28-18-1 NMSA, Chapter 178, and family members, as requested by the knowledgeable perceptions of the
administered in accordance with family. evaluation team who use qualitative
the Individuals with Disabilities (2) “Inclusive and quantitative information
Education Act (IDEA), Part C as setting” means a setting where the regarding aspects of a child’s
amended, and other applicable state child with a developmental delay development that are difficult to
and federal statutes and regulations. or disability participates in a setting measure in order to make a decision
(3) “Family with typically developing children. about the child’s eligibility for the FIT
service coordinator” means the A classroom in an early head start, program.
person responsible for coordination child care or preschool classroom (9)
of all services and supports listed must have at least fifty-one percent “Intensity” means the length of time
on the IFSP and ensuring that non disabled peers in order to be the service is provided during each
they are delivered in a timely considered an inclusive setting. session.
manner. The initial family service (3) “Indian (10) “Interim
coordinator assists the family with tribe” means any federal or state IFSP” means an IFSP that is
recognized Indian tribe.New Mexico Register / Volume XXXII, Issue 8/ April 20, 2021 359
developed prior to the completion (4) visiting, early head start, WIC, etc.
of the evaluation and assessments in “Multidisciplinary” means personnel (2)
order to provide early intervention from more than one discipline who “Outcome” means a written
services that have been determined work with the child and family, and statement of changes that the
to be needed immediately by the who coordinate with other members family desires to achieve for their
child and the child’s family. Use of of the team. child and themselves as a result of
an Interim IFSP does not extend the N. Definitions early intervention services that are
45-day timeline for completion of the beginning with the letter “N”: documented on the IFSP.
evaluation process. (1) “Native P. Definitions
J. Definitions language” with respect to an beginning with the letter “P”:
beginning with the letter “J”: individual who is limited English (1)
[Reserved] proficient, means the language “Parent(s)” means a biological
K. Definitions normally used by a child or their or adoptive parent(s) of a child; a
beginning with the letter “K”: parent(s) or mode of communication guardian; a person acting in the place
[Reserved] normally used by a child or their of a parent (such as a grandparent
L. Definitions parents. Native language when or stepparent with whom the child
beginning with the letter “L”: used with respect to evaluations and lives, or a person who is legally
(1) assessments is the language normally responsible for the child’s welfare);
“Lead agency” means the agency used by the child, if determined or a surrogate parent who has been
responsible for administering developmentally appropriate for assigned in accordance with these
early intervention services under the child by qualified personnel regulations. A foster parent may act
the Individuals with Disabilities conducting the evaluation or as a parent under this program if the
Education Act (IDEA) Part C. The assessment. Native language, when natural parents’ authority to make
early childhood education and care used with respect to an individual the decisions required of parents has
department, family infant toddler who is deaf or hard of hearing, been removed under state law and the
(FIT) program, is designated as the blind or visually impaired, or for an foster parent has an ongoing, long-
lead agency for IDEA Part C in New individual with no written language, term parental relationship with the
Mexico. means the mode of communication child; is willing to make the decisions
(2) “Local that is normally used by the individual required of parents under the Federal
education agency (LEA)” means the (such as sign language, braille, or oral Individual with Disabilities Education
local public school district. communication). Act; and has no interest that would
(3) (2) “Natural conflict with the interests of the child.
“Location” means the places in environments” means places that (2)
which early intervention services are are natural or normal for children of “Participating agency” means
delivered. the same age who have no apparent any individual, agency, entity, or
M. Definitions developmental delay, including the institution that collects, maintains,
beginning with the letter “M”: home, community and inclusive early or uses personally identifiable
(1) childhood settings. Early intervention information to implement the
“Mediation” means a method of services are provided in natural requirements of this rule with respect
dispute resolution that is conducted environments in a manner/method to a particular child.
by an impartial and neutral third that promotes the use of naturally (3)
party, who without decision- occurring learning opportunities and “Permission” means verbal
making authority will help parties supports the integration of skills and authorization from the parents to
to voluntarily reach an acceptable knowledge into the family’s typical carry out a function and shall be
settlement on issues in dispute. daily routine and lifestyle. documented. Documentation of
(2) O. Definitions permission does not constitute written
“Medicaid” means the federal beginning with the letter “O”: consent.
medical assistance program under (1) “Other (4)
Title XIX of the Social Security Act. services” means services that the “Personally identifiable
This program provides reimbursement child and family need, and that are information” means that information
for some services delivered by early not early intervention services, but in any form which includes the
intervention provider agencies to should be included in the IFSP. names of the child or family
medicaid-eligible children. Other services does not mean routine members, the child’s or family’s
(3) “Method” medical services unless a child needs address, any personal identifier
means the way in which a specific those services and the services are not of the child and family such as a
early intervention service is delivered. otherwise available or being provided. social security number, or a list of
Examples include group and Examples include, but are not limited personal characteristics or any other
individual services. to, child care, play groups, home information that would make it360 New Mexico Register / Volume XXXII, Issue 8/ April 20, 2021 possible to identify the child or the services and the process for resolving application of rigorous, systematic, family. individual complaints related to and objective procedures to obtain (5) services for a child and family. reliable and valid knowledge relevant “Personnel” means qualified staff (10) “Provider to education activities and programs. and contractors who provide early agency” means a provider that (3) intervention services, and who have meets the requirements established “Screening” means the use of a met state approved or recognized for early intervention services, and standardized instrument to determine certification or licensing requirements has been certified as a provider of if there is an increased concern that apply to the area in which early intervention services by the regarding the child’s development they are conducting evaluations, early childhood education and care when compared to children of assessments or providing early department and that provides services the same age, and whether a full intervention services. through a provider agreement with the evaluation would therefore be (6) “Physical/ department. recommended. motor development” means the (11) “Public (4) progressive changes to a child’s agency” means the lead agency and “Significant atypical development” vision, hearing, gross and fine motor any other political subdivision of the means the eligibility determination development, quality of movement, state government that is responsible under developmental delay made and health status. for providing early intervention using informed clinical opinion, when (7) “Primary services to eligible children and their twenty-five percent delay cannot be referral source” means parents, families. documented through state approved physicians, hospitals and public Q. Definitions evaluation tool, but where there is health facilities (including prenatal beginning with the letter “Q”: significant concern regarding the and postnatal care facilities), child [Reserved] child’s development. care programs, home visiting R. Definitions (5) “Social providers, schools, local education beginning with the letter “R”: or emotional development” the agencies, public health care providers, (1) “Referral” developing capacity of the child to: children’s medical services, public means the process of informing the experience, regulate, and express agencies and staff in the child welfare FIT program regarding a child who emotion; form close and secure system (including child protective may benefit from early intervention, interpersonal relationships; explore service and foster care), other public and giving basic contact information the environment and learn. health or social services agencies, regarding the family. (6) “State early head start, homeless family (2) education agency” means the public shelters, domestic violence shelters “Reflective supervision” means education department responsible for and agencies, and other qualified planned time to provide a respectful, administering special education and individuals or agencies which understanding and thoughtful related serves under IDEA Part B. have identified a child as needing atmosphere where exchanges of (7) evaluation or early intervention information, thoughts, and feelings “Strategies” means the section of services. about the things that arise around the IFSP that describes how the (8) “Prior the person’s work in supporting team, including the parents, will written notice” means written notice healthy parent-child relationships can address each outcome. Strategies given to the parents a reasonable time occur. The focus is on the families shall include the methods and before the early intervention provider involved and on the experience of the activities developed by the IFSP agency, either proposes or refuses to supervisee. team to achieve functional outcomes. initiate or change the identification, S. Definitions Strategies shall include family evaluation, or placement of the child, beginning with the letter “S”: routines, times and locations where or the provision of appropriate early (1) “School activities will occur, as well as intervention services to the child and year” means the period of time accommodations to be made to the the child’s family. Prior notice must between the fall and spring dates environment and assistive technology contain the action being proposed or established by each public school to be used. Strategies shall also refused, the reasons for taking the district which mark the first and last include how members of the team will action and all procedural safeguards days of school for any given year for work together to meet the outcomes that are available. children ages three through twenty- on the IFSP. (9) one years. These dates are filed (8) “Procedural safeguards” means each year with the public education “Supervision” means defining and the requirements set forth by IDEA, department. communicating job requirements; as amended, which specify families’ (2) counseling, mentoring and coaching rights and protections relating to “Scientifically based practices” for improved performance; providing the provision of early intervention means research that involves the job-related instruction; planning,
New Mexico Register / Volume XXXII, Issue 8/ April 20, 2021 361
organizing, and delegating work; of the child welfare agency. agencies and shall be available to
evaluating performance; providing [8.9.8.7 NMAC - N, 7/7/2021] the New Mexico early childhood
corrective and formative feedback; education and care department or its
providing consequences for 8.9.8.8 ADMINISTRATION: designee upon request.
performance; and arranging the A. Supervisory (3) All early
environment to support performance. authority. intervention provider agencies shall
(9) (1) Any employ individuals who maintain
“Surrogate parent” means the agency, organization, or individual current licenses or certifications
person appointed in accordance with that provides early intervention required of all staff providing early
these regulations to represent the services to eligible children and intervention services. Documentation
eligible child in the IFSP Process families shall do so in accordance concerning the licenses and
when no parent can be identified or with these regulations and under the certifications shall be kept on file with
located, or the child is a ward of the supervisory authority of the lead the early intervention provider agency
state. A surrogate parent has all the agency for Part C of IDEA, the New and shall be available to the New
rights and responsibilities afforded to Mexico early childhood education and Mexico early childhood education
a parent under Part C of IDEA. care department. and care department or its designee
T. Definitions (2) An agency upon request. The provider of early
beginning with the letter “T”: that has entered into a contract or intervention services cannot employ
(1) provider agreement or an inter- an immediate family member of an
“Transition” means the process for agency agreement with the New eligible and enrolled child to work
a family and eligible child of moving Mexico early childhood education directly with that child. Exceptions
from services provided through and care department to provide can be made with prior approval by
the FIT program at age three. This early intervention services shall be the New Mexico early childhood
process includes discussions with, considered an “early intervention education and care department.
and training of, parents regarding provider agency” under these (4) Early
future placements and other matters regulations. intervention provider agencies
related to the child’s transition; B. Provider shall ensure that personnel receive
procedures to prepare the child for requirements. adequate training and planned and
changes in service delivery, including (1) All early ongoing supervision, in order to
steps to help the child adjust to and intervention provider agencies shall ensure that individuals have the
function in a new setting; and with comply with these regulations and information and support needed
parental consent, the transmission all other applicable state and federal to perform their job duties. The
of information about the child to a regulations. All early intervention early intervention provider agency
program into which the child might provider agencies that provide shall maintain documentation of
transition to ensure continuity of such services shall do so under the supervision activities. Supervision
services, including evaluation and administrative oversight of the lead shall comply with requirements of
assessment information required agency for IDEA, Part C, the New appropriate licensing and regulatory
and copies of IFSPs that have been Mexico early childhood education and agencies for each discipline.
developed and implemented. care department through the family (5) Early
(2) infant toddler (FIT) program. intervention provider agencies
“Transition plan” means a (2) All early shall provide access to information
component of the IFSP that addresses intervention provider agencies shall necessary for the New Mexico
the process of a family and eligible establish and maintain separate early childhood education and care
child of moving from one service financial reporting and accounting department or its designee to monitor
location to another. The plan defines procedures for the delivery of early compliance with applicable state and
the roles, responsibilities, activities intervention services and related federal regulations.
and timelines for ensuring a smooth activities. They shall generate and (6) Failing
and effective transition. maintain documentation and reports to comply with these regulations
U. Definitions required in accordance with these on the part of early intervention
beginning with the letter “U”: regulations, the provisions of the provider agencies will be addressed
[Reserved] contract/provider agreement or an in accordance with provisions in
V. Definitions inter-agency agreement, medicaid the contract/provider agreement
beginning with the letter “V”: rules and early childhood education or interagency agreement and the
[Reserved] and care department service requirements of state and federal
W. Definitions definitions and standards. This statutes and regulations.
beginning with the letter “W”: information shall be kept on file C. Financial matters.
“Ward of the state” means a child with the early intervention provider (1)
who is in foster care or in the custody Reimbursement for early intervention362 New Mexico Register / Volume XXXII, Issue 8/ April 20, 2021
services to eligible children and (d) (4) education
families by the family infant toddler The parent(s) shall provide written of the deaf/hard of hearing;
program shall conform to the method consent to use their private insurance (5) education
established by the New Mexico to pay for FIT program services. of the blind and visually impaired;
early childhood education and care Consent shall be obtained prior (6) family
department, as delineated in the to initial billing of their private therapy and counseling;
early intervention provider agency’s insurance for early intervention (7) nutrition/
provider agreement and in the service services and each time consent for dietetics;
definitions and standards. services is required due to an increase (8)
(2) Early (in frequency, length, duration, or occupational therapy (including
intervention provider agencies intensity) in the provision of services certified occupational therapy
shall only bill for early intervention on the IFSP. assistants);
services delivered by personnel [8.9.8.8 NMAC - N, 7/7/2021] (9) orientation
who possess relevant, valid licenses and mobility specialist;
or certification in accordance with 8.9.8.9 PERSONNEL: (10) pediatric
personnel certification requirements A. Personnel nursing;
of this rule. requirements. (11) physical
(3) Early (1) Early therapy (including physical therapy
intervention provider agencies shall intervention services shall be assistants);
enter delivered services data into delivered by qualified personnel. (12) physician
the FIT-KIDS (key information data Personnel shall be deemed “qualified” (pediatrics or other medical specialty);
system), which is generated into based upon the standards of their (13) psychology
claims for medicaid, private insurance discipline and in accordance with (psychologist or psychological
and invoices for the early childhood these regulations and shall be associate);
education and care department. supervised in accordance with these (14) social
(4) Early regulations. work;
intervention provider agencies (2) Individuals (15) special
shall maintain documentation of all who hold a professional license education; and
services provided in accordance with or certificate from an approved (16) speech and
service definitions and standards field as identified in this rule, and language pathology.
and provider agreement / contract provide services in that discipline, C. Certification of
requirements. do not require certification as a developmental specialist.
(5) The FIT developmental specialist. However, (1)
program and early intervention individuals who hold a professional Certification is required for
provider agencies shall not implement license or certificate in one of these individuals providing early
a system of payments or fees to fields and who spend sixty percent or intervention services functioning
parents. more of their time employed in the in the position of developmental
(6) Public and role of developmental specialist must specialist.
private insurance. obtain certification as a developmental (2) A
(a) specialist. developmental specialist must have
The parent(s) will not be charged any (3) Personnel the appropriate certificate issued by
co-pay or deductible related to billing may delegate and perform tasks the New Mexico early childhood
their public insurance (including within the specific scope of their education and care department in
medicaid) and private insurance. discipline. The legal and ethical accordance with the developmental
(b) responsibilities of personnel within specialist certification policy and
The parent(s) shall provide written their discipline cannot be delegated. procedures.
consent before personally identifiable B. Qualified (3) The term
information is disclosed for billing personnel may include individuals of certification as a developmental
purposes to public insurance from the following disciplines specialist is a three-year period
(including medicaid) and private who meet the state’s entry level granted from the date the application
insurance. requirements and possess a valid is approved.
(c) license or certification: D. Reciprocity of
The parent(s) may withdraw consent (1) audiology; certification: An applicant for a
at any time to disclose personally (2) developmental specialist certificate
identifiable information to public developmental specialist; who possesses a comparable
insurance (including medicaid) and (3) early certificate from another state shall
private insurance for billing purposes. childhood development and be eligible to receive a New Mexico
education; developmental specialist certificate,New Mexico Register / Volume XXXII, Issue 8/ April 20, 2021 363
at the discretion of the New Mexico at least three years’ experience in B. Early intervention
early childhood education and care community, health or social services. provider agencies shall collaborate
department. (3) Early with the New Mexico early childhood
E. Certification intervention provider agencies education and care department
renewal: The individual seeking may request a waiver from the FIT and shall inform primary referral
renewal of a developmental specialist program, to hire family service sources regarding how to make a
certificate shall provide the required coordinators who do not meet the referral when there are concerns
application and documentation qualifications listed above but do meet about a child’s development.
in accordance with policy and cultural, linguistic, or other specific Primary referral sources include:
procedures established by the FIT needs of the population served or hospitals; prenatal and postnatal
program. an individual who is the parent of a care facilities; physicians; public
F. Agency exemptions child with a developmental delay or health facilities; child care and early
from personnel certification disability. learning programs, school districts;
requirements. (4) All home visiting programs; homeless
(1) At its individuals must meet all training family shelters; domestic violence
discretion, the FIT program may requirements for family service shelters and agencies; child protective
issue to an early intervention coordinators in accordance with FIT services, including foster care; other
provider agency an exemption from program standards within one-year of social service agencies; and other
personnel qualifications for a specific being hired. health care providers.
developmental specialist position. H. Supervision C. Early intervention
The exemption shall be in effect only of early intervention personnel provider agencies in collaboration
for one year from the date it is issued. providing direct services. with the New Mexico early childhood
(2) An (1) Early education and care department shall
exemption from certification is for a intervention provider agencies shall inform parents, medical personnel,
specific position and is to be used in ensure that developmental specialists local education agencies and the
situations when the early intervention and therapists (employees and general public of the availability and
provider agency can demonstrate that subcontractors), and family service benefits of early intervention services.
it has attempted actively to recruit coordinators receive monthly planned This collaboration shall include an
personnel who meet the certification and ongoing reflective supervision. ongoing public awareness campaign
requirements but is currently unable (2) The that is sensitive to issues related to
to locate qualified personnel. early intervention provider agency accessibility, culture, language, and
(3) Early shall maintain documentation of modes of communication.
intervention provider agencies supervision activities conducted. D. Referral and
shall not bill for early intervention (3) intake:
services delivered by a non-certified Supervision of other early (1) Primary
developmental specialist unless the intervention personnel shall comply referral sources shall inform parent(s)
FIT program has issued an exemption with the requirements of other of their intent to refer and the purpose
for that position. appropriate licensing and regulatory for the referral. Primary referral
(4) agencies for each discipline. sources should refer the child as soon
Documentation of efforts to hire [8.9.8.9 NMAC - N, 7/7/2021] as possible, but in no case more than
personnel meeting the certification seven days after the child has been
requirements shall be maintained. 8.9.8.10 CHILD identified.
G. Family service IDENTIFICATION: (2) Parents
coordinators. A. Early intervention must give permission for a referral of
(1) Family provider agencies shall collaborate their child to the FIT program.
service coordinators shall possess a with the New Mexico early childhood (3) The child
bachelor’s degree in health, education education and care department must be under three years of age at
or social service field or a bachelor’s and other state, federal and tribal the time of the referral.
degree in another field plus two years’ government agencies in a coordinated (4) If there
experience in community, health or child find effort to locate, identify are less than 45 days before the child
social services. and evaluate all children residing turns three at the time of referral, the
(2) If an early in the state who may be eligible for early intervention provider agency
intervention provider agency is unable early intervention services. Child will not complete an evaluation to
to hire suitable candidates meeting the find efforts shall include families determine eligibility and will assist
above requirements, a person can be and children in rural and in Native the family with a referral to Part B
hired as a family service coordinator American communities, children preschool special education and other
with an associate of arts degree and whose family is homeless, children in preschool programs, as appropriate
foster care and wards of the state, and and with consent of the parent(s).
children born prematurely.364 New Mexico Register / Volume XXXII, Issue 8/ April 20, 2021 (5) The E. Screening. determine eligibility, unless the child early intervention provider agency (1) A receives a screening in accordance receiving a referral shall promptly developmental screening for a with the screening requirements assign a family service coordinator to child who has been referred may of this rule and the results do not conduct an intake with the parent(s). be conducted using a standardized indicate that the child is suspected (6) The family instrument to determine if there is of having a developmental delay. service coordinator shall contact an indication that the child may have Exception: If the parent of the child the parent(s) to arrange a meeting developmental delay and whether an requests and consents to an evaluation at the earliest possible time that is evaluation to determine eligibility is at any time during the screening convenient for the parent(s) in order recommended. process, evaluation of the child must to: (2) A be conducted even if the results do not (a) developmental screening should not indicate that the child is suspected of inform the parent(s) about early be used if the child has a diagnosis having a developmental delay. intervention services and the IFSP that would qualify them under (2) The process; established condition or biological evaluation shall be: (b) medical risk or where the referral (a) review the FIT family handbook; indicates a strong likelihood that the timely, multidisciplinary, evaluation; (c) child has delay in their development, (b) explain the family’s rights and including when a screening has conducted by qualified personnel, procedural safeguards; already been conducted. in a nondiscriminatory manner so (d) if (3) as not to be racially or culturally in a county that is also served by other If a developmental screening is discriminatory; and FIT provider, inform the parent(s) of conducted: (c) their choice of provider agencies and (a) shall include information provided by have them sign a “freedom of choice” the written consent of the parent(s) the parent(s). form. must be obtained for the screening; (3) If parental (e) and consent is not given, the family provide information about evaluation (b) service coordinator shall make options; and with the parent’s the parent must be provided written reasonable efforts to ensure that the consent, arrange the comprehensive notice that they can request an parent(s) is fully aware of the nature multidisciplinary evaluation. evaluation at any point during the of the evaluation or the services (7) If the child screening process. that would be available; and that is found eligible for FIT services, (4) If the the parent(s) understand that the the family service coordinator with results of the screening: child will not be able to receive the parental consent shall schedule and (a) evaluation or services unless consent facilitate the initial IFSP meeting Do not indicate that the child is is given. to be completed within 45 days of suspected of having a developmental (4) A referral to the FIT program for early delay, the parent must be provided comprehensive multidisciplinary intervention services. written notice of this result and be evaluation shall be conducted by a (8) Exceptions informed that they can request an multidisciplinary team consisting of at to the 45-day timeline for completion evaluation at the present time or any least two qualified professionals from of the initial IFSP due to exceptional future date. different disciplines. family circumstances must be (b) (5) The family documented in the child’s early Do indicate that the child is suspected service coordinator shall coordinate intervention record. Exceptional of having a developmental delay, an the evaluation and shall obtain family circumstances include: evaluation must be conducted, with pertinent records related to the child’s (a) the consent of the parent(s). The health and medical history. The child or parent is unavailable to 45-day timeline from referral to the (6) The complete the screening (if applicable), completion of the initial IFSP and all evaluation shall include information the initial evaluation the initial of the referral and intake requirements provided by the child’s parents, a assessments of the child and family, of this rule must still be met. review of the child’s records related or the initial IFSP meeting. F. Evaluation. to current health status and medical (b) (1) A child history and observations of the child. The parent has not provided consent who is referred for early intervention The evaluation shall also include an for the screening (if applicable) services, and whose parent(s) has assessment of the child’s strengths the initial evaluation, or the initial given prior informed consent, and needs and a determination of the assessment of the child despite shall receive a comprehensive developmental status of the child in documented repeated attempts by the multidisciplinary evaluation to the following developmental areas: early intervention provider.
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