New Mexico - Public Education Department

ELs and Special Education FAQ Collapse AllExpand All
  Data on English Learners with Disabilities:
Data at a Glance on English Learners (ELs) with Disabilities. There were:
  • 339, 219 total students enrolled in New Mexico
  • 52,220 English Learners (ELs) in the state
  • 42.936 total Students with an Individualized Education Program (IEP) in NM (not including gifted-only students)
  • 10,401 students with an IEP who were also ELs in NM
  • (as of Oct 1, 2013)
Approximately 24.2% of all students with IEPs are also categorized as ELs, and approximately 19.9% of all ELs have a diagnosed disability.

Of the total student enrollment in New Mexico, students with disabilities (SWD) make up about 12.7%; yet SWD make up 19.9% of the total population of ELs.

ELs make up 15.4% of the total population of students, but make up 24.2% of the total population of students with disabilities.

There are more than 500,000 ELs with disabilities nationally, according to US Department of Education 2012 data. This is roughly 9.07% of all students with disabilities aged 6-21.

According to the US Department of Education, ELs will comprise an estimated 40% of the K-12 population by the year 2030.

  What interventions are appropriate for students struggling due to a potential disability or limited English Proficiency?
To ensure high-quality instruction and differentiated instruction for all students, New Mexico has adopted a three-tiered Response to Intervention (RtI) framework of student intervention. In this model, students receive more targeted and intense interventions based on student needs and progress. For more information, please refer to the RtI Framework (Notes about ELs for Tier 1 on page 6 and for Tier 2 on page 13) According to the Response to Intervention framework, Tier 1 is core instruction and differentiation for all students. This tier is about high-quality teaching using differentiated instruction and data-based targeted interventions to ensure learning for all students.

The goal of Tier 2 is to provide supplemental, strategic and individualized support for at-risk (struggling or significantly advanced) students for whom Tier 1 instruction and targeted interventions prove insufficient. Students receiving Tier 2 services continue to receive Tier 1 instruction with the added benefit of more intensive interventions.

In New Mexico, Tier 3 is Special Education. This includes both students with identified disabilities and students who are identified as gifted. Interventions at each Tier need to be culturally and linguistically responsive.
  What are the procedures for identification, assessment, placement, and evaluation of English Learners with disabilities?
(from SY 2013-2014 Bilingual Multicultural Education Bureau Technical Assistance Manual, actual page number 11)

Step 1- Identification of students with a primary or home language other than English
  • A Home Language Survey must be completed within 20 days of enrollment for all new students.
Step 2- Initial assessment of English language proficiency (for qualifying students based on Home Language survey (HLS)
  • The W-APT must be administered within the first 20 days of student enrollment. Please follow this link for W-APT scores that identify a student as an EL.
Step 3- Annual English Language Proficiency Assessment for ELs
  • A Student who is classified as an EL must take the ACCESS for ELLs© annually until he or she attains a composite score of 5.0 or above.
ELs may make errors in English, but it is important to differentiate between errors that are a natural part of learning a second language and errors that are indicative of a disability.
Common Errors When Learning English as a Second Language Language Disabilities in Home/Heritage Language
Words not structured correctly Confused sequencing when relating an event
Words not verbalized correctly Lack of interrelatedness of symbols or objects
Words with incorrect meaning Poor organizing or sentence structuring
Errors in use of plurals Delayed responses or reactions
Incorrect word order- misplaced verbs or articles Poor topic maintenance
Poor subject-verb agreement Difficulty maintaining attention
Incorrect verb tense Limited use of age-appropriate vocabulary
Errors in use of "the, those these, a" with nouns Poor memory
Incorrect use or omission of prepositions Confused placement of words or phrases
Omitting enunciation of "s" to indicate possession
Adapted from Catherine Collier, Difference vs. Disability. 1998
  What are the Best Practices in identifying and evaluating EL students for disabilities?
The purpose of the Student Assistance Team (SAT) process and Tier 2 interventions is to reduce unnecessary referrals to Tier 3 (Special Education). At the same time, the SAT must be careful not to unduly delay a student with a potential disability or giftedness from receiving Special Education services if they are required. Students should only be referred for a Tier 3 special education evaluation if they have been largely unresponsive to Tier 2 interventions.
  • Preventing over-identification. If an EL student has a suspected speech or language disorder that is not observable in the first language, the SAT should convene with the ESL teacher, classroom teacher and principal to discuss possible interventions prior to referral.
  • Preventing under-identification. If an EL student has a suspected speech or language disorder that is observable in his or her first language, he or she should not be denied access to the referral process based solely on his or her limited English proficiency.
  • Response to Intervention Framework 2014
The New Mexico Public Education Department has published guidelines on assessing culturally-diverse students, including determining eligibility of services and best practices for reducing bias in assessment. Please see pages 13-16 of the July 2011 NM Technical Evaluation and Assessment Manual. This manual can be accessed through the Technical Assistance tab of the PED Special Education Bureau website.

As a best practice, it is advisable to measure proficiency levels for all modes of communication. Students may have varying social and academic language proficiency. Academic proficiency may vary depending on subject matter, linguistic parameter (reading, writing, listening, speaking) and pragmatics (for example, answering a question vs. giving an oral presentation).

Each category of disability begins with the IDEA definition provided by 34 CFR § 300.8, and in some cases the definitions are supplemented by further elaboration that is specific to New Mexico. ELs may qualify for special education services under any of these categories, but it is essential that their eligibility for special education services be based on a disability rather than a lack of proficiency in English or instruction in either reading or math. Some eligibility categories are more closely linked with language acquisition than others; for example, a student with a Specific Learning Disability may have a disorder in one or more of the psychological processes involved in understanding or using language.

This is closely linked to language acquisition, and the EL status of the student should be taken into close consideration when evaluating and determining eligibility for this disability. On the other hand, an educational diagnosis of Emotional Disturbance has little overlap with the EL status of a student and should have no effect on the evaluation and eligibility determination process for this disability other than determining in which language or by which communication pathway to deliver the evaluation and making sure the evaluation is culturally relevant.
  How is developing an IEP different for students who are ELs?
Individualized Education Programs (IEPs) for students with disabilities and in need of special education services must be reviewed at least annually or each time there is a change in the services provided within that year. By law, the language needs of the child as they relate to the IEP must be considered by the IEP team (34 CFR §300.324 (a)(2)(ii)). Per US Department of Education Guidance on executive order #13422, IEP teams for EL students with disabilities are strongly encouraged to include persons with expertise in second language acquisition or other professionals who understand how to differentiate between limited English proficiency and a disability, such as a Speech Language Pathologist.

Students who are identified as having a disability will have an Individualized Education Program (IEP) which addresses academic achievement, physical health, functional living, and/or behavior, depending on the student. The IEP also establishes learning, behavioral, and social goals for the student. These are not to supersede the English proficiency goals of the student, nor do special education services supersede language support services for which the EL student is eligible.

Parental consent is integral to the IEP process and parental involvement is strongly encouraged. In each case where consent from or notification to the parent is required, these are to be provided in the native language or mode of communication of the parents ((34 CFR §300.503(c)(ii)(2009)) See "Rights of parents of English Learners with Disabilities" below.
  What are the evaluation, assessment, and accommodations considerations for ELs with disabilities?
When selecting accommodations for ELs who have disabilities, three factors need to be considered for each student to determine the nature of instruction and educational placement:
  1. Degree of disability
  2. Level of language proficiency in both English and the primary language
  3. Intellectual capacity
These factors will help guide which accommodations are appropriate for students. For example, the following students would require different accommodations:
  • Student 1 has a high level of proficiency in his/her native language, a minimal level of proficiency in English, is of average intelligence and has limited visual acuity.
  • Student 2 is linguistically limited in his/her native and target languages, exhibits lower intellectual performance and lacks fine motor skills.
New Mexico law protects the rights of culturally and linguistically diverse students in assessment and testing (Section (E) NMAC). The materials and administration of evaluations must take cultural and linguistic backgrounds into account and must not be discriminatory on a racial or cultural bias. To this end, tests and other evaluation materials must be provided in the child's native language as feasible. This same section states that a child may not be determined to be a child with a disability if the determinant factor for that disability is limited English proficiency. The native language of the child must be considered to prevent misidentification.

The Individuals with Disabilities Education Act (IDEA; 2004) mandates that students with disabilities participate in state-wide and district-wide assessments, including alternate assessments with appropriate accommodations, when it is documented in their Individualized Education Programs (IEP).
  What type of assessment and evaluations are needed for ELs with disabilities?
All kindergarten through 12th graders who are identified as English Learners are required to take the ACCESS for ELLs© (Assessing Comprehension and Communication in English State-to-State for English Language Learners). This assessment is given yearly until the student reaches English language proficiency.

An Alternate ACCESS for ELLs © is available for students with severe cognitive disabilities. Students must meet specific criteria to be eligible to participate in the Alternate ACCESS for ELLs ©. Visit the New Mexico page of WIDA for more information.

PARCC accommodations for SWD and ELs.
The PARCC (Partnership for Assessment of Readiness for College and Careers) assessment has accommodations for both Students with Disabilities and English Learners. For more information, consult the PARCC Accessibility Features and Accommodations Manual.

Accommodations provided to a student on the PARCC assessment must be generally consistent with accommodations provided to that student for classroom instruction and classroom assessments. Some further important considerations to take into account for standards-based assessments for ELs are found on pages 16-19 of the SY 2013-2014 BMEB Technical Assistance Manual, which can be found on the BME Programs tab of the PED Bilingual and Multicultural Education Bureau homepage.

NMAPA and NCSC accommodations
NMAPA and NCSC are alternative assessments for students with significant cognitive disabilities. Students on the Ability graduation pathway would take these assessments rather than the PARCC. Both of these assessments have lists of acceptable accommodations for English Learners.
  • Accommodations manual for NMAPA, ACCESS, and HSGA
    • There is a list of allowable accommodations for ELs starting on page 20. These include picture dictionaries, read aloud in English, pocket translators, and Spanish-Language versions of the assessment, among others. Guidelines for determining appropriate accommodations begin on page 42.
  • NCSC manual
  What are the unique rights of parents of English Learners (ELs) with Disabilities?
The district/school must notify the parent(s) of an identified EL prior to placement of the student in a bilingual multicultural education or a stand-alone English as a second language program. Regardless of program participation districts are required to serve identified EL students. Parent(s) must be notified of the student placement within 30 days after enrollment. If a parent does not wish for the student to participate in the program, the parent must send a letter indicating this to the school/district.

The rights of parents of EL students in student evaluation and IEP Development

Parental involvement is crucial in developing Individualized Education Programs (IEPs). The rights of parents of EL students are widely protected in Special Education Law. To make parents of students with disabilities aware of their rights and responsibilities, a copy of procedural safeguards in the native language or other mode of communication of the parent must be provided at least once per school year (Section (D) of NMAC).

The Individuals with Disabilities Education Act (IDEA) defines the term "consent" as meaning "that [t]he parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or through another mode of communication." (34 CFR §300.9(a)(2009)). This applies throughout the act, so whenever parental consent or written notice is required, it must be in the parent's native language. Written notice to parents must be provided to parents whenever a local educational agency (LEA) plans to evaluate a child, reevaluate a child, change a child's educational placement, initiate special educational services, or change the special educational services already provided.

Lastly, IDEA makes specific provisions for the involvement of parents of ELs in the IEP meetings. IEPs contain vital information, such as a statement of the child's current achievement, a description of how the child's disability affects their academic or social involvement, and a plan outlining the special education services to be provided. Annual goals and short-term objectives regarding the student's academic and functional growth are also included in the IEP. IEPs must be reviewed whenever there is a change to the Special Education services offered or on an annual basis at an IEP meeting. At these meetings, the LEA "must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP meeting, including arranging for an interpreter for parents….whose native language is other than English." (34 CFR §300.322(e)) Parents must also receive, at no cost, a final copy of the IEP (34 CFR §300.322(f)) .
  How can I identify and challenge EL students who are or who may be gifted?
Advanced learners and students who are gifted can be found in all student populations, regardless of race, socioeconomic status or English language proficiency. The intervention process for students who are bright or potentially gifted begins in Tier 1 in the general education program. In accordance with the level of their exceptionality, students should have increasingly intense interventions through Tier 2, potentially leading to assessment and placement in Tier 3 Special Education. Gifted students may display strange interests or vocabularies, appear out of touch with their peers, or even show underachievement or problematic behavior; this makes it imperative to find and appropriately educate potentially-gifted students in all populations. Research shows that students who are gifted and not recognized, formally identified, or placed in a gifted education program may begin to develop at-risk behaviors by third grade or even earlier.

Just as with identifying ELs with disabilities, it is essential to separate a student's proficiency in English from their academic abilities and talents when assessing if a student is gifted. Intelligence assessments which are language-based are unlikely to provide accurate data for ELs. A list of assessment instruments for intellectual ability, including non-verbal assessments, can be found on pages 131-136 of the Gifted Education in New Mexico Technical Assistance Manual. This can be found in the Special Education Resources tab of the PED's RtI webpage. .
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